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Respondents, husband and wife, brought a state-law tort suit in state court alleging that, while working as a federal civilian employee at an Army Depot, the husband received chemical burns when he was exposed to toxic soda ash that was improperly stored at the depot as a result of the negligence of petitioner supervisors. The Federal District Court to which petitioners removed the action held that petitioners were absolutely immune from suit since the alleged tort was committed while they were acting within the scope of their employment, and granted summary judgment in their favor. The Court of Appeals reversed, holding that a federal employee enjoys immunity only if the challenged conduct, in addition to being within the scope of the employee's duties, is also a discretionary act.Held: Conduct by federal officials must be discretionary in nature, as well as being within the scope of their employment, before the conduct is absolutely immune from state-law tort liability. See Doe v. McMillan, . Granting absolute immunity for nondiscretionary functions would not further the official immunity doctrine's central purpose of promoting effective government by insulating the decisionmaking process from the harassment of prospective litigation which could make federal officials unduly timid in carrying out their duties. The threat of tort liability cannot detrimentally inhibit conduct that is not the product of independent judgment, and it is only when officials exercise decisionmaking discretion that potential liability may shackle the fearless, vigorous, and effective administration of governmental policies. Petitioners' alternative argument that the discretionary function requirement is satisfied if the precise conduct of the federal official is not prescribed by law and the official exercises "minimal discretion" is rejected. This approach loses sight of the underlying purpose of the official immunity doctrine by ignoring the balance of potential benefits and costs under the circumstances, and, if adopted, would render the discretionary function requirement essentially meaningless. Virtually all official acts involve some modicum of choice and yet such acts will often be largely unaffected by the prospect of tort liability, thereby making the provision of absolute immunity unnecessary and unwise. Here, since no evidence was presented controverting respondents' assertion that petitioners were not involved in discretionary conduct, there is a genuine issue of material fact as to whether that conduct is entitled to absolute immunity, and the Court of Appeals was correct in reversing the grant of summary judgment. Pp. 295-300. 785 F.2d 1551, affirmed.MARSHALL, J., delivered the opinion for a unanimous Court.Deputy Solicitor General Ayer argued the cause for petitioners. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Andrew J. Pincus, Barbara L. Herwig, and Larry L. Gregg.M. Clay Alspaugh argued the cause and filed a brief for respondents.JUSTICE MARSHALL delivered the opinion of the Court.Respondent William Erwin and his wife respondent Emely Erwin brought a state-law tort suit against petitioners, federal employees in the Executive Branch, alleging that he had suffered injuries as a result of petitioners' negligence in performing official acts. The issue presented is whether these federal officials are absolutely immune from liability under state tort law for conduct within the scope of their employment without regard to whether the challenged conduct was discretionary in nature.IRespondents William and Emely Erwin commenced this tort action in state court. At the time of the alleged tort, William Erwin was employed by the Federal Government as a civilian warehouseman at the Anniston Army Depot in Anniston, Alabama. Petitioners were supervisors at the Depot.1 Respondents' complaint alleged that while working at the Depot William Erwin came into contact with bags of toxic soda ash that "were improperly and negligently stored." 1 Record, Complaint § 3. The complaint stated that William Erwin suffered chemical burns to his eyes and throat when he inhaled soda ash dust that had spilled from its bag. William Erwin also asserted that the soda ash "should not have been routed to the warehouse where [he] was working," and that "someone should have known that it was there and provided [him] with some warning as to its presence and danger before [he] inhaled it." 1 Record, Doc. No. 4, p. 1. The complaint charged petitioners with negligence "in proximately causing, permitting, or allowing [him] to inhale the ... soda ash." 1 Record, Complaint § 6.Petitioners removed the action to the United States District Court for the Northern District of Alabama pursuant to 28 U.S.C. 1442(a)(1). The District Court held that petitioners were absolutely immune from suit and granted summary judgment in their favor. After finding that the alleged tort was committed while petitioners were acting within the scope of their employment, the court held that "any federal employee is entitled to absolute immunity for ordinary torts committed within the scope of their jobs." Civ. Action No. CV85-H-874-S, p. 2 (June 5, 1985). The Court of Appeals reversed, reasoning that a federal employee enjoys immunity "`only if the challenged conduct is a discretionary act and is within the outer perimeter of the actor's line of duty.'" 785 F.2d 1551, 1552 (CA11 1986) (quoting Johns v. Pettibone Corp., 769 F.2d 724, 728 (CA11 1985)). The court held that the District Court erred in failing to consider whether the challenged conduct was discretionary, in addition to being within the scope of petitioners' duties, before finding that petitioners were absolutely immune from suit. Summary judgment was inappropriate, the court concluded, because respondents had "alleged undisputed facts sufficient to create a material question of whether or not [petitioners'] complained-of acts were discretionary." 785 F.2d, at 1553. We granted certiorari, , to resolve the dispute among the Courts of Appeals as to whether conduct by federal officials must be discretionary in nature, as well as being within the scope of their employment, before the conduct is absolutely immune from state-law tort liability.2 We affirm.IIIn Barr v. Matteo, , and Howard v. Lyons, , this Court held that the scope of absolute official immunity afforded federal employees is a matter of federal law, "to be formulated by the courts in the absence of legislative action by Congress." Id., at 597. The purpose of such official immunity is not to protect an erring official, but to insulate the decisionmaking process from the harassment of prospective litigation. The provision of immunity rests on the view that the threat of liability will make federal officials unduly timid in carrying out their official duties, and that effective government will be promoted if officials are freed of the costs of vexatious and often frivolous damages suits. See Barr v. Matteo, supra, at 571; Doe v. McMillan, . This Court always has recognized, however, that official immunity comes at a great cost. An injured party with an otherwise meritorious tort claim is denied compensation simply because he had the misfortune to be injured by a federal official. Moreover, absolute immunity contravenes the basic tenet that individuals be held accountable for their wrongful conduct. We therefore have held that absolute immunity for federal officials is justified only when "the contributions of immunity to effective government in particular contexts outweigh the perhaps recurring harm to individual citizens." Doe v. McMillan, supra, at 320.3 Petitioners initially ask that we endorse the approach followed by the Fourth and Eighth Circuits, see General Electric Co. v. United States, 813 F.2d 1273, 1276-1277 (CA4 1987); Poolman v. Nelson, 802 F.2d 304, 307 (CA8 1986), and by the District Court in the present action, that all federal employees are absolutely immune from suits for damages under state tort law "whenever their conduct falls within the scope of their official duties." Brief for Petitioners 12. Petitioners argue that such a rule would have the benefit of eliminating uncertainty as to the scope of absolute immunity for state-law tort actions, and would most effectively ensure that federal officials act free of inhibition. Neither the purposes of the doctrine of official immunity nor our cases support such a broad view of the scope of absolute immunity, however, and we refuse to adopt this position.The central purpose of official immunity, promoting effective government, would not be furthered by shielding an official from state-law tort liability without regard to whether the alleged tortious conduct is discretionary in nature. When an official's conduct is not the product of independent judgment, the threat of liability cannot detrimentally inhibit that conduct. It is only when officials exercise decisionmaking discretion that potential liability may shackle "the fearless, vigorous, and effective administration of policies of government." Barr v. Matteo, supra, at 571. Because it would not further effective governance, absolute immunity for nondiscretionary functions finds no support in the traditional justification for official immunity.Moreover, in Doe v. McMillan, supra, we explicitly rejected the suggestion that official immunity attaches solely because conduct is within the outer perimeter of an official's duties. Doe involved a damages action for both constitutional violations and common-law torts against the Public Printer and the Superintendent of Documents arising out of the public distribution of a congressional committee's report. After recognizing that the distribution of documents was "`within the outer perimeter' of the statutory duties of the Public Printer and the Superintendent of Documents," the Court stated: "[I]f official immunity automatically attaches to any conduct expressly or impliedly authorized by law, the Court of Appeals correctly dismissed the complaint against these officials. This, however, is not the governing rule." Id., at 322. The Court went on to evaluate the level of discretion exercised by these officials, finding that they "exercise discretion only with respect to estimating the demand for particular documents and adjusting the supply accordingly." Id., at 323. The Court rejected the claim that these officials enjoyed absolute immunity for all their official acts, and held instead that the officials were immune from suit only to the extent that the Government officials ordering the printing would be immune for the same conduct. See id., at 323-324. The key importance of Doe lies in its analysis of discretion as a critical factor in evaluating the legitimacy of official immunity. As Doe's analysis makes clear, absolute immunity from state-law tort actions should be available only when the conduct of federal officials is within the scope of their official duties and the conduct is discretionary in nature.4 As an alternative position, petitioners contend that even if discretion is required before absolute immunity attaches, the requirement is satisfied as long as the official exercises "minimal discretion." Brief for Petitioners 15. If the precise conduct is not mandated by law, petitioners argue, then the act is "discretionary" and the official is entitled to absolute immunity from state-law tort liability. We reject such a wooden interpretation of the discretionary function requirement. Because virtually all official acts involve some modicum of choice, petitioners' reading of the requirement would render it essentially meaningless. Furthermore, by focusing entirely on the question whether a federal official's precise conduct is controlled by law or regulation, petitioners' approach ignores the balance of potential benefits and costs of absolute immunity under the circumstances and thus loses sight of the underlying purpose of official immunity doctrine. See Doe v. McMillan, 412 U.S., at 320. Conduct by federal officials will often involve the exercise of a modicum of choice and yet be largely unaffected by the prospect of tort liability, making the provision of absolute immunity unnecessary and unwise. In the present case, the Court of Appeals, reviewing a summary judgment determination, held that petitioners were not entitled to official immunity solely because they were acting within the scope of their official duties, and that there was a material question whether the challenged conduct was discretionary. 785 F.2d, at 1553. Applying the foregoing reasoning to this case, it is clear that the court was correct in reversing the District Court's grant of summary judgment. Petitioners have the burden of proving that they are entitled to absolute immunity from the tort suit. Respondent William Erwin asserted that petitioners' "duties only require them to follow established procedures and guidelines," and that they "are not involved in any policy-making work for the United States Government." 1 Record, Doc. No. 4, p. 2. In response, petitioners have not presented any evidence relating to their official duties or to the level of discretion they exercise. Petitioners aver merely that the alleged tortious conduct was "within the scope of their official duties." 1 Record, Exh. A, p. 2. As we stated above, federal officials are not absolutely immune from state-law tort liability for all actions committed within the outer perimeter of their duties. A material issue of fact thus exists as to whether petitioners exercised sufficient discretion in connection with the alleged tort to warrant the shield of absolute immunity.Because this case comes to us on summary judgment and the relevant factual background is undeveloped, we are not called on to define the precise boundaries of official immunity or to determine the level of discretion required before immunity may attach. In deciding whether particular governmental functions properly fall within the scope of absolute official immunity, however, courts should be careful to heed the Court's admonition in Doe to consider whether the contribution to effective government in particular contexts outweighs the potential harm to individual citizens. Courts must not lose sight of the purposes of the official immunity doctrine when resolving individual claims of immunity or formulating general guidelines. We are also of the view, however, that Congress is in the best position to provide guidance for the complex and often highly empirical inquiry into whether absolute immunity is warranted in a particular context. Legislated standards governing the immunity of federal employees involved in state-law tort actions would be useful.IIIThe Court of Appeals was correct in holding that absolute immunity does not shield official functions from state-law tort liability unless the challenged conduct is within the outer perimeter of an official's duties and is discretionary in nature. Moreover, absolute immunity does not attach simply because the precise conduct of the federal official is not prescribed by law. There is thus a genuine issue of material fact as to whether petitioners' conduct is entitled to absolute immunity. Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered.

Section 316 of the Federal Election Campaign Act (FECA) prohibits corporations from using treasury funds to make an expenditure "in connection with" any federal election, and requires that any expenditure for such purpose be financed by voluntary contributions to a separate segregated fund. Appellee is a nonprofit, nonstock corporation, whose purpose is to foster respect for human life and to defend the right to life of all human beings, born and unborn, through educational, political, and other forms of activities. To further this purpose, it has published a newsletter that has been distributed to contributors and to noncontributors who have expressed support for the organization. In September 1978, appellee prepared and distributed a "Special Edition" exhorting readers to vote "pro-life" in the upcoming primary elections in Massachusetts, listing the candidates for each state and federal office in every voting district in the State, and identifying each one as either supporting or opposing appellee's views. While some 400 candidates were listed, the photographs of only 13 were featured, all of whom were identified as favoring appellee's views. The publication was prepared by a staff that had prepared no regular newsletter, was distributed to a much larger audience than that of the regular newsletter, most of whom were members of the general public, and was financed by money taken from appellee's general treasury funds. A complaint was filed with appellant Federal Election Commission (FEC) alleging that the "Special Edition" violated 316 as representing an expenditure of funds from a corporate treasury to distribute to the general public a campaign flyer on behalf of certain political candidates. After the FEC determined that there was probable cause to believe that appellee had violated the statute, the FEC filed a complaint in Federal District Court, seeking a civil penalty and other relief. The District Court granted appellee's motion for summary judgment, holding that 316 did not apply to appellee but that if it did it was unconstitutional as a violation of the First Amendment. The Court of Appeals held that the statute applied to appellee and as so applied was unconstitutional. Held: The judgment is affirmed. 769 F.2d 13, affirmed. JUSTICE BRENNAN delivered the opinion of the Court as to Parts I, II, III-B, and III-C, concluding that: 1. Appellee's publication and distribution of the "Special Edition" violated 316. Pp. 245-251. (a) There is no merit to appellee's contention that preparation and distribution of the "Special Edition" does not fall within 316's definition of "expenditure" as the provision of various things of value "to any candidate, campaign committee, or political party or organization, in connection with any election," especially since the general definitions section of the FECA broadly defines "expenditure" as including provision of anything of value made "for the purpose of influencing any election for Federal office." Moreover, the legislative history clearly confirms that 316 was meant to proscribe expenditures in connection with an election. That history makes clear that Congress has long regarded it as insufficient merely to restrict payments made directly to candidates or campaign organizations. Pp. 245-248. (b) An expenditure must constitute "express advocacy" in order to be subject to 316's prohibition. Here, the publication of the "Special Edition" constituted "express advocacy," since it represented express advocacy of the election of particular candidates distributed to members of the general public. Pp. 248-250. (c) Appellee is not entitled to the press exemption under the FECA reserved for any news story, commentary, or editorial distributed through any "periodical publication," since even assuming that appellee's regular newsletter is exempt under this provision, the "Special Edition" cannot be considered comparable to any single issue of the newsletter in view of the method by which it was prepared and distributed. Pp. 250-251. 2. Section 316's restriction of independent spending is unconstitutional as applied to appellee, for it infringes protected speech without a compelling justification for such infringement. The concern underlying the regulation of corporate political activity - that organizations that amass great wealth in the economic marketplace not gain unfair advantage in the political marketplace - is absent with regard to appellee. Appellee was formed to disseminate political ideas, not to amass capital. It has no shareholders or other persons having a claim on its assets or earnings, but obtains its funds from persons who make contributions to further the organization's political purposes. It was not established by a business corporation or a labor union, and its policy is not to accept contributions from such entities. Pp. 256-265. JUSTICE BRENNAN, joined by JUSTICE MARSHALL, JUSTICE POWELL, and JUSTICE SCALIA, concluded in Part III-A that the practical effect of applying 316 to appellee of discouraging protected speech is sufficient to characterize 316 as an infringement on First Amendment activities. As a corporation, appellee is subject to more extensive requirements and more stringent restrictions under the FECA than it would be if was not incorporated. These include detailed recordkeeping and disclosure obligations, the requirement of a complex and formalized organization, and a limitation on whom can be solicited for contributions, all of which create a disincentive for such an organization to engage in political speech. Pp. 251-256. JUSTICE O'CONNOR, agreeing that 316 is unconstitutional as applied to appellee's conduct at issue, concluded that the significant burden on appellee comes not from the statute's disclosure requirements that appellee must satisfy, but from the additional organizational restraints imposed upon it by the statute. These restraints do not further the Government's informational interest in campaign disclosure and cannot be justified by any of the other interests identified by the FEC. Pp. 265-266. BRENNAN, J., announced the judgment of the Court and delivered the opinion for a unanimous Court with respect to Parts I and II, an opinion of the Court with respect to Parts III-B and III-C, in which MARSHALL, POWELL, O'CONNOR, and SCALIA, JJ., joined, and an opinion with respect to Part III-A, in which MARSHALL, POWELL, and SCALIA, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 265. REHNQUIST, C. J., filed an opinion concurring in part and dissenting in part, in which WHITE, BLACKMUN, and STEVENS, JJ., joined, post, p. 266. WHITE, J., filed a separate statement, post, p. 271.Charles N. Steele argued the cause for appellant. With him on the briefs was Richard B. Bader.Francis H. Fox argued the cause for appellee. With him on the brief was E. Susan Garsh.* [Footnote *] Roger M. Witten, William T. Lake, Carol F. Lee, and Archibald Cox filed a brief for Common Cause as amicus curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Marjorie Heins, Burt Neuborne, and Jack Novik; for the Catholic League for Religious and Civil Rights by Steven Frederick McDowell; for the Chamber of Commerce of the United States by Judith K. Richmond, Stephen A. Bokat, Robin S. Conrad, and Jan W. Baran; for the Home Builders Association of Massachusetts by Wayne S. Henderson; for the National Rifle Association of America by James J. Featherstone and Richard E. Gardiner; and for Joseph M. Scheidler et al. by Edward R. Grant and Maura K. Quinlan. Jane E. Kirtley, David Barr, Nancy H. Hendry, J. Laurent Scharff, and Bruce W. Sanford filed a brief for the Reporters Committee for Freedom of the Press et al. as amici curiae. JUSTICE BRENNAN announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III-B, and III-C, and an opinion with respect to Part III-A, in which JUSTICE MARSHALL, JUSTICE POWELL, and JUSTICE SCALIA join.The questions for decision here arise under 316 of the Federal Election Campaign Act (FECA or Act), 90 Stat. 490, as renumbered and amended, 2 U.S.C. 441b. The first question is whether appellee Massachusetts Citizens for Life, Inc. (MCFL), a nonprofit, nonstock corporation, by financing certain activity with its treasury funds, has violated the restriction on independent spending contained in 441b. That section prohibits corporations from using treasury funds to make an expenditure "in connection with" any federal election, and requires that any expenditure for such purpose be financed by voluntary contributions to a separate segregated fund. If appellee has violated 441b, the next question is whether application of that section to MCFL's conduct is constitutional. We hold that the appellee's use of its treasury funds is prohibited by 441b, but that 441b is unconstitutional as applied to the activity of which the Federal Election Commission (FEC or Commission) complains.IAMCFL was incorporated in January 1973 as a nonprofit, nonstock corporation under Massachusetts law. Its corporate purpose as stated in its articles of incorporation is:"To foster respect for human life and to defend the right to life of all human beings, born and unborn, through educational, political and other forms of activities and in addition to engage in any other lawful act or activity for which corporations may be organized ... ." App. 84. MCFL does not accept contributions from business corporations or unions. Its resources come from voluntary donations from "members," and from various fundraising activities such as garage sales, bake sales, dances, raffles, and picnics. The corporation considers its "members" those persons who have either contributed to the organization in the past or indicated support for its activities.1 Appellee has engaged in diverse educational and legislative activities designed to further its agenda. It has organized an ecumenical prayer service for the unborn in front of the Massachusetts Statehouse; sponsored a regional conference to discuss the issues of abortion and euthanasia; provided speakers for discussion groups, debates, lectures, and media programs; and sponsored an annual March for Life. In addition, it has drafted and submitted legislation, some of which has become law in Massachusetts; sponsored testimony on proposed legislation; and has urged its members to contact their elected representatives to express their opinion on legislative proposals.MCFL began publishing a newsletter in January 1973. It was distributed as a matter of course to contributors, and, when funds permitted, to noncontributors who had expressed support for the organization. The total distribution of any one issue has never exceeded 6,000. The newsletter was published irregularly from 1973 through 1978: three times in 1973, five times in 1974, eight times in 1975, eight times in 1976, five times in 1977, and four times in 1978. Id., at 88. Each of the newsletters bore a masthead identifying it as the "Massachusetts Citizens for Life Newsletter," as well as a volume and issue number. The publication typically contained appeals for volunteers and contributions and information on MCFL activities, as well as on matters such as the results of hearings on bills and constitutional amendments, the status of particular legislation, and the outcome of referenda, court decisions, and administrative hearings. Newsletter recipients were usually urged to contact the relevant decisionmakers and express their opinion.BIn September 1978, MCFL prepared and distributed a "Special Edition" prior to the September 1978 primary elections. While the May 1978 newsletter had been mailed to 2,109 people and the October 1978 newsletter to 3,119 people, more than 100,000 copies of the "Special Edition" were printed for distribution. The front page of the publication was headlined "EVERYTHING YOU NEED TO KNOW TO VOTE PRO-LIFE," and readers were admonished that "[n]o pro-life candidate can win in November without your vote in September." "VOTE PRO-LIFE" was printed in large bold-faced letters on the back page, and a coupon was provided to be clipped and taken to the polls to remind voters of the name of the "pro-life" candidates. Next to the exhortation to vote "pro-life" was a disclaimer: "This special election edition does not represent an endorsement of any particular candidate." Id., at 101.To aid the reader in selecting candidates, the flyer listed the candidates for each state and federal office in every voting district in Massachusetts, and identified each one as either supporting or opposing what MCFL regarded as the correct position on three issues. A "y" indicated that a candidate supported the MCFL view on a particular issue and an "n" indicated that the candidate opposed it. An asterisk was placed next to the names of those incumbents who had made a "special contribution to the unborn in maintaining a 100% pro-life voting record in the state house by actively supporting MCFL legislation." While some 400 candidates were running for office in the primary, the "Special Edition" featured the photographs of only 13. These 13 had received a triple "y" rating, or were identified either as having a 100% favorable voting record or as having stated a position consistent with that of MCFL. No candidate whose photograph was featured had received even one "n" rating.The "Special Edition" was edited by an officer of MCFL who was not part of the staff that prepared the MCFL newsletters. The "Special Edition" was mailed free of charge and without request to 5,986 contributors, and to 50,674 others whom MCFL regarded as sympathetic to the organization's purposes. The Commission asserts that the remainder of the 100,000 issues were placed in public areas for general distribution, but MCFL insists that no copies were made available to the general public.2 The "Special Edition" was not identified on its masthead as a special edition of the regular newsletter, although the MCFL logotype did appear at its top. The words "Volume 5, No. 3, 1978" were apparently handwritten on the Edition submitted to the FEC, but the record indicates that the actual Volume 5, No. 3, was distributed in May and June 1977. The corporation spent $9,812.76 to publish and circulate the "Special Edition," all of which was taken from its general treasury funds.A complaint was filed with the Commission alleging that the "Special Edition" was a violation of 441b. The complaint maintained that the Edition represented an expenditure of funds from a corporate treasury to distribute to the general public a campaign flyer on behalf of certain political candidates. The FEC found reason to believe that such a violation had occurred, initiated an investigation, and determined that probable cause existed to believe that MCFL had violated the Act. After conciliation efforts failed, the Commission filed a complaint in the District Court under 437g(a)(6)(A), seeking a civil penalty and other appropriate relief.Both parties moved for summary judgment. The District Court granted MCFL's motion, holding that: (1) the election publications could not be regarded as "expenditures" under 441b(b)(2); (2) the "Special Edition" was exempt from the statutory prohibition by virtue of 431(9)(B)(i), which in general exempts news commentary distributed by a periodical publication unaffiliated with any candidate or political party; and (3) if the statute applied to MCFL, it was unconstitutional as a violation of the First Amendment. 589 F. Supp. 646, 649 (Mass. 1984).On appeal, the Court of Appeals for the First Circuit held that the statute was applicable to MCFL, but affirmed the District Court's holding that the statute as so applied was unconstitutional. 769 F.2d 13 (1985). We granted certiorari, , and now affirm.IIWe agree with the Court of Appeals that the "Special Edition" is not outside the reach of 441b. First, we find no merit in appellee's contention that preparation and distribution of the "Special Edition" does not fall within that section's definition of "expenditure." Section 441b(b)(2) defines "contribution or expenditure" as the provision of various things of value "to any candidate, campaign committee, or political party or organization, in connection with any election ..." (emphasis added). MCFL contends that, since it supplied nothing to any candidate or organization, the publication is not within 441b. However, the general definitions section of the Act contains a broader definition of "expenditure," including within that term the provision of anything of value made "for the purpose of influencing any election for Federal office ... ." 2 U.S.C. 431(9)(A)(i) (emphasis added). Since the language of the statute does not alone resolve the issue, we must look to the legislative history of 441b to determine the scope of the term "expenditure."3 That history clearly confirms that 441b was meant to proscribe expenditures in connection with an election. We have exhaustively recounted the legislative history of the predecessors of this section in prior decisions. See Pipefitters v. United States, ; United States v. Automobile Workers, . This history makes clear that Congress has long regarded it as insufficient merely to restrict payments made directly to candidates or campaign organizations. The first explicit expression of this came in 1947, when Congress passed the Taft-Hartley Act, ch. 120, 304, 61 Stat. 136, 159, as amended, 18 U.S.C. 610 (1970 ed.), the criminal statute prohibiting corporate contributions and expenditures to candidates. The statute as amended forbade any corporation or labor organization to make a "contribution or expenditure in connection with any election ..." for federal office. The 1946 Report of the House Special Committee to Investigate Campaign Expenditures explained the rationale for the amendment, noting that it would undermine the basic objective of 610"if it were assumed that the term `making any contribution' related only to the donating of money directly to a candidate, and excluded the vast expenditures of money in the activities herein shown to be engaged in extensively. Of what avail would a law be to prohibit the contributing direct to a candidate and yet permit the expenditure of large sums in his behalf?" H. R. Rep. No. 2739, 79th Cong., 2d Sess., 40, quoted in Automobile Workers, supra, at 581. During the legislative debate on the bill, Senator Taft was asked whether 610 permitted a newspaper published by a railway union to put out a special edition in support of a political candidate, or whether such activity would be considered a political expenditure. The Senator replied: "If it were supported by union funds contributed by union members as union dues it would be a violation of the law, yes. It is exactly as if a railroad itself, using its stockholders' funds, published such an advertisement in the newspaper supporting one candidate as against another ... ." 93 Cong. Rec. 6436-6437 (1947).United States v. CIO, , narrowed the scope of this prohibition, by permitting the use of union funds to publish a special edition of the weekly CIO News distributed to union members and purchasers of the issue. In Automobile Workers, supra, however, we held that a union was subject to indictment for using union dues to sponsor political advertisements on commercial television. Distinguishing CIO, we stated that the concern of the statute "is the use of corporation or union funds to influence the public at large to vote for a particular candidate or a particular party." 352 U.S., at 589.The Federal Election Campaign Act enacted the prohibition now found in 441b. This portion of the Act simply ratified the existing understanding of the scope of 610. See Pipefitters, supra, at 410-411. Representative Hansen, the sponsor of the provision, declared:"The effect of this language is to carry out the basic intent of section 610, which is to prohibit the use of union or corporate funds for active electioneering directed at the general public on behalf of a candidate in a Federal election." 117 Cong. Rec. 43379 (1971). The Representative concluded:"The net effect of the amendment, therefore, is to tighten and clarify the provisions of section 610 of title 18, United States Code, and to codify the case law." Ibid.4 Thus, the fact that 441b uses the phrase "to any candidate ... in connection with any election," while 610 provided "in connection with any primary election," is not evidence that Congress abandoned its restriction, in force since 1947, on expenditures on behalf of candidates. We therefore find no merit in MCFL's argument that only payments to a candidate or organization fall within the scope of 441b.Appellee next argues that the definition of an expenditure under 441b necessarily incorporates the requirement that a communication "expressly advocate" the election of candidates, and that its "Special Edition" does not constitute express advocacy. The argument relies on the portion of Buckley v. Valeo, , that upheld the disclosure requirement for expenditures by individuals other than candidates and by groups other than political committees. See 2 U.S.C. 434(c). There, in order to avoid problems of overbreadth, the Court held that the term "expenditure" encompassed "only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate." 424 U.S., at 80 (footnote omitted). The rationale for this holding was:"[T]he distinction between discussion of issues and candidates and advocacy of election or defeat of candidates may often dissolve in practical application. Candidates, especially incumbents, are intimately tied to public issues involving legislative proposals and governmental actions. Not only do candidates campaign on the basis of their positions on various issues, but campaigns themselves generate issues of public interest." Id., at 42 (footnote omitted). We agree with appellee that this rationale requires a similar construction of the more intrusive provision that directly regulates independent spending. We therefore hold that an expenditure must constitute "express advocacy" in order to be subject to the prohibition of 441b. We also hold, however, that the publication of the "Special Edition" constitutes "express advocacy."Buckley adopted the "express advocacy" requirement to distinguish discussion of issues and candidates from more pointed exhortations to vote for particular persons. We therefore concluded in that case that a finding of "express advocacy" depended upon the use of language such as "vote for," "elect," "support," etc., Buckley, supra, at 44, n. 52. Just such an exhortation appears in the "Special Edition." The publication not only urges voters to vote for "pro-life" candidates, but also identifies and provides photographs of specific candidates fitting that description. The Edition cannot be regarded as a mere discussion of public issues that by their nature raise the names of certain politicians. Rather, it provides in effect an explicit directive: vote for these (named) candidates. The fact that this message is marginally less direct than "Vote for Smith" does not change its essential nature. The Edition goes beyond issue discussion to express electoral advocacy. The disclaimer of endorsement cannot negate this fact. The "Special Edition" thus falls squarely within 441b, for it represents express advocacy of the election of particular candidates distributed to members of the general public.Finally, MCFL argues that it is entitled to the press exemption under 2 U.S.C. 431(9)(B)(i) reserved for"any news story, commentary, or editorial distributed through the facilities of any ... newspaper, magazine, or other periodical publication, unless such facilities are owned or controlled by any political party, political committee, or candidate." MCFL maintains that its regular newsletter is a "periodical publication" within this definition, and that the "Special Edition" should be regarded as just another issue in the continuing newsletter series. The legislative history on the press exemption is sparse; the House of Representatives' Report on this section states merely that the exemption was designed to"make it plain that it is not the intent of Congress in the present legislation to limit or burden in any way the first amendment freedoms of the press or of association. [The exemption] assures the unfettered right of the newspapers, TV networks, and other media to cover and comment on political campaigns." H. R. Rep. No. 93-1239, p. 4 (1974). We need not decide whether the regular MCFL newsletter is exempt under this provision, because, even assuming that it is, the "Special Edition" cannot be considered comparable to any single issue of the newsletter. It was not published through the facilities of the regular newsletter, but by a staff which prepared no previous or subsequent newsletters. It was not distributed to the newsletter's regular audience, but to a group 20 times the size of that audience, most of whom were members of the public who had never received the newsletter. No characteristic of the Edition associated it in any way with the normal MCFL publication. The MCFL masthead did not appear on the flyer, and, despite an apparent belated attempt to make it appear otherwise, the Edition contained no volume and issue number identifying it as one in a continuing series of issues.MCFL protests that determining the scope of the press exemption by reference to such factors inappropriately focuses on superficial considerations of form. However, it is precisely such factors that in combination permit the distinction of campaign flyers from regular publications. We regard such an inquiry as essential, since we cannot accept the notion that the distribution of such flyers by entities that happen to publish newsletters automatically entitles such organizations to the press exemption. A contrary position would open the door for those corporations and unions with inhouse publications to engage in unlimited spending directly from their treasuries to distribute campaign material to the general public, thereby eviscerating 441b's prohibition.5 In sum, we hold that MCFL's publication and distribution of the "Special Edition" is in violation of 441b. We therefore turn to the constitutionality of that provision as applied to appellee.IIIAIndependent expenditures constitute expression "`at the core of our electoral process and of the First Amendment freedoms.'" Buckley, 424 U.S., at 39 (quoting Williams v. Rhodes, ). See also FEC v. National Conservative Political Action Committee, (NCPAC) (independent expenditures "produce speech at the core of the First Amendment"). We must therefore determine whether the prohibition of 441b burdens political speech, and, if so, whether such a burden is justified by a compelling state interest. Buckley, supra, at 44-45.The FEC minimizes the impact of the legislation upon MCFL's First Amendment rights by emphasizing that the corporation remains free to establish a separate segregated fund, composed of contributions earmarked for that purpose by the donors, that may be used for unlimited campaign spending. However, the corporation is not free to use its general funds for campaign advocacy purposes. While that is not an absolute restriction on speech, it is a substantial one. Moreover, even to speak through a segregated fund, MCFL must make very significant efforts.If it were not incorporated, MCFL's obligations under the Act would be those specified by 434(c), the section that prescribes the duties of "[e]very person (other than a political committee)."6 Section 434(c) provides that any such person that during a year makes independent expenditures exceeding $250 must: (1) identify all contributors who contribute in a given year over $200 in the aggregate in funds to influence elections, 434(c)(1); (2) disclose the name and address of recipients of independent expenditures exceeding $200 in the aggregate, along with an indication of whether the money was used to support or oppose a particular candidate, 434(c)(2)(A); and (3) identify any persons who make contributions over $200 that are earmarked for the purpose of furthering independent expenditures, 434(c)(2)(C). All unincorporated organizations whose major purpose is not campaign advocacy, but who occasionally make independent expenditures on behalf of candidates, are subject only to these regulations.Because it is incorporated, however, MCFL must establish a "separate segregated fund" if it wishes to engage in any independent spending whatsoever. 441b(a), (b)(2)(C). Since such a fund is considered a "political committee" under the Act, 431(4)(B), all MCFL independent expenditure activity is, as a result, regulated as though the organization's major purpose is to further the election of candidates. This means that MCFL must comply with several requirements in addition to those mentioned. Under 432, it must appoint a treasurer, 432(a); ensure that contributions are forwarded to the treasurer within 10 or 30 days of receipt, depending on the amount of contribution, 432(b)(2); see that its treasurer keeps an account of every contribution regardless of amount, the name and address of any person who makes a contribution in excess of $50, all contributions received from political committees, and the name and address of any person to whom a disbursement is made regardless of amount, 432(c); and preserve receipts for all disbursements over $200 and all records for three years, 432(c), (d). Under 433, MCFL must file a statement of organization containing its name, address, the name of its custodian of records, and its banks, safety deposit boxes, or other depositories, 433(a), (b); must report any change in the above information within 10 days, 433(c); and may dissolve only upon filing a written statement that it will no longer receive any contributions nor make disbursements, and that it has no outstanding debts or obligations, 433(d)(1).Under 434, MCFL must file either monthly reports with the FEC or reports on the following schedule: quarterly reports during election years, a pre-election report no later than the 12th day before an election, a postelection report within 30 days after an election, and reports every 6 months during nonelection years, 434(a)(4)(A), (B). These reports must contain information regarding the amount of cash on hand; the total amount of receipts, detailed by 10 different categories; the identification of each political committee and candidate's authorized or affiliated committee making contributions, and any persons making loans, providing rebates, refunds, dividends, or interest or any other offset to operating expenditures in an aggregate amount over $200; the total amount of all disbursements, detailed by 12 different categories; the names of all authorized or affiliated committees to whom expenditures aggregating over $200 have been made; persons to whom loan repayments or refunds have been made; the total sum of all contributions, operating expenses, outstanding debts and obligations, and the settlement terms of the retirement of any debt or obligation. 434(b). In addition, MCFL may solicit contributions for its separate segregated fund only from its "members," 441b(b)(4)(A), (C), which does not include those persons who have merely contributed to or indicated support for the organization in the past. See FEC v. National Right to Work Committee, .It is evident from this survey that MCFL is subject to more extensive requirements and more stringent restrictions than it would be if it were not incorporated. These additional regulations may create a disincentive for such organizations to engage in political speech. Detailed record-keeping and disclosure obligations, along with the duty to appoint a treasurer and custodian of the records, impose administrative costs that many small entities may be unable to bear.7 Furthermore, such duties require a far more complex and formalized organization than many small groups could manage. Restriction of solicitation of contributions to "members" vastly reduces the sources of funding for organizations with either few or no formal members, directly limiting the ability of such organizations to engage in core political speech. It is not unreasonable to suppose that, as in this case, an incorporated group of like-minded persons might seek donations to support the dissemination of their political ideas and their occasional endorsement of political candidates, by means of garage sales, bake sales, and raffles. Such persons might well be turned away by the prospect of complying with all the requirements imposed by the Act. Faced with the need to assume a more sophisticated organizational form, to adopt specific accounting procedures, to file periodic detailed reports, and to monitor garage sales lest nonmembers take a fancy to the merchandise on display, it would not be surprising if at least some groups decided that the contemplated political activity was simply not worth it.8 Thus, while 441b does not remove all opportunities for independent spending by organizations such as MCFL, the avenue it leaves open is more burdensome than the one it forecloses. The fact that the statute's practical effect may be to discourage protected speech is sufficient to characterize 441b as an infringement on First Amendment activities. In Freedman v. Maryland, , for instance, we held that the absence of certain procedural safeguards rendered unconstitutional a State's film censorship program. Such procedures were necessary, we said, because, as a practical matter, without them "it may prove too burdensome to seek review of the censor's determination." Id., at 59. Speiser v. Randall, , reviewed a state program under which taxpayers applying for a certain tax exemption bore the burden of proving that they did not advocate the overthrow of the United States and would not support a foreign government against this country. We noted: "In practical operation, therefore, this procedural device must necessarily produce a result which the State could not command directly. It can only result in a deterrence of speech which the Constitution makes free." Id., at 526. The same may be said of 441b, for its practical effect on MCFL in this case is to make engaging in protected speech a severely demanding task.9 BWhen a statutory provision burdens First Amendment rights, it must be justified by a compelling state interest. Williams v. Rhodes, 393 U.S., at 31; NAACP v. Button, . The FEC first insists that justification for 441b's expenditure restriction is provided by this Court's acknowledgment that "the special characteristics of the corporate structure require particularly careful regulation." National Right to Work Committee, supra, at 209-210. The Commission thus relies on the long history of regulation of corporate political activity as support for the application of 441b to MCFL. Evaluation of the Commission's argument requires close examination of the underlying rationale for this longstanding regulation.We have described that rationale in recent opinions as the need to restrict "the influence of political war chests funneled through the corporate form," NCPAC, 470 U.S., at 501; to "eliminate the effect of aggregated wealth on federal elections," Pipefitters, 407 U.S., at 416; to curb the political influence of "those who exercise control over large aggregations of capital," Automobile Workers, 352 U.S., at 585; and to regulate the "substantial aggregations of wealth amassed by the special advantages which go with the corporate form of organization," National Right to Work Committee, 459 U.S., at 207.This concern over the corrosive influence of concentrated corporate wealth reflects the conviction that it is important to protect the integrity of the marketplace of political ideas. It acknowledges the wisdom of Justice Holmes' observation that "the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market ... ." Abrams v. United States, (Holmes, J., joined by Brandeis, J., dissenting).10 Direct corporate spending on political activity raises the prospect that resources amassed in the economic marketplace may be used to provide an unfair advantage in the political marketplace. Political "free trade" does not necessarily require that all who participate in the political marketplace do so with exactly equal resources. See NCPAC, supra (invalidating limits on independent spending by political committees); Buckley, 424 U.S., at 39-51 (striking down expenditure limits in 1971 Campaign Act). Relative availability of funds is after all a rough barometer of public support. The resources in the treasury of a business corporation, however, are not an indication of popular support for the corporation's political ideas. They reflect instead the economically motivated decisions of investors and customers. The availability of these resources may make a corporation a formidable political presence, even though the power of the corporation may be no reflection of the power of its ideas.By requiring that corporate independent expenditures be financed through a political committee expressly established to engage in campaign spending, 441b seeks to prevent this threat to the political marketplace. The resources available to this fund, as opposed to the corporate treasury, in fact reflect popular support for the political positions of the committee. Pipefitters, supra, acknowledged this objective of 441b in noting the statement of Representative Hansen, its sponsor, that the "`underlying theory'" of this regulation "`is that substantial general purpose treasuries should not be diverted to political purposes,'" and that requiring funding by voluntary contributions would ensure that "`the money collected is that intended by those who contribute to be used for political purposes and not money diverted from another source.'" 407 U.S., at 423-424 (quoting 117 Cong. Rec. 43381 (1971)).11 See also Automobile Workers, supra, at 582 (Congress added proscription on expenditures to Corrupt Practices Act "to protect the political process from what it deemed to be the corroding effect of money employed in elections by aggregated power"). The expenditure restrictions of 441b are thus meant to ensure that competition among actors in the political arena is truly competition among ideas.Regulation of corporate political activity thus has reflected concern not about use of the corporate form per se, but about the potential for unfair deployment of wealth for political purposes.12 Groups such as MCFL, however, do not pose that danger of corruption. MCFL was formed to disseminate political ideas, not to amass capital. The resources it has available are not a function of its success in the economic market-place, but its popularity in the political marketplace. While MCFL may derive some advantages from its corporate form, those are advantages that redound to its benefit as a political organization, not as a profit-making enterprise. In short, MCFL is not the type of "traditional corporatio[n] organized for economic gain," NCPAC, supra, at 500, that has been the focus of regulation of corporate political activity.National Right to Work Committee does not support the inclusion of MCFL within 441b's restriction on direct independent spending. That case upheld the application to a nonprofit corporation of a different provision of 441b: the limitation on who can be solicited for contributions to a political committee. However, the political activity at issue in that case was contributions, as the committee had been established for the purpose of making direct contributions to political candidates. 459 U.S., at 200. We have consistently held that restrictions on contributions require less compelling justification than restrictions on independent spending. NCPAC, ; California Medical Assn. v. FEC, , 196-197 (1981); Buckley, supra, at 20-22.In light of the historical role of contributions in the corruption of the electoral process, the need for a broad prophylactic rule was thus sufficient in National Right to Work Committee to support a limitation on the ability of a committee to raise money for direct contributions to candidates. The limitation on solicitation in this case, however, means that nonmember corporations can hardly raise any funds at all to engage in political speech warranting the highest constitutional protection. Regulation that would produce such a result demands far more precision than 441b provides. Therefore, the desirability of a broad prophylactic rule cannot justify treating alike business corporations and appellee in the regulation of independent spending.The Commission next argues in support of 441b that it prevents an organization from using an individual's money for purposes that the individual may not support. We acknowledged the legitimacy of this concern as to the dissenting stockholder and union member in National Right to Work Committee, 459 U.S., at 208, and in Pipefitters, 407 U.S., at 414-415. But such persons, as noted, contribute investment funds or union dues for economic gain, and do not necessarily authorize the use of their money for political ends. Furthermore, because such individuals depend on the organization for income or for a job, it is not enough to tell them that any unhappiness with the use of their money can be redressed simply by leaving the corporation or the union. It was thus wholly reasonable for Congress to require the establishment of a separate political fund to which persons can make voluntary contributions.This rationale for regulation is not compelling with respect to independent expenditures by appellee. Individuals who contribute to appellee are fully aware of its political purposes, and in fact contribute precisely because they support those purposes. It is true that a contributor may not be aware of the exact use to which his or her money ultimately may be put, or the specific candidate that it may be used to support. However, individuals contribute to a political organization in part because they regard such a contribution as a more effective means of advocacy than spending the money under their own personal direction. Any contribution therefore necessarily involves at least some degree of delegation of authority to use such funds in a manner that best serves the shared political purposes of the organization and contributor. In addition, an individual desiring more direct control over the use of his or her money can simply earmark the contribution for a specific purpose, an option whose availability does not depend on the applicability of 441b. Cf. 434(c)(2)(C) (entities other than political committees must disclose names of those persons making earmarked contributions over $200). Finally, a contributor dissatisfied with how funds are used can simply stop contributing.The Commission maintains that, even if contributors may be aware that a contribution to appellee will be used for political purposes in general, they may not wish such money to be used for electoral campaigns in particular. That is, persons may desire that an organization use their contributions to further a certain cause, but may not want the organization to use their money to urge support for or opposition to political candidates solely on the basis of that cause. This concern can be met, however, by means far more narrowly tailored and less burdensome than 441b's restriction on direct expenditures: simply requiring that contributors be informed that their money may be used for such a purpose.It is true that National Right to Work Committee, supra, held that the goal of protecting minority interests justified solicitation restrictions on a nonprofit corporation operating a political committee established to make direct contributions to candidates. As we have noted above, however, the Government enjoys greater latitude in limiting contributions than in regulating independent expenditures. Supra, at 259-260. Given a contributor's awareness of the political activity of appellee, as well as the readily available remedy of refusing further donations, the interest protecting contributors is simply insufficient to support 441b's restriction on the independent spending of MCFL.Finally, the FEC maintains that the inapplicability of 441b to MCFL would open the door to massive undisclosed political spending by similar entities, and to their use as conduits for undisclosed spending by business corporations and unions. We see no such danger. Even if 441b is inapplicable, an independent expenditure of as little as $250 by MCFL will trigger the disclosure provisions of 434(c). As a result, MCFL will be required to identify all contributors who annually provide in the aggregate $200 in funds intended to influence elections, will have to specify all recipients of independent spending amounting to more than $200, and will be bound to identify all persons making contributions over $200 who request that the money be used for independent expenditures. These reporting obligations provide precisely the information necessary to monitor MCFL's independent spending activity and its receipt of contributions. The state interest in disclosure therefore can be met in a manner less restrictive than imposing the full panoply of regulations that accompany status as a political committee under the Act.Furthermore, should MCFL's independent spending become so extensive that the organization's major purpose may be regarded as campaign activity, the corporation would be classified as a political committee. See Buckley, 424 U.S., at 79. As such, it would automatically be subject to the obligations and restrictions applicable to those groups whose primary objective is to influence political campaigns. In sum, there is no need for the sake of disclosure to treat MCFL any differently than other organizations that only occasionally engage in independent spending on behalf of candidates. Thus, the concerns underlying the regulation of corporate political activity are simply absent with regard to MCFL. The dissent is surely correct in maintaining that we should not second-guess a decision to sweep within a broad prohibition activities that differ in degree, but not kind. Post, at 268-269. It is not the case, however, that MCFL merely poses less of a threat of the danger that has prompted regulation. Rather, it does not pose such a threat at all. Voluntary political associations do not suddenly present the specter of corruption merely by assuming the corporate form. Given this fact, the rationale for restricting core political speech in this case is simply the desire for a bright-line rule. This hardly constitutes the compelling state interest necessary to justify any infringement on First Amendment freedom. While the burden on MCFL's speech is not insurmountable, we cannot permit it to be imposed without a constitutionally adequate justification. In so holding, we do not assume a legislative role, but fulfill our judicial duty - to enforce the demands of the Constitution.COur conclusion is that 441b's restriction of independent spending is unconstitutional as applied to MCFL, for it infringes protected speech without a compelling justification for such infringement. We acknowledge the legitimacy of Congress' concern that organizations that amass great wealth in the economic marketplace not gain unfair advantage in the political marketplace.Regardless of whether that concern is adequate to support application of 441b to commercial enterprises, a question not before us, that justification does not extend uniformly to all corporations. Some corporations have features more akin to voluntary political associations than business firms, and therefore should not have to bear burdens on independent spending solely because of their incorporated status.In particular, MCFL has three features essential to our holding that it may not constitutionally be bound by 441b's restriction on independent spending. First, it was formed for the express purpose of promoting political ideas, and cannot engage in business activities. If political fundraising events are expressly denominated as requests for contributions that will be used for political purposes, including direct expenditures, these events cannot be considered business activities. This ensures that political resources reflect political support. Second, it has no shareholders or other persons affiliated so as to have a claim on its assets or earnings. This ensures that persons connected with the organization will have no economic disincentive for disassociating with it if they disagree with its political activity.13 Third, MCFL was not established by a business corporation or a labor union, and it is its policy not to accept contributions from such entities. This prevents such corporations from serving as conduits for the type of direct spending that creates a threat to the political marketplace.It may be that the class of organizations affected by our holding today will be small. That prospect, however, does not diminish the significance of the rights at stake. Freedom of speech plays a fundamental role in a democracy; as this Court has said, freedom of thought and speech "is the matrix, the indispensable condition, of nearly every other form of freedom." Palko v. Connecticut, . Our pursuit of other governmental ends, however, may tempt us to accept in small increments a loss that would be unthinkable if inflicted all at once. For this reason, we must be as vigilant against the modest diminution of speech as we are against its sweeping restriction. Where at all possible, government must curtail speech only to the degree necessary to meet the particular problem at hand, and must avoid infringing on speech that does not pose the danger that has prompted regulation. In enacting the provision at issue in this case, Congress has chosen too blunt an instrument for such a delicate task.The judgment of the Court of Appeals is Affirmed.

Appellant, a male, was convicted of a crime by a petit jury selected from a venire on which there were no women and which was selected pursuant to a system resulting from Louisiana constitutional and statutory requirements that a woman should not be selected for jury service unless she had previously filed a written declaration of her desire to be subject to jury service. The State Supreme Court affirmed, having rejected appellant's challenge to the constitutionality of the state jury-selection scheme. Held: 1. Appellant had standing to make his constitutional claim, there being no rule that such a claim may be asserted only by defendants who are members of the group excluded from jury service. Peters v. Kiff, . P. 526. 2. The requirement that a petit jury be selected from a representative cross section of the community, which is fundamental to the jury trial guaranteed by the Sixth Amendment, is violated by the systematic exclusion of women from jury panels, which in the judicial district here involved amounted to 53% of the citizens eligible for jury service. Pp. 526-533. 3. No adequate justification was shown here for the challenged jury-selection provisions and the right to a jury selected from a fair cross section of the community cannot be overcome on merely rational grounds. Pp. 533-535. 4. It can no longer be held that women as a class may be excluded from jury service or given automatic exemptions based solely on sex if the consequence is that criminal jury venires are almost all male, and contrary implications of prior cases, e. g., Hoyt v. Florida, , cannot be followed. Pp. 535-537. 282 So.2d 491, reversed and remanded.WHITE, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, STEWART, MARSHALL, BLACKMUN, and POWELL, JJ., joined. BURGER, C. J., concurred in the result. REHNQUIST, J., filed a dissenting opinion, post, p. 538.William McM. King argued the cause and filed a brief for appellant. Kendall L. Vick, Assistant Attorney General of Louisiana, argued the cause for appellee. On the brief were William J. Guste, Jr., Attorney General, Walter Smith, and Woodrow W. Erwin.MR. JUSTICE WHITE delivered the opinion of the Court.When this case was tried, Art. VII, 41,1 of the Louisiana Constitution, and Art. 402 of the Louisiana Code of Criminal Procedure2 provided that a woman should not be selected for jury service unless she had previously filed a written declaration of her desire to be subject to jury service. The constitutionality of these provisions is the issue in this case. IAppellant, Billy J. Taylor, was indicted by the grand jury of St. Tammany Parish, in the Twenty-second Judicial District of Louisiana, for aggravated kidnaping. On April 12, 1972, appellant moved the trial court to quash the petit jury venire drawn for the special criminal term beginning with his trial the following day. Appellant alleged that women were systematically excluded from the venire and that he would therefore be deprived of what he claimed to be his federal constitutional right to "a fair trial by jury of a representative segment of the community ... ."The Twenty-second Judicial District comprises the parishes of St. Tammany and Washington. The appellee has stipulated that 53% of the persons eligible for jury service in these parishes were female, and that no more than 10% of the persons on the jury wheel in St. Tammany Parish were women.3 During the period from December 8, 1971, to November 3, 1972, 12 females were among the 1,800 persons drawn to fill petit jury venires in St. Tammany Parish. It was also stipulated that the discrepancy between females eligible for jury service and those actually included in the venire was the result of the operation of La. Const., Art. VII, 41, and La. Code Crim. Proc., Art. 402.4 In the present case, a venire totaling 175 persons was drawn for jury service beginning April 13, 1972. There were no females on the venire.Appellant's motion to quash the venire was denied that same day. After being tried, convicted, and sentenced to death, appellant sought review in the Supreme Court of Louisiana, where he renewed his claim that the petit jury venire should have been quashed. The Supreme Court of Louisiana, recognizing that this claim drew into question the constitutionality of the provisions of the Louisiana Constitution and Code of Criminal Procedure dealing with the service of women on juries, squarely held, one justice dissenting, that these provisions were valid and not unconstitutional under federal law. 282 So.2d 491, 497 (1973).5 Appellant appealed from that decision to this Court. We noted probable jurisdiction, , to consider whether the Louisiana jury-selection system deprived appellant of his Sixth and Fourteenth Amendment right to an impartial jury trial. We hold that it did and that these Amendments were violated in this case by the operation of La. Const., Art. VII, 41, and La. Code Crim. Proc., Art. 402. In consequence, appellant's conviction must be reversed.IIThe Louisiana jury-selection system does not disqualify women from jury service, but in operation its conceded systematic impact is that only a very few women, grossly disproportionate to the number of eligible women in the community, are called for jury service. In this case, no women were on the venire from which the petit jury was drawn. The issue we have, therefore, is whether a jury-selection system which operates to exclude from jury service an identifiable class of citizens constituting 53% of eligible jurors in the community comports with the Sixth and Fourteenth Amendments.The State first insists that Taylor, a male, has no standing to object to the exclusion of women from his jury. But Taylor's claim is that he was constitutionally entitled to a jury drawn from a venire constituting a fair cross section of the community and that the jury that tried him was not such a jury by reason of the exclusion of women. Taylor was not a member of the excluded class; but there is no rule that claims such as Taylor presents may be made only by those defendants who are members of the group excluded from jury service. In Peters v. Kiff, , the defendant, a white man, challenged his conviction on the ground that Negroes had been systematically excluded from jury service. Six Members of the Court agreed that petitioner was entitled to present the issue and concluded that he had been deprived of his federal rights. Taylor, in the case before us, was similarly entitled to tender and have adjudicated the claim that the exclusion of women from jury service deprived him of the kind of factfinder to which he was constitutionally entitled.IIIThe background against which this case must be decided includes our holding in Duncan v. Louisiana, , that the Sixth Amendment's provision for jury trial is made binding on the States by virtue of the Fourteenth Amendment. Our inquiry is whether the presence of a fair cross section of the community on venires, panels, or lists from which petit juries are drawn is essential to the fulfillment of the Sixth Amendment's guarantee of an impartial jury trial in criminal prosecutions.The Court's prior cases are instructive. Both in the course of exercising its supervisory powers over trials in federal courts and in the constitutional context, the Court has unambiguously declared that the American concept of the jury trial contemplates a jury drawn from a fair cross section of the community. A unanimous Court stated in Smith v. Texas, , that "[i]t is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community." To exclude racial groups from jury service was said to be "at war with our basic concepts of a democratic society and a representative government." A state jury system that resulted in systematic exclusion of Negroes as jurors was therefore held to violate the Equal Protection Clause of the Fourteenth Amendment. Glasser v. United States, , in the context of a federal criminal case and the Sixth Amendment's jury trial requirement, stated that "[o]ur notions of what a proper jury is have developed in harmony with our basic concepts of a democratic society and a representative government," and repeated the Court's understanding that the jury "`be a body truly representative of the community' ... and not the organ of any special group or class."A federal conviction by a jury from which women had been excluded, although eligible for service under state law, was reviewed in Ballard v. United States, . Noting the federal statutory "design to make the jury `a cross-section of the community'" and the fact that women had been excluded, the Court exercised its supervisory powers over the federal courts and reversed the conviction. In Brown v. Allen, , the Court declared that "[o]ur duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty."Some years later in Carter v. Jury Comm'n, , the Court observed that the exclusion of Negroes from jury service because of their race "contravenes the very idea of a jury - `a body truly representative of the community'... ." (Quoting from Smith v. Texas, supra.) At about the same time it was contended that the use of six-man juries in noncapital criminal cases violated the Sixth Amendment for failure to provide juries drawn from a cross section of the community, Williams v. Florida, . In the course of rejecting that challenge, we said that the number of persons on the jury should "be large enough to promote group deliberation, free from outside attempts at intimidation, and to provide a fair possibility for obtaining a representative cross-section of the community." Id., at 100. In like vein, in Apodaca v. Oregon, (plurality opinion), it was said that "a jury will come to such a [commonsense] judgment as long as it consists of a group of laymen representative of a cross section of the community who have the duty and the opportunity to deliberate ... on the question of a defendant's guilt." Similarly, three Justices in Peters v. Kiff, 407 U.S., at 500, observed that the Sixth Amendment comprehended a fair possibility for obtaining a jury constituting a representative cross section of the community.The unmistakable import of this Court's opinions, at least since 1940, Smith v. Texas, supra, and not repudiated by intervening decisions, is that the selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial. Recent federal legislation governing jury selection within the federal court system has a similar thrust. Shortly prior to this Court's decision in Duncan v. Louisiana, supra, the Federal Jury Selection and Service Act of 19686 was enacted. In that Act, Congress stated "the policy of the United States that all litigants in Federal courts entitled to trial by jury shall have the right to grand and petit juries selected at random from a fair cross section of the community in the district or division wherein the court convenes." 28 U.S.C. 1861. In that Act, Congress also established the machinery by which the stated policy was to be implemented. 28 U.S.C. 1862-1866. In passing this legislation, the Committee Reports of both the House7 and the Senate8 recognized that the jury plays a political function in the administration of the law and that the requirement of a jury's being chosen from a fair cross section of the community is fundamental to the American system of justice. Debate on the floors of the House and Senate on the Act invoked the Sixth Amendment,9 the Constitution generally,10 and prior decisions of this Court11 in support of the Act.We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a jury is to guard against the exercise of arbitrary power - to make available the commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the professional or perhaps over-conditioned or biased response of a judge. Duncan v. Louisiana, 391 U.S., at 155-156. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool. Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system. Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of jury trial. "Trial by jury presupposes a jury drawn from a pool broadly representative of the community as well as impartial in a specific case... . [T]he broad representative character of the jury should be maintained, partly as assurance of a diffused impartiality and partly because sharing in the administration of justice is a phase of civic responsibility." Thiel v. Southern Pacific Co., (Frankfurter, J., dissenting).IVWe are also persuaded that the fair-cross-section requirement is violated by the systematic exclusion of women, who in the judicial district involved here amounted to 53% of the citizens eligible for jury service. This conclusion necessarily entails the judgment that women are sufficiently numerous and distinct from men and that if they are systematically eliminated from jury panels, the Sixth Amendment's fair-cross-section requirement cannot be satisfied. This very matter was debated in Ballard v. United States, supra. Positing the fair-cross-section rule - there said to be a statutory one - the Court concluded that the systematic exclusion of women was unacceptable. The dissenting view that an all-male panel drawn from various groups in the community would be as truly representative as if women were included, was firmly rejected: "The thought is that the factors which tend to influence the action of women are the same as those which influence the action of men - personality, background, economic status - and not sex. Yet it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. Men likewise do not act as a class. But, if the shoe were on the other foot, who would claim that a jury was truly representative of the community if all men were intentionally and systematically excluded from the panel? The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the court-room from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded. The exclusion of one may indeed make the jury less representative of the community than would be true if an economic or racial group were excluded." 329 U.S., at 193-194.12 In this respect, we agree with the Court in Ballard: If the fair-cross-section rule is to govern the selection of juries, as we have concluded it must, women cannot be systematically excluded from jury panels from which petit juries are drawn. This conclusion is consistent with the current judgment of the country, now evidenced by legislative or constitutional provisions in every State and at the federal level qualifying women for jury service.13 VThere remains the argument that women as a class serve a distinctive role in society and that jury service would so substantially interfere with that function that the State has ample justification for excluding women from service unless they volunteer, even though the result is that almost all jurors are men. It is true that Hoyt v. Florida, , held that such a system14 did not deny due process of law or equal protection of the laws because there was a sufficiently rational basis for such an exemption.15 But Hoyt did not involve a defendant's Sixth Amendment right to a jury drawn from a fair cross section of the community and the prospect of depriving him of that right if women as a class are systematically excluded. The right to a proper jury cannot be overcome on merely rational grounds.16 There must be weightier reasons if a distinctive class representing 53% of the eligible jurors is for all practical purposes to be excluded from jury service. No such basis has been tendered here.The States are free to grant exemptions from jury service to individuals in case of special hardship or incapacity and to those engaged in particular occupations the uninterrupted performance of which is critical to the community's welfare. Rawlins v. Georgia, . It would not appear that such exemptions would pose substantial threats that the remaining pool of jurors would not be representative of the community. A system excluding all women, however, is a wholly different matter. It is untenable to suggest these days that it would be a special hardship for each and every woman to perform jury service or that society cannot spare any women from their present duties.17 This may be the case with many, and it may be burdensome to sort out those who should be exempted from those who should serve. But that task is performed in the case of men, and the administrative convenience in dealing with women as a class is insufficient justification for diluting the quality of community judgment represented by the jury in criminal trials.VIAlthough this judgment may appear a foregone conclusion from the pattern of some of the Court's cases over the past 30 years, as well as from legislative developments at both federal and state levels, it is nevertheless true that until today no case had squarely held that the exclusion of women from jury venires deprives a criminal defendant of his Sixth Amendment right to trial by an impartial jury drawn from a fair cross section of the community. It is apparent that the first Congress did not perceive the Sixth Amendment as requiring women on criminal jury panels; for the direction of the First Judiciary Act of 1789 was that federal jurors were to have the qualifications required by the States in which the federal court was sitting18 and at the time women were disqualified under state law in every State. Necessarily, then, federal juries in criminal cases were all male, and it was not until the Civil Rights Act of 1957, 71 Stat. 638, 28 U.S.C. 1861 (1964 ed.), that Congress itself provided that all citizens, with limited exceptions, were competent to sit on federal juries. Until that time, federal courts were required by statute to exclude women from jury duty in those States where women were disqualified. Utah was the first State to qualify women for juries; it did so in 1898, n. 13, supra. Moreover, Hoyt v. Florida was decided and has stood for the proposition that, even if women as a group could not be constitutionally disqualified from jury service, there was ample reason to treat all women differently from men for the purpose of jury service and to exclude them unless they volunteered.19 Accepting as we do, however, the view that the Sixth Amendment affords the defendant in a criminal trial the opportunity to have the jury drawn from venires representative of the community, we think it is no longer tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex if the consequence is that criminal jury venires are almost totally male. To this extent we cannot follow the contrary implications of the prior cases, including Hoyt v. Florida. If it was ever the case that women were unqualified to sit on juries or were so situated that none of them should be required to perform jury service, that time has long since passed. If at one time it could be held that Sixth Amendment juries must be drawn from a fair cross section of the community but that this requirement permitted the almost total exclusion of women, this is not the case today. Communities differ at different times and places. What is a fair cross section at one time or place is not necessarily a fair cross section at another time or a different place. Nothing persuasive has been presented to us in this case suggesting that all-male venires in the parishes involved here are fairly representative of the local population otherwise eligible for jury service.VIIOur holding does not augur or authorize the fashioning of detailed jury-selection codes by federal courts. The fair-cross-section principle must have much leeway in application. The States remain free to prescribe relevant qualifications for their jurors and to provide reasonable exemptions so long as it may be fairly said that the jury lists or panels are representative of the community. Carter v. Jury Comm'n, supra, as did Brown v. Allen, supra; Rawlins v. Georgia, supra, and other cases, recognized broad discretion in the States in this respect. We do not depart from the principles enunciated in Carter. But, as we have said, Louisiana's special exemption for women operates to exclude them from petit juries, which in our view is contrary to the command of the Sixth and Fourteenth Amendments.It should also be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population. Defendants are not entitled to a jury of any particular composition, Fay v. New York, ; Apodaca v. Oregon, 406 U.S., at 413 (plurality opinion); but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof.The judgment of the Louisiana Supreme Court is reversed and the case remanded to that court for further proceedings not inconsistent with this opinion. So ordered.MR. CHIEF JUSTICE BURGER concurs in the result.

1. The Trading with the Enemy Act authorizes the vesting of obligations evidenced by negotiable debentures payable to bearer, the obligors of which are within the United States, even though the debentures themselves are not in the possession of the Custodian and are outside the United States. Pp. 331-334. (a) Such obligations are "within the United States" within the meaning of the Executive Order authorizing, pursuant to the Act, the vesting of property "within the United States." P. 332, n. 6; pp. 333-334.2. It is within the constitutional power of Congress to authorize the Custodian to seize an interest represented by a bond or debenture without seizing the instrument itself, where the obligor of the bond or debenture is within the United States. P. 334.3. American obligors who are compelled, under the Trading with the Enemy Act, to make payment to the Custodian on negotiable debentures, payable to bearer, located outside the United States will be entitled under the Fifth Amendment to "just compensation" to the extent of any double liability to which they may be subjected in the event a foreign court holds them liable to a holder in due course; and such cause of action will accrue when, as, and if a foreign court compels them to make payment to a holder in due course. Pp. 334-336. 189 F.2d 744, affirmed. In an action by the Attorney General, as successor to the Alien Property Custodian, to enforce payment of certain negotiable debentures payable to bearer previously vested under the Trading with the Enemy Act, the District Court entered judgment for the defendants. 93 F. Supp. 408. The Court of Appeals reversed. 189 F.2d 744. This Court granted certiorari. . Affirmed, p. 336. Timothy N. Pfeiffer argued the cause for petitioners and was on the brief for the Chase National Bank. With him also on the brief were Theodore N. Johnsen, for the Cities Service Company, and Rebecca M. Cutler, of counsel.George B. Searls argued the cause for respondent. With him on the brief were Solicitor General Perlman, Assistant Attorney General Baynton, James D. Hill and Irwin A. Seibel.MR. JUSTICE CLARK delivered the opinion of the Court.In this suit the Attorney General of the United States as successor to the Alien Property Custodian1 seeks payment by petitioners of two 5% gold debentures of the face value of $1,000 each and payable to bearer. Petitioner Cities Service Company is obligor on the debentures and petitioner Chase National Bank of New York is the indenture trustee. The obligations represented by these debentures had previously been vested, under provisions of the Trading with the Enemy Act,2 upon a finding that the obligations were owned by a resident and national of Germany.3 Neither of the debentures is or ever has been in the possession of respondent. One of the debentures, although not maturing until 1969, was presented for redemption at Chase's offices in New York City on January 5, 1950, subsequent to the date of the vesting order. A legend was then typed on the debenture reciting the issuance of the vesting order and the claims of respondent thereunder. This debenture is at present in the possession of a brokerage house in New York City.4 The other debenture matured in 1950 but has never been presented for payment. Its whereabouts are unknown but it was last reported to be in Berlin in the hands of the Russians.5 The District Court granted summary judgment for petitioners on the ground that the Attorney General, in issuing the vesting order in question, had exceeded his authority to vest property "within the United States."6 93 F. Supp. 408. The Court felt that the obligations represented by the debentures were inseparable from the certificates themselves, which, insofar as is known, were outside this country at the time of vesting. The Court of Appeals reversed and directed summary judgment for respondent, holding that the Act authorized the seizure and enforcement of obligations evidenced by debentures outside the country so long as the obligor is within the United States. 189 F.2d 744. In reaching this result, the Court of Appeals indicated that petitioners would have a "claim against the Treasury for recoupment" in the event of a subsequent recovery against them in a foreign court by a bona fide holder of the debentures. Otherwise, the Court felt, the vesting order would take petitioners' property in violation of the Fifth Amendment. Id., at 747-749. We granted certiorari, .We believe that the Trading with the Enemy Act grants the authority necessary to vest obligations evidenced by domestic negotiable bearer debentures even though the debentures themselves are outside the United States. By 7 (c) of the Act, enacted during World War I, the President is given the authority to seize all enemy property, "including ... choses in action, and rights and claims of every character and description owing or belonging to ... an enemy ... ." At the beginning of World War II, Congress made an even broader grant of authority to the Executive through an amendment to 5 (b), providing that "any property or interest of any foreign country or national thereof shall vest, when, as, and upon the terms, directed by the President ... ." See Markham v. Cabell, ; Silesian-American Corp. v. Clark, ; Clark v. Uebersee Finanz-Korp., . That the obligations represented by negotiable bearer debentures come within these broad terms is beyond question.Petitioners urge, however, that the debentures themselves constitute the debt, and since the debentures were located outside of the United States at the time of vesting, the debts did not have a situs within the United States and therefore were not proper subjects of seizure. To apply this fiction here would not only provide a sanctuary for enemy investments and defeat the recovery of American securities looted by conquering forces; it would also restrict the exercise of the war powers of the United States. Congress did not so intend. The Custodian's authority to reach a debenture or bonded indebtedness without seizure of the instrument itself is explicitly recognized by 9 (n) of the Act, which provides that "[i]n the case of property consisting ... of bonded or other indebtedness ..., evidenced ... by bonds or by other certificates of interest ... or indebtedness ..., where the right, title, and interest in the property (but not the actual ... bond or other certificate of interest or indebtedness) was conveyed, transferred, assigned, delivered, or paid to the Alien Property Custodian, or seized by him ...," then the President may, in proper cases, order return of 80% of the property.7 Moreover, in giving the Custodian this power to seize an interest represented by a bond or debenture without seizure of the actual instrument, Congress transgressed no constitutional limitations on its jurisdiction. As the Court of Appeals pointed out, the obligor, Cities Service Company, is within the United States and the obligation of which the debenture is evidence can be effectively dealt with through the exercise of jurisdiction over that petitioner. See Standard Oil Co. v. New Jersey, .A more serious question is whether application of the seizure provisions of the Act to petitioners will take their property in violation of the Fifth Amendment, unless they have a remedy against the United States in the event a foreign court holds them liable to a holder in due course of the debentures. While petitioners concede that the Act discharges them from liability in any court in the United States,8 they contend that they have extensive properties over the world which subject them to foreign suits from which the Act affords no certain protection. Petitioners readily admit that the court of the country in which suit is brought may apply the laws of the United States and recognize their prior payment to the Attorney General as a complete defense; and that the holder, if qualified, might file a claim under the Act. Nevertheless, they insist, there remains at least the possibility that they will be exposed to liability in a foreign court. While their defense to such litigation seems adequate and final payment by them improbable, we agree that petitioners might suffer judgment the payment of which would effect a double recovery against them. In that event, petitioners will have the right to recoup from the United States, for a "taking" of their property within the meaning of the Fifth Amendment, "just compensation" to the extent of their double liability.9 Such cause of action will accrue when, as, and if a foreign court forces petitioners to pay a holder in due course of the debentures. We agree with the Court of Appeals that only with this assurance against double liability can it fairly be said that the present seizure is not itself an unconstitutional taking of petitioners' property. Affirmed.

Respondents, 17 black and two white residents of Cairo, Illinois, brought a civil rights class action against the then State's Attorney of Alexander County, Illinois, individually and in his official capacity, charging him with certain purposeful racial discrimination practices, under color of state law, in violation of the Constitution and 42 U.S.C. 1981-1983, 1985. The District Court dismissed the complaint for want of jurisdiction to grant injunctive relief. The Court of Appeals reversed, holding that a prosecutor's quasi-judicial immunity from injunctive proscription was not absolute, and that since respondents' remedies at law were inadequate, an injunctive remedy might be available if respondents could prove their claims. Subsequent to the Court of Appeals' decision, petitioner was elected as successor State's Attorney, and in the petition for certiorari filed with this Court was substituted as a party. Held: Where, on the record, respondents have never charged petitioner with anything and do not presently seek to enjoin him from doing anything, so that there may no longer be a controversy between respondents and any Alexander County State's Attorney concerning injunctive relief to be applied in futuro, the case is vacated and remanded to the Court of Appeals for a determination, in the first instance, of whether the former dispute is now moot and whether respondents will want to, and should be permitted to, amend their complaint to include claims for relief against petitioner. Pp. 520-523. 468 F.2d 389, vacated and remanded.WHITE, J., delivered the opinion for a unanimous Court.James B. Zagel argued the cause for petitioner. With him on the brief was Patrick F. Healy.Alan M. Wiseman argued the cause for respondents. With him on the brief were James B. O'Shaughnessy and Michael P. Seng.* [Footnote *] Briefs of amici curiae urging reversal were filed by Evelle J. Younger, Attorney General, Edward A. Hinz, Jr., Chief Assistant Attorney General, Doris H. Maier and Edward P. O'Brien, Assistant Attorneys General, and Robert R. Granucci, Deputy Attorney General, for the State of California; and by Joseph P. Busch for the District Attorney of Los Angeles County.MR. JUSTICE WHITE delivered the opinion of the Court.This is a companion case to O'Shea v. Littleton, ante, p. 488, involving claims which the respondents, 17 black and two white residents of Cairo, Illinois, individually and as representatives of the class they purport to represent, set forth in that portion of their amended civil rights complaint which alleged wrongful conduct on the part of Peyton Berbling, individually and in his capacity as State's Attorney for Alexander County, Illinois, the county in which the city of Cairo is located. As discussed in O'Shea, the complaint alleged a broad range of racially discriminatory patterns and practices in the administration of the criminal justice system in Alexander County by the Police Commissioner of Cairo, Magistrate Michael O'Shea and Associate Judge Dorothy Spomer of the Alexander County Circuit Court, State's Attorney Berbling, and Earl Shepherd, an investigator for Berbling. Allegedly, a decade of active, but lawful, efforts to achieve racial equality for the black residents of Cairo had resulted in continuing intentional conduct on the part of those named as defendants in the complaint to deprive the plaintiff-respondents of the evenhanded protection of the criminal laws, in violation of various amendments to the Constitution and 42 U.S.C. 1981, 1982, 1983, and 1985. In particular, the complaint charged State's Attorney Berbling with purposeful racial discrimination, under color of state law, by neglecting to provide for respondents' safety though knowing of the possibility of racial disorders, by refusing to prosecute persons who threaten respondents' safety and property, and by refusing to permit respondents to give evidence against white persons who threaten them. It was alleged, with particular incidents recounted as to some charges, that "Berbling has denied and continues to deny" the constitutional rights of respondents and members of their class by following the practices of (a) refusing to initiate criminal proceedings and to hear criminal charges against white persons upon complaint by members of respondents' class,1 (b) submitting misdemeanor complaints which have been filed by black persons against whites to a grand jury, rather than proceeding by information or complaint, and then either interrogating witnesses and complainants before the grand jury with purposeful intent to racially discriminate,2 or failing to interrogate them at all,3 (c) inadequately prosecuting the few criminal proceedings instituted against whites at respondents' behest in order to lose the cases or settle them on terms more favorable than those brought against blacks, (d) recommending substantially greater bonds and sentences in cases involving respondents and members of their class than for cases involving whites, (e) charging respondents and members of their class with significantly more serious charges for conduct which would result in no charge or a minor charge against a white person, and (f) depriving respondents of their right to give evidence concerning the security of members of their class.4 Each of these practices was alleged to be willful, malicious, and carried out with intent to deprive respondents and members of their class of the benefits of the county criminal justice system and to deter them from peacefully boycotting or otherwise engaging in protected First Amendment activity. Since there was asserted to be no adequate remedy at law, respondents requested that Berbling be enjoined from continuing these practices, that he be required to "submit a monthly report to [the District Court] concerning the nature, status and disposition of any complaint brought to him by plaintiffs or members of their class, or by white persons against plaintiffs or members of their class," and that the District Court maintain continuing jurisdiction in this action.5 The District Court dismissed that portion of the complaint requesting injunctive relief against Berbling, as well as against Investigator Shepherd. Magistrate O'Shea, and Judge Dorothy Spomer, for want of jurisdiction to grant any such remedy, which was perceived as directed against discretionary acts on the part of these elected state officials. The Court of Appeals reversed, holding that whatever quasi-judicial immunity from injunctive proscription it had previously recognized was appropriate for a prosecutor, was not absolute, and since respondents' alternative remedies at law were thought to be inadequate, an injunctive remedy might be available if respondents could prove their claims of racial discrimination at trial.6 The Court of Appeals rendered its decision on October 6, 1972. At the subsequent election in November of that year, petitioner W. C. Spomer7 was chosen by the voters to succeed Berbling as State's Attorney for Alexander County, and Spomer took office on December 4. In the petition for certiorari filed with this Court on January 3, 1973, seeking review of the Court of Appeals' approval of the possibility of some form of injunctive relief addressed to the State's Attorney in the course of his prosecutorial role, petitioner Spomer relied upon Supreme Court Rule 48 (3), which provides that "[w]hen a public officer is a party to a proceeding here in his official capacity and during its pendency dies, resigns, or otherwise ceases to hold office, the action does not abate and his successor is automatically substituted as a party." Respondents did not oppose the substitution,8 and we granted certiorari and set the case for argument together with O'Shea v. Littleton, ante, p. 488. .It has become apparent, however, that there is nothing in the record upon which we may firmly base a conclusion that a concrete controversy between W. C. Spomer and the respondents is presented to this Court for resolution. No allegations in the complaint cited any conduct of W. C. Spomer as the basis for equitable or any other relief. Indeed, Spomer is not named as a defendant in the complaint at all, and, of course, he never appeared before either the District Court or the Court of Appeals. The injunctive relief requested against former State's Attorney Berbling, moreover, is based upon an alleged practice of willful and malicious racial discrimination evidenced by enumerated instances in which Berbling favored white persons and disfavored Negroes. The wrongful conduct charged in the complaint is personal to Berbling, despite the fact that he was also sued in his then capacity as State's Attorney.9 No charge is made in the complaint that the policy of the office of State's Attorney is to follow the intentional practices alleged, apart from the allegation that Berbling, as the incumbent at the time, was then continuing the practices he had previously followed. Cf. Allen v. Regents of the University System of Georgia, . Nor have respondents ever attempted to substitute Spomer for Berbling after the Court of Appeals decision, so far as the record shows, or made any record allegations that Spomer intends to continue the asserted practices of Berbling of which they complain. The plain fact is that, on the record before us, respondents have never charged Spomer with anything and do not presently seek to enjoin him from doing anything.10 Under these circumstances, recognizing that there may no longer be a controversy between respondents and any Alexander County State's Attorney concerning injunctive relief to be applied in futuro, see Two Guys v. McGinley, , we remand to the Court of Appeals for a determination, in the first instance, of whether the former dispute regarding the availability of injunctive relief against the State's Attorney is now moot and whether respondents will want to, and should be permitted to, amend their complaint to include claims for relief against the petitioner. Cf. Land v. Dollar, .The judgment of the Court of Appeals is vacated and the case is remanded for further consideration and proceedings consistent with this opinion. It is so ordered.

After respondent tested positive for cocaine and admitted that his behavior violated petitioner's workplace conduct rules, he was forced to resign. More than two years later, he applied to be rehired, stating on his application that petitioner had previously employed him, and attaching letters both from his pastor about his active church participation and from an Alcoholics Anonymous counselor about his regular attendance at meetings and his recovery. The employee who reviewed and rejected respondent's application testified that petitioner has a policy against rehiring employees who are terminated for workplace misconduct and that she did not know that respondent was a former drug addict when she rejected his application. Respondent filed a charge with the Equal Employment Opportunity Commission (EEOC), claiming that he had been discriminated against in violation of the Americans with Disabilities Act of 1990 (ADA). The EEOC issued a right-to-sue letter, and respondent filed this ADA action, arguing that petitioner rejected his application because of his record of drug addition and/or because he was regarded as being a drug addict. In response to petitioner's summary judgment motion, respondent for the first time argued in the alternative that if petitioner applied a neutral no-rehire policy in his case, it still violated the ADA because of that policy's disparate impact. The District Court granted petitioner's motion for summary judgment on the disparate-treatment claim and found that the disparate-impact claim had not been timely pleaded or raised. The Ninth Circuit agreed as to the disparate-impact claim, but held as to the disparate-treatment claim that, under the burden-shifting approach of McDonnell Douglas Corp. v. Green, 411 U. S. 792, respondent had proffered a prima facie case of discrimination, and petitioner had not met its burden to provide a legitimate, nondiscriminatory reason for its employment action because its no-rehire policy, though lawful on its face, was unlawful as applied to employees who were lawfully forced to resign for illegal drug use but have since been rehabilitated.Held: The Ninth Circuit improperly applied a disparate-impact analysis to respondent's disparate-treatment claim. This Court has consistently distinguished between disparate-treatment and disparate-impact claims. The former arise when an employer treats some people less favorably than others because of a protected characteristic. Liability depends on whether the protected trait actually motivated the employer's action. The latter involve facially neutral employment practices that fall more harshly on one group than another and cannot be justified by business necessity. Such practices may be deemed illegally discriminatory without evidence of the employer's subjective discrimination. Both claims are cognizable under the ADA, but courts must be careful to distinguish between the theories. Here, respondent was limited to the disparate-treatment theory that petitioner refused to rehire him because it regarded him as disabled and/or because of his record of disability. Petitioner's proffer of its neutral no-rehire policy plainly satisfied its obligation under McDonnell Douglas to provide a legitimate, nondiscriminatory reason for refusing to rehire respondent. Thus, the only remaining question before the Ninth Circuit was whether there was sufficient evidence from which a jury could conclude that petitioner did make its employment decision based on respondent's status as disabled despite its proffered explanation. Instead, that court concluded that, as a matter of law, the policy was not a legitimate, nondiscriminatory reason sufficient to defeat a prima facie case of discrimination. In doing so, the Ninth Circuit improperly focused on factors that pertain only to disparate-impact claims, and thus ignored the fact that petitioner's no-hire policy is a quintessential legitimate, nondiscriminatory reason for refusing to rehire an employee who was terminated for violating workplace conduct rules. Pp. 7-11.298 F. 3d 1030, vacated and remanded. Thomas, J., delivered the opinion of the Court, in which all other Members joined, except Souter, J., who took no part in the decision of the case, and Breyer, J., who took no part in the consideration or decision of the case.RAYTHEON COMPANY, PETITIONER v. JOEL HERNANDEZon writ of certiorari to the united states court of appeals for the ninth circuit[December 2, 2003] Justice Thomas delivered the opinion of the Court. The Americans with Disabilities Act of 1990 (ADA), 104 Stat. 327, as amended, 42 U. S. C. §12101 et seq., makes it unlawful for an employer, with respect to hiring, to "discriminate against a qualified individual with a disability because of the disability of such individual." §12112(a). We are asked to decide in this case whether the ADA confers preferential rehire rights on disabled employees lawfully terminated for violating workplace conduct rules. The United States Court of Appeals for the Ninth Circuit held that an employer's unwritten policy not to rehire employees who left the company for violating personal conduct rules contravenes the ADA, at least as applied to employees who were lawfully forced to resign for illegal drug use but have since been rehabilitated. Because the Ninth Circuit improperly applied a disparate-impact analysis in a disparate-treatment case in order to reach this holding, we vacate its judgment and remand the case for further proceedings consistent with this opinion. We do not, however, reach the question on which we granted certiorari. 537 U. S. 1187 (2003).I Respondent, Joel Hernandez, worked for Hughes Missile Systems for 25 years.1 On July 11, 1991, respondent's appearance and behavior at work suggested that he might be under the influence of drugs or alcohol. Pursuant to company policy, respondent took a drug test, which came back positive for cocaine. Respondent subsequently admitted that he had been up late drinking beer and using cocaine the night before the test. Because respondent's behavior violated petitioner's workplace conduct rules, respondent was forced to resign. Respondent's "Employee Separation Summary" indicated as the reason for separation: "discharge for personal conduct (quit in lieu of discharge)." App. 12a. More than two years later, on January 24, 1994, respondent applied to be rehired by petitioner. Respondent stated on his application that he had previously been employed by petitioner. He also attached two reference letters to the application, one from his pastor, stating that respondent was a "faithful and active member" of the church, and the other from an Alcoholics Anonymous counselor, stating that respondent attends Alcoholics Anonymous meetings regularly and is in recovery. Id., at 13a-15a. Joanne Bockmiller, an employee in the company's Labor Relations Department, reviewed respondent's application. Bockmiller testified in her deposition that since respondent's application disclosed his prior employment with the company, she pulled his personnel file and reviewed his employee separation summary. She then rejected respondent's application. Bockmiller insisted that the company had a policy against rehiring employees who were terminated for workplace misconduct. Id., at 62a. Thus, when she reviewed the employment separation summary and found that respondent had been discharged for violating workplace conduct rules, she rejected respondent's application. She testified, in particular, that she did not know that respondent was a former drug addict when she made the employment decision and did not see anything that would constitute a "record of" addiction. Id., at 63a-64a. Respondent subsequently filed a charge with the Equal Employment Opportunity Commission (EEOC). Respondent's charge of discrimination indicated that petitioner did not give him a reason for his nonselection, but that respondent believed he had been discriminated against in violation of the ADA. Petitioner responded to the charge by submitting a letter to the EEOC, in which George M. Medina, Sr., Manager of Diversity Development, wrote:"The ADA specifically exempts from protection individuals currently engaging in the illegal use of drugs when the covered entity acts on the basis of that use. Contrary to Complainant's unfounded allegation, his non-selection for rehire is not based on any legitimate disability. Rather, Complainant's application was rejected based on his demonstrated drug use while previously employed and the complete lack of evidence indicating successful drug rehabilitation."The Company maintains it's [sic] right to deny re-employment to employees terminated for violation of Company rules and regulations... .Complainant has provided no evidence to alter the Company's position that Complainant's conduct while employed by [petitioner] makes him ineligible for rehire." Id., at 19a-20a. This response, together with evidence that the letters submitted with respondent's employment application may have alerted Bockmiller to the reason for respondent's prior termination, led the EEOC to conclude that petitioner may have "rejected [respondent's] application based on his record of past alcohol and drug use." Id., at 94a EEOC Determination Letter, Nov. 20, 1997. The EEOC thus found that there was "reasonable cause to believe that [respondent] was denied hire to the position of Product Test Specialist because of his disability." Id., at 95a. The EEOC issued a right-to-sue letter, and respondent subsequently filed this action alleging a violation of the ADA. Respondent proceeded through discovery on the theory that the company rejected his application because of his record of drug addiction and/or because he was regarded as being a drug addict. See 42 U. S. C. §§12102(2)(B)-(C).2 In response to petitioner's motion for summary judgment, respondent for the first time argued in the alternative that if the company really did apply a neutral no-rehire policy in his case, petitioner still violated the ADA because such a policy has a disparate impact. The District Court granted petitioner's motion for summary judgment with respect to respondent's disparate-treatment claim. However, the District Court refused to consider respondent's disparate-impact claim because respondent had failed to plead or raise the theory in a timely manner. The Court of Appeals agreed with the District Court that respondent had failed timely to raise his disparate-impact claim. Hernandez v. Hughes Missile Systems Co., 298 F. 3d 1030, 1037, n. 20 (CA9 2002). In addressing respondent's disparate-treatment claim, the Court of Appeals proceeded under the familiar burden-shifting approach first adopted by this Court in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973).3 First, the Ninth Circuit found that with respect to respondent's prima facie case of discrimination, there were genuine issues of material fact regarding whether respondent was qualified for the position for which he sought to be rehired, and whether the reason for petitioner's refusal to rehire him was his past record of drug addiction.4 298 F. 3d, at 1034-1035. The Court of Appeals thus held that with respect to respondent's prima facie case of discrimination, respondent had proffered sufficient evidence to preclude a grant of summary judgment. Id., at 1035. Because petitioner does not challenge this aspect of the Ninth Circuit's decision, we do not address it here. The Court of Appeals then moved to the next step of McDonnell Douglas, where the burden shifts to the defendant to provide a legitimate, nondiscriminatory reason for its employment action. 411 U. S., at 802. Here, petitioner contends that Bockmiller applied the neutral policy against rehiring employees previously terminated for violating workplace conduct rules and that this neutral company policy constituted a legitimate and nondiscriminatory reason for its decision not to rehire respondent. The Court of Appeals, although admitting that petitioner's no-rehire rule was lawful on its face, held the policy to be unlawful "as applied to former drug addicts whose only work-related offense was testing positive because of their addiction." 298 F. 3d, at 1036. The Court of Appeals concluded that petitioner's application of a neutral no-rehire policy was not a legitimate, nondiscriminatory reason for rejecting respondent's application:"Maintaining a blanket policy against rehire of all former employees who violated company policy not only screens out persons with a record of addiction who have been successfully rehabilitated, but may well result, as [petitioner] contends it did here, in the staff member who makes the employment decision remaining unaware of the "disability" and thus of the fact that she is committing an unlawful act... . Additionally, we hold that a policy that serves to bar the reemployment of a drug addict despite his successful rehabilitation violates the ADA." Id., at 1036-1037. In other words, while ostensibly evaluating whether petitioner had proffered a legitimate, nondiscriminatory reason for failing to rehire respondent sufficient to rebut respondent's prima facie showing of disparate treatment, the Court of Appeals held that a neutral no-rehire policy could never suffice in a case where the employee was terminated for illegal drug use, because such a policy has a disparate impact on recovering drug addicts. In so holding, the Court of Appeals erred by conflating the analytical framework for disparate-impact and disparate-treatment claims. Had the Court of Appeals correctly applied the disparate-treatment framework, it would have been obliged to conclude that a neutral no-rehire policy is, by definition, a legitimate, nondiscriminatory reason under the ADA.5 And thus the only remaining question would be whether respondent could produce sufficient evidence from which a jury could conclude that "petitioner's stated reason for respondent's rejection was in fact pretext." McDonnell Douglas, supra, at 804.II This Court has consistently recognized a distinction between claims of discrimination based on disparate treatment and claims of discrimination based on disparate impact. The Court has said that " '[d]isparate treatment' ... is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or [other protected characteristic]." Teamsters v. United States, 431 U. S. 324, 335, n. 15 (1977). See also Hazen Paper Co. v. Biggins, 507 U. S. 604, 609 (1993) (discussing disparate-treatment claims in the context of the Age Discrimination in Employment Act of 1967). Liability in a disparate-treatment case "depends on whether the protected trait ... actually motivated the employer's decision." Id., at 610. By contrast, disparate-impact claims "involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity." Teamsters, supra, at 335-336, n. 15. Under a disparate-impact theory of discrimination, "a facially neutral employment practice may be deemed [illegally discriminatory] without evidence of the employer's subjective intent to discriminate that is required in a 'disparate-treatment' case." Wards Cove Packing Co. v. Atonio, 490 U. S. 642, 645-646 (1989), superseded by statute on other grounds, Civil Rights Act of 1991, §105, 105 Stat. 1074-1075, 42 U. S. C. §2000e-2(k) (1994 ed.). Both disparate-treatment and disparate-impact claims are cognizable under the ADA. See 42 U. S. C. §12112(b) (defining "discriminate" to include "utilizing standards, criteria, or methods of administration ... that have the effect of discrimination on the basis of disability" and "using qualification standards, employment tests or other selection criteria that screen out or tend to screen out an individual with a disability"). Because "the factual issues, and therefore the character of the evidence presented, differ when the plaintiff claims that a facially neutral employment policy has a discriminatory impact on protected classes," Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 252, n. 5 (1981), courts must be careful to distinguish between these theories. Here, respondent did not timely pursue a disparate-impact claim. Rather, the District Court concluded, and the Court of Appeals agreed, that respondent's case was limited to a disparate-treatment theory, that the company refused to rehire respondent because it regarded respondent as being disabled and/or because of respondent's record of a disability. 298 F. 3d, at 1037, n. 20. Petitioner's proffer of its neutral no-rehire policy plainly satisfied its obligation under McDonnell Douglas to provide a legitimate, nondiscriminatory reason for refusing to rehire respondent. Thus, the only relevant question before the Court of Appeals, after petitioner presented a neutral explanation for its decision not to rehire respondent, was whether there was sufficient evidence from which a jury could conclude that petitioner did make its employment decision based on respondent's status as disabled despite petitioner's proffered explanation. Instead, the Court of Appeals concluded that, as a matter of law, a neutral no-rehire policy was not a legitimate, nondiscriminatory reason sufficient to defeat a prima facie case of discrimination.6 The Court of Appeals did not even attempt, in the remainder of its opinion, to treat this claim as one involving only disparate treatment. Instead, the Court of Appeals observed that petitioner's policy "screens out persons with a record of addiction," and further noted that the company had not raised a business necessity defense, 298 F. 3d, at 1036-1037, and n. 19, factors that pertain to disparate-impact claims but not disparate-treatment claims. See, e.g., Grano v. Department of Development of Columbus, 637 F. 2d 1073, 1081 (CA6 1980) ("In a disparate impact situation ... the issue is whether a neutral selection device ... screens out disproportionate numbers of [the protected class]").7 By improperly focusing on these factors, the Court of Appeals ignored the fact that petitioner's no-rehire policy is a quintessential legitimate, nondiscriminatory reason for refusing to rehire an employee who was terminated for violating workplace conduct rules. If petitioner did indeed apply a neutral, generally applicable no-rehire policy in rejecting respondent's application, petitioner's decision not to rehire respondent can, in no way, be said to have been motivated by respondent's disability. The Court of Appeals rejected petitioner's legitimate, nondiscriminatory reason for refusing to rehire respondent because it "serves to bar the re-employment of a drug addict despite his successful rehabilitation." 298 F.3d, at 1036-1037. We hold that such an analysis is inapplicable to a disparate-treatment claim. Once respondent had made a prima facie showing of discrimination, the next question for the Court of Appeals was whether petitioner offered a legitimate, nondiscriminatory reason for its actions so as to demonstrate that its actions were not motivated by respondent's disability. To the extent that the Court of Appeals strayed from this task by considering not only discriminatory intent but also discriminatory impact, we vacate its judgment and remand the case for further proceedings consistent with this opinion.It is so ordered. Justice Souter took no part in the decision of this case. Justice Breyer took no part in the consideration or decision of this case.FOOTNOTESFootnote 1 Hughes has since been acquired by petitioner, Raytheon Company. For the sake of clarity, we refer to Hughes and Raytheon collectively as petitioner or the company.Footnote 2 The ADA defines the term "disability" as:"(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual;"(B) a record of such an impairment; or"(C) being regarded as having such an impairment."42 U. S. C. §12102(2).Footnote 3 The Court in McDonnell Douglas set forth a burden-shifting scheme for discriminatory-treatment cases. Under McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination. The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment action. 530 U. S. 133, 143 (2000). The Courts of Appeals have consistently utilized this burden-shifting approach when reviewing motions for summary judgment in disparate-treatment cases. See, e.g., Pugh v. Attica, 259 F. 3d 619, 626 (CA7 2001) (applying burden-shifting approach to an ADA disparate-treatment claim).Footnote 4 The Court of Appeals noted that "it is possible that a drug user may not be 'disabled' under the ADA if his drug use does not rise to the level of an addiction which substantially limits one or more of his major life activities." 298 F. 3d, at 1033-1034, n. 9. The parties do not dispute that respondent was "disabled" at the time he quit in lieu of discharge and thus a record of the disability exists. We therefore need not decide in this case whether respondent's employment record constitutes a "record of addiction," which triggers the protections of the ADA. The parties are also not disputing in this Court whether respondent was qualified for the position for which he applied.Footnote 5 This would not, of course, resolve the dispute over whether petitioner did in fact apply such a policy in this case. Indeed, the Court of Appeals expressed some confusion on this point, as the court first held that respondent "raise[d] a genuine issue of material fact as to whether he was denied re-employment because of his past record of drug addiction," id., at 1034, but then later stated that there was "no question that [petitioner] applied this [no-rehire] policy in rejecting [respondent's] application." Id., at 1036, n. 17.Footnote 6 The Court of Appeals characterized respondent's workplace misconduct as merely "testing positive because of [his] addiction." 298 F. 3d, at 1036. To the extent that the court suggested that, because respondent's workplace misconduct is related to his disability, petitioner's refusal to rehire respondent on account of that workplace misconduct violated the ADA, we point out that we have rejected a similar argument in the context of the Age Discrimination in Employment Act. See Hazen Paper Co. v. Biggins, 507 U. S. 604, 611 (1993).Footnote 7 Indeed, despite the fact that the Nation's antidiscrimination laws are undoubtedly aimed at "the problem of inaccurate and stigmatizing stereotypes," ibid., the Court of Appeals held that the unfortunate result of petitioner's application of its neutral policy was that Bockmiller may have made the employment decision in this case "remaining unaware of [respondent's] 'disability.' " 298 F. 3d, at 1036. The Court of Appeals did not explain, however, how it could be said that Bockmiller was motivated to reject respondent's application because of his disability if Bockmiller was entirely unaware that such a disability existed. If Bockmiller were truly unaware that such a disability existed, it would be impossible for her hiring decision to have been based, even in part, on respondent's disability. And, if no part of the hiring decision turned on respondent's status as disabled, he cannot, ipso facto, have been subject to disparate treatment.

Respondent is a party to a collective bargaining agreement between coal operators and the United Mine Workers providing for a union welfare fund meeting the requirements of 302 (c) (5) of the Taft-Hartley Act and requiring each coal operator to pay into a trust fund "for the sole and exclusive benefit" of the employees, their families and dependents a stipulated royalty on each ton of coal produced. Respondent withheld royalties in an amount claimed to equal damages which it had sustained as a result of strikes alleged to be in violation of the same agreement, and the trustees sued to recover such royalties. Respondent defended on the ground that performance of its duty to pay the royalties to the trustees, as third-party beneficiaries of the agreement, was excused when the union violated the agreement, and it cross-claimed against the union for damages resulting from the strikes. The District Court awarded respondent a judgment on its claim against the union and awarded the trustees a judgment for the unpaid royalties, but provided that the trustees' judgment should be paid only out of the proceeds of respondent's judgment. The Court of Appeals affirmed except as to the amount of the damages awarded respondent. Held: 1. So far as it sustains the holding of the District Court that the union violated the collective bargaining agreement, the judgment of the Court of Appeals is affirmed by an equally divided Court. P. 464. 2. The judgment of the Court of Appeals is modified to provide that the District Court shall amend the judgment in favor of the trustees to allow immediate and unconditional execution, and interest, on the full amount of the trustees' judgment against respondent. Pp. 464-471. (a) The collective bargaining agreement here involved is not to be construed as making performance by the union of its promises a condition precedent to respondent's promise to pay royalties to the trustees, notwithstanding a provision to the effect that the agreement "is an integrated instrument and its provisions are interdependent." Pp. 464-466. (b) Regardless of the inferences which may be drawn from other third-party beneficiary contracts, the parties to a collective bargaining agreement must express their meaning in unequivocal words before they can be said to have agreed that the union's breaches of its promises should give rise to a defense against the duty assumed by an employer to contribute to a welfare fund meeting the requirements of 302 (c) (5); and the agreement here involved contains no such words. Pp. 466-471. 259 F.2d 346, judgment modified.î

An army colonel sent a copy of an advertisement for petitioners' retail store, "Victor's Secret," to respondents, affiliated corporations that own the VICTORIA'S SECRET trademarks, because he saw it as an attempt to use a reputable trademark to promote unwholesome, tawdry merchandise. Respondents asked petitioners to discontinue using the name, but petitioners responded by changing the store's name to "Victor's Little Secret." Respondents then filed suit, alleging, inter alia, "the dilution of famous marks" under the Federal Trademark Dilution Act (FTDA). This 1995 amendment to the Trademark Act of 1946 describes the factors that determine whether a mark is "distinctive and famous," 15 U. S. C. §1125(c)(1), and defines "dilution" as "the lessening of the capacity of a famous mark to identify and distinguish goods or services," §1127. To support their claims that petitioners' conduct was likely to "blur and erode" their trademark's distinctiveness and "tarnish" its reputation, respondents presented an affidavit from a marketing expert who explained the value of respondents' mark but expressed no opinion concerning the impact of petitioners' use of "Victor's Little Secret" on that value. The District Court granted respondents summary judgment on the FTDA claim, and the Sixth Circuit affirmed, finding that respondents' mark was "distinctive" and that the evidence established "dilution" even though no actual harm had been proved. It also rejected the Fourth Circuit's conclusion that the FTDA "requires proof that (1) a defendant has [used] a junior mark sufficiently similar to the famous mark to evoke in ... consumers a mental association of the two that (2) has caused (3) actual economic harm to the famous mark's economic value by lessening its former selling power as an advertising agent for its goods or services," Ringling-Bros.-Barnum & Bailey Combined Shows, Inc., v. Utah Div. of Travel Development, 170 F. 3d 449, 461.Held: 1. The FTDA requires proof of actual dilution. Pp. 9-16. (a) Unlike traditional infringement law, the prohibitions against trademark dilution are not the product of common-law development, and are not motivated by an interest in protecting consumers. The approximately 25 state trademark dilution laws predating the FTDA refer both to injury to business reputation (tarnishment) and to dilution of the distinctive quality of a trademark or trade name (blurring). The FTDA's legislative history mentions that the statute's purpose is to protect famous trademarks from subsequent uses that blur the mark's distinctiveness or tarnish or disparage it, even absent a likelihood of confusion. Pp. 9-13. (b) Respondents' mark is unquestionably valuable, and petitioners have not challenged the conclusion that it is "famous." Nor do they contend that protection is confined to identical uses of famous marks or that the statute should be construed more narrowly in a case such as this. They do contend, however, that the statute requires proof of actual harm, rather than mere "likelihood" of harm. The contrast between the state statutes and the federal statute sheds light on this precise question. The former repeatedly refer to a "likelihood" of harm, rather than a completed harm, but the FTDA provides relief if another's commercial use of a mark or trade name "causes dilution of the [mark's] distinctive quality," §1125(c)(1) (emphasis added). Thus, it unambiguously requires an actual dilution showing. This conclusion is confirmed by the FTDA's "dilution" definition itself, §1127. That does not mean that the consequences of dilution, such as an actual loss of sales or profits, must also be proved. This Court disagrees with the Fourth Circuit's Ringling Bros. decision to the extent it suggests otherwise, but agrees with that court's conclusion that, at least where the marks at issue are not identical, the mere fact that consumers mentally associate the junior user's mark with a famous mark is not sufficient to establish actionable dilution. Such association will not necessarily reduce the famous mark's capacity to identify its owner's goods, the FTDA's dilution requirement. Pp. 13-15. 2. The evidence in this case is insufficient to support summary judgment on the dilution count. There is a complete absence of evidence of any lessening of the VICTORIA'S SECRET mark's capacity to identify and distinguish goods or services sold in Victoria's Secret stores or advertised in its catalogs. The officer who saw the ad directed his offense entirely at petitioners, not respondents. And respondents' expert said nothing about the impact of petitioners' name on the strength of respondents' mark. Any difficulties of proof that may be entailed in demonstrating actual dilution are not an acceptable reason for dispensing with proof of an essential element of a statutory violation. Pp. 15-16.259 F. 3d 464, reversed and remanded. Stevens, J., delivered the opinion for a unanimous Court with respect to Parts I, II, and IV, and the opinion of the Court with respect to Part III, in which Rehnquist, C. J., and O'Connor, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ, joined. Kennedy J., filed a concurring opinion.VICTOR MOSELEY and CATHY MOSELEY, dbaVICTOR'S LITTLE SECRET, PETITIONERS v.V SECRET CATALOGUE, INC., et al.on writ of certiorari to the united states court ofappeals for the sixth circuit[March 4, 2003] Justice Stevens delivered the opinion of the Court.** In 1995 Congress amended §43 of the Trademark Act of 1946, 15 U. S. C. §1125, to provide a remedy for the "dilution of famous marks." 109 Stat. 985-986. That amendment, known as the Federal Trademark Dilution Act (FTDA), describes the factors that determine whether a mark is "distinctive and famous," and defines the term "dilution" as "the lessening of the capacity of a famous mark to identify and distinguish goods or services."1 The question we granted certiorari to decide is whether objective proof of actual injury to the economic value of a famous mark (as opposed to a presumption of harm arising from a subjective "likelihood of dilution" standard) is a requisite for relief under the FTDA.I Petitioners, Victor and Cathy Moseley, own and operate a retail store named "Victor's Little Secret" in a strip mall in Elizabethtown, Kentucky. They have no employees. Respondents are affiliated corporations that own the VICTORIA'S SECRET trademark, and operate over 750 Victoria's Secret stores, two of which are in Louisville, Kentucky, a short drive from Elizabethtown. In 1998 they spent over $55 million advertising "the VICTORIA'S SECRET brand — one of moderately priced, high quality, attractively designed lingerie sold in a store setting designed to look like a wom[a]n's bedroom." App. 167, 170. They distribute 400 million copies of the Victoria's Secret catalog each year, including 39,000 in Elizabethtown. In 1998 their sales exceeded $1.5 billion. In the February 12, 1998, edition of a weekly publication distributed to residents of the military installation at Fort Knox, Kentucky, petitioners advertised the "GRAND OPENING Just in time for Valentine's Day!" of their store "VICTOR'S SECRET" in nearby Elizabethtown. The ad featured "Intimate Lingerie for every woman"; "Romantic Lighting"; "Lycra Dresses"; "Pagers"; and "Adult Novelties/Gifts." Id., at 209. An army colonel, who saw the ad and was offended by what he perceived to be an attempt to use a reputable company's trademark to promote the sale of "unwholesome, tawdry merchandise," sent a copy to respondents. Id., at 210. Their counsel then wrote to petitioners stating that their choice of the name "Victor's Secret" for a store selling lingerie was likely to cause confusion with the well-known victoria's secret mark and, in addition, was likely to "dilute the distinctiveness" of the mark. Id., at 190-191. They requested the immediate discontinuance of the use of the name "and any variations thereof." Ibid. In response, petitioners changed the name of their store to "Victor's Little Secret." Because that change did not satisfy respondents,2 they promptly filed this action in Federal District Court. The complaint contained four separate claims: (1) for trademark infringement alleging that petitioners' use of their trade name was "likely to cause confusion and/or mistake in violation of 15 U. S. C. §1114(1)"; (2) for unfair competition alleging misrepresentation in violation of §1125(a); (3) for "federal dilution" in violation of the FTDA; and (4) for trademark infringement and unfair competition in violation of the common law of Kentucky. Id., at 15, 20-23. In the dilution count, the complaint alleged that petitioners' conduct was "likely to blur and erode the distinctiveness" and "tarnish the reputation" of the VICTORIA'S SECRET trademark. Ibid. After discovery the parties filed cross-motions for summary judgment. The record contained uncontradicted affidavits and deposition testimony describing the vast size of respondents' business, the value of the VICTORIA'S SECRET name, and descriptions of the items sold in the respective parties' stores. Respondents sell a "complete line of lingerie" and related items, each of which bears a VICTORIA'S SECRET label or tag.3 Petitioners sell a wide variety of items, including adult videos, "adult novelties," and lingerie.4 Victor Moseley stated in an affidavit that women's lingerie represented only about five per cent of their sales. Id., at 131. In support of their motion for summary judgment, respondents submitted an affidavit by an expert in marketing who explained "the enormous value" of respondents' mark. Id., at 195-205. Neither he, nor any other witness, expressed any opinion concerning the impact, if any, of petitioners' use of the name "Victor's Little Secret" on that value. Finding that the record contained no evidence of actual confusion between the parties' marks, the District Court concluded that "no likelihood of confusion exists as a matter of law" and entered summary judgment for petitioners on the infringement and unfair competition claims. Civ. Action No. 3:98CV-395-S (WD Ky., Feb. 9, 2000), App. to Pet. for Cert. 28a, 37a. With respect to the FTDA claim, however, the court ruled for respondents. Noting that petitioners did not challenge Victoria Secret's claim that its mark is "famous," the only question it had to decide was whether petitioners' use of their mark diluted the quality of respondents' mark. Reasoning from the premise that dilution "corrodes" a trademark either by " 'blurring its product identification or by damaging positive associations that have attached to it,' " the court first found the two marks to be sufficiently similar to cause dilution, and then found "that Defendants' mark dilutes Plaintiffs' mark because of its tarnishing effect upon the Victoria's Secret mark." Id., at 38a-39a (quoting Ameritech, Inc. v. American Info. Technologies Corp., 811 F. 2d 960, 965 (CA6 1987)). It therefore enjoined petitioners "from using the mark 'Victor's Little Secret' on the basis that it causes dilution of the distinctive quality of the Victoria's Secret mark." App. to Pet. for Cert. 38a-39a. The court did not, however, find that any "blurring" had occurred. Ibid. The Court of Appeals for the Sixth Circuit affirmed. 259 F. 3d 464 (2001). In a case decided shortly after the entry of the District Court's judgment in this case, the Sixth Circuit had adopted the standards for determining dilution under the FDTA that were enunciated by the Second Circuit in Nabisco, Inc. v. PF Brands, Inc., 191 F. 3d 208 (1999). See Kellogg Co. v. Exxon Corp., 209 F. 3d 562 (CA6 2000). In order to apply those standards, it was necessary to discuss two issues that the District Court had not specifically addressed — whether respondents' mark is "distinctive,"5 and whether relief could be granted before dilution has actually occurred.6 With respect to the first issue, the court rejected the argument that Victoria's Secret could not be distinctive because "secret" is an ordinary word used by hundreds of lingerie concerns. The court concluded that the entire mark was "arbitrary and fanciful" and therefore deserving of a high level of trademark protection. 259 F. 3d, at 470.7 On the second issue, the court relied on a distinction suggested by this sentence in the House Report: "Confusion leads to immediate injury, while dilution is an infection, which if allowed to spread, will inevitably destroy the advertising value of the mark." H. R. Rep. No. 104-374, p. 1030 (1995). This statement, coupled with the difficulty of proving actual harm, lent support to the court's ultimate conclusion that the evidence in this case sufficiently established "dilution." 259 F. 3d, at 475-477. In sum, the Court of Appeals held:"While no consumer is likely to go to the Moseleys' store expecting to find Victoria's Secret's famed Miracle Bra, consumers who hear the name 'Victor's Little Secret' are likely automatically to think of the more famous store and link it to the Moseleys' adult-toy, gag gift, and lingerie shop. This, then, is a classic instance of dilution by tarnishing (associating the Victoria's Secret name with sex toys and lewd coffee mugs) and by blurring (linking the chain with a single, unauthorized establishment). Given this conclusion, it follows that Victoria's Secret would prevail in a dilution analysis, even without an exhaustive consideration of all ten of the Nabisco factors." Id., at 477.8 In reaching that conclusion the Court of Appeals expressly rejected the holding of the Fourth Circuit in Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. Utah Div. of Travel Development, 170 F. 3d 449 (1999). In that case, which involved a claim that Utah's use on its license plates of the phrase "greatest snow on earth" was causing dilution of the "greatest show on earth," the court had concluded "that to establish dilution of a famous mark under the federal Act requires proof that (1) a defendant has made use of a junior mark sufficiently similar to the famous mark to evoke in a relevant universe of consumers a mental association of the two that (2) has caused (3) actual economic harm to the famous mark's economic value by lessening its former selling power as an advertising agent for its goods or services." Id., at 461 (emphasis added). Because other Circuits have also expressed differing views about the "actual harm" issue, we granted certiorari to resolve the conflict. 535 U. S. 985 (2002).II Traditional trademark infringement law is a part of the broader law of unfair competition, see Hanover Star Milling Co. v. Metcalf, 240 U. S. 403, 413 (1916), that has its sources in English common law, and was largely codified in the Trademark Act of 1946 (Lanham Act). See B. Pattishall, D. Hilliard, & J. Welch, Trademarks and Unfair Competition 2 (4th ed. 2000) ("The United States took the [trademark and unfair competition] law of England as its own"). That law broadly prohibits uses of trademarks, trade names, and trade dress that are likely to cause confusion about the source of a product or service. See 15 U. S. C. §§1114, 1125(a)(1)(A). Infringement law protects consumers from being misled by the use of infringing marks and also protects producers from unfair practices by an "imitating competitor." Qualitex Co. v. Jacobson Products Co., 514 U. S. 159, 163-164 (1995). Because respondents did not appeal the District Court's adverse judgement on counts 1, 2, and 4 of their complaint, we decide the case on the assumption that the Moseleys' use of the name "Victor's Little Secret" neither confused any consumers or potential consumers, nor was likely to do so. Moreover, the disposition of those counts also makes it appropriate to decide the case on the assumption that there was no significant competition between the adversaries in this case. Neither the absence of any likelihood of confusion nor the absence of competition, however, provides a defense to the statutory dilution claim alleged in count 3 of the complaint. Unlike traditional infringement law, the prohibitions against trademark dilution are not the product of common-law development, and are not motivated by an interest in protecting consumers. The seminal discussion of dilution is found in Frank Schechter's 1927 law review article concluding "that the preservation of the uniqueness of a trademark should constitute the only rational basis for its protection." Rational Basis of Trademark Protection, 40 Harv. L. Rev. 813, 831. Schechter supported his conclusion by referring to a German case protecting the owner of the well-known trademark "Odol" for mouthwash from use on various noncompeting steel products.9 That case, and indeed the principal focus of the Schechter article, involved an established arbitrary mark that had been "added to rather than withdrawn from the human vocabulary" and an infringement that made use of the identical mark. Id., at 829.10 Some 20 years later Massachusetts enacted the first state statute protecting trademarks from dilution. It provided: "Likelihood of injury to business reputation or of dilution of the distinctive quality of a trade name or trade-mark shall be a ground for injunctive relief in cases of trade-mark infringement or unfair competition notwithstanding the absence of competition between the parties or of confusion as to the source of goods or services." 1947 Mass. Acts, p. 300, ch. 307.Notably, that statute, unlike the "Odol" case, prohibited both the likelihood of "injury to business reputation" and "dilution." It thus expressly applied to both "tarnishment" and "blurring." At least 25 States passed similar laws in the decades before the FTDA was enacted in 1995. See Restatement (Third) of Unfair Competition §25, Statutory Note (1995). III In 1988, when Congress adopted amendments to the Lanham Act, it gave consideration to an antidilution provision. During the hearings on the 1988 amendments, objections to that provision based on a concern that it might have applied to expression protected by the First Amendment were voiced and the provision was deleted from the amendments. H. R. Rep. No. 100-1028 (1988). The bill, H. R. 1295, 104th Cong., 1st Sess., that was introduced in the House in 1995, and ultimately enacted as the FTDA, included two exceptions designed to avoid those concerns: a provision allowing "fair use" of a registered mark in comparative advertising or promotion, and the provision that noncommercial use of a mark shall not constitute dilution. See 15 U. S. C. §1125(c)(4). On July 19, 1995, the Subcommittee on Courts and Intellectual Property of the House Judiciary Committee held a 1-day hearing on H. R. 1295. No opposition to the bill was voiced at the hearing and, with one minor amendment that extended protection to unregistered as well as registered marks, the subcommittee endorsed the bill and it passed the House unanimously. The committee's report stated that the "purpose of H. R. 1295 is to protect famous trademarks from subsequent uses that blur the distinctiveness of the mark or tarnish or disparage it, even in the absence of a likelihood of confusion." H. R. Rep. No. 104-374, p. 1029 (1995). As examples of dilution, it stated that "the use of DUPONT shoes, BUICK aspirin, and KODAK pianos would be actionable under this legislation." Id., at 1030. In the Senate an identical bill, S. 1513, 104th Cong., 1st Sess., was introduced on December 29, 1995, and passed on the same day by voice vote without any hearings. In his explanation of the bill, Senator Hatch also stated that it was intended "to protect famous trademarks from subsequent uses that blur the distinctiveness of the mark or tarnish or disparage it," and referred to the Dupont Shoes, Buick aspirin, and Kodak piano examples, as well as to the Schechter law review article. 141 Cong. Rec. 38559-38561 (1995).IV The Victoria's Secret mark is unquestionably valuable and petitioners have not challenged the conclusion that it qualifies as a "famous mark" within the meaning of the statute. Moreover, as we understand their submission, petitioners do not contend that the statutory protection is confined to identical uses of famous marks, or that the statute should be construed more narrowly in a case such as this. Even if the legislative history might lend some support to such a contention, it surely is not compelled by the statutory text. The District Court's decision in this case rested on the conclusion that the name of petitioners' store "tarnished" the reputation of respondents' mark, and the Court of Appeals relied on both "tarnishment" and "blurring" to support its affirmance. Petitioners have not disputed the relevance of tarnishment, Tr. of Oral Arg. 5-7, presumably because that concept was prominent in litigation brought under state antidilution statutes and because it was mentioned in the legislative history. Whether it is actually embraced by the statutory text, however, is another matter. Indeed, the contrast between the state statutes, which expressly refer to both "injury to business reputation" and to "dilution of the distinctive quality of a trade name or trademark," and the federal statute which refers only to the latter, arguably supports a narrower reading of the FTDA. See Klieger, Trademark Dilution: The Whittling Away of the Rational Basis for Trademark Protection, 58 U. Pitt. L. Rev. 789, 812-813, and n. 132 (1997). The contrast between the state statutes and the federal statute, however, sheds light on the precise question that we must decide. For those state statutes, like several provisions in the federal Lanham Act, repeatedly refer to a "likelihood" of harm, rather than to a completed harm. The relevant text of the FTDA, quoted in full in note 1, supra, provides that "the owner of a famous mark" is entitled to injunctive relief against another person's commercial use of a mark or trade name if that use "causes dilution of the distinctive quality" of the famous mark. 15 U. S. C. §1125(c)(1) (emphasis added). This text unambiguously requires a showing of actual dilution, rather than a likelihood of dilution. This conclusion is fortified by the definition of the term "dilution" itself. That definition provides: "The term 'dilution' means the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of--"(1) competition between the owner of the famous mark and other parties, or"(2) likelihood of confusion, mistake, or deception." §1127. The contrast between the initial reference to an actual "lessening of the capacity" of the mark, and the later reference to a "likelihood of confusion, mistake, or deception" in the second caveat confirms the conclusion that actual dilution must be established. Of course, that does not mean that the consequences of dilution, such as an actual loss of sales or profits, must also be proved. To the extent that language in the Fourth Circuit's opinion in the Ringling Bros. case suggests otherwise, see 170 F. 3d, at 460-465, we disagree. We do agree, however, with that court's conclusion that, at least where the marks at issue are not identical, the mere fact that consumers mentally associate the junior user's mark with a famous mark is not sufficient to establish actionable dilution. As the facts of that case demonstrate, such mental association will not necessarily reduce the capacity of the famous mark to identify the goods of its owner, the statutory requirement for dilution under the FTDA. For even though Utah drivers may be reminded of the circus when they see a license plate referring to the "greatest snow on earth," it by no means follows that they will associate "the greatest show on earth" with skiing or snow sports, or associate it less strongly or exclusively with the circus. "Blurring" is not a necessary consequence of mental association. (Nor, for that matter, is "tarnishing.") The record in this case establishes that an army officer who saw the advertisement of the opening of a store named "Victor's Secret" did make the mental association with "Victoria's Secret," but it also shows that he did not therefore form any different impression of the store that his wife and daughter had patronized. There is a complete absence of evidence of any lessening of the capacity of the Victoria's Secret mark to identify and distinguish goods or services sold in Victoria's Secret stores or advertised in its catalogs. The officer was offended by the ad, but it did not change his conception of Victoria's Secret. His offense was directed entirely at petitioners, not at respondents. Moreover, the expert retained by respondents had nothing to say about the impact of petitioners' name on the strength of respondents' mark. Noting that consumer surveys and other means of demonstrating actual dilution are expensive and often unreliable, respondents and their amici argue that evidence of an actual "lessening of the capacity of a famous mark to identify and distinguish goods or services," §1127, may be difficult to obtain. It may well be, however, that direct evidence of dilution such as consumer surveys will not be necessary if actual dilution can reliably be proven through circumstantial evidence — the obvious case is one where the junior and senior marks are identical. Whatever difficulties of proof may be entailed, they are not an acceptable reason for dispensing with proof of an essential element of a statutory violation. The evidence in the present record is not sufficient to support the summary judgment on the dilution count. The judgment is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.VICTOR MOSELEY and CATHY MOSELEY, dbaVICTOR'S LITTLE SECRET, PETITIONERS v.V SECRET CATALOGUE, INC., et al.on writ of certiorari to the united states court ofappeals for the sixth circuit[March 4, 2003] Justice Kennedy, concurring. As of this date, few courts have reviewed the statute we are considering, the Federal Trademark Dilution Act, 15 U. S. C. §1125(c), and I agree with the Court that the evidentiary showing required by the statute can be clarified on remand. The conclusion that the VICTORIA'S SECRET mark is a famous mark has not been challenged throughout the litigation, ante, at 6, 13, and seems not to be in question. The remaining issue is what factors are to be considered to establish dilution. For this inquiry, considerable attention should be given, in my view, to the word "capacity" in the statutory phrase that defines dilution as "the lessening of the capacity of a famous mark to identify and distinguish goods or services." 15 U. S. C. §1127. When a competing mark is first adopted, there will be circumstances when the case can turn on the probable consequences its commercial use will have for the famous mark. In this respect, the word "capacity" imports into the dilution inquiry both the present and the potential power of the famous mark to identify and distinguish goods, and in some cases the fact that this power will be diminished could suffice to show dilution. Capacity is defined as "the power or ability to hold, receive, or accommodate." Webster's Third New International Dictionary 330 (1961); see also Webster's New International Dictionary 396 (2d ed. 1949) ("Power of receiving, containing, or absorbing"); 2 Oxford English Dictionary 857 (2d ed. 1989) ("Ability to receive or contain; holding power"); American Heritage Dictionary 275 (4th ed. 2000) ("The ability to receive, hold, or absorb"). If a mark will erode or lessen the power of the famous mark to give customers the assurance of quality and the full satisfaction they have in knowing they have purchased goods bearing the famous mark, the elements of dilution may be established. Diminishment of the famous mark's capacity can be shown by the probable consequences flowing from use or adoption of the competing mark. This analysis is confirmed by the statutory authorization to obtain injunctive relief. 15 U. S. C. §1125(c)(2). The essential role of injunctive relief is to "prevent future wrong, although no right has yet been violated." Swift & Co. v. United States, 276 U. S. 311, 326 (1928). Equity principles encourage those who are injured to assert their rights promptly. A holder of a famous mark threatened with diminishment of the mark's capacity to serve its purpose should not be forced to wait until the damage is done and the distinctiveness of the mark has been eroded. In this case, the District Court found that petitioners' trademark had tarnished the VICTORIA'S SECRET mark. App. to Pet. for Cert. 38a-39a. The Court of Appeals affirmed this conclusion and also found dilution by blurring. 259 F. 3d 464, 477 (CA6 2001). The Court's opinion does not foreclose injunctive relief if respondents on remand present sufficient evidence of either blurring or tarnishment. With these observations, I join the opinion of the Court.FOOTNOTESFootnote ** Justice Scalia joins all but Part III of this opinion.Footnote 1 The FTDA provides: "SEC. 3. REMEDIES FOR DILUTION OF FAMOUS MARKS. "(a) Remedies.--Section 43 of the Trademark Act of 1946 (15 U. S. C. 1125) is amended by adding at the end the following new subsection: " '(c)(1) The owner of a famous mark shall be entitled, subject to the principles of equity and upon such terms as the court deems reasonable, to an injunction against another person's commercial use in commerce of a mark or trade name, if such use begins after the mark has become famous and causes dilution of the distinctive quality of the mark, and to obtain such other relief as is provided in this subsection. In determining whether a mark is distinctive and famous, a court may consider factors such as, but not limited to-- " '(A) the degree of inherent or acquired distinctiveness of the mark; " '(B) the duration and extent of use of the mark in connection with the goods or services with which the mark is used; " '(C) the duration and extent of advertising and publicity of the mark; " '(D) the geographical extent of the trading area in which the mark is used; " '(E) the channels of trade for the goods or services with which the mark is used; " '(F) the degree of recognition of the mark in the trading areas and channels of trade used by the marks' owner and the person against whom the injunction is sought; " '(G) the nature and extent of use of the same or similar marks by third parties; and " '(H) whether the mark was registered under the Act of March 3, 1881, or the Act of February 20, 1905, or on the principal register. " '(2) In an action brought under this subsection, the owner of the famous mark shall be entitled only to injunctive relief unless the person against whom the injunction is sought willfully intended to trade on the owner's reputation or to cause dilution of the famous mark. If such willful intent is proven, the owner of the famous mark shall also be entitled to the remedies set forth in sections 35(a) and 36, subject to the discretion of the court and the principles of equity. " '(3) The ownership by a person of a valid registration under the Act of March 3, 1881, or the Act of February 20, 1905, or on the principal register shall be a complete bar to an action against that person, with respect to that mark, that is brought by another person under the common law or a statute of a State and that seeks to prevent dilution of the distinctiveness of a mark, label, or form of advertisement. " '(4) The following shall not be actionable under this section: " '(A) Fair use of a famous mark by another person in comparative commercial advertising or promotion to identify the competing goods or services of the owner of the famous mark. " '(B) Noncommercial use of a mark. " '(C) All forms of news reporting and news commentary.' "(b) Conforming Amendment.--The heading for title VIII of the Trademark Act of 1946 is amended by striking 'AND FALSE DESCRIPTIONS' and inserting ', FALSE DESCRIPTIONS, AND DILUTION.'"SEC. 4. DEFINITION. "Section 45 of the Trademark Act of 1946 (15 U. S. C. 1127) is amended by inserting after the paragraph defining when a mark shall be deemed to be 'abandoned' the following: " 'The term "dilution" means the lessening of the capacity of a famous mark to identify and distinguish goods or services, regardless of the presence or absence of-- " '(1) competition between the owner of the famous mark and other parties, or " '(2) likelihood of confusion, mistake, or deception.' " 109 Stat. 985-986.Footnote 2 After being advised of a proposal to change the store name to "VICTOR'S LITTLE SECRETS," respondents' counsel requested detailed information about the store in order to consider whether that change "would be acceptable." App. 13-14. Respondents filed suit two months after this request. Footnote 3 Respondents described their business as follows: "Victoria's Secret stores sell a complete line of lingerie, women's undergarments and nightwear, robes, caftans and kimonos, slippers, sachets, lingerie bags, hanging bags, candles, soaps, cosmetic brushes, atomizers, bath products and fragrances." Id., at 168.Footnote 4 In answer to an interrogatory, petitioners stated that they "sell novelty action clocks, patches, temporary tattoos, stuffed animals, coffee mugs, leather biker wallets, zippo lighters, diet formula, diet supplements, jigsaw puzzles, whyss, handcufs [sic], hosiery bubble machines, greeting cards, calendars, incense burners, car air fresheners, sunglasses, ball caps, jewelry, candles, lava lamps, blacklights, fiber optic lights, rock and roll prints, lingerie, pagers, candy, adult video tapes, adult novelties, t-shirts, etc." Id., at 87.Footnote 5 "It is quite clear that the statute intends distinctiveness, in addition to fame, as an essential element. The operative language defining the tort requires that 'the [junior] person's ... use ... caus[e] dilution of the distinctive quality of the [senior] mark.' 15 U. S. C. § 1125(c)(1). There can be no dilution of a mark's distinctive quality unless the mark is distinctive." Nabisco, Inc. v. PF Brands, Inc., 191 F. 3d 208, 216 (CA2 1999). Footnote 6 The Second Circuit explained why it did not believe "actual dilu-tion" need be proved:"Relying on a recent decision by the Fourth Circuit, Nabisco also asserts that proof of dilution under the FTDA requires proof of an 'actual, consummated harm.' Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. Utah Division of Travel Dev., 170 F. 3d 449, 464 (4th Cir. 1999). We reject the argument because we disagree with the Fourth Circuit's interpretation of the statute. "It is not clear which of two positions the Fourth Circuit adopted by its requirement of proof of 'actual dilution.' Id. The narrower position would be that courts may not infer dilution from 'contextual factors (degree of mark and product similarity, etc.),' but must instead rely on evidence of 'actual loss of revenues' or the 'skillfully constructed consumer survey.' Id. at 457, 464-65. This strikes us as an arbitrary and unwarranted limitation on the methods of proof." Nabisco, 191 F. 3d, at 223.Footnote 7 "In this case, for example, although the word 'secret' may provoke some intrinsic association with prurient interests, it is not automatically linked in the ordinary human experience with lingerie. 'Secret' is not particularly descriptive of bras and hosiery. Nor is there anything about the combination of the possessive 'Victoria's' and 'secret' that automatically conjures thought of women's underwear-except, of course, in the context of plaintiff's line of products. Hence, we conclude that the 'Victoria's Secret' mark ranks with those that are 'arbitrary and fanciful' and is therefore deserving of a high level of trademark protection. Although the district court applied a slightly different test from the one now established in this circuit, the court would undoubtedly have reached the same result under the Nabisco test. Certainly, we cannot say that the court erred in finding that the preliminary factors of a dilution claim had been met by Victoria's Secret." 259 F. 3d, at 470-471.Footnote 8 The court had previously noted that the "Second Circuit has developed a list of ten factors used to determine if dilution has, in fact, occurred, while describing them as a 'nonexclusive list' to 'develop gradually over time' and with the particular facts of each case. Those factors are: distinctiveness; similarity of the marks; 'proximity of the products and the likelihood of bridging the gap;' 'interrelationship among the distinctiveness of the senior mark, the similarity of the junior mark, and the proximity of the products;' 'shared consumers and geographic limitations;' 'sophistication of consumers;' actual confusion; 'adjectival or referential quality of the junior use;' 'harm to the junior user and delay by the senior user;' and the 'effect of [the] senior's prior laxity in protecting the mark." Id., at 476 (quoting Nabisco, 191 F. 3d, at 217-222).Footnote 9 The German court "held that the use of the mark, 'Odol' even on non-competing goods was 'gegen die guten Sitten,' pointing out that, when the public hears or reads the word 'Odol,' it thinks of the complainant's mouth wash, and that an article designated with the name 'Odol' leads the public to assume that it is of good quality. Consequently, concludes the court, complainant has 'the utmost interest in seeing that its mark is not diluted [verw&auml ;ssert]: it would lose in selling power if everyone used it as the designation of his goods.' " 40 Harv. L. Rev., at 831-832.Footnote 10 Schecter discussed this distinction at length: "The rule that arbitrary, coined or fanciful marks or names should be given a much broader degree of protection than symbols, words or phrases in common use would appear to be entirely sound. Such trademarks or tradenames as 'Blue Ribbon,' used, with or without registration, for all kinds of commodities or services, more than sixty times; 'Simplex' more than sixty times; 'Star,' as far back as 1898, nearly four hundred times; 'Anchor,' already registered over one hundred fifty times in 1898; 'Bull Dog,' over one hundred times by 1923; 'Gold Medal,' sixty-five times; '3-in-1' and '2-in-1,' seventy-nine times; 'Nox-all,' fifty times; 'Universal,' over thirty times; 'Lily White' over twenty times;--all these marks and names have, at this late date, very little distinctiveness in the public mind, and in most cases suggest merit, prominence or other qualities of goods or services in general, rather than the fact that the product or service, in connection with which the mark or name is used, emanates from a particular source. On the other hand, 'Rolls-Royce,' 'Aunt Jemima's,' 'Kodak,' 'Mazda,' 'Corona,' 'Nujol,' and 'Blue Goose,' are coined, arbitrary or fanciful words or phrases that have been added to rather than withdrawn from the human vocabulary by their owners, and have, from the very beginning, been associated in the public mind with a particular product, not with a variety of products, and have created in the public consciousness an impression or symbol of the excellence of the particular product in question." Id., at 828-829.

Per Curiam. Under Simmons v. South Carolina, 512 U. S. 154 (1994), and its progeny, "where a capital defendant's future dangerousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole," the Due Process Clause "entitles the defendant 'to inform the jury of [his] parole ineligibility, either by a jury instruction or in arguments by counsel.' " Shafer v. South Carolina, 532 U. S. 36, 39 (2001) (quoting Ramdass v. Angelone, 530 U. S. 156, 165 (2000) (plurality opinion)). In the decision below, the Arizona Supreme Court found that the State had put petitioner Shawn Patrick Lynch's future dangerousness at issue during his capital sentencing proceeding and acknowledged that Lynch's only alternative sentence to death was life imprisonment without parole. 238 Ariz. 84, 103, 357 P. 3d 119, 138 (2015). But the court nonetheless concluded that Lynch had no right to inform the jury of his parole ineligibility. Ibid. The judgment is reversed. A jury convicted Lynch of first-degree murder, kidnapping, armed robbery, and burglary for the 2001 killing of James Panzarella. The State sought the death penalty. Before Lynch's penalty phase trial began, Arizona moved to prevent his counsel from informing the jury that the only alternative sentence to death was life without the possibility of parole. App. K to Pet. for Cert. The court granted the motion. Lynch's first penalty phase jury failed to reach a unanimous verdict. A second jury was convened and sentenced Lynch to death. On appeal, the Arizona Supreme Court vacated the sentence because the jury instructions improperly described Arizona law. The court did not address Lynch's alternative argument that the trial court had violated Simmons. On remand, a third penalty phase jury sentenced Lynch to death. The Arizona Supreme Court affirmed, this time considering and rejecting Lynch's Simmons claim. The court agreed that, during the third penalty phase, "[t]he State suggested . . . that Lynch could be dangerous." 238 Ariz., at 103, 357 P. 3d, at 138. The court also recognized that Lynch was parole ineligible: Under Arizona law, "parole is available only to individuals who committed a felony before January 1, 1994," and Lynch committed his crimes in 2001. Ibid. (citing Ariz. Rev. Stat. Ann. §41-1604.09(I)). Nevertheless, while "[a]n instruction that parole is not currently available would be correct," the court held that "the failure to give the Simmons instruction was not error." 238 Ariz., at 103, 357 P. 3d, at 138. That conclusion conflicts with this Court's precedents. In Simmons, as here, a capital defendant was ineligible for parole under state law. 512 U. S., at 156 (plurality opinion). During the penalty phase, the State argued that the jurors should consider the defendant's future dangerousness when determining the proper punishment. Id., at 157. But the trial court refused to permit defense counsel to tell the jury that the only alternative sentence to death was life without parole. Id., at 157, 160. The Court reversed, reasoning that due process entitled the defendant to rebut the prosecution's argument that he posed a future danger by informing his sentencing jury that he is parole ineligible. Id., at 161-162; id., at 178 (O'Connor, J., concurring in judgment). The Court's opinions reiterated that holding in Ramdass, Shafer, and Kelly v. South Carolina, 534 U. S. 246 (2002). The Arizona Supreme Court thought Arizona's sentencing law sufficiently different from the others this Court had considered that Simmons did not apply. It relied on the fact that, under state law, Lynch could have received a life sentence that would have made him eligible for "release" after 25 years. 238 Ariz., at 103-104, 357 P. 3d, at 138-139; §13-751(A). But under state law, the only kind of release for which Lynch would have been eligible — as the State does not contest — is executive clemency. See Pet. for Cert. 22; 238 Ariz., at 103-104, 357 P. 3d, at 138-139. And Simmons expressly rejected the argument that the possibility of clemency diminishes a capital defendant's right to inform a jury of his parole ineligibility. There, South Carolina had argued that the defendant need not be allowed to present this information to the jury "because future exigencies," including "commutation [and] clemency," could one day "allow [him] to be released into society." 512 U. S., at 166 (plurality opinion). The Court disagreed: "To the extent that the State opposes even a simple parole-ineligibility instruction because of hypothetical future developments, the argument has little force." Ibid.; id., at 177 (opinion of O'Connor, J.) (explaining that the defendant had a right "to bring his parole ineligibility to the jury's attention" and that the State could respond with "truthful information regarding the availability of commutation, pardon, and the like"). The State responds that Simmons " 'applies only to instances where, as a legal matter, there is no possibility of parole.' " Brief in Opposition 11 (quoting Ramdass, 530 U. S., at 169 (plurality opinion)). Notwithstanding the fact that Arizona law currently prevents all felons who committed their offenses after 1993 from obtaining parole, 238 Ariz., at 103, 357 P. 3d, at 138, Arizona reasons that "nothing prevents the legislature from creating a parole system in the future for which [Lynch] would have been eligible had the court sentenced him to life with the possibility of release after 25 years." Brief in Opposition 12. This Court's precedents also foreclose that argument. Simmons said that the potential for future "legislative reform" could not justify refusing a parole-ineligibility instruction. 512 U. S., at 166 (plurality opinion). If it were otherwise, a State could always argue that its legislature might pass a law rendering the defendant parole eligible. Accordingly, as this Court later explained, "the dispositive fact in Simmons was that the defendant conclusively established his parole ineligibility under state law at the time of his trial." Ramdass, supra, at 171 (plurality opinion). In this case, the Arizona Supreme Court confirmed that parole was unavailable to Lynch under its law. Simmons and its progeny establish Lynch's right to inform his jury of that fact. The petition for writ of certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Arizona Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered.Thomas, J., dissenting 578 U. S. ____ (2016)SHAWN PATRICK LYNCH v. ARIZONAon petition for writ of certiorari to the supreme court of arizonaNo. 15-8366. Decided May 31, 2016 Justice Thomas, with whom Justice Alito joins, dissenting. Petitioner Shawn Patrick Lynch and his co-conspirator, Michael Sehwani, met their victim, James Panzarella, at a Scottsdale bar on March 24, 2001. The three went back to Panzarella's house early the next morning. Around 5 a.m., Sehwani called an escort service. The escort and her bodyguard arrived soon after. Sehwani paid her $300 with two checks from Panzarella's checkbook after spending an hour with her in the bedroom. Lynch and Sehwani then left the house with Panzarella's credit and debit cards and embarked on a spending spree. The afternoon of March 25, someone found Panzarella's body bound to a metal chair in his kitchen. His throat was slit. Blood surrounded him on the tile floor. The house was in disarray. Police discovered a hunting knife in the bedroom. A knife was also missing from the kitchen's knifeblock. And there were some receipts from Lynch and Sehwani's spending spree. Police found Lynch and Sehwani at a motel two days after the killing. They had spent the days with Panzarella's credit and debit cards buying cigarettes, matches, gas, clothing, and Everlast shoes, renting movies at one of the motels where they spent an afternoon, and making cash withdrawals. When police found the pair, Sehwani wore the Everlast shoes, and Lynch's shoes were stained with Panzarella's blood. A sweater, also stained with his blood, was in the back seat of their truck, as were Panzarella's car keys. A jury convicted Lynch of first-degree murder, kidnaping, armed robbery, and burglary, and ultimately sentenced him to death.1 But today, the Court decides that sentence is no good because the state trial court prohibited the parties from telling the jury that Arizona had abolished parole. Ante, at 1; see Ariz. Rev. Stat. Ann. §41-1604.09(I) (1999). The Court holds that this limitation on Lynch's sentencing proceeding violated Simmons v. South Carolina, 512 U. S. 154 (1994). Under Simmons, "[w]here the State puts the defendant's future dangerousness in issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due process entitles the defendant to inform the capital sentencing jury — by either argument or instruction — that he is parole ineligible." Id., at 178 (O'Connor, J., concurring in judgment). Today's summary reversal perpetuates the Court's error in Simmons. See Kelly v. South Carolina, 534 U. S. 246, 262 (2002) (Thomas, J., dissenting); Shafer v. South Carolina, 532 U. S. 36, 58 (2001) (Thomas, J., dissenting). As in Simmons, it is the "sheer depravity of [the defendant's] crimes, rather than any specific fear for the future, which induced the . . . jury to conclude that the death penalty was justice." 512 U. S., at 181 (Scalia, J., dissenting). In Simmons, for example, the defendant beat and raped three elderly women — one of them his own grandmother — before brutally killing a fourth. See ibid. The notion that a jury's decision to impose a death sentence "would have been altered by information on the current state of the law concerning parole (which could of course be amended) is . . . farfetched," to say the least. Id., at 184. Worse, today's decision imposes a magic-words requirement. Unlike Simmons, in which there was "no instruction at all" about the meaning of life imprisonment except that the term should be construed according to its " '[plain] and ordinary meaning,' " id., at 160, 166 (plurality opinion), here there was an instruction about the nature of the alternative life sentences that the trial court could impose:"If your verdict is that the Defendant should be sentenced to death, he will be sentenced to death. If your verdict is that the Defendant should be sentenced to life, he will not be sentenced to death, and the court will sentence him to either life without the possibility of release until at least 25 calendar years in prison are served, or 'natural life,' which means the Defendant would never be released from prison." App. S to Pet. for Cert. 18.That instruction parallels the Arizona statute governing Lynch's sentencing proceedings. That statute prescribed that defendants not sentenced to death could receive either a life sentence with the possibility of early release or a "natural life" sentence: "If the court does not sentence the defendant to natural life, the defendant shall not be released on any basis until the completion of the service of twenty-five calendar years," but a defendant sentenced to "natural life" will "not be released on any basis for the remainder of the defendant's natural life." Ariz. Rev. Stat. Ann. §13-703(A) (2001). Even though the trial court's instruction was a correct recitation of Arizona law, the Court holds that Simmons requires more. The Court laments that (at least for now) Arizona's only form of early release in Arizona is executive clemency. Ante, at 3. So the Court demands that the Arizona instruction specify that "the possibility of release" does not (at least for now) include parole. Due process, the Court holds, requires the court to tell the jury that if a defendant sentenced to life with the possibility of early release in 25 years were to seek early release today, he would be ineligible for parole under Arizona law. Ante, at 3-4. Nonsense. The Due Process Clause does not compel such "micromanage[ment of] state sentencing proceedings." Shafer, supra, at 58 (Thomas, J., dissenting). Today's decision — issued without full briefing and argument and based on Simmons, a fractured decision of this Court that did not produce a majority opinion — is a remarkably aggressive use of our power to review the States' highest courts. The trial court accurately told the jury that Lynch could receive a life sentence with or without the possibility of early release, and that should suffice. I respectfully dissent.SHAWN PATRICK LYNCH v. ARIZONAon petition for writ of certiorari to the supreme court of arizonaNo. 15-8366. Decided May 31, 2016 Per Curiam. Under Simmons v. South Carolina, 512 U. S. 154 (1994), and its progeny, "where a capital defendant's future dangerousness is at issue, and the only sentencing alternative to death available to the jury is life imprisonment without possibility of parole," the Due Process Clause "entitles the defendant 'to inform the jury of [his] parole ineligibility, either by a jury instruction or in arguments by counsel.' " Shafer v. South Carolina, 532 U. S. 36, 39 (2001) (quoting Ramdass v. Angelone, 530 U. S. 156, 165 (2000) (plurality opinion)). In the decision below, the Arizona Supreme Court found that the State had put petitioner Shawn Patrick Lynch's future dangerousness at issue during his capital sentencing proceeding and acknowledged that Lynch's only alternative sentence to death was life imprisonment without parole. 238 Ariz. 84, 103, 357 P. 3d 119, 138 (2015). But the court nonetheless concluded that Lynch had no right to inform the jury of his parole ineligibility. Ibid. The judgment is reversed. A jury convicted Lynch of first-degree murder, kidnapping, armed robbery, and burglary for the 2001 killing of James Panzarella. The State sought the death penalty. Before Lynch's penalty phase trial began, Arizona moved to prevent his counsel from informing the jury that the only alternative sentence to death was life without the possibility of parole. App. K to Pet. for Cert. The court granted the motion. Lynch's first penalty phase jury failed to reach a unanimous verdict. A second jury was convened and sentenced Lynch to death. On appeal, the Arizona Supreme Court vacated the sentence because the jury instructions improperly described Arizona law. The court did not address Lynch's alternative argument that the trial court had violated Simmons. On remand, a third penalty phase jury sentenced Lynch to death. The Arizona Supreme Court affirmed, this time considering and rejecting Lynch's Simmons claim. The court agreed that, during the third penalty phase, "[t]he State suggested . . . that Lynch could be dangerous." 238 Ariz., at 103, 357 P. 3d, at 138. The court also recognized that Lynch was parole ineligible: Under Arizona law, "parole is available only to individuals who committed a felony before January 1, 1994," and Lynch committed his crimes in 2001. Ibid. (citing Ariz. Rev. Stat. Ann. §41-1604.09(I)). Nevertheless, while "[a]n instruction that parole is not currently available would be correct," the court held that "the failure to give the Simmons instruction was not error." 238 Ariz., at 103, 357 P. 3d, at 138. That conclusion conflicts with this Court's precedents. In Simmons, as here, a capital defendant was ineligible for parole under state law. 512 U. S., at 156 (plurality opinion). During the penalty phase, the State argued that the jurors should consider the defendant's future dangerousness when determining the proper punishment. Id., at 157. But the trial court refused to permit defense counsel to tell the jury that the only alternative sentence to death was life without parole. Id., at 157, 160. The Court reversed, reasoning that due process entitled the defendant to rebut the prosecution's argument that he posed a future danger by informing his sentencing jury that he is parole ineligible. Id., at 161-162; id., at 178 (O'Connor, J., concurring in judgment). The Court's opinions reiterated that holding in Ramdass, Shafer, and Kelly v. South Carolina, 534 U. S. 246 (2002). The Arizona Supreme Court thought Arizona's sentencing law sufficiently different from the others this Court had considered that Simmons did not apply. It relied on the fact that, under state law, Lynch could have received a life sentence that would have made him eligible for "release" after 25 years. 238 Ariz., at 103-104, 357 P. 3d, at 138-139; §13-751(A). But under state law, the only kind of release for which Lynch would have been eligible — as the State does not contest — is executive clemency. See Pet. for Cert. 22; 238 Ariz., at 103-104, 357 P. 3d, at 138-139. And Simmons expressly rejected the argument that the possibility of clemency diminishes a capital defendant's right to inform a jury of his parole ineligibility. There, South Carolina had argued that the defendant need not be allowed to present this information to the jury "because future exigencies," including "commutation [and] clemency," could one day "allow [him] to be released into society." 512 U. S., at 166 (plurality opinion). The Court disagreed: "To the extent that the State opposes even a simple parole-ineligibility instruction because of hypothetical future developments, the argument has little force." Ibid.; id., at 177 (opinion of O'Connor, J.) (explaining that the defendant had a right "to bring his parole ineligibility to the jury's attention" and that the State could respond with "truthful information regarding the availability of commutation, pardon, and the like"). The State responds that Simmons " 'applies only to instances where, as a legal matter, there is no possibility of parole.' " Brief in Opposition 11 (quoting Ramdass, 530 U. S., at 169 (plurality opinion)). Notwithstanding the fact that Arizona law currently prevents all felons who committed their offenses after 1993 from obtaining parole, 238 Ariz., at 103, 357 P. 3d, at 138, Arizona reasons that "nothing prevents the legislature from creating a parole system in the future for which [Lynch] would have been eligible had the court sentenced him to life with the possibility of release after 25 years." Brief in Opposition 12. This Court's precedents also foreclose that argument. Simmons said that the potential for future "legislative reform" could not justify refusing a parole-ineligibility instruction. 512 U. S., at 166 (plurality opinion). If it were otherwise, a State could always argue that its legislature might pass a law rendering the defendant parole eligible. Accordingly, as this Court later explained, "the dispositive fact in Simmons was that the defendant conclusively established his parole ineligibility under state law at the time of his trial." Ramdass, supra, at 171 (plurality opinion). In this case, the Arizona Supreme Court confirmed that parole was unavailable to Lynch under its law. Simmons and its progeny establish Lynch's right to inform his jury of that fact. The petition for writ of certiorari and the motion for leave to proceed in forma pauperis are granted. The judgment of the Arizona Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered.Thomas, J., dissenting 578 U. S. ____ (2016)SHAWN PATRICK LYNCH v. ARIZONAon petition for writ of certiorari to the supreme court of arizonaNo. 15-8366. Decided May 31, 2016 Justice Thomas, with whom Justice Alito joins, dissenting. Petitioner Shawn Patrick Lynch and his co-conspirator, Michael Sehwani, met their victim, James Panzarella, at a Scottsdale bar on March 24, 2001. The three went back to Panzarella's house early the next morning. Around 5 a.m., Sehwani called an escort service. The escort and her bodyguard arrived soon after. Sehwani paid her $300 with two checks from Panzarella's checkbook after spending an hour with her in the bedroom. Lynch and Sehwani then left the house with Panzarella's credit and debit cards and embarked on a spending spree. The afternoon of March 25, someone found Panzarella's body bound to a metal chair in his kitchen. His throat was slit. Blood surrounded him on the tile floor. The house was in disarray. Police discovered a hunting knife in the bedroom. A knife was also missing from the kitchen's knifeblock. And there were some receipts from Lynch and Sehwani's spending spree. Police found Lynch and Sehwani at a motel two days after the killing. They had spent the days with Panzarella's credit and debit cards buying cigarettes, matches, gas, clothing, and Everlast shoes, renting movies at one of the motels where they spent an afternoon, and making cash withdrawals. When police found the pair, Sehwani wore the Everlast shoes, and Lynch's shoes were stained with Panzarella's blood. A sweater, also stained with his blood, was in the back seat of their truck, as were Panzarella's car keys. A jury convicted Lynch of first-degree murder, kidnaping, armed robbery, and burglary, and ultimately sentenced him to death.1 But today, the Court decides that sentence is no good because the state trial court prohibited the parties from telling the jury that Arizona had abolished parole. Ante, at 1; see Ariz. Rev. Stat. Ann. §41-1604.09(I) (1999). The Court holds that this limitation on Lynch's sentencing proceeding violated Simmons v. South Carolina, 512 U. S. 154 (1994). Under Simmons, "[w]here the State puts the defendant's future dangerousness in issue, and the only available alternative sentence to death is life imprisonment without possibility of parole, due process entitles the defendant to inform the capital sentencing jury — by either argument or instruction — that he is parole ineligible." Id., at 178 (O'Connor, J., concurring in judgment). Today's summary reversal perpetuates the Court's error in Simmons. See Kelly v. South Carolina, 534 U. S. 246, 262 (2002) (Thomas, J., dissenting); Shafer v. South Carolina, 532 U. S. 36, 58 (2001) (Thomas, J., dissenting). As in Simmons, it is the "sheer depravity of [the defendant's] crimes, rather than any specific fear for the future, which induced the . . . jury to conclude that the death penalty was justice." 512 U. S., at 181 (Scalia, J., dissenting). In Simmons, for example, the defendant beat and raped three elderly women — one of them his own grandmother — before brutally killing a fourth. See ibid. The notion that a jury's decision to impose a death sentence "would have been altered by information on the current state of the law concerning parole (which could of course be amended) is . . . farfetched," to say the least. Id., at 184. Worse, today's decision imposes a magic-words requirement. Unlike Simmons, in which there was "no instruction at all" about the meaning of life imprisonment except that the term should be construed according to its " '[plain] and ordinary meaning,' " id., at 160, 166 (plurality opinion), here there was an instruction about the nature of the alternative life sentences that the trial court could impose:"If your verdict is that the Defendant should be sentenced to death, he will be sentenced to death. If your verdict is that the Defendant should be sentenced to life, he will not be sentenced to death, and the court will sentence him to either life without the possibility of release until at least 25 calendar years in prison are served, or 'natural life,' which means the Defendant would never be released from prison." App. S to Pet. for Cert. 18.That instruction parallels the Arizona statute governing Lynch's sentencing proceedings. That statute prescribed that defendants not sentenced to death could receive either a life sentence with the possibility of early release or a "natural life" sentence: "If the court does not sentence the defendant to natural life, the defendant shall not be released on any basis until the completion of the service of twenty-five calendar years," but a defendant sentenced to "natural life" will "not be released on any basis for the remainder of the defendant's natural life." Ariz. Rev. Stat. Ann. §13-703(A) (2001). Even though the trial court's instruction was a correct recitation of Arizona law, the Court holds that Simmons requires more. The Court laments that (at least for now) Arizona's only form of early release in Arizona is executive clemency. Ante, at 3. So the Court demands that the Arizona instruction specify that "the possibility of release" does not (at least for now) include parole. Due process, the Court holds, requires the court to tell the jury that if a defendant sentenced to life with the possibility of early release in 25 years were to seek early release today, he would be ineligible for parole under Arizona law. Ante, at 3-4. Nonsense. The Due Process Clause does not compel such "micromanage[ment of] state sentencing proceedings." Shafer, supra, at 58 (Thomas, J., dissenting). Today's decision — issued without full briefing and argument and based on Simmons, a fractured decision of this Court that did not produce a majority opinion — is a remarkably aggressive use of our power to review the States' highest courts. The trial court accurately told the jury that Lynch could receive a life sentence with or without the possibility of early release, and that should suffice. I respectfully dissent.FOOTNOTESFootnote 1 Sehwani ultimately pleaded guilty to first-degree murder and theft and received a sentence of natural life without the possibility of early release plus one year. See 225 Ariz. 27, 33, n. 4, 234 P. 3d 595, 601, n. 4 (2010).FOOTNOTESFootnote 1 Sehwani ultimately pleaded guilty to first-degree murder and theft and received a sentence of natural life without the possibility of early release plus one year. See 225 Ariz. 27, 33, n. 4, 234 P. 3d 595, 601, n. 4 (2010).

Where petitioner had been convicted of felony-murder based on his companion's killing of a victim during the course of an armed robbery, the Double Jeopardy Clause of the Fifth Amendment barred a separate prosecution of petitioner for the lesser crime of robbery with firearms, since conviction of the greater crime of murder could not be had without conviction of the lesser crime. Certiorari granted; 555 P.2d 76, reversed.PER CURIAM.A clerk in a Tulsa, Okla., grocery store was shot and killed by a companion of petitioner in the course of a robbery of the store by the two men. Petitioner was convicted of felony-murder in Oklahoma State court. The opinion of the Oklahoma Court of Criminal Appeals in this case states that "[i]n a felony murder case, the proof of the underlying felony [here robbery with firearms] is needed to prove the intent necessary for a felony murder conviction." 555 P.2d 76, 80-81 (1976). Petitioner nevertheless was thereafter brought to trial and convicted on a separate information charging the robbery with firearms, after denial of his motion to dismiss on the ground that this prosecution violated the Double Jeopardy Clause of the Fifth Amendment because he had been already convicted of the offense in the felony-murder trial. The Oklahoma Court of Criminal Appeals affirmed.When, as here, conviction of a greater crime, murder, cannot be had without conviction of the lesser crime, robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser crime after conviction of the greater one.* In re Nielsen, ; cf. Brown v. Ohio, . "[A] person [who] has been tried and convicted for a crime which has various incidents included in it, ... cannot be a second time tried for one of those incidents without being twice put in jeopardy for the same offence." In re Nielsen, supra, at 188. See also Waller v. Florida, ; Grafton v. United States, .The motion for leave to proceed in forma pauperis is granted, the petition for writ of certiorari is granted, and the judgment of the Court of Criminal Appeals is Reversed.[Footnote *] The State conceded in its response to the petition for certiorari that "in the Murder case, it was necessary for all the ingredients of the underlying felony of Robbery with Firearms to be proved ... ." Brief in Opposition 4.MR. JUSTICE BRENNAN, with whom MR. JUSTICE MARSHALL joins, concurring.I join the Court's opinion but in any event would reverse on a ground not addressed by the Court, namely, that the State did not prosecute the two informations in one proceeding. I adhere to the view that the Double Jeopardy Clause of the Fifth Amendment, applied to the States through the Fourteenth Amendment, requires the prosecution in one proceeding, except in extremely limited circumstances not present here, of "all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction." Ashe v. Swenson, (BRENNAN, J., concurring). See Thompson v. Oklahoma, (BRENNAN, J., dissenting from denial of certiorari), and cases collected therein.

1. The Republic of China sued an American bank in a Federal District Court of recover $200,000 deposited in the bank by a governmental agency of the Republic. The bank interposed counterclaims seeking an affirmative judgment for $1,634,432 on defaulted treasury notes of the Republic. The Republic pleaded sovereign immunity. Held: The counterclaims should not have been dismissed. Pp. 357-366. (a) Having been recognized as a sovereign by the Executive, the Republic of China and its governmental agencies enjoy a foreign sovereign's immunities to the same extent as any other country recognized by the United States. p. 358. (b) This case does not involve an attempt to bring a recognized foreign government into court as a defendant. A foreign government is invoking our law but resisting a claim against it which fairly would curtail its recovery. Pp. 361-362. (c) The contention that the counterclaim here involved is not based on the subject matter of the Republic's suit does not require a different result. Pp. 364-365.2. That the bank, on certiorari, dropped its demand for affirmative relief did not reduce the counterclaim to a mere defense or deprive this Court of jurisdiction. P. 358, n. 2. 208 F.2d 627, reversed and remanded.Wm. Harvey Reeves argued the cause for petitioner. With him on the brief was Chauncey B. Garver.Louis J. Gusmano argued the cause for respondents. With him on a brief for the Republic of China were Cletus Keating and Robert E. Kline, Jr. MR. JUSTICE FRANKFURTER delivered the opinion of the Court.The Shanghai-Nanking Railway Administration, an official agency of respondent Republic of China, established a $200,000 deposit account in 1948 with the New York head office of petitioner National City Bank of New York. Subsequently, respondent sought to withdraw the funds, but petitioner refused to pay, and respondent brought suit in Federal District Court under 48 Stat. 184, as amended, 12 U.S.C. 632.In addition to various defenses, petitioner interposed two counterclaims seeking an affirmative judgment for $1,634,432 on defaulted Treasury Notes of respondent owned by petitioner.1 After a plea of sovereign immunity, the District Court dismissed the counterclaims, 108 F. Supp. 766, and entered judgment on them pursuant to Rule 54 (b), Federal Rules of Civil Procedure. Petitioner appealed, and while the appeal was pending sought leave from the District Court to amend the counterclaims by denominating them setoffs and including additional data. The District Court denied leave. 14 F. R. D. 186. The Court of Appeals for the Second Circuit affirmed the dismissal and the denial on the ground that the counterclaims were not based on the subject matter of respondent's suit (whether they be treated as requests for affirmative relief or as setoffs) and, therefore, it would be an invasion of respondent's sovereign immunity for our courts to permit them to be pursued. 208 F.2d 627. Because of the importance of the question and its first appearance in this Court, we granted certiorari.2 .The status of the Republic of China in our courts is a matter for determination by the Executive and is outside the competence of this Court. Accordingly, we start with the fact that the Republic and its governmental agencies enjoy a foreign sovereign's immunities to the same extent as any other country duly recognized by the United States. See Guaranty Trust Co. v. United States, .The freedom of a foreign sovereign from being haled into court as a defendant has impressive title-deeds. Very early in our history this immunity was recognized, De Moitez v. The South Carolina, Bee 422, 17 Fed. Cas. 574, No. 9,697 (Admiralty Court of Pa., 1781, Francis Hopkinson, J.), and it has since become part of the fabric of our law. It has become such solely through adjudications of this Court. Unlike the special position accorded our States as party defendants by the Eleventh Amendment, the privileged position of a foreign state is not an explicit command of the Constitution. It rests on considerations of policy given legal sanction by this Court. To be sure, the nonsuability of the United States without its consent is likewise derived from considerations of policy. But these are of a different order from those that give a foreign nation such immunity. It is idle to repeat or rehearse the different considerations set forth in Mr. Chief Justice Marshall's classic opinion in The Schooner Exchange v. M'Faddon, 7 Cranch 116.But even the immunity enjoyed by the United States as territorial sovereign is a legal doctrine which has not been favored by the test of time. It has increasingly been found to be in conflict with the growing subjection of governmental action to the moral judgment. A reflection of this steady shift in attitude toward the American sovereign's immunity is found in such observations in unanimous opinions of this Court as "Public opinion as to the peculiar rights and preferences due to the sovereign has changed," Davis v. Pringle, ; "There is no doubt an intermittent tendency on the part of governments to be a little less grasping than they have been in the past ...," White v. Mechanics Securities Corp., ; "... the present climate of opinion ... has brought governmental immunity from suit into disfavor ...," Keifer & Keifer v. Reconstruction Finance Corp., . This chilly feeling against sovereign immunity began to reflect itself in federal legislation in 1797.3 At that early day Congress decided that when the United States sues an individual, the individual can set off all debts properly due him from the sovereign. And because of the objections to ad hoc legislative allowance of private claims, Congress a hundred years ago created the Court of Claims,4 where the United States, like any other obligor, may affirmatively be held to its undertakings. This amenability to suit has become a commonplace in regard to the various agencies which carry out "the enlarged scope of government in economic affairs," Keifer & Keifer v. Reconstruction Finance Corp., supra, at 390. The substantive sweep of amenability to judicial process has likewise grown apace.5 The outlook and feeling thus reflected are not merely relevant to our problem. They are important. The claims of dominant opinion rooted in sentiments of justice and public morality are among the most powerful shaping-forces in lawmaking by courts. Legislation and adjudication are interacting influences in the development of law. A steady legislative trend, presumably manifesting a strong social policy, properly makes demands on the judicial process. See James M. Landis, Statutes and the Sources of Law, in Harvard Legal Essays (1934), p. 213 et seq.; Harlan F. Stone, The Common Law in the United States, 50 Harv. L. Rev. 4, 13-16.More immediately touching the evolution of legal doctrines regarding a foreign sovereign's immunity is the restrictive policy that our State Department has taken toward the claim of such immunity. As the responsible agency for the conduct of foreign affairs, the State Department is the normal means of suggesting to the courts that a sovereign be granted immunity from a particular suit. Ex parte Republic of Peru, . Its failure or refusal to suggest such immunity has been accorded significant weight by this Court. See Compania Espanola de Navigacion Maritima, S. A. v. The Navemar, ; Republic of Mexico v. Hoffman, . And this for the reason that a major consideration for the rule enunciated in The Schooner Exchange is the embarrassing consequences which judicial rejection of a claim of sovereign immunity may have on diplomatic relations. Recently the State Department has pronounced broadly against recognizing sovereign immunity for the commercial operations of a foreign government, 26 Dept. State Bull. 984 (1952), despite the fact that this Court thirty years earlier rejected the weighty opinion of Judge Mack in The Pesaro, 277 F. 473 (see, also his opinion in The Gloria, 286 F. 188), for differentiating between commercial and war vessels of governments. Berizzi Bros. Co. v. Steamship Pesaro, .And so we come to the immediate situation before us. The short of the matter is that we are not dealing with an attempt to bring a recognized foreign government into one of our courts as a defendant and subject it to the rule of law to which nongovernmental obligors must bow. We have a foreign government invoking our law but resisting a claim against it which fairly would curtail its recovery.6 It wants our law, like any other litigant, but it wants our law free from the claims of justice. It becomes vital, therefore, to examine the extent to which the considerations which led this Court to bar a suit against a sovereign in The Schooner Exchange are applicable here to foreclose a court from determining, according to prevailing law, whether the Republic of China's claim against the National City Bank would be unjustly enforced by disregarding legitimate claims against the Republic of China. As expounded in The Schooner Exchange, the doctrine is one of implied consent by the territorial sovereign to exempt the foreign sovereign from its "exclusive and absolute" jurisdiction, the implication deriving from standards of public morality, fair dealing, reciprocal self-interest, and respect for the "power and dignity" of the foreign sovereign.7 (a) The Court of Claims is available to foreign nationals (or their governments) on a simple condition: that the foreign national's government can be sued in its courts on claims by our citizens.8 An American or a Chinese9 could sue in the Court of Claims for default on a United States bond, 28 U.S.C. 1491 (4), or could counterclaim - to the extent of the Government's claim - in a suit by the United States in any court, 28 U.S.C. 2406; see United States v. Wilkins, 6 Wheat. 135; cf. United States v. Bank of the Metropolis, 15 Pet. 377; United States v. United States F. & G. Co., . Thus it seems only fair to subject a foreign sovereign, coming into our courts by its own choice, to a liability substantially less than our own Government long ago willingly assumed.(b) The Republic of China is apparently suable on contract claims in its own courts,10 and Americans have the same rights as Chinese in those courts.11 No parochial bias is manifest in our courts which would make it an affront to the "power and dignity" of the Republic of China for us to subject it to counterclaims in our courts when it entertains affirmative suits in its own. Decisions of the Chinese courts which seem to grant absolute immunity from direct suit to foreign sovereign12 are inapposite in this context and in light of our State Department's reluctance to raise the defense of sovereign immunity in foreign courts, see 26 Dept. State Bull. 984, 985 (1952); cf. 41 Stat. 527, 46 U.S.C. 747.(c) Respondent urges that fiscal management falls within the category of immune operations of a foreign government as defined by the State Department's 1952 pronouncement. This is not to be denied, but it is beside the point. A sovereign has freely come as a suitor into our courts; our State Department neither has been asked nor has it given the slightest intimation that in its judgment allowance of counterclaims in such a situation would embarrass friendly relations with the Republic of China.(d) It is recognized that a counterclaim based on the subject matter of a sovereign's suit is allowed to cut into the doctrine of immunity.13 This is proof positive that the doctrine is not absolute, and that considerations of fair play must be taken into account in its application. But the limitation of "based on the subject matter" is too indeterminate, indeed too capricious, to mark the bounds of the limitations on the doctrine of sovereign immunity. There is great diversity among courts on what is and what is not a claim "based on the subject matter of the suit" or "growing out of the same transaction." See Clark, Code Pleading (2d ed.), 653-660; cf. United States v. National City Bank of New York, 83 F.2d 236 (C. A. 2d Cir.). No doubt the present counterclaims cannot fairly be deemed to be related to the Railway Agency's deposit of funds except insofar as the transactions between the Republic of China and the petitioner may be regarded as aspects of a continuous business relationship. The point is that the ultimate thrust of the consideration of fair dealing which allows a setoff or counterclaim based on the same subject matter reaches the present situation. The considerations found controlling in The Schooner Exchange are not here present, and no consent to immunity can properly be implied. This conclusion was anticipated by Mr. Justice Washington on circuit four years after he had been of the Court which decided The Schooner Exchange.14 The judgment of the Court of Appeals must be reversed and the case remanded to the District Court with directions to reinstate the counterclaims and for further proceedings not inconsistent with this opinion. Reversed.MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case.

In sentencing a youth offender as an adult under other applicable penal statutes, 5010 (d) of the Federal Youth Corrections Act requires a federal district court to "find" that the offender would not benefit from treatment under the Act, but does not require that such "finding" be accompanied by supporting reasons. Pp. 431-444. (a) Section 5010 (d)'s requirement of a "no benefit" finding is not to be read as a substantive standard that must be satisfied to support a sentence outside the Act, for such a reading would not comport with the intent of the Act, as manifested by its legislative history, to increase federal trial judges' sentencing options, or with the traditional doctrine that the sentencing function is exclusively vested in the trial court and is not reviewable if within the terms of the statute. It therefore follows that requiring a statement of supporting reasons to accompany a "no benefit" finding would limit the trial court's sentencing discretion since it would only serve to facilitate appellate review of sentencing, contrary to the intent of the Act. Pp. 436-442. (b) Section 5010 (d)'s "no benefit" finding requirement was designed to insure that the sentencing judge deliberately exercised discretion in choosing not to commit a youth offender to treatment under the Act, such a finding making it clear that the judge was not only aware of the Act's existence but also of the youth offender's eligibility for treatment thereunder. Once it is made clear that the judge has considered the option of the Act's treatment and rejected it, no appellate review is warranted. Pp. 442-443. 484 F.2d 849, reversed and remanded.BURGER, C. J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J., filed an opinion concurring in the judgment, in which DOUGLAS, BRENNAN, and STEWART, JJ., joined, post, p. 445. Robert H. Friebert, by appointment of the Court, , argued the cause and filed a brief for petitioner.Gerald P. Norton argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Petersen, Deputy Solicitor General Frey, Jerome M. Feit, and Joseph S. Davies, Jr.* [Footnote *] Patricia M. Wald, Daniel A. Rezneck, James F. Flug, Robert Plotkin, and Alvin J. Bronstein filed briefs for the National Legal Aid and Defender Assn. et al. as amici curiae urging reversal.MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari, , to resolve a conflict in the Circuits concerning whether, in sentencing a youth offender under other applicable penal statutes, 5010 (d) of the Federal Youth Corrections Act, 18 U.S.C. 5005 et seq., requires a federal district court first to make an explicit finding, supported by reasons on the record, that the offender would not benefit from treatment under subsection (b) or (c) of 5010. The Court of Appeals held that such a finding may be implied from the record, 484 F.2d 849 (CA7 1973). Three Circuits have taken that position,1 and three Circuits have required an explicit finding accompanied by supporting reasons.2 We conclude that while an express finding of no benefit must be made on the record, the Act does not require that it be accompanied by supporting reasons. The judgment of the Court of Appeals is therefore reversed, and the case is remanded to the District Court for further proceedings.IOn October 19, 1971, a special agent of the Federal Bureau of Narcotics and Dangerous Drugs made arrangements with petitioner's codefendant, whose case is not before this Court, to purchase approximately 1,000 tablets of lysergic acid diethylamide (LSD) the following day. At the appointed hour on October 20, 1971, the undercover agent was shown approximately 1,000 LSD tablets in the possession of petitioner's codefendant, who transferred the tablets to the agent. The exhibition and transfer took place in an automobile being driven by petitioner. After the tablets were transferred to the agent but before money had changed hands, petitioner and his codefendant were arrested. The complaint upon which the arrest warrant for petitioner issued charged him with knowingly and intentionally possessing approximately 1,000 tablets of LSD, in violation of 18 U.S.C. 2 and 21 U.S.C. 844 (a).3 Subsequent to petitioner's release on his own recognizance, his counsel informed the District Court that petitioner intended to plead guilty to the charge, and requested the completion of a presentence report prior to the plea, as authorized by Fed. Rule Crim. Proc. 32 (c).On February 14, 1972, proceedings were had in the District Court upon the filing of an information, arraignment, plea, and sentence. The Government filed a one-count information charging petitioner and his codefendant with a misdemeanor offense under 18 U.S.C. 2 and 21 U.S.C. 844 (a). The Government informed the court that the maximum sentence petitioner and his codefendant, who were first offenders under 844 (a), could receive was one year in prison, a fine of $5,000, or both; the court was also advised that since petitioner might have been under the age of 26, see n. 9, infra, he "may also be subject to the Federal Youth Corrections Act."4 App. 6. Petitioner, who was 19 years old at the time of the proceeding and had had no prior criminal record, pleaded guilty, as did his codefendant. After inquiry as prescribed by Fed. Rule Crim. Proc. 11 to determine whether there was a basis in fact for petitioner's guilty plea, and whether it was entered voluntarily with understanding of its nature and consequences,5 the District Court accepted the plea. Since petitioner desired to be sentenced at this proceeding, the District Court recessed to consider the presentence report, which petitioner's counsel had already read. After recess and before sentencing, petitioner was given his right to allocution, and petitioner's counsel requested the court that petitioner "be placed ... on probation under the Youth Corrections Act." App. 13. See n. 4, supra. Petitioner then received a split sentence which remitted him to the custody of the Attorney General for one year, to serve 90 days' confinement "in a jail-type or treatment" institution, although the judgment mentions only a "jail-type" institution; the execution of the remainder of the sentence was suspended and petitioner was placed on probation for two years upon release from custody. 18 U.S.C. 3651.6 At no time during the proceeding, including sentencing, did the District Court make any reference to the Federal Youth Corrections Act.On May 1, 1972, after having filed numerous other post-conviction motions for relief, petitioner filed the motion at issue here, seeking relief pursuant to Fed. Rules Crim. Proc. 32 (d) and 35, and 28 U.S.C. 2255, on two grounds. The first alleged that his guilty plea was not made understandingly; that issue is not before us. See n. 5, supra. The second alleged that the District Court was without jurisdiction to impose the sentence given because the court failed to make a finding that petitioner would not derive benefit from treatment under 5010 (b) or (c), as assertedly required by 5010 (d). See n. 4, supra. The District Court held an evidentiary hearing to consider this motion, as well as other motions pending at that time. All were denied without opinion. The District Court stated at the post-conviction hearing that the Act did not require an affirmative finding that petitioner would not benefit from treatment thereunder before the court could sentence him under other applicable penalty provisions; the court concluded that in committing petitioner for one year under a split sentence "the [District] Court impliedly [held] the Youth Corrections Act not applicable." App. 45.The Court of Appeals affirmed, rejecting the view that trial judges must make an explicit finding that youth offenders would not benefit from treatment under the Act. The Court of Appeals held that such a determination may be implied from the record as a whole and that the imposition of the split sentence upon petitioner after his counsel had raised the possibility of sentencing under that Act satisfied 5010 (d). 484 F.2d, at 851.II The Federal Youth Corrections Act The sole issue in this case is the validity of the sentence imposed by the District Court. Petitioner contends that before any adult sentence may be imposed 5010 (d) requires, first, that the sentencing judge find explicitly that the convicted defendant would receive no benefit from treatment under the Act and, second, that the sentencing judge must explain the reasons for his finding. We begin with the general proposition that once it is determined that a sentence is within the limitations set forth in the statute under which it is imposed, appellate review is at an end.7 Gore v. United States, ; Townsend v. Burke, ; Blockburger v. United States, . Our task, therefore, is to determine whether the sentence imposed here was permitted under 5010 (d) of the Act.The Federal Youth Corrections Act has been accurately described as the most comprehensive federal statute concerned with sentencing. United States v. CoefieldApp. D.C. 205, 209, 476 F.2d 1152, 1156 (1973). The Act is in substantial part an outgrowth of recommendations made by the Judicial Conference of the United States more than 30 years ago.8 The principles and procedures contained in the Conference recommendations were in turn largely based on those developed since 1894 for a system of treatment of young offenders in England, known as the Borstal system. See Criminal Justice Act of 1948, 11 & 12 Geo. 6, c. 58, and Criminal Justice Act of 1961, 9 & 10 Eliz. 2, c. 39. Statistics available at the time of the Conference study revealed the two principal motivating factors behind the enactment of the Act: first, the period of life between 16 and 22 years of age was found to be the time when special factors operated to produce habitual criminals. Second, then-existing methods of treating criminally inclined youths were found inadequate in avoiding recidivism. H. R. Rep. No. 2979, 81st Cong., 2d Sess., 2-3 (1950) (hereinafter H. R. Rep. No. 2979). The Act was thus designed to provide a better method for treating young offenders convicted in federal courts in that vulnerable age bracket, to rehabilitate them and restore normal behavior patterns. Ibid.To accomplish this objective, federal district judges were given two new alternatives to add to the array of sentencing options previously available to them, see n. 9, infra: first, they were enabled to commit an eligible offender to the custody of the Attorney General for treatment under the Act. 18 U.S.C. 5010 (b) and (c). Second, if they believed an offender did not need commitment, they were authorized to place him on probation under the Act. 18 U.S.C. 5010 (a). If the sentencing court chose the first alternative, the youth offender would be committed to the program of treatment created by the Act.The objective of these options represented a departure from traditional sentencing, and focused primarily on correction and rehabilitation. All persons under 22 years of age at the time of conviction were made eligible for probation or treatment under the Act,9 the latter defined as "corrective and preventive guidance and training designed to protect the public by correcting [their] antisocial tendencies." 18 U.S.C. 5006 (e) and (g). To implement the program of treatment for youth offenders committed under the Act, a Youth Correction Division was created under the Board of Parole which, in conjunction with the Bureau of Prisons and the Probation Service, operates to provide the unique features of the Act's program. 18 U.S.C. 5005.An important element of the program was that once a person was committed for treatment under the Act, the execution of sentence was to fit the person, not the crime for which he was convicted. Classification agencies were to be established by the Director of the Bureau of Prisons to receive and study the person committed and make recommendations to the Director as to appropriate treatment. 18 U.S.C. 5014, 5015. Further, the range of treatment available was made broad to provide maximum flexibility. The Director was authorized both to adapt numerous public facilities, and to contract with public or private agencies, in order to provide institutional treatment which the Director could vary according to the committed person's progress or lack of it. 18 U.S.C. 5011, 5015. An integral part of the treatment program was the segregation of the committed persons, insofar as practicable, so as to place them with those similarly committed, to avoid the influence of association with the more hardened inmates serving traditional criminal sentences. 18 U.S.C. 5011.In addition to institutional treatment, the Division was empowered to order conditional release under supervision at any time of those committed under the Act, with federal probation officers providing the supervision.10 18 U.S.C. 5007, 5017, 5019. Conditional release was mandatory after a period of time fixed by the statutory formula. 18 U.S.C. 5017. See n. 4, supra. The Division was further authorized to order the unconditional discharge of committed persons after a fixed period of treatment, and was required unconditionally to discharge them within a period also fixed by statutory formula. 18 U.S.C. 5017. A powerful tool available to the Division was its discretion to discharge committed persons unconditionally before it was required to do so, for upon such discharge the conviction upon which the sentence rested would be automatically set aside. 18 U.S.C. 5021 (a). See n. 5, supra. Similarly, if the sentencing judge chose the second alternative created by the Act, i. e., placement of the youth offender on probation under its provisions, the judge himself could exercise his discretion to discharge the offender from probation unconditionally. 18 U.S.C. 5021 (b). See n. 6, supra. This, too, would result in the automatic setting aside of the offender's conviction. 18 U.S.C. 5021 (b).The foregoing describes the new options of treatment and probation made available to the federal sentencing court under the Act.11 Our concern is not with the operation of these alternatives, but with the decision of the court to employ them, for the Act also preserved the power of trial judges to sentence youth offenders under "any other applicable penalty provision." It is to the question of when a judge may sentence a youth offender outside the Act that we now turn.III Sentencing Discretion Under the Act(A)The language affecting the sentencing role of the judge under the Act is found in 5010 (d), which tells us: "If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c), then the court may sentence the youth offender under any other applicable penalty provision." Our concern is with the effect of the requirement of a "no benefit" finding on the judge's sentencing discretion.The legislative history clearly indicates that the Act was meant to enlarge, not restrict, the sentencing options of federal trial courts in order to permit them to sentence youth offenders for rehabilitation of a special sort. "The proposed legislation is designed to make available for the discretionary use of the Federal judges a system for the sentencing and treatment of [youth offenders] that will promote the rehabilitation of those who in the opinion of the sentencing judge show promise of becoming useful citizens ... ." H. R. Rep. No. 2979, p. 1. (Emphasis added.) "The purpose of the proposed legislation is to provide a new alternative sentencing and treatment procedure for [youth offenders]." S. Rep. No. 1180, 81st Cong., 1st Sess., 1 (1949) (hereinafter S. Rep. No. 1180). (Emphasis added.) Thus, apart from the discretion vested in administrative agencies for treatment of those committed under the Act, as described in Part II, the Act was intended to broaden the scope of judicial sentencing discretion to include the alternatives of treatment or probation thereunder.The Act was a product of studies made by a committee of federal judges under the auspices of the Judicial Conference of the United States. The views of the sponsors as to the effect of the Act on the sentencing discretion of the trial courts are thus of particular importance, and they uniformly support the view that the Act was intended to preserve the unfettered sentencing discretion of federal district judges. Most pertinent is the statement made by the Chairman of the Judicial Conference special committee appointed to study punishment for crime, see n. 8, supra, Chief Judge John J. Parker, who testified before the Subcommittee of the Senate Judiciary Committee, which conducted the only hearings held on the bill (S. 2609) enacted as the Federal Youth Corrections Act. Judge Parker stated:"[T]he act ... does not interfere with the power of the judge [with respect to sentencing youth offenders] but gives him merely an alternative method of treatment of those people... . He may still give the youthful offender the punishment prescribed by existing statutes, there is nothing in the bill that prevents that. All that the bill does is to provide that if in his judgment and discretion, he thinks that the offender before the court is one that can be treated with advantage under this bill, he can sentence him under this bill instead of under the existing law. ... . . "... I do not see any possible objection [to the Act]. They say that there are some of these fellows that ought to be given serious punishment notwithstanding their being young and it [the Act] does not prevent their being given serious punishment. Nothing prevents a man from getting 25 years punishment if he deserves it. Nothing prevents his being executed if he deserves such sentence." Hearings on S. 1114 and S. 2609 before a Subcommittee of the Senate Committee on the Judiciary, 81st Cong., 1st Sess., 43-44 (1949) (hereinafter Hearings). To the same effect is the statement made by Circuit Judge Orie L. Phillips, the Chairman of the Conference subcommittee which gave particular attention to the treatment of youth offenders. See n. 8, supra. In response to the statement of Senator Kilgore, sponsor of S. 2609, that the bill "takes nothing" (in terms of sentencing) "away from the court," Judge Phillips replied: "That is correct; it is purely optional." Hearings 69. Earlier Judge Phillips had said of the bill: "That is merely a flexibility and it is not a command that he send the boys up," to which Senator Kilgore replied: "I agree with you on that ... ." Id., at 67. To the extent other testimony and the debates addressed the question of sentencing discretion under the Act, they in-invariably reflected the same view,12 as did the House Report, quoted above, and the Department of Justice, which recommended enactment of S. 2609 and noted that the bill "would not deprive the court of any of its present functions as to sentencing." S. Rep. No. 1180, pp. 10-11. The Senate Report's language was identical to that of the Department of Justice.13 Id., at 1. The legislative history of the Act confirms the conclusion that Congress did not intend to alter or circumscribe the sentencing discretion of federal district judges by requiring that any substantive standard be met before the imposition of sentence. There is virtual unanimity of opinion in the legislative history that the Act was intended to increase the sentencing options of federal trial judges, rather than to limit the exercise of their discretion whether to employ the newly created options.To construe 5010 (d)'s requirement of a "no benefit" finding to circumscribe that discretion would be incompatible with a clear congressional intent; such a construction would also be at odds with traditional sentencing doctrine. The intent of Congress was in accord with long-established authority in the United States vesting the sentencing function exclusively in the trial court.14 "If there is one rule in the federal criminal practice which is firmly established, it is that the appellate court has no control over a sentence which is within the limits allowed by a statute." Gurera v. United States, 40 F.2d 338, 340-341 (CA8 1930). See Gore v. United States, ; Townsend v. Burke, ; Blockburger v. United States, .The statutes referred to in this line of cases established a permissible range within which sentences could be imposed; if a judge imposed a sentence within that range, his exercise of discretion as to where within the permissible range sentence should be fixed was not subject to challenge. The authority to sentence a youth offender under "any other applicable penalty provision" is expressly reserved to federal trial courts by 5010 (d), and thus is within the permissible range of sentences which may be imposed under the Act. The "no benefit" finding required by the Act is not to be read as a substantive standard which must be satisfied to support a sentence outside the Act, for such a reading would subject the sentence to appellate review even though the sentence was permitted by the Act's terms, thereby limiting the sentencing court's discretion. We will not assume Congress to have intended such a departure from well-established doctrine without a clear expression to disavow it. As our review has shown, the exclusive sentencing power of district judges was acknowledged, and Congress' intention to affirm that power was clearly indicated.From our conclusion that a finding of "no benefit" was not intended to constitute a substantive standard, it follows that a sentence outside the Act need not be accompanied by a statement of reasons why the court chose such a sentence. The only purpose of such a requirement would be to facilitate appellate supervision of, and thus to limit, the trial court's sentencing discretion.15 In short, we hold that the discretion vested in a district judge under 5010 (d) is essentially the same as the traditional discretion vested in the court, for example, to impose the minimum sentence on a first offender or a larger sentence on a recidivist. If the failure of a court to sentence a particular youth offender under the Act appears "too harsh, the remedy must be afforded by act of Congress, not by judicial legislation under the guise of construction," Blockburger, supra, at 305, since "[w]hatever views may be entertained regarding severity of punishment ... [t]hese are peculiarly questions of legislative policy." Gore, supra, at 393.(B)Although the Act was not in any way intended to circumscribe the discretion of sentencing courts, it did provide a new sentencing alternative designed to prevent youthful offenders from continuing their involvement in criminal conduct after the expiration of their sentence. In the novelty of the treatment option made available, and the importance of the objective it was to serve, lies the purpose of 5010 (d)'s requirement that the court find "no benefit" before imposing a sentence other than one under 5010 (b) or (c). Although well-established doctrine bars review of the exercise of sentencing discretion, limited review is available when sentencing discretion is not exercised at all. Yates v. United States, ; United States v. Daniels, 446 F.2d 967, 972 (CA6 1971); United States v. Williams, 407 F.2d 940, 945 (CA4 1969). See also n. 7, supra. The requirement of the "no benefit" finding was designed to insure that the sentencing judge exercised his discretion in choosing not to commit a youth offender to treatment under the Act. Such a finding would make unmistakably clear that the sentencing judge was not only aware of the existence of the new Act, but also knew that the youth offender before him was eligible because of his age for the treatment it provided to accomplish its important purpose."Appellate modification of a statutorily-authorized sentence ... is an entirely different matter than the careful scrutiny of the judicial process by which the particular punishment was determined. Rather than an unjustified incursion into the province of the sentencing judge, this latter responsibility is, on the contrary, a necessary incident of what has always been appropriate appellate review of criminal cases." United States v. Hartford, 489 F.2d 652, 654 (CA5 1974). (Emphasis in original.) Once it is made clear that the sentencing judge has considered the option of treatment under the Act and rejected it, however, no appellate review is warranted.The question whether the finding of "no benefit" must be explicit or whether it may be implicit in the record of a particular case is answered by the manifest desire of Congress to assure that treatment under the Act be considered by the court as one option whenever the youth offender is eligible for it. If the finding may be implied from the record, appellate courts must go on to determine what constitutes a sufficient showing of the requisite implication. To hold that a "no benefit" finding is implicit each time a sentence under the Act is not chosen would render 5010 (d) nugatory; to hold that something more is necessary to support the inference that must be found in the record would create an ad hoc rule. Appellate courts should not be subject to the burden of case-by-case examination of the record to make sure that the sentencing judge considered the treatment option made available by the Act. Literal compliance with the Act can be satisfied by any expression that makes clear the sentencing judge considered the alternative of sentencing under the Act and decided that the youth offender would not derive benefit from treatment under the Act.This case provides an example of the problems arising when the required finding is left to implication. Counsel's references to the Act followed by the District Court's sentence indeed afford support for the argument that, by implication, the options of the Act were considered and rejected. However at the post-conviction hearing the District Court found from the record of the sentencing hearing the implication that the Act was "not applicable." It is thus unclear whether this meant the court believed petitioner to be legally ineligible for treatment under the Act - which would be error - or whether, realizing he was eligible, nevertheless deliberately opted to sentence him as an adult. An explicit finding that petitioner would not have benefited from treatment under the Act would have removed all doubt concerning whether the enlarged discretion Congress provided to sentencing courts was indeed exercised.Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to the end that the District Court conduct further proceedings consistent with this opinion. It is so ordered.

Section 93 of the New Jersey Casino Control Act requires annual registration of unions representing persons employed in casinos or casino hotels, and provides that a union may be prohibited from receiving dues from such employees and from administering any pension or welfare funds if any union officer is disqualified under the criteria contained in 86 for the licensing of various entities and persons. Those criteria include convictions for enumerated offenses, or any other offenses indicating that licensure would be inimical to the Act's policy, and association with other criminal offenders. Appellees, a union whose membership includes persons employed in casino hotels in Atlantic City and the union's president, instituted an action against certain state agencies and officials in Federal District Court, seeking declaratory and injunctive relief after state administrative proceedings had been begun to determine whether certain of the union's officers were disqualified under the criteria of 86. The court denied appellees' motion for a preliminary injunction against the state proceedings, concluding that appellees were unlikely to succeed on the merits of their claims, which included a claim that 86 and 93 were pre-empted by the National Labor Relations Act (NLRA). The state administrative proceedings resulted in a finding that certain of the union's officials were disqualified under 86, and in an order that if the officials were not removed from office the union would be barred from collecting dues from any of its members who were casino hotel employees licensed or registered under the New Jersey Act. The state agency also concluded that it would be unnecessary to invoke the additional 93 sanction of prohibiting the disqualified officials from administering pension and welfare funds. Thereafter, the Court of Appeals held, inter alia, that the District Court erred in refusing to grant the preliminary injunction, and that 93, insofar as it authorizes disqualification of elected union officials, is pre-empted by 7 of the NLRA.Held: 1. The so-called "local interests" exception to the pre-emption doctrine does not apply if the state law regulates conduct that is actually protected by federal law. Where, as here, the issue is one of an asserted substantive conflict with a federal enactment, then the relative importance to the State of its law is not material, since the federal law must prevail by direct operation of the Supremacy Clause of the Federal Constitution. Pp. 500-503. 2. Section 93 of the New Jersey Act, to the extent that it regulates the qualifications of casino industry union officials, does not actually conflict with 7 of the NLRA - which neither contains explicit pre-emptive language nor otherwise indicates a congressional intent to usurp the entire field of labor-management relations - and thus is not pre-empted by 7. Although the 1945 decision in Hill v. Florida, , interpreted 7's express guarantee of the right of employees to choose their bargaining representative as also conferring an unfettered right on employees to choose the officials of their bargaining representative, Congress has subsequently disclaimed any intent to pre-empt all state regulation which touches upon the specific right of employees to decide which individuals will serve as officials of their bargaining representatives. Specifically, 504(a) of the Labor-Management Reporting and Disclosure Act of 1959 generally prohibits persons convicted of specified crimes from serving as union officers, and 603(a) of that Act is an express disclaimer of pre-emption of state laws regulating union officials' responsibilities except where such pre-emption is expressly provided. Moreover, in approving a compact between New York and New Jersey, Congress implicitly approved New York's restrictions (similar to those involved here) on unions representing waterfront employees, which restrictions were upheld against a pre-emption challenge based on 7 of the NLRA in De Veau v. Braisted, . Thus, Congress apparently has concluded that, at least where the States are confronted with the public evils of crime, corruption, and racketeering, more stringent state regulation of the qualifications of union officials is not incompatible with the national labor policy as embodied in 7. Pp. 503-510. 3. The issue whether the dues collection sanction authorized by 93 of the New Jersey Act to effect the removal of disqualified union officials abridges the employees' separate rights under 7 of the NLRA to organize, and thus is pre-empted, cannot be decided now because of the procedural posture of this litigation. Appellees' factual allegations as to this issue were never addressed by the courts below. On remand, the District Court should make the requisite findings of fact to determine whether imposition of the dues collection ban will so incapacitate appellee union as to prevent it from performing its functions as the employees' chosen bargaining agent. Also, the issue of the validity of 93's second sanction - prohibition of a union's administration of its pension or welfare funds - cannot be decided now, despite the Court of Appeals' holding that the sanction is expressly pre-empted by provisions of the Employee Retirement Income Security Act. Because the state agency never imposed this sanction on appellee union, no concrete application of state law is presented, and the issue is hence not ripe for review. Pp. 510-512. 709 F.2d 815, vacated and remanded.O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACKMUN and REHNQUIST, JJ., joined. WHITE, J., filed a dissenting opinion, in which POWELL and STEVENS, JJ., joined, post, p. 513. BRENNAN and MARSHALL, JJ., took no part in the decision of the cases.[Footnote *] Together with No. 83-573, Danziger, Acting Chairman, Casino Control Commission of New Jersey, et al. v. Hotel & Restaurant Employees & Bartenders International Union Local 54 et al., also on appeal from the same court.Anthony J. Parrillo, Assistant Attorney General of New Jersey, argued the cause for appellants. With him on the briefs for appellants in No. 83-498 were Irwin I. Kimmelman, Attorney General, and Gary A. Ehrlich and Eugene M. Schwartz, Deputy Attorneys General. Robert J. Genatt and John R. Zimmerman filed briefs for appellants in No. 83-573.Laurence Gold argued the cause for appellees. With him on the brief were Bernard N. Katz, Michael N. Katz, and George Kaufmann.Fn Fn Brian McKay, Attorney General, filed a brief for the State of Nevada as amicus curiae urging reversal.David Previant and Robert M. Baptiste filed a brief for the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America as amicus curiae urging affirmance.Briefs of amici curiae were filed for the Atlantic City Casino Hotel Association et al. by William F. Kaspers; and for the National Right to Work Legal Defense Foundation by Rex H. Reed and Glenn M. Taubman.JUSTICE O'CONNOR delivered the opinion of the Court.In 1976, the citizens of New Jersey amended their State Constitution to permit the legislative authorization of casino gambling within the municipality of Atlantic City.1 Determined to prevent the infiltration of organized crime into its nascent casino industry and to assure public trust in the industry's integrity, the New Jersey Legislature enacted the Casino Control Act (Act), N. J. Stat. Ann. 5:12-1 et seq. (West Supp. 1983-1984), which provides for the comprehensive regulation of casino gambling, including the regulation of unions representing industry employees. Sections 86 and 93 of the Act specifically impose certain qualification criteria on officials of labor organizations representing casino industry employees. Those labor organizations with officials found not to meet these standards may be prohibited from receiving dues from casino industry employees and prohibited from administering pension and welfare funds. The principal question presented by these cases is whether the National Labor Relations Act (NLRA), as amended, 29 U.S.C. 141 et seq., precludes New Jersey from imposing these criteria on those whom casino industry employees may select as officials of their bargaining representatives. We hold that it does not.IAThe advent of casino gambling in New Jersey was heralded with great expectations for the economic revitalization of the Atlantic City region, but with equally great fears for the potential for infiltration by organized crime. The state legislature conducted extensive hearings and, in cooperation with the Governor, commissioned numerous studies on how best to prevent infiltration by organized crime into the casino industry.2 These studies confirmed the fact that the vast amount of money that flows daily through a casino operation and the large number of unrecorded transactions make the industry a particularly attractive and vulnerable target for organized crime. The New Jersey Commission of Investigation (NJCI), for example, found that there was a "well-organized highly functional organized crime network in [New Jersey]" which had become more interested in investing funds in legitimate enterprises.3 The NJCI feared that such an incursion by organized crime into the Atlantic City casinos might also be accompanied by extortion, loansharking, commercial bribery, and tax and antitrust violations. It was on the basis of these hearings and empirical studies that New Jersey finally adopted the Act, a comprehensive statutory scheme that authorizes casino gambling and establishes a rigorous system of regulation for the entire casino industry.In order to promote "public confidence and trust in the credibility and integrity of the regulatory process and of casino operations," the Act "extend[s] strict State regulation to all persons, locations, practices and associations related to the operation of licensed casino enterprises and all related service industries." N. J. Stat. Ann. 5:12-1(b)(6) (West Supp. 1983-1984). The Casino Control Commission (Commission), an independent administrative body, possesses broad regulatory authority over the casinos and other related industries, 5:12-63 to 5:12-75. The Division of Gaming Enforcement (Division), a part of the Attorney General's Office, is charged with the responsibility for investigating license and permit applicants and for prosecuting violators of the Act, 5:12-76 to 5:12-79.The Act imposes strict licensing requirements on any business seeking to own and operate a casino hotel, 5:12-84(a)-(c); on suppliers of goods and services to casino hotels, 5:12-12, 5:12-92; on all supervisory employees involved in casino operations, 5:12-9, 5:12-89; and on all employees with access to the casino floor, 5:12-7, 5:12-90. The Act requires registration, rather than licensing, for employees of casino hotels. Casino hotel employees include those performing "service or custodial duties not directly related to operations of the casino, including, without limitation, bartenders, waiters, waitresses, maintenance personnel, kitchen staff, but whose employment duties do not require or authorize access to the casino." 5:12-8. Most relevant to this litigation, 93(a) of the Act also requires labor organizations that represent or seek to represent persons employed in casinos or casino hotels to register annually with the Commission, 5:12-93(a).All those entities and persons required to be licensed or registered are subject to the disqualification criteria set forth in 86 of the Act. Section 86 specifically lists criteria for the disqualification of casino licensees. The Commission is authorized to revoke, suspend, limit, or otherwise restrict the registration of any casino hotel employees who would be disqualified for a casino license. N. J. Stat. Ann. 5:12-86, 5:12-91(b) (West Supp. 1983-1984). All industries offering goods or services to the casinos are also subject to the disqualification criteria of 86. 5:12-92.Section 93(b) directly subjects registered labor organizations to the 86 disqualification criteria and imposes two express penalties for noncompliance:"No labor organization, union or affiliate registered or required to be registered pursuant to this section and representing or seeking to represent employees licensed or registered under this act may receive any dues from any employee licensed or registered under this act and employed by a casino licensee or its agent, or administer any pension or welfare funds, if any officer, agent, or principal employee of the labor organization, union or affiliate is disqualified in accordance with the criteria contained in section 86 of this act. The commission may for the purposes of this subsection waive any disqualification criterion consistent with the public policy of this act and upon a finding that the interests of justice so require." The disqualification criteria referred to in 86 include convictions for a list of enumerated offenses or "any other offense which indicates that licensure of the applicant would be inimical to the policy of this act and to casino operations." N. J. Stat. Ann. 5:12-86(c)(4) (West Supp. 1983-1984). Disqualification may also result if an individual is identified "as a career offender or a member of a career offender cartel or an associate of a career offender or career offender cartel in such a manner which creates a reasonable belief that the association is of such a nature as to be inimical to the policy of this act and to gaming operations." 5:12-86(f).4 Appellee Hotel and Restaurant Employees and Bartenders International Union Local 54 (Local 54) is an unincorporated labor organization within the meaning of 2(5) of the NLRA, 29 U.S.C. 152(5). Local 54 represents in collective bargaining approximately 12,000 employees, 8,000 of whom are employed in casino hotels in Atlantic City. All of Local 54's casino hotel employees work in traditional hotel and restaurant service-related positions; none are employed in direct gambling operations. Appellee Frank Gerace is the president of Local 54.In 1978, Local 54 began filing with the Commission the annual registration statement required by 93(a) of the Act. Following a lengthy investigation, the Division in 1981 reported to the Commission that, in its view, Local 54's President Gerace, Secretary-Treasurer Robert Lumio, and Grievance Manager Frank Materio were disqualified under the criteria of 86. Pursuant to that section, the Commission scheduled a hearing on the Division's allegations. When Local 54 raised objections to the constitutionality of 86 and 93, the Commission ruled that it lacked the authority to consider such challenges to its enabling statute. In response, appellees filed a complaint in District Court,5 seeking declaratory and injunctive relief on the grounds that 86 and 93 impermissibly regulate areas which are preempted by the NLRA, the Employee Retirement Income Security Act (ERISA), 29 U.S.C. 1001 et seq., and the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA), 29 U.S.C. 401 et seq., and that 86(f) violates the Constitution because it is both overbroad and vague. Appellees also filed a motion for preliminary injunctive relief alleging irreparable injury from being forced to participate in further Commission proceedings.After a hearing, the District Court denied the motion for a preliminary injunction, concluding that appellees were unlikely to succeed on the merits of their claims.6 536 F. Supp. 317 (NJ 1982). Since no preliminary injunction was entered, the Commission went forward with its disqualification hearing. The Commission concluded that Gerace and Materio were disqualified under 86(f) because they were associated with members of organized crime in a manner inimical to the policy of the Act and to gaming operations. Local 54's Business Agent, Karlos LaSane, was also held disqualified under 86(c) because he had been convicted in 1973 of extortion from persons doing business with Atlantic City while he was a City Commissioner.7 On the basis of its findings, the Commission ordered that these individuals be removed as officers, agents, or principal employees of Local 54, failing which Local 54 would be barred from collecting dues from any of its members who were licensed or registered employees under the Act. See App. to Juris. Statements 206a-207a. The Commission later issued a supplemental decision, determining that the prohibition against dues collection would suffice to effectuate the removal of the three union officials and that it was therefore unnecessary to invoke the additional sanction of prohibiting the disqualified officials from administering pension and welfare funds. Id., at 208a-215a. Subsequent to the Commission's decision, a divided panel of the United States Court of Appeals for the Third Circuit issued a ruling concluding that the District Court had erred in refusing to grant the preliminary injunction. 709 F.2d 815 (1983). Reaching the merits of the underlying complaint, the court decided that 93 of the Act is pre-empted by 7 of the NLRA insofar as it empowers the Commission to disqualify elected union officials and is pre-empted by ERISA insofar as it empowers the Commission to prohibit administration of pension and welfare funds.8 We noted probable jurisdiction, and consolidated the separate appeals of the Commission and the Division to consider the pre-emption issue, .9 IIWhen federal pre-emption is invoked under the directive of the Supremacy Clause, it falls to this Court to examine the presumed intent of Congress. See Fidelity Federal Savings & Loan Assn. v. De la Cuesta, . Our task is quite simple if, in the federal enactment, Congress has explicitly mandated the pre-emption of state law, see Shaw v. Delta Air Lines, Inc., , or has adequately indicated an intent to occupy the field of regulation, thereby displacing all state laws on the same subject, Rice v. Santa Fe Elevator Corp., . Even in the absence of such express language or implied congressional intent to occupy the field, we may nevertheless find state law to be displaced to the extent that it actually conflicts with federal law. Such actual conflict between state and federal law exists when "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, , or when state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," Hines v. Davidowitz, . See Michigan Canners & Freezers Assn., Inc. v. Agricultural Marketing and Bargaining Board, ; Fidelity Federal Savings & Loan Assn. v. De la Cuesta, supra.These pre-emption principles are no less applicable in the field of labor law. Section 7 of the NLRA, 49 Stat. 452, as amended, 29 U.S.C. 157, the provision involved in this case, neither contains explicit pre-emptive language nor otherwise indicates a congressional intent to usurp the entire field of labor-management relations. See New York Telephone Co. v. New York State Dept. of Labor, ; Garner v. Teamsters, ("The national ... Act ... leaves much to the states, though Congress has refrained from telling us how much"). The Court has, however, frequently applied traditional pre-emption principles to find state law barred on the basis of an actual conflict with 7. If employee conduct is protected under 7, then state law which interferes with the exercise of these federally protected rights creates an actual conflict and is pre-empted by direct operation of the Supremacy Clause. See, e. g., Nash v. Florida Industrial Comm'n, (invalidating state unemployment compensation law); Bus Employees v. Missouri, (striking down state statute prohibiting peaceful strikes against public utilities); Bus Employees v. Wisconsin Board, (same); Automobile Workers v. O'Brien, (invalidating state "strike-vote" legislation).Appellants argue that the appropriate framework for pre-emption analysis in these cases is the balancing test applied to those state laws which fall within the so-called "local interests" exception to the pre-emption doctrine first set forth in San Diego Building Trades Council v. Garmon, . They contend that because New Jersey's interest in crime control is "so deeply rooted in local feeling and responsibility," ibid., the Act may yet be sustained as long as the magnitude of the State's interest in the enactment outweighs the resulting substantive interference with federally protected rights. See Operating Engineers v. Jones, . This argument, however, confuses pre-emption which is based on actual federal protection of the conduct at issue from that which is based on the primary jurisdiction of the National Labor Relations Board (NLRB). See, e. g., Railroad Trainmen v. Terminal Co., , n. 19 (1969). In the latter situation, a presumption of federal pre-emption applies even when the state law regulates conduct only arguably protected by federal law. Such a pre-emption rule avoids the potential for jurisdictional conflict between state courts or agencies and the NLRB by ensuring that primary responsibility for interpreting and applying this body of labor law remains with the NLRB. See Motor Coach Employees v. Lockridge, ; San Diego Building Trades Council v. Garmon, supra, at 244-245. This presumption of federal pre-emption, based on the primary jurisdiction rationale, properly admits to exception when unusually "deeply rooted" local interests are at stake. In such cases, appropriate consideration for the vitality of our federal system and for a rational allocation of functions belies any easy inference that Congress intended to deprive the States of their ability to retain jurisdiction over such matters. We have, therefore, refrained from finding that the NLRA pre-empts state court jurisdiction over state breach of contract actions by strike replacements, Belknap, Inc. v. Hale, , state trespass actions, Sears, Roebuck & Co. v. Carpenters, , or state tort remedies for intentional infliction of emotional distress, Farmer v. Carpenters, .If the state law regulates conduct that is actually protected by federal law, however, pre-emption follows not as a matter of protecting primary jurisdiction, but as a matter of substantive right. Where, as here, the issue is one of an asserted substantive conflict with a federal enactment, then "[t]he relative importance to the State of its own law is not material ... for the Framers of our Constitution provided that the federal law must prevail." Free v. Bland, . We turn, therefore, to consider whether New Jersey's Act actually conflicts with the casino industry employees' 7 rights.IIISection 7 guarantees to employees various rights, among them the right "to bargain collectively through representatives of their own choosing." 29 U.S.C. 157. In a straightforward analysis, the Court of Appeals found that this express right of employees to choose their collective-bargaining representatives encompasses an unqualified right to choose the officials of these representatives. Because 93(b) of the Act precludes casino industry employees from selecting as union officials individuals who do not meet the 86 disqualification criteria, the Court of Appeals determined that this provision clearly and directly conflicts with 7 and, under traditional pre-emption analysis, must be held pre-empted.The Court of Appeals relied heavily on this Court's decision in Hill v. Florida ex rel. Watson, , as support for the threshold proposition that 7 confers an unfettered right on employees to choose the officials of their own bargaining representatives. Hill involved a Florida statute that provided for state licensing of union business agents and prohibited the licensing of individuals who had not been citizens for more than 10 years, who had been convicted of a felony, or who were not of "good moral character." The statute also required the unions to file annual reports. Pursuant to this law, the Florida Attorney General obtained injunctions against a union and its business agent, restraining them from functioning until they had complied with the statute.On review, the Court found that Florida's statute as applied conflicted with 7, explaining:"The declared purpose of the Wagner Act, as shown in its first section, is to encourage collective bargaining, and to protect the `full freedom' of workers in the selection of bargaining representatives of their own choice. To this end Congress made it illegal for an employer to interfere with, restrain or coerce employees in selecting their representatives. Congress attached no conditions whatsoever to their freedom of choice in this respect. Their own best judgment, not that of someone else, was to be their guide. `Full freedom' to choose an agent means freedom to pass upon that agent's qualifications." 325 U.S., at 541. The decision in Hill does not control the present cases, however, because Congress has, in our view, subsequently disclaimed any intent to pre-empt all state regulation which touches upon the specific right of employees to decide which individuals will serve as officials of their bargaining representatives. As originally enacted, and as interpreted by the Court in Hill, 7 imposed no restrictions whatsoever on employees' freedom to choose the officials of their bargaining representatives. In 1959, however, Congress enacted the Labor-Management Reporting and Disclosure Act (LMRDA), designed in large part to address the growing problems of racketeering, crime, and corruption in the labor movement. See S. Rep. No. 187, 86th Cong., 1st Sess., 12-16 (1959); H. R. Rep. No. 741, 86th Cong., 1st Sess., 9-12 (1959). Title V of LMRDA imposes various restrictions on labor union officials and defines certain qualifications for them. Specifically, 29 U.S.C. 504(a) provides in pertinent part:"No person ... who has been convicted of, or served any part of a prison term resulting from his conviction of [a series of enumerated crimes] shall serve ... as an officer, director, trustee, member of any executive board or similar governing body, business agent, manager, organizer ... of any labor organization ... for five years after such conviction or after the end of such imprisonment ... ." By enacting 504(a), Congress has unmistakably indicated that the right of employees to select the officers of their bargaining representatives is not absolute and necessarily admits of some exception. Of course, a strong counter-argument can be made that Congress intended 504(a) to be the very measure of the exception, thereby cutting back on the pre-emptive effect of 7 only to that extent and no more. Although this is certainly a conceivable reading of congressional intent, we are, however, not persuaded by it.As the Court has already recognized, another provision of LMRDA, 603(a),10 is "an express disclaimer of pre-emption of state laws regulating the responsibilities of union officials, except where such pre-emption is expressly provided ... ." De Veau v. Braisted, (plurality opinion); see also id., at 160-161 (BRENNAN, J., concurring in judgment) (LMRDA "explicitly provides that it shall not displace such legislation of the States").11 In affirmatively preserving the operation of state laws, 603(a) indicates that Congress necessarily intended to preserve some room for state action concerning the responsibilities and qualifications of union officials. Moreover, 504 itself makes clear that Congress did not seek to impose a uniform federal standard on those who may serve as union officials. An individual is disqualified from holding office for five years under 504 only if he has been convicted of certain state law crimes. His eligibility for union office may be restored earlier depending on the various state laws providing for the restoration of citizen rights to convicted felons. See 104 Cong. Rec. 10991-10994 (1958) (remarks of Sen. McNamara). Thus, the federal law's disqualification criteria themselves are premised on state laws which of course vary throughout the Nation. Finally, our conclusion that Congress might not view such state regulation as necessarily interfering with national labor policy is buttressed by consideration of the concerns that led Congress to enact LMRDA in the first place. Congress was prompted to take action in large part because the governmental machinery was not "effective in policing specific abuses at the local level" and in "stamp[ing] out crime and corruption [in unions]." S. Rep. No. 187, supra, at 6. Consistent with this overarching legislative purpose, we can more readily presume that Congress would allow a State to adopt different and more stringent qualification requirements for union officials to effectuate this important goal.In De Veau v. Braisted, supra, this Court first squarely confronted the issue of post-Hill congressional intent in the context of a challenge to 8 of the New York Waterfront Commission Act. The New York statute prohibited any labor organization representing waterfront employees from collecting dues if any of its officers or agents had been convicted of a felony and had not subsequently been pardoned or cleared by the parole board. The statute had been enacted in furtherance of an interstate compact between New York and New Jersey, establishing a bistate commission intended to combat crime and corruption on the State's mutual waterfront. The compact had been expressly approved by Congress pursuant to Art. I, 10, of the Federal Constitution. The argument urged upon the Court was that the New York statute was pre-empted by 7 of the NLRA as conflicting with Hill's guarantee of "complete freedom of choice in the selection of [waterfront employees'] representatives." 363 U.S., at 152. In an opinion for a four-Justice plurality, Justice Frankfurter rejected this pre-emption argument and upheld the challenged statute.The plurality opinion began by noting that the NLRA "does not exclude every state policy that may in fact restrict the complete freedom of a group of employees to designate `representatives of their own choosing.'" Ibid. The plurality reasoned:"It would misconceive the constitutional doctrine of pre-emption - of the exclusion because of federal regulation of what otherwise is conceded state power - to decide this case mechanically on an absolute concept of free choice of representatives on the part of employees, heedless of the light that Congress has shed for our guidance. The relevant question is whether we may fairly infer a congressional purpose incompatible with the very narrow and historically explained restrictions upon the choice of a bargaining representative embodied in 8 of the New York Waterfront Commission Act. Would Congress, with a lively regard for its own federal labor policy, find in this state enactment a true, real frustration, however dialetically plausible, of that policy?" Id., at 153 (emphasis added). After thus framing the inquiry, the plurality concluded that the Court need not in fact "imaginatively summon" a hypothetical congressional response since, in light of Congress' express approval of the compact, federal pre-emption could not be found. Ibid.DeVeau's direct relevance for these cases lies less in its approach to determining 7's pre-emptive scope than in its focus on the indicia of congressional intent that can be garnered from Congress' approval of the compact. At congressional hearings, labor union officials testified against the compact's ratification on the specific ground that the New York statute conflicted with federal labor policy and that approval of the compact would therefore appear to sanction all such state restrictions. See 363 U.S., at 151 (citing to testimony of International Longshoremen's Association). In approving the compact over such objections, Congress apparently concluded that, at least where the States were confronted with the "public evils"12 of "crime, corruption, and racketeering,"13 more stringent state regulation of the qualifications of union officials was not incompatible with the national labor policy as embodied in 7.14 In short, given Congress' intent as expressed in its enactment of LMRDA and its approval of the bistate compact at issue in De Veau, it can no longer be maintained that 7 necessarily and obviously conflicts with every state regulation that may restrict the right of employees to select certain individuals to serve as the officials of their bargaining representatives. Nor can we find that New Jersey's imposition of its disqualification criteria in any way "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U.S., at 67. In its enactment of LMRDA and its awareness of New York's comparable restrictions when approving the bistate compact, Congress has at least indicated both that employees do not have an unqualified right to choose their union officials and that certain state disqualification requirements are compatible with 7. This is particularly true in the case of New Jersey's disqualification criteria, the purpose of which is identical to that which motivated those New York restrictions implicitly approved by Congress: Both statutes form part of comprehensive programs designed to "vindicate a legitimate and compelling state interest, namely, the interest in combatting local crime infesting a particular industry." DeVeau v. Braisted, supra, at 155. In the absence of a more specific congressional intent to the contrary, we therefore conclude that New Jersey's regulation of the qualifications of casino industry union officials does not actually conflict with 7 and so is not pre-empted by the NLRA.We emphasize that this conclusion does not implicate the employees' express 7 right to select a particular labor union as their collective-bargaining representative, but only their subsidiary right to select the officials of that union organization. While the Court in Hill v. Florida ex rel. Watson, apparently assumed that the two rights were undifferentiated and equally protected, our reading of subsequent legislative action indicates that Congress has since distinguished between the two and has accorded less than absolute protection to the employees' right to choose their union officials. In this litigation, the casino industry employees' freedom in the first instance to select Local 54 to represent them in collective bargaining is simply not affected by the qualification criteria of New Jersey's Act.IVAlthough the NLRA does not preclude 93(b)'s imposition of qualification standards on casino industry union officials,15 also at issue is the separate validity of that provision's dues collection ban imposed by the Commission to effect the removal of these disqualified persons from their union positions. As in Hill v. Florida ex rel. Watson, a sanction for noncompliance with an otherwise valid state regulation must, for pre-emption purposes, be assessed independently in terms of its potential conflict with the federal enactment. The Court in Hill concluded that Florida's filing requirement, while itself unobjectionable, could not be enforced by an injunction against the union's "functioning as a labor union" without contravening the NLRA. See 325 U.S., at 543. Appellees vigorously contend that imposition of the 93(b)'s dues collection sanction will similarly prohibit Local 54 from functioning as the employees' bargaining representative, thereby directly abridging the employees' separate 7 rights to organize and bargain collectively. According to affidavits submitted in the District Court, 85% of Local 54's monthly income comes from membership dues paid by casino hotel employees. Without these payments, Local 54 claims that it could no longer process employee grievances, administer collective-bargaining agreements, bargain for new agreements, organize the unorganized, or perform the other responsibilities of a collective-bargaining agent. See Brief for Appellees 23-24, and n. 11.Unfortunately, because of the procedural posture of this litigation, we cannot decide this issue. Appellees' factual allegations were never addressed by the District Court and the Court of Appeals. We are thus confronted with a situation comparable to that presented in Alabama State Federation of Labor v. McAdory, , in which the Court declined to decide whether the NLRA pre-empted a state filing requirement for unions because the statute had not been "construed to operate ... by its penal sanctions ... to prevent [the unions] ... from functioning within the state for non-compliance ..." Id., at 466. We follow the same course here, and remand so that the District Court can make the requisite findings of fact to determine whether imposition of the dues collection ban will so incapacitate Local 54 as to prevent it from performing its functions as the employees' chosen collective-bargaining agent.We observe that even a finding that 7 prohibits imposition of the dues collection sanction need not imply that New Jersey's disqualification standards are not otherwise enforceable by the Commission. The Act, for example, apparently grants broad powers to the Commission to impose sanctions directly on disqualified persons and to limit or restrict a labor organization's registration. See N. J. Stat. Ann. 5:12-64 (West Supp. 1983-1984). The Act also provides that the Commission "may exercise any proper power or authority necessary to perform the duties assigned to it by law," and that "no specific enumeration of powers in this act shall be read to limit the authority of the commission to administer this act." 5:12-75. The Commission itself has implicitly construed the Act as granting it the statutory authority to fashion different and less severe sanctions than those expressly enumerated in 93(b). See App. to Juris. Statements 206a; 536 F. Supp., at 330. If the Commission has correctly interpreted state law, an issue we of course do not decide, it could then enforce 93(b)'s disqualification criteria by numerous other means.Finally, we also decline to reach the validity of 93(b)'s second sanction - prohibition of a union's administration of its pension or welfare funds - despite the Court of Appeals' unanimous holding that the sanction is expressly pre-empted by 514(a) of ERISA, 29 U.S.C. 1144(a). In its supplemental decision, the Commission asserted its general authority to impose this sanction on Local 54, but, exercising its broad discretion, chose not to do so at that time. That decision rested both on the Commission's assumption that the dues collection sanction alone would suffice to ensure Local 54's compliance with the disqualification order and on its determination that it lacked adequate information as to whether Local 54 in fact administers pension and welfare funds within the meaning of 93(b) as well as to the manner in which such a prohibition might impact the membership. See App. to Juris. Statements 214a; supra, at 499. Because the Commission never imposed this sanction on Local 54, we are presented with no concrete application of state law. The issue is hence not ripe for review, and the Court of Appeals' holding that the federal ERISA pre-empts this sanction must therefore be vacated. See, e. g., Longshoremen v. Boyd, .VWe find that 93 of New Jersey's Act is not pre-empted by 7 of the NLRA to the extent that it imposes certain limitations on whom casino industry employees may choose to serve as officials of their bargaining representatives. On remand, the District Court should determine whether imposition of 93(b)'s sanction of prohibiting the collection of dues from casino industry employees will effectively prevent the union from performing its statutory functions as bargaining representative for its members. The judgment of the Court of Appeals is therefore vacated, and the cases are remanded to the Court of Appeals with instructions to remand to the District Court for further proceedings consistent with this opinion. It is so ordered. JUSTICE BRENNAN and JUSTICE MARSHALL took no part in the decision of these cases.

The United States is not entitled to recover indemnity from one of its employees for whose negligence it has been held liable under the Federal Tort Claims Act. Pp. 507-513. 206 F.2d 846, affirmed.Paul A. Sweeney argued the cause for the United States. With him on the brief were Robert L. Stern, then Acting Solicitor General, and Assistant Attorney General Burger.William C. Wetherbee argued the cause for respondent. with him on the brief was Paul J. Sedgwick.Richard W. Galiher and Richard L. Williams filed a brief for Harrison, as amicus curiae, supporting respondent.MR. JUSTICE DOUGLAS delivered the opinion of the Court.The single question in the case is whether the United States may recover indemnity from one of its employees after it has been held liable under the Federal Tort Claims Act,1 60 Stat. 842, 28 U.S.C. 1346, 2671 et seq., for the negligence of the employee. Respondent, an employee of the United States, had a collision with the car of one Darnell, while respondent was driving a government automobile. Darnell sued the United States under the Tort Claims Act. The United States filed a third-party complaint against respondent, asking that if it should be held liable to Darnell, it have indemnity from respondent. The District Court found that Darnell's injuries were caused solely by the negligence of respondent, acting within the scope of his employment. It entered judgment against the United States for $5,500 and judgment over for the United States in the same amount. The Court of Appeals reversed the judgment against respondent by a divided vote. 206 F.2d 846. The case is here on writ of certiorari. .Petitioner's argument is that the right of indemnity, though not expressly granted by the Tort Claims Act, is to be implied. A private employer, it is said, has a common-law right of indemnity against an employee whose negligence has made the employer liable. The Tort Claims Act, by imposing liability on the United States for the negligent acts of its employees, has placed it in the general position of a private employer. Therefore, it should have the comparable right of indemnity against the negligent employee which private employers have. United States v. Yellow Cab Co., , is said to show the way. For there we held that the United States could be sued as a third-party defendant for contributions claimed by a joint tort-feasor, though no specific provision of the Tort Claims Act provided for such suits.In that case, however, we were dealing with an established type of liability, which was within the broad sweep of the claims for which the United States had agreed to stand liable. Since the claim was within the class covered by the waiver of sovereign immunity, the Court refused to restrict its enforcement to separate actions for contribution.The present case is quite different. We deal not with the liability of the United States, but with the liability of its employees. The Tort Claims Act does not touch the liability of the employees except in one respect: by 28 U.S.C. 2676 it makes the judgment against the United States "a complete bar" to any action by the claimant against the employee. And see 2672.The relations between the United States and its employees have presented a myriad of problems with which the Congress over the years has dealt. Tenure, retirement, discharge, veterans' preferences, the responsibility of the United States to some employees for negligent acts of other employees - these are a few of the aspects of the problem on which Congress has legislated. Government employment gives rise to policy questions of great import, both to the employees and to the Executive and Legislative Branches. On the employee side are questions of considerable import. Discipline of the employee, the exactions which may be made of him, the merits or demerits he may suffer, the rate of his promotion are of great consequence to those who make government service their career. The right of the employer to sue the employee is a form of discipline. Perhaps the suits which would be instituted under the rule which petitioner asks would mostly be brought only when the employee carried insurance. But the decision we could fashion could have no such limitations, since we deal only with a rule of indemnity which is utterly independent of any underwriting of the liability. Moreover, the suits that would be brought would haul the employee to court and require him to find a lawyer, to face his employer's charge, and to submit to the ordeal of a trial. The time out for the trial and its preparation, plus the out-of-pocket expenses, might well impose on the employee a heavier financial burden than the loss of his seniority or a demotion in rank. When the United States sues an employee and takes him to court, it lays the heavy hand of discipline on him, as onerous to the employee perhaps as any measure the employer might take, except discharge itself.On the government side are questions of employee morale and fiscal policy. We have no way of knowing what the impact of the rule of indemnity we are asked to create might be. But we do know the question has serious aspects - considerations that pertain to the financial ability of employees, to their efficiency, to their morale. These are all important to the Executive Branch. The financial burden placed on the United States by the Tort Claims Act also raises important questions of fiscal policy. A part of that fiscal problem is the question of reimbursement of the United States for the losses it suffers as a result of the waiver of its sovereign immunity. Perhaps the losses suffered are so great that government employees should be required to carry part of the burden. Perhaps the cost in the morale and efficiency of employees would be too high a price to pay for the rule of indemnity the petitioner now asks us to write into the Tort Claims Act. We had an analogous problem before us in United States v. Standard Oil Co., , where the United States sued the owner and driver of a truck for the negligent injury of a soldier in the Army of the United States, claiming damages for loss of the soldier's service during the period of his disability. We were asked to extend the common-law action of per quod servitium amisit to the government-soldier relation. We declined, stating that the problem involved federal fiscal affairs over which Congress, not the Court, should formulate the policy.The reasons for following that course in the present case are even more compelling. Here a complex of relations between federal agencies and their staffs is involved. Moreover, the claim now asserted, though the product of a law Congress passed, is a matter on which Congress has not taken a position. It presents questions of policy on which Congress has not spoken.2 The selection of that policy which is most advantageous to the whole involves a host of considerations that must be weighed and appraised. That function is more appropriately for those who write the laws, rather than for those who interpret them. Affirmed.

On the ground that the respondent corporate taxpayer's returns had been examined for certain years and that, absent fraud, the statute of limitations barred assessment of additional deficiencies, respondent the taxpayer's president refused to produce records summoned by the Internal Revenue Service (IRS) unless it disclosed its basis for believing that fraud had been committed. The Government brought an enforcement proceeding under 7604 (b) of the Internal Revenue Code in the District Court, which held that the agent be allowed to re-examine the records. The Court of Appeals reversed, holding that 7605 (b) barred "unnecessary examination" unless the IRS could show reasonable grounds or probable cause to suspect fraud, a condition not satisfied by the agent's affidavit filed with the enforcement petition that he suspected that the taxpayer had fraudulently overstated expenses. Held: 1. Section 7604 (b) does not apply to a non-contumacious refusal like the individual respondent's to comply with a summons; but recommencement of the proceeding will not be required, since the Government sought no prehearing sanctions of arrest and attachment under that statute, which is otherwise similar to 7402 (b) and 7604 (a). The proceeding is therefore considered under those almost identical sections, which give general power to enforce summonses "by appropriate process." Pp. 51-52. 2. In order to enforce a summons for records the Commissioner, either before or after the limitations period has expired, need not show probable cause to suspect fraud. Unless the taxpayer raises a substantial question that judicial enforcement of the summons would abuse the court's process, the Commissioner must only show that the investigation is pursuant and relevant to a legitimate purpose; that the information is not already in the Commissioner's possession; that the Secretary or his delegate has determined that the further examination is necessary, and that the other administrative steps required by the Code have been followed. Pp. 52-58. 325 F.2d 914, reversed and remanded.Bruce J. Terris argued the cause for the United States et al. With him on the briefs were Solicitor General Cox, Assistant Attorney General Oberdorfer, Joseph M. Howard, Meyer Rothwacks and Norman Sepenuk.Bernard G. Segal argued the cause for respondents. With him on the brief was Samuel D. Slade.MR. JUSTICE HARLAN delivered the opinion of the Court.In March 1963, the Internal Revenue Service, pursuant to powers afforded the Commissioner by 7602 (2) of the Internal Revenue Code of 1954, summoned respondent Powell to appear before Special Agent Tiberino to give testimony and produce records relating to the 1958 and 1959 returns of the William Penn Laundry (the taxpayer), of which Powell was president. Powell appeared before the agent but refused to produce the records. Because the taxpayer's returns had been once previously examined, and because the three-year statute of limitations barred assessment of additional deficiencies for those years1 except in cases of fraud (the asserted basis for this summons),2 Powell contended that before he could be forced to produce the records the Service had to indicate some grounds for its belief that a fraud had been committed. The agent declined to give any such indication and the meeting terminated.Thereafter the Service petitioned the District Court for the Eastern District of Pennsylvania for enforcement of the administrative summons. With this petition the agent filed an affidavit stating that he had been investigating the taxpayer's returns for 1958 and 1959; that based on this investigation the Regional Commissioner of the Service had determined an additional examination of the taxpayer's records for those years to be necessary and had sent Powell a letter to that effect; and that the agent had reason to suspect that the taxpayer had fraudulently falsified its 1958 and 1959 returns by overstating expenses. At the court hearing Powell again stated his objections to producing the records and asked the Service to show some basis for its suspicion of fraud. The Service chose to stand on the petition and the agent's affidavit, and, after argument, the District Court ruled that the agent be given one hour in which to re-examine the records.3 The Court of Appeals reversed, 325 F.2d 914. It reasoned that since the returns in question could only be reopened for fraud, re-examination of the taxpayer's records must be barred by the prohibition of 7605 (b) of the Code4 against "unnecessary examination" unless the Service possessed information "which might cause a reasonable man to suspect that there has been fraud in the return for the otherwise closed year";5 and whether this standard has been met is to be decided "on the basis of the showing made in the normal course of an adversary proceeding ... ."6 The court concluded that the affidavit in itself was not sufficient to satisfy its test of probable cause.7 Consequently, enforcement of the summons was withheld.Because of the differing views in the circuits on the standards the Internal Revenue Service must meet to obtain judicial enforcement of its orders,8 we granted certiorari, .We reverse, and hold that the Government need make no showing of probable cause to suspect fraud unless the taxpayer raises a substantial question that judicial enforcement of the administrative summons would be an abusive use of the court's process, predicated on more than the fact of re-examination and the running of the statute of limitations on ordinary tax liability.I.This enforcement proceeding was brought by the Government pursuant to 7604 (b) of the Code.9 In Reisman v. Caplin, , decided last Term subsequent to the rendering of the decision below, this Court stated that 7604 (b) "was intended only to cover persons who were summoned and wholly made default or contumaciously refused to comply." 375 U.S., at 448. There was no contumacious refusal in this case. Thus the Government's conceded error in bringing its enforcement proceeding under 7604 (b) instead of 7402 (b) or 7604 (a),10 each of which grants courts the general power to enforce the Commissioner's summonses "by appropriate process," raises a threshold question whether we must dismiss this case and force the Government to recommence enforcement proceedings under the appropriate sections. Since the Government did not apply for the prehearing sanctions of attachment and arrest peculiar to 7604 (b), and since these constitute the major substantive differences between the sections, we think it would be holding too strictly to the forms of pleading to require the suit to be recommenced, and therefore treat the enforcement proceeding as having been brought under 7402 (b) and 7604 (a).II.Respondent primarily relies on 7605 (b) to show that the Government must establish probable cause for suspecting fraud, and that the existence of probable cause is subject to challenge by the taxpayer at the hearing.11 That section provides: "No taxpayer shall be subjected to unnecessary examination or investigations, and only one inspection of a taxpayer's books of account shall be made for each taxable year unless the taxpayer requests otherwise or unless the Secretary or his delegate, after investigation, notifies the taxpayer in writing that an additional inspection is necessary." We do not equate necessity as contemplated by this provision with probable cause or any like notion. If a taxpayer has filed fraudulent returns, a tax liability exists without regard to any period of limitations. Section 7602 authorizes the Commissioner to investigate any such liability.12 If, in order to determine the existence or nonexistence of fraud in the taxpayer's returns, information in the taxpayer's records is needed which is not already in the Commissioner's possession, we think the examination is not "unnecessary" within the meaning of 7605 (b). Although a more stringent interpretation is possible, one which would require some showing of cause for suspecting fraud, we reject such an interpretation because it might seriously hamper the Commissioner in carrying out investigations he thinks warranted, forcing him to litigate and prosecute appeals on the very subject which he desires to investigate, and because the legislative history of 7605 (b) indicates that no severe restriction was intended.Section 7605 (b) first appeared as 1309 of the Revenue Act of 1921, 42 Stat. 310. Its purpose and operation were explained by the manager of the bill, Senator Penrose, on the Senate floor: "Mr. PENROSE. Mr. President, the provision is entirely in the interest of the taxpayer and for his relief from unnecessary annoyance. Since these income taxes and direct taxes have been in force very general complaint has been made, especially in the large centers of wealth and accumulation of money, at the repeated visits of tax examiners, who perhaps are overzealous or do not use the best of judgment in the exercise of their functions. I know that from many of the cities of the country very bitter complaints have reached me and have reached the department of unnecessary visits and inquisitions after a thorough examination is supposed to have been had. This section is purely in the interest of quieting all this trouble and in the interest of the peace of mind of the honest taxpayer. "Mr. WALSH... . So that up to the present time an inspector could visit the office of an individual or corporation and inspect the books as many times as he chose? "Mr. PENROSE. And he often did so. "Mr. WALSH... . And this provision of the Senate committee seeks to limit the inspection to one visit unless the commissioner indicates that there is necessity for further examination? "Mr. PENROSE. That is the purpose of the amendment. "Mr. WALSH... . I heartily agree with the beneficial results that the amendment will produce to the taxpayer. "Mr. PENROSE. I knew the Senator would agree to the amendment, and it will go a long way toward relieving petty annoyances on the part of honest taxpayers." 61 Cong. Rec. 5855 (Sept. 28, 1921).13 Congress recognized a need for a curb on the investigating powers of low-echelon revenue agents, and considered that it met this need simply and fully by requiring such agents to clear any repetitive examination with a superior. For us to import a probable cause standard to be enforced by the courts would substantially overshoot the goal which the legislators sought to attain. There is no intimation in the legislative history that Congress intended the courts to oversee the Commissioner's determinations to investigate. No mention was made of the statute of limitations14 and the exception for fraud.We are asked to read 7605 (b) together with the limitations sections in such a way as to impose a probable cause standard upon the Commissioner from the expiration date of the ordinary limitations period forward. Without some solid indication in the legislative history that such a gloss was intended, we find it unacceptable.15 Our reading of the statute is said to render the first clause of 7605 (b) surplusage to a large extent, for, as interpreted, the clause adds little beyond the relevance and materiality requirements of 7602. That clause does appear to require that the information sought is not already within the Commissioner's possession, but we think its primary purpose was no more than to emphasize the responsibility of agents to exercise prudent judgment in wielding the extensive powers granted to them by the Internal Revenue Code.16 This view of the statute is reinforced by the general rejection of probable cause requirements in like circumstances involving other agencies. In Oklahoma Press Pub. Co. v. Walling, , in reference to the Administrator's subpoena power under the Fair Labor Standards Act, the Court said "his investigative function, in searching out violations with a view to securing enforcement of the Act, is essentially the same as the grand jury's, or the court's in issuing other pretrial orders for the discovery of evidence, and is governed by the same limitations," and accordingly applied the view that inquiry must not be "`limited ... by forecasts of the probable result of the investigation.'" In United States v. Morton Salt Co., , the Court said of the Federal Trade Commission, "It has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function. It is more analogous to the Grand Jury, which does not depend on a case or controversy for power to get evidence but can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." While the power of the Commissioner of Internal Revenue derives from a different body of statutes, we do not think the analogies to other agency situations are without force when the scope of the Commissioner's power is called in question.17 III.Reading the statutes as we do, the Commissioner need not meet any standard of probable cause to obtain enforcement of his summons, either before or after the three-year statute of limitations on ordinary tax liabilities has expired. He must show that the investigation will be conducted pursuant to a legitimate purpose, that the inquiry may be relevant to the purpose, that the information sought is not already within the Commissioner's possession, and that the administrative steps required by the Code have been followed - in particular, that the "Secretary or his delegate," after investigation, has determined the further examination to be necessary and has notified the taxpayer in writing to that effect. This does not make meaningless the adversary hearing to which the taxpayer is entitled before enforcement is ordered.18 At the hearing he "may challenge the summons on any appropriate ground," Reisman v. Caplin, , at 449.19 Nor does our reading of the statutes mean that under no circumstances may the court inquire into the underlying reasons for the examination. It is the court's process which is invoked to enforce the administrative summons and a court may not permit its process to be abused.20 Such an abuse would take place if the summons had been issued for an improper purpose, such as to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular investigation. The burden of showing an abuse of the court's process is on the taxpayer, and it is not met by a mere showing, as was made in this case, that the statute of limitations for ordinary deficiencies has run or that the records in question have already been once examined. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

A married woman domiciled in Louisiana, where under state law the wife has a present vested interest in community property equal to that of her husband, is personally liable for federal income taxes on her one-half interest in community income realized during the existence of the community, notwithstanding her subsequent renunciation under state law of her community rights, since federal, not state, law governs what is exempt from federal taxation. Pp. 194-206. 430 F.2d 1 and 7, reversed.BLACKMUN, J., delivered the opinion for a unanimous Court.William Terry Bray argued the cause for the United States et al. With him on the brief were Solicitor General Griswold, Assistant Attorney General Walters, Matthew J. Zinn, and Crombie J. D. Garrett.Paul K. Kirkpatrick, Jr., argued the cause and filed a brief for respondent Mitchell. Patrick M. Schott argued the cause and filed a brief for respondent Angello.MR. JUSTICE BLACKMUN delivered the opinion of the Court.The petition here, arising from two cases below, presents the issue whether a married woman domiciled in the community property State of Louisiana is personally liable for federal income tax on half the community income realized during the existence of the community despite the exercise of her statutory right of exoneration. The issue arises in the context, in one case, of a divorce, and, in the other, of the husband's death. IMrs. Mitchell and Mrs. Sims. The Commissioner of Internal Revenue determined deficiencies against Anne Goyne Mitchell and Jane Isabell Goyne Sims for the tax years 1955-1959, inclusive. These were for federal income tax and for additions to tax under 6651 (a) (failure to file return), 6653 (a) (underpayment due to negligence or intentional disregard of rules and regulations), and 6654 (underpayment of estimated tax) of the Internal Revenue Code of 1954, 26 U.S.C. 6651 (a), 6653 (a), and 6654. Mrs. Sims is the sister of Mrs. Mitchell. The determinations as to her were made under 6901 as Mrs. Mitchell's transferee without consideration.Anne Goyne and Emmett Bell Mitchell, Jr., were married in 1946. They lived in Louisiana. In July 1960, however, they began to live separately and apart. In August 1961 Mrs. Mitchell sued her husband in state court for separation. Upon his default, she was granted this relief. A final decree of divorce was entered in October 1962. In her separation suit Mrs. Mitchell prayed that she be allowed to accept the community of acquets and gains with benefit of inventory. However, taking advantage of the privilege granted her by Art. 2410 of the Louisiana Civil Code,1 she formally renounced the community on September 18, 1961. As a consequence, she received neither a distribution of community property nor a property settlement upon dissolution of her marriage. This renunciation served to exonerate her of "debts contracted during the marriage." Mrs. Mitchell earned $4,200 as a teacher during 1955 and 1956. From these earnings tax was withheld. Mr. Mitchell enjoyed taxable income during the five years in question. All income realized by both spouses during this period was community income.Mrs. Mitchell had little knowledge of her husband's finances. She rarely knew the balance in the family bank account. She possessed a withdrawal privilege on that account, and occasionally exercised it. Her husband was in charge of the couple's financial affairs and did not usually consult his wife about them. She was aware of fiscal irresponsibility on his part. She questioned him each year about tax returns. She knew returns were required, but relied on his assurances that he was filing timely returns and paying the taxes due. She signed no return herself and assumed that he had signed her name for her. In July 1960 she learned that, in fact, no returns had ever been filed for 1955-1959.The deficiencies determined against Mrs. Mitchell were based upon half the community income. The Commissioner sought to collect the deficiencies from property Mrs. Mitchell inherited from her mother in 1964 and immediately transferred, without consideration, to Mrs. Sims.Mrs. Mitchell sought redetermination in the Tax Court. Judge Forrester held that under Louisiana community property law Mrs. Mitchell possessed an immediate vested ownership interest in half the community property income and was personally responsible for the tax on her share. He also ruled that this tax liability was not affected by her Art. 2410 renunciation. Mitchell v. Commissioner, 51 T. C. 641 (1969).On appeal, the Fifth Circuit reversed, holding that by the renunciation Mrs. Mitchell avoided any federal income tax liability on the community income. Mitchell v. Commissioner, 430 F.2d 1 (CA5 1970).2 Judge Simpson dissented on the basis of Judge Forrester's opinion in the Tax Court. 430 F.2d, at 7.Mrs. Angello. Throughout the calendar years 1959-1961 Mrs. Angello, who was then Frances Sparacio, lived with her husband, Jack Sparacio, in Louisiana. Community income was realized by the Sparacios during those years, but neither the husband nor the wife filed any returns. In 1965 the District Director made assessments against them for taxes, penalties, and interest, filed a notice of lien, and addressed a notice of levy to the Metropolitan Life Insurance Company, which had a policy outstanding on Mr. Sparacio's life. The insured died in March 1966 and the notice of levy (for that amount of tax and interest resulting from imputing to Mrs. Sparacio half the community's income for the tax years in question) attached to the proceeds of the policy. The widow, who was the named beneficiary, sued the Metropolitan in state court to recover the policy proceeds. The United States intervened to assert and protect its lien. The case was then removed to federal court. The Metropolitan paid the proceeds into the court registry and was dismissed from the case.Each side then moved for summary judgment. Judge Christenberry granted the Government's motion and denied Mrs. Angello's. Despite the absence of any formal renunciation by Mrs. Angello under Art. 2410, the Government did not contend that she had accepted any benefits of the community. On appeal, the Court of Appeals reversed, relying on the same panel's decision in the Mitchell case. Angello v. Metropolitan Life Ins. Co., 430 F.2d 7 (CA5 1970). Judge Simpson again dissented. We granted certiorari in both cases, , on a single petition filed under our Rule 23 (5).IISections 1 and 3 of the 1954 Code, 26 U.S.C. 1 and 3, as have all of their predecessors since the Revenue Act of 1917,3 impose a tax on the taxable income "of every individual." The statutes, however, have not specified what that phrase includes.Forty years ago this Court had occasion to consider the phrase in the face of various state community property laws and of 210 and 211 of the Revenue Act of 1926. A husband and wife, residents of the State of Washington, had income in 1927 consisting of the husband's salary and of amounts realized from real and personal property of the community. The spouses filed separate returns for 1927 and each reported half the community income. Mr. Justice Roberts, in speaking for a unanimous Court (two Justices not participating) upholding this tax treatment, said:"These sections lay a tax upon the net income of every individual. The Act goes no farther, and furnishes no other standard or definition of what constitutes an individual's income. The use of the word `of' denotes ownership. It would be a strained construction, which, in the absence of further definition by Congress, should impute a broader significance to the phrase." Poe v. Seaborn, . The Court thus emphasized ownership. It looked to the law of the State as to the ownership of community property and of community income. It concluded that in Washington the wife has "a vested property right in the community property, equal with that of her husband; and in the income of the community, including salaries or wages of either husband or wife, or both." Id., at 111. It noted that, in contrast, in an earlier case, United States v. Robbins, , the opposite result had been reached under the then California law. But: "In the Robbins case, we found that the law of California, as construed by her own courts, gave the wife a mere expectancy and that the property rights of the husband during the life of the community were so complete that he was in fact the owner." 282 U.S., at 116. In companion cases the Court came to the same conclusion, as it had reached in Seaborn, with respect to the community property laws of Arizona, Texas, and Louisiana. Goodell v. Koch, ; Hopkins v. Bacon, ; Bender v. Pfaff, . In the Louisiana case it was said: "If the test be, as we have held it is, ownership of the community income, this case is probably the strongest of those presented to us, in favor of the wife's ownership of one-half of that income." 282 U.S., at 131. The Court then reviewed the relevant Louisiana statutes and the power of disposition possessed by each spouse. It noted that, while the husband is the manager of the affairs of the marital partnership, the limitations upon the wrongful exercise of his power over community property are more stringent than in many other States. It concluded: "Inasmuch, therefore, as, in Louisiana, the wife has a present vested interest in community property equal to that of her husband, we hold that the spouses are entitled to file separate returns, each treating one-half of the community income as income of each `of' them as an `individual' as those words are used in 210 (a) and 211 (a) of the Revenue Act of 1926." 282 U.S., at 132. Two months later the Court arrived at the same conclusion with respect to California community property law and federal income tax under the 1928 Act, with the Government conceding the effectiveness, in this respect, of amendments made to the California statutes since the Robbins decision. United States v. Malcolm, . Significantly, the Court there answered in the affirmative, citing Seaborn, Koch, and Bacon, the following certified question:"Has the wife under 161 (a) of the Civil Code of California such an interest in the community income that she should separately report and pay tax on one-half of such income?" 282 U.S., at 794. This affirmative answer to a question phrased in terms of "should," not "may," clearly indicates that the wife had the obligation, not merely the right, to report half the community income.The federal courts since Malcolm consistently have held that the wife is required to report half the community income and that the husband is taxable only on the other half. Gilmore v. United States, 154 Ct. Cl. 365, 290 F.2d 942 (1961), rev'd on other grounds, ; Van Antwerp v. United States, 92 F.2d 871 (CA9 1937); Simmons v. Cullen, 197 F. Supp. 179 (ND Cal. 1961); Dillin v. Commissioner, 56 T. C. 228 (1971); Kimes v. Commissioner, 55 T. C. 774 (1971); Hill v. Commissioner, 32 T. C. 254 (1959); Hunt v. Commissioner, 22 T. C. 228 (1954); Freundlich v. Commissioner, T. C. Memo. 1955-177; Cavanagh v. Commissioner, 42 B. T. A. 1037, 1044 (1940), aff'd, 125 F.2d 366 (CA9 1942). There were holdings from the Fifth Circuit to this apparent effect with respect to Louisiana taxpayers. Commissioner v. Hyman, 135 F.2d 49, 50 (1943); Saenger v. Commissioner, 69 F.2d 633 (1934); Smith v. Donnelly, 65 F. Supp. 415 (ED La. 1946). See Henderson's Estate v. Commissioner, 155 F.2d 310 (CA5 1946), and Gonzalez v. National Surety Corp., 266 F.2d 667, 669 (CA5 1959).Thus, with respect to community income, as with respect to other income, federal income tax liability follows ownership. Blair v. Commissioner, . See Hoeper v. Tax Comm'n, . In the determination of ownership, state law controls. "The state law creates legal interests but the federal statute determines when and how they shall be taxed." Burnet v. Harmel, ; Morgan v. Commissioner, ; Helvering v. Stuart, ; Commissioner v. Harmon, (DOUGLAS, J., dissenting); see Commissioner v. Estate of Bosch, . The dates of the cited cases indicate that these principles are long established in the law of taxation.IIIThis would appear to foreclose the issue for the present cases. Nevertheless, because respondents and the Court of Appeals stress the evanescent nature of the wife's interest in community property in Louisiana, a review of the pertinent Louisiana statutes and decisions is perhaps in order. Every marriage contracted in Louisiana "superinduces of right partnership or community of acquets or gains, if there be no stipulation to the contrary." La. Civ. Code Ann., Art. 2399 (1971). "This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase... ." Art. 2402. The debts contracted during the marriage "enter into the partnership or community of gains, and must be acquitted out of the common fund ... ." Art. 2403. "The husband is the head and master of the partnership or community of gains; he administers its effects, disposes of the revenues which they produce, and may alienate them by an onerous title, without the consent and permission of his wife." Also "he may dispose of the movable effects by a gratuitous and particular title, to the benefit of all persons." Art. 2404. The same article, however, denies him the power of conveyance, "by a gratuitous title," of community immovables, or of the whole or a quota of the movables, unless for the children; and if the husband has sold or disposed of the common property in fraud of the wife, she has an action against her husband's heirs. At the dissolution of a marriage "all effects which both husband and wife reciprocally possess, are presumed common effects or gains ... ." Art. 2405. At dissolution, "The effects which compose the partnership or community of gains, are divided into two equal portions between the husband and the wife, or between their heirs ... ." Art. 2406. "It is understood that, in the partition of the effects of the partnership or community of gains, both husband and wife are to be equally liable for their share of the debts contracted during the marriage, and not acquitted at the time of its dissolution." Art. 2409. Then the wife and her heirs or assigns may "exonerate themselves from the debts contracted during the marriage, by renouncing the partnership or community of gains." Art. 2410. And the wife "who renounces, loses every sort of right to the effects of the partnership or community of gains" except that "she takes back all her effects, whether dotal or extradotal." Art. 2411.The Louisiana court has described and forcefully stated the nature of the community interest. In Phillips v. Phillips, 160 La. 813, 825-826, 107 So. 584, 588 (1926), it was said:"The wife's half interest in the community property is not a mere expectancy during the marriage; it is not transmitted to her by or in consequence of a dissolution of the community. The title for half of the community property is vested in the wife the moment it is acquired by the community or by the spouses jointly, even though it be acquired in the name of only one of them... . There are loose expressions, appearing in some of the opinions rendered by this court, to the effect that the wife's half interest in the community property is only an expectancy, or a residuary interest, until the community is dissolved and liquidated. But that is contrary to the provisions of the Civil Code ... and is contrary to the rule announced in every decision of this court since the error was first committed ... ." Later, in Succession of Wiener, 203 La. 649, 14 So.2d 475 (1943), a state inheritance tax case, the court, after referring to Arts. 2399 and 2402 of the Civil Code, said: "That this community is a partnership in which the husband and wife own equal shares, their title thereto vesting at the very instant such property is acquired, is well settled in this state ... ." "The conclusion we have reached in this case is in keeping with the decision of the United States Supreme Court in the case of Bender v. Pfaff, supra, where that court recognized that under the law of Louisiana the wife is not only vested with the ownership of half of the community property from the moment it is acquired, but is likewise the owner of half of the community income... ." 203 La., at 657 and 662, 14 So.2d, at 477 and 479. After reviewing joint tenancy and tenancy by the entirety known to the common law, the court observed: "In Louisiana, the situation is entirely different, for here the civil law prevails, and the theory of the civil law is that the acquisition of all property during the marriage is due to the joint or common efforts, labor, industry, economy, and sacrifices of the husband and wife; in her station the wife is just as much an agency in acquiring this property as is her husband. In Louisiana, therefore, the wife's rights in and to the community property do not rest upon the mere gratuity of her husband; they are just as great as his and are entitled to equal dignity... . She is the half-partner and owner of all acquisitions made during the existence of the community, whether they be property or income... . "It is true that in weaving this harmonious commercial partnership around the intimate and sacred marital relationship, the framers of our law and its codifiers saw fit, in their wisdom, to place the husband at the head of the partnership, but this did not in any way affect the status of the property or the wife's ownership of her half thereof... . And the husband was made the managing partner of the community and charged with the administration of its effects, as well as with the alienation of its effects and revenues by onerous title, because he was deemed the best qualified to act." 203 La., at 665-667, 14 So.2d, at 480-481. The court then outlined in detail the various protections afforded by Louisiana law to the wife and concluded: "It is obvious, therefore, that the wife's interest in the community property in Louisiana does not spring from any fiction of the law or from any gift or act of generosity on the part of her husband but, instead, from an express legal contract of partnership entered into at the time of the marriage. There is no substantial difference between her interest therein and the interest of an ordinary member of a limited or ordinary partnership, the control and management of whose affairs has, by agreement, been entrusted to a managing partner. The only real difference is that the limitations placed on the managing partner in the community partnership are fixed by law, while those placed on the managing partner in an ordinary or limited partnership are fixed by convention or contract." 203 La., at 669, 14 So.2d, at 481-482. The husband thus is the manager and agent of the Louisiana community, but his powers as manager do not serve to defeat the ownership rights of the wife.These principles repeatedly have found expression in Louisiana cases. United States Fidelity & Guaranty Co. v. Green, 252 La. 227, 232-233, 210 So.2d 328, 330 (1968); Gebbia v. City of New Orleans, 249 La. 409, 415-416, 187 So.2d 423, 425 (1966); Azar v. Azar, 239 La. 941, 946, 120 So.2d 485, 487 (1960); Messersmith v. Messersmith, 229 La. 495, 507, 86 So.2d 169, 173 (1956); Dixon v. Dixon's Executors, 4 La. 188 (1932).This Court recognized these Louisiana community property principles in the Wiener estate's federal estate tax litigation. Fernandez v. Wiener, . There the inclusion in the decedent's gross estate of the entire community property was upheld for purposes of the federal estate tax which is an excise tax. Mr. Chief Justice Stone noted the respective interests of the spouses when, in the following language, he spoke of the effect of death: "As we have seen, the death of the husband of the Louisiana marital community not only operates to transfer his rights in his share of the community to his heirs or those taking under his will. It terminates his expansive and sometimes profitable control over the wife's share, and for the first time brings her half of the property into her full and exclusive possession, control and enjoyment. The cessation of these extensive powers of the husband, even though they were powers over property which he never `owned,' and the establishment in the wife of new powers of control over her share, though it was always hers, furnish appropriate occasions for the imposition of an excise tax. "Similarly, with the death of the wife, her title or ownership in her share of the community property ends, and passes to her heirs or other appointees. More than this, her death, by ending the marital community, liberates her husband's share from the restrictions which the existence of the community had placed upon his control of it... . "This redistribution of powers and restrictions upon power is brought about by death notwithstanding that the rights in the property subject to these powers and restrictions were in every sense `vested' from the moment the community began... ." 326 U.S., at 355-356. Thus the Louisiana statutes and cases also seem to foreclose the claims advanced by the respondents.IVDespite all this, despite the concession that the wife's interest in the community property is not a mere expectancy,4 and despite the further concession that she has a vested title in, and is the owner of, a half share of the community income,5 respondents take the position that somehow the wife's interest is insufficient to make her liable for federal income tax computed on that half of the community income.It is said that her right to renounce the community and to place herself in the same position as if it had never existed is substantive; that the wife is not personally liable for a community debt; that it is really the community as an entity, not the husband or the wife, that owns the property; and that Seaborn and its companion cases were concerned only with the right to split income, not with the obligation so to do. It is also said that the wife's dominion over the community property is nonexistent in Louisiana; that the husband administers the community's affairs as he sees fit; that he is not required to account to the wife, even for mismanagement, unless he enriches his estate at her expense by fraud; that she has no way to terminate the community other than by suit for separation, and then only by showing mismanagement on his part that threatens her separate estate; that her status is imposed by law, as contrasted with a commercial partnership where status is consensual; that she has no legal right to obtain the information necessary to file a tax return or to obtain the funds with which to pay the tax; and that Robbins authorizes taxing the whole of the community income to the husband. The same arguments, however, were advanced in Seaborn, 282 U.S., at 103-105, and in its companion cases, 282 U.S., at 119, 123, and 128, and were unavailing there, 282 U.S., at 111-113. They do not persuade us here. Specifically, the power to renounce, granted by Article 2410, is of no comfort to the wife-taxpayer. As Judge Forrester aptly expressed it, 51 T. C., at 646, Mrs. Mitchell's renunciation "came long after her liabilities for the annual income taxes here in issue had attached." Further, "[t]his right of the wife to renounce or repudiate must not be misconstrued as an indication that she had never owned and possessed her share, for that fact was not denied; but she did have, under the principles of community property, the right to revoke her ownership and possession... ." 1 W. deFuniak, Principles of Community Property 218, p. 621 (1943).The results urged by the respondents might follow, of course, in connection with a tax or other obligation the collection of which is controlled by state law. But an exempt status under state law does not bind the federal collector. Federal law governs what is exempt from federal levy.Section 6321 of the 1954 Code imposes a lien for the income tax "upon all property and rights to property ... belonging to" the person liable for the tax. Section 6331 (a) authorizes levy "upon all property and rights to property ... belonging to such person ... ." What is exempt from levy is specified in 6334 (a). Section 6334 (c) provides, "Notwithstanding any other law of the United States, no property or rights to property shall be exempt from levy other than the property specifically made exempt by subsection (a)." This language is specific and it is clear and there is no room in it for automatic exemption of property that happens to be exempt from state levy under state law. United States v. Bess, ; Shambaugh v. Scofield, 132 F.2d 345 (CA5 1942); United States v. Heffron, 158 F.2d 657 (CA9), cert. denied, ; Treas. Reg. 301.6334-1 (c). See Birch v. Dodt, 2 Ariz. App. 228, 407 P.2d 417 (1965). As a consequence, state law which exempts a husband's interest in community property from his premarital debts does not defeat collection of his federal income tax liability for premarital tax years from his interest in the community. United States v. Overman, 424 F.2d 1142, 1145 (CA9 1970); In re Ackerman, 424 F.2d 1148 (CA9 1970). The result as to Mrs. Mitchell and Mrs. Angello is no different.It must be conceded that these cases are "hard" cases and exceedingly unfortunate for the two women taxpayers.6 Mrs. Mitchell loses the benefit of her inheritance from her mother, an inheritance that ripened after the dissolution of her marriage. Mrs. Angello loses her beneficiary interest in her deceased husband's life insurance policy. This takes place with each wife not really aware of the community tax situation, and not really in a position to ascertain the details of the community income. The law, however, is clear. The taxes were due. They were not paid. Returns were not even filed. The "fault," if fault there be, lies with the four taxpayers and flows from the settled principles of the community property system. If the wives were to prevail here, they would have the best of both worlds.The remedy is in legislation. An example is Pub. L. 91-679 of January 12, 1971, 84 Stat. 2063, adding to the Code subsection (e) of 6013 and the final sentence of 6653 (b). These amendments afford relief to an innocent spouse, who was a party to a joint return, with respect to omitted income and fraudulent underpayment. Relief of that kind is the answer to the respondents' situation.The judgment in each case is reversed. It is so ordered.

Respondents, various union-affiliated benefit funds (Funds), sued petitioner Ray Haluch Gravel Co. (Haluch) in Federal District Court to collect benefits contributions required to be paid under federal law. The Funds also sought attorney's fees and costs, which were obligations under both a federal statute and the parties' collective bargaining agreement (CBA). The District Court issued an order on June 17, 2011, on the merits of the contribution claim and a separate ruling on July 25 on the Funds' motion for fees and costs. The Funds appealed both decisions on August 15. Haluch argued that the June 17 order was a final decision pursuant to 28 U. S. C. §1291, and thus, the Funds' notice of appeal was untimely since it was not filed within the Federal Rules of Appellate Procedure's 30-day deadline. The Funds disagreed, arguing that there was no final decision until July 25. The First Circuit acknowledged that an unresolved attorney's fees issue generally does not prevent judgment on the merits from being final, but held that no final decision was rendered until July 25 since the entitlement to fees and costs provided for in the CBA was an element of damages and thus part of the merits. Accordingly, the First Circuit addressed the appeal with respect to both the unpaid contributions and the fees and costs.Held: The appeal of the June 17 decision was untimely. Pp. 5-13. (a) This case has instructive similarities to Budinich v. Becton Dickinson & Co., 486 U. S. 196. There, this Court held a district court judgment to be a "final decision" for §1291 purposes despite an unresolved motion for statutory-based attorney's fees, noting that fee awards do not remedy the injury giving rise to the action, are often available to the defending party, and were, at common law, an element of "costs" awarded to a prevailing party, not a part of the merits judgment. Id., at 200. Even if laws authorizing fees might sometimes treat them as part of the merits, considerations of "operational consistency and predictability in the overall application of §1291" favored a "uniform rule." Id., at 202. Pp. 5-7. (b) The Funds' attempts to distinguish Budinich fail. Pp. 7-13. (1) Their claim that contractual attorney's fees provisions are always a measure of damages is unpersuasive, for such provisions often provide attorney's fees to prevailing defendants. More basic, Budinich's uniform rule did not depend on whether the law authorizing a particular fee claim treated the fees as part of the merits, 486 U. S., at 201, and there is no reason to depart from that sound reasoning here. The operational consistency stressed in Budinich is not promoted by providing for different jurisdictional effect based solely on whether an asserted right to fees is based on contract or statute. Nor is predictability promoted since it is not always clear whether and to what extent a fee claim is contractual rather than statutory. The Funds urge the importance of avoiding piecemeal litigation, but the Budinich Court was aware of such concerns when it adopted a uniform rule, and it suffices to say that those concerns are counterbalanced by the interest in determining with promptness and clarity whether the ruling on the merits will be appealed, especially given the complexity and amount of time it may take to resolve attorney's fees claims. Furthermore, the Federal Rules of Civil Procedure provide a means to avoid a piecemeal approach in many cases. See, e.g., Rules 54(d)(2), 58(e). Complex variations in statutory and contractual fee-shifting provisions also counsel against treating attorney's fees claims authorized by contract and statute differently for finality purposes. The Budinich rule looks solely to the character of the issue that remains open after the court has otherwise ruled on the merits. The Funds suggest that it is unclear whether Budinich applies where, as here, nonattorney professional fees are included in a motion for attorney's fees and costs. They are mistaken to the extent that they suggest that such fees will be claimed only where a contractual fee claim is involved. Many fee-shifting statutes authorize courts to award related litigation expenses like expert fees, see West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, 89, n. 4, and there is no apparent reason why parties or courts would find it difficult to tell that Budinich remains applicable where such fees are claimed and awarded incidental to attorney's fees. Pp. 7-11. (2) The Funds' claim that fees accrued prior to the commencement of litigation fall outside the scope of Budinich is also unpersuasive. Budinich referred to fees "for the litigation in question," 486 U. S., at 202, or "attributable to the case," id., at 203, but this Court has observed that "some of the services performed before a lawsuit is formally commenced by the filing of a complaint are performed 'on the litigation,' " Webb v. Dyer County Bd. of Ed., 471 U. S. 234, 243. Here, the fees for investigation, preliminary legal research, drafting of demand letters, and working on the initial complaint fit the description of standard preliminary steps toward litigation. Pp. 11-13.695 F. 3d 1, reversed and remanded. Kennedy, J., delivered the opinion for a unanimous Court.Opinion of the Court 571 U. S. ____ (2014)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 12-992RAY HALUCH GRAVEL COMPANY, et al., PETI-TIONERS v. CENTRAL PENSION FUND OFTHE INTERNATIONAL UNION OF OPER-ATING ENGINEERS AND PARTICI-PATING EMPLOYERS et al.on writ of certiorari to the united states court of appeals for the first circuit[January 15, 2014] Justice Kennedy delivered the opinion of the Court. Federal courts of appeals have jurisdiction of appeals from "final decisions" of United States district courts. 28 U. S. C. §1291. In Budinich v. Becton Dickinson & Co., 486 U. S. 196 (1988), this Court held that a decision on the merits is a "final decision" under §1291 even if the award or amount of attorney's fees for the litigation remains to be determined. The issue in this case is whether a different result obtains if the unresolved claim for attorney's fees is based on a contract rather than, or in addition to, a statute. The answer here, for purposes of §1291 and the Federal Rules of Civil Procedure, is that the result is not different. Whether the claim for attorney's fees is based on a statute, a contract, or both, the pendency of a ruling on an award for fees and costs does not prevent, as a general rule, the merits judgment from becoming final for purposes of appeal.I Petitioner Ray Haluch Gravel Co. (Haluch) is a landscape supply company. Under a collective-bargaining agreement (CBA) with the International Union of Operating Engineers, Local 98, Haluch was required to pay contributions to union-affiliated benefit funds. Various of those funds are respondents here. In 2007, respondents (Funds) commissioned an audit to determine whether Haluch was meeting its obligations under the CBA. Based on the audit, the Funds demanded additional contributions. Haluch refused to pay, and the Funds filed a lawsuit in the United States District Court for the District of Massachusetts. The Funds alleged that Haluch's failure to make the required contributions was a violation of the Employee Retirement Income Security Act of 1974 (ERISA) and the Labor Management Relations Act, 1947. The Funds also sought attorney's and auditor's fees and costs, under §502(g)(2)(D) of ERISA, 94 Stat. 1295, 29 U. S. C. §1132(g)(2)(D) (providing for "reasonable attorney's fees and costs of the action, to be paid by the defendant"), and the CBA itself, App. to Pet. for Cert. 52a (providing that "[a]ny costs, including legal fees, of collecting payments due these Funds shall be borne by the defaulting Employer"). At the conclusion of a bench trial, the District Court asked the parties to submit proposed findings of fact and conclusions of law to allow the court "to consider both the possibility of enforcing [a] settlement and a decision on the merits at the same time." Tr. 50 (Feb. 28, 2011). These submissions were due on March 14, 2011. The District Court went on to observe that "[u]nder our rules . . . if there is a judgment for the plaintiffs, typically a motion for attorney's fees can be filed" shortly thereafter. Id., at 51. It also noted that, "[o]n the other hand, attorney's fees is part of the damages potentially here." Ibid. It gave the plaintiffs the option to offer a submission with regard to fees along with their proposed findings of fact and conclusions of law, or to "wait to see if I find in your favor and submit the fee petition later on." Ibid. The Funds initially chose to submit their fee petition at the same time as their proposed findings of fact and conclusions of law, but they later changed course. They requested an extension of time to file their "request for reimbursement of attorneys' fees and costs in the above matter." Motion to Extend Time to Submit Request for Attorneys' Fees in No. 09-cv-11607-MAP (D Mass.), p. 1. The District Court agreed; and on April 4, the Funds moved "for an [o]rder awarding the total attorneys' fees and costs incurred . . . in attempting to collect this delinquency, in obtaining the audit, in protecting Plaintiffs' interests, and in protecting the interests of the participants and beneficiaries." App. 72. The motion alleged that "[t]hose fees and costs . . . amount to $143,600.44," and stated that "[d]efendants are liable for these monies pursuant to" ERISA, "and for the reasons detailed in the accompanying" affidavit. Ibid. The accompanying "affidavit in support of [the] application for attorneys' fees and costs," in turn, cited the parties' agreements (including the CBA, as well as related trust agreements) and §502(g) (2)(D) of ERISA. Id., at 74. As to the merits of the claim that Haluch had underpaid, on June 17, 2011, the District Court issued a memorandum and order ruling that the Funds were entitled to certain unpaid contributions, though less than had been requested. International Union of Operating Engineers, Local 98 Health and Welfare, Pension and Annuity Funds v. Ray Haluch Gravel Co., 792 F. Supp. 2d 129 (Mass.). A judgment in favor of the Funds in the amount of $26,897.41 was issued the same day. App. to Pet. for Cert. 39a-40a. The District Court did not rule on the Funds' motion for attorney's fees and costs until July 25, 2011. On that date it awarded $18,000 in attorney's fees, plus costs of $16,688.15, for a total award of $34,688.15. 792 F. Supp. 2d 139, 143. On August 15, 2011, the Funds appealed from both decisions. Haluch filed a cross-appeal a week later. In the Court of Appeals Haluch argued that there had been no timely appeal from the June 17 decision on the merits. In its view, the June 17 decision was a final decision under §1291, so that notice of appeal had to be filed within 30 days thereafter, see Fed. Rule App. Proc. 4(a)(1)(A). The Funds disagreed. They argued that there was no final decision until July 25, when the District Court rendered a decision on their request for attorney's fees and costs. In their view the appeal was timely as to all issues in the case. See Digital Equipment Corp. v. Desktop Direct, Inc., 511 U. S. 863, 868 (1994). The Court of Appeals agreed with the Funds. 695 F. 3d 1, 7 (CA1 2012). It acknowledged this Court's holding that an unresolved issue of attorney's fees generally does not prevent judgment on the merits from being final. But it held that this rule does not "mechanically . . . apply to all claims for attorneys' fees, whatever their genesis," and that, instead, "[w]here, as here, an entitlement to attorneys' fees derives from a contract . . . the critical question is whether the claim for attorneys' fees is part of the merits." Id., at 6. Interpreting the CBA in this case as "provid[ing] for the payment of attorneys' fees as an element of damages in the event of a breach," the Court of Appeals held that the June 17 decision was not final. Ibid. Concluding that the appeal was timely as to all issues, the Court of Appeals addressed the merits of the dispute with respect to the amount of unpaid remittances as well as the issue of fees and costs, remanding both aspects of the case to the District Court. Id., at 11. Haluch sought review here, and certiorari was granted to resolve a conflict in the Courts of Appeals over whether and when an unresolved issue of attorney's fees based on a contract prevents a judgment on the merits from being final. 570 U. S. ___ (2013). Compare O & G Industries, Inc. v. National Railroad Passenger Corporation, 537 F. 3d 153, 167, 168, and n. 11 (CA2 2008); United States ex rel. Familian Northwest, Inc. v. RG & B Contractors, Inc., 21 F. 3d 952, 954-955 (CA9 1994); Continental Bank, N. A. v. Everett, 964 F. 2d 701, 702-703 (CA7 1992); and First Nationwide Bank v. Summer House Joint Venture, 902 F. 2d 1197, 1199-1200 (CA5 1990), with Carolina Power & Light Co. v. Dynegy Marketing & Trade, 415 F. 3d 354, 356 (CA4 2005); Brandon, Jones, Sandall, Zeide, Kohn, Chalal & Musso, P. A. v. MedPartners, Inc., 312 F. 3d 1349, 1355 (CA11 2002) (per curiam); Gleason v. Norwest Mortgage, Inc., 243 F. 3d 130, 137-138 (CA3 2001); and Justine Realty Co. v. American Nat. Can Co., 945 F. 2d 1044, 1047-1049 (CA8 1991). For the reasons set forth, the decision of the Court of Appeals must be reversed.II Title 28 U. S. C. §1291 provides that "[t]he courts of appeals . . . shall have jurisdiction of appeals from all final decisions of the district courts of the United States . . . ." "[T]he timely filing of a notice of appeal in a civil case is a jurisdictional requirement." Bowles v. Russell, 551 U. S. 205, 214 (2007). Rule 4 of the Federal Rules of Appellate Procedure provides, as a general matter and subject to specific qualifications set out in later parts of the Rule, that in a civil case "the notice of appeal . . . must be filed . . . within 30 days after entry of the judgment or order appealed from." Rule 4(a)(1)(A). The parties in this case agree that notice of appeal was not given within 30 days of the June 17 decision but that it was given within 30 days of the July 25 decision. The question is whether the June 17 order was a final decision for purposes of §1291. In the ordinary course a "final decision" is one that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment. Catlin v. United States, 324 U. S. 229, 233 (1945). In Budinich, this Court addressed the question whether an unresolved issue of attorney's fees for the litigation prevents a judgment from being final. 486 U. S., at 202. There, a District Court in a diversity case had entered a judgment that left unresolved a motion for attorney's fees based on a Colorado statute providing attorney's fees to prevailing parties in certain cases. Id., at 197. The Court held that the judgment was final for purposes of §1291 despite the unresolved issue of attorney's fees. Id., at 202. The Court in Budinich began by observing that "[a]s a general matter, at least, . . . a claim for attorney's fees is not part of the merits of the action to which the fees pertain." Id., at 200. The Court noted that awards of attorney's fees do not remedy the injury giving rise to the action, are often available to the party defending the action, and were regarded at common law as an element of "costs" awarded to a prevailing party, which are generally not treated as part of the merits judgment. Ibid. Though the Court acknowledged that the statutory or decisional law authorizing the fees might sometimes treat the fees as part of the merits, it held that considerations of "operational consistency and predictability in the overall application of §1291" favored a "uniform rule that an unresolved issue of attorney's fees for the litigation in question does not prevent judgment on the merits from being final." Id., at 202. The facts of this case have instructive similarities to Budinich. In both cases, a plaintiff sought to recover employment-related payments. In both cases, the District Court entered a judgment resolving the claim for unpaid amounts but left outstanding a request for attorney's fees incurred in the course of litigating the case. Despite these similarities, the Funds offer two arguments to distinguish Budinich. First, they contend that unresolved claims for attorney's fees authorized by contract, unlike those authorized by statute, are not collateral for finality purposes. Second, they argue that the claim left unresolved as of June 17 included fees incurred prior to the commencement of formal litigation and that those fees, at least, fall beyond the scope of the rule announced in Budinich. For the reasons given below, the Court rejects these arguments.IIIA The Funds' principal argument for the nonfinality of the June 17 decision is that a district court decision that does not resolve a fee claim authorized by contract is not final for purposes of §1291, because it leaves open a claim for contract damages. They argue that contractual provisions for attorney's fees or costs of collection, in contrast to statutory attorney's fees provisions, are liquidated-damages provisions intended to remedy the injury giving rise to the action. The premise that contractual attorney's fees provisions are always a measure of damages is unpersuasive, for contractual fee provisions often provide attorney's fees to prevailing defendants. See 1 R. Rossi, Attorneys' Fees §9:25, p. 9-64 (3d ed. 2012); cf. Gleason, supra, at 137, n. 3. The Funds' argument fails, however, for a more basic reason, which is that the Court in Budinich rejected the very distinction the Funds now attempt to draw. The decision in Budinich made it clear that the uniform rule there announced did not depend on whether the statutory or decisional law authorizing a particular fee claim treated the fees as part of the merits. 486 U. S., at 201. The Court acknowledged that not all statutory or decisional law authorizing attorney's fees treats those fees as part of "costs" or otherwise not part of the merits; and the Court even accepted for purposes of argument that the Colorado statute in that case "ma[de] plain" that the fees it authorized "are to be part of the merits judgment." Ibid. But this did not matter. As the Court explained, the issue of attorney's fees was still collateral for finality purposes under §1291. The Court was not then, nor is it now, "inclined to adopt a disposition that requires the merits or nonmerits status of each attorney's fee provision to be clearly established before the time to appeal can be clearly known." Id., at 202. There is no reason to depart here from this sound reasoning. By arguing that a different rule should apply to fee claims authorized by contract because they are more often a matter of damages and thus part of the merits, the Funds seek in substance to relitigate an issue already decided in Budinich. Were the jurisdictional effect of an unresolved issue of attorney's fees to depend on whether the entitlement to fees is asserted under a statute, as distinct from a contract, the operational consistency and predictability stressed in Budinich would be compromised in many instances. Operational consistency is not promoted by providing for different jurisdictional effect to district court decisions that leave unresolved otherwise identical fee claims based solely on whether the asserted right to fees is based on a contract or a statute. The Funds' proposed distinction also does not promote predictability. Although sometimes it may be clear whether and to what extent a fee claim is contractual rather than statutory in nature, that is not always so. This case provides an apt illustration. The Funds' notice of motion itself cited just ERISA; only by consulting the accompanying affidavit, which included an oblique reference to the CBA, could it be discerned that a contractual fee claim was being asserted in that filing. This may explain why the District Court's July 25 decision cited just ERISA, without mention or analysis of the CBA provision or any other contractual provision. 792 F. Supp. 2d, at 140. The Funds urge the importance of avoiding piecemeal litigation. The basic point is well taken, yet, in the context of distinguishing between different sources for awards of attorney's fees, quite inapplicable. The Court was aware of piecemeal litigation concerns in Budinich, but it still adopted a uniform rule that an unresolved issue of attorney's fees for the litigation does not prevent judgment on the merits from being final. Here it suffices to say that the Funds' concern over piecemeal litigation, though starting from a legitimate principle, is counterbalanced by the interest in determining with promptness and clarity whether the ruling on the merits will be appealed. This is especially so because claims for attorney's fees may be complex and require a considerable amount of time to resolve. Indeed, in this rather simple case, the fee-related submissions take up well over 100 pages in the joint appendix. App. 64-198. The Federal Rules of Civil Procedure, furthermore, provide a means to avoid a piecemeal approach in the ordinary run of cases where circumstances warrant delaying the time to appeal. Rule 54(d)(2) provides for motions claiming attorney's fees and related nontaxable expenses. Rule 58(e), in turn, provides that the entry of judgment ordinarily may not be delayed, nor may the time for appeal be extended, in order to tax costs or award fees. This accords with Budinich and confirms the general practice of treating fees and costs as collateral for finality purposes. Having recognized this premise, Rule 58(e) further provides that if a timely motion for attorney's fees is made under Rule 54(d)(2), the court may act before a notice of appeal has been filed and become effective to order that the motion have the same effect as a timely motion under Rule 59 for purposes of Federal Rule of Appellate Procedure 4(a)(4). This delays the running of the time to file an appeal until the entry of the order disposing of the fee motion. Rule 4(a)(4)(A)(iii). In their brief in opposition to the petition for certiorari, the Funds argued that in their case this procedure would not have been applicable. Brief in Opposition 34. Rule 54(d)(2) provides that "[a] claim for attorney's fees and related nontaxable expenses must be made by motion unless the substantive law requires those fees to be proved at trial as an element of damages." The Advisory Committee Notes to Rule 54(d)(2) state that the procedure outlined in that Rule "does not . . . apply to fees recoverable as an element of damages, as when sought under the terms of a contract; such damages typically are to be claimed in a pleading and may involve issues to be resolved by a jury." Advisory Committee's 1993 Note on subd. (d), par. (2) of Fed. Rule Civ. Proc. 54C. App., pp. 240-241. The Funds no longer rely on their reading of Rule 54 and the Advisory Committee Notes as a basis for their argument that the June 17 decision was not final under §1291. And this is not a case in which the parties attempted to invoke Rule 58(e) to delay the time to appeal. Regardless of how the Funds' fee claims could or should have been litigated, however, the Rules eliminate concerns over undue piecemeal appeals in the vast range of cases where a claim for attorney's fees is made by motion under Rule 54(d)(2). That includes some cases in which the fees are authorized by contract. See 2 M. Derfner & A. Wolf, Court Awarded Attorney Fees ¶18.01[1][c], pp. 18-7 to 18-8 (2013) (remarking that Rule 54(d)(2) applies "regardless of the statutory, contractual, or equitable basis of the request for fees," though noting inapplicability where attorney's fees are an element of damages under the substantive law governing the action). The complex variations in statutory and contractual fee-shifting provisions also counsel against making the distinction the Funds suggest for purposes of finality. Some fee-shifting provisions treat the fees as part of the merits; some do not. Some are bilateral, authorizing fees either to plaintiffs or defendants; some are unilateral. Some depend on prevailing party status; some do not. Some may be unclear on these points. The rule adopted in Budinich ignores these distinctions in favor of an approach that looks solely to the character of the issue that remains open after the court has otherwise ruled on the merits of the case. In support of their argument against treating contractual and statutory fee claims alike the Funds suggest, nevertheless, that it is unclear whether Budinich still applies where, as here, auditor's fees (or other nonattorney professional fees) are included as an incidental part of a motion for attorney's fees and costs. (In this case, auditor's fees accounted for $6,537 of the $143,600.44 requested in total.) To the extent the Funds suggest that similar fees will be claimed alongside attorney's fees only where a contractual fee claim is involved, they are incorrect. Statutory fee claims are not always limited to attorney's fees per se. Many fee-shifting statutes authorize courts to award additional litigation expenses, such as expert fees. See West Virginia Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, 89, n. 4 (1991) (listing statutes); cf. Fed. Rule Civ. Proc. 54(d)(2)(A) (providing mechanism for claims by motion for "attorney's fees and related nontaxable expenses"). Where, as here, those types of fees are claimed and awarded incidental to attorney's fees, there is no apparent reason why parties or courts would find it difficult to tell that Budinich remains applicable.B The Funds separately contend that the June 17 decision was not final because their motion claimed some $8,561.75 in auditor's and attorney's fees (plus some modest additional expenses) incurred prior to the commencement of litigation. These included fees for the initial audit to determine whether Haluch was complying with the CBA, as well as attorney's fees incurred in attempting to obtain records from Haluch, researching fund auditing rights, drafting a letter demanding payment, and working on the initial complaint. Brief for Respondents 4-5; App. 64-67, 81-88. The Funds argue that these fees do not fall within the scope of Budinich, because the Court in Budinich referred only to fees "for the litigation in question," 486 U. S., at 202, or, equivalently, "attributable to the case," id., at 203. The fact that some of the claimed fees accrued before the complaint was filed is inconsequential. As this Court has observed, "some of the services performed before a lawsuit is formally commenced by the filing of a complaint are performed 'on the litigation.' " Webb v. Dyer County Bd. of Ed., 471 U. S. 234, 243 (1985). "Most obvious examples" include "the drafting of the initial pleadings and the work associated with the development of the theory of the case." Ibid. More generally, pre-filing tasks may be for the litigation if they are "both useful and of a type ordinarily necessary to advance the . . . litigation" in question. Ibid. The fees in this case fit that description. Investigation, preliminary legal research, drafting of demand letters, and working on the initial complaint are standard preliminary steps toward litigation. See id., at 250 (Brennan, J., concurring in part and dissenting in part) ("[I]t is settled that a prevailing party may recover fees for the time spent before the formal commencement of the litigation on such matters as . . . investigation of the facts of the case, research on the viability of potential legal claims, [and] drafting of the complaint and accompanying documents . . . ."); 2 Derfner, supra, ¶16.02[2][b], at 16-15 ("[H]ours . . . spent investigating facts specific to the client's case should be included in the lodestar, whether [or not] that time is spent prior to the filing of a complaint"). To be sure, the situation would differ if a party brought a freestanding contract action asserting an entitlement to fees incurred in an effort to collect payments that were not themselves the subject of the litigation. But that is not this case. Here the unresolved issue left open by the June 17 order was a claim for fees for the case being resolved on the merits. * * * There was no timely appeal of the District Court's June 17 order. The judgment of the Court of Appeals is reversed. The case is remanded for further proceedings consistent with this opinion.It is so ordered.

Seeking recovery for damage to an interstate shipment of melons, respondent shipper brought this action in a state court against the carrier. The jury made special findings that the melons were in good condition when turned over to the carrier, but in damaged condition when they reached their destination; and that the carrier performed all transportation services without negligence. But the jury refused to find that the carrier had sustained the burden of proving that the damage was due solely to the "inherent vice" of the melons. On these findings the trial court awarded damages to respondent. The state Supreme Court affirmed on the ground that, under federal law, a carrier is not relieved of liability by showing that transportation services were not negligently performed, but must also establish that damage was caused by one of the excepted common-law perils, here the natural deterioration of the melons. Held: Under 20 (11) of the Interstate Commerce Act, which codifies the common-law rule that a carrier, while not an absolute insurer, is liable for damages unless caused by an act of God, a public enemy, the shipper, public authority, or the inherent vice or nature of the goods, the shipper makes out a prima facie case when he shows delivery in good condition, arrival damaged, and the quantum of damages. The carrier then has the burden of proving lack of negligence and that damage was due to one of the exceptions relieving it of liability. (a) The rule of liability is the same for nonperishable and perishable commodities (other than livestock). Pp. 139-140. (b) Rules 130 and 135 of the Perishable Protective Tariff merely restate the common-law rules of liability. Pp. 140-143. (c) The rule of liability of the carrier is based upon its knowledge concerning the condition of the shipment while in its possession. Pp. 143-144. 368 S. W. 2d 99, affirmed.Thurman Arnold argued the cause for petitioner. With him on the briefs were Abe Fortas, Abe Krash and Dennis G. Lyons. John C. North, Jr. argued the cause and filed a brief for respondent.Gregory S. Prince, William M. Moloney and J. Edgar McDonald filed a brief for the Association of American Railroads, as amicus curiae, urging reversal.Michael C. Bernstein and William Augello, Jr. filed a brief for the United Fresh Fruit & Vegetable Association et al., as amici curiae, urging affirmance.MR. JUSTICE STEWART delivered the opinion of the Court.The question presented in this case is whether a common carrier which has exercised reasonable care and has complied with the instructions of the shipper, is nonetheless liable to the shipper for spoilage in transit of an interstate shipment of perishable commodities, when the carrier fails to prove that the cause of the spoilage was the natural tendency of the commodities to deteriorate. The petitioner is a common carrier and the respondent is a fruit shipper. The respondent sued the petitioner in a Texas court to recover for damage to a carload of honeydew melons shipped from Rio Grande City, Texas, to Chicago, Illinois.1 In accordance with Texas practice, special issues were submitted to the jury at the close of the evidence. The jury affirmatively found that the melons were in good condition at the time they were turned over to the carrier in Rio Grande City, but that they arrived in damaged condition at their destination in Chicago. The jury also affirmatively found that the petitioner and its connecting carriers performed all required transportation services without negligence. The jury were instructed that "inherent vice" means "any existing defects, diseases, decay or the inherent nature of the commodity which will cause it to deteriorate with a lapse of time." They answered "No" to a special issue asking whether they found from a preponderance of the evidence that the condition of the melons on arrival in Chicago was due solely to an inherent vice, as so defined, "at the time the melons were received by the carrier at Rio Grande City, Texas, for transportation."2 On the basis of these special findings, the trial judge entered judgment for damages against the carrier. The judgment was affirmed by the Texas Court of Civil Appeals, 360 S. W. 2d 839, and by the Texas Supreme Court, upon the ground that, as a matter of federal law, "the carrier may not exonerate itself by showing that all transportation services were performed without negligence but must go further and establish that the loss or damage was caused by one of the four excepted perils recognized at common law." 368 S. W. 2d 99, 100. The court concluded, in view of the jury's findings, that, although "[a] common carrier is not responsible for spoilage or decay which is shown to be due entirely to the inherent nature of the goods, ... petitioner has not established that the damage in this case was caused solely by natural deterioration." Id., at 103. We granted certiorari, , because of a conflict with an almost contemporaneous decision of the United States Court of Appeals for the Ninth Circuit holding that "in the case of perishable goods the burden upon the carrier is not to prove that the damage resulted from the inherent vice of the goods, but to prove its own compliance with the rules of the tariff and the shipper's instructions."3 For the reasons which follow, we affirm the judgment before us.The parties agree that the liability of a carrier for damage to an interstate shipment is a matter of federal law controlled by federal statutes and decisions. The Carmack Amendment of 1906,4 20 (11) of the Interstate Commerce Act, makes carriers liable "for the full actual loss, damage, or injury ... caused by" them to property they transport, and declares unlawful and void any contract, regulation, tariff, or other attempted means of limiting this liability.5 It is settled that this statute has two undisputed effects crucial to the issue in this case: First, the statute codifies the common-law rule that a carrier, though not an absolute insurer, is liable for damage to goods transported by it unless it can show that the damage was caused by "(a) the act of God; (b) the public enemy; (c) the act of the shipper himself; (d) public authority; (e) or the inherent vice or nature of the goods." Bills of Lading, 52 I. C. C. 671, 679; Chesapeake & O. R. Co. v. Thompson Mfg. Co., ; Adams Express Co. v. Croninger, ; Hall & Long v. Railroad Companies, 13 Wall. 367, 372. Second, the statute declares unlawful and void any "rule, regulation, or other limitation of any character whatsoever" purporting to limit this liability.6 See Cincinnati & Texas Pac. R. Co. v. Rankin, ; Boston & M. R. Co. v. Piper, . Accordingly, under federal law, in an action to recover from a carrier for damage to a shipment, the shipper establishes his prima facie case when he shows delivery in good condition, arrival in damaged condition, and the amount of damages. Thereupon, the burden of proof is upon the carrier to show both that it was free from negligence and that the damage to the cargo was due to one of the excepted causes relieving the carrier of liability. Galveston, H. & S. A. R. Co. v. Wallace, ; Chicago & E. I. R. Co. v. Collins Co., ; Chesapeake & O. R. Co. v. Thompson Mfg. Co., ; Thompson v. James McCarrick Co., 205 F.2d 897, 900.The disposition of this case in the Texas courts was in accordance with these established principles. It is apparent that the jury were unable to determine the cause of the damage to the melons. "[T]he decay of a perishable cargo is not a cause; it is an effect. It may be the result of a number of causes, for some of which, such as the inherent defects of the cargo ... the carrier is not liable."7 But the jury refused to find that the carrier had borne its burden of establishing that the damaged condition of the melons was due solely to "inherent vice," as defined in the instruction of the trial judge - including "the inherent nature of the commodity which will cause it to deteriorate with a lapse of time." The petitioner does not challenge the accuracy of the trial judge's instruction or the jury's finding.8 Its position is simply that if goods are perishable, and the nature of the damage is spoilage, and the jury affirmatively find that the carrier was free from negligence and performed the transportation services as required by the shipper, then the law presumes that the cause of the spoilage was the natural tendency of perishables to deteriorate even though the damage might, in fact, have resulted from other causes, such as the acts of third parties,9 for which no exception from carrier liability is provided. Consequently, it is argued, the question of "inherent vice" should not have been submitted to the jury, since the carrier in such a case does not bear the affirmative burden of establishing that the damage was caused by the inherent vice exception of the common law.The petitioner appears to recognize that, except in the case of loss arising from injury to livestock in transit - a well-established exception to the general common-law rule based on the peculiar propensity of animals to injure themselves and each other10 - no distinction was made in the earlier federal cases between perishables and nonperishables. It is said, however, that the "large-scale development, in relatively recent years, of long distance transportation of fresh fruit and vegetables in interstate commerce has led to the evolution" of a new federal rule governing the carrier's liability for spoilage and decay of perishables, similar to the "livestock rule," which absolves the carrier from liability upon proof that the carrier has exercised reasonable care, and has complied with the shipper's instructions.11 We are aware of no such new rule of federal law. As recently as 1956, in Secretary of Agriculture v. United States, , this Court gave no intimation that the general rule placing on the carrier the affirmative burden of bringing the cause of the damage within one of the specified exceptions no longer applied to cases involving perishable commodities.12 Nor do Rules 130 and 135 of the Perishable Protective Tariff, relied upon by petitioner, reflect any such change in the federal law, when read in the light of the history underlying their adoption in 1920 by the Interstate Commerce Commission. Rule 130, declaring that a carrier does not "undertake to overcome the inherent tendency of perishable goods to deteriorate or decay,"13 merely restates the common-law rule that a carrier shall not be held liable in the absence of negligence for damage resulting solely from an inherent vice or defect in the goods. And Rule 135, declaring that the carrier shall not be "liable for any loss or damage that may occur because of the acts of the shipper or because the directions of the shipper were incomplete, inadequate or ill-conceived,"14 merely reiterates the common-law and bill-of-lading rule that the carrier shall not be liable, in the absence of negligence, for the "act or default of the shipper or owner." Neither of these rules refers to the presumptions or burdens of proof imposed by the common law, and it is clear that it was not the intention of the Commission in approving these rules to modify or reduce the commonlaw liability of a carrier. Indeed, the Commission stated at the time these rules were adopted in 1920 that "such declarations can have no controlling effect, for the carrier's liability for loss or damage is determined by the law. Nothing can be added to or subtracted from the law by limitations or definitions stated in tariffs ... . There is the constant risk, therefore, if such declarations are included, of misstating the law and misleading the parties to no good purpose." Perishable Freight Investigation, 56 I. C. C. 449, 482. Although the Commission concluded for this reason that this type of rule was generally objectionable, id., at 483, it recognized the desirability of giving "some warning to shippers" that a carrier was not liable for the inherent tendency of perishable goods to deteriorate or decay, or for the shipper's failure to give proper transportation instructions. Ibid. The rules themselves reflect nothing more than this objective.15 That this was the limited purpose of Rules 130 and 135 is confirmed by the Commission's action in rejecting an additional proposal made by the carriers at the time these Rules were approved in 1920. The carriers sought to include a provision to be known as Item 20 (d), reading: "Nothing in this tariff shall be construed as relieving carriers from such liability as may rest upon them for loss or damage when same is the result of carriers' negligence." See 56 I. C. C., at 481. The Commission emphatically rejected the provision on the express ground that"a carrier may be liable under the common law for loss or damage which is not the result of its negligence, and this item implies that there may be something in the tariff which seeks to limit such liability." Id., at 483. (Emphasis supplied.) Finally, all else failing, it is argued that as a matter of public policy, the burden ought not to be placed upon the carrier to explain the cause of spoilage, because where perishables are involved, the shipper is peculiarly knowledgeable about the commodity's condition at and prior to the time of shipment, and is therefore in the best position to explain the cause of the damage. Since this argument amounts to a suggestion that we now carve out an exception to an unquestioned rule of long standing upon which both shippers and carriers rely, and which is reflected in the freight rates set by the carrier, the petitioner must sustain a heavy burden of persuasion. The general rule of carrier liability is based upon the sound premise that the carrier has peculiarly within its knowledge "[a]ll the facts and circumstances upon which [it] may rely to relieve [it] of [its] duty ... . In consequence, the law casts upon [it] the burden of the loss which [it] cannot explain or, explaining, bring within the exceptional case in which [it] is relieved from liability." Schnell v. The Vallescura, . We are not persuaded that the carrier lacks adequate means to inform itself of the condition of goods at the time it receives them from the shipper, and it cannot be doubted that while the carrier has possession, it is the only one in a position to acquire the knowledge of what actually damaged a shipment entrusted to its care. Affirmed.

The state trial judge sentenced respondent as a persistent offender following his conviction on three robbery counts, but the Missouri Court of Appeals reversed the sentence because there was no proof of prior convictions, as is necessary to establish persistent offender status under state law. On remand, the trial judge resentenced respondent as a persistent offender based on evidence of prior felony convictions, rejecting his contention that allowing the State another opportunity to prove such convictions violated the Double Jeopardy Clause. In affirming, the State Court of Appeals agreed that there was no double jeopardy bar, as did the Federal District Court, which denied respondent's habeas corpus petition. However, in reversing, the Federal Court of Appeals extended the rationale of Bullington v. Missouri, , a capital case, to hold that the Double Jeopardy Clause prohibits a State from subjecting a defendant to successive noncapital sentence enhancement proceedings. The court ruled that taking that step did not require the announcement of a "new rule" of constitutional law, and thus that granting habeas relief to respondent would not violate the nonretroactivity principle of Teague v. Lane, , which prohibits such relief based on a rule announced after the defendant's conviction and sentence became final.Held: 1. Because the State argued in the certiorari petition, as it had in the courts below and as it does in its brief on the merits, that the nonretroactivity principle barred the relief sought by respondent, this Court must apply Teague analysis before considering the Page II merits of respondent's claim. See Graham v. Collins___, ___. The Teague issue is a necessary predicate to the resolution of the primary question presented in the petition: whether the Double Jeopardy Clause should apply to successive noncapital sentence enhancement proceedings. Pp. 4-5. 2. The Court of Appeals erred in directing the District Court to grant respondent habeas relief, because doing so required the announcement and application of a new rule in violation of Teague and subsequent cases. Pp. 5-13. (a) Under those precedents, a court must proceed in three steps: (1) it must ascertain the date on which the conviction and sentence became final for Teague purposes; (2) it must determine whether a state court considering the defendant's claim on that date would have felt compelled by existing precedent to conclude that the rule sought was required by the Constitution; and (3), even if it determines that the defendant seeks the benefit of a new rule, it must decide whether that rule falls within one of the two narrow exceptions to the nonretroactivity principle. Pp. 5-6. (b) Respondent's conviction and sentence became final for purposes of retroactivity analysis on January 2, 1986, the date on which the 90-day period for filing a certiorari petition elapsed following exhaustion of the availability of direct appeal to the state courts. See Griffith v. Kentucky, , n. 6. P. 6. (c) The Federal Court of Appeals announced a new rule in this case. A reasonable jurist reviewing this Court's precedents as of January 2, 1986, would not have considered the application of the Double Jeopardy Clause to a noncapital sentencing proceeding to be dictated by precedent. At that time, the Court had not so applied the Clause, cf., e.g., United States v. DiFrancesco, ; Bullington, supra, and Arizona v. Rumsey, , distinguished, and indeed several of the Court's decisions pointed in the opposite direction, see, e.g., Strickland v. Washington, . Moreover, two Federal Courts of Appeals and several state courts had reached conflicting holdings on the issue. Because that conflict concerned a development in the law over which reasonable jurists could disagree, Sawyer v. Smith, , the Court of Appeals erred in resolving it in respondent's favor. To the limited extent this Court's cases decided subsequent to January 2, 1986, have any relevance to the Teague analysis, they are entirely consistent with the foregoing new rule determination. Pp. 7-12. (d) Neither of the two narrow exceptions to the nonretroactivity principle applies in this case. First, imposing a double jeopardy bar here would not place respondent's conduct beyond the Page III power of the criminal lawmaking authority, since he is still subject to imprisonment on each of his robbery convictions, regardless of whether he is sentenced as a persistent offender. Second, applying the Double Jeopardy Clause in these circumstances would not constitute a watershed criminal rule, since persistent offender status is a fact objectively ascertainable on the basis of readily available evidence, and subjecting a defendant to a second proceeding at which the State has the opportunity to show the requisite number of prior convictions is not unfair and will enhance the proceeding's accuracy by ensuring that the determination is made on the basis of competent evidence. Pp. 12-13. 3. Because of the resolution of this case on Teague grounds, the Court need not reach the questions whether the Double Jeopardy Clause applies to noncapital sentencing, whether Missouri's persistent offender scheme is sufficiently trial-like to invoke double jeopardy protections, or whether Bullington should be overruled. P. 13. 979 F.2d 109, reversed.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BLACKMUN, SCALIA, KENNEDY, SOUTER, THOMAS, and GINSBURG, JJ., joined. STEVENS, J., filed a dissenting opinion. [ CASPARI v. BOHLEN, ___ U.S. ___ (1994), 1] JUSTICE O'CONNOR delivered the opinion of the Court.In Bullington v. Missouri, , we held that a defendant sentenced to life imprisonment following a trial-like capital sentencing proceeding is protected by the Double Jeopardy Clause against imposition of the death penalty if he obtains reversal of his conviction and is retried and reconvicted. In this case, we are asked to decide whether the Double Jeopardy Clause prohibits a State from twice subjecting a defendant to a noncapital sentence enhancement proceeding.IRespondent and others entered a jewelry store in St. Louis County, Missouri, on April 17, 1981. Holding store employees and customers at gunpoint, they stole money and jewelry. After a jury trial, respondent was convicted on three counts of first-degree robbery. See Mo.Rev.Stat. 569.020 (1978). The authorized punishment for that offense, a class A felony, is "a term of years not less than ten years and not to exceed thirty years, or life imprisonment." Mo.Rev.Stat. 558.011.1(1) (Supp. 1982). [ CASPARI v. BOHLEN, ___ U.S. ___ (1994), 2] Under Missouri law, the jury is to "assess and declare the punishment as a part of [the] verdict." 557.036.2. The judge is then to determine the punishment "having regard to the nature and circumstances of the offense and the history and character of the defendant," 557.036.1, although the sentence imposed by the judge generally cannot be more severe than the advisory sentence recommended by the jury. 557.036.3. If the trial judge finds the defendant to be a "persistent offender," however, the judge sets the punishment without seeking an advisory sentence from the jury. 557.036.4, 557.036.5. A persistent offender is any person "who has pleaded guilty to or has been found guilty of two or more felonies committed at different times." 558.016.3. The judge must find beyond a reasonable doubt that the defendant is a persistent offender. 558.021. For a defendant who has committed a class A felony, a finding of persistent offender status shifts the sentencing decision from the jury to the judge, but does not alter the authorized sentencing range. 557.036.4(2), 558.016.6(1).The trial judge in this case sentenced respondent as a persistent offender to three consecutive terms of 15 years in prison. The Missouri Court of Appeals affirmed respondent's convictions. State v. Bohlen, 670 S.W.2d 119 (1984). The state court reversed respondent's sentence, however, because "although [respondent] was sentenced by the judge as a persistent offender no proof was made of the prior convictions." Id., at 123. Following Missouri practice, see State v. Holt, 660 S.W.2d 735, 738-739 (Mo. App. 1983), the court remanded for proof of those convictions and resentencing.On remand, the State introduced evidence of four prior felony convictions. Rejecting respondent's contention that allowing the State another opportunity to prove his prior convictions violated the Double Jeopardy Clause, [ CASPARI v. BOHLEN, ___ U.S. ___ (1994), 3] the trial judge found respondent to be a persistent offender and again sentenced him to three consecutive 15-year terms. App. A-29, A-35. The Missouri Court of Appeals affirmed: "The question of double jeopardy was not involved, because those provisions of the Fifth Amendment have been held not to apply to sentencing." State v. Bohlen, 698 S.W.2d 577, 578 (1985), citing State v. Lee, 660 S.W.2d 394, 399 (Mo.App. 1983). The Missouri Court of Appeals subsequently affirmed the trial court's denial of respondent's motion for postconviction relief. Bohlen v. State, 743 S.W.2d 425 (1987).In 1989, respondent filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Missouri. The District Court, adopting the report and recommendation of a Magistrate, denied the petition. App. to Pet. for Cert. A25-A26. The court rejected respondent's contention that the Double Jeopardy Clause barred the State from introducing evidence of respondent's prior convictions at the second sentencing hearing. Id., at A37-A49.The United States Court of Appeals for the Eighth Circuit reversed. 979 F.2d 109 (1992). Based on its conclusion that "[t]he persistent offender sentenc[e] enhancement procedure in Missouri has protections similar to those in the capital sentencing hearing in Bullington," id., at 112, the court stated that "it is a short step to apply the same double jeopardy protection to a noncapital sentencing hearing as the Supreme Court applied to a capital sentenc[ing] ... hearing." Id., at 113. The court held that taking that step did not require the announcement of a "new rule" of constitutional law, and thus that granting habeas relief to respondent would not violate the nonretroactivity principle of Teague v. Lane, (plurality opinion). The Court of Appeals accordingly [ CASPARI v. BOHLEN, ___ U.S. ___ (1994), 4] directed the District Court to grant respondent a writ of habeas corpus. 979 F.2d, at 115.We granted certiorari___ (1993), and now reverse.IIWe have consistently declined to consider issues not raised in the petition for a writ of certiorari. See this Court's Rule 14.1(a) ("Only the questions set forth in the petition, or fairly included therein, will be considered by the Court"). In Yee v. Escondido___ (1992), for example, the question presented was whether certain governmental action had effected a physical taking of the petitioner's property; we held that the question whether the same action had effected a regulatory taking, while "related" and "complementary" to the question presented, was not fairly included therein. Id., at ___ (slip op., at 15-16). In Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp.___ (1993) (per curiam), the question presented in the petition was whether the courts of appeals should routinely vacate district court judgments when cases are settled while on appeal; we held that the "analytically and factually" distinct issue whether the petitioner was improperly denied leave to intervene in the court below was not fairly included in the question presented. Id., at ___ (slip op., at 5). See also American National Bank & Trust Co. of Chicago v. Haroco, Inc., (per curiam).The primary question presented in the petition for a writ of certiorari in this case was "[w]hether the Double Jeopardy Clause ... should apply to successive noncapital sentence enhancement proceedings." Pet. for Cert. 1. The State argues that answering that question in the affirmative would require the announcement of a new rule of constitutional law in violation of Teague and subsequent cases. We conclude that this issue is a [ CASPARI v. BOHLEN, ___ U.S. ___ (1994), 5] subsidiary question fairly included in the question presented.The nonretroactivity principle prevents a federal court from granting habeas corpus relief to a state prisoner based on a rule announced after his conviction and sentence became final. See, e. g., Stringer v. Black___, ___ (1992) (slip op., at 5). A threshold question in every habeas case, therefore, is whether the court is obligated to apply the Teague rule to the defendant's claim. We have recognized that the nonretroactivity principle "is not `jurisdictional' in the sense that [federal courts] ... must raise and decide the issue sua sponte." Collins v. Youngblood, (emphasis omitted). Thus, a federal court may, but need not, decline to apply Teague if the State does not argue it. See Schiro v. Farley___, ___ (1994) (slip op., at 6-7) But if the State does argue that the defendant seeks the benefit of a new rule of constitutional law, the court must apply Teague before considering the merits of the claim. See Graham v. Collins___, ___ (1993) (slip op., at 4).In this case, the State argued in the petition, as it had in the courts below and as it does in its brief on the merits, that the nonretroactivity principle barred the relief sought by respondent. In contrast to Yee, which involved a claim that was related but not subsidiary, and Izumi, in which the intervention question was a procedural one wholly divorced from the question on which we granted review, the Teague issue raised by the State in this case is a necessary predicate to the resolution of the question presented in the petition. Cf. Cuyler v. Sullivan, , n. 6 (1980). We therefore proceed to consider it.III"[A] case announces a new rule if the result was not dictated by precedent existing at the time the defendant's [ CASPARI v. BOHLEN, ___ U.S. ___ (1994), 6] conviction became final." Teague v. Lane, 489 U.S., at 301. In determining whether a state prisoner is entitled to habeas relief, a federal court should apply Teague by proceeding in three steps. First, the court must ascertain the date on which the defendant's conviction and sentence became final for Teague purposes. Second, the court must "[s]urve[y] the legal landscape as it then existed," Graham v. Collins, supra, at ___ (slip op., at 6), and "determine whether a state court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution." Saffle v. Parks, . Finally, even if the court determines that the defendant seeks the benefit of a new rule, the court must decide whether that rule falls within one of the two narrow exceptions to the nonretroactivity principle. See Gilmore v. Taylor___, ___ (1993) (slip op., at 11).AA state conviction and sentence become final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied. See Griffith v. Kentucky, , n. 6 (1987). The Missouri Court of Appeals denied respondent's petition for rehearing on October 3, 1985, and respondent did not file a petition for a writ of certiorari. Respondent's conviction and sentence therefore became final on January 2, 1986 - 91 days (January 1 was a legal holiday) later. 28 U.S.C. 2101(c); see this Court's Rules 13.4 and 30.1. [ CASPARI v. BOHLEN, ___ U.S. ___ (1994), 7] BIn reviewing the state of the law on that date, we note that it was well established that there is no double jeopardy bar to the use of prior convictions in sentencing a persistent offender. Spencer v. Texas, . Cf. Moore v. Missouri. Respondent's claim, however, is that the State's failure to prove his persistent offender status at his first sentencing hearing operated as an "acquittal" of that status, so that he cannot be again subjected to a persistent offender determination. See United States v. Wilson, ("When a defendant has been acquitted of an offense, the Clause guarantees that the State shall not be permitted to make repeated attempts to convict him").At first blush, respondent's argument would appear to be foreclosed by the fact that "[h]istorically, the pronouncement of sentence has never carried the finality that attaches to an acquittal." United States v. DiFrancesco, . In that case, we upheld the constitutionality of 18 U.S.C. 3576, a pre-Guidelines statute that allowed the United States to appeal the sentence imposed on a defendant adjudged to be a "dangerous special offender," and allowed the court of appeals to affirm the sentence, impose a different sentence, or remand to the district court for further sentencing proceedings. A review of our prior cases led us to the conclusion that "[t]his Court's decisions in the sentencing area clearly establish that a sentence does not have the qualities of constitutional finality that attend an acquittal." Id., at 134; see also id., at 135, citing Chaffin v. Stynchcombe, ; North Carolina v. Pearce, ; Bozza v. United States, ; and Stroud v. United States.Respondent acknowledges our traditional refusal to extend the Double Jeopardy Clause to sentencing, but [ CASPARI v. BOHLEN, ___ U.S. ___ (1994), 8] contends that a different result is compelled in this case by Bullington v. Missouri, , and Arizona v. Rumsey, . In Bullington, the defendant was convicted of capital murder and sentenced to life imprisonment. After he obtained a reversal of his conviction on appeal and was reconvicted, the State again sought the death penalty. We recognized the general principle that "[t]he imposition of a particular sentence usually is not regarded as an `acquittal' of any more severe sentence that could have been imposed." 451 U.S., at 438. We nonetheless held that, because Missouri's "presentence hearing resembled and, indeed, in all relevant respects was like the immediately preceding trial on the issue of guilt or innocence," ibid., the first jury's refusal to impose the death penalty operated as an acquittal of that punishment. In Rumsey, we extended the rationale of Bullington to a capital sentencing scheme in which the judge, as opposed to a jury, had initially determined that a life sentence was appropriate. 467 U.S., at 212.Both Bullington and Rumsey were capital cases, and our reasoning in those cases was based largely on the unique circumstances of a capital sentencing proceeding. In Bullington itself, we distinguished our contrary precedents, particularly DiFrancesco, on the ground that "[t]he history of sentencing practices is of little assistance to Missouri in this case, since the sentencing procedures for capital cases instituted after the decision in Furman [v. Georgia, ,] are unique." 451 U.S., at 441-442, n. 15 (internal quotation marks omitted). We recognized as much in Pennsylvania v. Goldhammer, (per curiam): "[T]he decisions of this Court "clearly establish that a sentenc[ing in a noncapital case] does not have the qualities of constitutional finality that attend an acquittal." Id., at 30, quoting DiFrancesco, supra, at 134 [ CASPARI v. BOHLEN, ___ U.S. ___ (1994), 9] (bracketed phrase added by the Goldhammer Court; emphasis added).In Strickland v. Washington, , we held that the same standard for evaluating claims of ineffective assistance of counsel applies to trials and to capital sentencing proceedings, because "[a] capital sentencing proceeding ... is sufficiently like a trial in its adversarial format and in the existence of standards for decision, see [Bullington], that counsel's role in the proceeding is comparable to counsel's role at trial." Id., at 686-687. Because Strickland involved a capital sentencing proceeding, we left open the question whether the same test would apply to noncapital cases: "We need not consider the role of counsel in an ordinary sentencing, which may involve informal proceedings and standardless discretion in the sentencer, and hence may require a different approach to the definition of constitutionally effective assistance." Id., at 686; see also id. at 704-705 (BRENNAN, J., concurring in part and dissenting in part) ("`Time and again the Court has condemned procedures in capital cases that might be completely acceptable in an ordinary case. See, e. g., [Bullington]'"), quoting Barefoot v. Estelle, (Marshall, J., dissenting). See also Spaziano v. Florida, .While our cases may not have foreclosed the application of the Double Jeopardy Clause to noncapital sentencing, neither did any of them apply the Clause in that context. On the contrary, Goldhammer and Strickland strongly suggested that Bullington was limited to capital sentencing. We therefore conclude that a reasonable jurist reviewing our precedents at the time respondent's conviction and sentence became final would not have considered the application of the Double Jeopardy Clause to a noncapital sentencing proceeding to be dictated by our precedents. Cf. Stringer v. Black, 503 U.S., at ___ (slip op., at 13). [ CASPARI v. BOHLEN, ___ U.S. ___ (1994), 10] This analysis is confirmed by the experience of the lower courts. Prior to the time respondent's conviction and sentence became final, one Federal Court of Appeals and two state courts of last resort had held that the Double Jeopardy Clause did not bar the introduction of evidence of prior convictions at resentencing in noncapital cases, Linam v. Griffin, 685 F.2d 369, 374-376 (CA10 1982); Durham v. State, 464 N. E. 2d 321, 323-326 (Ind. 1984); People v. Sailor, 65 N. Y. 2d 224, 231-236, 480 N. E. 2d 701, 706-710 (1985), while another Federal Court of Appeals and two other state courts of last resort had held to the contrary, Briggs v. Procunier, 764 F.2d 368, 371 (CA5 1985); State v. Hennings, 100 Wash. 2d 379, 386-390, 670 P.2d 256, 259-262 (1983); Cooper v. State, 631 S.W.2d 508, 513-514 (Tex. Crim. App. 1982). Moreover, the Missouri Court of Appeals had previously rejected precisely the same claim raised by respondent. State v. Lee, 660 S.W.2d, at 399-400.In its retroactivity analysis, the Court of Appeals dismissed the Tenth Circuit's decision in Linam as "ultimately based on trial error," 979 F.2d, at 114, failing to recognize that the Linam court offered two "alternative bas[e]s for decision," 685 F.2d, at 374 - the second being that the "uniqueness of the death penalty unquestionably serves to distinguish DiFrancesco from Bullington." Id., at 375. Nor did the Court of Appeals acknowledge the relevant portion of the Lee decision, in which a Missouri court held that "the death penalty second stage trial in a capital murder case bears no similarity to a determination of persistent offender status by a judge upon the basis of largely formal evidence." 660 S.W.2d, at 400. Instead, the court focused on whether there was any "federal holding resting squarely on the proposition that Bullington does not apply to noncapital sentenc[e] enhancement proceedings." 979 F.2d, at 114 (emphasis added). [ CASPARI v. BOHLEN, ___ U.S. ___ (1994), 11] At oral argument in this Court, counsel for respondent candidly admitted that he did not know "exactly what State courts had decided or when" with respect to the applicability of the Double Jeopardy Clause to noncapital sentencing. Tr. of Oral Arg. 31. In fact, two state courts had held the Double Jeopardy Clause inapplicable to noncapital sentencing prior to 1986. Durham v. State, supra; People v. Sailor, supra. Constitutional law is not the exclusive province of the federal courts, and in the Teague analysis the reasonable views of state courts are entitled to consideration along with those of federal courts. See Butler v. McKellar, .In sum, at the time respondent's conviction and sentence became final, this Court had not applied the Double Jeopardy Clause to noncapital sentencing, and indeed several of our cases pointed in the opposite direction. Two Federal Courts of Appeals and several state courts had reached conflicting holdings on the issue. Because that conflict concerned a "developmen[t] in the law over which reasonable jurists [could] disagree," Sawyer v. Smith, , the Court of Appeals erred in resolving it in respondent's favor.Finally, to the limited extent our cases decided subsequent to the time respondent's conviction and sentence became final have any relevance to the Teague analysis, cf. Graham v. Collins, 506 U.S., at ___, they are entirely consistent with our conclusion that the Court of Appeals announced a new rule in this case. See Lockhart v. Nelson, , n. 6 (1988) (reserving question whether Double Jeopardy Clause applies to noncapital sentencing); see also Poland v. Arizona, ("Bullington indicates that the proper inquiry is whether the sentencer or reviewing court has `decided that the prosecution has not proved its case' that the death penalty is appropriate") [ CASPARI v. BOHLEN, ___ U.S. ___ (1994), 12] (emphasis in original); Hunt v. New York___ (1991) (White, J., dissenting from denial of certiorari) (noting conflict on the question "whether the Double Jeopardy Clause applies to trial-like sentence enhancement proceedings in noncapital cases"). Because "[t]he `new rule' principle ... validates reasonable, good faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions," Butler v. McKellar, supra, at 414, a fortiori it should protect a reasonable interpretation that is entirely consistent with subsequent cases.CNeither of the two narrow exceptions to the nonretroactivity principle applies to this case. The first exception is for new rules that place "certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe." Teague v. Lane, 489 U.S., at 307 (internal quotation marks omitted). Imposing a double jeopardy bar in this case would have no such effect. Respondent is subject to imprisonment on each of his three convictions, regardless of whether he is sentenced as a persistent offender. The second exception is for "`watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Saffle v. Parks, 494 U.S., at 495. Applying the Double Jeopardy Clause to successive noncapital sentencing is not such a groundbreaking occurrence. Persistent offender status is a fact objectively ascertainable on the basis of readily available evidence. Either a defendant has the requisite number of prior convictions, or he does not. Subjecting him to a second proceeding at which the State has the opportunity to show those convictions is not unfair, and will enhance the accuracy of the proceeding by ensuring that the determination is made on the basis of competent evidence. [ CASPARI v. BOHLEN, ___ U.S. ___ (1994), 13] IVThe Court of Appeals recognized that it was a "stretch" to apply the Double Jeopardy Clause to a noncapital sentencing proceeding, 979 F.2d, at 115, one that required "[e]xtending" the rationale of Bullington, ibid., but held that, because it was only a "short step," id., at 113, the nonretroactivity principle was not violated. We disagree. The Court of Appeals erred in directing the District Court to grant respondent a writ of habeas corpus because doing so required the announcement and application of a new rule of constitutional law. Because of our resolution of this case on Teague grounds, we have no occasion to decide whether the Double Jeopardy Clause applies to noncapital sentencing, or whether Missouri's persistent offender scheme is sufficiently trial-like to invoke double jeopardy protections; nor need we consider the State's contention that Bullington should be overruled. Reversed. [ CASPARI v. BOHLEN, ___ U.S. ___ (1994), 1] JUSTICE STEVENS, dissenting.The nonretroactivity principle announced in the plurality opinion in Teague v. Lane, , is a judge-made defense that can be waived. Collins v. Youngblood, . In recent years, the Court has fashioned harsh rules regarding waiver and claim forfeiture to defeat substantial constitutional claims. See, e.g., Coleman v. Thompson___ (1991); Murray v. Carrier, . If we are to apply such a strict approach to waiver in habeas corpus litigation, we should hold the warden to the same standard. Accordingly, given the treatment accorded the private litigant in Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Philips Corp.___ (1993) (per curiam), I would hold that petitioner Caspari forfeited his Teague defense under this Court's Rule 14.1(a).Distinguishing Izumi, the Court explains that the intervention question in that case was "wholly divorced from the question on which we granted review," whereas here the Teague issue "is a necessary predicate to the resolution of the question presented in the petition." Ante, at 5. Yet Izumi itself opened by acknowledging that it "would have to address" the intervention issue [ CASPARI v. BOHLEN, ___ U.S. ___ (1994), 2] "[i]n order to reach the merits of this case." 510 U.S., at ___ (slip op., at 1). It is no more "necessary" to answer the Teague question in this case than it was, for example, in Collins, supra.On the merits, I agree with the Court of Appeals. Under Missouri law, courts must make findings of fact that persistent offender status is warranted for those convicted of certain offenses when the prosecutor establishes requisite facts by proof beyond a reasonable doubt.8 That status subjects the defendant to more severe sentences, Mo.Rev.Stat. 558.016.1 (Supp. 1982), and deprives him of the opportunity to have a jury sentence him. 557.036.2. The sentence enhancement thus has the same legal effect as conviction of a separate offense; the separate sentencing hearing likewise is the practical equivalent of the trial. Missouri law acknowledges as much by properly requiring prosecutors to prove the factual predicate for the enhanced sentence beyond a reasonable doubt.A defendant opposing such an enhancement undoubtedly has a constitutional right to counsel and to the basic procedural protections the Due Process Clause affords. I have no hesitation in concluding that these protections include the right not to be "twice put in jeopardy" for the same offense. U.S. Const., Amdt. 5. I would affirm the judgment of the Court of Appeals.[Footnote *] Mo.Rev.Stat. 558.021.1(2) (Supp. 1982). A "persistent offender" had previously been adjudged guilty of two or more felonies committed at different times. 558.016.3. Missouri also mandates an enhanced sentence if the prosecutor proves that the defendant is a "dangerous offender" - meaning one who is being sentenced for a felony during which he knowingly "murdered or endangered or threatened the life" of another, who "knowingly inflicted or attempted or threatened to inflict serious physical injury" on another, or who is guilty of certain felonies. 558.016.4. It is unfair to afford the prosecutor two opportunities to satisfy either provision. Page I

A New Jersey regulation applicable to payments under the federally financed Aid to Families With Dependent Children program was challenged on income-calculation grounds and, since it authorized payments directly to vendors who provide goods or services to beneficiaries, on the ground that it conflicted with 406 of the Social Security Act. The District Court upheld the challenges, enjoined enforcement of the regulation "insofar as it violates the federal statute," and ordered the State to "revise the regulation to conform to the federal statute." Held: Section 406 does not prohibit a State from making vendor payments solely from nonreimbursable state funds. 333 F. Supp. 1109, affirmed as modified.PER CURIAM.The motion of appellee Amos for leave to proceed in forma pauperis is granted.A three-judge District Court has enjoined New Jersey officials from enforcing a state regulation applicable to payments under the federally financed program for Aid to Families With Dependent Children, Title IV of the Social Security Act of 1935, 49 Stat. 627, as amended, 42 U.S.C. 601-610.The regulation in question, 615 of the New Jersey Categorical Assistance Budget Manual, would deny AFDC benefits to the extent that a family's "total available adjusted income," calculated without deduction for the "income disregards" specified by 402 (a) (8) of the federal Act, 42 U.S.C. 602 (a) (8), exceeds a ceiling specified by the State. The regulation is challenged on the grounds (1) that it is in conflict with 402 (a) (8), and (2) that it fails to provide that, in the calculation of earned family income which is to be compared with the 615 ceiling, a stepfather's earnings are not to be taken into account unless they are "actually available" for the current use of the dependent child, 45 CFR 233.20 (a) (3) (ii). It was also suggested in the proceedings below that 615.5 of the state regulation conflicts with 406 (b) of the federal Act, 42 U.S.C. 606 (b), when it authorizes payments directly to vendors who provide goods or services to beneficiaries.The District Court upheld the challenge on all three grounds. Judgment was entered enjoining the enforcement of 615 "insofar as it violates the federal statute" and ordering that New Jersey "revise the regulation to conform to the federal statute." The state officials appeal.The appellants and also the United States, in its amicus curiae brief, appropriately point out that there is nothing in the federal statute that prohibits a State from making vendor payments so long as they are made from state funds without federal matching. The statute, 406, merely does not provide for reimbursement to the State for payments of that kind. We agree with these observations by the appellants and the amicus, and thus disagree with the District Court's conclusion with respect to direct payments insofar as those payments are made entirely with state funds not reimbursable under 406 of the federal Act. With this limitation in the application of its general language, the judgment of the District Court is affirmed.

After the District Court had found respondent guilty at a bench trial, double jeopardy did not bar the Government's appeal from the District Court's order suppressing certain evidence, entered upon reconsideration of respondent's motion to suppress, which was originally denied. United States v. Morrison, ante, p. 1. Certiorari granted; vacated and remanded.PER CURIAM.The operative facts herein are substantially identical to those in United States v. Morrison, ante, p. 1. Respondent's car was stopped by Border Patrol agents; a search disclosed marihuana. Respondent lost a motion to suppress and was found guilty after a bench trial. Following this trial, but before sentencing, the District Court, relying upon our decision in Almeida-Sanchez v. United States, , granted respondent's motion to suppress. The Court of Appeals for the Tenth Circuit, as it did in Morrison, found the Government's appeal barred by double jeopardy.In United States v. Wilson, , we held that double jeopardy would not bar a Government appeal if success on that appeal would result in the reinstatement of a verdict of guilty. The fact that the order of suppression here occurred after a general finding of guilt rendered by the court in a bench trial, rather than after a return of a verdict of guilty by a jury, is immaterial. Morrison, ante, p. 1. Double jeopardy, therefore, does not bar an appeal by the Government.We grant the motion to proceed in forma pauperis and the petition for certiorari, vacate the judgment of the Court of Appeals, and remand to that court for proceedings consistent herewith. It is so ordered.

A Minnesota statute ( 290.09, subd. 22) allows state taxpayers, in computing their state income tax, to deduct expenses incurred in providing "tuition, textbooks and transportation" for their children attending an elementary or secondary school. Petitioner Minnesota taxpayers brought suit in Federal District Court against respondent Minnesota Commissioner of Revenue and respondent parents who had taken the tax deduction for expenses incurred in sending their children to parochial schools, claiming that 290.09, subd. 22, violates the Establishment Clause of the First Amendment by providing financial assistance to sectarian institutions. The District Court granted summary judgment for respondents, holding that the statute is neutral on its face and in its application and does not have a primary effect of either advancing or inhibiting religion. The Court of Appeals affirmed.Held: Section 290.09, subd. 22, does not violate the Establishment Clause, but satisfies all elements of the "three-part" test laid down in Lemon v. Kurtzman, , that must be met for such a statute to be upheld under the Clause. Pp. 392-403. (a) The tax deduction in question has the secular purpose of ensuring that the State's citizenry is well educated, as well as of assuring the continued financial health of private schools, both sectarian and nonsectarian. Pp. 394-395. (b) The deduction does not have the primary effect of advancing the sectarian aims of nonpublic schools. It is only one of many deductions - such as those for medical expenses and charitable contributions - available under the Minnesota tax laws; is available for educational expenses incurred by all parents, whether their children attend public schools or private sectarian or nonsectarian private schools, Committee for Public Education v. Nyquist, , distinguished; and provides aid to parochial schools only as a result of decisions of individual parents rather than directly from the State to the schools themselves. The Establishment Clause's historic purposes do not encompass the sort of attenuated financial benefit that eventually flows to parochial schools from the neutrally available tax benefit at issue. The fact that notwithstanding 290.09, subd. 22's facial neutrality, a particular annual statistical analysis shows that the statute's application primarily benefits religious institutions, does not provide the certainty needed to determine the statute's constitutionality. Moreover, private schools, and parents paying for their children to attend these schools, make special contributions to the areas in which the schools operate. Pp. 396-402. (c) Section 290.09, subd. 22, does not "excessively entangle" the State in religion. The fact that state officials must determine whether particular textbooks qualify for the tax deduction and must disallow deductions for textbooks used in teaching religious doctrines is an insufficient basis for finding such entanglement. P. 403. 676 F.2d 1195, affirmed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, POWELL, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, BLACKMUN, and STEVENS, JJ., joined, post, p. 404.William I. Kampf argued the cause for petitioners. With him on the brief were James A. Lee, Jr., Charles S. Sims, and Burt Neuborne.Douglas C. Blomgren, Special Assistant Attorney General of Minnesota, argued the cause for respondents. With him on the brief for respondent Allen were Hubert H. Humphrey III, Attorney General, Catharine F. Haukedahl, Special Assistant Attorney General, and William P. Marshall. John R. Kenefick filed a brief for respondents Becker et al. Timothy P. Quinn and Andrew J. Eisenzimmer filed a brief for respondents Berthiaume et al.* [Footnote *] Briefs of amici curiae urging reversal were filed by Lee Boothby and Robert W. Nixon for Americans United for Separation of Church and State; by John W. Baker for the Baptist Joint Committee on Public Affairs; and by Russell C. Brown for the Minnesota Association of School Administrators et al.Briefs of amici curiae urging affirmance were filed by Solicitor General Lee, Assistant Attorney General McGrath, Deputy Assistant Attorney General Kuhl, John H. Garvey, Robert E. Kopp, and Michael F. Hertz for the United States; by Edward McGlynn Gaffney, Jr., for the Council for American Private Education et al.; by Nathan Lewin, Daniel D. Chazin, and Dennis Rapps for the National Jewish Commission on Law and Public Affairs; by David J. Young for Citizens for Educational Freedom; and by Wilfred R. Caron, Edward Bennett Williams, and John A. Liekweg for the United States Catholic Conference.Briefs of amici curiae were filed by Charles E. Rice for the Catholic League for Religious and Civil Rights; by Henry C. Clausen for United Americans for Public Schools; by John J. Donnelly for Parents Rights, Inc.; by Gwendolyn H. Gregory, August W. Steinhilber, and Thomas A. Shannon for the National School Boards Association; by William H. Mellor III and Maxwell A. Miller for the Mountain Legal States Foundation et al.; and by Robert Chanin, Laurence Gold, Nathan Z. Dershowitz, and Marc D. Stern for the National Committee for Public Education and Religious Liberty et al. JUSTICE REHNQUIST delivered the opinion of the Court.Minnesota allows taxpayers, in computing their state income tax, to deduct certain expenses incurred in providing for the education of their children. Minn. Stat. 290.09, subd. 22 (1982).1 The United States Court of Appeals for the Eighth Circuit held that the Establishment Clause of the First Amendment, as made applicable to the States by the Fourteenth Amendment, was not offended by this arrangement. Because this question was reserved in Committee for Public Education v. Nyquist, , and because of a conflict between the decision of the Court of Appeals for the Eighth Circuit and that of the Court of Appeals for the First Circuit in Rhode Island Federation of Teachers v. Norberg, 630 F.2d 855 (CA1 1980), we granted certiorari. . We now affirm.Minnesota, like every other State, provides its citizens with free elementary and secondary schooling. Minn. Stat. 120.06, 120.72 (1982). It seems to be agreed that about 820,000 students attended this school system in the most recent school year. During the same year, approximately 91,000 elementary and secondary students attended some 500 privately supported schools located in Minnesota, and about 95% of these students attended schools considering themselves to be sectarian.Minnesota, by a law originally enacted in 1955 and revised in 1976 and again in 1978, permits state taxpayers to claim a deduction from gross income for certain expenses incurred in educating their children. The deduction is limited to actual expenses incurred for the "tuition, textbooks and transportation" of dependents attending elementary or secondary schools. A deduction may not exceed $500 per dependent in grades K through 6 and $700 per dependent in grades 7 through 12. Minn. Stat. 290.09, subd. 22 (1982).2 Petitioners - certain Minnesota taxpayers - sued in the United States District Court for the District of Minnesota claiming that 290.09, subd. 22, violated the Establishment Clause by providing financial assistance to sectarian institutions. They named as defendants, respondents here, the Commissioner of the Department of Revenue of Minnesota and several parents who took advantage of the tax deduction for expenses incurred in sending their children to parochial schools. The District Court granted respondents' motion for summary judgment, holding that the statute was "neutral on its face and in its application and does not have a primary effect of either advancing or inhibiting religion." 514 F. Supp. 998, 1003 (1981). On appeal, the Court of Appeals affirmed, concluding that the Minnesota statute substantially benefited a "broad class of Minnesota citizens." 676 F.2d 1195, 1205 (1982).Today's case is no exception to our oft-repeated statement that the Establishment Clause presents especially difficult questions of interpretation and application. It is easy enough to quote the few words constituting that Clause - "Congress shall make no law respecting an establishment of religion." It is not at all easy, however, to apply this Court's various decisions construing the Clause to governmental programs of financial assistance to sectarian schools and the parents of children attending those schools. Indeed, in many of these decisions we have expressly or implicitly acknowledged that "we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law." Lemon v. Kurtzman, , quoted in part with approval in Nyquist, 413 U.S., at 761, n. 5.One fixed principle in this field is our consistent rejection of the argument that "any program which in some manner aids an institution with a religious affiliation" violates the Establishment Clause. Hunt v. McNair, . See, e. g., Bradfield v. Roberts, ; Walz v. Tax Comm'n, . For example, it is now well established that a State may reimburse parents for expenses incurred in transporting their children to school, Everson v. Board of Education, , and that it may loan secular textbooks to all schoolchildren within the State, Board of Education v. Allen, .Notwithstanding the repeated approval given programs such as those in Allen and Everson, our decisions also have struck down arrangements resembling, in many respects, these forms of assistance. See, e. g., Lemon v. Kurtzman, supra; Levitt v. Committee for Public Education, ; Meek v. Pittenger, ; Wolman v. Walter, .3 In this case we are asked to decide whether Minnesota's tax deduction bears greater resemblance to those types of assistance to parochial schools we have approved, or to those we have struck down. Petitioners place particular reliance on our decision in Committee for Public Education v. Nyquist, supra, where we held invalid a New York statute providing public funds for the maintenance and repair of the physical facilities of private schools and granting thinly disguised "tax benefits," actually amounting to tuition grants, to the parents of children attending private schools. As explained below, we conclude that 290.09, subd. 22, bears less resemblance to the arrangement struck down in Nyquist than it does to assistance programs upheld in our prior decisions and those discussed with approval in Nyquist.The general nature of our inquiry in this area has been guided, since the decision in Lemon v. Kurtzman, supra, by the "three-part" test laid down in that case:"First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion ...; finally, the statute must not foster `an excessive government entanglement with religion.'" Id., at 612-613. While this principle is well settled, our cases have also emphasized that it provides "no more than [a] helpful signpos[t]" in dealing with Establishment Clause challenges. Hunt v. McNair, supra, at 741. With this caveat in mind, we turn to the specific challenges raised against 290.09, subd. 22, under the Lemon framework.Little time need be spent on the question of whether the Minnesota tax deduction has a secular purpose. Under our prior decisions, governmental assistance programs have consistently survived this inquiry even when they have run afoul of other aspects of the Lemon framework. See, e. g., Lemon v. Kurtzman, supra; Meek v. Pittenger, supra, at 363; Wolman v. Walter, supra, at 236. This reflects, at least in part, our reluctance to attribute unconstitutional motives to the States, particularly when a plausible secular purpose for the State's program may be discerned from the face of the statute.A State's decision to defray the cost of educational expenses incurred by parents - regardless of the type of schools their children attend - evidences a purpose that is both secular and understandable. An educated populace is essential to the political and economic health of any community, and a State's efforts to assist parents in meeting the rising cost of educational expenses plainly serves this secular purpose of ensuring that the State's citizenry is well educated. Similarly, Minnesota, like other States, could conclude that there is a strong public interest in assuring the continued financial health of private schools, both sectarian and nonsectarian. By educating a substantial number of students such schools relieve public schools of a correspondingly great burden - to the benefit of all taxpayers. In addition, private schools may serve as a benchmark for public schools, in a manner analogous to the "TVA yardstick" for private power companies. As JUSTICE POWELL has remarked:"Parochial schools, quite apart from their sectarian purpose, have provided an educational alternative for millions of young Americans; they often afford wholesome competition with our public schools; and in some States they relieve substantially the tax burden incident to the operation of public schools. The State has, moreover, a legitimate interest in facilitating education of the highest quality for all children within its boundaries, whatever school their parents have chosen for them." Wolman v. Walter, supra, at 262 (concurring in part, concurring in judgment in part, and dissenting in part). All these justifications are readily available to support 290.09, subd. 22, and each is sufficient to satisfy the secular purpose inquiry of Lemon.4 We turn therefore to the more difficult but related question whether the Minnesota statute has "the primary effect of advancing the sectarian aims of the nonpublic schools." Committee for Public Education v. Regan, ; Lemon v. Kurtzman, 403 U.S., at 612-613. In concluding that it does not, we find several features of the Minnesota tax deduction particularly significant. First, an essential feature of Minnesota's arrangement is the fact that 290.09, subd. 22, is only one among many deductions - such as those for medical expenses, 290.09, subd. 10, and charitable contributions, 290.21, subd. 3 - available under the Minnesota tax laws.5 Our decisions consistently have recognized that traditionally "[l]egislatures have especially broad latitude in creating classifications and distinctions in tax statutes," Regan v. Taxation With Representation of Wash., , in part because the "familiarity with local conditions" enjoyed by legislators especially enables them to "achieve an equitable distribution of the tax burden." Madden v. Kentucky, . Under our prior decisions, the Minnesota Legislature's judgment that a deduction for educational expenses fairly equalizes the tax burden of its citizens and encourages desirable expenditures for educational purposes is entitled to substantial deference.6 Other characteristics of 290.09, subd. 22, argue equally strongly for the provision's constitutionality. Most importantly, the deduction is available for educational expenses incurred by all parents, including those whose children attend public schools and those whose children attend nonsectarian private schools or sectarian private schools. Just as in Widmar v. Vincent, , where we concluded that the State's provision of a forum neutrally "available to a broad class of nonreligious as well as religious speakers" does not "confer any imprimatur of state approval," ibid., so here: "[t]he provision of benefits to so broad a spectrum of groups is an important index of secular effect."7 Ibid. In this respect, as well as others, this case is vitally different from the scheme struck down in Nyquist. There, public assistance amounting to tuition grants was provided only to parents of children in nonpublic schools. This fact had considerable bearing on our decision striking down the New York statute at issue; we explicitly distinguished both Allen and Everson on the grounds that "[i]n both cases the class of beneficiaries included all schoolchildren, those in public as well as those in private schools." 413 U.S., at 782-783, n. 38 (emphasis in original).8 Moreover, we intimated that "public assistance (e. g., scholarships) made available generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited," ibid., might not offend the Establishment Clause. We think the tax deduction adopted by Minnesota is more similar to this latter type of program than it is to the arrangement struck down in Nyquist. Unlike the assistance at issue in Nyquist, 290.09, subd. 22, permits all parents - whether their children attend public school or private - to deduct their children's educational expenses. As Widmar and our other decisions indicate, a program, like 290.09, subd. 22, that neutrally provides state assistance to a broad spectrum of citizens is not readily subject to challenge under the Establishment Clause.We also agree with the Court of Appeals that, by channeling whatever assistance it may provide to parochial schools through individual parents, Minnesota has reduced the Establishment Clause objections to which its action is subject. It is true, of course, that financial assistance provided to parents ultimately has an economic effect comparable to that of aid given directly to the schools attended by their children. It is also true, however, that under Minnesota's arrangement public funds become available only as a result of numerous private choices of individual parents of school-age children. For these reasons, we recognized in Nyquist that the means by which state assistance flows to private schools is of some importance: we said that "the fact that aid is disbursed to parents rather than to ... schools" is a material consideration in Establishment Clause analysis, albeit "only one among many factors to be considered." 413 U.S., at 781. It is noteworthy that all but one of our recent cases invalidating state aid to parochial schools have involved the direct transmission of assistance from the State to the schools themselves. The exception, of course, was Nyquist, which, as discussed previously, is distinguishable from this case on other grounds. Where, as here, aid to parochial schools is available only as a result of decisions of individual parents no "imprimatur of state approval," Widmar, supra, at 274, can be deemed to have been conferred on any particular religion, or on religion generally.We find it useful, in the light of the foregoing characteristics of 290.09, subd. 22, to compare the attenuated financial benefits flowing to parochial schools from the section to the evils against which the Establishment Clause was designed to protect. These dangers are well described by our statement that "`[w]hat is at stake as a matter of policy [in Establishment Clause cases] is preventing that kind and degree of government involvement in religious life that, as history teaches us, is apt to lead to strife and frequently strain a political system to the breaking point.'" Nyquist, 413 U.S., at 796, quoting Walz v. Tax Comm'n, 397 U.S., at 694 (opinion of Harlan, J.). It is important, however, to "keep these issues in perspective":"At this point in the 20th century we are quite far removed from the dangers that prompted the Framers to include the Establishment Clause in the Bill of Rights. See Walz v. Tax Comm'n, . The risk of significant religious or denominational control over our democratic processes - or even of deep political division along religious lines - is remote, and when viewed against the positive contributions of sectarian schools, any such risk seems entirely tolerable in light of the continuing oversight of this Court." Wolman, 433 U.S., at 263 (POWELL, J., concurring in part, concurring in judgment in part, and dissenting in part). The Establishment Clause of course extends beyond prohibition of a state church or payment of state funds to one or more churches. We do not think, however, that its prohibition extends to the type of tax deduction established by Minnesota. The historic purposes of the Clause simply do not encompass the sort of attenuated financial benefit, ultimately controlled by the private choices of individual parents, that eventually flows to parochial schools from the neutrally available tax benefit at issue in this case.Petitioners argue that, notwithstanding the facial neutrality of 290.09, subd. 22, in application the statute primarily benefits religious institutions.9 Petitioners rely, as they did below, on a statistical analysis of the type of persons claiming the tax deduction. They contend that most parents of public school children incur no tuition expenses, see Minn. Stat. 120.06 (1982), and that other expenses deductible under 290.09, subd. 22, are negligible in value; moreover, they claim that 96% of the children in private schools in 1978-1979 attended religiously affiliated institutions. Because of all this, they reason, the bulk of deductions taken under 290.09, subd. 22, will be claimed by parents of children in sectarian schools. Respondents reply that petitioners have failed to consider the impact of deductions for items such as transportation, summer school tuition, tuition paid by parents whose children attended schools outside the school districts in which they resided, rental or purchase costs for a variety of equipment, and tuition for certain types of instruction not ordinarily provided in public schools.We need not consider these contentions in detail. We would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law. Such an approach would scarcely provide the certainty that this field stands in need of, nor can we perceive principled standards by which such statistical evidence might be evaluated. Moreover, the fact that private persons fail in a particular year to claim the tax relief to which they are entitled - under a facially neutral statute - should be of little importance in determining the constitutionality of the statute permitting such relief.Finally, private educational institutions, and parents paying for their children to attend these schools, make special contributions to the areas in which they operate. "Parochial schools, quite apart from their sectarian purpose, have provided an educational alternative for millions of young Americans; they often afford wholesome competition with our public schools; and in some States they relieve substantially the tax burden incident to the operation of public schools." Wolman, supra, at 262 (POWELL, J., concurring in part, concurring in judgment in part, and dissenting in part). If parents of children in private schools choose to take especial advantage of the relief provided by 290.09, subd. 22, it is no doubt due to the fact that they bear a particularly great financial burden in educating their children. More fundamentally, whatever unequal effect may be attributed to the statutory classification can fairly be regarded as a rough return for the benefits, discussed above, provided to the State and all taxpayers by parents sending their children to parochial schools. In the light of all this, we believe it wiser to decline to engage in the type of empirical inquiry into those persons benefited by state law which petitioners urge.10 Thus, we hold that the Minnesota tax deduction for educational expenses satisfies the primary effect inquiry of our Establishment Clause cases. Turning to the third part of the Lemon inquiry, we have no difficulty in concluding that the Minnesota statute does not "excessively entangle" the State in religion. The only plausible source of the "comprehensive, discriminating, and continuing state surveillance," 403 U.S., at 619, necessary to run afoul of this standard would lie in the fact that state officials must determine whether particular textbooks qualify for a deduction. In making this decision, state officials must disallow deductions taken for "instructional books and materials used in the teaching of religious tenets, doctrines or worship, the purpose of which is to inculcate such tenets, doctrines or worship." Minn. Stat. 290.09, subd. 22 (1982). Making decisions such as this does not differ substantially from making the types of decisions approved in earlier opinions of this Court. In Board of Education v. Allen, , for example, the Court upheld the loan of secular textbooks to parents or children attending nonpublic schools; though state officials were required to determine whether particular books were or were not secular, the system was held not to violate the Establishment Clause. See also Wolman v. Walter, ; Meek v. Pittenger, . The same result follows in this case.11 For the foregoing reasons, the judgment of the Court of Appeals is Affirmed.

1. In civil proceedings brought in the Federal District Court under R. S. 1979, 8 U.S.C. 43 (Civil Rights Act), petitioners sought an injunction against the use, in pending state criminal proceedings against them in New Jersey, of evidence claimed to have been obtained by an unlawful search by state police. Held: The District Court properly dismissed the complaints. Pp. 117-125.2. Federal courts should refuse to intervene in state criminal proceedings to suppress the use of evidence even when claimed to have been secured by unlawful search and seizure. Pp. 120-125. 184 F.2d 575, affirmed. In suits brought by petitioners under R. S. 1979, 8 U.S.C. 43, to enjoin the use, in a state criminal trial, of evidence claimed to have been obtained by an unlawful search by state police, the District Court dismissed the complaints. The Court of Appeals affirmed. 184 F.2d 575. This Court granted certiorari. . Affirmed, p. 125.Mordecai Michael Merker argued the cause for petitioners, and Anthony A. Calandra filed a brief for petitioners.Richard J. Congleton and Charles Handler argued the cause for respondents. With them on the brief were Theodore D. Parsons, Attorney General of New Jersey, C. William Caruso and Vincent J. Casale.MR. JUSTICE FRANKFURTER delivered the opinion of the Court.Petitioners asked equitable relief from the Federal District Court to prevent the fruit of an unlawful search by New Jersey police from being used in evidence in a State criminal trial. The suit was brought under R. S. 1979, 8 U.S.C. 43, providing for redress against "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws ... ."1 Upon respondents' motion, the District Court dismissed the complaints, "it appearing that the plaintiffs have not exhausted their remedies under state law." The Court of Appeals affirmed. 184 F.2d 575. Since it raises important questions touching the Civil Rights Act in the context of our federal system we brought the case here. .Two suits, arising out of separate series of events, were consolidated in the Court of Appeals and are before us as one case. The facts do not differ materially. Newark police officers entered petitioners' homes without legal authority. There they seized property of petitioners useful in bookmaking, a misdemeanor under N. J. Rev. Stat. 2:135-3. It is not disputed that these searches, if made by federal officers, would have violated the Fourth Amendment. Stefanelli was arrested, arraigned and subsequently indicted for bookmaking. He pleaded not guilty. The other petitioners, after hearing, were held on the same charge to await the action of the Essex County grand jury. All allege that the seized property is destined for evidence against them in the New Jersey criminal proceedings. Petitioners have made no move in the State courts to suppress the evidence, justifying their failure to do so on the ground that under existing New Jersey law the seized property is admissible without regard to the illegality of its procurement.Petitioners invoke our decision in Wolf v. Colorado, . The precise holding in that case was "that in a prosecution in a State court for a State crime the Fourteenth Amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure." Id., at 33. Although our holding was thus narrowly confined, in the course of the opinion it was said: "The security of one's privacy against arbitrary intrusion by the police - which is at the core of the Fourth Amendment - is basic to a free society. It is therefore implicit in `the concept of ordered liberty' and as such enforceable against the States through the Due Process Clause... . Accordingly, we have no hesitation in saying that were a State affirmatively to sanction such police incursion into privacy it would run counter to the guaranty of the Fourteenth Amendment." Id., at 27-28. There was disagreement as to the legal consequences of this view, but none as to its validity. We adhere to it. Upon it is founded the argument of petitioners.If the Fourteenth Amendment forbids unreasonable searches and seizures by the States, they contend, such a search and seizure by State police officers subjects its victims to the deprivation, under color of State law, of a right, privilege or immunity secured by the Constitution for which redress is afforded by R. S. 1979. Appropriate redress, they urge, is a suit in equity to suppress the evidence in order to bar its further use in State criminal proceedings.There is no occasion to consider such constitutional questions unless their answers are indispensable to the disposition of the cause before us. In the view we take, we need not decide whether the complaint states a cause of action under R. S. 1979. For even if the power to grant the relief here sought may fairly and constitutionally be derived from the generality of language of the Civil Rights Act, to sustain the claim would disregard the power of courts of equity to exercise discretion when, in a matter of equity jurisdiction, the balance is against the wisdom of using their power. Here the considerations governing that discretion touch perhaps the most sensitive source of friction between States and Nation, namely, the active intrusion of the federal courts in the administration of the criminal law for the prosecution of crimes solely within the power of the States.We hold that the federal courts should refuse to intervene in State criminal proceedings to suppress the use of evidence even when claimed to have been secured by unlawful search and seizure. The maxim that equity will not enjoin a criminal prosecution summarizes centuries of weighty experience in Anglo-American law. It is impressively reinforced when not merely the relations between coordinate courts but between coordinate political authorities are in issue. The special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law, has been an historic concern of congressional enactment, see, e. g., 28 U.S.C. 1341, 1342, 2283, 2284 (5). This concern has been reflected in decisions of this Court, not governed by explicit congressional requirement, bearing on a State's enforcement of its criminal law. E. g., Watson v. Buck, ; Beal v. Missouri Pacific R. Co., ; Spielman Motor Co. v. Dodge, ; Fenner v. Boykin, . It has received striking confirmation even where an important countervailing federal interest was involved. Maryland v. Soper (No. 1), ; Maryland v. Soper (No. 2), ; Maryland v. Soper (No. 3), .2 These considerations have informed our construction of the Civil Rights Act. This Act has given rise to differences of application here. Such differences inhere in the attempt to construe the remaining fragments of a comprehensive enactment, dismembered by partial repeal and invalidity, loosely and blindly drafted in the first instance,3 and drawing on the whole Constitution itself for its scope and meaning. Regardless of differences in particular cases, however, the Court's lodestar of adjudication has been that the statute "should be construed so as to respect the proper balance between the States and the federal government in law enforcement." Screws v. United States, . Only last term we reiterated our conviction that the Civil Rights Act "was not to be used to centralize power so as to upset the federal system." Collins v. Hardyman, . Discretionary refusal to exercise equitable power under the Act to interfere with State criminal prosecution is one of the devices we have sanctioned for preserving this balance. Douglas v. City of Jeannette, . And under the very section now invoked, we have withheld relief in equity even when recognizing that comparable facts would create a cause of action for damages. Compare Giles v. Harris, , with Lane v. Wilson, .In Douglas v. City of Jeannette, supra, the Court, speaking through Chief Justice Stone, said:"Congress, by its legislation, has adopted the policy, with certain well defined statutory exceptions, of leaving generally to the state courts the trial of criminal cases arising under state laws, subject to review by this Court of any federal questions involved. Hence, courts of equity in the exercise of their discretionary powers should conform to this policy by refusing to interfere with or embarrass threatened proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent; ... ." Id., at 163.4 No such irreparable injury, clear and imminent, is threatened here. At worst, the evidence sought to be suppressed may provide the basis for conviction of the petitioners in the New Jersey courts. Such a conviction, we have held, would not deprive them of due process of law. Wolf v. Colorado, supra.If these considerations limit federal courts in restraining State prosecutions merely threatened, how much more cogent are they to prevent federal interference with proceedings once begun. If the federal equity power must refrain from staying State prosecutions outright to try the central question of the validity of the statute on which the prosecution is based, how much more reluctant must it be to intervene piecemeal to try collateral issues.5 The consequences of exercising the equitable power here invoked are not the concern of a merely doctrinaire alertness to protect the proper sphere of the States in enforcing their criminal law. If we were to sanction this intervention, we would expose every State criminal prosecution to insupportable disruption. Every question of procedural due process of law - with its far-flung and undefined range - would invite a flanking movement against the system of State courts by resort to the federal forum, with review if need be to this Court, to determine the issue. Asserted unconstitutionality in the impaneling and selection of the grand6 and petit7 juries, in the failure to appoint counsel,8 in the admission of a confession,9 in the creation of an unfair trial atmosphere,10 in the misconduct of the trial court11 - all would provide ready opportunities, which conscientious counsel might be bound to employ, to subvert the orderly, effective prosecution of local crime in local courts. To suggest these difficulties is to recognize their solution.12 Mr. Justice Holmes dealt with this problem in a situation especially appealing: "The relation of the United States and the Courts of the United States to the States and the Courts of the States is a very delicate matter that has occupied the thoughts of statesmen and judges for a hundred years and can not be disposed of by a summary statement that justice requires me to cut red tape and to intervene." Memorandum of Mr. Justice Holmes in 5 The Sacco-Vanzetti Case, Transcript of the Record (Henry Holt & Co., 1929) 5516. A proper respect for those relations requires that the judgment below be Affirmed.MR. JUSTICE BLACK and MR. JUSTICE CLARK concur in the result.MR. JUSTICE MINTON took no part in the consideration or decision of this case.

Where respondent was paroled after the Court of Appeals upheld his claim in his action against petitioner parole board members that he was constitutionally entitled to certain procedural rights in connection with petitioners' consideration of his eligibility for parole, the case is moot and does not present an issue "capable of repetition, yet evading review," since the action is not a class action and there is no demonstrated probability that respondent will again be subjected to the parole system. Super Tire Engineering Co. v. McCorkle, , distinguished. 519 F.2d 728, vacated and remanded.PER CURIAM.Respondent Bradford sued petitioner members of the North Carolina Board of Parole in the United States District Court for the Eastern District of North Carolina, claiming that petitioners were obligated under the Fourteenth Amendment of the United States Constitution to accord him certain procedural rights in considering his eligibility for parole. Although respondent sought certification of the action as a class action, the District Court refused to so certify it and dismissed the complaint. On respondent's appeal to the Court of Appeals for the Fourth Circuit, that court sustained his claim that he was constitutionally entitled to procedural rights in connection with petitioners' consideration of his application for parole. Because the conclusion of the Court of Appeals was at odds with the decisions of several other Courts of Appeals, we granted certiorari on June 2, 1975, , and the case was set for oral argument during the December calendar of this Court.Respondent has now filed a suggestion of mootness with this Court, and petitioners have filed a response. It is undisputed that respondent was temporarily paroled on December 18, 1974, and that this status ripened into a complete release from supervision on March 25, 1975. From that date forward it is plain that respondent can have no interest whatever in the procedures followed by petitioners in granting parole.Conceding this fact, petitioners urge that this is an issue which is "capable of repetition, yet evading review" as that term has been used in our cases dealing with mootness. Petitioners rely on Super Tire Engineering Co. v. McCorkle, , to support their contention that the case is not moot. But there the posture of the parties was quite different. Petitioner employer was engaged in cyclically recurring bargaining with the union representing its employees, and respondent state official was continuously following a policy of paying unemployment compensation benefits to strikers. Even though the particular strike which had been the occasion for the filing of the lawsuit was terminated, the Court held that it was enough that the petitioner employer showed "the existence of an immediate and definite governmental action or policy that has adversely affected and continues to affect a present interest." and noted that "the great majority of economic strikes do not last long enough for complete judicial review of the controversies they engender." Id., at 125-126. But in the instant case, respondent, who challenged the "governmental action or policy" in question, no longer has any present interest affected by that policy.In Sosna v. Iowa, , we reviewed in some detail the historical developments of the mootness doctrine in this Court. Southern Pacific Terminal Co. v. ICC, , was the first case to enunciate the "capable of repetition, yet evading review" branch of the law of mootness. There it was held that because of the short duration of the Interstate Commerce Commission order challenged, it was virtually impossible to litigate the validity of the order prior to its expiration. Because of this fact, and the additional fact that the same party would in all probability be subject to the same kind of order in the future, review was allowed even though the order in question had expired by its own terms. This case was followed by Moore v. Ogilvie, ; SEC v. Medical Committee for Human Rights, ; and Dunn v. Blumstein, , which applied the original concept of Southern Pacific Terminal Co. v. ICC to different fact situations, including a class action in Dunn.Sosna decided that in the absence of a class action, the "capable of repetition, yet evading review" doctrine was limited to the situation where two elements combined: (1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again. The instant case, not a class action, clearly does not satisfy the latter element. While petitioners will continue to administer the North Carolina parole system with respect to those who at any given moment are subject to their jurisdiction, there is no demonstrated probability that respondent will again be among that number. O'Shea v. Littleton, .It appearing, therefore, that the case is moot, the judgment of the Court of Appeals is vacated, and the case is remanded to the District Court with instructions to dismiss the complaint. Indianapolis School Comm'rs v. Jacobs, ; United States v. Munsingwear, Inc., . So ordered.

Appellees, who had been arrested and charged with violating a Louisiana statute and a parish ordinance by displaying for sale allegedly obscene material (which was seized by the arresting officers), brought this suit in the Federal District Court for a declaration that the statute and ordinance were unconstitutional and for an injunction against their enforcement. A three-judge court which was convened upheld the statute and declined to issue an injunction, but, finding that the arrests and seizure were invalid, entered a suppression order prohibiting the use in state criminal proceedings of the illegally seized material and requiring its return to appellees. The three-judge court recognized that it had no jurisdiction to pass on the constitutionality of the ordinance but expressed the view that the ordinance was invalid. The single-judge court then declared the ordinance unconstitutional. Appellants appealed directly to this Court from the suppression order and the declaratory judgment invalidating the ordinance. Held: 1. The three-judge court erred in issuing the suppression order and thereby stifling the then-pending good-faith state criminal proceeding during which the defense should first raise its constitutional claims. Younger v. Harris, ante, p. 37. Pp. 84-85. 2. This Court has no jurisdiction to review on direct appeal the validity of the order declaring the ordinance invalid, since it was a decision of a single federal judge and as such was appealable only to the Court of Appeals. Pp. 86-88. 304 F. Supp. 662, reversed in part, and vacated and remanded in part.BLACK, J., delivered the opinion of the Court, in which BURGER, C. J., and HARLAN, STEWART, and BLACKMUN, JJ., joined. STEWART, J., filed a concurring opinion, in which BLACKMUN, J., joined post, p. 89. DOUGLAS, J., filed an opinion dissenting in part, post, p. 90. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which WHITE and MARSHALL, JJ., joined, post, p. 93.Charles H. Livaudais argued the cause for appellants. With him on the brief was Robert J. Klees. Jack Peebles argued the cause for appellees. With him on the brief were Stanley Fleishman and Robert Eugene Smith.MR. JUSTICE BLACK delivered the opinion of the Court.Given our decisions today in No. 2, Younger v. Harris, ante, p. 37; No. 7, Samuels v. Mackell, and No. 9, Fernandez v. Mackell, ante, p. 66; No. 4, Boyle v. Landry, ante, p. 77; No. 83, Byrne v. Karalexis, post, p. 216; and No. 41, Dyson v. Stein, post, p. 200, in which we have determined when it is appropriate for a federal court to intervene in the administration of a State's criminal laws, the disposition of this case should not be difficult.ILedesma and the other appellees operated a newsstand in the Parish of St. Bernard, Louisiana, where they displayed for sale allegedly obscene magazines, books, and playing cards. As a result of this activity, appellees were charged in four informations filed in state court with violations of Louisiana statute, La. Rev. Stat. Ann. 14:106 (Supp. 1970), and St. Bernard Parish Ordinance 21-60. After the state court proceedings had commenced by the filing of the informations, appellees instituted the instant suit in the United States District Court for the Eastern District of Louisiana, New Orleans Division. Since the appellees sought a judgment declaring a state statute of statewide application unconstitutional, together with an injunction against pending or future prosecutions under the statute, a three-judge court was convened. That court held the Louisiana statute constitutional on its face, but ruled that the arrests of appellees and the seizure of the allegedly obscene materials were invalid for lack of a prior adversary hearing on the character of the seized materials. Although the three-judge court declined to issue an injunction against the pending or any future prosecutions, it did enter a suppression order and require the return of all the seized material to the appellees. 304 F. Supp. 662, 667-670 (1969). The local district attorney and other law enforcement officers appealed and we set the case for argument but postponed the question of jurisdiction to the hearing on the merits. .1 It is difficult to imagine a more disruptive interference with the operation of the state criminal process short of an injunction against all state proceedings. Even the three-judge court recognized that its judgment would effectively stifle the then-pending state criminal prosecution. "In view of our holding that the arrests and seizures in these cases are invalid for want of a prior adversary judicial determination of obscenity, which holding requires suppression and return of the seized materials, the prosecutions should be effectively terminated." 304 F. Supp., at 670. (Emphasis added.) Moreover, the District Court retained jurisdiction "for the purposes of hereafter entering any orders necessary to enforce" its view of the proper procedures in the then-pending state obscenity prosecution. According to our holding in Younger v. Harris, supra, such federal interference with a state prosecution is improper. The propriety of arrests and the admissibility of evidence in state criminal prosecutions are ordinarily matters to be resolved by state tribunals, see Stefanelli v. Minard, , subject, of course, to review by certiorari or appeal in this Court or, in a proper case, on federal habeas corpus. Here Ledesma was free to present his federal constitutional claims concerning arrest and seizure of materials or other matters to the Louisiana courts in the manner permitted in that State. Only in cases of proven harassment or prosecutions undertaken by state officials in bad faith without hope of obtaining a valid conviction and perhaps in other extraordinary circumstances where irreparable injury can be shown is federal injunctive relief against pending state prosecutions appropriate. See Younger v. Harris, supra; Ex Parte Young, . There is nothing in the record before us to suggest that Louisiana officials undertook these prosecutions other than in a good-faith attempt to enforce the State's criminal laws. We therefore hold that the three-judge court improperly intruded into the State's own criminal process and reverse its orders suppressing evidence in the pending state prosecution and directing the return of all seized materials.IIAfter crippling Louisiana's ability to enforce its criminal statute against Ledesma, the three-judge court expressed the view that the Parish of St. Bernard Ordinance 21-60 was invalid. Although the court below recognized that "it is not the function of a three-judge federal district court to determine the constitutionality or enjoin the enforcement of a local ordinance," the court nevertheless seized the "opportunity to express its views on the constitutionality of the ordinance." 304 F. Supp. 662, 670 n. 31 (1969). Judge Boyle, the District Judge who initially referred the action to the three-judge court, adopted that court's view and declared the parish ordinance invalid. There is considerable question concerning the propriety of issuing a declaratory judgment against a criminal law in the circumstances of this case.2 IIIWe are, however, unable to review the decision concerning the local ordinance because this Court has no jurisdiction to review on direct appeal the validity of a declaratory judgment against a local ordinance, such as St. Bernard Parish Ordinance 21-60. Even if an order granting a declaratory judgment against the ordinance had been entered by the three-judge court below (which it had not), that court would have been acting in the capacity of a single-judge court. We held in Moody v. Flowers, , that a three-judge court was not properly convened to consider the constitutionality of a statute of only local application, similar to a local ordinance. Under 28 U.S.C. 1253 we have jurisdiction to consider on direct appeal only those civil actions "required ... to be heard and determined" by a three-judge court. Since the constitutionality of this parish ordinance was not "required ... to be heard and determined" by a three-judge panel, there is no jurisdiction in this Court to review that question.The fact that a three-judge court was properly convened in this case to consider the injunctive relief requested against the enforcement of the state statute, does not give this Court jurisdiction on direct appeal over other controversies where there is no independent jurisdictional base. Even where a three-judge court is properly convened to consider one controversy between two parties, the parties are not necessarily entitled to a three-judge court and a direct appeal on other controversies that may exist between them.3 See Public Service Comm'n v. Brashear Freight Lines, .In this case, the order granting the declaratory judgment was not issued by a three-judge court, but rather by Judge Boyle, acting as a single district judge. The three-judge court stated:"The view expressed by this court concerning the constitutionality of the ordinance is shared by the initiating federal district judge and is adopted by reference in his opinion issued contemporaneously herewith." 304 F. Supp., at 670 n. 31. (Emphasis added.) The last clause of the quoted sentence indicates what, under Moody v. Flowers, must be the case: The decision granting declaratory relief against the Parish of St. Bernard Ordinance 21-60 was the decision of a single federal judge. This fact is confirmed by the orders entered by the two courts. The three-judge court entered the following order at the end of its opinion. "Accordingly, for the reasons assigned, it is ordered that judgment in both cases be entered decreeing: "1. That all seized materials be returned, instanter, to those from whom they were seized, "2. That said materials be suppressed as evidence in any pending or future prosecutions of the plaintiffs, "3. That the preliminary and permanent injunctions prayed for be denied, and "4. That jurisdiction be retained herein for the issuance of such further orders as may be necessary and proper." The order of the single-judge District Court is as follows: "For the reasons assigned in the foregoing 3-Judge Court opinion, it is ordered that judgment be entered herein decreeing: "1. That St. Bernard Parish Ordinance No. 21-60 is unconstitutional. "2. That jurisdiction be retained herein for the issuance of such further orders as may be necessary and proper." 304 F. Supp., at 670-671. The fact that the clerk of the District Court merged these orders into one judgment does not confer jurisdiction upon this Court. In the first place, our jurisdiction cannot be made to turn on an inadvertent error of a court clerk. Second, the jurisdictional statute by its own terms grants a direct appeal from "an order granting or denying" an injunction. 28 U.S.C. 1253. (Emphasis added.) Since the order entered by the three-judge court omits any reference to declaratory relief, the discussion of such relief in the court's opinion is dictum.The judgment of the court below is reversed insofar as it grants injunctive relief. In all other respects the judgment is vacated and the case remanded to the United States District Court with instructions to enter a fresh decree from which the parties may take an appeal to the Court of Appeals for the Fifth Circuit if they so desire. It is so ordered.

Prior to the completion of its construction, petitioner, a private, acute-care community hospital in the Kansas City, Mo., metropolitan area, sought to enter into a participating hospital agreement with respondent Blue Cross of Kansas City (Blue Cross), a nonprofit provider of individual and group health-care reimbursement plans in the area. Blue Cross refused on the basis of its policy barring participation by any new hospital that could not show that it was meeting a clearly evident need for health-care services in its service area. Blue Cross relied on petitioner's failure to obtain approval for construction from the Mid-America Health Systems Agency (MAHSA), a private, nonprofit, federally funded corporation which was the local "health system agency" (HSA) designated for the area under the National Health Planning and Resources Development Act of 1974 (NHPRDA). MAHSA's major function is health planning for the Kansas City metropolitan area. Petitioner had not sought approval of its construction from MAHSA because of the latter's announced policy that it would not approve any addition of acute-care beds in view of its determination that there was a surplus of hospital beds in the area. Alleging a wrongful refusal to deal and a conspiracy between Blue Cross and MAHSA, which resulted in a competitive disadvantage to it, petitioner filed suit against respondents Blue Cross and the National Blue Cross Association for violation of the Sherman Act. Respondents contended that the NHPRDA had impliedly repealed the antitrust laws as applied to the conduct in question. The District Court granted judgment for respondents, finding a clear repugnancy between the NHPRDA and the antitrust laws, and congressional intent to repeal the antitrust laws in this context. The Court of Appeals affirmed.Held: Although respondents may have acted with only the highest motives in seeking to implement the plans of the local HSA, they cannot defeat petitioner's antitrust claim by the assertion of immunity from the requirements of the Sherman Act. Pp. 388-393. (a) Implied antitrust immunity can be justified only by a convincing showing of clear repugnancy between the antitrust laws and the regulatory system. Even when an industry is regulated substantially, this does not necessarily evidence an intent to repeal the antitrust laws with respect to every action taken within the industry. And intent to repeal the antitrust laws is much clearer when a regulatory agency has been empowered to regulate the type of conduct under antitrust challenge. Pp. 388-389. (b) The action challenged here was neither compelled nor approved by any governmental regulatory body. Instead, it was a spontaneous response to the finding of only an advisory planning body, the local HSA which, under the NHPRDA, has no regulatory authority over health-care providers. And the application of the antitrust laws to the Blue Cross' conduct would not frustrate a particular provision of the NHPRDA or create a conflict with the orders of any regulatory body. Nor does the NHPRDA require Blue Cross to take an action that, in essence, sought to enforce the advisory decision of MAHSA. There is no reason to believe that Congress specifically contemplated "enforcement" of advisory decisions of an HSA by private insurance providers, let alone relied on such actions to put "teeth" into the noncompulsory local planning process. Pp. 389-391. (c) And NHPRDA is not so incompatible with antitrust concerns as to create a "pervasive" repeal of the antitrust laws as applied to every action taken in response to the health-care planning process. Respondents have failed to make the showing necessary for an exemption of all such actions. Pp. 391-393. 628 F.2d 1050, reversed and remanded.POWELL, J., delivered the opinion for a unanimous Court.Erwin N. Griswold argued the cause for petitioner. With him on the briefs were Joe Sims and James M. Beck.Joshua F. Greenberg argued the cause for respondents. With him on the brief were Abraham Ribicoff, Richard M. Steuer, Harry P. Thomson, Jr., Jennifer A. Gille, John C. Noonan, and Max O. Bagley.Solicitor General McCree argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Acting Assistant Attorney General Favretto, Deputy Solicitor General Wallace, Stephen M. Shapiro, Barry Grossman, and Andrea Limmer.* JUSTICE POWELL delivered the opinion of the Court.The petitioner in this case, National Gerimedical Hospital and Gerontology Center (National Gerimedical) filed an antitrust suit against respondents, Blue Cross of Kansas City (Blue Cross) and the national Blue Cross Association, challenging the refusal of Blue Cross to accept petitioner as a participating member provider under its health insurance plan. The issue presented here is whether this refusal by Blue Cross is immunized from antitrust scrutiny because it was intended to aid implementation of the plans of the "health systems agency" designated for the Kansas City area under the National Health Planning and Resources Development Act of 1974.IPetitioner National Gerimedical is a private, acute-care community hospital opened in 1978 in the Kansas City, Mo., metropolitan area.1 Prior to the completion of construction, petitioner sought to enter into a participating hospital agreement with Blue Cross, a nonprofit provider of individual and group health-care reimbursement plans in Missouri and Kansas. Under such an agreement, participating hospitals receive direct reimbursement of the full costs of covered services rendered to individual Blue Cross subscribers.2 When subscribers receive care in hospitals that are not participating members, Blue Cross pays only 80% of the cost, and these payments are made to the subscriber, rather than directly to the hospital. Blue Cross refused to enter into a participating hospital agreement with petitioner on the basis of its official policy barring participation by any new hospital that could not show that it was meeting "a clearly evident need for health care services in its defined service area."3 In determining that petitioner had not satisfied this requirement, Blue Cross relied on petitioner's failure to obtain approval for construction from the local "health systems agency" or "HSA" - the Mid-America Health Systems Agency (MAHSA).4 This agency is a private, nonprofit corporation, federally funded under the National Health Planning and Resources Development Act of 1974 (NHPRDA), 88 Stat. 2229, as amended, 42 U.S.C. 300l (1976 ed. and Supp. IV). Its major function is health planning for the Kansas City metropolitan area.In conducting its planning functions, MAHSA had determined that there was a surplus of hospital beds in the area and had announced that it would not approve any addition of acute-care beds in area hospitals. As a result of this announced policy, petitioner did not seek MAHSA approval of its construction, leading to the refusal of participating hospital status by Blue Cross.Claiming that this refusal by Blue Cross put it at a competitive disadvantage, petitioner filed suit in the United States District Court for the Western District of Missouri against Blue Cross and the national Blue Cross Association. It claimed violations of 1 and 2 of the Sherman Act, 15 U.S.C. 1, 2, alleging a wrongful refusal to deal and a conspiracy between Blue Cross and MAHSA.5 As relief, petitioner sought treble damages and an injunction to prevent future violations.Respondents moved to dismiss the complaint on the ground that the NHPRDA had impliedly repealed the antitrust laws as applied to the conduct in question.6 The District Court treated this motion as one for summary judgment, and granted judgment for respondents. 479 F. Supp. 1012 (1979). It reasoned that if private parties seeking to effectuate the planning objectives of an HSA could be subjected to antitrust liability, accomplishment of the goals of the NHPRDA would be frustrated. Id., at 1021. Having found a "clear repugnancy," id., at 1024, between this Act and the antitrust laws, the court relied largely on legislative history for the view that "Congress intended that action taken pursuant to the Act and clearly within the scope of the Act would be exempt from application of the antitrust laws," ibid. The United States Court of Appeals for the Eighth Circuit affirmed, essentially adopting the reasoning of the District Court. 628 F.2d 1050 (1980). The Court of Appeals agreed with the District Court's "finding of clear repugnancy between the Act and the antitrust laws, as the Act and regulatory scheme clearly call for the action which has now become the basis of an antitrust claim." Id., at 1055-1056. It then quoted in full the District Court's argument for the view that Congress intended repeal of the antitrust laws in this context.We granted a writ of certiorari to review this important question. .IIOur decision in this case requires careful attention to the structure and goals of the NHPRDA, as well as a review of this Court's decisions in the area of implied repeals of the antitrust laws. We begin with a description of the complex scheme of regulatory and planning agencies established by the NHPRDA in order to assess the legal significance of that Act with respect to the antitrust claim brought here.MAHSA, the health systems agency whose refusal to approve new hospital construction in the Kansas City area prompted Blue Cross not to accept petitioner as a participating hospital, is but one part of a larger statutory scheme. The NHPRDA, 42 U.S.C. 300k et seq., created federal, state, and local bodies that coordinate their activities in the area of health planning and policy. Building on existing planning and development statutes,7 Congress sought in 1974 to create a statutory scheme that would assist in preventing overinvestment in and maldistribution of health facilities. See 1974 Senate Report, at 39.HSA's such as MAHSA are concerned with health planning in a particular metropolitan area. See generally H. R. Rep. No. 93-1382, pp. 40-41 (1974). Each is a nonprofit private corporation, public regional planning body, or single unit of local government, serving a particular "health service area." 42 U.S.C. 300l-1 (b) (1). The statute requires that a majority of HSA board members be consumers of health care and that at least 40% be health-care "providers." 300l-1 (b) (3) (C). The "primary responsibility" of each HSA is "effective health planning for its health service area and the promotion of the development within the area of health services, manpower, and facilities which meet identified needs, reduce documented inefficiencies, and implement the health plans of the agency." 300l-2 (a). As originally enacted, the Act established four general goals: "improving the health of residents," "increasing the accessibility ..., acceptability, continuity, and quality of ... health services," "restraining increases in the cost of ... health services," and "`preventing unnecessary duplication of health resources." 300l-2 (a).8 To accomplish these goals, the Act requires each HSA to formulate a "detailed statement of goals" called a "health systems plan," 300l-2 (b) (2), an "annual implementation plan" describing the objectives that will achieve the goals of the general plan, 300l-2 (b) (3), and "specific plans and projects for achieving the objectives established in the" annual implementation plan, 300l-2 (b) (4). Each HSA is instructed to "seek, to the extent practicable, to implement [its plans] with the assistance of individuals and public and private entities in its health service area." 300l-2 (c) (1). In addition, it may provide "technical assistance" to individuals and public and private entities for the development of necessary projects and programs, 300l-2 (c) (2), and should use grants and contracts to encourage these projects and programs, 300l-2 (c) (3). The agencies do not possess regulatory authority over health-care providers.At the state level, the Act created two separate bodies. The first, a State Health Planning and Development Agency, is a state agency created by agreement between a Governor and the Federal Government. See 300m. It is intended to perform certain crucial functions that cannot be undertaken by local HSA's:"Specifically, the integration and synthesis of areawide health plans into a Statewide health plan, the establishment of priorities within the State, and the performance of regulatory functions are most appropriately carried out at the State level. The latter function can appropriately be carried out only by an agency of State government." 1974 Senate Report, at 52. Each state agency must be governed by a "State Program," which the Secretary of Health and Human Services may approve only if it meets guidelines set out in 42 U.S.C. 300m-1, 300m-2. Included in these guidelines is the requirement that each State establish a "certificate of need" program under which all new institutional health facilities must seek state approval prior to construction. 300m-2 (a) (4) (A).9 This procedure is "the basic component in an overall effort to control the unnecessary capital expenditures which contribute so greatly to the total national health bill." S. Rep. No. 96-96, p. 5 (1979) (hereinafter 1979 Senate Report).The State Health Planning and Development Agency is advised by a Statewide Health Coordinating Council, composed in part of representatives of local HSA's. This council is empowered to review the plans of HSA's, review and revise state plans, and make recommendations with respect to applications for federal funds from HSA's and States. 42 U.S.C. 300m-3 (c).In addition to various review functions, the Federal Government plays a separate role in this statutory scheme. The NHPRDA requires the Secretary of Health and Human Services to issue guidelines concerning the appropriate supply, distribution, and organization of health resources. 300k-1; see 42 CFR 121.1 et seq. (1980). Finally, the Act created a National Council on Health Planning and Development to advise the Secretary on these guidelines and on the general administration of the Act. 42 U.S.C. 300k-3.This elaborate planning structure was intended by Congress to remedy perceived deficiencies in the performance of the health-care industry as it existed prior to 1974. The problems addressed fall into two categories. First, there was concern that marketplace forces in this industry failed to produce efficient investment in facilities and to minimize the costs of health care.10 In addition, Congress sought to reduce the maldistribution of health-care facilities.11 In 1979, Congress amended the NHPRDA substantially in the Health Planning and Resources Development Amendments of 1979, Pub. L. 96-79, 93 Stat. 592. A purpose of these Amendments was to "[d]irect that special consideration be given throughout the planning process to the importance of maintaining and improving competition in the health industry." 1979 Senate Report, at 3.12 Toward this end, Congress added a number of provisions requiring promotion of competition at the local, state, and federal levels. 42 U.S.C. 300k-2 (b), 300l-2 (a) (5) (1976 ed., Supp. IV); 42 U.S.C. 300n-1 (c) (11), (12) (1976 ed., Supp. IV). See generally H. R. Conf. Rep. No. 96-420, p. 58 (1979). In so doing, however, Congress recognized a distinction between areas where competition could serve a useful purpose and those where some other allocation of resources remained necessary.13 IIINational Gerimedical contends that the denial by Blue Cross of participating hospital status violated the antitrust laws. Blue Cross defends on the ground that it acted pursuant to the local HSA plan and only intended to further the purposes of the NHPRDA. It argues that, despite the absence of any reference to the antitrust laws in the NHPRDA, the creation of the planning structure summarized above implied a repeal of those laws, as applied to this conduct.On a number of occasions, this Court has faced similar claims of antitrust immunity in the context of various regulated industries. The general principles applicable to such claims are well established. The antitrust laws represent a "fundamental national economic policy." Carnation Co. v. Pacific Westbound Conference, ; see Lafayette v. Louisiana Power & Light Co., . "Implied antitrust immunity is not favored, and can be justified only by a convincing showing of clear repugnancy between the antitrust laws and the regulatory system." United States v. National Association of Securities Dealers, ; see Gordon v. New York Stock Exchange, ; United States v. Philadelphia National Bank, (1963). "Repeal is to be regarded as implied only if necessary to make the [subsequent law] work, and even then only to the minimum extent necessary. This is the guiding principle to reconciliation of the two statutory schemes." Silver v. New York Stock Exchange, .To be sure, where Congress did intend to repeal the antitrust laws, that intent governs, United States v. National Association of Securities Dealers, supra; Gordon v. New York Stock Exchange, supra, but this intent must be clear. Even when an industry is regulated substantially, this does not necessarily evidence an intent to repeal the antitrust laws with respect to every action taken within the industry. E. g., Otter Tail Power Co. v. United States, ; United States v. Radio Corp. of America, . Intent to repeal the antitrust laws is much clearer when a regulatory agency has been empowered to authorize or require the type of conduct under antitrust challenge. E. g., United States v. National Association of Securities Dealers, supra, at 730-734; Gordon v. New York Stock Exchange, supra, at 689-690.In the present case, we must apply these precedents to an industry with a regulatory structure quite different from those considered previously. The action challenged here was neither compelled nor approved by any governmental, regulatory body. Instead, it was a spontaneous response to the finding of an advisory planning body, the local HSA, that there was a surplus of acute-care hospital beds in the Kansas City area.14 Indeed, when respondents refused to enter into the agreement with petitioner, the regulatory aspects of the NHPRDA - controlled by the state health planning agencies - were not in place in Missouri. There simply was no regulation of this hospital construction, as Missouri had not established any state regulatory agency with authority to review hospital construction.15 As a result, the claim of implied antitrust immunity in this case is weaker than in previous cases. It cannot be argued that application of the antitrust laws to the conduct of Blue Cross would frustrate a particular provision of the NHPRDA or create a conflict with the orders of any regulatory body. The record discloses no formal request from MAHSA to Blue Cross to refrain from accepting petitioner as a new participating hospital. Even if such a request had been made, it could not have been more than the advice of a private planning body - albeit a planning body created and funded by the Federal Government. This fact is crucial, because antitrust repeals are especially disfavored where the antitrust implications of a business decision have not been considered by a governmental entity. United States v. Radio Corp. of America, supra, at 339, 346; cf. Otter Tail, supra, at 374 ("When ... relationships are governed in the first instance by business judgment and not regulatory coercion, courts must be hesitant to conclude that Congress intended to override the fundamental national policies embodied in the antitrust laws"). Respondents rely on the fact that a major function of an HSA is planning in order to eliminate unnecessary duplication of hospital services, 42 U.S.C. 300l-2 (a) (4) (1976 ed., Supp. IV), and point to statutory language requiring each HSA to "seek, to the extent practicable, to implement its [health plans] with the assistance of individuals and public and private entities in its health service area," 300l-2 (c) (1). Here, respondents argue, the HSA found that petitioner was duplicating hospital facilities unnecessarily, and Blue Cross merely sought to aid in the "implementation" of that finding.We are unpersuaded, however, that the provisions cited by respondents are sufficient to create a "clear repugnancy" between the NHPRDA and the antitrust laws, at least on the facts of this case. See n. 18, infra. Nothing in the NHPRDA requires Blue Cross to take an action that, in essence, sought to enforce the advisory decision of MAHSA. HSA's themselves are required to seek private cooperation only "to the extent practicable." 42 U.S.C. 300l-2 (c) (1). And there is no reason to believe that Congress specifically contemplated such "enforcement" by private insurance providers, let alone relied on such actions to put "teeth" into the noncompulsory local planning process. Congress expected HSA planning to be implemented mainly through persuasion and cooperation. If an HSA recommendation could be used to justify antitrust immunity for such an act of private enforcement, this effectively would give that recommendation greater force than Congress intended.16 As there is no direct conflict between the requirements of the NHPRDA and the Sherman Act with respect to the conduct at issue here, respondents' only remaining argument must be that the NHPRDA immunizes all private conduct undertaken in response to the health planning process. Arguably, the fundamental assumption of Congress, particularly in 1974 when it passed the original Act,17 was that competition was not a relevant consideration in the health-care industry. If so, although that industry is not regulated in any comprehensive fashion, it might be concluded that Congress intended "pervasive" cooperation and planning without the interference of antitrust suits.This argument has some force, in light of the prominence Congress gave to the view that "the health care industry does not respond to classic marketplace forces." 1974 Senate Report, at 39. Perhaps it makes little sense in such a context to entertain antitrust suits intended to promote or protect free competition. It is clear, however, that respondents have failed to make the showing necessary for an exemption of all actions of health-care providers taken in response to planning recommendations. In other industrial contexts, we have refused such a blanket exemption, despite a clear congressional finding that some substitution of regulation for competition was necessary. Carnation Co. v. Pacific Westbound Conference, 383 U.S., at 217-219 (maritime industry); Otter Tail, 410 U.S., at 373-374 (electric power industry). These holdings are based on the guiding principle that, where possible, "the proper approach ... is an analysis which reconciles the operation of both statutory schemes with one another rather than holding one completely ousted." Silver, 373 U.S., at 357. There is no indication that Congress intended a different result with respect to the health-care industry. One manifestation of this is the fact that in the 1979 Amendments Congress did not alter the basic planning structure, even as it made plain its intent that "competition and consumer choice" are to be favored wherever they "can constructively serve ... to advance the purposes of quality assurance, cost effectiveness, and access." 42 U.S.C. 300k-2 (a) (17) (1976 ed., Supp. IV).18 We hold, therefore, that the NHPRDA is not so incompatible with antitrust concerns as to create a "pervasive" repeal of the antitrust laws as applied to every action taken in response to the health-care planning process. Moreover, as discussed above, there was no specific conflict between the Act and the antitrust laws in this case. Although respondents may well have acted here with only the highest of motives in seeking to implement the plans of the local HSA, they cannot defeat petitioner's antitrust claim by the assertion of immunity from the requirements of the Sherman Act.19 As a result, the judgment below must be reversed and the case remanded. It is so ordered.[Footnote *] Carl Weissburg and J. Mark Waxman filed a brief for the Federation of American Hospitals as amicus curiae urging reversal.

The Immigration Reform and Control Act of 1986 (Reform Act) amended the Immigration and Nationality Act (INA) creating, inter alia, a "Special Agricultural Workers" (SAW) amnesty program for specified alien farmworkers. The Immigration and Naturalization Service (INS) determined SAW status eligibility based on evidence presented at a personal interview with each applicant. Section 210(e)(1) of the INA barred judicial review "of a determination respecting an application" except in the context of judicial review of a deportation order, a review conducted by the courts of appeals. Respondents, the Haitian Refugee Center and unsuccessful individual SAW applicants, filed a class action in the District Court, alleging that the initial application review process was conducted in an arbitrary manner in violation of the Reform Act and the applicants' due process rights under the Fifth Amendment. While recognizing that individual aliens could not obtain judicial review of denials of their SAW status applications except in deportation proceedings in the courts of appeals, the District Court accepted jurisdiction because the complaint did not challenge any individual determination of any application for SAW status, but rather contained allegations about the manner in which the entire program was being implemented. The court found that a number of INS practices violated the Reform Act and were unconstitutional, and the Court of Appeals affirmed.Held: The District Court had federal question jurisdiction to hear respondents' constitutional and statutory challenges to the INS procedures. Pp. 491-499. (a) There is no clear congressional language mandating preclusion of jurisdiction. Section 210(e)(1)'s language prohibiting judicial review "of a determination respecting an application" refers to the process of direct review of individual denials of SAW status, not to general collateral challenges to unconstitutional practices and policies used by the INS in processing applications. The reference to "a determination" describes a single act, as does the language of 210(e)(3), which provides for "judicial review of such a denial." Section 210(e)(3)(B), which specifies that judicial review is to be based on the administrative record, and that factual determinations contained in such a record shall be conclusive absent a showing of an abuse of discretion, supports this reading. A record emerging from the administrative appeals process does not address the kind of procedural and constitutional claims respondents have brought, and the abuse-of-discretion standard does not apply to constitutional or statutory determinations, which are subject to de novo review. Limiting judicial review of general constitutional and statutory challenges to the provisions set forth in 210(e) therefore is not contemplated. Moreover, had Congress intended the limited review provisions of 210(e) to encompass challenges to INS procedures and practices, it could easily have used broader statutory language. Pp. 481-494. (b) As a practical matter, the individual respondents would be unable to obtain meaningful judicial review of their application denials or of their objections to INS procedures if they were required to avail themselves of the INA's limited judicial review procedures. Under the statutory scheme, review of an individual determination would be limited to the administrative record, which respondents have alleged is inadequate; aliens would have to surrender themselves for deportation in order to receive any judicial review, which is tantamount to a complete denial of such review; and a court of appeals reviewing an individual determination would most likely not have an adequate record as to a pattern of allegedly unconstitutional practices, and would lack a district court's factfinding and record-developing capabilities. Given this Court's well settled presumption favoring interpretations of statutes that allow judicial review of administrative action, the Court cannot conclude that Congress so intended to foreclose all forms of meaningful judicial review of SAW application denials and general collateral challenges to INS procedures. This case is therefore controlled by Bowen v. Michigan Academy of Family Physicians, , which interpreted the Medicare statute to permit individuals to challenge a payment regulation's validity even though the statute barred judicial review of individual claims for payment under the regulation. Heckler v. Ringer, , distinguished. Pp. 494-499. 872 F.2d 1555, affirmed.STEVENS, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, O'CONNOR, KENNEDY, and SOUTER, JJ., joined, and in Parts I, II, III, and IV of which WHITE, J., joined. REHNQUIST, C.J., filed a dissenting opinion, in which SCALIA, J., joined, post, p. 499.Michael R. Dreeben argued the cause for petitioners. With him on the briefs were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Shapiro, and David V. Bernal.Ira J. Kurzban argued the cause for respondents. With him on the brief were Bruce J. Winick, Irwing P. Stotzky, and Edward Copeland.* [Footnote *] Briefs of amici curiae urging affirmance were filed for the State of California et al. by Joseph R. Austin, John K. Van de Kamp, Attorney General of California, Andrea Sheridan Ordin, Chief Assistant Attorney General, Fredric D. Woocher, Robert A. Ginsburg, Niels Frenzen, Jorge L. Fernandez, and Richard K. Mason; for the American Bar Association by John J. Curtin, Jr., Robert E. Juceam, Sandra M. Lipsman, Craig H. Baab, and Carol L. Wolchok; for the American Federation of Labor and Congress of Industrial Organizations by Michael Rubin, Marsha S. Berzon, and Laurence Gold; and for the Farm Labor Alliance et al. by Peter A. Schey, Wayne H. Matelski, Monte B. Lake, Ralph Santiago Abascal, and Robert Gibbs.JUSTICE STEVENS delivered the opinion of the Court.FnThe Immigration Reform and Control Act of 1986 (Reform Act)1 constituted a major statutory response to the vast tide of illegal immigration that had produced a "shadow population" of literally millions of undocumented aliens in the United States. On the one hand, Congress sought to stem the tide by making the plight of the undocumented alien even more onerous in the future than it had been in the past; thus, the Reform Act imposed criminal sanctions on employers who hired undocumented workers2 and made a number of federally funded welfare benefits unavailable to these aliens.3 On the other hand, in recognition that a large segment of the shadow population played a useful and constructive role in the American economy,4 but continued to reside in perpetual fear,5 the Reform Act established two broad amnesty programs to allow existing undocumented aliens to emerge from the shadows.The first amnesty program permitted any alien who had resided in the United States continuously and unlawfully since January 1, 1982, to qualify for an adjustment of his or her status to that of a lawful permanent resident. See 100 Stat. 3394, as amended, 8 U.S.C. 1255a. The second program required the Attorney General to adjust the status of any alien farmworker who could establish that he or she had resided in the United States and performed at least 90 days of qualifying agricultural work during the 12-month period prior to May 1, 1986, provided that the alien could also establish his or her admissibility in the United States as an immigrant. The Reform Act required the Attorney General first to adjust the status of these aliens to "Special Agricultural Workers" (SAW) lawfully admitted for temporary residence, see 100 Stat. 3417, as amended, 8 U.S.C. 1160(a)(1), and then eventually to aliens lawfully admitted for permanent residence, see 1160(a)(2).This case relates only to the SAW amnesty program. Although additional issues were resolved by the District Court and the Court of Appeals, the only question presented to us is whether 210(e) of the Immigration and Nationality Act (INA), which was added by 302(a) of the Reform Act and sets forth the administrative and judicial review provisions of the SAW program, see 8 U.S.C. 1160(e), precludes a federal district court from exercising general federal question jurisdiction over an action alleging a pattern or practice of procedural due process violations by the Immigration and Naturalization Service (INS) in its administration of the SAW program. We hold that, given the absence of clear congressional language mandating preclusion of federal jurisdiction and the nature of respondents' requested relief, the District Court had jurisdiction to hear respondents' constitutional and statutory challenges to INS procedures. Were we to hold otherwise and instead require respondents to avail themselves of the limited judicial review procedures set forth in 210(e) of the INA, meaningful judicial review of their statutory and constitutional claims would be foreclosed.IThe Reform Act provided three important benefits to an applicant for SAW status. First, the mere filing of a "nonfrivolous application" entitled the alien to a work authorization that would remain valid during the entire period that the application was being processed. See 8 U.S.C. 1160(d)(2)(B). Second, regardless of the disposition of the application, the Reform Act expressly prohibited the Government from using any information in the application for enforcement purposes. Thus, the application process could not be used as a means of identifying deportable aliens; rather, the initiation of a deportation proceeding had to be based on evidence obtained from an independent source. See 1160(b)(6). Third, if SAW status was granted, the alien became a lawful temporary resident, see 1160(a)(1), and, in due course, could obtain the status of a permanent resident, see 1160(a)(2).In recognition that the fear of prosecution or deportation would cause many undocumented aliens to be reluctant to come forward and disclose their illegal status, the Reform Act directed the Attorney General to enlist the assistance of a variety of nonfederal organizations to encourage aliens to apply and to provide them with counsel and assistance during the application process. These "Qualified Designated Entities" (QDE's), which included private entities such as farm labor organizations and associations of agricultural employers as well as qualified state, local, and community groups, were not allowed to forward applications for SAW status to the Attorney General unless the applicant consented. See 1160(b)(2), (b)(4).The Reform Act provided that SAW status applications could be filed with a specially created Legalization Office (LO), or with a QDE, which would forward applications to the appropriate LO, during an 18-month period commencing on June 1, 1987. See 1160(b)(1)(A). Regulations adopted by the INS to administer the program provided for a personal interview of each applicant at an LO. See 8 CFR 210.2(c)(2)(iv) (1990). In the application, the alien had to prove by a preponderance of the evidence that he or she worked the requisite 90 days of qualifying seasonal agricultural services. See 210.3(a), (b)(1). To meet the burden of proof, the applicant was required to present evidence of eligibility independent of his or her own testimony. See 210.3(b)(2). The applicant could meet this burden through production of his or her employer's payroll records, see 8 U.S.C. 1160(b)(3)(B)(ii), or through submission of affidavits "by agricultural producers, foremen, farm labor contractors, union officials, fellow employees, or other persons with specific knowledge of the applicant's employment." See 8 CFR 210.3(c)(3) (1990). At the conclusion of the interview and of the review of the application materials, the LO could deny the application or make a recommendation to a regional processing facility that the application be either granted or denied. See 210.1(q). A denial, whether at the regional or local level, could be appealed to the legalization appeals unit, which was authorized to make the final administrative decision in each individual case. See 103.3(a)(2)(iii).The Reform Act expressly prohibited judicial review of such a final administrative determination of SAW status except as authorized by 210(e)(3)(A) of the amended INA. That subsection permitted "judicial review of such a denial only in the judicial review of an order of exclusion or deportation."6 In view of the fact that the courts of appeals constitute the only fora for judicial review of deportation orders, see 75 Stat. 651, as amended, 8 U.S.C. 1105a, the statute plainly foreclosed any review in the district courts of individual denials of SAW status applications. Moreover, absent initiation of a deportation proceeding against an unsuccessful applicant, judicial review of such individual determinations was completely foreclosed. IIThis action was filed in the District Court for the Southern District of Florida by the Haitian Refugee Center, the Migration and Refugee Services of the Roman Catholic Diocese of Palm Beach,7 and 17 unsuccessful individual SAW applicants. The plaintiffs sought relief on behalf of a class of alien farmworkers who either had been or would be injured by unlawful practices and policies adopted by the INS in its administration of the SAW program. The complaint alleged that the interview process was conducted in an arbitrary fashion that deprived applicants of the due process guaranteed by the Fifth Amendment to the Constitution. Among other charges, the plaintiffs alleged that INS procedures did not allow SAW applicants to be apprised of or to be given opportunity to challenge adverse evidence on which denials were predicated, that applicants were denied the opportunity to present witnesses on their own behalf, that non-English speaking Haitian applicants were unable to communicate effectively with LOs because competent interpreters were not provided, and that no verbatim recording of the interview was made, thus inhibiting even any meaningful administrative review of application denials by LOs or regional processing facilities. See App. 44-45; Haitian Refugee Center, Inc. v. Nelson, 694 F.Supp. 864, 867 (SD Fla. 1988).After an evidentiary hearing, the District Court ruled that it had jurisdiction, that the case should proceed as a class action, and that a preliminary injunction should issue. The court recognized that individual aliens could not contest the denial of their SAW applications "unless and until the INS institut[ed] deportation proceedings against them," but accepted jurisdiction because the complaint "does not challenge any individual determination of any application for SAW status, but rather attacks the manner in which the entire program is being implemented, allegations beyond the scope of administrative review."8 On the merits, the District Court found that a number of INS practices violated the Reform Act and were unconstitutional,9 and entered an injunction requiring the INS to vacate large categories of denials,10 and to modify its practices in certain respects.11 The Court of Appeals affirmed. On the merits, it upheld all of the findings and conclusions of the District Court, and it also rejected each of the Government's jurisdictional arguments. Relying on earlier Circuit precedent, it held that the statutory bar to judicial review of individual determinations was inapplicable:"In Jean v. Nelson, 727 F.2d 957 (11th Cir. 1984) (in banc), aff'd, , we reaffirmed that section 106 of the INA (codified at 8 U.S.C. 1105a) does not deprive district courts of jurisdiction to review allegations of systematic abuses by INS officials. Jean, 727 F.2d at 980. We explained that to postpone `judicial resolution of a disputed issue that affects an entire class of aliens until an individual petitioner has an opportunity to litigate it on habeas corpus would foster the very delay and procedural redundancy that Congress sought to eliminate in passing 1105a.' Id. In this action, appellees do not challenge the merits of any individual status determination; rather ... they contend that defendants' policies and practices in processing SAW applications deprive them of their statutory and constitutional rights." Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555, 1560 (CA11 1989). In their certiorari petition, petitioners did not seek review of the District Court's rulings on the merits or the form of its injunctive relief. Our grant of certiorari is therefore limited to the jurisdictional question.IIIWe preface our analysis of petitioners' position with an identification of matters that are not in issue. First, it is undisputed that SAW status is an important benefit for a previously undocumented alien. This status not only protects the alien from deportation; it also creates job opportunities that are not available to an alien whose application is denied. Indeed, the denial of SAW status places the alien in an even worse position than he or she was in before the Reform Act was passed, because lawful employment opportunities are no longer available to such persons. Thus, the successful applicant for SAW status acquires a measure of freedom to work and to live openly without fear of deportation or arrest that is markedly different from that of the unsuccessful applicant. Even disregarding the risk of deportation, the impact of a denial on the opportunity to obtain gainful employment is plainly sufficient to mandate constitutionally fair procedures in the application process. At no time in this litigation have petitioners asserted a right to employ arbitrary procedures, or questioned their obligation to afford SAW status applicants due process of law.Nor, at this stage of the litigation, is there any dispute that the INS routinely and persistently violated the Constitution and statutes in processing SAW applications. Petitioners do not deny that those violations caused injury in fact to the two organizational plaintiffs as well as to the individual members of the plaintiff class. Although it does not do so explicitly, petitioners' argument assumes that the District Court would have federal question jurisdiction over the entire case if Congress had not, through the Reform Act, added 210(e) to the INA. The narrow issue, therefore, is whether 210(e), which bars judicial review of individual determinations except in deportation proceedings, also forecloses this general challenge to the INS's unconstitutional practices.IVPetitioners' entire jurisdictional argument rests on their view that respondents' constitutional challenge is an action seeking "judicial review of a determination respecting an application for adjustment of status," and that district court jurisdiction over the action is therefore barred by the plain language of 210(e)(1) of the amended INA. See 8 U.S.C. 1160(e)(1).12 The critical words in 210(e)(1), however, describe the provision as referring only to review "of a determination respecting an application" for SAW status (emphasis added). Significantly, the reference to "a determination" describes a single act, rather than a group of decisions or a practice or procedure employed in making decisions. Moreover, when 210(e)(3), see 8 U.S.C. 1160(e)(3), further clarifies that the only judicial review permitted is in the context of a deportation proceeding, it refers to "judicial review of such a denial" - again referring to a single act, and again making clear that the earlier reference to "a determination respecting an application" describes the denial of an individual application. We therefore agree with the District Court's and the Court of Appeals' reading of this language as describing the process of direct review of individual denials of SAW status, rather than as referring to general collateral challenges to unconstitutional practices and policies used by the agency in processing applications. This reading of the Reform Act's review provision is supported by the language in 210(e)(3)(B) of the INA, which provides that judicial review "shall be based solely upon the administrative record established at the time of the review by the appellate authority and the findings of fact and determinations contained in such record shall be conclusive unless the applicant can establish abuse of discretion or that the findings are directly contrary to clear and convincing facts contained in the record considered as a whole." 8 U.S.C. 1160(e)(3)(B). This provision incorporates an assumption that the limited review provisions of 210(e) apply only to claims that have been subjected to administrative consideration and that have resulted in the creation of an adequate administrative record. However, the record created during the SAW administrative review process consists solely of a completed application form, a report of medical examination, any documents or affidavits that evidence an applicant's agricultural employment and residence, and notes, if any, from an LO interview - all relating to a single SAW applicant. Because the administrative appeals process does not address the kind of procedural and constitutional claims respondents bring in this action, limiting judicial review of these claims to the procedures set forth in 210(e) is not contemplated by the language of that provision.Moreover, the "abuse of discretion" standard of judicial review under 210(e)(3)(B) would make no sense if we were to read the Reform Act as requiring constitutional and statutory challenges to INS procedures to be subject to its specialized review provision. Although the abuse-of-discretion standard is appropriate for judicial review of an administrative adjudication of the facts of an individual application for SAW status, such a standard does not apply to constitutional or statutory claims, which are reviewed de novo by the courts. The language of 210(e)(3)(B) thus lends substantial credence to the conclusion that the Reform Act's review provision does not apply to challenges to INS's practices and procedures in administering the SAW program.Finally, we note that, had Congress intended the limited review provisions of 210(e) of the INA to encompass challenges to INS procedures and practices, it could easily have used broader statutory language. Congress could, for example, have modeled 210(e) on the more expansive language in the general grant of district court jurisdiction under Title II of the INA by channeling into the Reform Act's special review procedures "all causes ... arising under any of the provisions" of the legalization program. 66 Stat. 230, 8 U.S.C. 1329. It moreover could have modeled 210(e) on 38 U.S.C. 211(a), which governs review of veterans' benefits claims, by referring to review "on all questions of law and fact" under the SAW legalization program.Given Congress' choice of statutory language, we conclude that challenges to the procedures used by INS do not fall within the scope of 210(e). Rather, we hold that 210(e) applies only to review of denials of individual SAW applications. Because respondents' action does not seek review on the merits of a denial of a particular application, the District Court's general federal question jurisdiction under 28 U.S.C. 1331 to hear this action remains unimpaired by 210(e).VPetitioners place their principal reliance on our decision in Heckler v. Ringer, . The four respondents in Ringer wanted to establish a right to reimbursement under the Medicare Act for a particular form of surgery that three of them had undergone and the fourth allegedly needed. They sought review of the Secretary's policy of refusing reimbursement for that surgery in an original action filed in the District Court, without exhausting the procedures specified in the statute for processing reimbursement claims. The District Court dismissed the case for lack of jurisdiction because the essence of the complaint was a claim of entitlement to payment for the surgical procedure. With respect to the three respondents who had had the surgery, we concluded that "it makes no sense" to construe their claims "as anything more than, at bottom, a claim that they should be paid for their BCBR [bilateral carotid body resection] surgery," id., at 614, since success in their challenge of the Secretary's policy denying reimbursement would have the practical effect of also deciding their claims for benefits on the merits. "Indeed," we noted, "the relief that respondents seek to redress their supposed `procedural' objections is the invalidation of the Secretary's current policy and a `substantive' declaration from her that the expenses of BCBR surgery are reimbursable under the Medicare Act." Ibid. Concluding that respondents' judicial action was not "collateral" to their claims for benefits, we thus required respondents first to pursue their administrative remedies. In so doing, we found it significant that respondents, even if unsuccessful before the agency, "clearly have an adequate remedy in 405(g) for challenging [in the courts] all aspects of the Secretary's denial of their claims for payment for the BCBR surgery." Id., at 617.13 Unlike the situation in Heckler, the individual respondents in this action do not seek a substantive declaration that they are entitled to SAW status. Nor would the fact that they prevail on the merits of their purportedly procedural objections have the effect of establishing their entitlement to SAW status. Rather, if allowed to prevail in this action, respondents would only be entitled to have their case files reopened and their applications reconsidered in light of the newly prescribed INS procedures. Moreover, unlike in Heckler, if not allowed to pursue their claims in the District Court, respondents would not as a practical matter be able to obtain meaningful judicial review of their application denials or of their objections to INS procedures, notwithstanding the review provisions of 210(e) of the amended INA. It is presumable that Congress legislates with knowledge of our basic rules of statutory construction, and, given our well settled presumption favoring interpretations of statutes that allow judicial review of administrative action, see Bowen v. Michigan Academy of Family Physicians, , coupled with the limited review provisions of 210(e), it is most unlikely that Congress intended to foreclose all forms of meaningful judicial review.Several aspects of this statutory scheme would preclude review of respondents' application denials if we were to hold that the District Court lacked jurisdiction to hear this challenge. Initially, administrative or judicial review of an agency decision is almost always confined to the record made in the proceeding at the initial decisionmaking level, and one of the central attacks on INS procedures in this litigation is based on the claim that such procedures do not allow applicants to assemble adequate records. As the District Court found, because of the lack of recordings or transcripts of LO interviews and the inadequate opportunity for SAW applicants to call witnesses or present other evidence on their behalf, the administrative appeals unit of the INS, in reviewing the decisions of LOs and regional processing facilities, and the courts of appeals, in reviewing SAW denials in the context of deportation proceedings, have no complete or meaningful basis upon which to review application determinations.Additionally, because there is no provision for direct judicial review of the denial of SAW status unless the alien is later apprehended and deportation proceedings are initiated, most aliens denied SAW status can ensure themselves review in courts of appeals only if they voluntarily surrender themselves for deportation. Quite obviously, that price is tantamount to a complete denial of judicial review for most undocumented aliens.Finally, even in the context of a deportation proceeding, it is unlikely that a court of appeals would be in a position to provide meaningful review of the type of claims raised in this litigation. To establish the unfairness of the INS practices, respondents in this case adduced a substantial amount of evidence, most of which would have been irrelevant in the processing of a particular individual application. Not only would a court of appeals reviewing an individual SAW determination therefore most likely not have an adequate record as to the pattern of INS' allegedly unconstitutional practices, but it also would lack the factfinding and record-developing capabilities of a federal district court. As the American Bar Association, as amicus, points out, statutes that provide for only a single level of judicial review in the courts of appeals "are traditionally viewed as warranted only in circumstances where district court factfinding would unnecessarily duplicate an adequate administrative record - circumstances that are not present in "pattern and practice" cases where district court factfinding is essential [given the inadequate administrative record]." Brief for American Bar Association as Amicus Curiae 7. It therefore seems plain to us, as it did to the District Court and the Court of Appeals, that restricting judicial review to the courts of appeals as a component of the review of an individual deportation order is the practical equivalent of a total denial of judicial review of generic constitutional and statutory claims.Decision in this case is therefore supported by our unanimous holding14 in Bowen, supra. In that case we rejected the Government's contention that two sections of the Social Security Act, 42 U.S.C. 301 et seq. (1982 ed.), barred judicial review of the validity of a regulation governing the payment of Medicare benefits. We recognized that review of individual determinations of the amount due on particular claims was foreclosed, but upheld the collateral attack on the regulation itself, emphasizing the critical difference between an individual "amount determination" and a challenge to the procedures for making such determinations:"The reticulated statutory scheme, which carefully details the forum and limits of review of `any determination ... of ... the amount of benefits under part A,' 42 U.S.C. 1395ff(b)(1)(C) (1982 ed., Supp. II), and of the "amount of ... payment" of benefits under Part B, 42 U.S.C. 1395u(b)(3)(C), simply does not speak to challenges mounted against the method by which such amounts are to be determined, rather than the determinations themselves. As the Secretary has made clear, "the legality, constitutional or otherwise, of any provision of the Act or regulations relevant to the Medicare Program" is not considered in a "fair hearing" held by a carrier to resolve a grievance related to a determination of the amount of a Part B award. As a result, an attack on the validity of a regulation is not the kind of administrative action that we described in Erika, as an `amount determination' which decides `the amount of the Medicare payment to be made on a particular claim' and with respect to which the Act impliedly denies judicial review. 456 U.S., at 208." 476 U.S., at 675-676 (emphasis in original). Inherent in our analysis was the concern that, absent such a construction of the judicial review provisions of the Medicare statute, there would be "no review at all of substantial statutory and constitutional challenges to the Secretary's administration of Part B of the Medicare program." Id., at 680.As we read the Reform Act and the findings of the District Court, therefore, this case is controlled by Bowen, rather than by Heckler. The strong presumption in favor of judicial review of administrative action is not overcome either by the language or the purpose of the relevant provisions of the Reform Act.The judgment of the Court of Appeals is affirmed.It is so ordered. Fn JUSTICE WHITE joins only Parts I, II, III, and IV of this opinion.

Per Curiam. Respondent Edward Schad was convicted of first-degree murder and sentenced to death. After an extensive series of state- and federal-court proceedings concluded with this Court's denial of respondent's petitions for certiorari and for rehearing, the Ninth Circuit declined to issue its mandate as normally required by Federal Rule of Appellate Procedure 41(d)(2)(D). The Ninth Circuit instead, sua sponte, construed respondent's motion to stay the mandate pending the Ninth Circuit's decision in a separate en banc case as a motion to reconsider a motion that it had denied six months earlier. Based on its review of that previously rejected motion, the court issued a stay a few days before respondent's scheduled execution. Even assuming, as we did in Bell v. Thompson, 545 U. S. 794 (2005), that Rule 41(d)(2)(D) admits of any exceptions, the Ninth Circuit did not demonstrate that exceptional circumstances justified withholding its mandate. As a result, we conclude that the Ninth Circuit's failure to issue its mandate constituted an abuse of discretion.I In 1985, an Arizona jury found respondent guilty of first-degree murder for the 1978 strangling of 74-year-old Lorimer Grove.1 The court sentenced respondent to death. After respondent's conviction and sentence were affirmed on direct review, see State v. Schad, 163 Ariz. 411, 788 P. 2d 1162 (1989), and Schad v. Arizona, 501 U. S. 624 (1991), respondent again sought state habeas relief, alleging that his trial counsel rendered ineffective assistance at sentencing by failing to discover and present sufficient mitigating evidence. The state courts denied relief. In August 1998, respondent sought federal habeas relief. He again raised a claim of ineffective assistance at sentencing for failure to present sufficient mitigating evidence. The District Court denied respondent's request for an evidentiary hearing to present new mitigating evidence, concluding that respondent was not diligent in developing the evidence during his state habeas proceedings. Schad v. Schriro, 454 F. Supp. 2d 897 (Ariz. 2006). The District Court alternatively held that the proffered new evidence did not demonstrate that trial counsel's performance was deficient. Id., at 940-947. The Ninth Circuit affirmed in part, reversed in part, and remanded to the District Court for a hearing to determine whether respondent's state habeas counsel was diligent in developing the state evidentiary record. Schad v. Ryan, 606 F. 3d 1022 (2010). Arizona petitioned for certiorari. This Court granted the petition, vacated the Ninth Circuit's opinion, and remanded for further proceedings in light of Cullen v. Pinholster, 563 U. S. ___ (2011). See Ryan v. Schad, 563 U. S. ___ (2011). On remand, the Ninth Circuit affirmed the District Court's denial of habeas relief. Schad v. Ryan, 671 F. 3d 708, 726 (2011). The Ninth Circuit subsequently denied a motion for rehearing and rehearing en banc on February 28, 2012. On July 10, 2012, respondent filed in the Ninth Circuit the first motion directly at issue in this case. This motion asked the court to vacate its judgment and remand to the District Court for additional proceedings in light of this Court's decision in Martinez v. Ryan, 566 U. S. 1 (2012).2 The Ninth Circuit denied respondent's motion on July 27, 2012. Respondent then filed a petition for certiorari. This Court denied the petition on October 9, 2012, 568 U. S. ___, and denied a petition for rehearing on January 7, 2013. 568 U. S. ___. Respondent returned to the Ninth Circuit that day and filed a motion requesting a stay of the mandate in light of a pending Ninth Circuit en banc case addressing the interaction between Pinholster and Martinez. The Ninth Circuit denied the motion on February 1, 2013, "declin[ing] to issue an indefinite stay of the mandate that would unduly interfere with Arizona's execution process." Order in No. 07-99005, Doc. 102, p. 1. But instead of issuing the mandate, the court decided sua sponte to construe respondent's motion "as a motion to reconsider our prior denial of his Motion to Vacate Judgment and Remand in light of Martinez," which the court had denied on July 27, 2012. Id., at 2. The court ordered briefing and, in a divided opinion, remanded the case to the District Court to determine whether respondent could establish that he received ineffective assistance of postconviction counsel under Martinez, whether he could demonstrate prejudice as a result, and whether his underlying claim of ineffective assistance of trial counsel had merit. No. 07-99005 (Feb. 26, 2013), App. to Pet. for Cert. A-13 to A-15, 2013 WL 791610, *6. Judge Graber dissented based on her conclusion that respondent could not show prejudice. Id., at A-16 to A-17, 2013 WL 791610, *7. Arizona set an execution date of March 6, 2013, which prompted respondent to file a motion for stay of execution on February 26, 2013. The Ninth Circuit panel granted the motion on March 1, 2013, with Judge Graber again noting her dissent. On March 4, 2013, Arizona filed a petition for rehearing and rehearing en banc with the Ninth Circuit. The court denied the petition the same day, with eight judges dissenting in two separate opinions. 709 F. 3d 855 (2013). On March 4, Arizona filed an application to vacate the stay of execution in this Court, along with a petition for certiorari. This Court denied the application, with Jus- tices Scalia and Alito noting that they would grant it. 568 U. S. ___ (2013). We now consider the petition.II Federal Rule of Appellate Procedure 41(d)(2)(D) sets forth the default rule that "[t]he court of appeals must issue the mandate immediately when a copy of a Supreme Court order denying the petition for writ of certiorari is filed." (Emphasis added.) The reason for this Rule is straightforward: "[T]he stay of mandate is entered solely to allow this Court time to consider a petition for certiorari." Bell, 545 U. S., at 806. Hence, once this Court has denied a petition, there is generally no need for further action from the lower courts. See ibid. ("[A] decision by this Court denying discretionary review usually signals the end of litigation"). In Bell, Tennessee argued that Rule 41(d)(2)(D) "admits of no exceptions, so the mandate should have issued on the date" the Court of Appeals received notice of the Supreme Court's denial of certiorari. Id., at 803. There was no need to resolve this issue in Bell because we concluded that the Sixth Circuit had abused its discretion even if Rule 41(d)(2)(D) authorized a stay of the mandate after denial of certiorari. Id., at 803-804. As in Bell, we need not resolve this issue to determine that the Ninth Circuit abused its discretion here. Bell recognized that when state-court judgments are reviewed in federal habeas proceedings, "finality and comity concerns," based in principles of federalism, demand that federal courts "accord the appropriate level of respect to" state judgments by allowing them to be enforced when federal proceedings conclude. Id., at 812-813. As we noted, States have an " ' "interest in the finality of convictions that have survived direct review within the state court system." ' " Id., at 813 (quoting Calderon v. Thompson, 523 U. S. 538, 555 (1998), in turn quoting Brecht v. Abrahamson, 507 U. S. 619, 635 (1993)). Elsewhere, we explained that " 'the profound interests in repose' attaching to the mandate of a court of appeals" dictate that "the power [to withdraw the mandate] can be exercised only in extraordinary circumstances." Calderon, supra, at 550 (quoting 16 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3938, p. 712 (2d ed. 1996)). Deviation from normal mandate procedures is a power "of last resort, to be held in reserve against grave, unforeseen contingencies." Calderon, supra, at 550. Even assuming a court of appeals has authority to do so, it abuses its discretion when it refuses to issue the mandate once the Supreme Court has acted on the petition, unless extraordinary circumstances justify that action. Applying this standard in Bell, we found no extraordinary circumstances that could constitute a miscarriage of justice. There, a capital defendant unsuccessfully alleged in state postconviction proceedings that his trial counsel had been ineffective by failing to introduce sufficient mitigating evidence in the penalty phase of trial. 545 U. S., at 797. On federal habeas review, he made the same argument. Id., at 798. After the Sixth Circuit affirmed, the defendant filed a petition for rehearing that "placed substantial emphasis" on his argument that the Sixth Circuit had overlooked new psychiatrist evidence. Id., at 800. While the Sixth Circuit denied the petition, it stayed the issuance of its mandate while the defendant sought certiorari and, later, rehearing from the denial of the writ. Ibid. When this Court denied the petition for rehearing, the Sixth Circuit did not issue its mandate. Instead, the Sixth Circuit waited five months (and until two days before the scheduled execution) to issue an amended opinion that vacated the District Court's denial of habeas and remanded for an evidentiary hearing on the ineffective-assistanceof-counsel claim. Id., at 800-801. This Court reversed that decision, holding that the Sixth Circuit had abused its discretion due to its delay in issuing the mandate without notifying the parties, its reliance on a previously rejected argument, and its disregard of comity and federalism principles. In this case, the Ninth Circuit similarly abused its discretion when it did not issue the mandate. As in Bell, the Ninth Circuit here declined to issue the mandate based on an argument it had considered and rejected months earlier. And, by the time of the Ninth Circuit's February 1, 2013, decision not to issue its mandate, it had been over 10 months since we decided Martinez and nearly 7 months since respondent unsuccessfully asked the Ninth Circuit to reconsider its decision in light of Martinez.3 Further, there is no doubt that the arguments presented in the rejected July 10, 2012, motion were identical to those accepted by the Ninth Circuit the following February. Respondent styled his July 10 motion a "Motion to Vacate Judgment and Remand to the District Court for Additional Proceedings in Light of Martinez v. Ryan." No. 07-99005 (CA9), Doc. 88, p. 1. As its title suggests, the only claim presented in that motion was that respondent's postconviction counsel should have developed more evidence to support his ineffective-assistance-of-trial-counsel claim. Here, as in Bell, respondent's July 10 motion "pressed the same arguments that eventually were adopted by the Court of Appeals." 545 U. S., at 806. These arguments were pressed so strongly in the July 10 motion that "[i]t is difficult to see how . . . counsel could have been clearer." Id., at 808. The Ninth Circuit had a full "opportunity to consider these arguments" but declined to do so, id., at 806, which "support[s] our determination that the decision to withhold the mandate was in error." Id., at 806-807. We presume that the Ninth Circuit carefully considers each motion a capital defendant presents on habeas review. See id., at 808 (rejecting the notion that "judges cannot be relied upon to read past the first page of a petition for rehearing"). As a result, there is no indication that there were any extraordinary circumstances here that called for the court to revisit an argument sua sponte that it already explicitly rejected. Finally, this case presents an additional issue not present in Bell. In refusing to issue the mandate, the Ninth Circuit panel relied heavily upon Beardslee v. Brown, 393 F. 3d 899, 901 (CA9 2004) (per curiam), Beardslee, which precedes our Bell decision by more than six months, asserts the Ninth Circuit's inherent authority to withhold a mandate. See App. to Pet. for Cert. A-3 to A-4, 2013 WL 791610, *1. But Beardslee was based on the Sixth Circuit's decision in Bell, which we reversed. See Beardslee, supra, at 901 (citing Thompson v. Bell, 373 F. 3d 688, 691-692 (2004)). That opinion, thus, provides no support for the Ninth Circuit's decision. In light of the foregoing, we hold that the Ninth Circuit abused its discretion when it neglected to issue its mandate. The petition for a writ of certiorari and respondent's motion to proceed in forma pauperis are granted. The Ninth Circuit's judgment is reversed, the stay of execution is vacated, and the case is remanded with instructions to issue the mandate immediately and without any further proceedings.It is so ordered.CHARLES L. RYAN, DIRECTOR, ARIZONA DEPART-MENT OF CORRECTIONS, PETITIONER v. EDWARD HAROLD SCHADon petition for writ of certiorari to the united states court of appeals for the ninth circuitNo. 12-1084. Decided June 24, 2013 Per Curiam. Respondent Edward Schad was convicted of first-degree murder and sentenced to death. After an extensive series of state- and federal-court proceedings concluded with this Court's denial of respondent's petitions for certiorari and for rehearing, the Ninth Circuit declined to issue its mandate as normally required by Federal Rule of Appellate Procedure 41(d)(2)(D). The Ninth Circuit instead, sua sponte, construed respondent's motion to stay the mandate pending the Ninth Circuit's decision in a separate en banc case as a motion to reconsider a motion that it had denied six months earlier. Based on its review of that previously rejected motion, the court issued a stay a few days before respondent's scheduled execution. Even assuming, as we did in Bell v. Thompson, 545 U. S. 794 (2005), that Rule 41(d)(2)(D) admits of any exceptions, the Ninth Circuit did not demonstrate that exceptional circumstances justified withholding its mandate. As a result, we conclude that the Ninth Circuit's failure to issue its mandate constituted an abuse of discretion.I In 1985, an Arizona jury found respondent guilty of first-degree murder for the 1978 strangling of 74-year-old Lorimer Grove.1 The court sentenced respondent to death. After respondent's conviction and sentence were affirmed on direct review, see State v. Schad, 163 Ariz. 411, 788 P. 2d 1162 (1989), and Schad v. Arizona, 501 U. S. 624 (1991), respondent again sought state habeas relief, alleging that his trial counsel rendered ineffective assistance at sentencing by failing to discover and present sufficient mitigating evidence. The state courts denied relief. In August 1998, respondent sought federal habeas relief. He again raised a claim of ineffective assistance at sentencing for failure to present sufficient mitigating evidence. The District Court denied respondent's request for an evidentiary hearing to present new mitigating evidence, concluding that respondent was not diligent in developing the evidence during his state habeas proceedings. Schad v. Schriro, 454 F. Supp. 2d 897 (Ariz. 2006). The District Court alternatively held that the proffered new evidence did not demonstrate that trial counsel's performance was deficient. Id., at 940-947. The Ninth Circuit affirmed in part, reversed in part, and remanded to the District Court for a hearing to determine whether respondent's state habeas counsel was diligent in developing the state evidentiary record. Schad v. Ryan, 606 F. 3d 1022 (2010). Arizona petitioned for certiorari. This Court granted the petition, vacated the Ninth Circuit's opinion, and remanded for further proceedings in light of Cullen v. Pinholster, 563 U. S. ___ (2011). See Ryan v. Schad, 563 U. S. ___ (2011). On remand, the Ninth Circuit affirmed the District Court's denial of habeas relief. Schad v. Ryan, 671 F. 3d 708, 726 (2011). The Ninth Circuit subsequently denied a motion for rehearing and rehearing en banc on February 28, 2012. On July 10, 2012, respondent filed in the Ninth Circuit the first motion directly at issue in this case. This motion asked the court to vacate its judgment and remand to the District Court for additional proceedings in light of this Court's decision in Martinez v. Ryan, 566 U. S. 1 (2012).2 The Ninth Circuit denied respondent's motion on July 27, 2012. Respondent then filed a petition for certiorari. This Court denied the petition on October 9, 2012, 568 U. S. ___, and denied a petition for rehearing on January 7, 2013. 568 U. S. ___. Respondent returned to the Ninth Circuit that day and filed a motion requesting a stay of the mandate in light of a pending Ninth Circuit en banc case addressing the interaction between Pinholster and Martinez. The Ninth Circuit denied the motion on February 1, 2013, "declin[ing] to issue an indefinite stay of the mandate that would unduly interfere with Arizona's execution process." Order in No. 07-99005, Doc. 102, p. 1. But instead of issuing the mandate, the court decided sua sponte to construe respondent's motion "as a motion to reconsider our prior denial of his Motion to Vacate Judgment and Remand in light of Martinez," which the court had denied on July 27, 2012. Id., at 2. The court ordered briefing and, in a divided opinion, remanded the case to the District Court to determine whether respondent could establish that he received ineffective assistance of postconviction counsel under Martinez, whether he could demonstrate prejudice as a result, and whether his underlying claim of ineffective assistance of trial counsel had merit. No. 07-99005 (Feb. 26, 2013), App. to Pet. for Cert. A-13 to A-15, 2013 WL 791610, *6. Judge Graber dissented based on her conclusion that respondent could not show prejudice. Id., at A-16 to A-17, 2013 WL 791610, *7. Arizona set an execution date of March 6, 2013, which prompted respondent to file a motion for stay of execution on February 26, 2013. The Ninth Circuit panel granted the motion on March 1, 2013, with Judge Graber again noting her dissent. On March 4, 2013, Arizona filed a petition for rehearing and rehearing en banc with the Ninth Circuit. The court denied the petition the same day, with eight judges dissenting in two separate opinions. 709 F. 3d 855 (2013). On March 4, Arizona filed an application to vacate the stay of execution in this Court, along with a petition for certiorari. This Court denied the application, with Jus- tices Scalia and Alito noting that they would grant it. 568 U. S. ___ (2013). We now consider the petition.II Federal Rule of Appellate Procedure 41(d)(2)(D) sets forth the default rule that "[t]he court of appeals must issue the mandate immediately when a copy of a Supreme Court order denying the petition for writ of certiorari is filed." (Emphasis added.) The reason for this Rule is straightforward: "[T]he stay of mandate is entered solely to allow this Court time to consider a petition for certiorari." Bell, 545 U. S., at 806. Hence, once this Court has denied a petition, there is generally no need for further action from the lower courts. See ibid. ("[A] decision by this Court denying discretionary review usually signals the end of litigation"). In Bell, Tennessee argued that Rule 41(d)(2)(D) "admits of no exceptions, so the mandate should have issued on the date" the Court of Appeals received notice of the Supreme Court's denial of certiorari. Id., at 803. There was no need to resolve this issue in Bell because we concluded that the Sixth Circuit had abused its discretion even if Rule 41(d)(2)(D) authorized a stay of the mandate after denial of certiorari. Id., at 803-804. As in Bell, we need not resolve this issue to determine that the Ninth Circuit abused its discretion here. Bell recognized that when state-court judgments are reviewed in federal habeas proceedings, "finality and comity concerns," based in principles of federalism, demand that federal courts "accord the appropriate level of respect to" state judgments by allowing them to be enforced when federal proceedings conclude. Id., at 812-813. As we noted, States have an " ' "interest in the finality of convictions that have survived direct review within the state court system." ' " Id., at 813 (quoting Calderon v. Thompson, 523 U. S. 538, 555 (1998), in turn quoting Brecht v. Abrahamson, 507 U. S. 619, 635 (1993)). Elsewhere, we explained that " 'the profound interests in repose' attaching to the mandate of a court of appeals" dictate that "the power [to withdraw the mandate] can be exercised only in extraordinary circumstances." Calderon, supra, at 550 (quoting 16 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §3938, p. 712 (2d ed. 1996)). Deviation from normal mandate procedures is a power "of last resort, to be held in reserve against grave, unforeseen contingencies." Calderon, supra, at 550. Even assuming a court of appeals has authority to do so, it abuses its discretion when it refuses to issue the mandate once the Supreme Court has acted on the petition, unless extraordinary circumstances justify that action. Applying this standard in Bell, we found no extraordinary circumstances that could constitute a miscarriage of justice. There, a capital defendant unsuccessfully alleged in state postconviction proceedings that his trial counsel had been ineffective by failing to introduce sufficient mitigating evidence in the penalty phase of trial. 545 U. S., at 797. On federal habeas review, he made the same argument. Id., at 798. After the Sixth Circuit affirmed, the defendant filed a petition for rehearing that "placed substantial emphasis" on his argument that the Sixth Circuit had overlooked new psychiatrist evidence. Id., at 800. While the Sixth Circuit denied the petition, it stayed the issuance of its mandate while the defendant sought certiorari and, later, rehearing from the denial of the writ. Ibid. When this Court denied the petition for rehearing, the Sixth Circuit did not issue its mandate. Instead, the Sixth Circuit waited five months (and until two days before the scheduled execution) to issue an amended opinion that vacated the District Court's denial of habeas and remanded for an evidentiary hearing on the ineffective-assistanceof-counsel claim. Id., at 800-801. This Court reversed that decision, holding that the Sixth Circuit had abused its discretion due to its delay in issuing the mandate without notifying the parties, its reliance on a previously rejected argument, and its disregard of comity and federalism principles. In this case, the Ninth Circuit similarly abused its discretion when it did not issue the mandate. As in Bell, the Ninth Circuit here declined to issue the mandate based on an argument it had considered and rejected months earlier. And, by the time of the Ninth Circuit's February 1, 2013, decision not to issue its mandate, it had been over 10 months since we decided Martinez and nearly 7 months since respondent unsuccessfully asked the Ninth Circuit to reconsider its decision in light of Martinez.3 Further, there is no doubt that the arguments presented in the rejected July 10, 2012, motion were identical to those accepted by the Ninth Circuit the following February. Respondent styled his July 10 motion a "Motion to Vacate Judgment and Remand to the District Court for Additional Proceedings in Light of Martinez v. Ryan." No. 07-99005 (CA9), Doc. 88, p. 1. As its title suggests, the only claim presented in that motion was that respondent's postconviction counsel should have developed more evidence to support his ineffective-assistance-of-trial-counsel claim. Here, as in Bell, respondent's July 10 motion "pressed the same arguments that eventually were adopted by the Court of Appeals." 545 U. S., at 806. These arguments were pressed so strongly in the July 10 motion that "[i]t is difficult to see how . . . counsel could have been clearer." Id., at 808. The Ninth Circuit had a full "opportunity to consider these arguments" but declined to do so, id., at 806, which "support[s] our determination that the decision to withhold the mandate was in error." Id., at 806-807. We presume that the Ninth Circuit carefully considers each motion a capital defendant presents on habeas review. See id., at 808 (rejecting the notion that "judges cannot be relied upon to read past the first page of a petition for rehearing"). As a result, there is no indication that there were any extraordinary circumstances here that called for the court to revisit an argument sua sponte that it already explicitly rejected. Finally, this case presents an additional issue not present in Bell. In refusing to issue the mandate, the Ninth Circuit panel relied heavily upon Beardslee v. Brown, 393 F. 3d 899, 901 (CA9 2004) (per curiam), Beardslee, which precedes our Bell decision by more than six months, asserts the Ninth Circuit's inherent authority to withhold a mandate. See App. to Pet. for Cert. A-3 to A-4, 2013 WL 791610, *1. But Beardslee was based on the Sixth Circuit's decision in Bell, which we reversed. See Beardslee, supra, at 901 (citing Thompson v. Bell, 373 F. 3d 688, 691-692 (2004)). That opinion, thus, provides no support for the Ninth Circuit's decision. In light of the foregoing, we hold that the Ninth Circuit abused its discretion when it neglected to issue its mandate. The petition for a writ of certiorari and respondent's motion to proceed in forma pauperis are granted. The Ninth Circuit's judgment is reversed, the stay of execution is vacated, and the case is remanded with instructions to issue the mandate immediately and without any further proceedings.It is so ordered.FOOTNOTESFootnote 1 A state habeas court vacated an earlier guilty verdict and death sentence due to an error in jury instructions. See State v. Schad, 142 Ariz. 619, 691 P. 2d 710 (1984).Footnote 2 Martinez, 566 U. S. 1, was decided on March 20, 2012. We are unaware of any explanation for respondent's delay in bringing his Martinez-based argument to the Ninth Circuit's attention.Footnote 3 Respondent did not even present the motion that the Ninth Circuit ultimately reinstated until more than 4 months after the Ninth Circuit denied respondent's request for panel rehearing and rehearing en banc and more than 3½ months after Martinez was decided.FOOTNOTESFootnote 1 A state habeas court vacated an earlier guilty verdict and death sentence due to an error in jury instructions. See State v. Schad, 142 Ariz. 619, 691 P. 2d 710 (1984).Footnote 2 Martinez, 566 U. S. 1, was decided on March 20, 2012. We are unaware of any explanation for respondent's delay in bringing his Martinez-based argument to the Ninth Circuit's attention.Footnote 3 Respondent did not even present the motion that the Ninth Circuit ultimately reinstated until more than 4 months after the Ninth Circuit denied respondent's request for panel rehearing and rehearing en banc and more than 3½ months after Martinez was decided.

During the sentencing phase of petitioner's first-degree murder trial in Oklahoma, the State introduced a copy of the judgment and death sentence he had received during an earlier trial for another murder. The jury ultimately found that the aggravating circumstances outweighed the mitigating circumstances, and imposed a second death sentence on petitioner. In affirming, the Oklahoma Court of Criminal Appeals acknowledged that the evidence of petitioner's prior death sentence was irrelevant to determining the appropriateness of the second death sentence, but held that admission of the evidence did not violate the Eighth and Fourteenth Amendments under Caldwell v. Mississippi, , or so infect the sentencing determination with unfairness as to amount to a denial of due process.Held: The admission of evidence regarding petitioner's prior death sentence did not amount to constitutional error. Pp. 4-12. (a) Admission of the evidence at issue did not contravene the principle established in Caldwell, supra, at 342 (O'CONNOR, J., concurring in part and concurring in judgment), because the evidence did not affirmatively mislead the jury regarding its role in the sentencing process so as to diminish its sense of responsibility for the capital sentencing decision. Such evidence was not false at the time it was admitted, and did not even pertain to the jury's sentencing role. The trial court's instructions, moreover, emphasized the importance of that role and never conveyed or intimated that the jury could shift its responsibility in sentencing. Pp. 4-12. (b) Although the evidence in question may have been irrelevant, the jury's consideration of it did not render the sentencing proceeding Page II so unreliable that it violated the Eighth Amendment under Lockett v. Ohio, (plurality opinion), and Woodson v. North Carolina, . That the evidence may have been irrelevant as a matter of state law does not render its admission federal constitutional error. See Estelle v. McGuire___, ___. Dawson v. Delaware___, ___, and Zant v. Stephens, , are plainly inapposite, since petitioner does not argue that admission of the evidence allowed the jury to consider, in aggravation, constitutionally protected conduct. Johnson v. Mississippi, , 590, n. 8, is also inapposite, since it is perfectly consistent with the Court of Criminal Appeals' approach, and does not stand for the proposition that the mere admission of irrelevant and prejudicial evidence requires the overturning of a death sentence. This Court declines petitioner's request to fashion a federal code of general evidentiary rules, under the guise of interpreting the Eighth Amendment, which would supersede state rules in capital sentencing proceedings. Pp. 8-10. (c) Introduction of the evidence in question did not so infect the trial with unfairness as to render the jury's imposition of the death penalty a denial of due process under the analytical framework set forth in Donnelly v. DeChristoforo, . Presuming that the trial court's instructions were followed, they did not offer the jurors any means by which to give effect to the irrelevant evidence of petitioner's prior sentence, and the relevant evidence presented by the State was sufficient to justify the imposition of the death sentence in this case. Even assuming that the jury disregarded its instructions and allowed the irrelevant evidence to influence its decision, a finding of fundamental unfairness on the basis of this record would be an exercise in speculation, rather than reasoned judgment, since it seems equally plausible that the evidence in question could have influenced the jurors either to impose, or not to impose, the death sentence. Pp. 10-12. 847 P.2d 368, affirmed.REHNQUIST, C.J., delivered the opinion of the Court, in which O'CONNOR, SCALIA, KENNEDY, and THOMAS, JJ., joined. O'CONNOR, J., filed a concurring opinion. BLACKMUN, J., filed a dissenting opinion. GINSBURG, J., filed a dissenting opinion, in which BLACKMUN, STEVENS, and SOUTER, JJ., joined. [ ROMANO v. OKLAHOMA, ___ U.S. ___ (1994), 1] CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Petitioner murdered and robbed Roger Sarfaty in 1985. In 1986, he murdered and robbed Lloyd Thompson. Petitioner was tried separately for each murder. The Thompson trial occurred first, and an Oklahoma jury found petitioner guilty and sentenced him to death. Petitioner was then tried for the Sarfaty murder. A different Oklahoma jury found him guilty and sentenced him to death. During the sentencing phase of the Sarfaty trial, the State introduced a copy of the judgment and sentence petitioner received for the Thompson murder. Petitioner contends that the admission of evidence regarding his prior death sentence undermined the Sarfaty jury's sense of responsibility for determining the appropriateness of the death penalty, in violation of the Eighth and Fourteenth Amendments. We disagree, and hold that the admission of this evidence did not amount to constitutional error.In Oklahoma, capital trials are bifurcated into guilt and sentencing phases. Okla.Stat., Tit. 21, 701.10 (1981). The sentencing jury may not impose a death sentence unless it unanimously finds the existence of at least one statutory aggravating circumstance beyond a reasonable doubt, and that any aggravating circumstances [ ROMANO v. OKLAHOMA, ___ U.S. ___ (1994), 2] outweigh any mitigating circumstances. Tit. 21, 701.12. At the sentencing phase of the Sarfaty trial, the State sought to prove four aggravating circumstances, two of which are relevant to our decision: (1) that petitioner had been previously convicted of a violent felony; and (2) that petitioner would constitute a continuing threat to society.1 In attempting to establish these two aggravating circumstances, the State introduced evidence relating to the Thompson murder. The State presented testimony by Thompson's neighbor concerning her observations the day of the murder, Thompson's autopsy report, and photographs and fingerprints showing that the defendant in the Thompson case was in fact petitioner. The State also introduced a copy of the judgment and sentence from the Thompson murder conviction. That document revealed that petitioner had been convicted of first-degree murder and had been sentenced to death. App. 5-6. It also showed, and the trial court told the jury, that petitioner planned on appealing from the judgment and sentence. Id., at 7. Petitioner's counsel objected to the admission of the document. He argued that, regardless of the admissibility of the evidence of petitioner's conviction, the death sentence petitioner received was not proper for the jury to consider. The trial court overruled the objection and admitted the evidence. Petitioner later presented evidence in mitigation.Before closing arguments, the trial court instructed the jury. It identified the four aggravating circumstances the State sought to establish and told the jury that "[i]n determining which sentence you may impose in this case, you may only consider those [four] circumstances." Id., at 9. The court then identified the 17 mitigating [ ROMANO v. OKLAHOMA, ___ U.S. ___ (1994), 3] circumstances offered by petitioner. The jury was instructed that it could not impose the death penalty unless it unanimously found that one or more aggravating circumstances existed beyond a reasonable doubt and that any such circumstances outweighed any mitigating circumstances. Id., at 8-12. In closing, the court admonished the jury: You are the determiner of facts. The importance and worth of the evidence is for you to decide. "I have made rulings during the second part of this trial. In ruling, I have not in any way suggested to you, nor intimidated [sic] in any way, what you should decide. I do not express any opinion whether or not aggravating circumstances or mitigating circumstances did or did not exist, nor do I suggest to you in any way the punishment to be imposed by you. "You must not use any kind of chance in reaching a verdict, but you must rest it on the belief of each of you who agrees with it." Id., at 13. The jury found that all four aggravating circumstances existed, and that they outweighed the mitigating circumstances. It accordingly imposed a death sentence. Petitioner appealed. While his appeal in this case was pending, the Oklahoma Court of Criminal Appeals overturned petitioner's conviction for the Thompson murder. See Romano v. Oklahoma, 827 P.2d 1335 (1992) (Romano I). The Oklahoma Court of Criminal Appeals held that petitioner's trial should have been severed from that of his codefendant; it therefore reversed and remanded for a new trial.2 In his appeal in this case, petitioner argued, inter alia, that the trial court erred by admitting evidence of [ ROMANO v. OKLAHOMA, ___ U.S. ___ (1994), 4] his conviction and sentence for the Thompson murder. He asserted that it was improper to admit the conviction because it was not final at the time of admission, and it had since been overturned. He also contended that the evidence of his death sentence in the Thompson case impermissibly reduced the Sarfaty sentencing jury's sense of responsibility for its decision, in violation of Caldwell v. Mississippi, .The Oklahoma Court of Criminal Appeals affirmed. 847 P.2d 368, 390 (1993) (Romano II). The Oklahoma Court concluded that the evidence regarding petitioner's prior death sentence was irrelevant. Because the jury was properly instructed in this case, however, it could not be said "that the jury in any way shifted the responsibility for their decision or considered their decision any less significant than they would otherwise." Ibid. The Court of Criminal Appeals further held that the admission of the evidence "did not so infect the sentencing determination with unfairness as to make the determination to impose the death penalty a denial of due process." Id., at 391.Petitioner sought our review, and we granted certiorari, limited to the following question: "Does admission of evidence that a capital defendant already has been sentenced to death in another case impermissibly undermine the sentencing jury's sense of responsibility for determining the appropriateness of the defendant's death, in violation of the Eighth and Fourteenth Amendments?" ___ (1993). We now affirm.It is helpful to begin by placing petitioner's challenge within the larger context of our Eighth Amendment death penalty jurisprudence. We have held that the Eighth Amendment's concern that the death penalty be both appropriate, and not randomly imposed, requires the States to perform two somewhat contradictory tasks in order to impose the death penalty. [ ROMANO v. OKLAHOMA, ___ U.S. ___ (1994), 5] First, States must properly establish a threshold below which the penalty cannot be imposed. McCleskey v. Kemp, . To ensure that this threshold is met, the "State must establish rational criteria that narrow the decisionmaker's judgment as to whether the circumstances of a particular defendant's case meet the threshold." Ibid. As we stated in Lowenfield v. Phelps, , "[t]o pass constitutional muster, a capital sentencing scheme must `genuinely narrow the class of persons eligible for the death penalty, and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.'" Id., at 244 (quoting Zant v. Stephens, ). In this respect, a State's sentencing procedure must suitably direct and limit the decisionmaker's discretion "`so as to minimize the risk of wholly arbitrary and capricious action.'" Zant, supra, at 874 (quoting Gregg v. Georgia, ). Petitioner does not allege that Oklahoma's sentencing scheme fails to adequately perform the requisite narrowing.Second, States must ensure that "capital sentencing decisions rest on [an] individualized inquiry," under which the "character and record of the individual offender and the circumstances of the particular offense" are considered. McCleskey, supra, at 302 (internal quotation marks omitted); see also Clemons v. Mississippi, . To this end, "States cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot channel the sentencer's discretion, but must allow it to consider any relevant information offered by the defendant." McCleskey, supra, at 306.Within these constitutional limits, "the States enjoy their traditional latitude to prescribe the method by which those who commit murder shall be punished." [ ROMANO v. OKLAHOMA, ___ U.S. ___ (1994), 6] Blystone v. Pennsylvania, . This latitude extends to evidentiary rules at sentencing proceedings. See, e.g., Gregg, supra, at 203-204 (approving "the wide scope of evidence and argument allowed at presentence hearings" in Georgia). As we observed in California v. Ramos, : "In ensuring that the death penalty is not meted out arbitrarily or capriciously, the Court's principal concern has been more with the procedure by which the State imposes the death sentence than with the substantive factors the State lays before the jury as a basis for imposing death, once it has been determined that the defendant falls within the category of persons eligible for the death penalty." See also id., at 1008 ("[o]nce the jury finds that the defendant falls within the legislatively defined category of persons eligible for the death penalty ... the jury then is free to consider a myriad of factors to determine whether death is the appropriate punishment").We have also held, in Caldwell v. Mississippi, that the jury must not be misled regarding the role it plays in the sentencing decision. See 472 U.S., at 336 (plurality opinion); id., at 341-342 (O'CONNOR, J., concurring in part and concurring in judgment). The prosecutor in Caldwell, in remarks which "were quite focused, unambiguous, and strong," misled the jury to believe that the responsibility for sentencing the defendant lay elsewhere. Id., at 340. The trial judge "not only failed to correct the prosecutor's remarks, but, in fact, openly agreed with them." Id., at 339.The plurality concluded that the prosecutor's remarks, along with the trial judge's affirmation, impermissibly "minimize[d] the jury's sense of responsibility for determining the appropriateness of death." Id., at 341. Such a diminution, the plurality felt, precluded the jury from properly performing its responsibility to make an [ ROMANO v. OKLAHOMA, ___ U.S. ___ (1994), 7] individualized determination of the appropriateness of the death penalty. Id., at 330-331. JUSTICE O'CONNOR, in her opinion concurring in part and concurring in the judgment, identified more narrowly the infirmity in the prosecutor's remarks: "In my view, the prosecutor's remarks were impermissible because they were inaccurate and misleading in a manner that diminished the jury's sense of responsibility." Id., at 342.As JUSTICE O'CONNOR supplied the fifth vote in Caldwell, and concurred on grounds narrower than those put forth by the plurality, her position is controlling. See Marks v. United States, ; Gregg, supra, at 169, n. 15. Accordingly, we have since read Caldwell as "relevant only to certain types of comment - those that mislead the jury as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision." Darden v. Wainwright, , n. 15 (1986). Thus, "[t]o establish a Caldwell violation, a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law." Dugger v. Adams, ; see also Sawyer v. Smith, .Petitioner argues that Caldwell controls this case. He contends that the evidence of his prior death sentence impermissibly undermined the sentencing jury's sense of responsibility, in violation of the principle established in Caldwell. We disagree. The infirmity identified in Caldwell is simply absent in this case: here, the jury was not affirmatively misled regarding its role in the sentencing process. The evidence at issue was neither false at the time it was admitted, nor did it even pertain to the jury's role in the sentencing process. The trial court's instructions, moreover, emphasized the importance of the jury's role. As the Court of Criminal Appeals observed: [ ROMANO v. OKLAHOMA, ___ U.S. ___ (1994), 8] "[T]he jury was instructed that it had the responsibility for determining whether the death penalty should be imposed... . It was never conveyed or intimated in any way, by the court or the attorneys, that the jury could shift its responsibility in sentencing, or that its role in any way had been minimized." Romano II, 847 P.2d, at 390. We do not believe that the admission of evidence regarding petitioner's prior death sentence affirmatively misled the jury regarding its role in the sentencing process so as to diminish its sense of responsibility. The admission of this evidence, therefore, did not contravene the principle established in Caldwell.That this case is different from Caldwell only resolves part of petitioner's challenge. In addition to raising a "Caldwell" claim, petitioner presents a more general contention: he argues that, because the evidence of his prior death sentence was inaccurate and irrelevant, the jury's consideration of it rendered his sentencing proceeding so unreliable that the proceeding violated the Eighth Amendment. See Lockett v. Ohio, (plurality opinion); Woodson v. North Carolina, . The Oklahoma Court agreed that the "evidence of the imposition of the death penalty by another jury is not relevant in determining the appropriateness of the death sentence for the instant offense." Romano II, supra, at 391. That the evidence may have been irrelevant as a matter of state law, however, does not render its admission federal constitutional error. See Estelle v. McGuire___, ___ (1991).Some of the cases upon which petitioner relies for support, to be sure, do hold that the Constitution bars the introduction of certain evidence at sentencing proceedings. But these cases are plainly inapposite. Petitioner cites, for example, Dawson v. Delaware, 503 [ ROMANO v. OKLAHOMA, ___ U.S. ___ (1994), 9] U.S. ___ (1992). There we held that the trial court erred by admitting evidence at Dawson's capital sentencing proceeding, regarding Dawson's membership in a white racist prison gang known as the Aryan Brotherhood. See id., at ___ (slip op., at 4-6). It was constitutional error, however, only because the admission violated "Dawson's First Amendment rights." Id., at ___ (slip op., at 7). Dawson thus involved application of the principle first enunciated in Zant: an aggravating circumstance is invalid if "it authorizes a jury to draw adverse inferences from conduct that is constitutionally protected." 462 U.S., at 885. Petitioner does not argue that the admission of evidence regarding his prior death sentence allowed the jury to consider, in aggravation, constitutionally protected conduct. Accordingly, our decisions in Dawson and Zant do not support petitioner's contention.Petitioner also cites Johnson v. Mississippi, , but it, too, is inapposite. There we reversed the imposition of Johnson's death sentence because the only evidence supporting an aggravating factor turned out to be invalid, and because the Mississippi Supreme Court refused to reweigh the remaining, untainted aggravating circumstances against the mitigating circumstances. Id., at 586, 590, n. 8. Similarly, in this case, the only evidence supporting the "prior violent felony" aggravating circumstance was the judgment from petitioner's conviction for the Thompson murder. That evidence, like the evidence in Johnson, was rendered invalid by the reversal of petitioner's conviction on appeal.Here, however, the Oklahoma Court of Criminal Appeals struck the "prior violent felony" aggravator, reweighed the three untainted aggravating circumstances against the mitigating circumstances, and still concluded that the death penalty was warranted. See Romano II, 847 P.2d, at 389, 393-394. The Court of Criminal [ ROMANO v. OKLAHOMA, ___ U.S. ___ (1994), 10] Appeals' approach is perfectly consistent with our precedents, including Johnson, where we remanded without limiting the Mississippi Supreme Court's authority to reweigh the remaining aggravating circumstances against the mitigating circumstances. See 486 U.S., at 590; id., at 591 (White, J., concurring); see also Clemons, 494 U.S., at 744-750. Contrary to petitioner's assertion, Johnson does not stand for the proposition that the mere admission of irrelevant and prejudicial evidence requires the overturning of a death sentence.Petitioner's argument, pared down, seems to be a request that we fashion general evidentiary rules, under the guise of interpreting the Eighth Amendment, which would govern the admissibility of evidence at capital sentencing proceedings. We have not done so in the past, however, and we will not do so today. The Eighth Amendment does not establish a federal code of evidence to supersede state evidentiary rules in capital sentencing proceedings. Cf. Payne v. Tennessee, ; Blystone, 494 U.S., at 309.Petitioner finally argues that the introduction of the evidence in question violated the Due Process Clause of the Fourteenth Amendment. It is settled that this Clause applies to the sentencing phase of capital trials. See, e.g., Payne, supra, at 825; Clemons, supra, at 746 ("[C]apital sentencing proceedings must of course satisfy the dictates of the Due Process Clause").We believe the proper analytical framework in which to consider this claim is found in Donnelly v. DeChristoforo, . There we addressed a claim that remarks made by the prosecutor during his closing argument were so prejudicial as to violate the defendant's due process rights. We noted that the case was not one in which the State had denied a defendant the benefit of a specific constitutional right, such as the right to counsel, or in which the remarks so prejudiced a specific right as to amount to a denial of [ ROMANO v. OKLAHOMA, ___ U.S. ___ (1994), 11] that right. Id., at 643. Accordingly, we sought to determine whether the prosecutor's remark "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Ibid. We concluded, after an "examination of the entire proceedings," that the remarks did not amount to a denial of constitutional due process. Ibid.The relevant question in this case, therefore, is whether the admission of evidence regarding petitioner's prior death sentence so infected the sentencing proceeding with unfairness as to render the jury's imposition of the death penalty a denial of due process. See Sawyer, 497 U.S., at 244 (observing that "[t]he Caldwell rule was ... added to [Donnelly's] existing guarantee of due process protection against fundamental unfairness"); see also Darden, 477 U.S., at 178-181 (in analyzing allegedly improper comments made by prosecutor during closing argument of guilt-innocence stage of capital trial, "[t]he relevant question is whether the prosecutors' comments `so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" (quoting Donnelly, supra, at 643)). Under this standard of review, we agree with the Oklahoma Court of Criminal Appeals that the admission of this evidence did not deprive petitioner of a fair sentencing proceeding.The evidence that petitioner received a death sentence for murdering Thompson was deemed irrelevant by the Oklahoma Court of Criminal Appeals. See Romano II. 847 P.2d, at 391. However, if the jurors followed the trial court's instructions, which we presume they did, see Richardson v. Marsh, , 211 (1987), this evidence should have had little - if any - effect on their deliberations. Those instructions clearly and properly described the jurors' paramount role in determining petitioner's sentence, and they also explicitly limited the jurors' consideration of aggravating factors to the four which the State sought to prove. Regardless [ ROMANO v. OKLAHOMA, ___ U.S. ___ (1994), 12] of the evidence as to petitioner's death sentence in the Thompson case, the jury had sufficient evidence to justify its conclusion that these four aggravating circumstances existed. Although one of the aggravating circumstances proved invalid when petitioner's conviction for the Thompson murder was overturned on appeal, the other three remained untainted and still outweighed the mitigating circumstances. See Romano II, supra, at 389, 393-394. In short, the instructions did not offer the jurors any means by which to give effect to the evidence of petitioner's sentence in the Thompson murder, and the other relevant evidence presented by the State was sufficient to justify the imposition of the death sentence in this case.Even assuming that the jury disregarded the trial court's instructions and allowed the evidence of petitioner's prior death sentence to influence its decision, it is impossible to know how this evidence might have affected the jury. It seems equally plausible that the evidence could have made the jurors more inclined to impose a death sentence, or it could have made them less inclined to do so. Either conclusion necessarily rests upon one's intuition. To hold on the basis of this record that the admission of evidence relating to petitioner's sentence in the Thompson case rendered petitioner's sentencing proceeding for the Sarfaty murder fundamentally unfair would thus be an exercise in speculation, rather than reasoned judgment.The judgment of the Oklahoma Court of Criminal Appeals isAffirmed.

Twelve-year-old Natalie Calhoun was killed in a collision in territorial waters off Puerto Rico while riding a jet ski manufactured and distributed by petitioners Yamaha. Natalie's parents, respondents Calhoun, filed this federal diversity and admiralty action for damages against Yamaha, invoking Pennsylvania's wrongful death and survival statutes. The District Court agreed with Yamaha that the federal maritime wrongful death action recognized in Moragne v. States Marine Lines, Inc., , controlled to the exclusion of state law. In its order presenting the matter for immediate interlocutory appeal pursuant to 28 U.S.C. 1292(b), the District Court certified questions of law concerning the recoverability of particular items of damages under Moragne. The Third Circuit granted interlocutory review, but the panel to which the appeal was assigned did not reach the questions presented in the certified order. Instead, the panel addressed and resolved an anterior issue; it held that state remedies remain applicable in accident cases of this type and have not been displaced by the federal maritime wrongful death action recognized in Moragne.Held: 1. Section 1292(b) provides that "[w]hen a district judge, in making ... an order not otherwise appealable ..., shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the Page II ultimate termination of the litigation, he shall so state in writing in such order," and specifies that "the Court of Appeals ... may thereupon, in its discretion, permit an appeal to be taken from such order" (emphasis added). As that text indicates, the court of appeals can exercise interlocutory jurisdiction over any question fairly included within the order certified by the district court, and is not limited to the particular questions of law therein formulated. Pp. 4-5. 2. In maritime wrongful death cases in which no federal statute specifies the appropriate relief and the decedent was not a seaman, longshore worker, or person otherwise engaged in a maritime trade, state remedies remain applicable and have not been displaced by the wrongful death action recognized in Moragne. Pp. 5-17. (a) In The Harrisburgthis Court ruled that the general maritime law (a species of judge-made federal common law) did not afford a cause of action for wrongful death. Federal admiralty courts, prior to Moragne, tempered the harshness of The Harrisburg's rule by allowing recovery under state wrongful death and survival statutes in maritime accident cases. See, e.g., Western Fuel Co. v. Garcia. Such state laws proved an adequate supplement to federal maritime law, until a series of this Court's decisions transformed the maritime doctrine of unseaworthiness into a rule making shipowners strictly liable to seamen injured by the owners' failure to supply safe ships. See, e.g., Mahnich v. Southern S. S. Co., . By the time Moragne was decided, claims premised on unseaworthiness had become "the principal vehicle for recovery" by seamen and other maritime workers injured or killed in the course of their employment. 398 U.S., at 399. The disparity between the unseaworthiness doctrine's strict liability standard and negligence-based state wrongful death statutes prompted the Moragne Court, id., at 409, to overrule The Harrisburg and hold that an action "lie[s] under general maritime law for death caused by violation of maritime duties." Pp. 5-9. (b) This Court rejects Yamaha's argument that Moragne's wrongful death action covers the waters, creating a uniform federal maritime remedy for all deaths occurring in state territorial waters, and ousting all state remedies previously available to supplement general maritime law. The uniformity concerns that prompted the Moragne Court to overrule The Harrisburg related to ships and the workers who serve them, and to the frequent unavailability of unseaworthiness, a distinctively maritime substantive concept, as a basis of liability under state law. See 398 U.S., at 395-396. The concerns underlying Moragne were of a different order than those invoked by Yamaha. Notably, Yamaha seeks the contraction of Page III remedies, not the extension of relief in light of the "humane and liberal" character of admiralty proceedings recognized in Moragne. See id., at 387. The Moragne Court tied its petitioner's unseaworthiness plea to a federal right-of-action anchor, but left in place the negligence claim she had stated under Florida's law, and thus showed no hostility to concurrent application of state wrongful death statutes that might provide a more generous remedy. Cf. Sun Ship, Inc. v. Pennsylvania, . No congressionally prescribed, comprehensive tort recovery regime prevents such enlargement of damages here. See Miles v. Apex Marine Corp., . The only relevant congressional disposition, the Death on the High Seas Act, states that "[t]he provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this chapter." 46 U.S.C. App. 767. This statement, by its terms, simply stops DOHSA from displacing state law in territorial waters. See, e.g., Miles, supra, at 25. Taking into account what Congress sought to achieve, however, the Court pre-serves the application of state statutes to deaths within territorial waters. Pp. 9-16. 40 F.3d 622, affirmed.GINSBURG, J., delivered the opinion for a unanimous Court. [ YAMAHA MOTOR CORP., U. S. A. v. CALHOUN, ___ U.S. ___ (1996), 1] JUSTICE GINSBURG delivered the opinion of the Court.Twelve-year-old Natalie Calhoun was killed in a jet ski accident on July 6, 1989. At the time of her death, she was vacationing with family friends at a beach-front resort in Puerto Rico. Alleging that the jet ski was defectively designed or made, Natalie's parents sought to recover from the manufacturer pursuant to state survival and wrongful death statutes. The manufacturer contended that state remedies could not be applied because Natalie died on navigable waters; federal, judge-declared maritime law, the manufacturer urged, controlled to the exclusion of state law.Traditionally, state remedies have been applied in accident cases of this order - maritime wrongful death cases in which no federal statute specifies the appropriate relief and the decedent was not a seaman, longshore worker, or person otherwise engaged in a maritime trade. We hold, in accord with the United States Court of Appeals for the Third Circuit, that state remedies remain applicable in such cases and have not been displaced by the federal maritime wrongful death action recognized in Moragne v. States Marine Lines, Inc., . [ YAMAHA MOTOR CORP., U. S. A. v. CALHOUN, ___ U.S. ___ (1996), 2] INatalie Calhoun, the twelve-year-old daughter of respondents Lucien and Robin Calhoun, died in a tragic accident on July 6, 1989. On vacation with family friends at a resort hotel in Puerto Rico, Natalie had rented a "WaveJammer" jet ski manufactured by Yamaha Motor Company, Ltd., and distributed by Yamaha Motor Corporation, U. S. A. (collectively, "Yamaha"), the petitioners in this case. While riding the WaveJammer, Natalie slammed into a vessel anchored in the waters off the hotel frontage, and was killed.The Calhouns, individually and in their capacities as administrators of their daughter's estate, sued Yamaha in the United States District Court for the Eastern District of Pennsylvania. Invoking Pennsylvania's wrongful death and survival statutes, 42 Pa. Cons. Stat. 8301-8302 (1982 and Supp. 1995), the Calhouns asserted several bases for recovery (including negligence, strict liability, and breach of implied warranties), and sought damages for lost future earnings, loss of society, loss of support and services, and funeral expenses, as well as punitive damages. They grounded federal jurisdiction on both diversity of citizenship, 28 U.S.C. 1332,1 and admiralty, 28 U.S.C. 1333.Yamaha moved for partial summary judgment, arguing that the federal maritime wrongful death action this Court recognized in Moragne v. States Marine Lines, Inc., , provided the exclusive basis for recovery, displacing all remedies afforded by state law. Under Moragne, Yamaha contended, the Calhouns could recover as damages only Natalie's funeral expenses. The District Court agreed with Yamaha that [ YAMAHA MOTOR CORP., U. S. A. v. CALHOUN, ___ U.S. ___ (1996), 3] Moragne's maritime death action displaced state remedies; the court held, however, that loss of society and loss of support and services were compensable under Moragne.Both sides asked the District Court to present questions for immediate interlocutory appeal pursuant to 28 U.S.C. 1292(b). The District Court granted the parties' requests, and in its 1292(b) certifying order stated: "Natalie Calhoun, the minor child of plaintiffs Lucien B. Calhoun and Robin L. Calhoun, who are Pennsylvania residents, was killed in an accident not far off shore in Puerto Rico, in the territorial waters of the United States. Plaintiffs have brought a diversity suit against, inter alia, defendants Yamaha Motor Corporation, U. S. A. and Yamaha Motor Co., Ltd. The counts of the complaint directed against the Yamaha defendants allege that the accident was caused by a defect or defects in a Yamaha jet ski which Natalie Calhoun had rented and was using at the time of the fatal accident. Those counts sound in negligence, in strict liability, and in implied warranties of merchantability and fitness. The district court has concluded that admiralty jurisdiction attaches to these several counts and that they constitute a federal maritime cause of action. The questions of law certified to the Court of Appeals are whether, pursuant to such a maritime cause of action, plaintiffs may seek to recover (1) damages for the loss of the society of their deceased minor child, (2) damages for the loss of their child's future earnings, and (3) punitive damages." App. to Pet. for Cert. A-78. Although the Court of Appeals granted the interlocutory review petition, the panel to which the appeal was assigned did not reach the questions presented in the [ YAMAHA MOTOR CORP., U. S. A. v. CALHOUN, ___ U.S. ___ (1996), 4] certified order, for it determined that an anterior issue was pivotal. The District Court, as just recounted, had concluded that any damages the Calhouns might recover from Yamaha would be governed exclusively by federal maritime law. But the Third Circuit panel questioned that conclusion and inquired whether state wrongful death and survival statutes supplied the remedial prescriptions for the Calhouns' complaint. The appellate panel asked whether the state remedies endured or were "displaced by a federal maritime rule of decision." 40 F.3d 622, 624 (1994). Ultimately, the Court of Appeals ruled that state law remedies apply in this case. Id., at 644.IIIn our order granting certiorari, we asked the parties to brief a preliminary question: "Under 28 U.S.C. 1292(b), can the courts of appeals exercise jurisdiction over any question that is included within the order that contains the controlling question of law identified by the district court?" ___ (1995). The answer to that question, we are satisfied, is yes.Section 1292(b) provides, in pertinent part: "When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals ... may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order." (Emphasis added.) As the text of 1292(b) indicates, appellate jurisdiction applies to the order certified to the court of appeals, and [ YAMAHA MOTOR CORP., U. S. A. v. CALHOUN, ___ U.S. ___ (1996), 5] is not tied to the particular question formulated by the district court. The court of appeals may not reach beyond the certified order to address other orders made in the case. United States v. Stanley, . But the appellate court may address any issue fairly included within the certified order because "it is the order that is appealable, and not the controlling question identified by the district court." 9 J. Moore & B. Ward, Moore's Federal Practice § 110.251., p. 300 (2d ed. 1995). See also 16 C. Wright, A. Miller, E. Cooper, & E. Gressman, Federal Practice and Procedure 3929, pp. 144-145 (1977) ("[T]he court of appeals may review the entire order, either to consider a question different than the one certified as controlling or to decide the case despite the lack of any identified controlling question."); Note, Interlocutory Appeals in the Federal Courts Under 28 U.S.C. 1292(b), 88 Harv. L. Rev. 607, 628-629 (1975) ("scope of review [includes] all issues material to the order in question").We therefore proceed to the issue on which certiorari was granted: Does the federal maritime claim for wrongful death recognized in Moragne supply the exclusive remedy in cases involving the deaths of nonseafarers2 in territorial waters?IIIBecause this case involves a watercraft collision on navigable waters, it falls within admiralty's domain. See Sisson v. Ruby, ; Foremost Ins. Co. v. Richardson, . "With admiralty jurisdiction," we have often said, "comes the application of substantive admiralty [ YAMAHA MOTOR CORP., U. S. A. v. CALHOUN, ___ U.S. ___ (1996), 6] law." East River S. S. Corp. v. Transamerica Delaval Inc., . The exercise of admiralty jurisdiction, however, "does not result in automatic displacement of state law." Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co.___, ___ (1995) (slip op., at 18). Indeed, prior to Moragne, federal admiralty courts routinely applied state wrongful death and survival statutes in maritime accident cases.3 The question before us is whether Moragne should be read to stop that practice.Our review of maritime wrongful death law begins with The Harrisburg, where we held that the general maritime law (a species of judge-made federal common law) did not afford a cause of action for wrongful death. The Harrisburg Court said that wrongful death actions are statutory and may not be created by judicial decree. The Court did not question the soundness of this view, or examine the historical justifications that account for it. Instead, the Court merely noted that common law in the United States, like the common law of England, did not allow recovery "for an injury which results in death," id., at 204 (internal quotation marks omitted), and that no country had "adopted a different rule on this subject for the sea from that which it maintains on the land," id., at 213. The Court did not consider itself free to chart a different course by crafting a judge-made wrongful death action under our maritime law.Federal admiralty courts tempered the harshness of The Harrisburg's rule by allowing recovery under state wrongful death statutes. See, e.g., The Hamilton; The City of Norwalk, 55 F. 98 (SDNY 1893).4 We reaffirmed this practice in Western Fuel Co. [ YAMAHA MOTOR CORP., U. S. A. v. CALHOUN, ___ U.S. ___ (1996), 7] v. Garcia, by holding that California's wrongful death statute governed a suit brought by the widow of a maritime worker killed in that State's territorial waters. Though we had generally refused to give effect to state laws regarded as inconsonant with the substance of federal maritime law, we concluded that extending state wrongful death statutes to fatal accidents in territorial waters was compatible with substantive maritime policies: "The subject is maritime and local in character and the specified modification of or supplement to the rule applied in admiralty courts ... will not work material prejudice to the characteristic features of the general maritime law, nor interfere with the proper harmony and uniformity of that law in its international and interstate relations." Id., at 242.5 On similar reasoning, we also held that state survival statutes may be applied in cases arising out of accidents in territorial waters. See Just v. Chambers, .State wrongful death statutes proved an adequate supplement to federal maritime law, until a series of [ YAMAHA MOTOR CORP., U. S. A. v. CALHOUN, ___ U.S. ___ (1996), 8] this Court's decisions transformed the maritime doctrine of unseaworthiness into a strict liability rule. Prior to 1944, unseaworthiness "was an obscure and relatively little used" liability standard, largely because "a shipowner's duty at that time was only to use due diligence to provide a seaworthy ship." Miles v. Apex Marine Corp., (internal quotation marks omitted). See also Moragne, 398 U.S., at 398-399. Mahnich v. Southern S. S. Co., , however, notably expanded a shipowner's liability to injured seamen by imposing a nondelegable duty "to furnish a vessel and appurtenances reasonably fit for their intended use." Mitchell v. Trawler Racer, Inc., . The duty imposed was absolute; failure to supply a safe ship resulted in liability "irrespective of fault and irrespective of the intervening negligence of crew members." Miles, 498 U.S., at 25. The unseaworthiness doctrine thus became a "species of liability without fault," Seas Shipping Co. v. Sieracki, , and soon eclipsed ordinary negligence as the primary basis of recovery when a seafarer was injured or killed. Miles, 498 U.S., at 25-26.6 The disparity between the unseaworthiness doctrine's strict liability standard and negligence-based state wrongful death statutes figured prominently in our landmark Moragne decision. Petsonella Moragne, the widow of a longshore worker killed in Florida's territorial [ YAMAHA MOTOR CORP., U. S. A. v. CALHOUN, ___ U.S. ___ (1996), 9] waters, brought suit under Florida's wrongful death and survival statutes, alleging both negligence and unseaworthiness. The district court dismissed the claim for wrongful death based on unseaworthiness, citing this Court's decision in The Tungus v. Skovgaard, . There, a sharply-divided Court held that "when admiralty adopts a State's right of action for wrongful death, it must enforce the right as an integrated whole, with whatever conditions and limitations the creating State has attached." Id., at 592. Thus, in wrongful death actions involving fatalities in territorial waters, state statutes provided the standard of liability as well as the remedial regime. Because the Florida Supreme Court had previously held that Florida's wrongful death statute did not encompass unseaworthiness as a basis of liability, the Court of Appeals affirmed the dismissal of Moragne's unseaworthiness claim. See Moragne, 398 U.S., at 377.The Court acknowledged in Moragne that The Tungus had led to considerable uncertainty over the role state law should play in remedying deaths in territorial waters, but concluded that "the primary source of the confusion is not to be found in The Tungus, but in The Harrisburg." 398 U.S., at 378. Upon reexamining the soundness of The Harrisburg, we decided that its holding, "somewhat dubious even when rendered, is such an unjustifiable anomaly in the present maritime law that it should no longer be followed." 398 U.S., at 378. Accordingly, the Court overruled The Harrisburg and held that an action "lie[s] under general maritime law for death caused by violation of maritime duties." 398 U.S., at 409.IVYamaha argues that Moragne - despite its focus on "maritime duties" owed to maritime workers - covers the waters, creating a uniform federal maritime remedy for [ YAMAHA MOTOR CORP., U. S. A. v. CALHOUN, ___ U.S. ___ (1996), 10] all deaths occurring in state territorial waters, and ousting all previously available state remedies. In Yamaha's view, state remedies can no longer supplement general maritime law (as they routinely did before Moragne), because Moragne launched a solitary federal scheme.7 Yamaha's reading of Moragne is not without force; in several contexts, we have recognized that vindication of maritime policies demanded uniform adherence to a federal rule of decision, with no leeway for variation or supplementation by state law. See, e.g., Kossick v. United Fruit Co., (federal maritime rule validating oral contracts precluded application of state Statute of Frauds); Pope & Talbot, Inc. v. Hawn, (admiralty's comparative negligence rule barred application of state contributory negligence rule); Garrett v. Moore-McCormack Co., (federal maritime rule allocating burden of proof displaced conflicting state rule).8 In addition, Yamaha correctly [ YAMAHA MOTOR CORP., U. S. A. v. CALHOUN, ___ U.S. ___ (1996), 11] points out that uniformity concerns informed our decision in Moragne.The uniformity concerns that prompted us to overrule The Harrisburg, however, were of a different order than those invoked by Yamaha. Moragne did not reexamine the soundness of The Harrisburg out of concern that state damage awards in maritime wrongful death cases were excessive, or that variations in the remedies afforded by the States threatened to interfere with the harmonious operation of maritime law. Variations of this sort had long been deemed compatible with federal maritime interests. See Western Fuel, 257 U.S., at 242. The uniformity concern that drove our decision in Moragne related, instead, to the availability of unseaworthiness as a basis of liability.By 1970, when Moragne was decided, claims premised on unseaworthiness had become "the principal vehicle for recovery" by seamen and other maritime workers injured or killed in the course of their employment. Moragne, 398 U.S., at 399. But with The Harrisburg in place, troubling anomalies had developed that many times precluded the survivors of maritime workers from recovering for deaths caused by an unseaworthy vessel. The Moragne Court identified three anomalies and concluded they could no longer be tolerated.First, the Court noted that "within territorial waters, identical conduct violating federal law (here the furnishing of an unseaworthy vessel) produces liability if the [ YAMAHA MOTOR CORP., U. S. A. v. CALHOUN, ___ U.S. ___ (1996), 12] victim is merely injured, but frequently not if he is killed." Id., at 395. This occurred because in nonfatal injury cases, state substantive liability standards were superseded by federal maritime law, see Kermarec v. Compagnie Generale Transatlantique, ; Pope & Talbot, 346 U.S., at 409, which provided for maritime worker recovery based on unseaworthiness. But if the same worker met death in the territorial waters of a State whose wrongful death statute did not encompass unseaworthiness (as was the case in Moragne itself), the survivors could not proceed under that generous standard of liability. See The Tungus, 358 U.S., at 592-593.Second, we explained in Moragne that "identical breaches of the duty to provide a seaworthy ship, resulting in death, produce liability outside the three-mile limit ... but not within the territorial waters of a State whose local statute excludes unseaworthiness claims." Moragne, 398 U.S., at 395. This occurred because survivors of a maritime worker killed on the high seas could sue for wrongful death under the Death on the High Seas Act (DOHSA), 46 U.S.C. App. 761 et seq. (1988 ed.), which encompasses unseaworthiness as a basis of liability. Moragne, 398 U.S., at 395 (citing Kernan v. American Dredging Co., , n. 4 (1958)).Finally, we pointed out that "a true seaman [a member of a ship's company] ... is provided no remedy for death caused by unseaworthiness within territorial waters, while a longshoreman, to whom the duty of seaworthiness was extended only because he performs work traditionally done by seamen, does have such a remedy when allowed by a state statute." 398 U.S., at 395-396. This anomaly stemmed from the Court's rulings in Lindgren v. United States, and Gillespie v. United States Steel Corp., , that the Jones Act, 46 U.S.C. App. [ YAMAHA MOTOR CORP., U. S. A. v. CALHOUN, ___ U.S. ___ (1996), 13] 688 (1988 ed.), which provides only a negligence-based claim for the wrongful death of seamen, precludes any state remedy, even one accommodating unseaworthiness. As a result, at the time Moragne was decided, the survivors of a longshore worker killed in the territorial waters of a State whose wrongful death statute incorporated unseaworthiness could sue under that theory, but the survivors of a similarly-situated seaman could not.9 The anomalies described in Moragne relate to ships and the workers who serve them, and to a distinctly maritime substantive concept - the unseaworthiness doctrine. The Court surely meant to "assure uniform vindication of federal policies," 398 U.S., at 401, with respect to the matters it examined. The law as it developed under The Harrisburg had forced on the States more than they could bear - the task of "provid[ing] the sole remedy" in cases that did not involve "traditional common-law concepts," but "concepts peculiar to maritime law." 398 U.S., at 401, n. 15 (internal quotation marks omitted). Discarding The Harrisburg and declaring a wrongful death right of action under general maritime law, the Court concluded, would "remov[e] the tensions and discrepancies" occasioned by the need "to accommodate state remedial statutes to exclusively maritime substantive concepts." 398 U.S., at 401.10 [ YAMAHA MOTOR CORP., U. S. A. v. CALHOUN, ___ U.S. ___ (1996), 14] Moragne, in sum, centered on the extension of relief, not on the contraction of remedies. The decision recalled that "`it better becomes the humane and liberal character of proceedings in admiralty to give than to withhold the remedy, when not required to withhold it by established and inflexible rules.'" Id., at 387 (quoting The Sea Gull, 21 F. Cas. 909, 910 (No. 12,578) (CC Md. 1865) (Chase, C. J.)). The Court tied Petsonella Moragne's plea based on the unseaworthiness of the vessel to a federal right-of-action anchor,11 but notably left in place the negligence claim she had stated under Florida's law. See 398 U.S., at 376-377.12 Our understanding of Moragne accords with that of the Third Circuit, which Judge Becker set out as follows:"Moragne ... showed no hostility to concurrent application of state wrongful death statutes. Indeed, to read into Moragne the idea that it was placing a ceiling on recovery for wrongful death, rather than a floor, is somewhat ahistorical. The Moragne cause of action was in many respects a gap-filling measure [ YAMAHA MOTOR CORP., U. S. A. v. CALHOUN, ___ U.S. ___ (1996), 15] to ensure that seamen (and their survivors) would all be treated alike. The `humane and liberal' purpose underlying the general maritime remedy of Moragne was driven by the idea that survivors of seamen killed in state territorial waters should not have been barred from recovery simply because the tort system of the particular state in which a seaman died did not incorporate special maritime doctrines. It is difficult to see how this purpose can be taken as an intent to preclude the operation of state laws that do supply a remedy." 40 F.3d, at 641-642 (citation omitted). We have reasoned similarly in Sun Ship, Inc. v. Pennsylvania, , where we held that a State may apply its workers' compensation scheme to land-based injuries that fall within the compass of the Longshore and Harbor Workers' Compensation Act, 33 U.S.C. 901 et seq. See Sun Ship, 447 U.S., at 724 (a State's remedial scheme might be "more generous than federal law" but nevertheless could apply because Congress indicated no concern "about a disparity between adequate federal benefits and superior state benefits") (emphasis in original).13 [ YAMAHA MOTOR CORP., U. S. A. v. CALHOUN, ___ U.S. ___ (1996), 16] When Congress has prescribed a comprehensive tort recovery regime to be uniformly applied, there is, we have generally recognized, no cause for enlargement of the damages statutorily provided. See Miles, 498 U.S., at 30-36 (Jones Act, rather than general maritime law, determines damages recoverable in action for wrongful death of seamen); Offshore Logistics, Inc. v. Tallentire, (DOHSA, which limits damages to pecuniary losses, may not be supplemented by nonpecuniary damages under a state wrongful death statute); Mobil Oil Corp. v. Higginbotham, (DOHSA precludes damages for loss of society under general maritime law). But Congress has not prescribed remedies for the wrongful deaths of nonseafarers in territorial waters. See Miles, 498 U.S., at 31. There is, however, a relevant congressional disposition. Section 7 of DOHSA states: "The provisions of any State statute giving or regulating rights of action or remedies for death shall not be affected by this chapter." 46 U.S.C. App. 767. This statement, by its terms, simply stops DOHSA from displacing state law in territorial waters. See Miles, 498 U.S., at 25; Tallentire, 477 U.S., at 224-225; Moragne, 398 U.S., at 397-398. Taking into account what Congress sought to achieve, we preserve the application of state statutes to deaths within territorial waters. * * * For the reasons stated, we hold that the damages available for the jet ski death of Natalie Calhoun are properly governed by state law.14 The judgment of the [ YAMAHA MOTOR CORP., U. S. A. v. CALHOUN, ___ U.S. ___ (1996), 17] Court of Appeals for the Third Circuit is accordingly Affirmed.

The gender-based distinction mandated by the provisions of the Social Security Act, 42 U.S.C. 402 (g), that grant survivors' benefits based on the earnings of a deceased husband and father covered by the Act both to his widow and to the couple's minor children in her care, but that grant benefits based on the earnings of a covered deceased wife and mother only to the minor children and not to the widower, violates the right to equal protection secured by the Due Process Clause of the Fifth Amendment, since it unjustifiably discriminates against female wage earners required to pay social security taxes by affording them less protection for their survivors than is provided for male wage earners. Pp. 642-653. (a) The distinction is based on an "archaic and overbroad" generalization not tolerated under the Constitution, namely, that male workers' earnings are vital to their families' support, while female workers' earnings do not significantly contribute to families' support. Frontiero v. Richardson, . Pp. 642-643. (b) That social security benefits are "noncontractual" and do not compensate for work performed or necessarily correlate with contributions to the program, cannot sanction the solely gender-based differential protection for covered employees. Since the benefits depend significantly upon a covered employee's participation in the work force, and since only covered employees and not others are required to pay taxes toward the system, benefits must be distributed according to classifications that do not differentiate among covered employees solely on the basis of sex. Pp. 646-647. (c) Since, as is apparent from the statutory scheme itself and from 402 (g)'s legislative history, 402 (g)'s purpose in providing benefits to young widows with children was not, as the Government contends, to provide an income to women who, because of economic discrimination, were unable to provide for themselves, but to permit women to elect not to work and to devote themselves to care of children (and thus was not premised upon any special disadvantage of women), it cannot serve to justify a gender-based distinction diminishing the protection afforded women who do work. Pp. 648-652. 367 F. Supp. 981, affirmed.BRENNAN, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. POWELL, J., filed a concurring opinion in which BURGER, C. J., joined, post, p. 654. REHNQUIST, J., filed an opinion concurring in the result, post, p. 655. DOUGLAS, J., took no part in the consideration or decision of the case.Keith A. Jones argued the cause for appellant. On the brief were Solicitor General Bork, Assistant Attorney General Hills, and Danny J. Boggs.Ruth Bader Ginsburg argued the cause for appellee. With her on the brief was Melvin L. Wulf.* [Footnote *] Nancy Stearns filed a brief for the Center for Constitutional Rights as amicus curiae urging affirmance.MR. JUSTICE BRENNAN delivered the opinion of the Court.Social Security Act benefits based on the earnings of a deceased husband and father covered by the Act are payable, with some limitations, both to the widow and to the couple's minor children in her care. 202 (g) of the Social Security Act, as amended, 42 U.S.C. 402 (g).1 Such benefits are payable on the basis of the earnings of a deceased wife and mother covered by the Act, however, only to the minor children and not to the widower. The question in this case is whether this gender-based distinction violates the Due Process Clause of the Fifth Amendment.2 A three-judge District Court for the District of New Jersey held that the different treatment of men and women mandated by 402 (g) unjustifiably discriminated against female wage earners by affording them less protection for their survivors than is provided to male employees. 367 F. Supp. 981, 991 (1973). We noted probable jurisdiction, . We affirm.IAppellee Stephen C. Wiesenfeld and Paula Polatschek were married on November 15, 1970. Paula, who worked as a teacher for five years before her marriage, continued teaching after her marriage. Each year she worked, maximum social security contributions were deducted from her salary.3 Paula's earnings were the couple's principal source of support during the marriage, being substantially larger than those of appellee.4 On June 5, 1972, Paula died in childbirth. Appellee was left with the sole responsibility for the care of their infant son, Jason Paul. Shortly after his wife's death, Stephen Wiesenfeld applied at the Social Security office in New Brunswick, N. J., for social security survivors' benefits for himself and his son. He did obtain benefits for his son under 42 U.S.C. 402 (d) (1970 ed. and Supp. III),5 and received for Jason $206.90 per month until September 1972, and $248.30 per month thereafter. However, appellee was told that he was not eligible for benefits for himself, because 402 (g) benefits were available only to women.6 If he had been a woman, he would have received the same amount as his son as long as he was not working, see 42 U.S.C. 402 (d) (2) and (g) (2), and, if working, that amount reduced by $1 for every $2 earned annually above $2,400. 42 U.S.C. 403 (b) and (f).7 Appellee filed this suit in February 1973,8 claiming jurisdiction under 28 U.S.C. 1331, on behalf of himself and of all widowers similarly situated.9 He sought a declaration that 402 (g) is unconstitutional to the extent that men and women are treated differently, an injunction restraining appellant from denying benefits under 402 (g) solely on the basis of sex, and payment of past benefits commencing with June 1972, the month of the original application. Cross motions for summary judgment were filed. After the three-judge court determined that it had jurisdiction,10 it granted summary judgment in favor of appellee, and issued an order giving appellee the relief he sought.IIThe gender-based distinction made by 402 (g) is indistinguishable from that invalidated in Frontiero v. Richardson, . Frontiero involved statutes which provided the wife of a male serviceman with dependents' benefits but not the husband of a servicewoman unless she proved that she supplied more than one-half of her husband's support. The Court held that the statutory scheme violated the right to equal protection secured by the Fifth Amendment. Schlesinger v. Ballard, , explained: "In ... Frontiero the challenged [classification] based on sex [was] premised on overbroad generalizations that could not be tolerated under the Constitution... . [T]he assumption ... was that female spouses of servicemen would normally be dependent upon their husbands, while male spouses of servicewomen would not." Id., at 507. A virtually identical "archaic and overbroad" generalization, id., at 508, "not ... tolerated under the Constitution" underlies the distinction drawn by 402 (g), namely, that male workers' earnings are vital to the support of their families, while the earnings of female wage earners do not significantly contribute to their families' support.11 Section 402 (g) was added to the Social Security Act in 1939 as one of a large number of amendments designed to "afford more adequate protection to the family as a unit." H. R. Rep. No. 728, 76th Cong., 1st Sess., 7 (1939). Monthly benefits were provided to wives, children, widows, orphans, and surviving dependent parents of covered workers. Ibid. However, children of covered female workers were eligible for survivors' benefits only in limited circumstances, see n. 5, supra, and no benefits whatever were made available to husbands or widowers on the basis of their wives' covered employment.12 Underlying the 1939 scheme was the principle that "[u]nder a social-insurance plan the primary purpose is to pay benefits in accordance with the probable needs of the beneficiaries rather than to make payments to the estate of a deceased person regardless of whether or not he leaves dependents." H. R. Rep. No. 728, supra, at 7. (Emphasis supplied.) It was felt that "[t]he payment of these survivorship benefits and supplements for the wife of an annuitant are ... in keeping with the principle of social insurance ... ." Ibid. Thus, the framers of the Act legislated on the "then generally accepted presumption that a man is responsible for the support of his wife and children." D. Hoskins & L. Bixby, Women and Social Security: Law and Policy in Five Countries, Social Security Administration Research Report No. 42, p. 77 (1973).13 Obviously, the notion that men are more likely than women to be the primary supporters of their spouses and children is not entirely without empirical support. See Kahn v. Shevin, n. 7 (1974). But such a gender-based generalization cannot suffice to justify the denigration of the efforts of women who do work and whose earnings contribute significantly to their families' support.Section 402 (g) clearly operates, as did the statutes invalidated by our judgment in Frontiero, to deprive women of protection for their families which men receive as a result of their employment. Indeed, the classification here is in some ways more pernicious. First, it was open to the servicewoman under the statutes invalidated in Frontiero to prove that her husband was in fact dependent upon her. Here, Stephen Wiesenfeld was not given the opportunity to show, as may well have been the case, that he was dependent upon his wife for his support, or that, had his wife lived, she would have remained at work while he took over care of the child. Second, in this case social security taxes were deducted from Paula's salary during the years in which she worked. Thus, she not only failed to receive for her family the same protection which a similarly situated male worker would have received, but she also was deprived of a portion of her own earnings in order to contribute to the fund out of which benefits would be paid to others. Since the Constitution forbids the gender-based differentiation premised upon assumptions as to dependency made in the statutes before us in Frontiero, the Constitution also forbids the gender-based differentiation that results in the efforts of female workers required to pay social security taxes producing less protection for their families than is produced by the efforts of men. IIIAppellant seeks to avoid this conclusion with two related arguments. First, he claims that because social security benefits are not compensation for work done, Congress is not obliged to provide a covered female employee with the same benefits as it provides to a male. Second, he contends that 402 (g) was "reasonably designed to offset the adverse economic situation of women by providing a widow with financial assistance to supplement or substitute for her own efforts in the marketplace," Brief for Appellant 14, and therefore does not contravene the equal protection guarantee.AAppellant relies for the first proposition primarily on Flemming v. Nestor, . We held in Flemming that the interest of a covered employee in future social security benefits is "noncontractual," because "each worker's benefits, though flowing from the contributions he made to the national economy while actively employed, are not dependent on the degree to which he was called upon to support the system by taxation." Id., at 609-610. Appellant apparently contends that since benefits derived from the social security program do not correlate necessarily with contributions made to the program, a covered employee has no right whatever to be treated equally with other employees as regards the benefits which flow from his or her employment.We do not see how the fact that social security benefits are "noncontractual" can sanction differential protection for covered employees which is solely gender based. From the outset, social security old age, survivors', and disability (OASDI) benefits have been "afforded as a matter of right, related to past participation in the productive processes of the country." Final Report of the Advisory Council on Social Security 17 (1938). It is true that social security benefits are not necessarily related directly to tax contributions, since the OASDI system is structured to provide benefits in part according to presumed need.14 For this reason, Flemming held that the position of a covered employee "cannot be soundly analogized to that of the holder of an annuity, whose right to benefits is bottomed on his contractual premium payments." 363 U.S., at 610. But the fact remains that the statutory right to benefits is directly related to years worked and amount earned by a covered employee,15 and not to the need of the beneficiaries directly. Since OASDI benefits do depend significantly upon the participation in the work force of a covered employee, and since only covered employees and not others are required to pay taxes toward the system, benefits must be distributed according to classifications which do not without sufficient justification differentiate among covered employees solely on the basis of sex. BAppellant seeks to characterize the classification here as one reasonably designed to compensate women beneficiaries as a group for the economic difficulties which still confront women who seek to support themselves and their families. The Court held in Kahn v. Shevin, 416 U.S., at 355, that a statute "reasonably designed to further the state policy of cushioning the financial impact of spousal loss upon the sex for which that loss imposes a disproportionately heavy burden" can survive an equal protection attack. See also Schlesinger v. Ballard, . But the mere recitation of a benign, compensatory purpose is not an automatic shield which protects against any inquiry into the actual purposes underlying a statutory scheme.16 Here, it is apparent both from the statutory scheme itself and from the legislative history of 402 (g) that Congress' purpose in providing benefits to young widows with children was not to provide an income to women who were, because of economic discrimination, unable to provide for themselves. Rather, 402 (g), linked as it is directly to responsibility for minor children, was intended to permit women to elect not to work and to devote themselves to the care of children. Since this purpose in no way is premised upon any special disadvantages of women, it cannot serve to justify a gender-based distinction which diminishes the protection afforded to women who do work.That the purpose behind 402 (g) is to provide children deprived of one parent with the opportunity for the personal attention of the other could not be more clear in the legislative history. The Advisory Council on Social Security, which developed the 1939 amendments, said explicitly that "[s]uch payments [under 402 (g)] are intended as supplements to the orphans' benefits with the purpose of enabling the widow to remain at home and care for the children." Final Report of the Advisory Council on Social Security 31 (1938). (Emphasis supplied.) In 1971, a new Advisory Council, considering amendments to eliminate the various gender-based distinctions in the OASDI structure, reiterated this understanding: "Present law provides benefits for the mother of young ... children ... if she chooses to stay home and care for the children instead of working. In the Council's judgment, it is desirable to allow a woman who is left with the care of the children the choice of whether to stay at home to care for the children or to work." 1971 Advisory Council on Social Security, Reports on the Old-Age, Survivors, and Disability Insurance and Medicare Programs 30 (hereinafter 1971 Reports). (Emphasis supplied.)Indeed, consideration was given in 1939 to extending benefits to all widows regardless of whether or not there were minor children. The proposal was rejected, apparently because it was felt that young widows without children can be expected to work, while middle-aged widows "are likely to have more savings than younger widows and many of them have children who are grown and able to help them." Report of the Social Security Board, H. R. Doc. No. 110, 76th Cong., 1st Sess., 7-8 (1939). See also Final Report of the Advisory Council on Social Security 31 (1938); Hearings on the Social Security Act Amendments of 1939 before the House Committee on Ways and Means, 76th Cong., 1st Sess., 61, 1217, 2169-2170; H. R. Rep. No. 728, 76th Cong., 1st Sess., 36-37 (1939). Thus, Congress decided not to provide benefits to all widows even though it was recognized that some of them would have serious problems in the job market. Instead, it provided benefits only to those women who had responsibility for minor children, because it believed that they should not be required to work.The whole structure of survivors' benefits conforms to this articulated purpose. Widows without minor children obtain no benefits on the basis of their husband's earnings until they reach age 60 or, in certain instances of disability, age 50. 42 U.S.C. 402 (e) (1) and (5). Further, benefits under 402 (g) cease when all children of a beneficiary are no longer eligible for children's benefits.17 If Congress were concerned with providing women with benefits because of economic discrimination, it would be entirely irrational to except those women who had spent many years at home rearing children, since those women are most likely to be without the skills required to succeed in the job market. See Walker, Sex Discrimination in Government Benefit Programs, 23 Hastings L. J. 277, 278-279 (1971); Hearings, supra, at 61 (remarks of Dr. Altemeyer, Chairman, Social Security Board); Report of the Committee on Social Insurance and Taxes, The President's Commission on the Status of Women 31-32 (1963). Similarly, the Act now provides benefits to a surviving divorced wife who is the parent of a covered employee's child, regardless of how long she was married to the deceased or of whether she or the child was dependent upon the employee for support. 402 (g), 416 (d) (3). Yet, a divorced wife who is not the mother of a child entitled to children's benefits is eligible for benefits only if she meets other eligibility requirements and was married to the covered employee for 20 years. 402 (b) and (e), 416 (d).18 Once again, this distinction among women is explicable only because Congress was not concerned in 402 (g) with the employment problems of women generally but with the principle that children of covered employees are entitled to the personal attention of the surviving parent if that parent chooses not to work.Given the purpose of enabling the surviving parent to remain at home to care for a child, the gender-based distinction of 402 (g) is entirely irrational. The classification discriminates among surviving children solely on the basis of the sex of the surviving parent. Even in the typical family hypothesized by the Act, in which the husband is supporting the family and the mother is caring for the children, this result makes no sense. The fact that a man is working while there is a wife at home does not mean that he would, or should be required to, continue to work if his wife dies. It is no less important for a child to be cared for by its sole surviving parent when that parent is male rather than female. And a father, no less than a mother, has a constitutionally protected right to the "companionship, care, custody, and management" of "the children he has sired and raised, [which] undeniably warrants deference and, absent a powerful countervailing interest, protection." Stanley v. Illinois, . Further, to the extent that women who work when they have sole responsibility for children encounter special problems, it would seem that men with sole responsibility for children will encounter the same child-care related problems.19 Stephen Wiesenfeld, for example, found that providing adequate care for his infant son impeded his ability to work, see n. 7, supra.Finally, to the extent that Congress legislated on the presumption that women as a group would choose to forgo work to care for children while men would not,20 the statutory structure, independent of the gender-based classification, would deny or reduce benefits to those men who conform to the presumed norm and are not hampered by their child-care responsibilities. Benefits under 402 (g) decrease with increased earnings, see, supra, at 641. According to appellant, "the bulk of male workers would receive no benefits in any event," Brief for Appellant 17 n. 11, because they earn too much. Thus, the gender-based distinction is gratuitous; without it, the statutory scheme would only provide benefits to those men who are in fact similarly situated to the women the statute aids.Since the gender-based classification of 402 (g) cannot be explained as an attempt to provide for the special problems of women, it is indistinguishable from the classification held invalid in Frontiero. Like the statutes there, "[b]y providing dissimilar treatment for men and women who are ... similarly situated, the challenged section violates the [Due Process] Clause." Reed v. Reed, . Affirmed.MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case.

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

Among longstanding limitations on federal-court jurisdiction otherwise properly exercised are the so-called "domestic relations" and "probate" exceptions. Neither is compelled by the text of the Constitution or federal statute. Both are judicially created doctrines stemming in large measure from misty understandings of English legal history. In view of lower federal-court decisions expansively interpreting the two exceptions, this Court reined in the domestic relations exception in Ankenbrandt v. Richards, 504 U. S. 689, and endeavored similarly to curtail the probate exception in Markham v. Allen, 326 U. S. 490. Petitioner, Vickie Lynn Marshall (Vickie), a.k.a. Anna Nicole Smith, is the surviving widow of J. Howard Marshall II (J. Howard), who died without providing for Vickie in his will. According to Vickie, J. Howard intended to provide for her through a gift in the form of a "catch-all" trust. Respondent, E. Pierce Marshall (Pierce), J. Howard's son, was the ultimate beneficiary of J. Howard's estate plan. While the estate was subject to ongoing Texas Probate Court proceedings, Vickie filed for bankruptcy in California. Pierce filed a proof of claim in the federal bankruptcy court, alleging that Vickie had defamed him when, shortly after J. Howard's death, her lawyers told the press that Pierce had engaged in forgery, fraud, and overreaching to gain control of his father's assets. Pierce sought a declaration that his claim was not dischargeable in bankruptcy. Vickie answered, asserting truth as a defense. She also filed counterclaims, among them a claim that Pierce had tortiously interfered with a gift she expected from J. Howard. Vickie's tortious interference counterclaim turned her objection to Pierce's claim into an adversary proceeding, see Fed. Rule Bkrtcy. Proc. 3007, in which the Bankruptcy Court granted summary judgment for Vickie on Pierce's claim and, after a trial on the merits, entered judgment for Vickie on her counterclaim. The court also held that both Vickie's objection to Pierce's claim and her counterclaim qualified as "core proceedings" under 28 U. S. C. §157, which meant that the court had authority to enter a final judgment disposing of those claims. It awarded Vickie substantial compensatory and punitive damages. Pierce then filed a post-trial motion to dismiss for lack of subject-matter jurisdiction, asserting that Vickie's tortious interference claim could be tried only in the Texas probate proceedings. The Bankruptcy Court denied the motion. Relying on Markham, the Bankruptcy Court observed that a federal court has jurisdiction to adjudicate rights in probate property, so long as its final judgment does not interfere with the state court's possession of the property. Subsequently, the Texas Probate Court declared that J. Howard's estate plan was valid. Back in the federal forum, Pierce sought district-court review of the Bankruptcy Court's judgment. Among other things, the District Court held that the probate exception did not reach Vickie's counterclaim. Citing Markham, 326 U. S., at 494, the court said that the exception would bar federal jurisdiction only if such jurisdiction would "interfere" with the probate proceedings. It would not do so, the court concluded, because: (1) success on Vickie's counterclaim did not necessitate any declaration that J. Howard's will was invalid, and (2) under Texas law, probate courts do not have exclusive jurisdiction to entertain claims of the kind Vickie's counterclaim asserted. The court also held that Vickie's claim did not qualify as a "core proceedin[g]" over which a bankruptcy court may exercise plenary power, see 28 U. S. C. §157(b)-(c). Accordingly, the District Court treated the Bankruptcy Court's judgment as proposed, rather than final, and undertook de novo review. Adopting and supplementing the Bankruptcy Court's findings, the District Court determined that Pierce had tortiously interfered with Vickie's expectancy by, inter alia, conspiring to suppress or destroy the inter vivos trust instrument J. Howard had directed his lawyers to prepare for Vickie, and to strip J. Howard of his assets by backdating, altering, and otherwise falsifying documents and presenting them to J. Howard under false pretenses. The District Court awarded Vickie some $44.3 million in compensatory damages and, based on "overwhelming" evidence of Pierce's willfulness, maliciousness, and fraud, an equal amount in punitive damages. The Ninth Circuit reversed. Although the Court of Appeals recognized that Vickie's claim does not involve the administration of an estate, the probate of a will, or any other purely probate matter, it nonetheless held that the probate exception bars federal jurisdiction in this case. It read the exception broadly to exclude from the federal courts' adjudicatory authority not only direct challenges to a will or trust, but also questions which would ordinarily be decided by a probate court in determining the validity of the decedent's estate planning instrument, whether those questions involve fraud, undue influence, or tortious interference with the testator's intent. The court also held that a State's vesting of exclusive jurisdiction over probate matters in a special court strips federal courts of jurisdiction to entertain any probate related matter, including claims respecting tax liability, debt, gift, and tort. Noting that the Probate Court had ruled it had exclusive jurisdiction over all of Vickie's claims, the Ninth Circuit held that ruling binding on the Federal District Court. Held: The Ninth Circuit had no warrant from Congress, or from this Court's decisions, for its sweeping extension of the probate exception recognized in those decisions. Because this case does not fall within the exception's scope, the District Court properly asserted jurisdiction over Vickie's counterclaim against Pierce. Pp. 8-18. (a) Ankenbrandt addressed the domestic relations exception's derivation and limits. Among other things, the Court, 504 U. S., at 693-695, traced the current exception to Barber v. Barber, 21 How. 582, 584-589, in which the Court had announced in dicta — without citation or discussion — that federal courts lack jurisdiction over suits for divorce or alimony. Finding no Article III impediment to federal-court jurisdiction in domestic relations cases, 504 U. S., at 695-697, the Ankenbrandt Court, id., at 698-701, anchored the exception in the Judiciary Act of 1789, which, until 1948, provided circuit court diversity jurisdiction over "all suits of a civil nature at common law or in equity." The Barber majority, the Ankenbrandt Court acknowledged, 504 U. S., at 698, did not expressly tie its announcement of a domestic relations exception to the text of the diversity statute, but the Barber dissenters made the connection. Because English chancery courts lacked authority to issue divorce and alimony decrees, the dissenters stated, United States courts similarly lacked authority to decree divorces or award alimony, 21 How., at 605. The Ankenbrandt Court was "content" "to rest [its] conclusion that a domestic relations exception exists as a matter of statutory construction not on the accuracy of [Barber's] historical justifications, but, "rather," on "Congress' apparent acceptance of this construction of the diversity jurisdiction provisions in the years prior to 1948," 504 U. S., at 700. Ankenbrandt further determined that Congress did not intend to terminate the exception in 1948 when it "replace[d] the law/equity distinction with the phrase 'all civil actions.' " Id., at 700. The Ankenbrandt Court nevertheless emphasized that the exception covers only "a narrow range of domestic relations issues." Id., at 701. Noting that some lower federal courts had applied the exception "well beyond the circumscribed situations posed by Barber and its progeny," ibid., the Court clarified that only "divorce, alimony, and child custody decrees" remain outside federal jurisdictional bounds, id., at 703, 704. While recognizing state tribunals' "special proficiency" in handling issues arising in the granting of such decrees, id., at 704, the Court viewed federal courts as equally equipped to deal with complaints alleging torts, ibid. Pp. 8-11. (b) This Court has recognized a probate exception, kin to the domestic relations exception, to otherwise proper federal jurisdiction. See, e.g., Markham, the Court's most recent and pathmarking pronouncement on the subject. Among other things, the Markham Court first stated that, although "a federal court has no jurisdiction to probate a will or administer an estate[,] it has [long] been established ... that federal courts of equity have jurisdiction to entertain suits 'in favor of creditors, legatees and heirs' and other claimants against a decedent's estate 'to establish their claims' so long as the federal court does not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court." 294 U. S. 189, 195-196. Thus, the probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent's estate; it also precludes federal courts from disposing of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction. Pp. 11-15. (c) Vickie's claim does not involve the administration of an estate, the probate of a will, or any other purely probate matter. Provoked by Pierce's claim in the bankruptcy proceedings, Vickie's claim alleges the widely recognized tort of interference with a gift or inheritance. She seeks an in personam judgment against Pierce, not the probate or annulment of a will. Cf. Sutton v. English, 246 U. S. 199, 208. Nor does she seek to reach a res in a state court's custody. See Markham, 326 U. S., at 494. Furthermore, no "sound policy considerations" militate in favor of extending the probate exception to cover this case. Cf. Ankenbrandt, 504 U. S., at 703. Trial courts, both federal and state, often address conduct of the kind Vickie alleges. State probate courts possess no "special proficiency" in handling such issues. Cf. id., at 704. P. 15. (d) This Court rejects the Ninth Circuit's alternate rationale that the Texas Probate Court's jurisdictional ruling bound the Federal District Court. Texas courts have recognized a state-law tort action for interference with an expected gift or inheritance. It is clear, under Erie R. Co. v. Tompkins, 304 U. S. 64, that Texas law governs the substantive elements of Vickie's tortious interference claim. But it is also clear that Texas may not reserve to its probate courts the exclusive right to adjudicate a transitory tort. See Tennessee Coal, Iron & R. Co. v. George, 233 U. S. 354, 360. Jurisdiction is determined "by the law of the court's creation and cannot be defeated by the extraterritorial operation of a [state] statute ... , even though it created the right of action." Ibid. Directly on point, the Court has held that federal-court jurisdiction, "having existed from the beginning of the Federal government, [can] not be impaired by subsequent state legislation creating courts of probate." McClellan v. Carland, 217 U. S. 268, 281. Durfee v. Duke, 375 U. S. 106, on which the Ninth Circuit relied, is not to the contrary. Durfee stands only for the proposition that a state court's final judgment determining its own jurisdiction ordinarily qualifies for full faith and credit, so long as the jurisdictional issue was fully and fairly litigated in the court that rendered the judgment. See id., at 111, 115. At issue here, however, is not the Texas Probate Court's jurisdiction, but the federal courts' jurisdiction to entertain Vickie's tortious interference claim. Under our federal system, Texas cannot render its probate courts exclusively competent to entertain a claim of that genre. Pp. 15-17. (e) The Ninth Circuit may address on remand the questions whether Vickie's claim was "core" and Pierce's arguments concerning claim and issue preclusion. P. 17-18.392 F. 3d 1118, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Souter, Thomas, Breyer, and Alito, JJ., joined. Stevens, J., filed an opinion concurring in part and concurring in the judgment.VICKIE LYNN MARSHALL, PETITIONER v. E. PIERCEMARSHALLon writ of certiorari to the united states court ofappeals for the ninth circuit[May 1, 2006] Justice Ginsburg delivered the opinion of the Court.In Cohens v. Virginia, Chief Justice Marshall famously cautioned: "It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction, if it should ... . We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given." 6 Wheat. 264, 404 (1821). Among longstanding limitations on federal jurisdiction otherwise properly exercised are the so-called "domestic relations" and "probate" exceptions. Neither is compelled by the text of the Constitution or federal statute. Both are judicially created doctrines stemming in large measure from misty understandings of English legal history. See, e.g., Atwood, Domestic Relations Cases in Federal Court: Toward a Principled Exercise of Jurisdiction, 35 Hastings L. J. 571, 584-588 (1984); Spindel v. Spindel, 283 F. Supp. 797, 802 (EDNY 1968) (collecting cases and commentary revealing vulnerability of historical explanation for domestic relations exception); Winkler, The Probate Jurisdiction of the Federal Courts, 14 Probate L. J. 77, 125-126, and n. 256 (1997) (describing historical explanation for probate exception as "an exercise in mythography"). In the years following Marshall's 1821 pronouncement, courts have sometimes lost sight of his admonition and have rendered decisions expansively interpreting the two exceptions. In Ankenbrandt v. Richards, 504 U. S. 689 (1992), this Court reined in the "domestic relations exception." Earlier, in Markham v. Allen, 326 U. S. 490 (1946), the Court endeavored similarly to curtail the "probate exception." Nevertheless, the Ninth Circuit in the instant case read the probate exception broadly to exclude from the federal courts' adjudicatory authority "not only direct challenges to a will or trust, but also questions which would ordinarily be decided by a probate court in determining the validity of the decedent's estate planning instrument." 392 F. 3d 1118, 1133 (2004). The Court of Appeals further held that a State's vesting of exclusive jurisdiction over probate matters in a special court strips federal courts of jurisdiction to entertain any "probate related matter," including claims respecting "tax liability, debt, gift, [or] tort." Id., at 1136. We hold that the Ninth Circuit had no warrant from Congress, or from decisions of this Court, for its sweeping extension of the probate exception.I Petitioner, Vickie Lynn Marshall (Vickie), also known as Anna Nicole Smith, is the surviving widow of J. Howard Marshall II (J. Howard). Vickie and J. Howard met in October 1991. After a courtship lasting more than two years, they were married on June 27, 1994. J. Howard died on August 4, 1995. Although he lavished gifts and significant sums of money on Vickie during their courtship and marriage, J. Howard did not include anything for Vickie in his will. According to Vickie, J. Howard intended to provide for her financial security through a gift in the form of a "catch-all" trust. Respondent, E. Pierce Marshall (Pierce), one of J. Howard's sons, was the ultimate beneficiary of J. Howard's estate plan, which consisted of a living trust and a "pourover" will. Under the terms of the will, all of J. Howard's assets not already included in the trust were to be transferred to the trust upon his death. Competing claims regarding J. Howard's fortune ignited proceedings in both state and federal courts. In January 1996, while J. Howard's estate was subject to ongoing proceedings in Probate Court in Harris County, Texas, Vickie filed for bankruptcy under Chapter 11 of the Bankruptcy Code, 11 U. S. C. §1101 et seq., in the United States Bankruptcy Court for the Central District of California. See 275 B. R. 5, 8 (CD Cal. 2002). In June 1996, Pierce filed a proof of claim in the federal bankruptcy proceeding, id., at 9; see 11 U. S. C. §501, alleging that Vickie had defamed him when, shortly after J. Howard's death, lawyers representing Vickie told members of the press that Pierce had engaged in forgery, fraud, and overreaching to gain control of his father's assets. 275 B. R., at 9. Pierce sought a declaration that the debt he asserted in that claim was not dischargeable in bankruptcy. Ibid.1 Vickie answered, asserting truth as a defense. She also filed counterclaims, among them a claim that Pierce had tortiously interfered with a gift she expected. Ibid.; see App. 23-25. Vickie alleged that Pierce prevented the transfer of his father's intended gift to her by, among other things: effectively imprisoning J. Howard against his wishes; surrounding him with hired guards for the purpose of preventing personal contact between him and Vickie; making misrepresentations to J. Howard; and transferring property against J. Howard's expressed wishes. Id., at 24. Vickie's tortious interference counterclaim turned her objection to Pierce's claim into an adversary proceeding. Id., at 39; see Fed. Rule Bkrtcy. Proc. 3007. In that proceeding, the Bankruptcy Court granted summary judgment in favor of Vickie on Pierce's claim and, after a trial on the merits, entered judgment for Vickie on her tortious interference counterclaim. See 253 B. R. 550, 558-559 (2000). The Bankruptcy Court also held that both Vickie's objection to Pierce's claim and Vickie's counterclaim qualified as "core proceedings" under 28 U. S. C. §157, which meant that the court had authority to enter a final judgment disposing of those claims. See 257 B. R. 35, 39-40 (2000). The court awarded Vickie compensatory damages of more than $449 million — less whatever she recovered in the ongoing probate action in Texas — as well as $25 million in punitive damages. Id., at 40. Pierce filed a post-trial motion to dismiss for lack of subject-matter jurisdiction, asserting that Vickie's tortious interference claim could be tried only in the Texas probate proceedings. Id., at 36. The Bankruptcy Court held that "the 'probate exception' argument was waived" because it was not timely raised. Id., at 39. Relying on this Court's decision in Markham, the court observed that a federal court has jurisdiction to "adjudicate rights in probate property, so long as its final judgment does not undertake to interfere with the state court's possession of the property." 257 B. R., at 38 (citing Markham, 326 U. S., at 494). Meanwhile, in the Texas Probate Court, Pierce sought a declaration that the living trust and his father's will were valid. 392 F. 3d, at 1124-1125. Vickie, in turn, challenged the validity of the will and filed a tortious interference claim against Pierce, ibid., but voluntarily dismissed both claims once the Bankruptcy Court entered its judgment, id., at 1128. Following a jury trial, the Probate Court declared the living trust and J. Howard's will valid. Id., at 1129. Back in the federal forum, Pierce sought district-court review of the Bankruptcy Court's judgment. While rejecting the Bankruptcy Court's determination that Pierce had forfeited any argument based on the probate exception, the District Court held that the exception did not reach Vickie's claim. 264 B. R. 609, 619-625 (CD Cal. 2001). The Bankruptcy Court "did not assert jurisdiction generally over the probate proceedings ... or take control over [the] estate's assets," the District Court observed, id., at 621, "[t]hus, the probate exception would bar federal jurisdiction over Vickie's counterclaim only if such jurisdiction would 'interfere' with the probate proceedings," ibid. (quoting Markham, 326 U. S., at 494). Federal jurisdiction would not "interfere" with the probate proceedings, the District Court concluded, because: (1) success on Vickie's counterclaim did not necessitate any declaration that J. Howard's will was invalid, 264 B. R., at 621; and (2) under Texas law, probate courts do not have exclusive jurisdiction to entertain claims of the kind asserted in Vickie's counterclaim, id., at 622-625. The District Court also held that Vickie's claim did not qualify as a "core proceedin[g] arising under title 11, or arising in a case under title 11." 28 U. S. C. §157(b)(1); see 264 B. R., at 625-632. A bankruptcy court may exercise plenary power only over "core proceedings." See §157(b)-(c).2 In non-core matters, a bankruptcy court may not enter final judgment; it has authority to issue only proposed findings of fact and conclusions of law, which are reviewed de novo by the district court. See §157(c)(1). Accordingly, the District Court treated the Bankruptcy Court's judgment as "proposed[,] rather than final," and undertook a "comprehensive, complete, and independent review of" the Bankruptcy Court's determinations. 264 B. R., at 633. Adopting and supplementing the Bankruptcy Court's findings, the District Court determined that Pierce had tortiously interfered with Vickie's expectancy. Specifically, the District Court found that J. Howard directed his lawyers to prepare an inter vivos trust for Vickie consisting of half the appreciation of his assets from the date of their marriage. See 275 B. R., at 25-30, 51-53. It further found that Pierce conspired to suppress or destroy the trust instrument and to strip J. Howard of his assets by backdating, altering, and otherwise falsifying documents, arranging for surveillance of J. Howard and Vickie, and presenting documents to J. Howard under false pretenses. See id., at 36-50, 57-58; see also 253 B. R., at 554-556, 559-560. Based on these findings, the District Court awarded Vickie some $44.3 million in compensatory damages. 275 B. R., at 53-57. In addition, finding "overwhelming" evidence of Pierce's "willfulness, maliciousness, and fraud," the District Court awarded an equal amount in punitive damages. Id., at 57-58. The Court of Appeals for the Ninth Circuit reversed. The appeals court recognized that Vickie's claim "does not involve the administration of an estate, the probate of a will, or any other purely probate matter." 392 F. 3d, at 1133. Nevertheless, the court held that the probate exception bars federal jurisdiction in this case. In the Ninth Circuit's view, a claim falls within the probate exception if it raises "questions which would ordinarily be decided by a probate court in determining the validity of the decedent's estate planning instrument," whether those questions involve "fraud, undue influence[, or] tortious interference with the testator's intent." Ibid. The Ninth Circuit was also of the view that state-court delineation of a probate court's exclusive adjudicatory authority could control federal subject-matter jurisdiction. In this regard, the Court of Appeals stated: "Where a state has relegated jurisdiction over probate matters to a special court and [the] state's trial courts of general jurisdiction do not have jurisdiction to hear probate matters, then federal courts also lack jurisdiction over probate matters." Id., at 1136. Noting that "[t]he [P]robate [C]ourt ruled it had exclusive jurisdiction over all of Vickie['s] claims," the Ninth Circuit held that "ruling ... binding on the United States [D]istrict [C]ourt." Ibid. (citing Durfee v. Duke, 375 U. S. 106, 115-116 (1963)). We granted certiorari, 545 U. S. ___ (2005), to resolve the apparent confusion among federal courts concerning the scope of the probate exception. Satisfied that the instant case does not fall within the ambit of the narrow exception recognized by our decisions, we reverse the Ninth Circuit's judgment.II In Ankenbrandt v. Richards, 504 U. S. 689 (1992), we addressed both the derivation and the limits of the "domestic relations exception" to the exercise of federal jurisdiction. Carol Ankenbrandt, a citizen of Missouri, brought suit in Federal District Court on behalf of her daughters, naming as defendants their father (Ankenbrandt's former husband) and his female companion, both citizens of Louisiana. Id., at 691. Ankenbrandt's complaint sought damages for the defendants' alleged sexual and physical abuse of the children. Ibid. Federal jurisdiction was predicated on diversity of citizenship. Ibid. (citing 28 U. S. C. §1332). The District Court dismissed the case for lack of subject-matter jurisdiction, holding that Ankenbrandt's suit fell within "the 'domestic relations' exception to diversity jurisdiction." 504 U. S., at 692. The Court of Appeals agreed and affirmed. Ibid. We reversed the Court of Appeals' judgment. Id., at 706-707. Holding that the District Court improperly refrained from exercising jurisdiction over Ankenbrandt's tort claim, id., at 704, we traced explanation of the current domestic relations exception to Barber v. Barber, 21 How. 582 (1859). See Ankenbrandt, 504 U. S., at 693-695. In Barber, the Court upheld federal-court authority, in a diversity case, to enforce an alimony award decreed by a state court. In dicta, however, the Barber Court announced — without citation or discussion — that federal courts lack jurisdiction over suits for divorce or the allowance of alimony. 21 How., at 584-589; see Ankenbrandt, 504 U. S., at 693-695. Finding no Article III impediment to federal-court jurisdiction in domestic relations cases, id., at 695-697, the Court in Ankenbrandt anchored the exception in Congress' original provision for diversity jurisdiction, id., at 698-701. Beginning at the beginning, the Court recalled: "The Judiciary Act of 1789 provided that 'the circuit courts shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds, exclusive of costs, the sum or value of five hundred dollars, and ... an alien is a party, or the suit is between a citizen of the State where the suit is brought, and a citizen of another State.' " Id., at 698 (quoting Act of Sept. 24, 1789, §11, 1 Stat. 78; emphasis added in Ankenbrandt).The defining phrase, "all suits of a civil nature at common law or in equity," the Court stressed, remained in successive statutory provisions for diversity jurisdiction until 1948, when Congress adopted the more economical phrase, "all civil actions." 504 U. S., at 698; 1948 Judicial Code and Judiciary Act, 62 Stat. 930, 28 U. S. C. §1332. The Barber majority, we acknowledged in Ankenbrandt, did not expressly tie its announcement of a domestic relations exception to the text of the diversity statute. 504 U. S., at 698. But the dissenters in that case made the connection. They stated that English courts of chancery lacked authority to issue divorce and alimony decrees. Because "the jurisdiction of the courts of the United States in chancery is bounded by that of the chancery in England," Barber, 21 How., at 605 (opinion of Daniel, J.), the dissenters reasoned, our federal courts similarly lack authority to decree divorces or award alimony, ibid. Such relief, in other words, would not fall within the diversity statute's original grant of jurisdiction over "all suits of a civil nature at common law or in equity." We concluded in Ankenbrandt that "it may be inferred fairly that the jurisdictional limitation recognized by the [Barber] Court rested on th[e] statutory basis" indicated by the dissenters in that case. 504 U. S., at 699. We were "content" in Ankenbrandt "to rest our conclusion that a domestic relations exception exists as a matter of statutory construction not on the accuracy of the historical justifications on which [the exception] was seemingly based." Id., at 700. "[R]ather," we relied on "Congress' apparent acceptance of this construction of the diversity jurisdiction provisions in the years prior to 1948, when the statute limited jurisdiction to 'suits of a civil nature at common law or in equity.' " Ibid. (quoting 1 Stat. 78). We further determined that Congress did not intend to terminate the exception in 1948 when it "replace[d] the law/equity distinction with the phrase 'all civil actions.' " 504 U. S., at 700. Absent contrary indications, we presumed that Congress meant to leave undisturbed "the Court's nearly century-long interpretation" of the diversity statute "to contain an exception for certain domestic relations matters." Ibid. We nevertheless emphasized in Ankenbrandt that the exception covers only "a narrow range of domestic relations issues." Id., at 701. The Barber Court itself, we reminded, "sanctioned the exercise of federal jurisdiction over the enforcement of an alimony decree that had been properly obtained in a state court of competent jurisdiction." 504 U. S., at 702. Noting that some lower federal courts had applied the domestic relations exception "well beyond the circumscribed situations posed by Barber and its progeny," id., at 701, we clarified that only "divorce, alimony, and child custody decrees" remain outside federal jurisdictional bounds, id., at 703, 704. While recognizing the "special proficiency developed by state tribunals ... in handling issues that arise in the granting of [divorce, alimony, and child custody] decrees," id., at 704, we viewed federal courts as equally equipped to deal with complaints alleging the commission of torts, ibid.III Federal jurisdiction in this case is premised on 28 U. S. C. §1334, the statute vesting in federal district courts jurisdiction in bankruptcy cases and related proceedings. Decisions of this Court have recognized a "probate exception," kin to the domestic relations exception, to otherwise proper federal jurisdiction. See Markham v. Allen, 246 U. S. 199 (1918); Waterman v. Canal-Louisiana Bank & Trust Co., 215 U. S. 33 (1909). Like the domestic relations exception, the probate exception has been linked to language contained in the Judiciary Act of 1789. Markham, the Court's most recent and pathmarking pronouncement on the probate exception, stated that "the equity jurisdiction conferred by the Judiciary Act of 1789 ... , which is that of the English Court of Chancery in 1789, did not extend to probate matters." 326 U. S., at 494. See generally Nicolas, Fighting the Probate Mafia: A Dissection of the Probate Exception to Federal Jurisdiction, 74 S. Cal. L. Rev. 1479 (2001). As in Ankenbrandt, so in this case, "[w]e have no occasion ... to join the historical debate" over the scope of English chancery jurisdiction in 1789, 504 U. S., at 699, for Vickie Marshall's claim falls far outside the bounds of the probate exception described in Markham. We therefore need not consider in this case whether there exists any uncodified probate exception to federal bankruptcy jurisdiction under §1334.3 In Markham, the plaintiff Alien Property Custodian4 commenced suit in Federal District Court against an executor and resident heirs to determine the Custodian's asserted rights regarding a decedent's estate. 326 U. S., at 491-492. Jurisdiction was predicated on §24(1) of the Judicial Code, now 28 U. S. C. §1345, which provides for federal jurisdiction over suits brought by an officer of the United States. At the time the federal suit commenced, the estate was undergoing probate administration in a state court. The Custodian had issued an order vesting in himself all right, title, and interest of German legatees. He sought and gained in the District Court a judgment determining that the resident heirs had no interest in the estate, and that the Custodian, substituting himself for the German legatees, was entitled to the entire net estate, including specified real estate passing under the will. Reversing the Ninth Circuit, which had ordered the case dismissed for want of federal subject-matter jurisdiction, this Court held that federal jurisdiction was properly invoked. The Court first stated:"It is true that a federal court has no jurisdiction to probate a will or administer an estate ... . But it has been established by a long series of decisions of this Court that federal courts of equity have jurisdiction to entertain suits 'in favor of creditors, legatees and heirs' and other claimants against a decedent's estate 'to establish their claims' so long as the federal court does not interfere with the probate proceedings or assume general jurisdiction of the probate or control of the property in the custody of the state court." 326 U. S., at 494 (quoting Waterman, 215 U. S., at 43). Next, the Court described a probate exception of distinctly limited scope:"[W]hile a federal court may not exercise its jurisdiction to disturb or affect the possession of property in the custody of a state court, ... it may exercise its jurisdiction to adjudicate rights in such property where the final judgment does not undertake to interfere with the state court's possession save to the extent that the state court is bound by the judgment to recognize the right adjudicated by the federal court." 326 U. S., at 494. The first of the above-quoted passages from Markham is not a model of clear statement. The Court observed that federal courts have jurisdiction to entertain suits to determine the rights of creditors, legatees, heirs, and other claimants against a decedent's estate, "so long as the federal court does not interfere with the probate proceedings." Ibid. (emphasis added). Lower federal courts have puzzled over the meaning of the words "interfere with the probate proceedings," and some have read those words to block federal jurisdiction over a range of matters well beyond probate of a will or administration of a decedent's estate. See, e.g., Mangieri v. Mangieri, 226 F. 3d 1, 2-3 (CA1 2000) (breach of fiduciary duty by executor); Golden ex rel. Golden v. Golden, 382 F. 3d 348, 360-362 (CA3 2004) (same); Lepard v. NBD Bank, 384 F. 3d 232-237 (CA6 2004) (breach of fiduciary duty by trustee); Storm v. Storm, 328 F. 3d 941, 943-945 (CA7 2003) (probate exception bars claim that plaintiff's father tortiously interfered with plaintiff's inheritance by persuading trust grantor to amend irrevocable inter vivos trust); Rienhardt v. Kelly, 164 F. 3d 1296, 1300-1301 (CA10 1999) (probate exception bars claim that defendants exerted undue influence on testator and thereby tortiously interfered with plaintiff's expected inheritance). We read Markham's enigmatic words, in sync with the second above-quoted passage, to proscribe "disturb[ing] or affect[ing] the possession of property in the custody of a state court." 294 U. S. 189, 195-196 (1935); Waterman, 215 U. S., at 45-46. Thus, the probate exception reserves to state probate courts the probate or annulment of a will and the administration of a decedent's estate; it also precludes federal courts from endeavoring to dispose of property that is in the custody of a state probate court. But it does not bar federal courts from adjudicating matters outside those confines and otherwise within federal jurisdiction.A As the Court of Appeals correctly observed, Vickie's claim does not "involve the administration of an estate, the probate of a will, or any other purely probate matter." 392 F. 3d, at 1133. Provoked by Pierce's claim in the bankruptcy proceedings, Vickie's claim, like Carol Ankenbrandt's, alleges a widely recognized tort. See King v. Acker, 725 S. W. 2d 750, 754 (Tex. App. 1987); Restatement (Second) of Torts §774B (1977) ("One who by fraud, duress or other tortious means intentionally prevents another from receiving from a third person an inheritance or gift that [s]he would otherwise have received is subject to liability to the other for loss of the inheritance or gift."). Vickie seeks an in personam judgment against Pierce, not the probate or annulment of a will. Cf. Sutton, 246 U. S., at 208 (suit to annul a will found "supplemental to the proceedings for probate of the will" and therefore not cognizable in federal court). Nor does she seek to reach a res in the custody of a state court. See Markham, 326 U. S., at 494. Furthermore, no "sound policy considerations" militate in favor of extending the probate exception to cover the case at hand. Cf. Ankenbrandt, 504 U. S., at 703. Trial courts, both federal and state, often address conduct of the kind Vickie alleges. State probate courts possess no "special proficiency ... in handling [such] issues." Cf. id., at 704.B The Court of Appeals advanced an alternate basis for its conclusion that the federal courts lack jurisdiction over Vickie's claim. Noting that the Texas Probate Court "ruled it had exclusive jurisdiction over all of Vickie Lynn Marshall's claims against E. Pierce Marshall," the Ninth Circuit held that "ruling ... binding on the United States [D]istrict [C]ourt." 392 F. 3d, at 1136. We reject that determination. Texas courts have recognized a state-law tort action for interference with an expected inheritance or gift, modeled on the Restatement formulation. See King, 725 S. W. 2d, at 754; Brandes v. Rice Trust, Inc., 966 S. W. 2d 144, 146-147 (Tex. App. 1998).5 It is clear, under Erie R. Co. v. Tompkins, 304 U. S. 64 (1938), that Texas law governs the substantive elements of Vickie's tortious interference claim. It is also clear, however, that Texas may not reserve to its probate courts the exclusive right to adjudicate a transitory tort. We have long recognized that "a State cannot create a transitory cause of action and at the same time destroy the right to sue on that transitory cause of action in any court having jurisdiction." Tennessee Coal, Iron & R. Co. v. George, 233 U. S. 354, 360 (1914). Jurisdiction is determined "by the law of the court's creation and cannot be defeated by the extraterritorial operation of a [state] statute ... , even though it created the right of action." Ibid. Directly on point, we have held that the jurisdiction of the federal courts, "having existed from the beginning of the Federal government, [can] not be impaired by subsequent state legislation creating courts of probate." McClellan v. Carland, 217 U. S. 268, 281 (1910) (upholding federal jurisdiction over action by heirs of decedent, who died intestate, to determine their rights in the estate (citing Waterman, 215 U. S. 33)). Our decision in Durfee v. Duke, 375 U. S. 106 (1963), relied upon by the Ninth Circuit, 392 F. 3d, at 1136, is not to the contrary. Durfee stands only for the proposition that a state court's final judgment determining its own jurisdiction ordinarily qualifies for full faith and credit, so long as the jurisdictional issue was fully and fairly litigated in the court that rendered the judgment. See 375 U. S., at 111, 115. At issue here, however, is not the Texas Probate Court's jurisdiction, but the federal courts' jurisdiction to entertain Vickie's tortious interference claim. Under our federal system, Texas cannot render its probate courts exclusively competent to entertain a claim of that genre. We therefore hold that the District Court properlyasserted jurisdiction over Vickie's counterclaim against Pierce.IV After determining that Vickie's claim was not a "core proceeding," the District Court reviewed the case de novo and entered its final judgment on March 7, 2002. 275 B. R., at 5-8. The Texas Probate Court's judgment became final on February 11, 2002, nearly one month earlier. App. to Pet. for Cert. 41. The Court of Appeals considered only the issue of federal subject-matter jurisdiction. It did not address the question whether Vickie's claim was "core"; nor did it address Pierce's arguments concerning claim and issue preclusion. 392 F. 3d, at 1137. These issues remain open for consideration on remand.* * * For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.VICKIE LYNN MARSHALL, PETITIONER v. E. PIERCEMARSHALLon writ of certiorari to the united states court ofappeals for the ninth circuit[May 1, 2006] Justice Stevens, concurring in part and concurring in the judgment. The administration of decedents' estates typically is governed by rules of state law and conducted by state probate courts. Occasionally, however, disputes between interested parties arise, either in the probate proceeding itself or elsewhere, that qualify as cases or controversies that federal courts have jurisdiction to decide. See, e.g., Reed v. Reed, 404 U. S. 71 (1971). In her opinion for the Court, Justice Ginsburg has cogently explained why this is such a case. I write separately to explain why I do not believe there is any "probate exception" that ousts a federal court of jurisdiction it otherwise possesses. The familiar aphorism that hard cases make bad law should extend to easy cases as well. Markham v. Allen, 326 U. S. 490 (1946), like this case, was an easy case. In Markham, as here, it was unnecessary to question the historical or logical underpinnings of the probate exception to federal jurisdiction because, whatever the scope of the supposed exception, it did not extend to the case at hand. But Markham's obiter dicta — dicta that the Court now describes as redundant if not incoherent, ante, at 14 — generated both confusion and abdication of the obligation Chief Justice Marshall so famously articulated, see Cohens v. Virginia, 6 Wheat. 264, 404 (1821); see also ante, at 1. While the Court today rightly abandons much of that dicta, I would go further. The Court is content to adopt the approach it followed in Ankenbrandt v. Richards, 504 U. S. 689 (1992), and to accept as foundation for the probate exception Markham's bald assertion that the English High Court of Chancery's jurisdiction did not "extend to probate matters" in 1789. 326 U. S., at 495; see ante, at 11. I would not accept that premise. Not only had the theory Markham espoused been only sporadically and tentatively cited as justification for the exception,1 but the most comprehensive article on the subject has persuasively demonstrated that Markham's assertion is "an exercise in mythography."2 Markham's theory apparently is the source of the Court's reformulated exception, which "reserves to state probate courts the probate or annulment of a will and the administration of a decedent's estate." Ante, at 14. Although undoubtedly narrower in scope than Markham's ill-considered description of the probate carve-out, this description also sweeps too broadly. For the Court has correctly upheld the exercise of federal jurisdiction over actions involving the annulment of wills and the administration of decedents' estates. In Gaines v. Fuentes, 92 U. S. 10 (1876), for example, the Court held that a defendant in an action to annul a will should be permitted to remove the case to federal court. In so doing, it explained:"[W]henever a controversy in a suit ... arises respecting the validity or construction of a will, or the enforcement of a decree admitting it to probate, there is no more reason why the Federal courts should not take jurisdiction of the case than there is that they should not take jurisdiction of any other controversy between the parties." Id., at 22.Likewise, in Payne v. Hook, 7 Wall. 425 (1869), the Court explained that it was "well settled that a court of chancery, as an incident to its power to enforce trusts, and make those holding a fiduciary relation account, has jurisdiction to compel executors and administrators to account and distribute the assets in their hands." Id., at 431. (In that same case, a federal court later appointed a Special Master to administer the estate. This Court upheld some of the Master's determinations and rejected others. See Hook v. Payne, 14 Wall. 252, 255 (1872).) To be sure, there are cases that support limitations on federal courts' jurisdiction over the probate and annulment of wills and the administration of decedents' estates. But careful examination reveals that at least most of the limitations so recognized stem not from some sui generis exception, but rather from generally applicable jurisdictional rules. Cf. Ellis v. Davis, 109 U. S. 485, 497 (1883) ("Jurisdiction as to wills, and their probate as such, is neither included in nor excepted out of the grant of judicial power to the courts of the United States"). Some of those rules, like the rule that diversity jurisdiction will not attach absent an inter partes controversy, plainly are still relevant today. See, e.g., Waterman v. Canal-Louisiana Bank & Trust Co., 215 U. S. 33, 44-45 (1909); see also id., at 46 (reaffirming the in gremio legis principle). Others, like the rule that a bill in equity will lie only where there is no adequate remedy elsewhere, have less straightforward application in the wake of 20th-century jurisdictional developments. See, e.g., Case of Broderick's Will, 21 Wall. 503, 510-512 (1875); Ellis, 109 U. S., at 503 (denying relief where plaintiff had "a plain, adequate, and complete remedy at law"); see also Winkler, supra, n.2, at 112-113. Whatever the continuing viability of these individual rules, together they are more than adequate to the task of cabining federal courts' jurisdiction. They require no helping hand from the so-called probate exception. Rather than preserving whatever vitality that the "exception" has retained as a result of the Markham dicta, I would provide the creature with a decent burial in a grave adjacent to the resting place of the Rooker-Feldman doctrine. See Lance v. Dennis, 546 U. S. ___, ___ (2006) (Stevens, J., dissenting) (slip op., at 2-3).FOOTNOTESFootnote 1 Among debts not dischargeable in bankruptcy, see 11 U. S. C. §523(a), are those arising from "willful and malicious injury by the debtor," §523(a)(6). Footnote 2 "Core proceedings include, but are not limited to--"(A) matters concerning the administration of the estate;"(B) allowance or disallowance of claims against the estate or exemptions from property of the estate, and estimation of claims or interests for the purposes of confirming a plan under chapter 11, 12, or 13 of title 11 but not the liquidation or estimation of contingent or unliquidated personal injury tort or wrongful death claims against the estate for purposes of distribution in a case under title 11;"(C) counterclaims by the estate against persons filing claims against the estate;"(D) orders in respect to obtaining credit;"(E) orders to turn over property of the estate;"(F) proceedings to determine, avoid, or recover preferences;"(G) motions to terminate, annul, or modify the automatic stay;"(H) proceedings to determine, avoid, or recover fraudulent conveyances;"(I) determinations as to the dischargeability of particular debts;"(J) objections to discharges;"(K) determinations of the validity, extent, or priority of liens;"(L) confirmations of plans;"(M) orders approving the use or lease of property, including the use of cash collateral;"(N) orders approving the sale of property other than property resulting from claims brought by the estate against persons who have not filed claims against the estate;"(O) other proceedings affecting the liquidation of the assets of the estate or the adjustment of the debtor-creditor or the equity security holder relationship, except personal injury tort or wrongful death claims; and"(P) recognition of foreign proceedings and other matters under chapter 15 of title 11." 28 U. S. C. A. §157(b)(2) (1993 ed. and July 2005 Supp.). Footnote 3 We note that the broad grant of jurisdiction conferred by §1334(b) is subject to a mandatory abstention provision applicable to certain state-law claims. Section 1334(c)(2) provides:"Upon timely motion of a party in a proceeding based upon a State law claim or State law cause of action, related to a case under title 11 but not arising under title 11 or arising in a case under title 11, with respect to which an action could not have been commenced in a court of the United States absent jurisdiction under this section, the district court shall abstain from hearing such proceeding if an action is commenced, and can be timely adjudicated, in a State forum of appropriate jurisdiction." That provision is, in turn, qualified: "Non-core proceedings under section 157(b)(2)(B) of title 28, United States Code, shall not be subject to the mandatory abstention provisions of section 1334(c)(2)." §157(b)(4). Because the Bankruptcy Court rejected Pierce's motion for mandatory abstention as untimely, 257 B. R. 35, 39 (CD Cal. 2000), we need not consider whether these provisions might have required abstention upon a timely motion. Footnote 4 Section 6 of the Trading with the Enemy Act, 40 Stat. 415, 50 U. S. C. App., authorizes the President to appoint an official known as the "alien property custodian," who is responsible for "receiv[ing,] ... hold[ing], administer[ing], and account[ing] for" "all money and property in the United States due or belonging to an enemy, or ally of enemy ... ." The Act was originally enacted during World War I "to permit, under careful safeguards and restrictions, certain kinds of business to be carried on" among warring nations, and to "provid[e] for the care and administration of the property and property rights of enemies and their allies in this country pending the war." Markham v. Cabell, 326 U. S. 404, 414, n. 1 (1945) (Burton, J., concurring) (quoting S. Rep. No. 113, 65th Cong., 1st Sess., p. 1 (1917)). Footnote 5 Texas appellate courts have on occasion held claims of tortious interference with an expected inheritance "barred" by a prior probate court judgment, apparently applying ordinary principles of preclusion. See, e.g., Thompson v. Deloitte & Touche, 902 S. W. 2d 13, 16 (Tex. App. 1995) (final probate court judgment bars claim of tortious interference with inheritance expectancy because probate court "necessarily found that [the decedent] signed the will with testamentary capacity, and that it reflected his intent, was not the result of coercion or undue influence, and was valid"); Neill v. Yett, 746 S. W. 2d 32, 35-36 (Tex. App. 1988) (complaint alleging fraud and tortious interference with inheritance expectancy, filed more than two years after will was admitted to probate, was barred by both the statute of limitations and the final probate judgment, and failed to state the elements of the claim). Neither Thompson nor Neill questions the Texas trial courts' subject-matter jurisdiction over the claims in question. Pierce maintains that Thompson, Neill, and other Texas decisions support his contention that preclusion principles bar Vickie's claim. See Brief for Respondent 36-38. Vickie argues to the contrary. See Brief for Petitioner 42 n. 30 (urging that preclusion does not apply because (1) Vickie's claim was not litigated to final judgment in the Texas probate proceedings; (2) having presented her claim in the Bankruptcy Court years before she joined the Texas will contest, Vickie was not obliged to present her claim in the Texas proceedings; (3) the Bankruptcy Court's judgment preceded the Probate Court judgment; and (4) the Texas Probate Court did not have before it important evidence). See also Tex. Rule Civ. Proc. 97; Ingersoll-Rand Co. v. Valero Energy Corp., 997 S. W. 2d 203, 206-207 (Tex. 1999). The matter of preclusion remains open for consideration on remand. See infra, at 18.FOOTNOTESFootnote 1 Notably, Justice Joseph Bradley, a strong proponent of the theory that federal courts sitting in equity cannot exercise jurisdiction over probate matters because in England in 1789 such jurisdiction belonged to the ecclesiastical courts, see Case of Broderick's Will, 21 Wall. 503 (1875), Gaines v. Fuentes, 92 U. S. 10, 24-25 (1876) (dissenting opinion), urged that "even in matters savoring of [e]cclesiastical process, after an issue has been formed between definite parties," the controversy should be heard by a federal court. See Rosenbaum v. Bauer, 120 U. S. 450, 460-461 (1887) (dissenting opinion) (citing Gaines, 113 U. S. 73 (1885)).Footnote 2 Winkler, The Probate Jurisdiction of the Federal Courts, 14 Probate L. J. 77, 126 (1997); see ante, at 1-2 (acknowledging Winkler's analysis). Winkler also observes, citing Charles Dickens' Bleak House (1853), that Markham's "suggestion that the High Court of Chancery had lacked jurisdiction to 'administer an estate' was preposterous." 14 Probate L. J., at 125, and n. 256.

Under the Postal Reorganization Act, the Federal Tort Claims Act (FTCA) applies to "tort claims arising out of [Postal Service] activities." 39 U. S. C. §409(c). The FTCA, in turn, waives sovereign immunity in certain cases involving negligence committed by federal employees in the course of their employment, 28 U. S. C. §1346(b)(1), making the United States liable "in the same manner and to the same extent as a private individual under like circumstances," §2674. However, the sovereign immunity bar remains as to, inter alia, "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." §2680(b). Consequently, the United States may be liable if postal workers commit torts under local law, but not for claims defined by the exception. Petitioner Dolan filed an FTCA suit against the Postal Service for injuries she suffered when she tripped and fell over mail left on her porch by postal employees. The District Court dismissed the suit, and the Third Circuit affirmed, both concluding that, although the FTCA generally waives sovereign immunity as to federal employees' torts, Dolan's claims were barred by §2680(b)'s exception.Held: Because the postal exception is inapplicable in this case, Dolan's claim may go forward. This Court assumes that under the applicable state law a person injured by tripping over a package or bundle negligently left by a private party would have a cause of action for damages. The question is whether §2860(b)'s exception preserves sovereign immunity in such a case. Considered in isolation, "negligent transmission" could embrace a wide range of acts. However, interpretation of a word or phrase depends upon reading the whole statutory text, considering the statute's purpose and context. Here, both context and precedent require reading the phrase so that it does not go beyond negligence causing mail to be lost or to arrive late, in damaged condition, or at the wrong address. Starting with context, "negligent transmission" follows the terms "loss" and "miscarriage," which limit the reach of transmission. Mail is "lost" if it is destroyed or misplaced and "miscarried" if it goes to the wrong address. Since both terms refer to failings in the postal obligation to deliver mail in a timely manner to the right address, it would be odd if "negligent transmission" swept far more broadly to include injuries caused by postal employees but involving neither failure to transmit mail nor damage to its contents. This interpretation is supported by Kosak v. United States, 465 U. S. 848, where this Court noted that one of the FTCA's purposes was to waive the Government's immunity from liability for injuries resulting from auto accidents involving postal trucks delivering — and thus "transmitting"--the mail. Nothing in the statutory text supports a distinction between negligent driving, which the Government claims relates only circumstantially to the mail, and Dolan's accident, which was caused by the mail itself. In both cases the postal employee acts negligently while transmitting mail. In addition, focusing on whether the mail itself caused the injury would yield anomalies, perhaps making liability turn on, e.g., whether a mail sack was empty or full. It is more likely that Congress intended to retain immunity only for injuries arising because mail either fails to arrive or arrives late, in damaged condition, or at the wrong address, since such harms are primarily identified with the Postal Service's function of transporting mail. The Government claims that, given the Postal Service's vast operations, Congress must have intended to insulate delivery-related torts from liability, but §2680(b)'s specificity indicates otherwise. Had Congress intended to preserve immunity for all delivery-related torts, it could have used sweeping language similar to that used in other FTCA exceptions, e.g., §2860(i). Furthermore, losses of the type for which immunity is retained under §2680(b) are at least to some degree avoidable or compensable through postal registration and insurance. The Government raises the specter of frivolous slip-and-fall claims inundating the Postal Service, but that is a risk shared by any business making home deliveries. Finally, the general rule that a sovereign immunity waiver "will be strictly construed ... in favor of the sovereign," Lane v. Peńa, 518 U. S. 187, 192, is "unhelpful" in the FTCA context, where "unduly generous interpretations of the exceptions run the risk of defeating" the central purpose of the statute, Kosak, supra, at 853, n. 9, which "waives the Government's immunity from suit in sweeping language," United States v. Yellow Cab Co., 340 U. S. 543, 547. Pp. 4-11.377 F. 3d 285, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Souter, Ginsburg, and Breyer, JJ., joined. Thomas, J., filed a dissenting opinion. Alito, J., took no part in the consideration or decision of the case.BARBARA DOLAN, PETITIONER v. UNITED STATES POSTAL SERVICE et al.on writ of certiorari to the united states court of appeals for the third circuit[February 22, 2006] Justice Kennedy delivered the opinion of the Court. Each day, according to the Government's submissions here, the United States Postal Service delivers some 660 million pieces of mail to as many as 142 million delivery points. This case involves one such delivery point — petitioner Barbara Dolan's porch — where mail left by postal employees allegedly caused her to trip and fall. Claiming injuries as a result, Dolan filed a claim for administrative relief from the Postal Service. When her claim was denied, she and her husband (whose claim for loss of consortium the Dolans later conceded was barred for failure to exhaust administrative remedies) filed suit in the United States District Court for the Eastern District of Pennsylvania, asserting that the Postal Service's negligent placement of mail at their home subjected the Government to liability under the Federal Tort Claims Act (FTCA), 28 U. S. C. §§1346(b)(1), 2674. The District Court dismissed Dolan's suit, and the Court of Appeals for the Third Circuit affirmed, 377 F. 3d 285 (2004). Both courts concluded that, although the FTCA generally waives sovereign immunity as to federal employees' torts, Dolan's claims were barred by an exception to that waiver, 28 U. S. C. §2680(b). We disagree and hold that Dolan's suit may proceed.I Under the Postal Reorganization Act, 39 U. S. C. §101 et seq., the Postal Service is "an independent establishment of the executive branch of the Government of the United States," §201. Holding a monopoly over carriage of letters, the Postal Service has "significant governmental powers," including the power of eminent domain, the authority to make searches and seizures in the enforcement of laws protecting the mails, the authority to promulgate postal regulations, and, subject to the Secretary of State's supervision, the power to enter international postal agreements. See Postal Service v. Flamingo Industries (USA) Ltd., 540 U. S. 736, 741 (2004) (discussing 39 U. S. C. §§101, 401, 407, 601-606). Consistent with this status, the Postal Service enjoys federal sovereign immunity absent a waiver. See ibid.; cf. FDIC v. Meyer, 510 U. S. 471, 475 (1994) ("Absent a waiver, sovereign immunity shields the Federal Government and its agencies from suit"). Although the Postal Reorganization Act generally "waives the immunity of the Postal Service from suit by giving it the power 'to sue and be sued in its official name,' " Flamingo Industries, supra, at 741 (quoting 39 U. S. C. §401(1)), the statute also provides that the FTCA "shall apply to tort claims arising out of activities of the Postal Service," §409(c). The FTCA, in turn, waives sovereign immunity in two different sections of the United States Code. The first confers federal-court jurisdiction in a defined category of cases involving negligence committed by federal employees in the course of their employment. This jurisdictional grant covers:"claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U. S. C. §1346(b)(1).As to claims falling within this jurisdictional grant, the FTCA, in a second provision, makes the United States liable "in the same manner and to the same extent as a private individual under like circumstances," though not "for interest prior to judgment or for punitive damages." §2674; see generally United States v. Olson, 546 U. S. ___ , ___ (2005) (slip op., at 1). The FTCA qualifies its waiver of sovereign immunity for certain categories of claims (13 in all). If one of the exceptions applies, the bar of sovereign immunity remains. The 13 categories of exempted claims are set forth in 28 U. S. C. §2680, and the relevant subsection for our purposes, pertaining to postal operations, is §2680(b). It states:"The provisions of this chapter and section 1346(b) of this title shall not apply to ... [a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter."As a consequence, the United States may be liable if postal employees commit torts under local law, but not for claims defined by this exception. This was the provision relied upon by the District Court and Court of Appeals to dismiss Dolan's suit. The Court of Appeals' decision created a conflict with a decision of the Court of Appeals for the Second Circuit. See Raila v. United States, 355 F. 3d 118, 121 (CA2 2004). We granted certiorari. 544 U. S. ___ (2005).II We assume that under the applicable state law a person injured by tripping over a package or bundle of papers negligently left on the porch of a residence by a private party would have a cause of action for damages. See 28 U. S. C. §§1346(b)(1), 2674. The question is whether, when mail left by the Postal Service causes the slip and fall, the §2680(b) exception for "loss, miscarriage, or negligent transmission of letters or postal matter" preserves sovereign immunity despite the FTCA's more general statements of waiver. If considered in isolation, the phrase "negligent transmission" could embrace a wide range of negligent acts committed by the Postal Service in the course of delivering mail, including creation of slip-and-fall hazards from leaving packets and parcels on the porch of a residence. After all, in ordinary meaning and usage, transmission of the mail is not complete until it arrives at the destination. See, e.g., Webster's Third New International Dictionary 2429 (1971) (defining "transmission" as "an act, process, or instance of transmitting" and "transmit" as "to cause to go or be conveyed to another person or place"). In large part this inference — transmission includes delivery — led the District Court and Court of Appeals to rule for the Government. See 377 F. 3d, at 288; App. to Pet. for Cert. 5a-6a. The definition of words in isolation, however, is not necessarily controlling in statutory construction. A word in a statute may or may not extend to the outer limits of its definitional possibilities. Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis. Here, we conclude both context and precedent require a narrower reading, so that "negligent transmission" does not go beyond negligence causing mail to be lost or to arrive late, in damaged condition, or at the wrong address. See Raila, supra, at 121 (holding the postal exception covers "damages and delay of the postal material itself and consequential damages therefrom"). The phrase does not comprehend all negligence occurring in the course of mail delivery. Starting with context, the words "negligent transmission" in §2680(b) follow two other terms, "loss" and "miscarriage." Those terms, we think, limit the reach of "transmission." "[A] word is known by the company it keeps"--a rule that "is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress." Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961); see also Dole v. Steelworkers, 494 U. S. 26, 36 (1990) ("[W]ords grouped in a list should be given related meaning" (internal quotation marks omitted)). Here, as both parties acknowledge, mail is "lost" if it is destroyed or misplaced and "miscarried" if it goes to the wrong address. Since both those terms refer to failings in the postal obligation to deliver mail in a timely manner to the right address, it would be odd if "negligent transmission" swept far more broadly to include injuries like those alleged here — injuries that happen to be caused by postal employees but involve neither failure to transmit mail nor damage to its contents. Our interpretation would be less secure were it not for a precedent we deem to have decisive weight here. We refer to Kosak v. United States, 465 U. S. 848 (1984). In Kosak, an art collector alleged in an FTCA suit that artworks he owned were damaged when the United States Customs Service seized and detained them. Id., at 849-850. The question was whether the Government retained immunity based on §2680(c), a provision that has since been amended but at the time covered:"[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law-enforcement officer." Id., at 852, n. 6 (internal quotation marks omitted).In its opinion concluding the exception did apply and thus that the United States retained sovereign immunity, the Court gave specific consideration to the postal exception. In a part of the opinion central to its holding, the Court contrasted what it called the "generality of §2680(c)" with the "specificity of §2680(b)," id., at 855. The Court observed:"One of the principal purposes of the Federal Tort Claims Act was to waive the Government's immunity from liability for injuries resulting from auto accidents in which employees of the Postal System were at fault. In order to ensure that §2680(b), which governs torts committed by mailmen, did not have the effect of barring precisely the sort of suit that Congress was most concerned to authorize, the draftsmen of the provision carefully delineated the types of misconduct for which the Government was not assuming financial responsibility — namely, 'the loss, miscarriage, or negligent transmission of letters or postal matter'--thereby excluding, by implication, negligent handling of motor vehicles." Ibid. In the present case neither party suggests Kosak's conclusion regarding negligent operation of postal motor vehicles should be ignored as dictum. In light of Kosak's discussion, we cannot interpret the phrase "negligent transmission" in §2680(b) to cover all negligence in the course of mail delivery. Although postal trucks may well be delivering — and thus transmitting — mail when they collide with other vehicles, Kosak indicates the United States, nonetheless, retains no immunity. Seeking to distinguish postal auto accidents from Dolan's fall, the Government argues that negligent driving relates only circumstantially to the mail, whereas Dolan's accident was caused by the mail itself. Nothing in the statutory text supports this distinction. Quite the contrary, if placing mail so as to create a slip-and-fall risk constitutes "negligent transmission," the same should be true of driving postal trucks in a manner that endangers others on the road. In both cases the postal employee acts negligently while transmitting mail. In addition, as the Second Circuit recognized and as the Government acknowledged at oral argument, focusing on whether the mail itself caused the injury would yield anomalies, perhaps making liability turn on whether a mail sack causing a slip-and-fall was empty or full, or whether a pedestrian sideswiped by a passing truck was hit by the side-view mirror or a dangling parcel. See Raila, 355 F. 3d, at 122-123. We think it more likely that Congress intended to retain immunity, as a general rule, only for injuries arising, directly or consequentially, because mail either fails to arrive at all or arrives late, in damaged condition, or at the wrong address. Illustrative instances of the exception's operation, then, would be personal or financial harms arising from nondelivery or late delivery of sensitive materials or information (e.g., medicines or a mortgage foreclosure notice) or from negligent handling of a mailed parcel (e.g., shattering of shipped china). Such harms, after all, are the sort primarily identified with the Postal Service's function of transporting mail throughout the United States. Resisting this conclusion, the Government emphasizes the Postal Service's vast operations — the 660 million daily mailings and 142 million delivery points mentioned at the outset. See Brief for Respondents 36. As delivery to mailboxes and doorsteps is essential to this nationwide undertaking, Congress must have intended, the Government asserts, to insulate delivery-related torts from liability. If, however, doorstep delivery is essential to the postal enterprise, then driving postal trucks is no less so. And in any event, while it is true "[t]he §2680 exceptions are designed to protect certain important governmental functions and prerogatives from disruption," Molzof v. United States, 502 U. S. 301, 311 (1992), the specificity of §2680(b), see Kosak, 465 U. S., at 855, indicates that Congress did not intend to immunize all postal activities. Other FTCA exceptions paint with a far broader brush. They cover, for example: "[a]ny claim for damages caused by the fiscal operations of the Treasury or by the regulation of the monetary system," 28 U. S. C. §2680(i); "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war," §2680(j); "[a]ny claim arising in a foreign country," §2680(k); "[a]ny claim arising from the activities of the Tennessee Valley Authority," §2680(l), or "the Panama Canal Company," §2680(m); and "[a]ny claim arising from the activities of a Federal land bank, a Federal intermediate credit bank, or a bank for cooperatives," §2680(n). Had Congress intended to preserve immunity for all torts related to postal delivery — torts including hazardous mail placement at customer homes — it could have used similarly sweeping language in §2680(b). By instead "carefully delineat[ing]" just three types of harm (loss, miscarriage, and negligent transmission), see Kosak, supra, at 855, Congress expressed the intent to immunize only a subset of postal wrongdoing, not all torts committed in the course of mail delivery. Further supporting our interpretation, losses of the type for which immunity is retained under §2680(b) are at least to some degree avoidable or compensable through postal registration and insurance. See United States Postal Service, Domestic Mail Manual pt. 609.1.1 (Nov. 10, 2005), available at http://pe.usps.gov/text/dmm300/609.htm (as visited Jan. 9, 2006, and available in Clerk of Court's case file) (allowing indemnity claims for loss or damage of "insured, collect on delivery (COD), registered with postal insurance, or Express Mail"); 39 CFR §111.1 (2005) (incorporating by reference the Domestic Mail Manual). The same was true when Congress enacted the FTCA in 1946. See 39 U. S. C. §245 (1940 ed. and Supp. V) (setting rates and conditions for mail insurance); 39 U. S. C. §381 (1946 ed.) ("For the greater security of valuable mail matter the Postmaster General may establish a uniform system of registration, and as a part of such system he may provide rules under which the senders or owners of any registered matter shall be indemnified for loss, rifling, or damage thereof in the mails ..."). As Kosak explains, one purpose of the FTCA exceptions was to avoid "extending the coverage of the Act to suits for which adequate remedies were already available," 465 U. S., at 858 — an objective consistent with retaining immunity as to claims of mail damage or delay covered by postal registration and insurance. While the Government suggests other injuries falling outside the FTCA are also subject to administrative relief, even assuming that is true the provision the Government cites permits only discretionary relief, not an automatic remedy like postal insurance. See 39 U. S. C. §2603 (indicating the Postal Service "may adjust and settle" personal-injury and property-damage claims "not cognizable" under the FTCA's administrative relief provision); see also 31 U. S. C. §224c (1940 ed.) (indicating that "[w]hen any damage is done to person or property by or through the operation of the Post Office Department ... the Postmaster General is invested with power to adjust and settle any claim for such damage when his award for such damage in any case does not exceed $500"); Legislative Reorganization Act of 1946, §424(a), 60 Stat. 846-847 (repealing §224c as to negligence claims cognizable under the FTCA). The Government raises the specter of frivolous slip-and-fall claims inundating the Postal Service. It is true that, in addition to other considerations we have identified, Kosak describes "avoiding exposure of the United States to liability for excessive or fraudulent claims" as a principal aim of the FTCA exceptions, 465 U. S., at 858. Slip-and-fall liability, however, to the extent state tort law imposes it, is a risk shared by any business that makes home deliveries. Given that "negligent transmission," viewed in context and in light of Kosak, cannot sweep as broadly as the Government claims, ordinary protections against frivolous litigation must suffice here, just as they do in the case of motor vehicle collisions. Finally, it should be noted that this case does not implicate the general rule that "a waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign," Lane v. Peńa, 518 U. S. 187, 192 (1996). As Kosak explains, this principle is "unhelpful" in the FTCA context, where "unduly generous interpretations of the exceptions run the risk of defeating the central purpose of the statute," 340 U. S. 543, 547 (1951); see also United States v. Nordic Village, Inc., 503 U. S. 30, 34 (1992) (observing "[w]e have on occasion narrowly construed exceptions to waivers of sovereign immunity where that was consistent with Congress' clear intent, as in the context of the 'sweeping language' of the [FTCA]" (quoting Yellow Cab Co., supra, at 547)). Hence, "the proper objective of a court attempting to construe one of the subsections of 28 U. S. C. §2680 is to identify 'those circumstances which are within the words and reason of the exception'--no less and no more." Kosak, supra, at 853, n. 9 (quoting Dalehite v. United States, 346 U. S. 15, 31 (1953)). Having made that inquiry here, we conclude Dolan's claims fall outside §2680(b).* * * The postal exception is inapplicable, and Dolan's claim falls within the FTCA's general waiver of federal sovereign immunity. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered. Justice Alito took no part in the consideration or decision of this case.BARBARA DOLAN, PETITIONER v. UNITED STATES POSTAL SERVICE et al.on writ of certiorari to the united states court of appeals for the third circuit[February 22, 2006] Justice Thomas, dissenting. The Federal Tort Claims Act (FTCA) waives the Government's sovereign immunity for civil suits seeking money damages"for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred," C. §1346(b)(1),save several exceptions found in §2680. As relevant here, Congress reserved to the Government its sovereign immunity respecting "[a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." §2680(b) (postal exception). Petitioner Barbara Dolan claims to have suffered personal injuries when she tripped over letters, packages, and periodicals that an employee of the United States Postal Service (Postal Service) negligently left on her porch. Today, the Court concludes that Dolan's lawsuit may proceed because her claim does not fall within the exception. I disagree. Dolan's claim arises out of the Postal Service's "negligent transmission" of mail and is thus covered by the terms of the postal exception. Even if the exception is ambiguous, this Court's cases require that ambiguities as to the scope of the Government's waiver of immunity be resolved in its favor. Accordingly, I respectfully dissent.I The text of the postal exception, and every term therein, should be ascribed its ordinary meaning. See FDIC v. Meyer, 510 U. S. 471, 477 (1994) (noting that we interpret a statutory term in accordance with its ordinary meaning when that term is not defined in the statute). The term in controversy here is "negligent transmission." The crux of my disagreement with the majority is its failure to assign the term "transmission" its plain meaning. That term is defined as the "[a]ct, operation, or process, of transmitting." Webster's New International Dictionary 2692 (2d ed. 1934, as republished 1945). "Transmit" is defined as, inter alia, "[t]o send or transfer from one person or place to another; to forward by rail, post, wire, etc., ... [t]o cause ... to pass or be conveyed." Id., at 2692-2693. There is no cause to conclude that Congress was unaware of the ordinary definition of the terms "transmission" and "transmit" when it enacted the FTCA and the postal exception in 1946. Nor is there textual indication that Congress intended to deviate from the ordinary meaning of these terms.1 Accordingly, I would interpret the term "transmission" consistent, with its ordinary meaning, see ante, at 4, and conclude that the postal exception exempts the Government from liability for any claim arising out of the negligent delivery of the mail to a Postal Service patron, including Dolan's slip-and-fall claim. Rejecting the "ordinary meaning and usage" of "negligent transmission," the majority concludes that the term covers only injury arising "directly or consequentially" from "negligence causing mail to be lost or to arrive late, in damaged condition, or at the wrong address." Ante, at 5, 7. Thus, in the majority's view, "negligent transmission" covers direct injury to the mail as well as personal injury arising from injury to the mail, but does not cover personal injury that does not arise from damage to the mail. For example, in the majority's view, if a mail carrier negligently drops a mailbox containing glassware on a patron's doorstep, causing the contents to shatter, and the patron later injures himself while attempting to handle the shards of glass, the postal exception would bar a claim for damages for the destroyed item as well as a related claim for personal injury. That view is correct, as far as it goes. However, under the majority's view, if the mail carrier negligently places a heap of mail on a patron's front porch and the patron trips and falls over the mail as he walks out of his front door, his personal injury claim may go forward. There is no basis in the text for the line drawn by the majority. Indeed, the majority's view is at odds with the broad language of the postal exception, which expressly applies to "[a]ny claim arising out of ... negligent transmission of letters or postal matter." §2680(b) (emphasis added). The majority rationalizes its view by concluding that the terms "loss" and "miscarriage" necessarily limit the term "transmission." Ante, at 5. Applying the rule of noscitur a sociis — that a word is known by the company it keeps — the majority reasons that because both "loss" and "miscarriage" refer to "failings in the postal obligation to deliver mail in a timely manner to the right address, it would be odd if 'negligent transmission' swept more broadly." Ibid. But there is nothing "odd" about interpreting the term "negligent transmission" to encompass more ground than the decidedly narrower terms "loss" and "miscarriage." The rule of noscitur a sociis is intended to prevent ascribing to one word a meaning so expansive that it conflicts with other terms of the provision in a manner that gives " 'unintended breadth to an Act of Congress.' " Gustafson v. Alloyd Co., 513 U. S. 561, 575 (1995) (quoting Jarecki v. G. D. Searle & Co., 367 U. S. 303, 307 (1961)). That rule, however, "does not require [the Court] to construe every term in a series narrowly because of the meaning given to just one of the terms," where, as here, nothing in the text demands a more limited construction. Gustafson, supra, at 586 (Thomas, J., dissenting) (emphasis deleted). Indeed, to read Congress' use of narrow terms in a list as limiting the meaning of broad terms in the same list "would defy common sense; doing so would prevent Congress from giving effect to expansive words in a list whenever they are combined with one word with a more restricted meaning." Id., at 587. Nor does this Court's opinion in Kosak v. United States, 465 U. S. 848 (1984), support the majority's narrow construction of the postal exception. In Kosak, this Court suggested that the postal exception does not apply to suits arising from the negligent handling of motor vehicles by Postal Service employees. Specifically, the Court stated that:"One of the principal purposes of the [FTCA] was to waive the Government's immunity from liability for injuries resulting from auto accidents ... . In order to ensure that §2680(b) ... did not have the effect of barring precisely the sort of suit that Congress was most concerned to authorize, the draftsmen of the provision carefully delineated the types of misconduct for which the Government was not assuming financial responsibility — namely, 'the loss, miscarriage, or negligent transmission of letters or postal matter'... Id., at 855 (emphasis added).That observation has no import beyond the recognition that the postal exception — whatever its scope may be — was carefully crafted so as not to undermine an undisputed principal purpose of the FTCA — to waive the Government's immunity for injuries arising from auto accidents. It says nothing further about the acts Congress intended to capture when enacting the postal exception, and, thus, is unremarkable for purposes of construing the exception. 2 Even if Kosak does inform the outcome in this case, it does not support the majority's interpretation of "negligent transmission." As discussed above, the majority does not purport to limit the type of negligent act that may fall under the postal exception; rather it limits the scope of the exception based on the type of consequence that the negligent act causes (damage to the mail, late delivery, etc.) But Kosak's exclusion of the act of negligent driving — regardless of whether the consequence of that act is damage to the mail or injury to a person — from the scope of the postal exception implies, if anything, that the Kosak Court envisioned discrete acts as being covered, independently of the nature of their consequences. See 465 U. S., at 855 (excluding "negligent handling of motor vehicles" from the "types of misconduct" for which liability is barred by the postal exception). As such, Kosak does not support an interpretation of "negligent transmission" based upon the type of injury that is caused by the Postal Service's negligent handling of the mail.II Assuming that the postal exception is ambiguous, as the majority suggests, see ante, at 4-5, settled principles governing the interpretation of waivers of sovereign immunity require us to rule in favor of the Government. A court may only exercise jurisdiction over the Government pursuant to "a clear statement from the United States waiving sovereign immunity ... together with a claim falling within the terms of the waiver." United States v. White Mountain Apache Tribe, 537 U. S. 465, 472 (2003). "[A] waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign." Lane v. Peńa, 518 U. S. 187, 192 (1996). These settled legal principles apply not only to the interpretation of the scope of the Government's waiver of immunity, but also to the interpretation of the scope of any exceptions to that waiver. See ibid. (explaining that, consistent with rules of construction respecting waivers of sovereign immunity, ambiguities created by conditions on and qualifications of the waiver must be strictly construed in favor of sovereign immunity). Thus, the majority is incorrect to conclude that "this case does not implicate the general rule that 'a waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign.' " Ante, at 10. As this case clearly illustrates, the Government's amenability to suit can only be ascertained after construing both the waiver of immunity and its exceptions. The well-established rationale for construing a waiver in favor of the sovereign's immunity, thus, applies with equal force to the construction of an exception to that waiver. Accordingly, even if I were to conclude that the majority's interpretation of "negligent transmission" were as plausible as my own, I would still resolve this case in favor of the Government's sovereign immunity as mandated by our canons of construction.3* * * For these reasons, I would hold that a tort claim for personal injury arising out of negligent delivery of mail to a postal patron is barred by 28 U. S. C. §2680(b), the postal exception. Accordingly, I would affirm the judgment of the Court of Appeals.FOOTNOTESFootnote 1 In fact, this reading is supported by Congress' routine definitional use of the terms "transmission" and "transmit" in both criminal and civil postal statutes to refer to the handling, processing, and delivery of mail to a final destination. See, e.g., Act of Mar. 3, 1845, ch. 43, §6, 5 Stat. 734 (respecting deputy postmasters authorized "to transmit to any person or place" official letters or packages free of charge); 18 U. S. C. §§1696(b) and (c) (referring to unlawful "transmission" of letters); §§1716(b), (c), (d), and (e) (regulating and proscribing "transmission in the mails" of dangerous items (e.g., medicines) except when the "transmission" is "to," "from," or "between" specified individuals or entities).Footnote 2 In an attempt to reconcile Kosak with this case, the majority argues that "one purpose of the FTCA exceptions was to avoid 'extending coverage of the Act to suits for which adequate remedies were already available,' ... an objective consistent with retaining immunity as to some claims of mail damage or delay covered by postal registration and insurance." Ante, at 9 (quoting Kosak, 465 U. S., at 858). The majority, however, ignores the fact that, in most cases, such insurance covers only the sender, not the recipient, in which case recipients have no means of obtaining compensation for loss or damage to money, gifts, heirlooms, valuable papers, delayed medicine, or time-sensitive documents. See United States Postal Service, Mailing Standards of the United States Postal Service, Domestic Mail Manual, §§609.4.3(f) and (ae), pp. 1129, 1130 (rev. Jan. 6, 2005). The majority's justification also fails to take into account the fact that postal patrons cannot insure against the loss of items of sentimental value. See id., §609.4.3, generally. With a more accurate depiction of registration and insurance coverage in hand, the Government's claim that, like injuries arising from negligent transmission of mail, other injuries outside the reach of the FTCA are also amenable to administrative relief is not so easily dismissed. Ante, at 9. SpecificallyC. §2603, as the Government argues, provides for the settlement of claims, within the discretion of the United States, for injuries caused by the Postal Service that are not otherwise cognizable, which would include claims like Dolan's. The discretionary nature of such settlements does not alter the fact that §2603 undermines the Court's position that the purported unavailability of administrative recovery for claims such as Dolan's supports its proposed interpretation.Footnote 3 There is no canon of construction that counsels in favor of construing the ambiguity against the Government. Although we have "on occasion narrowly construed exceptions to waivers of sovereign immunity," we have done so in cases where Congress plainly waived the Government's immunity for the particular claim at issue, and the only question before the Court was the permissibility of the form of the suit. United States v. Nordic Village, Inc. (citing United States v. Yellow Cab Co., and United States v. Aetna Casualty & Surety Co.). In cases where, as here, the question whether a particular claim is subject to an exception is disputed, we have construed FTCA exceptions broadly to preclude claims for actions Congress intended to except from the FTCA's general waiver of immunity. See Dalehite v. United States; United States v. Orleans; Kosak v. United States.

Since 1999, the monthly town board meetings in Greece, New York, have opened with a roll call, a recitation of the Pledge of Allegiance, and a prayer given by clergy selected from the congregations listed in a local directory. While the prayer program is open to all creeds, nearly all of the local congregations are Christian; thus, nearly all of the participating prayer givers have been too. Respondents, citizens who attend meetings to speak on local issues, filed suit, alleging that the town violated the First Amendment's Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers. They sought to limit the town to "inclusive and ecumenical" prayers that referred only to a "generic God." The District Court upheld the prayer practice on summary judgment, finding no impermissible preference for Christianity; concluding that the Christian identity of most of the prayer givers reflected the predominantly Christian character of the town's congregations, not an official policy or practice of discriminating against minority faiths; finding that the First Amendment did not require Greece to invite clergy from congregations beyond its borders to achieve religious diversity; and rejecting the theory that legislative prayer must be nonsectarian. The Second Circuit reversed, holding that some aspects of the prayer program, viewed in their totality by a reasonable observer, conveyed the message that Greece was endorsing Christianity. Held: The judgment is reversed.681 F. 3d 20, reversed. Justice Kennedy delivered the opinion of the Court, except as to Part II-B, concluding that the town's prayer practice does not violate the Establishment Clause. Pp. 6-18. (a) Legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause. Marsh v. Chambers, 463 U. S. 783, 792. In Marsh, the Court concluded that it was not necessary to define the Establishment Clause's precise boundary in order to uphold Nebraska's practice of employing a legislative chaplain because history supported the conclusion that the specific practice was permitted. The First Congress voted to appoint and pay official chaplains shortly after approving language for the First Amendment, and both Houses have maintained the office virtually uninterrupted since then. See id., at 787-789, and n. 10. A majority of the States have also had a consistent practice of legislative prayer. Id., at 788-790, and n. 11. There is historical precedent for the practice of opening local legislative meetings with prayer as well. Marsh teaches that the Establishment Clause must be interpreted "by reference to historical practices and understandings." County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 670 (opinion of Kennedy, J.). Thus, any test must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change. The Court's inquiry, then, must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures. Pp. 6-9. (b) Respondents' insistence on nonsectarian prayer is not consistent with this tradition. The prayers in Marsh were consistent with the First Amendment not because they espoused only a generic theism but because the Nation's history and tradition have shown that prayer in this limited context could "coexis[t] with the principles of disestablishment and religious freedom." 463 U. S., at 786. Dictum in County of Allegheny suggesting that Marsh permitted only prayer with no overtly Christian references is irreconcilable with the facts, holding, and reasoning of Marsh, which instructed that the "content of the prayer is not of concern to judges," provided "there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief." 463 U. S., at 794-795. To hold that invocations must be nonsectarian would force the legislatures sponsoring prayers and the courts deciding these cases to act as supervisors and censors of religious speech, thus involving government in religious matters to a far greater degree than is the case under the town's current practice of neither editing nor approving prayers in advance nor criticizing their content after the fact. Respondents' contrary arguments are unpersuasive. It is doubtful that consensus could be reached as to what qualifies as a generic or nonsectarian prayer. It would also be unwise to conclude that only those religious words acceptable to the majority are permis-sible, for the First Amendment is not a majority rule and government may not seek to define permissible categories of religious speech. In rejecting the suggestion that legislative prayer must be nonsectarian, the Court does not imply that no constraints remain on its content. The relevant constraint derives from the prayer's place at the opening of legislative sessions, where it is meant to lend gravity to the occasion and reflect values long part of the Nation's heritage. From the Nation's earliest days, invocations have been addressed to assemblies comprising many different creeds, striving for the idea that people of many faiths may be united in a community of tolerance and devotion, even if they disagree as to religious doctrine. The prayers delivered in Greece do not fall outside this tradition. They may have invoked, e.g., the name of Jesus, but they also invoked universal themes, e.g., by calling for a "spirit of cooperation." Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a particular prayer will not likely establish a constitutional violation. See 463 U. S., at 794-795. Finally, so long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing. Pp. 9-18. Justice Kennedy, joined by The Chief Justice and Justice Alito, concluded in Part II-B that a fact-sensitive inquiry that considers both the setting in which the prayer arises and the audience to whom it is directed shows that the town is not coercing its citizens to engage in a religious observance. The prayer opportunity is evaluated against the backdrop of a historical practice showing that prayer has become part of the Nation's heritage and tradition. It is presumed that the reasonable observer is acquainted with this tradition and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens. Furthermore, the principal audience for these invocations is not the public, but the lawmakers themselves. And those lawmakers did not direct the public to participate, single out dissidents for opprobrium, or indicate that their decisions might be influenced by a person's acquiescence in the prayer opportunity. Respondents claim that the prayers gave them offense and made them feel excluded and disrespected, but offense does not equate to coercion. In contrast to Lee v. Weisman, 505 U. S. 577, where the Court found coercive a religious invocation at a high school graduation, id., at 592-594, the record here does not suggest that citizens are dissuaded from leaving the meeting room during the prayer, arriving late, or making a later protest. That the prayer in Greece is delivered during the opening ceremonial portion of the town's meeting, not the policymaking portion, also suggests that its purpose and effect are to acknowledge religious leaders and their institutions, not to exclude or coerce nonbelievers. Pp. 18-23. Justice Thomas, joined by Justice Scalia as to Part II, agreed that the town's prayer practice does not violate the Establishment Clause, but concluded that, even if the Establishment Clause were properly incorporated against the States through the Fourteenth Amendment, the Clause is not violated by the kind of subtle pressures respondents allegedly suffered, which do not amount to actual legal coercion. The municipal prayers in this case bear no resemblance to the coercive state establishments that existed at the founding, which exercised government power in order to exact financial support of the church, compel religious observance, or control religious doctrine. Pp. 1-8. Kennedy, J., delivered the opinion of the Court, except as to Part II-B. Roberts, C. J., and Alito, J., joined the opinion in full, and Scalia and Thomas, JJ., joined except as to Part II-B. Alito, J., filed a concurring opinion, in which Scalia, J., joined. Thomas, J., filed an opinion concurring in part and concurring in the judgment, in which Scalia, J., joined as to Part II. Breyer, J., filed a dissenting opinion. Kagan, J., filed a dissenting opinion, in which Ginsburg, Breyer, and Sotomayor, JJ., joined.Opinion of the Court 572 U. S. ____ (2014)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 12-696TOWN OF GREECE, NEW YORK, PETITIONER v.SUSAN GALLOWAY et al.on writ of certiorari to the united states court of appeals for the second circuit[May 5, 2014] Justice Kennedy delivered the opinion of the Court, except as to Part II-B.* The Court must decide whether the town of Greece, New York, imposes an impermissible establishment of religion by opening its monthly board meetings with a prayer. It must be concluded, consistent with the Court's opinion in Marsh v. Chambers, 463 U. S. 783 (1983), that no violation of the Constitution has been shown.I Greece, a town with a population of 94,000, is in upstate New York. For some years, it began its monthly town board meetings with a moment of silence. In 1999, the newly elected town supervisor, John Auberger, decided to replicate the prayer practice he had found meaningful while serving in the county legislature. Following the roll call and recitation of the Pledge of Allegiance, Auberger would invite a local clergyman to the front of the room to deliver an invocation. After the prayer, Auberger would thank the minister for serving as the board's "chaplain for the month" and present him with a commemorative plaque. The prayer was intended to place town board members in a solemn and deliberative frame of mind, invoke divine guidance in town affairs, and follow a tradition practiced by Congress and dozens of state legislatures. App. 22a-25a. The town followed an informal method for selecting prayer givers, all of whom were unpaid volunteers. A town employee would call the congregations listed in a local directory until she found a minister available for that month's meeting. The town eventually compiled a list of willing "board chaplains" who had accepted invitations and agreed to return in the future. The town at no point excluded or denied an opportunity to a would-be prayer giver. Its leaders maintained that a minister or layperson of any persuasion, including an atheist, could give the invocation. But nearly all of the congregations in town were Christian; and from 1999 to 2007, all of the participating ministers were too. Greece neither reviewed the prayers in advance of the meetings nor provided guidance as to their tone or content, in the belief that exercising any degree of control over the prayers would infringe both the free exercise and speech rights of the ministers. Id., at 22a. The town instead left the guest clergy free to compose their own devotions. The resulting prayers often sounded both civic and religious themes. Typical were invocations that asked the divinity to abide at the meeting and bestow blessings on the community:"Lord we ask you to send your spirit of servanthood upon all of us gathered here this evening to do your work for the benefit of all in our community. We ask you to bless our elected and appointed officials so they may deliberate with wisdom and act with courage. Bless the members of our community who come here to speak before the board so they may state their cause with honesty and humility. . . . Lord we ask you to bless us all, that everything we do here tonight will move you to welcome us one day into your kingdom as good and faithful servants. We ask this in the name of our brother Jesus. Amen." Id., at 45a.Some of the ministers spoke in a distinctly Christian idiom; and a minority invoked religious holidays, scripture, or doctrine, as in the following prayer:"Lord, God of all creation, we give you thanks and praise for your presence and action in the world. We look with anticipation to the celebration of Holy Week and Easter. It is in the solemn events of next week that we find the very heart and center of our Christian faith. We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength, vitality, and confidence from his resurrection at Easter. . . . We pray for peace in the world, an end to terrorism, violence, conflict, and war. We pray for stability, democracy, and good government in those countries in which our armed forces are now serving, especially in Iraq and Afghanistan. . . . Praise and glory be yours, O Lord, now and forever more. Amen." Id., at 88a-89a. Respondents Susan Galloway and Linda Stephens attended town board meetings to speak about issues of local concern, and they objected that the prayers violated their religious or philosophical views. At one meeting, Galloway admonished board members that she found the prayers "offensive," "intolerable," and an affront to a "diverse community." Complaint in No. 08-cv-6088 (WDNY), ¶66. After respondents complained that Christian themes pervaded the prayers, to the exclusion of citizens who did not share those beliefs, the town invited a Jewish layman and the chairman of the local Baha'i temple to deliver prayers. A Wiccan priestess who had read press reports about the prayer controversy requested, and was granted, an opportunity to give the invocation. Galloway and Stephens brought suit in the United States District Court for the Western District of New York. They alleged that the town violated the First Amendment's Establishment Clause by preferring Christians over other prayer givers and by sponsoring sectarian prayers, such as those given "in Jesus' name." 732 F. Supp. 2d 195, 203 (2010). They did not seek an end to the prayer practice, but rather requested an injunction that would limit the town to "inclusive and ecumenical" prayers that referred only to a "generic God" and would not associate the government with any one faith or belief. Id., at 210, 241. The District Court on summary judgment upheld the prayer practice as consistent with the First Amendment. It found no impermissible preference for Christianity, noting that the town had opened the prayer program to all creeds and excluded none. Although most of the prayer givers were Christian, this fact reflected only the predominantly Christian identity of the town's congregations, rather than an official policy or practice of discriminating against minority faiths. The District Court found no authority for the proposition that the First Amendment required Greece to invite clergy from congregations beyond its borders in order to achieve a minimum level of religious diversity. The District Court also rejected the theory that legislative prayer must be nonsectarian. The court began its inquiry with the opinion in Marsh v. Chambers, 463 U. S. 783, which permitted prayer in state legislatures by a chaplain paid from the public purse, so long as the prayer opportunity was not "exploited to proselytize or advance any one, or to disparage any other, faith or belief," id., at 794-795. With respect to the prayer in Greece, the District Court concluded that references to Jesus, and the occasional request that the audience stand for the prayer, did not amount to impermissible proselytizing. It located in Marsh no additional requirement that the prayers be purged of sectarian content. In this regard the court quoted recent invocations offered in the U. S. House of Representatives "in the name of our Lord Jesus Christ," e.g., 156 Cong Rec. H5205 (June 30, 2010), and situated prayer in this context as part a long tradition. Finally, the trial court noted this Court's statement in County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 603 (1989), that the prayers in Marsh did not offend the Establishment Clause "because the particular chaplain had 'removed all references to Christ.' " But the District Court did not read that statement to mandate that legislative prayer be nonsectarian, at least in circumstances where the town permitted clergy from a variety of faiths to give invocations. By welcoming many viewpoints, the District Court concluded, the town would be unlikely to give the impression that it was affiliating itself with any one religion. The Court of Appeals for the Second Circuit reversed. 681 F. 3d 20, 34 (2012). It held that some aspects of the prayer program, viewed in their totality by a reasonable observer, conveyed the message that Greece was endorsing Christianity. The town's failure to promote the prayer opportunity to the public, or to invite ministers from congregations outside the town limits, all but "ensured a Christian viewpoint." Id., at 30-31. Although the court found no inherent problem in the sectarian content of the prayers, it concluded that the "steady drumbeat" of Christian prayer, unbroken by invocations from other faith traditions, tended to affiliate the town with Christianity. Id., at 32. Finally, the court found it relevant that guest clergy sometimes spoke on behalf of all present at the meeting, as by saying "let us pray," or by asking audience members to stand and bow their heads: "The invitation . . . to participate in the prayer . . . placed audience members who are nonreligious or adherents of non-Christian religion in the awkward position of either participating in prayers invoking beliefs they did not share or appearing to show disrespect for the invocation." Ibid. That board members bowed their heads or made the sign of the cross further conveyed the message that the town endorsed Christianity. The Court of Appeals emphasized that it was the "interaction of the facts present in this case," rather than any single element, that rendered the prayer unconstitutional. Id., at 33. Having granted certiorari to decide whether the town's prayer practice violates the Establishment Clause, 569 U. S. ___ (2013), the Court now reverses the judgment of the Court of Appeals. II In Marsh v. Chambers, 463 U. S. 783, the Court found no First Amendment violation in the Nebraska Legislature's practice of opening its sessions with a prayer delivered by a chaplain paid from state funds. The decision concluded that legislative prayer, while religious in nature, has long been understood as compatible with the Establishment Clause. As practiced by Congress since the framing of the Constitution, legislative prayer lends gravity to public business, reminds lawmakers to transcend petty differences in pursuit of a higher purpose, and expresses a common aspiration to a just and peaceful society. See Lynch v. Donnelly, 465 U. S. 668, 693 (1984) (O'Connor, J., concurring); cf. A. Adams & C. Emmerich, A Nation Dedicated to Religious Liberty 83 (1990). The Court has considered this symbolic expression to be a "tolerable acknowledgement of beliefs widely held," Marsh, 463 U. S., at 792, rather than a first, treacherous step towards establishment of a state church. Marsh is sometimes described as "carving out an exception" to the Court's Establishment Clause jurisprudence, because it sustained legislative prayer without subjecting the practice to "any of the formal 'tests' that have traditionally structured" this inquiry. Id., at 796, 813 (Brennan, J., dissenting). The Court in Marsh found those tests unnecessary because history supported the conclusion that legislative invocations are compatible with the Establishment Clause. The First Congress made it an early item of business to appoint and pay official chaplains, and both the House and Senate have maintained the office virtually uninterrupted since that time. See id., at 787-789, and n. 10; N. Feldman, Divided by God 109 (2005). But see Marsh, supra, at 791-792, and n. 12 (noting dissenting views among the Framers); Madison, "Detached Memoranda", 3 Wm. & Mary Quarterly 534, 558-559 (1946) (hereinafter Madison's Detached Memoranda). When Marsh was decided, in 1983, legislative prayer had persisted in the Nebraska Legislature for more than a century, and the majority of the other States also had the same, consistent practice. 463 U. S., at 788-790, and n. 11. Although no information has been cited by the parties to indicate how many local legislative bodies open their meetings with prayer, this practice too has historical precedent. See Reports of Proceedings of the City Council of Boston for the Year Commencing Jan. 1, 1909, and Ending Feb. 5, 1910, pp. 1-2 (1910) (Rev. Arthur Little) ("And now we desire to invoke Thy presence, Thy blessing, and Thy guidance upon those who are gathered here this morning . . ."). "In light of the unambiguous and unbroken history of more than 200 years, there can be no doubt that the practice of opening legislative sessions with a prayer has become part of the fabric of our society." Marsh, supra, at 792. Yet Marsh must not be understood as permitting a practice that would amount to a constitutional violation if not for its historical foundation. The case teaches instead that the Establishment Clause must be interpreted "by reference to historical practices and understandings." County of Allegheny, 492 U. S., at 670 (Kennedy, J., concurring in judgment in part and dissenting in part). That the First Congress provided for the appointment of chaplains only days after approving language for the First Amendment demonstrates that the Framers considered legislative prayer a benign acknowledgment of religion's role in society. D. Currie, The Constitution in Congress: The Federalist Period 1789-1801, pp. 12-13 (1997). In the 1850's, the judiciary committees in both the House and Senate reevaluated the practice of official chaplaincies after receiving petitions to abolish the office. The committees concluded that the office posed no threat of an establishment because lawmakers were not compelled to attend the daily prayer, S. Rep. No. 376, 32d Cong., 2d Sess., 2 (1853); no faith was excluded by law, nor any favored, id., at 3; and the cost of the chaplain's salary imposed a vanishingly small burden on taxpayers, H. Rep. No. 124, 33d Cong., 1st Sess., 6 (1854). Marsh stands for the proposition that it is not necessary to define the precise boundary of the Establishment Clause where history shows that the specific practice is permitted. Any test the Court adopts must acknowledge a practice that was accepted by the Framers and has withstood the critical scrutiny of time and political change. County of Allegheny, supra, at 670 (opinion of Kennedy, J.); see also School Dist. of Abington Township v. Schempp, 374 U. S. 203, 294 (1963) (Brennan, J., concurring) ("[T]he line we must draw between the permissible and the impermissible is one which accords with history and faithfully reflects the understanding of the Founding Fathers"). A test that would sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent. See Van Orden v. Perry, 545 U. S. 677, 702-704 (2005) (Breyer, J., concurring in judgment). The Court's inquiry, then, must be to determine whether the prayer practice in the town of Greece fits within the tradition long followed in Congress and the state legislatures. Respondents assert that the town's prayer exercise falls outside that tradition and transgresses the Establishment Clause for two independent but mutually reinforcing reasons. First, they argue that Marsh did not approve prayers containing sectarian language or themes, such as the prayers offered in Greece that referred to the "death, resurrection, and ascension of the Savior Jesus Christ," App. 129a, and the "saving sacrifice of Jesus Christ on the cross," id., at 88a. Second, they argue that the setting and conduct of the town board meetings create social pressures that force nonadherents to remain in the room or even feign participation in order to avoid offending the representatives who sponsor the prayer and will vote on matters citizens bring before the board. The sectarian content of the prayers compounds the subtle coercive pressures, they argue, because the nonbeliever who might tolerate ecumenical prayer is forced to do the same for prayer that might be inimical to his or her beliefs.A Respondents maintain that prayer must be nonsectarian, or not identifiable with any one religion; and they fault the town for permitting guest chaplains to deliver prayers that "use overtly Christian terms" or "invoke specifics of Christian theology." Brief for Respondents 20. A prayer is fitting for the public sphere, in their view, only if it contains the ' "most general, nonsectarian reference to God,' " id., at 33 (quoting M. Meyerson, Endowed by Our Creator: The Birth of Religious Freedom in America 11-12 (2012)), and eschews mention of doctrines associated with any one faith, Brief for Respondents 32-33. They argue that prayer which contemplates "the workings of the Holy Spirit, the events of Pentecost, and the belief that God 'has raised up the Lord Jesus' and 'will raise us, in our turn, and put us by His side' " would be impermissible, as would any prayer that reflects dogma particular to a single faith tradition. Id., at 34 (quoting App. 89a and citing id., at 56a, 123a, 134a). An insistence on nonsectarian or ecumenical prayer as a single, fixed standard is not consistent with the tradition of legislative prayer outlined in the Court's cases. The Court found the prayers in Marsh consistent with the First Amendment not because they espoused only a generic theism but because our history and tradition have shown that prayer in this limited context could "coexis[t] with the principles of disestablishment and religious freedom." 463 U. S., at 786. The Congress that drafted the First Amendment would have been accustomed to invocations containing explicitly religious themes of the sort respondents find objectionable. One of the Senate's first chaplains, the Rev. William White, gave prayers in a series that included the Lord's Prayer, the Collect for Ash Wednesday, prayers for peace and grace, a general thanksgiving, St. Chrysostom's Prayer, and a prayer seeking "the grace of our Lord Jesus Christ, &c." Letter from W. White to H. Jones (Dec. 29, 1830), in B. Wilson, Memoir of the Life of the Right Reverend William White, D. D., Bishop of the Protestant Episcopal Church in the State of Pennsylvania 322 (1839); see also New Hampshire Patriot & State Gazette, Dec. 15, 1823, p. 1 (describing a Senate prayer addressing the "Throne of Grace"); Cong. Globe, 37th Cong., 1st Sess., 2 (1861) (reciting the Lord's Prayer). The decidedly Christian nature of these prayers must not be dismissed as the relic of a time when our Nation was less pluralistic than it is today. Congress continues to permit its appointed and visiting chaplains to express themselves in a religious idiom. It acknowledges our growing diversity not by proscribing sectarian content but by welcoming ministers of many creeds. See, e.g., 160 Cong. Rec. S1329 (Mar. 6, 2014) (Dalai Lama) ("I am a Buddhist monk — a simple Buddhist monk — so we pray to Buddha and all other Gods"); 159 Cong. Rec. H7006 (Nov. 13, 2013) (Rabbi Joshua Gruenberg) ("Our God and God of our ancestors, Everlasting Spirit of the Universe . . ."); 159 Cong. Rec. H3024 (June 4, 2013) (Satguru Bodhinatha Veylanswami) ("Hindu scripture declares, without equivocation, that the highest of high ideals is to never knowingly harm anyone"); 158 Cong. Rec. H5633 (Aug. 2, 2012) (Imam Nayyar Imam) ("The final prophet of God, Muhammad, peace be upon him, stated: 'The leaders of a people are a representation of their deeds' "). The contention that legislative prayer must be generic or nonsectarian derives from dictum in County of Allegheny, 492 U. S. 573, that was disputed when written and has been repudiated by later cases. There the Court held that a crèche placed on the steps of a county courthouse to celebrate the Christmas season violated the Establishment Clause because it had "the effect of endorsing a patently Christian message." Id., at 601. Four dissenting Justices disputed that endorsement could be the proper test, as it likely would condemn a host of traditional practices that recognize the role religion plays in our society, among them legislative prayer and the "forthrightly religious" Thanksgiving proclamations issued by nearly every President since Washington. Id., at 670-671. The Court sought to counter this criticism by recasting Marsh to permit only prayer that contained no overtly Christian references:"However history may affect the constitutionality of nonsectarian references to religion by the government, history cannot legitimate practices that demonstrate the government's allegiance to a particular sect or creed . . . . The legislative prayers involved in Marsh did not violate this principle because the particular chaplain had 'removed all references to Christ.' " Id., at 603 (quoting Marsh, supra, at 793, n. 14; footnote omitted). This proposition is irreconcilable with the facts of Marsh and with its holding and reasoning. Marsh nowhere suggested that the constitutionality of legislative prayer turns on the neutrality of its content. The opinion noted that Nebraska's chaplain, the Rev. Robert E. Palmer, modulated the "explicitly Christian" nature of his prayer and "removed all references to Christ" after a Jewish lawmaker complained. 463 U. S., at 793, n. 14. With this footnote, the Court did no more than observe the practical demands placed on a minister who holds a permanent, appointed position in a legislature and chooses to write his or her prayers to appeal to more members, or at least to give less offense to those who object. See Mallory, "An Officer of the House Which Chooses Him, and Nothing More": How Should Marsh v. Chambers Apply to Rotating Chaplains?, 73 U. Chi. L. Rev. 1421, 1445 (2006). Marsh did not suggest that Nebraska's prayer practice would have failed had the chaplain not acceded to the legislator's request. Nor did the Court imply the rule that prayer violates the Establishment Clause any time it is given in the name of a figure deified by only one faith or creed. See Van Orden, 545 U. S., at 688, n. 8 (recognizing that the prayers in Marsh were "often explicitly Christian" and rejecting the view that this gave rise to an establishment violation). To the contrary, the Court instructed that the "content of the prayer is not of concern to judges," provided "there is no indication that the prayer opportunity has been exploited to proselytize or advance any one, or to disparage any other, faith or belief." 463 U. S., at 794-795. To hold that invocations must be nonsectarian would force the legislatures that sponsor prayers and the courts that are asked to decide these cases to act as supervisors and censors of religious speech, a rule that would involve government in religious matters to a far greater degree than is the case under the town's current practice of neither editing or approving prayers in advance nor criticizing their content after the fact. Cf. Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. ___, ___ (2012) (slip op., at 13-14). Our Government is prohibited from prescribing prayers to be recited in our public institutions in order to promote a preferred system of belief or code of moral behavior. Engel v. Vitale, 370 U. S. 421, 430 (1962). It would be but a few steps removed from that prohibition for legislatures to require chaplains to redact the religious content from their message in order to make it acceptable for the public sphere. Government may not mandate a civic religion that stifles any but the most generic reference to the sacred any more than it may prescribe a religious orthodoxy. See Lee v. Weisman, 505 U. S. 577, 590 (1992) ("The suggestion that government may establish an official or civic religion as a means of avoiding the establishment of a religion with more specific creeds strikes us as a contradiction that cannot be accepted"); Schempp, 374 U. S., at 306 (Goldberg, J., concurring) (arguing that "untutored devotion to the concept of neutrality" must not lead to "a brooding and pervasive devotion to the secular"). Respondents argue, in effect, that legislative prayer may be addressed only to a generic God. The law and the Court could not draw this line for each specific prayer or seek to require ministers to set aside their nuanced and deeply personal beliefs for vague and artificial ones. There is doubt, in any event, that consensus might be reached as to what qualifies as generic or nonsectarian. Honorifics like "Lord of Lords" or "King of Kings" might strike a Christian audience as ecumenical, yet these titles may have no place in the vocabulary of other faith tradi-tions. The difficulty, indeed the futility, of sifting sectarian from nonsectarian speech is illustrated by a letter that a lawyer for the respondents sent the town in the early stages of this litigation. The letter opined that references to "Father, God, Lord God, and the Almighty" would be acceptable in public prayer, but that references to "Jesus Christ, the Holy Spirit, and the Holy Trinity" would not. App. 21a. Perhaps the writer believed the former grouping would be acceptable to monotheists. Yet even seemingly general references to God or the Father might alienate nonbelievers or polytheists. McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844, 893 (2005) (Scalia, J., dissenting). Because it is unlikely that prayer will be inclusive beyond dispute, it would be unwise to adopt what respondents think is the next-best option: permitting those religious words, and only those words, that are acceptable to the majority, even if they will exclude some. Torcaso v. Watkins, 367 U. S. 488, 495 (1961). The First Amendment is not a majority rule, and government may not seek to define permissible categories of religious speech. Once it invites prayer into the public sphere, government must permit a prayer giver to address his or her own God or gods as conscience dictates, unfettered by what an administrator or judge considers to be nonsectarian. In rejecting the suggestion that legislative prayer must be nonsectarian, the Court does not imply that no constraints remain on its content. The relevant constraint derives from its place at the opening of legislative sessions, where it is meant to lend gravity to the occasion and reflect values long part of the Nation's heritage. Prayer that is solemn and respectful in tone, that invites lawmakers to reflect upon shared ideals and common ends before they embark on the fractious business of governing, serves that legitimate function. If the course and practice over time shows that the invocations denigrate nonbeliev-ers or religious minorities, threaten damnation, or preach conversion, many present may consider the prayer to fall short of the desire to elevate the purpose of the occasion and to unite lawmakers in their common effort. That circumstance would present a different case than the one presently before the Court. The tradition reflected in Marsh permits chaplains to ask their own God for blessings of peace, justice, and freedom that find appreciation among people of all faiths. That a prayer is given in the name of Jesus, Allah, or Jehovah, or that it makes passing reference to religious doctrines, does not remove it from that tradition. These religious themes provide particular means to universal ends. Prayer that reflects beliefs specific to only some creeds can still serve to solemnize the occasion, so long as the practice over time is not "exploited to proselytize or advance any one, or to disparage any other, faith or belief." Marsh, 463 U. S., at 794-795. It is thus possible to discern in the prayers offered to Congress a commonality of theme and tone. While these prayers vary in their degree of religiosity, they often seek peace for the Nation, wisdom for its lawmakers, and justice for its people, values that count as universal and that are embodied not only in religious traditions, but in our founding documents and laws. The first prayer delivered to the Continental Congress by the Rev. Jacob Duché on Sept. 7, 1774, provides an example: "Be Thou present O God of Wisdom and direct the counsel of this Honorable Assembly; enable them to settle all things on the best and surest foundations; that the scene of blood may be speedily closed; that Order, Harmony, and Peace be effectually restored, and the Truth and Justice, Religion and Piety, prevail and flourish among the people. "Preserve the health of their bodies, and the vigor of their minds, shower down on them, and the millions they here represent, such temporal Blessings as Thou seest expedient for them in this world, and crown them with everlasting Glory in the world to come. All this we ask in the name and through the merits of Jesus Christ, Thy Son and our Saviour, Amen." W. Federer, America's God and Country 137 (2000). From the earliest days of the Nation, these invocations have been addressed to assemblies comprising many different creeds. These ceremonial prayers strive for the idea that people of many faiths may be united in a community of tolerance and devotion. Even those who disagree as to religious doctrine may find common ground in the desire to show respect for the divine in all aspects of their lives and being. Our tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith. See Letter from John Adams to Abigail Adams (Sept. 16, 1774), in C. Adams, Familiar Letters of John Adams and His Wife Abigail Adams, During the Revolution 37-38 (1876). The prayers delivered in the town of Greece do not fall outside the tradition this Court has recognized. A number of the prayers did invoke the name of Jesus, the Heavenly Father, or the Holy Spirit, but they also invoked universal themes, as by celebrating the changing of the seasons or calling for a "spirit of cooperation" among town leaders. App. 31a, 38a. Among numerous examples of such prayer in the record is the invocation given by the Rev. Richard Barbour at the September 2006 board meeting:"Gracious God, you have richly blessed our nation and this community. Help us to remember your generosity and give thanks for your goodness. Bless the elected leaders of the Greece Town Board as they conduct the business of our town this evening. Give them wisdom, courage, discernment and a single-minded desire to serve the common good. We ask your blessing on all public servants, and especially on our police force, firefighters, and emergency medical personnel. . . . Respectful of every religious tradition, I offer this prayer in the name of God's only son Jesus Christ, the Lord, Amen." Id., at 98a-99a. Respondents point to other invocations that disparaged those who did not accept the town's prayer practice. One guest minister characterized objectors as a "minority" who are "ignorant of the history of our country," id., at 108a, while another lamented that other towns did not have "God-fearing" leaders, id., at 79a. Although these two remarks strayed from the rationale set out in Marsh, they do not despoil a practice that on the whole reflects and embraces our tradition. Absent a pattern of prayers that over time denigrate, proselytize, or betray an impermissible government purpose, a challenge based solely on the content of a prayer will not likely establish a constitutional violation. Marsh, indeed, requires an inquiry into the prayer opportunity as a whole, rather than into the contents of a single prayer. 463 U. S., at 794-795. Finally, the Court disagrees with the view taken by the Court of Appeals that the town of Greece contravened the Establishment Clause by inviting a predominantly Christian set of ministers to lead the prayer. The town made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one. That nearly all of the congregations in town turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths. So long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing. The quest to promote "a 'diversity' of religious views" would require the town "to make wholly inappropriate judgments about the number of religions [it] should sponsor and the relative frequency with which it should sponsor each," Lee, 505 U. S., at 617 (Souter, J., concurring), a form of government entanglement with religion that is far more troublesome than the current approach.B Respondents further seek to distinguish the town's prayer practice from the tradition upheld in Marsh on the ground that it coerces participation by nonadherents. They and some amici contend that prayer conducted in the intimate setting of a town board meeting differs in fundamental ways from the invocations delivered in Congress and state legislatures, where the public remains segregated from legislative activity and may not address the body except by occasional invitation. Citizens attend town meetings, on the other hand, to accept awards; speak on matters of local importance; and petition the board for action that may affect their economic interests, such as the granting of permits, business licenses, and zoning variances. Respondents argue that the public may feel subtle pressure to participate in prayers that violate their beliefs in order to please the board members from whom they are about to seek a favorable ruling. In their view the fact that board members in small towns know many of their constituents by name only increases the pressure to conform. It is an elemental First Amendment principle that government may not coerce its citizens "to support or participate in any religion or its exercise." County of Allegheny, 492 U. S., at 659 (Kennedy, J., concurring in judgment in part and dissenting in part); see also Van Orden, 545 U. S., at 683 (plurality opinion) (recognizing that our "institutions must not press religious observances upon their citizens"). On the record in this case the Court is not persuaded that the town of Greece, through the act of offering a brief, solemn, and respectful prayer to open its monthly meetings, compelled its citizens to engage in a religious observance. The inquiry remains a fact-sensitive one that considers both the setting in which the prayer arises and the audience to whom it is directed. The prayer opportunity in this case must be evaluated against the backdrop of historical practice. As a practice that has long endured, legislative prayer has become part of our heritage and tradition, part of our expressive idiom, similar to the Pledge of Allegiance, inaugural prayer, or the recitation of "God save the United States and this honorable Court" at the opening of this Court's sessions. See Lynch, 465 U. S., at 693 (O'Connor, J., concurring). It is presumed that the reasonable observer is acquainted with this tradition and understands that its purposes are to lend gravity to public proceedings and to acknowledge the place religion holds in the lives of many private citizens, not to afford government an opportunity to proselytize or force truant constituents into the pews. See Salazar v. Buono, 559 U. S. 700, 720-721 (2010) (plurality opinion); Santa Fe Independent School Dist. v. Doe, 530 U. S. 290, 308 (2000). That many appreciate these acknowledgments of the divine in our public institutions does not suggest that those who disagree are compelled to join the expression or approve its content. West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943). The principal audience for these invocations is not, indeed, the public but lawmakers themselves, who may find that a moment of prayer or quiet reflection sets the mind to a higher purpose and thereby eases the task of governing. The District Court in Marsh described the prayer exercise as "an internal act" directed at the Nebraska Legislature's "own members," Chambers v. Marsh, 504 F. Supp. 585, 588 (Neb. 1980), rather than an effort to promote religious observance among the public. See also Lee, 505 U. S., at 630, n. 8 (Souter, J., concurring) (describing Marsh as a case "in which government officials invoke[d] spiritual inspiration entirely for their own benefit"); Atheists of Fla., Inc. v. Lakeland, 713 F. 3d 577, 583 (CA11 2013) (quoting a city resolution providing for prayer "for the benefit and blessing of" elected leaders); Madison's Detached Memoranda 558 (characterizing prayer in Congress as "religious worship for national representatives"); Brief for U. S. Senator Marco Rubio et al. as Amici Curiae 30-33; Brief for 12 Members of Congress as Amici Curiae 6. To be sure, many members of the public find these prayers meaningful and wish to join them. But their purpose is largely to accommodate the spiritual needs of lawmakers and connect them to a tradition dating to the time of the Framers. For members of town boards and commissions, who often serve part-time and as volunteers, ceremonial prayer may also reflect the values they hold as private citizens. The prayer is an opportunity for them to show who and what they are without denying the right to dissent by those who disagree. The analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person's acquiescence in the prayer opportunity. No such thing occurred in the town of Greece. Although board members themselves stood, bowed their heads, or made the sign of the cross during the prayer, they at no point solicited similar gestures by the public. Respondents point to several occasions where audience members were asked to rise for the prayer. These requests, however, came not from town leaders but from the guest ministers, who presumably are accustomed to directing their congregations in this way and might have done so thinking the action was inclusive, not coercive. See App. 69a ("Would you bow your heads with me as we invite the Lord's presence here tonight?"); id., at 93a ("Let us join our hearts and minds together in prayer"); id., at 102a ("Would you join me in a moment of prayer?"); id., at 110a ("Those who are willing may join me now in prayer"). Respondents suggest that constituents might feel pressure to join the prayers to avoid irritating the officials who would be ruling on their petitions, but this argument has no evidentiary support. Nothing in the record indicates that town leaders allocated benefits and burdens based on participation in the prayer, or that citizens were received differently depending on whether they joined the invocation or quietly declined. In no instance did town leaders signal disfavor toward nonparticipants or suggest that their stature in the community was in any way diminished. A practice that classified citizens based on their religious views would violate the Constitution, but that is not the case before this Court. In their declarations in the trial court, respondents stated that the prayers gave them offense and made them feel excluded and disrespected. Offense, however, does not equate to coercion. Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions. See Elk Grove Unified School Dist. v. Newdow (O'Connor, J., concurring) ("The compulsion of which Justice Jackson was concerned . . . was of the direct sort — the Constitution does not guarantee citizens a right entirely to avoid ideas with which they disagree"). If circumstances arise in which the pattern and practice of ceremonial, legislative prayer is alleged to be a means to coerce or intimidate others, the objection can be addressed in the regular course. But the showing has not been made here, where the prayers neither chastised dissenters nor attempted lengthy disquisition on religious dogma. Courts remain free to review the pattern of prayers over time to determine whether they comport with the tradition of solemn, respectful prayer approved in Marsh, or whether coercion is a real and substantial likelihood. But in the general course legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate. See County of Allegheny, 492 U. S., at 670 (Kennedy, J., concurring in judgment in part and dissenting in part). This case can be distinguished from the conclusions and holding of Lee v. Weisman, 505 U. S. 577. There the Court found that, in the context of a graduation where school authorities maintained close supervision over the conduct of the students and the substance of the ceremony, a religious invocation was coercive as to an objecting student. Id., at 592-594; see also Santa Fe Independent School Dist., 530 U. S., at 312. Four Justices dissented in Lee, but the circumstances the Court confronted there are not present in this case and do not control its outcome. Nothing in the record suggests that members of the public are dissuaded from leaving the meeting room during the prayer, arriving late, or even, as happened here, making a later protest. In this case, as in Marsh, board members and constituents are "free to enter and leave with little comment and for any number of reasons." Lee, supra, at 597. Should nonbelievers choose to exit the room during a prayer they find distasteful, their absence will not stand out as disrespectful or even noteworthy. And should they remain, their quiet acquiescence will not, in light of our traditions, be interpreted as an agreement with the words or ideas expressed. Neither choice represents an unconstitutional imposition as to mature adults, who "presumably" are "not readily susceptible to religious indoctrination or peer pressure." Marsh, 463 U. S., at 792 (internal quotation marks and citations omitted). In the town of Greece, the prayer is delivered during the ceremonial portion of the town's meeting. Board members are not engaged in policymaking at this time, but in more general functions, such as swearing in new police officers, inducting high school athletes into the town hall of fame, and presenting proclamations to volunteers, civic groups, and senior citizens. It is a moment for town leaders to recognize the achievements of their constituents and the aspects of community life that are worth celebrating. By inviting ministers to serve as chaplain for the month, and welcoming them to the front of the room alongside civic leaders, the town is acknowledging the central place that religion, and religious institutions, hold in the lives of those present. Indeed, some congregations are not simply spiritual homes for town residents but also the provider of social services for citizens regardless of their beliefs. See App. 31a (thanking a pastor for his "community involvement"); id., at 44a (thanking a deacon "for the job that you have done on behalf of our community"). The inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders and the institutions they represent rather than to exclude or coerce nonbelievers. Ceremonial prayer is but a recognition that, since this Nation was founded and until the present day, many Americans deem that their own existence must be understood by precepts far beyond the authority of government to alter or define and that willing participation in civic affairs can be consistent with a brief acknowledgment of their belief in a higher power, always with due respect for those who adhere to other beliefs. The prayer in this case has a permissible ceremonial purpose. It is not an unconstitutional establishment of religion.* * * The town of Greece does not violate the First Amendment by opening its meetings with prayer that comports with our tradition and does not coerce participation by nonadherents. The judgment of the U. S. Court of Appeals for the Second Circuit is reversed.It is so ordered.Alito, J., concurring 572 U. S. ____ (2014)No. 12-696TOWN OF GREECE, NEW YORK, PETITIONER v. SUSAN GALLOWAY et al.on writ of certiorari to the united states court of appeals for the second circuit[May 5, 2014] Justice Alito, with whom Justice Scalia joins, concurring. I write separately to respond to the principal dissent, which really consists of two very different but intertwined opinions. One is quite narrow; the other is sweeping. I will address both.I First, however, since the principal dissent accuses the Court of being blind to the facts of this case, post, at 20 (opinion of Kagan, J.), I recount facts that I find particularly salient. The town of Greece is a municipality in upstate New York that borders the city of Rochester. The town decided to emulate a practice long established in Congress and state legislatures by having a brief prayer before sessions of the town board. The task of lining up clergy members willing to provide such a prayer was given to the town's office of constituent services. 732 F. Supp. 2d 195, 197-198 (WDNY 2010). For the first four years of the practice, a clerical employee in the office would randomly call religious organizations listed in the Greece "Community Guide," a local directory published by the Greece Chamber of Commerce, until she was able to find somebody willing to give the invocation. Id., at 198. This employee eventu-ally began keeping a list of individuals who had agreed to give the invocation, and when a second clerical employee took over the task of finding prayer-givers, the first employee gave that list to the second. Id., at 198, 199. The second employee then randomly called organizations on that list — and possibly others in the Community Guide — until she found someone who agreed to provide the prayer. Id., at 199. Apparently, all the houses of worship listed in the local Community Guide were Christian churches. Id., at 198-200, 203. That is unsurprising given the small number of non-Christians in the area. Although statistics for the town of Greece alone do not seem to be available, statistics have been compiled for Monroe County, which includes both the town of Greece and the city of Rochester. According to these statistics, of the county residents who have a religious affiliation, about 3% are Jewish, and for other non-Christian faiths, the percentages are smaller.1 There are no synagogues within the borders of the town of Greece, id., at 203, but there are several not far away across the Rochester border. Presumably, Jewish residents of the town worship at one or more of those synagogues, but because these synagogues fall outside the town's borders, they were not listed in the town's local directory, and the responsible town employee did not include them on her list. Ibid. Nor did she include any other non-Christian house of worship. Id., at 198-200.2 As a result of this procedure, for some time all the prayers at the beginning of town board meetings were offered by Christian clergy, and many of these prayers were distinctively Christian. But respondents do not claim that the list was attributable to religious bias or favoritism, and the Court of Appeals acknowledged that the town had "no religious animus." 681 F. 3d 20, 32 (CA2 2012). For some time, the town's practice does not appear to have elicited any criticism, but when complaints were received, the town made it clear that it would permit any interested residents, including nonbelievers, to provide an invocation, and the town has never refused a request to offer an invocation. Id., at 23, 25; 732 F. Supp. 2d, at 197. The most recent list in the record of persons available to provide an invocation includes representatives of many non-Christian faiths. App. in No. 10-3635 (CA2), pp. A1053-A1055 (hereinafter CA2 App.). Meetings of the Greece Town Board appear to have been similar to most other town council meetings across the country. The prayer took place at the beginning of the meetings. The board then conducted what might be termed the "legislative" portion of its agenda, during which residents were permitted to address the board. After this portion of the meeting, a separate stage of the meetings was devoted to such matters as formal requests for variances. See Brief for Respondents 5-6; CA2 App. A929-A930; e.g., CA2 App. A1058, A1060. No prayer occurred before this second part of the proceedings, and therefore I do not understand this case to involve the constitutionality of a prayer prior to what may be characterized as an adjudicatory proceeding. The prayer preceded only the portion of the town board meeting that I view as essentially legislative. While it is true that the matters considered by the board during this initial part of the meeting might involve very specific questions, such as the installation of a traffic light or stop sign at a particular intersection, that does not transform the nature of this part of the meeting.II I turn now to the narrow aspect of the principal dissent, and what we find here is that the principal dissent's objection, in the end, is really quite niggling. According to the principal dissent, the town could have avoided any constitutional problem in either of two ways.A First, the principal dissent writes, "[i]f the Town Board had let its chaplains know that they should speak in nonsectarian terms, common to diverse religious groups, then no one would have valid grounds for complaint." Post, at 18-19. "Priests and ministers, rabbis and imams," the principal dissent continues, "give such invocations all the time" without any great difficulty. Post, at 19. Both Houses of Congress now advise guest chaplains that they should keep in mind that they are addressing members from a variety of faith traditions, and as a matter of policy, this advice has much to recommend it. But any argument that nonsectarian prayer is constitutionally required runs headlong into a long history of contrary congressional practice. From the beginning, as the Court notes, many Christian prayers were offered in the House and Senate, see ante, at 7, and when rabbis and other non-Christian clergy have served as guest chaplains, their prayers have often been couched in terms particular to their faith traditions.3 Not only is there no historical support for the proposition that only generic prayer is allowed, but as our country has become more diverse, composing a prayer that is acceptable to all members of the community who hold religious beliefs has become harder and harder. It was one thing to compose a prayer that is acceptable to both Christians and Jews; it is much harder to compose a prayer that is also acceptable to followers of Eastern religions that are now well represented in this country. Many local clergy may find the project daunting, if not impossible, and some may feel that they cannot in good faith deliver such a vague prayer. In addition, if a town attempts to go beyond simply recommending that a guest chaplain deliver a prayer that is broadly acceptable to all members of a particular community (and the groups represented in different communities will vary), the town will inevitably encounter sensitive problems. Must a town screen and, if necessary, edit prayers before they are given? If prescreening is not required, must the town review prayers after they are delivered in order to determine if they were sufficiently generic? And if a guest chaplain crosses the line, what must the town do? Must the chaplain be corrected on the spot? Must the town strike this chaplain (and perhaps his or her house of worship) from the approved list?B If a town wants to avoid the problems associated with this first option, the principal dissent argues, it has another choice: It may "invit[e] clergy of many faiths." Post, at 19. "When one month a clergy member refers to Jesus, and the next to Allah or Jehovah," the principal dissent explains, "the government does not identify itself with one religion or align itself with that faith's citizens, and the effect of even sectarian prayer is transformed." Ibid. If, as the principal dissent appears to concede, such a rotating system would obviate any constitutional problems, then despite all its high rhetoric, the principal dissent's quarrel with the town of Greece really boils down to this: The town's clerical employees did a bad job in compiling the list of potential guest chaplains. For that is really the only difference between what the town did and what the principal dissent is willing to accept. The Greece clerical employee drew up her list using the town directory instead of a directory covering the entire greater Rochester area. If the task of putting together the list had been handled in a more sophisticated way, the employee in charge would have realized that the town's Jewish residents attended synagogues on the Rochester side of the border and would have added one or more synagogues to the list. But the mistake was at worst careless, and it was not done with a discriminatory intent. (I would view this case very differently if the omission of these synagogues were intentional.) The informal, imprecise way in which the town lined up guest chaplains is typical of the way in which many things are done in small and medium-sized units of local government. In such places, the members of the governing body almost always have day jobs that occupy much of their time. The town almost never has a legal office and instead relies for legal advice on a local attorney whose practice is likely to center on such things as land-use regulation, contracts, and torts. When a municipality like the town of Greece seeks in good faith to emulate the congressional practice on which our holding in Marsh v. Chambers, 463 U. S. 783 (1983), was largely based, that municipality should not be held to have violated the Constitution simply because its method of recruiting guest chaplains lacks the demographic exactitude that might be regarded as optimal. The effect of requiring such exactitude would be to pressure towns to forswear altogether the practice of having a prayer before meetings of the town council. Many local officials, puzzled by our often puzzling Establishment Clause jurisprudence and terrified of the legal fees that may result from a lawsuit claiming a constitutional violation, already think that the safest course is to ensure that local government is a religion-free zone. Indeed, the Court of Appeals' opinion in this case advised towns that constitutional difficulties "may well prompt municipalities to pause and think carefully before adopting legislative prayer." 681 F. 3d, at 34. But if, as precedent and historic practice make clear (and the principal dissent concedes), prayer before a legislative session is not inherently inconsistent with the First Amendment, then a unit of local government should not be held to have violated the First Amendment simply because its procedure for lining up guest chaplains does not comply in all respects with what might be termed a "best practices" standard.III While the principal dissent, in the end, would demand no more than a small modification in the procedure that the town of Greece initially followed, much of the rhetoric in that opinion sweeps more broadly. Indeed, the logical thrust of many of its arguments is that prayer is never permissible prior to meetings of local government legislative bodies. At Greece Town Board meetings, the principal dissent pointedly notes, ordinary citizens (and even children!) are often present. Post, at 10-11. The guest chaplains stand in front of the room facing the public. "[T]he setting is intimate," and ordinary citizens are permitted to speak and to ask the board to address problems that have a direct effect on their lives. Post, at 11. The meetings are "occasions for ordinary citizens to engage with and petition their government, often on highly individualized matters." Post, at 9. Before a session of this sort, the principal dissent argues, any prayer that is not acceptable to all in attendance is out of bounds. The features of Greece meetings that the principal dissent highlights are by no means unusual.4 It is common for residents to attend such meetings, either to speak on matters on the agenda or to request that the town address other issues that are important to them. Nor is there anything unusual about the occasional attendance of students, and when a prayer is given at the beginning of such a meeting, I expect that the chaplain generally stands at the front of the room and faces the public. To do otherwise would probably be seen by many as rude. Finally, although the principal dissent, post, at 13, attaches importance to the fact that guest chaplains in the town of Greece often began with the words "Let us pray," that is also commonplace and for many clergy, I suspect, almost reflexive.5 In short, I see nothing out of the ordinary about any of the features that the principal dissent notes. Therefore, if prayer is not allowed at meetings with those characteristics, local government legislative bodies, unlike their national and state counterparts, cannot begin their meetings with a prayer. I see no sound basis for drawing such a distinction.IV The principal dissent claims to accept the Court's decision in Marsh v. Chambers, which upheld the constitutionality of the Nebraska Legislature's practice of prayer at the beginning of legislative sessions, but the principal dissent's acceptance of Marsh appears to be predicated on the view that the prayer at issue in that case was little more than a formality to which the legislators paid scant attention. The principal dissent describes this scene: A session of the state legislature begins with or without most members present; a strictly nonsectarian prayer is recited while some legislators remain seated; and few members of the public are exposed to the experience. Post, at 8-9. This sort of perfunctory and hidden-away prayer, the principal dissent implies, is all that Marsh and the First Amendment can tolerate. It is questionable whether the principal dissent accurately describes the Nebraska practice at issue in Marsh,6 but what is important is not so much what happened in Nebraska in the years prior to Marsh, but what happened before congressional sessions during the period leading up to the adoption of the First Amendment. By that time, prayer before legislative sessions already had an impressive pedigree, and it is important to recall that history and the events that led to the adoption of the practice. The principal dissent paints a picture of "morning in Nebraska" circa 1983, see post, at 9, but it is more instructive to consider "morning in Philadelphia," September 1774. The First Continental Congress convened in Philadelphia, and the need for the 13 colonies to unite was imperative. But "[m]any things set colony apart from colony," and prominent among these sources of division was religion.7 "Purely as a practical matter," however, the project of bringing the colonies together required that these divisions be overcome.8 Samuel Adams sought to bridge these differences by prodding a fellow Massachusetts delegate to move to open the session with a prayer.9 As John Adams later recounted, this motion was opposed on the ground that the delegates were "so divided in religious sentiments, some Episcopalians, some Quakers, some Anabaptists, some Presbyterians, and some Congregationalists, that [they] could not join in the same act of worship."10 In response, Samuel Adams proclaimed that "he was no bigot, and could hear a prayer from a gentleman of piety and virtue, who was at the same time a friend to his country."11 Putting aside his personal prejudices,12 he moved to invite a local Anglican minister, Jacob Duché, to lead the first prayer.13 The following morning, Duché appeared in full "pontifi-cals" and delivered both the Anglican prayers for the day and an extemporaneous prayer.14 For many of the delegates — members of religious groups that had come to America to escape persecution in Britain — listening to a distinctively Anglican prayer by a minister of the Church of England represented an act of notable ecumenism. But Duché's prayer met with wide approval — John Adams wrote that it "filled the bosom of every man" in attendance15 — and the practice was continued. This first congressional prayer was emphatically Christian, and it was neither an empty formality nor strictly nondenominational.16 But one of its purposes, and presumably one of its effects, was not to divide, but to unite. It is no wonder, then, that the practice of beginning congressional sessions with a prayer was continued after the Revolution ended and the new Constitution was adopted. One of the first actions taken by the new Congress when it convened in 1789 was to appoint chaplains for both Houses. The first Senate chaplain, an Episcopalian, was appointed on April 25, 1789, and the first House chaplain, a Presbyterian, was appointed on May 1.17 Three days later, Madison announced that he planned to introduce proposed constitutional amendments to protect individual rights; on June 8, 1789, those amendments were introduced; and on September 26, 1789, the amendments were approved to be sent to the States for ratification.18 In the years since the adoption of the First Amendment, the practice of prayer before sessions of the House and Senate has continued, and opening prayers from a great variety of faith traditions have been offered. This Court has often noted that actions taken by the First Congress are presumptively consistent with the Bill of Rights, see, e.g., Harmelin v. Michigan, 501 U. S. 957, 980 (1991), Carroll v. United States, 267 U. S. 132, 150-152 (1925), and this principle has special force when it comes to the interpretation of the Establishment Clause. This Court has always purported to base its Establishment Clause decisions on the original meaning of that provision. Thus, in Marsh, when the Court was called upon to decide whether prayer prior to sessions of a state legislature was consistent with the Establishment Clause, we relied heavily on the history of prayer before sessions of Congress and held that a state legislature may follow a similar practice. See 463 U. S., at 786-792. There can be little doubt that the decision in Marsh reflected the original understanding of the First Amendment. It is virtually inconceivable that the First Congress, having appointed chaplains whose responsibilities prominently included the delivery of prayers at the beginning of each daily session, thought that this practice was inconsistent with the Establishment Clause. And since this practice was well established and undoubtedly well known, it seems equally clear that the state legislatures that ratified the First Amendment had the same understanding. In the case before us, the Court of Appeals appeared to base its decision on one of the Establishment Clause "tests" set out in the opinions of this Court, see 681 F. 3d, at 26, 30, but if there is any inconsistency between any of those tests and the historic practice of legislative prayer, the inconsistency calls into question the validity of the test, not the historic practice.V This brings me to my final point. I am troubled by the message that some readers may take from the principal dissent's rhetoric and its highly imaginative hypotheticals. For example, the principal dissent conjures up the image of a litigant awaiting trial who is asked by the presiding judge to rise for a Christian prayer, of an official at a polling place who conveys the expectation that citizens wishing to vote make the sign of the cross before casting their ballots, and of an immigrant seeking naturalization who is asked to bow her head and recite a Christian prayer. Although I do not suggest that the implication is intentional, I am concerned that at least some readers will take these hypotheticals as a warning that this is where today's decision leads — to a country in which religious minorities are denied the equal benefits of citizenship. Nothing could be further from the truth. All that the Court does today is to allow a town to follow a practice that we have previously held is permissible for Congress and state legislatures. In seeming to suggest otherwise, the principal dissent goes far astray.Opinion of Thomas, J. 572 U. S. ____ (2014)No. 12-696TOWN OF GREECE, NEW YORK, PETITIONER v. SUSAN GALLOWAY et al.on writ of certiorari to the united states court of appeals for the second circuit[May 5, 2014] Justice Thomas, with whom Justice Scalia joins as to Part II, concurring in part and concurring in the judgment. Except for Part II-B, I join the opinion of the Court, which faithfully applies Marsh v. Chambers. I write separately to reiterate my view that the Establishment Clause is "best understood as a federalism provision," Elk Grove Unified School Dist. v. Newdow, 542 U. S. 1, 50 (2004) (Thomas, J., concurring in judgment), and to state my understanding of the proper "coercion" analysis.I The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion." U. S. Const., Amdt. 1. As I have explained before, the text and history of the Clause "resis[t] incorporation" against the States. Newdow, supra, at 45-46; see also Van Orden v. Perry, 545 U. S. 677, 692-693 (2005) (Thomas, J., concurring); Zelman v. Simmons-Harris, 536 U. S. 639, 677-680 (2002) (same). If the Establishment Clause is not incorporated, then it has no application here, where only municipal action is at issue. As an initial matter, the Clause probably prohibits Congress from establishing a national religion. Cf. D. Drakeman, Church, State, and Original Intent 260-262 (2010). The text of the Clause also suggests that Congress "could not interfere with state establishments, notwithstanding any argument that could be made based on Congress' power under the Necessary and Proper Clause." Newdow, supra, at 50 (opinion of Thomas, J.). The language of the First Amendment ("Congress shall make no law") "precisely tracked and inverted the exact wording" of the Necessary and Proper Clause ("Congress shall have power . . . to make all laws which shall be necessary and proper . . . "), which was the subject of fierce criticism by Anti-Federalists at the time of ratification. A. Amar, The Bill of Rights 39 (1998) (hereinafter Amar); see also Natelson, The Framing and Adoption of the Necessary and Proper Clause, in The Origins of the Necessary and Proper Clause 84, 94-96 (G. Lawson, G. Miller, R. Natelson, & G. Seidman eds. 2010) (summarizing Anti-Federalist claims that the Necessary and Proper Clause would aggrandize the powers of the Federal Government). That choice of language--"Congress shall make no law"--effectively denied Congress any power to regulate state establishments. Construing the Establishment Clause as a federalism provision accords with the variety of church-state arrangements that existed at the Founding. At least six States had established churches in 1789. Amar 32-33. New England States like Massachusetts, Connecticut, and New Hampshire maintained local-rule establishments whereby the majority in each town could select the minister and religious denomination (usually Congregationalism, or "Puritanism"). McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. & Mary L. Rev. 2105, 2110 (2003); see also L. Levy, The Establishment Clause: Religion and the First Amendment 29-51 (1994) (hereinafter Levy). In the South, Maryland, South Carolina, and Georgia eliminated their exclusive Anglican establishments following the American Revolution and adopted general establishments, which permitted taxation in support of all Christian churches (or, as in South Carolina, all Protestant churches). See Levy 52-58; Amar 32-33. Virginia, by contrast, had recently abolished its official state establishment and ended direct government funding of clergy after a legislative battle led by James Madison. See T. Buckley, Church and State in Revolutionary Virginia, 1776-1787, pp. 155-164 (1977). Other States — principally Rhode Island, Pennsylvania, and Delaware, which were founded by religious dissenters — had no history of formal establishments at all, although they still maintained religious tests for office. See McConnell, The Origins and Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 1409, 1425-1426, 1430 (1990). The import of this history is that the relationship between church and state in the fledgling Republic was far from settled at the time of ratification. See Muñoz, The Original Meaning of the Establishment Clause and the Impossibility of Its Incorporation, 8 U. Pa. J. Constitutional L. 585, 605 (2006). Although the remaining state establishments were ultimately dismantled — Massachusetts, the last State to disestablish, would do so in 1833, see Levy 42 — that outcome was far from assured when the Bill of Rights was ratified in 1791. That lack of consensus suggests that the First Amendment was simply agnostic on the subject of state establishments; the decision to establish or disestablish religion was reserved to the States. Amar 41. The Federalist logic of the original Establishment Clause poses a special barrier to its mechanical incorporation against the States through the Fourteenth Amendment. See id., at 33. Unlike the Free Exercise Clause, which "plainly protects individuals against congressional interference with the right to exercise their religion," the Establishment Clause "does not purport to protect individual rights." Newdow, 542 U. S., at 50 (opinion of Thomas, J.). Instead, the States are the particular beneficiaries of the Clause. Incorporation therefore gives rise to a paradoxical result: Applying the Clause against the States eliminates their right to establish a religion free from federal interference, thereby "prohibit[ing] exactly what the Establishment Clause protected." Id., at 51; see Amar 33-34. Put differently, the structural reasons that counsel against incorporating the Tenth Amendment also apply to the Establishment Clause. Id., at 34. To my knowledge, no court has ever suggested that the Tenth Amendment, which "reserve[s] to the States" powers not delegated to the Federal Government, could or should be applied against the States. To incorporate that limitation would be to divest the States of all powers not specifically delegated to them, thereby inverting the original import of the Amendment. Incorporating the Establishment Clause has precisely the same effect. The most cogent argument in favor of incorporation may be that, by the time of Reconstruction, the framers of the Fourteenth Amendment had come to reinterpret the Establishment Clause (notwithstanding its Federalist origins) as expressing an individual right. On this question, historical evidence from the 1860's is mixed. Congressmen who catalogued the personal rights protected by the First Amendment commonly referred to speech, press, petition, and assembly, but not to a personal right of nonestablishment; instead, they spoke only of " 'free exercise' " or " 'freedom of conscience.' " Amar 253, and 385, n. 91 (collecting sources). There may be reason to think these lists were abbreviated, and silence on the issue is not dispositive. See Lash, The Second Adoption of the Establishment Clause: The Rise of the Nonestablishment Principle, 27 Ariz. St. L. J. 1085, 1141-1145 (1995); but cf. S. Smith, Foreordained Failure: The Quest for a Constitutional Principle of Religious Freedom 50-52 (1995). Given the textual and logical difficulties posed by incorporation, however, there is no warrant for transforming the meaning of the Establishment Clause without a firm historical foundation. See Newdow, supra, at 51 (opinion of Thomas, J.). The burden of persuasion therefore rests with those who claim that the Clause assumed a different meaning upon adoption of the Fourteenth Amendment.1II Even if the Establishment Clause were properly incorporated against the States, the municipal prayers at issue in this case bear no resemblance to the coercive state establishments that existed at the founding. "The coercion that was a hallmark of historical establishments of religion was coercion of religious orthodoxy and of financial support by force of law and threat of penalty." Lee v. Weisman, 505 U. S. 577, 640 (1992) (Scalia, J., dissent-ing); see also Perry, 545 U. S., at 693-694 (Thomas, J., concurring); Cutter v. Wilkinson, 544 U. S. 709, 729 (2005) (Thomas, J., concurring); Newdow, supra, at 52 (opinion of Thomas, J.). In a typical case, attendance at the established church was mandatory, and taxes were levied to generate church revenue. McConnell, Establishment and Disestablishment, at 2144-2146, 2152-2159. Dissenting ministers were barred from preaching, and political participation was limited to members of the established church. Id., at 2161-2168, 2176-2180. This is not to say that the state establishments in existence when the Bill of Rights was ratified were uniform. As previously noted, establishments in the South were typically governed through the state legislature or State Constitution, while establishments in New England were administered at the municipal level. See supra, at 2-3. Notwithstanding these variations, both state and local forms of establishment involved "actual legal coercion," Newdow, supra, at 52 (opinion of Thomas, J.): They exercised government power in order to exact financial support of the church, compel religious observance, or control religious doctrine. None of these founding-era state establishments remained at the time of Reconstruction. But even assuming that the framers of the Fourteenth Amendment reconceived the nature of the Establishment Clause as a constraint on the States, nothing in the history of the intervening period suggests a fundamental transformation in their understanding of what constituted an establishment. At a minimum, there is no support for the proposition that the framers of the Fourteenth Amendment embraced wholly modern notions that the Establishment Clause is violated whenever the "reasonable observer" feels "subtle pressure," ante, at 18, 19, or perceives governmental "endors[ement]," ante, at 5-6. For example, of the 37 States in existence when the Fourteenth Amendment was rati-fied, 27 State Constitutions "contained an explicit reference to God in their preambles." Calabresi & Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights Are Deeply Rooted in American History and Tradition?, 87 Tex. L. Rev. 7, 12, 37 (2008). In addition to the preamble references, 30 State Constitutions contained other references to the divine, using such phrases as " 'Almighty God,' " " '[O]ur Creator,' " and " 'Sovereign Ruler of the Universe.' " Id., at 37, 38, 39, n. 104. Moreover, the state constitutional provisions that prohibited religious "comp[ulsion]" made clear that the relevant sort of compulsion was legal in nature, of the same type that had characterized founding-era establishments.2 These provisions strongly suggest that, whatever nonestablishment principles existed in 1868, they included no concern for the finer sensibilities of the "reasonable observer." Thus, to the extent coercion is relevant to the Establishment Clause analysis, it is actual legal coercion that counts — not the "subtle coercive pressures" allegedly felt by respondents in this case, ante, at 9. The majority properly concludes that "[o]ffense . . . does not equate to coercion," since "[a]dults often encounter speech they find disagreeable[,] and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum." Ante, at 21. I would simply add, in light of the foregoing history of the Establishment Clause, that "[p]eer pressure, unpleasant as it may be, is not coercion" either. Newdow, 542 U. S., at 49 (opinion of Thomas, J.).Breyer, J., dissenting 572 U. S. ____ (2014)No. 12-696TOWN OF GREECE, NEW YORK, PETITIONER v. SUSAN GALLOWAY et al.on writ of certiorari to the united states court of appeals for the second circuit[May 5, 2014] Justice Breyer, dissenting. As we all recognize, this is a "fact-sensitive" case. Ante, at 19 (opinion of Kennedy, J.); see also post, at 20 (Kagan, J., dissenting); 681 F. 3d 20, 34 (CA2 2012) (explaining that the Court of Appeals' holding follows from the "totality of the circumstances"). The Court of Appeals did not believe that the Constitution forbids legislative prayers that incorporate content associated with a particular denomination. Id., at 28. Rather, the court's holding took that content into account simply because it indicated that the town had not followed a sufficiently inclusive "prayer-giver selection process." Id., at 30. It also took into account related "actions (and inactions) of prayer-givers and town officials." Ibid. Those actions and inactions included (1) a selection process that led to the selection of "clergy almost exclusively from places of worship located within the town's borders," despite the likelihood that significant numbers of town residents were members of congregations that gather just outside those borders; (2) a failure to "infor[m] members of the general public that volunteers" would be acceptable prayer givers; and (3) a failure to "infor[m] prayer-givers that invocations were not to be exploited as an effort to convert others to the particular faith of the invocational speaker, nor to disparage any faith or belief different than that of the invocational speaker." Id., at 31-32 (internal quotation marks omitted). The Court of Appeals further emphasized what it was not holding. It did not hold that "the town may not open its public meetings with a prayer," or that "any prayers offered in this context must be blandly 'nonsectarian.' " Id., at 33. In essence, the Court of Appeals merely held that the town must do more than it had previously done to try to make its prayer practices inclusive of other faiths. And it did not prescribe a single constitutionally required method for doing so. In my view, the Court of Appeals' conclusion and its reasoning are convincing. Justice Kagan's dissent is consistent with that view, and I join it. I also here emphasize several factors that I believe underlie the conclusion that, on the particular facts of this case, the town's prayer practice violated the Establishment Clause. First, Greece is a predominantly Christian town, but it is not exclusively so. A map of the town's houses of worship introduced in the District Court shows many Christian churches within the town's limits. It also shows a Buddhist temple within the town and several Jewish synagogues just outside its borders, in the adjacent city of Rochester, New York. Id., at 24. Yet during the more than 120 monthly meetings at which prayers were delivered during the record period (from 1999 to 2010), only four prayers were delivered by non-Christians. And all of these occurred in 2008, shortly after the plaintiffs began complaining about the town's Christian prayer practice and nearly a decade after that practice had commenced. See post, at 14, 21. To be precise: During 2008, two prayers were delivered by a Jewish layman, one by the chairman of a Baha'i congregation, and one by a Wiccan priestess. The Jewish and Wiccan prayer givers were invited only after they reached out to the town to inquire about giving an invoca-tion. The town apparently invited the Baha'i chairman on its own initiative. The inclusivity of the 2008 meetings, which contrasts starkly with the exclusively single-denomination prayers every year before and after, is commendable. But the Court of Appeals reasonably decided not to give controlling weight to that inclusivity, for it arose only in response to the complaints that presaged this litigation, and it did not continue into the following years. Second, the town made no significant effort to inform the area's non-Christian houses of worship about the possibility of delivering an opening prayer. See post, at 21. Beginning in 1999, when it instituted its practice of opening its monthly board meetings with prayer, Greece selected prayer givers as follows: Initially, the town's employees invited clergy from each religious organization listed in a "Community Guide" published by the Greece Chamber of Commerce. After that, the town kept a list of clergy who had accepted invitations and reinvited those clergy to give prayers at future meetings. From time to time, the town supplemented this list in response to requests from citizens and to new additions to the Community Guide and a town newspaper called the Greece Post. The plaintiffs do not argue that the town intentionally discriminated against non-Christians when choosing whom to invite, 681 F. 3d, at 26, and the town claims, plausibly, that it would have allowed anyone who asked to give an invocation to do so. Rather, the evident reasons why the town consistently chose Christian prayer givers are that the Buddhist and Jewish temples mentioned above were not listed in the Community Guide or the Greece Post and that the town limited its list of clergy almost exclusively to representatives of houses of worship situated within Greece's town limits (again, the Buddhist temple on the map was within those limits, but the synagogues were just outside them). Id., at 24, 31. Third, in this context, the fact that nearly all of the prayers given reflected a single denomination takes on significance. That significance would have been the same had all the prayers been Jewish, or Hindu, or Buddhist, or of any other denomination. The significance is that, in a context where religious minorities exist and where more could easily have been done to include their participation, the town chose to do nothing. It could, for example, have posted its policy of permitting anyone to give an invocation on its website, greeceny.gov, which provides dates and times of upcoming town board meetings along with minutes of prior meetings. It could have announced inclusive policies at the beginning of its board meetings, just before introducing the month's prayer giver. It could have provided information to those houses of worship of all faiths that lie just outside its borders and include citizens of Greece among their members. Given that the town could easily have made these or similar efforts but chose not to, the fact that all of the prayers (aside from the 2008 outliers) were given by adherents of a single religion reflects a lack of effort to include others. And that is what I take to be a major point of Justice Kagan's related discussion. See post, at 2-4, 9, 14-15, 21-23. Fourth, the fact that the board meeting audience included citizens with business to conduct also contributes to the importance of making more of an effort to include members of other denominations. It does not, however, automatically change the nature of the meeting from one where an opening prayer is permissible under the Establishment Clause to one where it is not. Cf. post, at 8-14, 16-17, 20. Fifth, it is not normally government's place to rewrite, to parse, or to critique the language of particular prayers. And it is always possible that members of one religious group will find that prayers of other groups (or perhaps even a moment of silence) are not compatible with their faith. Despite this risk, the Constitution does not forbid opening prayers. But neither does the Constitution forbid efforts to explain to those who give the prayers the nature of the occasion and the audience. The U. S. House of Representatives, for example, provides its guest chaplains with the following guidelines, which are designed to encourage the sorts of prayer that are consistent with the purpose of an invocation for a government body in a religiously pluralistic Nation:"The guest chaplain should keep in mind that the House of Representatives is comprised of Members of many different faith traditions."The length of the prayer should not exceed 150 words."The prayer must be free from personal political views or partisan politics, from sectarian controversies, and from any intimations pertaining to foreign or domestic policy." App. to Brief for Respondents 2a.The town made no effort to promote a similarly inclusive prayer practice here. See post, at 21-22. As both the Court and Justice Kagan point out, we are a Nation of many religions. Ante, at 10-11; post, at 1-2, 18. And the Constitution's Religion Clauses seek to "protec[t] the Nation's social fabric from religious conflict." Zelman v. Simmons-Harris (Breyer, J., dissenting). The question in this case is whether the prayer practice of the town of Greece, by doing too little to reflect the religious diversity of its citizens, did too much, even if unintentionally, to promote the "political division along religious lines" that "was one of the principal evils against which the First Amendment was intended to protect." Lemon v. Kurtzman. In seeking an answer to that fact-sensitive question, "I see no test-related substitute for the exercise of legal judgment." Van Orden v. Perry (Breyer, J., concurring in judgment). Having applied my legal judgment to the relevant facts, I conclude, like Justice Kagan, that the town of Greece failed to make reasonable efforts to include prayer givers of minority faiths, with the result that, although it is a community of several faiths, its prayer givers were almost exclusively persons of a single faith. Under these circumstances, I would affirm the judgment of the Court of Appeals that Greece's prayer practice violated the Establishment Clause. I dissent from the Court's decision to the contrary.Kagan, J., dissenting 572 U. S. ____ (2014)No. 12-696TOWN OF GREECE, NEW YORK, PETITIONER v. SUSAN GALLOWAY et al.on writ of certiorari to the united states court of appeals for the second circuit[May 5, 2014] Justice Kagan, with whom Justice Ginsburg, Jus- tice Breyer, and Justice Sotomayor join, dissenting. For centuries now, people have come to this country from every corner of the world to share in the blessing of religious freedom. Our Constitution promises that they may worship in their own way, without fear of penalty or danger, and that in itself is a momentous offering. Yet our Constitution makes a commitment still more remarkable — that however those individuals worship, they will count as full and equal American citizens. A Christian, a Jew, a Muslim (and so forth)--each stands in the same relationship with her country, with her state and local communities, and with every level and body of government. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American. I respectfully dissent from the Court's opinion because I think the Town of Greece's prayer practices violate that norm of religious equality — the breathtakingly generous constitutional idea that our public institutions belong no less to the Buddhist or Hindu than to the Methodist or Episcopalian. I do not contend that principle translates here into a bright separationist line. To the contrary, I agree with the Court's decision in Marsh v. Chambers, 463 U. S. 783 (1983), upholding the Nebraska Legislature's tradition of beginning each session with a chaplain's prayer. And I believe that pluralism and inclusion in a town hall can satisfy the constitutional requirement of neutrality; such a forum need not become a religion-free zone. But still, the Town of Greece should lose this case. The practice at issue here differs from the one sustained in Marsh because Greece's town meetings involve participation by ordinary citizens, and the invocations given — directly to those citizens — were predominantly sectarian in content. Still more, Greece's Board did nothing to recognize religious diversity: In arranging for clergy members to open each meeting, the Town never sought (except briefly when this suit was filed) to involve, accommodate, or in any way reach out to adherents of non-Christian religions. So month in and month out for over a decade, prayers steeped in only one faith, addressed toward members of the public, commenced meetings to discuss local affairs and distribute government benefits. In my view, that practice does not square with the First Amendment's promise that every citizen, irrespective of her religion, owns an equal share in her government.I To begin to see what has gone wrong in the Town of Greece, consider several hypothetical scenarios in which sectarian prayer — taken straight from this case's record — infuses governmental activities. None involves, as this case does, a proceeding that could be characterized as a legislative session, but they are useful to elaborate some general principles. In each instance, assume (as was true in Greece) that the invocation is given pursuant to government policy and is representative of the prayers generally offered in the designated setting:You are a party in a case going to trial; let's say you have filed suit against the government for violating one of your legal rights. The judge bangs his gavel to call the court to order, asks a minister to come to the front of the room, and instructs the 10 or so individuals present to rise for an opening prayer. The clergyman faces those in attendance and says: "Lord, God of all creation, . . . . We acknowledge the saving sacrifice of Jesus Christ on the cross. We draw strength . . . from his resurrection at Easter. Jesus Christ, who took away the sins of the world, destroyed our death, through his dying and in his rising, he has restored our life. Blessed are you, who has raised up the Lord Jesus, you who will raise us, in our turn, and put us by His side. . . . Amen." App. 88a-89a. The judge then asks your lawyer to begin the trial.It's election day, and you head over to your local polling place to vote. As you and others wait to give your names and receive your ballots, an election official asks everyone there to join him in prayer. He says: "We pray this [day] for the guidance of the Holy Spirit as [we vote] . . . . Let's just say the Our Father together. 'Our Father, who art in Heaven, hallowed be thy name; thy Kingdom come, thy will be done, on earth as it is in Heaven. . . .' " Id., at 56a. And after he concludes, he makes the sign of the cross, and appears to wait expectantly for you and the other prospective voters to do so too.You are an immigrant attending a naturalization ceremony to finally become a citizen. The presiding official tells you and your fellow applicants that before administering the oath of allegiance, he would like a minister to pray for you and with you. The pastor steps to the front of the room, asks everyone to bow their heads, and recites: "[F]ather, son, and Holy Spirit — it is with a due sense of reverence and awe that we come before you [today] seeking your blessing . . . . You are . . . a wise God, oh Lord, . . . as evidenced even in the plan of redemption that is fulfilled in Jesus Christ. We ask that you would give freely and abundantly wisdom to one and to all. . . in the name of the Lord and Savior Jesus Christ, who lives with you and the Holy Spirit, one God for ever and ever. Amen." Id., at 99a-100a.I would hold that the government officials responsible for the above practices — that is, for prayer repeatedly invoking a single religion's beliefs in these settings — crossed a constitutional line. I have every confidence the Court would agree. See ante, at 13 (Alito, J., concurring). And even Greece's attorney conceded that something like the first hypothetical (he was not asked about the others) would violate the First Amendment. See Tr. of Oral Arg. 3-4. Why? The reason, of course, has nothing to do with Christianity as such. This opinion is full of Christian prayers, because those were the only invocations offered in the Town of Greece. But if my hypotheticals involved the prayer of some other religion, the outcome would be exactly the same. Suppose, for example, that government officials in a predominantly Jewish community asked a rabbi to begin all public functions with a chanting of the Sh'ma and V'ahavta. ("Hear O Israel! The Lord our God, the Lord is One. . . . Bind [these words] as a sign upon your hand; let them be a symbol before your eyes; inscribe them on the doorposts of your house, and on your gates.") Or assume officials in a mostly Muslim town requested a muezzin to commence such functions, over and over again, with a recitation of the Adhan. ("God is greatest, God is greatest. I bear witness that there is no deity but God. I bear witness that Muhammed is the Messenger of God.") In any instance, the question would be why such government-sponsored prayer of a single religion goes beyond the constitutional pale. One glaring problem is that the government in all these hypotheticals has aligned itself with, and placed its imprimatur on, a particular religious creed. "The clearest command of the Establishment Clause," this Court has held, "is that one religious denomination cannot be officially preferred over another." Larson v. Valente, 456 U. S. 228, 244 (1982). Justices have often differed about a further issue: whether and how the Clause applies to governmental policies favoring religion (of all kinds) over non-religion. Compare, e.g., McCreary County v. American Civil Liberties Union of Ky., 545 U. S. 844, 860 (2005) ("[T]he First Amendment mandates governmental neutrality between ... religion and nonreligion"), with, e.g., id., at 885 (Scalia, J., dissenting) ("[T]he Court's oft repeated assertion that the government cannot favor religious practice [generally] is false"). But no one has disagreed with this much:"[O]ur constitutional tradition, from the Declaration of Independence and the first inaugural address of Washington . . . down to the present day, has . . . ruled out of order government-sponsored endorsement of religion . . . where the endorsement is sectarian, in the sense of specifying details upon which men and women who believe in a benevolent, omnipotent Creator and Ruler of the world are known to differ (for example, the divinity of Christ)." Lee v. Weisman, 505 U. S. 577, 641 (1992) (Scalia, J., dissenting). See also County of Allegheny v. American Civil Liberties Union, Greater Pittsburgh Chapter, 492 U. S. 573, 605 (1989) ("Whatever else the Establishment Clause may mean[,] . . . [it] means at the very least that government may not demonstrate a preference for one particular sect or creed (including a preference for Christianity over other religions)").1 By authorizing and overseeing prayers associated with a single religion — to the exclusion of all others — the government officials in my hypothetical cases (whether federal, state, or local does not matter) have violated that foundational principle. They have embarked on a course of religious favoritism anathema to the First Amendment. And making matters still worse: They have done so in a place where individuals come to interact with, and partici-pate in, the institutions and processes of their government. A person goes to court, to the polls, to a naturalization ceremony — and a government official or his hand-picked minister asks her, as the first order of official business, to stand and pray with others in a way conflicting with her own religious beliefs. Perhaps she feels sufficient pressure to go along — to rise, bow her head, and join in whatever others are saying: After all, she wants, very badly, what the judge or poll worker or immigration official has to offer. Or perhaps she is made of stronger mettle, and she opts not to participate in what she does not believe — indeed, what would, for her, be something like blasphemy. She then must make known her dissent from the common religious view, and place herself apart from other citizens, as well as from the officials responsible for the invocations. And so a civic function of some kind brings religious differences to the fore: That public proceeding becomes (whether intentionally or not) an instrument for dividing her from adherents to the community's majority religion, and for altering the very nature of her relationship with her government. That is not the country we are, because that is not what our Constitution permits. Here, when a citizen stands before her government, whether to perform a service or request a benefit, her religious beliefs do not enter into the picture. See Thomas Jefferson, Virginia Act for Establishing Religious Freedom (Oct. 31, 1785), in 5 The Founders' Constitution 85 (P. Kurland & R. Lerner eds. 1987) ("[O]pinion[s] in matters of religion ... shall in no wise diminish, enlarge, or affect [our] civil capacities"). The government she faces favors no particular religion, either by word or by deed. And that government, in its various processes and proceedings, imposes no religious tests on its citizens, sorts none of them by faith, and permits no exclusion based on belief. When a person goes to court, a polling place, or an immigration proceeding — I could go on: to a zoning agency, a parole board hearing, or the DMV — government officials do not engage in sectarian worship, nor do they ask her to do likewise. They all participate in the business of government not as Christians, Jews, Muslims (and more), but only as Americans — none of them different from any other for that civic purpose. Why not, then, at a town meeting?II In both Greece's and the majority's view, everything I have discussed is irrelevant here because this case involves "the tradition of legislative prayer outlined" in Marsh v. Chambers, 463 U. S. 783. Ante, at 10. And before I dispute the Town and Court, I want to give them their due: They are right that, under Marsh, legislative prayer has a distinctive constitutional warrant by virtue of tradition. As the Court today describes, a long history, stretching back to the first session of Congress (when chaplains began to give prayers in both Chambers), "ha[s] shown that prayer in this limited context could 'coexis[t] with the principles of disestablishment and religious freedom.' " Ante, at 10 (quoting Marsh, 463 U. S., at 786). Relying on that "unbroken" national tradition, Marsh upheld (I think correctly) the Nebraska Legislature's practice of opening each day with a chaplain's prayer as "a tolerable acknowledgment of beliefs widely held among the people of this country." Id., at 792. And so I agree with the majority that the issue here is "whether the prayer practice in the Town of Greece fits within the tradition long followed in Congress and the state legislatures." Ante, at 9. Where I depart from the majority is in my reply to that question. The town hall here is a kind of hybrid. Greece's Board indeed has legislative functions, as Congress and state assemblies do — and that means some opening prayers are allowed there. But much as in my hypotheticals, the Board's meetings are also occasions for ordinary citizens to engage with and petition their government, often on highly individualized matters. That feature calls for Board members to exercise special care to ensure that the prayers offered are inclusive — that they respect each and every member of the community as an equal citizen.2 But the Board, and the clergy members it selected, made no such effort. Instead, the prayers given in Greece, addressed directly to the Town's citizenry, were more sectarian, and less inclusive, than anything this Court sustained in Marsh. For those reasons, the prayer in Greece departs from the legislative tradition that the majority takes as its benchmark.A Start by comparing two pictures, drawn precisely from reality. The first is of Nebraska's (unicameral) Legislature, as this Court and the state senators themselves described it. The second is of town council meetings in Greece, as revealed in this case's record. It is morning in Nebraska, and senators are beginning to gather in the State's legislative chamber: It is the beginning of the official workday, although senators may not yet need to be on the floor. See Chambers v. Marsh, 504 F. Supp. 585, 590, and n. 12 (D. Neb. 1980); Lee, 505 U. S., at 597. The chaplain rises to give the daily invocation. That prayer, as the senators emphasized when their case came to this Court, is "directed only at the legislative membership, not at the public at large." Brief for Petitioners in Marsh 30. Any members of the public who happen to be in attendance — not very many at this early hour — watch only from the upstairs visitors' gallery. See App. 72 in Marsh (senator's testimony that "as a practical matter the public usually is not there" during the prayer). The longtime chaplain says something like the following (the excerpt is from his own amicus brief supporting Greece in this case): "O God, who has given all persons talents and varying capacities, Thou dost only require of us that we utilize Thy gifts to a maximum. In this Legislature to which Thou has entrusted special abilities and opportunities, may each recognize his stewardship for the people of the State." Brief for Robert E. Palmer 9. The chaplain is a Presbyterian minister, and "some of his earlier prayers" explicitly invoked Christian beliefs, but he "removed all references to Christ" after a single legislator complained. Marsh, 463 U. S., at 793, n. 14; Brief for Petitioners in Marsh 12. The chaplain also previously invited other clergy members to give the invocation, including local rabbis. See ibid. Now change the channel: It is evening in Greece, New York, and the Supervisor of the Town Board calls its monthly public meeting to order. Those meetings (so says the Board itself) are "the most important part of Town government." See Town of Greece, Town Board, online at http://greeceny.gov/planning/townboard (as visited May 2, 2014 and available in Clerk of Court's case file). They serve assorted functions, almost all actively involving members of the public. The Board may swear in new Town employees and hand out awards for civic accomplishments; it always provides an opportunity (called a Public Forum) for citizens to address local issues and ask for improved services or new policies (for example, better accommodations for the disabled or actions to ameliorate traffic congestion, see Pl. Exhs. 718, 755, in No. 6:08-cv-6088 (WDNY)); and it usually hears debate on individual applications from residents and local businesses to obtain special land-use permits, zoning variances, or other licenses. The Town Supervisor, Town Clerk, Chief of Police, and four Board members sit at the front of the meeting room on a raised dais. But the setting is intimate: There are likely to be only 10 or so citizens in attendance. A few may be children or teenagers, present to receive an award or fulfill a high school civics requirement. As the first order of business, the Town Supervisor introduces a local Christian clergy member — denominated the chaplain of the month — to lead the assembled persons in prayer. The pastor steps up to a lectern (emblazoned with the Town's seal) at the front of the dais, and with his back to the Town officials, he faces the citizens present. He asks them all to stand and to "pray as we begin this evening's town meeting." App. 134a. (He does not suggest that anyone should feel free not to participate.) And he says:"The beauties of spring . . . are an expressive symbol of the new life of the risen Christ. The Holy Spirit was sent to the apostles at Pentecost so that they would be courageous witnesses of the Good News to different regions of the Mediterranean world and beyond. The Holy Spirit continues to be the inspiration and the source of strength and virtue, which we all need in the world of today. And so . . . [w]e pray this evening for the guidance of the Holy Spirit as the Greece Town Board meets." Ibid.After the pastor concludes, Town officials behind him make the sign of the cross, as do some members of the audience, and everyone says "Amen." See 681 F. 3d 20, 24 (CA2 2012). The Supervisor then announces the start of the Public Forum, and a citizen stands up to complain about the Town's contract with a cable company. See App. in No. 10-3635 (CA2), p. A574.B Let's count the ways in which these pictures diverge. First, the governmental proceedings at which the prayers occur differ significantly in nature and purpose. The Nebraska Legislature's floor sessions — like those of the U. S. Congress and other state assemblies — are of, by, and for elected lawmakers. Members of the public take no part in those proceedings; any few who attend are spectators only, watching from a high-up visitors' gallery. (In that respect, note that neither the Nebraska Legislature nor the Congress calls for prayer when citizens themselves participate in a hearing — say, by giving testimony relevant to a bill or nomination.) Greece's town meetings, by contrast, revolve around ordinary members of the community. Each and every aspect of those sessions provides opportunities for Town residents to interact with public officials. And the most important parts enable those citizens to petition their government. In the Public Forum, they urge (or oppose) changes in the Board's policies and priorities; and then, in what are essentially adjudicatory hearings, they request the Board to grant (or deny) applications for various permits, licenses, and zoning variances. So the meetings, both by design and in operation, allow citizens to actively participate in the Town's governance — sharing concerns, airing grievances, and both shaping the community's policies and seeking their benefits. Second (and following from what I just said), the prayers in these two settings have different audiences. In the Nebraska Legislature, the chaplain spoke to, and only to, the elected representatives. Nebraska's senators were adamant on that point in briefing Marsh, and the facts fully supported them: As the senators stated, "[t]he activity is a matter of internal daily procedure directed only at the legislative membership, not at [members of] the public." Brief for Petitioners in Marsh 30; see Reply Brief for Petitioners in Marsh 8 ("The [prayer] practice involves no function or power of government vis-à-vis the Nebraska citizenry, but merely concerns an internal decision of the Nebraska Legislature as to the daily procedure by which it conducts its own affairs"). The same is true in the U. S. Congress and, I suspect, in every other state legislature. See Brief for Members of Congress as Amici Curiae 6 ("Consistent with the fact that attending citizens are mere passive observers, prayers in the House are delivered for the Representatives themselves, not those citizens"). As several Justices later noted (and the majority today agrees, see ante, at 19-20),3 Marsh involved "government officials invok[ing] spiritual inspiration entirely for their own benefit without directing any religious message at the citizens they lead." Lee, 505 U. S., at 630, n. 8 (Souter, J., concurring). The very opposite is true in Greece: Contrary to the majority's characterization, see ante, at 19-20, the prayers there are directed squarely at the citizens. Remember that the chaplain of the month stands with his back to the Town Board; his real audience is the group he is facing — the 10 or so members of the public, perhaps including children. See supra, at 10. And he typically addresses those people, as even the majority observes, as though he is "directing [his] congregation." Ante, at 21. He almost always begins with some version of "Let us all pray together." See, e.g., App. 75a, 93a, 106a, 109a. Often, he calls on everyone to stand and bow their heads, and he may ask them to recite a common prayer with him. See, e.g., id., at 28a, 42a, 43a, 56a, 77a. He refers, constantly, to a collective "we"--to "our" savior, for example, to the presence of the Holy Spirit in "our" lives, or to "our brother the Lord Jesus Christ." See, e.g., id., at 32a, 45a, 47a, 69a, 71a. In essence, the chaplain leads, as the first part of a town meeting, a highly intimate (albeit relatively brief) prayer service, with the public serving as his congregation. And third, the prayers themselves differ in their content and character. Marsh characterized the prayers in the Nebraska Legislature as "in the Judeo-Christian tradition," and stated, as a relevant (even if not dispositive) part of its analysis, that the chaplain had removed all explicitly Christian references at a senator's request. 463 U. S., at 793, n. 14. And as the majority acknowledges, see ante, at 12, Marsh hinged on the view that "that the prayer opportunity ha[d] [not] been exploited to proselytize or advance any one . . . faith or belief"; had it been otherwise, the Court would have reached a different decision. 463 U. S., at 794-795. But no one can fairly read the prayers from Greece's Town meetings as anything other than explicitly Christian — constantly and exclusively so. From the time Greece established its prayer practice in 1999 until litigation loomed nine years later, all of its monthly chaplains were Christian clergy. And after a brief spell surrounding the filing of this suit (when a Jewish layman, a Wiccan priestess, and a Baha'i minister appeared at meetings), the Town resumed its practice of inviting only clergy from neighboring Protestant and Catholic churches. See App. 129a-143a. About two-thirds of the prayers given over this decade or so invoked "Jesus," "Christ," "Your Son," or "the Holy Spirit"; in the 18 months before the record closed, 85% included those references. See generally id., at 27a-143a. Many prayers contained elaborations of Christian doctrine or recitations of scripture. See, e.g., id., at 129a ("And in the life and death, resurrection and ascension of the Savior Jesus Christ, the full extent of your kindness shown to the unworthy is forever demonstrated"); id., at 94a ("For unto us a child is born; unto us a son is given. And the government shall be upon his shoulder . . ."). And the prayers usually close with phrases like "in the name of Jesus Christ" or "in the name of Your son." See, e.g., id., at 55a, 65a, 73a, 85a. Still more, the prayers betray no understanding that the American community is today, as it long has been, a rich mosaic of religious faiths. See Braunfeld v. Brown, 366 U. S. 599, 606 (1961) (plurality opinion) (recognizing even half a century ago that "we are a cosmopolitan nation made up of people of almost every conceivable religious preference"). The monthly chaplains appear almost always to assume that everyone in the room is Christian (and of a kind who has no objection to government-sponsored worship4). The Town itself has never urged its chaplains to reach out to members of other faiths, or even to recall that they might be present. And accordingly, few chaplains have made any effort to be inclusive; none has thought even to assure attending members of the public that they need not participate in the prayer session. Indeed, as the majority forthrightly recognizes, see ante, at 17, when the plaintiffs here began to voice concern over prayers that excluded some Town residents, one pastor pointedly thanked the Board "[o]n behalf of all God-fearing people" for holding fast, and another declared the objectors "in the minority and . . . ignorant of the history of our country." App. 137a, 108a.C Those three differences, taken together, remove this case from the protective ambit of Marsh and the history on which it relied. To recap: Marsh upheld prayer addressed to legislators alone, in a proceeding in which citizens had no role — and even then, only when it did not "proselytize or advance" any single religion. 463 U. S., at 794. It was that legislative prayer practice (not every prayer in a body exercising any legislative function) that the Court found constitutional given its "unambiguous and unbroken history." Id., at 792. But that approved practice, as I have shown, is not Greece's. None of the history Marsh cited — and none the majority details today — supports calling on citizens to pray, in a manner consonant with only a single religion's beliefs, at a participatory public proceeding, having both legislative and adjudicative components. Or to use the majority's phrase, no "history shows that th[is] specific practice is permitted." Ante, at 8. And so, contra the majority, Greece's prayers cannot simply ride on the constitutional coattails of the legislative tradition Marsh described. The Board's practice must, in its own particulars, meet constitutional requirements. And the guideposts for addressing that inquiry include the principles of religious neutrality I discussed earlier. See supra, at 4-8. The government (whether federal, state, or local) may not favor, or align itself with, any particular creed. And that is nowhere more true than when officials and citizens come face to face in their shared institutions of governance. In performing civic functions and seeking civic benefits, each person of this nation must experience a government that belongs to one and all, irrespective of belief. And for its part, each government must ensure that its participatory processes will not classify those citizens by faith, or make relevant their religious differences. To decide how Greece fares on that score, think again about how its prayer practice works, meeting after meeting. The case, I think, has a fair bit in common with my earlier hypotheticals. See supra, at 2-4, 7. Let's say that a Muslim citizen of Greece goes before the Board to share her views on policy or request some permit. Maybe she wants the Board to put up a traffic light at a dangerous intersection; or maybe she needs a zoning variance to build an addition on her home. But just before she gets to say her piece, a minister deputized by the Town asks her to pray "in the name of God's only son Jesus Christ." App. 99a. She must think — it is hardly paranoia, but only the truth — that Christian worship has become entwined with local governance. And now she faces a choice — to pray alongside the majority as one of that group or somehow to register her deeply felt difference. She is a strong person, but that is no easy call — especially given that the room is small and her every action (or inaction) will be noticed. She does not wish to be rude to her neighbors, nor does she wish to aggravate the Board members whom she will soon be trying to persuade. And yet she does not want to acknowledge Christ's divinity, any more than many of her neighbors would want to deny that tenet. So assume she declines to participate with the others in the first act of the meeting — or even, as the majority proposes, that she stands up and leaves the room altogether, see ante, at 21. At the least, she becomes a different kind of citizen, one who will not join in the religious practice that the Town Board has chosen as reflecting its own and the community's most cherished beliefs. And she thus stands at a remove, based solely on religion, from her fellow citizens and her elected representatives. Everything about that situation, I think, infringes the First Amendment. (And of course, as I noted earlier, it would do so no less if the Town's clergy always used the liturgy of some other religion. See supra, at 4-5.) That the Town Board selects, month after month and year after year, prayergivers who will reliably speak in the voice of Christianity, and so places itself behind a single creed. That in offering those sectarian prayers, the Board's chosen clergy members repeatedly call on individuals, prior to participating in local governance, to join in a form of worship that may be at odds with their own beliefs. That the clergy thus put some residents to the unenviable choice of either pretending to pray like the majority or declining to join its communal activity, at the very moment of petitioning their elected leaders. That the practice thus divides the citizenry, creating one class that shares the Board's own evident religious beliefs and another (far smaller) class that does not. And that the practice also alters a dissenting citizen's relationship with her government, making her religious difference salient when she seeks only to engage her elected representatives as would any other citizen. None of this means that Greece's town hall must be religion- or prayer-free. "[W]e are a religious people," Marsh observed, 463 U. S., at 792, and prayer draws some warrant from tradition in a town hall, as well as in Congress or a state legislature, see supra, at 8-9. What the circumstances here demand is the recognition that we are a pluralistic people too. When citizens of all faiths come to speak to each other and their elected representatives in a legislative session, the government must take especial care to ensure that the prayers they hear will seek to include, rather than serve to divide. No more is required — but that much is crucial — to treat every citizen, of whatever religion, as an equal participant in her government. And contrary to the majority's (and Justice Alito's) view, see ante, at 13-14; ante, at 4-7, that is not difficult to do. If the Town Board had let its chaplains know that they should speak in nonsectarian terms, common to diverse religious groups, then no one would have valid grounds for complaint. See Joyner v. Forsyth County, 653 F. 3d 341, 347 (CA4 2011) (Wilkinson, J.) (Such prayers show that "those of different creeds are in the end kindred spirits, united by a respect paid higher providence and by a belief in the importance of religious faith"). Priests and ministers, rabbis and imams give such invocations all the time; there is no great mystery to the project. (And providing that guidance would hardly have caused the Board to run afoul of the idea that "[t]he First Amendment is not a majority rule," as the Court (headspinningly) suggests, ante, at 14; what does that is the Board's refusal to reach out to members of minority religious groups.) Or if the Board preferred, it might have invited clergy of many faiths to serve as chaplains, as the majority notes that Congress does. See ante, at 10-11. When one month a clergy member refers to Jesus, and the next to Allah or Jehovah — as the majority hopefully though counterfactually suggests happened here, see ante, at 10-11, 15 — the government does not identify itself with one religion or align itself with that faith's citizens, and the effect of even sectarian prayer is transformed. So Greece had multiple ways of incorporating prayer into its town meetings — reflecting all the ways that prayer (as most of us know from daily life) can forge common bonds, rather than divide. See also ante, at 4 (Breyer, J., dissenting). But Greece could not do what it did: infuse a participatory government body with one (and only one) faith, so that month in and month out, the citizens appearing before it become partly defined by their creed — as those who share, and those who do not, the community's majority religious belief. In this country, when citizens go before the government, they go not as Christians or Muslims or Jews (or what have you), but just as Americans (or here, as Grecians). That is what it means to be an equal citizen, irrespective of religion. And that is what the Town of Greece precluded by so identifying itself with a single faith.III How, then, does the majority go so far astray, allowing the Town of Greece to turn its assemblies for citizens into a forum for Christian prayer? The answer does not lie in first principles: I have no doubt that every member of this Court believes as firmly as I that our institutions of government belong equally to all, regardless of faith. Rather, the error reflects two kinds of blindness. First, the majority misapprehends the facts of this case, as distinct from those characterizing traditional legislative prayer. And second, the majority misjudges the essential meaning of the religious worship in Greece's town hall, along with its capacity to exclude and divide. The facts here matter to the constitutional issue; indeed, the majority itself acknowledges that the requisite inquiry — a "fact-sensitive" one — turns on "the setting in which the prayer arises and the audience to whom it is directed." Ante, at 19. But then the majority glides right over those considerations — at least as they relate to the Town of Greece. When the majority analyzes the "setting" and "audience" for prayer, it focuses almost exclusively on Congress and the Nebraska Legislature, see ante, at 6-8, 10-11, 15-16, 19-20; it does not stop to analyze how far those factors differ in Greece's meetings. The majority thus gives short shrift to the gap — more like, the chasm — between a legislative floor session involving only elected officials and a town hall revolving around ordinary citizens. And similarly the majority neglects to consider how the prayers in Greece are mostly addressed to members of the public, rather than (as in the forums it discusses) to the lawmakers. "The District Court in Marsh," the majority expounds, "described the prayer exercise as 'an internal act' directed at the Nebraska Legislature's 'own members.' " Ante, at 19 (quoting Chambers v. Marsh, 504 F. Supp., at 588); see ante, at 20 (similarly noting that Nebraska senators "invoke[d] spiritual inspiration entirely for their own benefit" and that prayer in Congress is "religious worship for national representatives" only). Well, yes, so it is in Lincoln, and on Capitol Hill. But not in Greece, where as I have described, the chaplain faces the Town's residents — with the Board watching from on high — and calls on them to pray together. See supra, at 10, 12. And of course — as the majority sidesteps as well — to pray in the name of Jesus Christ. In addressing the sectarian content of these prayers, the majority again changes the subject, preferring to explain what happens in other government bodies. The majority notes, for example, that Congress "welcom[es] ministers of many creeds," who commonly speak of "values that count as universal," ante, at 11, 15; and in that context, the majority opines, the fact "[t]hat a prayer is given in the name of Jesus, Allah, or Jehovah . . . does not remove it from" Marsh's protection, see ante, at 15. But that case is not this one, as I have shown, because in Greece only Christian clergy members speak, and then mostly in the voice of their own religion; no Allah or Jehovah ever is mentioned. See supra, at 13-14. So all the majority can point to in the Town's practice is that the Board "maintains a policy of nondiscrimination," and "represent[s] that it would welcome a prayer by any minister or layman who wishe[s] to give one." Ante, at 17-18. But that representation has never been publicized; nor has the Board (except for a few months surrounding this suit's filing) offered the chaplain's role to any non-Christian clergy or layman, in either Greece or its environs; nor has the Board ever provided its chaplains with guidance about reaching out to members of other faiths, as most state legislatures and Congress do. See 732 F. Supp. 2d 195, 197-203 (WDNY 2010); National Conference of State Legislatures, Inside the Legislative Process: Prayer Practices 5-145, 5-146 (2002); ante, at 5 (Breyer, J., dissenting). The majority thus errs in assimilating the Board's prayer practice to that of Congress or the Nebraska Legislature. Unlike those models, the Board is determinedly — and relentlessly — noninclusive.5 And the month in, month out sectarianism the Board chose for its meetings belies the majority's refrain that the prayers in Greece were "ceremonial" in nature. Ante, at 16, 19, 21, 23. Ceremonial references to the divine surely abound: The majority is right that "the Pledge of Allegiance, inaugural prayer, or the recitation of 'God save the United States and this honorable Court' " each fits the bill. Ante, at 19. But prayers evoking "the saving sacrifice of Jesus Christ on the cross," "the plan of redemption that is fulfilled in Jesus Christ," "the life and death, resurrection and ascension of the Savior Jesus Christ," the workings of the Holy Spirit, the events of Pentecost, and the belief that God "has raised up the Lord Jesus" and "will raise us, in our turn, and put us by His side"? See App. 56a, 88a-89a, 99a, 123a, 129a, 134a. No. These are statements of profound belief and deep meaning, subscribed to by many, denied by some. They "speak of the depths of [one's] life, of the source of [one's] being, of [one's] ultimate concern, of what [one] take[s] seriously without any reservation." P. Tillich, The Shaking of the Foundations 57 (1948). If they (and the central tenets of other religions) ever become mere ceremony, this country will be a fundamentally different — and, I think, poorer — place to live. But just for that reason, the not-so-implicit message of the majority's opinion--"What's the big deal, anyway?"--is mistaken. The content of Greece's prayers is a big deal, to Christians and non-Christians alike. A person's response to the doctrine, language, and imagery contained in those invocations reveals a core aspect of identity — who that person is and how she faces the world. And the responses of different individuals, in Greece and across this country, of course vary. Contrary to the majority's apparent view, such sectarian prayers are not "part of our expressive idiom" or "part of our heritage and tradition," assuming the word "our" refers to all Americans. Ante, at 19. They express beliefs that are fundamental to some, foreign to others — and because that is so they carry the ever-present potential to both exclude and divide. The majority, I think, assesses too lightly the significance of these religious differences, and so fears too little the "religiously based divisiveness that the Establishment Clause seeks to avoid." Van Orden v. Perry, 545 U. S. 677, 704 (2005) (Breyer, J., concurring in judgment). I would treat more seriously the multiplicity of Americans' religious commitments, along with the challenge they can pose to the project — the distinctively American project — of creating one from the many, and governing all as united.IV In 1790, George Washington traveled to Newport, Rhode Island, a longtime bastion of religious liberty and the home of the first community of American Jews. Among the citizens he met there was Moses Seixas, one of that congregation's lay officials. The ensuing exchange between the two conveys, as well as anything I know, the promise this country makes to members of every religion. Seixas wrote first, welcoming Washington to Newport. He spoke of "a deep sense of gratitude" for the new American Government--"a Government, which to bigotry gives no sanction, to persecution no assistance — but generously affording to All liberty of conscience, and immunities of Citizenship: deeming every one, of whatever Nation, tongue, or language, equal parts of the great governmental Machine." Address from Newport Hebrew Congregation (Aug. 17, 1790), in 6 PGW 286, n. 1 (M. Mastromarino ed. 1996). The first phrase there is the more poetic: a government that to "bigotry gives no sanction, to persecution no assistance." But the second is actually the more startling and transformative: a government that, beyond not aiding persecution, grants "immunities of citizenship" to the Christian and the Jew alike, and makes them "equal parts" of the whole country. Washington responded the very next day. Like any successful politician, he appreciated a great line when he saw one — and knew to borrow it too. And so he repeated, word for word, Seixas's phrase about neither sanctioning bigotry nor assisting persecution. But he no less embraced the point Seixas had made about equality of citizenship. "It is now no more," Washington said, "that toleration is spoken of, as if it was by the indulgence of one class of people" to another, lesser one. For "[a]ll possess alike ... immunities of citizenship." Letter to Newport Hebrew Congregation (Aug. 18, 1790), in 6 PGW 285. That is America's promise in the First Amendment: full and equal membership in the polity for members of every religious group, assuming only that they, like anyone "who live[s] under [the Government's] protection[,] should demean themselves as good citizens." Ibid. For me, that remarkable guarantee means at least this much: When the citizens of this country approach their government, they do so only as Americans, not as mem-bers of one faith or another. And that means that even in a partly legislative body, they should not confront government-sponsored worship that divides them along religious lines. I believe, for all the reasons I have given, that the Town of Greece betrayed that promise. I therefore respectfully dissent from the Court's decision.FOOTNOTESFootnote 1* The Chief Justice and Justice Alito join this opinion in full. Justice Scalia and Justice Thomas join this opinion except as to Part II-B.FOOTNOTESFootnote 1 See Assn. of Statisticians of Am. Religious Bodies, C. Grammich et al., 2010 U. S. Religion Census: Religious Congregations & Membership Study 400-401 (2012).Footnote 2 It appears that there is one non-Christian house of worship, a Buddhist temple, within the town's borders, but it was not listed in the town directory. 732 F. Supp. 2d, at 203. Although located within the town's borders, the temple has a Rochester mailing address. And while the respondents "each lived in the Town more than thirty years, neither was personally familiar with any mosques, synagogues, temples, or other non-Christian places of worship within the Town." Id., at 197.Footnote 3 For example, when a rabbi first delivered a prayer at a session of the House of Representatives in 1860, he appeared "in full rabbinic dress, 'piously bedecked in a white tallit and a large velvet skullcap,' " and his prayer "invoked several uniquely Jewish themes and repeated the Biblical priestly blessing in Hebrew." See Brief for Nathan Lewin as Amicus Curiae 9. Many other rabbis have given distinctively Jewish prayers, id., at 10, and n. 3, and distinctively Islamic, Buddhist, and Hindu prayers have also been delivered, see ante, at 10-11.Footnote 4 See, e.g., prayer practice of Saginaw City Council in Michigan, described in Letter from Freedom from Religion Foundation to City Manager, Saginaw City Council (Jan. 31, 2014), online at http://media.mlive.com / saginawnews_impact / other / Saginaw % 20prayer%20at%20meetings%20letter.pdf (all Internet materials as visited May 2, 2014, and available in Clerk of Court's case file); prayer practice of Cobb County commissions in Georgia, described in Pelphrey v. Cobb County, 410 F. Supp. 2d 1324 (ND Ga. 2006).Footnote 5 For example, at the most recent Presidential inauguration, a minister faced the assembly of onlookers on the National Mall and began with those very words. 159 Cong. Rec. S183, S186 (Jan. 22, 2013).Footnote 6 See generally Brief for Robert E. Palmer as Amicus Curiae (Nebraska Legislature chaplain at issue in Marsh); e.g., id., at 11 (describing his prayers as routinely referring "to Christ, the Bible, [and] holy days"). See also Chambers v. Marsh, 504 F. Supp. 585, 590, n. 12 (Neb. 1980) ("A rule of the Nebraska Legislature requires that 'every member shall be present within the Legislative Chamber during the meetings of the Legislature . . . unless excused . . . .' Unless the excuse for nonattendance is deemed sufficient by the legislature, the 'presence of any member may be compelled, if necessary, by sending the Sergeant at Arms' " (alterations in original)).Footnote 7 G. Wills, Inventing America: Jefferson's Declaration of Independence 46 (1978).Footnote 8 N. Cousins, In God We Trust: The Religious Beliefs and Ideas of the American Founding Fathers 4-5, 13 (1958).Footnote 9 M. Puls, Samuel Adams: Father of the American Revolution 160 (2006).Footnote 10 Letter to Abigail Adams (Sept. 16, 1774), in C. Adams, Familiar Letters of John Adams and His Wife Abigail Adams, During the Revolution 37 (1876).Footnote 11 Ibid.Footnote 12 See G. Wills, supra, at 46; J. Miller, Sam Adams 85, 87 (1936); I. Stoll, Samuel Adams: A Life 7, 134-135 (2008).Footnote 13 C. Adams, supra, at 37.Footnote 14 Ibid.Footnote 15 Ibid.; see W. Wells, 2 The Life and Public Services of Samuel Adams 222-223 (1865); J. Miller, supra, at 320; E. Burnett, The Continental Congress 40 (1941); M. Puls, supra, at 161.Footnote 16 First Prayer of the Continental Congress, 1774, online at http:// chaplain.house.gov/archive/continental.html.Footnote 17 1 Annals of Cong. 24-25 (1789); R. Cord, Separation of Church and State: Historical Fact and Current Fiction 23 (1982).Footnote 18 1 Annals of Cong. 247, 424; R. Labunski, James Madison and the Struggle for the Bill of Rights 240-241 (2006).FOOTNOTESFootnote 1 This Court has never squarely addressed these barriers to the incorporation of the Establishment Clause. When the issue was first presented in Everson v. Board of Ed. of Ewing, the Court casually asserted that "the Fourteenth Amendment [has been] interpreted to make the prohibitions of the First applicable to state action abridging religious freedom. There is every reason to give the same application and broad interpretation to the 'establishment of religion' clause." Id., at 15 (footnote omitted). The cases the Court cited in support of that proposition involved the Free Exercise Clause — which had been incorporated seven years earlier, in Cantwell v. Connecticut — not the Establishment Clause. 330 U. S., at 15, n. 22 (collecting cases). Thus, in the space of a single paragraph and a nonresponsive string citation, the Everson Court glibly effected a sea change in constitutional law. The Court's inattention to these doctrinal questions might be explained, although not excused, by the rise of popular conceptions about "separation of church and state" as an "American" constitutional right. See generally P. Hamburger, Separation of Church and State 454-463 (2002); see also id., at 391-454 (discussing the role of nativist sentiment in the campaign for "separation" as an American ideal).Footnote 2 See, e.g., Del. Const., Art. I, §1 (1831) ("[N]o man shall, or ought to be compelled to attend any religious worship, to contribute to the erection or support of any place of worship, or to the maintenance of any ministry, against his own free will and consent"); Me. Const., Art. I, §3 (1820) ("[N]o one shall be hurt, molested or restrained in his person, liberty or estate, for worshiping God in the manner and season most agreeable to the dictates of his own conscience"); Mo. Const., Art. I, §10 (1865) ("[N]o person can be compelled to erect, support, or attend any place of worship, or maintain any minister of the Gospel or teacher of religion"); R. I. Const., Art. I, §3 (1842) ("[N]o man shall be compelled to frequent or to support any religious worship, place, or ministry what-ever, except in fulfillment of his own voluntary contract"); Vt. Const., Ch. I, §3 (1777) ("[N]o man ought, or of right can be compelled to attend any religious worship, or erect, or support any place of worship, or maintain any minister, contrary to the dictates of his conscience").FOOTNOTESFootnote 1 That principle meant as much to the founders as it does today. The demand for neutrality among religions is not a product of 21st century "political correctness," but of the 18th century view — rendered no less wise by time — that, in George Washington's words, "[r]eligious controversies are always productive of more acrimony and irreconciliable hatreds than those which spring from any other cause." Letter to Edward Newenham (June 22, 1792), in 10 Papers of George Washington: Presidential Series 493 (R. Haggard & M. Mastromarino eds. 2002) (hereinafter PGW). In an age when almost no one in this country was not a Christian of one kind or another, Washington consistently declined to use language or imagery associated only with that religion. See Brief for Paul Finkelman et al. as Amici Curiae 15-19 (noting, for example, that in revising his first inaugural address, Washington deleted the phrase "the blessed Religion revealed in the word of God" because it was understood to denote only Christianity). Thomas Jefferson, who followed the same practice throughout his life, explained that he omitted any reference to Jesus Christ in Virginia's Bill for Establishing Religious Freedom (a precursor to the Establishment Clause) in order "to comprehend, within the mantle of [the law's] protection, the Jew and the Gentile, the Christian and Mahometan, the Hindoo, and infidel of every denomination." 1 Writings of Thomas Jefferson 62 (P. Ford ed. 1892). And James Madison, who again used only nonsectarian language in his writings and addresses, warned that religious proclamations might, "if not strictly guarded," express only "the creed of the majority and a single sect." Madison's "Detached Memoranda," 3 Wm. & Mary Quarterly 534, 561 (1946).Footnote 2 Because Justice Alito questions this point, it bears repeating. I do not remotely contend that "prayer is not allowed" at participatory meetings of "local government legislative bodies"; nor is that the "logical thrust" of any argument I make. Ante, at 7-8. Rather, what I say throughout this opinion is that in this citizen-centered venue, government officials must take steps to ensure — as none of Greece's Board members ever did — that opening prayers are inclusive of different faiths, rather than always identified with a single religion.Footnote 3 For ease of reference and to avoid confusion, I refer to Justice Kennedy's opinion as "the majority." But the language I cite that appears in Part II-B of that opinion is, in fact, only attributable to a plurality of the Court.Footnote 4 Leaders of several Baptist and other Christian congregations have explained to the Court that "many Christians believe ... that their freedom of conscience is violated when they are pressured to participate in government prayer, because such acts of worship should only be performed voluntarily." Brief for Baptist Joint Committee for Religious Liberty et al. as Amici Curiae 18.Footnote 5 Justice Alito similarly falters in attempting to excuse the Town Board's constant sectarianism. His concurring opinion takes great pains to show that the problem arose from a sort of bureaucratic glitch: The Town's clerks, he writes, merely "did a bad job in compiling the list" of chaplains. Ante, at 6; see ante, at 1-3. Now I suppose one question that account raises is why in over a decade, no member of the Board noticed that the clerk's list was producing prayers of only one kind. But put that aside. Honest oversight or not, the problem remains: Every month for more than a decade, the Board aligned itself, through its prayer practices, with a single religion. That the concurring opinion thinks my objection to that is "really quite niggling," ante, at 4, says all there is to say about the difference between our respective views.

18 N. Y. 2d 268, 220 N. E. 2d 783, appeal dismissed.Osmond K. Fraenkel and Stanley Fleishman for appellant.Frank S. Hogan for appellee.Horace S. Manges for the American Book Publishers Council, Inc., as amicus curiae, in support of appellant.PER CURIAM.The motion to dismiss is granted and the appeal is dismissed as moot.MR. JUSTICE BRENNAN would reverse the judgment of the lower court.MR. CHIEF JUSTICE WARREN, dissenting.I dissent from the dismissal of this appeal as moot for the reasons stated in my dissent in Jacobs v. New York, ante, p. 431. In my view, the question presented by this case is extremely important and requires a decision on the merits by this Court. I would note probable jurisdiction and set the case for argument.MR. JUSTICE DOUGLAS dissents. (See dissent set forth in Jacobs v. New York, ante, at 436.)

In this major school desegregation litigation in Kansas City, Missouri, in which various desegregation remedies were granted against the State of Missouri and other defendants, the plaintiff class was represented by a Kansas City lawyer (Benson) and by the NAACP Legal Defense and Educational Fund, Inc. (LDF). Benson and the LDF requested attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976 (42 U.S.C. 1988), which provides with respect to such litigation that the court, in its discretion, may allow the prevailing party, other than the United States, "a reasonable attorney's fee as part of the costs." In calculating the hourly rates for Benson's, his associates', and the LDF attorneys' fees, the District Court took account of delay in payment by using current market rates rather than those applicable at the time the services were rendered. Both Benson and the LDF employed numerous paralegals, law clerks, and recent law graduates, and the court awarded fees for their work based on market rates, again using current rather than historic rates in order to compensate for the delay in payment. The Court of Appeals affirmed.Held: 1. The Eleventh Amendment does not prohibit enhancement of a fee award under 1988 against a State to compensate for delay in payment. That Amendment has no application to an award of attorney's fees, ancillary to a grant of prospective relief, against a State, Hutto v. Finney, , and it follows that the same is true for the calculation of the amount of the fee. An adjustment for delay in payment is an appropriate factor in determining what constitutes a reasonable attorney's fee under 1988. Pp. 278-284. 2. The District Court correctly compensated the work of paralegals, law clerks, and recent law graduates at the market rates for their services, rather than at their cost to the attorneys. Clearly, "a reasonable attorney's fee" as used in 1988 cannot have been meant to compensate only work performed personally by members of the bar. Rather, that term must refer to a reasonable fee for an attorney's work product, and thus must take into account the work not only of attorneys, but also the work of paralegals and the like. A reasonable attorney's fee under 1988 is one calculated on the basis of rates and practices prevailing in the relevant market and one that grants the successful civil rights plaintiff a "fully compensatory fee," comparable to what "is traditional with attorneys compensated by a fee-paying client." In this case, where the practice in the relevant market is to bill the work of paralegals separately, the District Court's decision to award separate compensation for paralegals, law clerks, and recent law graduates at prevailing market rates was fully in accord with 1988. Pp. 284-289. 838 F.2d 260, affirmed.BRENNAN, J., delivered the opinion of the Court, in which WHITE, BLACKMUN, STEVENS, and KENNEDY, JJ., joined, and in Parts I and III of which O'CONNOR and SCALIA, JJ., joined. O'CONNOR, J., filed an opinion concurring in part and dissenting in part, in which SCALIA, J., joined, and in which REHNQUIST, C. J., joined in part, post, p. 289. REHNQUIST, C. J., filed a dissenting opinion, post, p. 295. MARSHALL, J., took no part in the consideration or decision of the case.Bruce Farmer, Assistant Attorney General of Missouri, argued the cause for petitioners. With him on the brief were William L. Webster, Attorney General, Terry Allen, Deputy Attorney General, and Michael L. Boicourt and Bart A. Matanic, Assistant Attorneys General.Jay Topkis argued the cause for respondents. With him on the brief were Julius LeVonne Chambers, Charles Stephen Ralston, Arthur A. Benson II, Russell E. Lovell II, and Theodore M. Shaw.* [Footnote *] John A. DeVault III filed a brief for the National Association of Legal Assistants, Inc., as amicus curiae urging affirmance.JUSTICE BRENNAN delivered the opinion of the Court.This is the attorney's fee aftermath of major school desegregation litigation in Kansas City, Missouri. We granted certiorari, , to resolve two questions relating to fees litigation under 90 Stat. 2641, as amended, 42 U.S.C. 1988. First, does the Eleventh Amendment prohibit enhancement of a fee award against a State to compensate for delay in payment? Second, should the fee award compensate the work of paralegals and law clerks by applying the market rate for their work? IThis litigation began in 1977 as a suit by the Kansas City Missouri School District (KCMSD), the school board, and the children of two school board members, against the State of Missouri and other defendants. The plaintiffs alleged that the State, surrounding school districts, and various federal agencies had caused and perpetuated a system of racial segregation in the schools of the Kansas City metropolitan area. They sought various desegregation remedies. KCMSD was subsequently realigned as a nominal defendant, and a class of present and future KCMSD students was certified as plaintiffs. After lengthy proceedings, including a trial that lasted 7 1/2 months during 1983 and 1984, the District Court found the State of Missouri and KCMSD liable, while dismissing the suburban school districts and the federal defendants. It ordered various intradistrict remedies, to be paid for by the State and KCMSD, including $260 million in capital improvements and a magnet-school plan costing over $200 million. See Jenkins v. Missouri, 807 F.2d 657 (CA8 1986) (en banc), cert. denied, ; Jenkins v. Missouri, 855 F.2d 1295 (CA8 1988), cert. granted, .The plaintiff class has been represented, since 1979, by Kansas City lawyer Arthur Benson and, since 1982, by the NAACP Legal Defense and Educational Fund, Inc. (LDF). Benson and the LDF requested attorney's fees under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. 1988.

Mr. Clayton F. Jennings, Lansing, Mich., for petitioner. Mr. Edmund E. Shepherd, Lansing, Mich., for respondent. Mr. Justice FRANKFURTER delivered the opinion of the Court. On December 29, 1945, petitioner Joy Oil Company, Ltd., purchased 1, 500,000 gal- [ Joy Oil Co. v. State Tax Commission of Michigan ], 287] lons of gasoline from Mid-West Refineries, Inc., of Grand Rapids, Michigan. The bills of lading issued by the railroad to which the gasoline was delivered were marked 'For Export Only,' but the gasoline was consigned to petitioner at Detroit. In order to secure the benefits of lower export freight rates and exemption from the federal transportation and manufacturers' excise taxes, petitioner furnished Mid-West Refineries and the railroad with prescribed forms certifying that the gasoline was purchased for export. Rail shipments were begun in January and completed in February of 1946. As the gasoline reached Detroit it was accumulated in storage tanks leased by petitioner at Dearborn. On April 1, 1947, the city of Dearborn assessed an ad valorem property tax on the gasoline, all of which, except 20,000 gallons, shipped to Canada by truck over the Ambassador Bridge, had then been in the Dearborn tanks for fifteen months. Shipment by truck was halted by a federal regulation prohibiting the transportation of inflammables over any international bridge, and petitioner apparently chose not to ship the gasoline by rail across the Detroit River. In July of 1947, petitioner began to ship it to Canada by water; the last tanker load departed on August 22, 1947. Petitioner explains the delay as due to inability to obtain shipping space at any earlier date. Petitioner resisted payment of the tax on the ground that it infringed Art. I, 10, cl. 2, of the Constitution. The Tax Commission of Michigan sustained Dearborn's assessment of the tax, and the Supreme Court of Michigan affirmed. 321 Mich. 335, 32 N.W.2d 472. We granted certiorari because the case presented a sufficiently important question in the accommodation of State and Federal interests under the Constitution. . , 288] The circumstances which tended, at the time when the tax was assessed, to establish petitioner's intent to export the gasoline and the fact that the gasoline was eventually exported are not enough, by themselves, to confer immunity from local taxation. See, e.g., Cornell v. Coyne, ; Empresa Siderurgica v. County of Merced, . Nor is it enough that by the rail shipment to Detroit one step in the process of exportation had been taken or that a part of the total bulk had already departed for its foreign destination. It is of course true that commodities destined for shipment by water must be transshipped at the water's edge and so may require a brief period of storage at that point which will not be deemed a delay sufficient to interrupt the continuity of the export process. Carson Petroleum Corp. v. Vial, , see Southern Pacific Terminal Co. v. Interstate Commerce Comm., ; Texas & N.O.R. Co. v. Sabine Tram Co., . But here the period of storage at Dearborn was so long as to preclude holding that the first step toward exportation would inevitably be followed by others. See, by way of contrast, Hughes Bros. Timber Co. v. Minnesota, . While in storage, the gasoline might have been diverted to domestic markets without disruption of any existing arrangement for its transshipment and without even breach of any contractual commitment to a foreign purchaser. Neither the character of the property nor any event equivalent to its redelivery to a common carrier made export certain for all practical purposes. See Richfield Oil Corp. v. State Board, , 163. The Export-Import Clause was meant to confer immunity from local taxation upon property being exported, not to relieve property eventually to be exported from its share of the cost of local services. See Coe v. Errol, , 289] , 478. The fifteen-month delay at Dearborn barred immunity of petitioner's gasoline from the taxing power of the municipality. Affirmed. Mr. Chief Justice VINSON, with whom Mr. Justice DOUGLAS and Mr. Justice JACKSON join, dissenting. The Court holds that fifteen months' delay in transshipment of the gasoline in question was so long that continuity of the process of exportation was broken, because during that period it might have been diverted to domestic markets. I think that this rationale and the conclusion which follows therefrom mark a substantial and unwarranted departure from our previous decisions in this field. As I understand it, the Court's opinion reflects the view that a long delay in transshipment makes it uncertain whether the gasoline will eventually be exported, and further, that a delay of fifteen months makes it possible for this Court to say as a matter of law that the uncertainty is so great that the process of exportation has ceased, whatever the reason for the delay. But the Court concedes that petitioner intended to export the gasoline at the time the tax was imposed, and petitioner's uncontradicted evidence shows that it had that intent throughout the period of delay, which was caused by its inability to procure water transportation. That intent was manifested in a number of ways. The bills of lading by which the gasoline moved from Grandville and Alma, Michigan, to Dearborn, a Great Lakes port, were marked 'For export to Canada'; petitioner certified that the gasoline was to be exported in order to secure an exemption under the federal manufacturer's excise tax and to qualify for lower freight rates accorded exports; it transported 50,000 gallons of the gasoline by truck over the Ambassador Bridge , 290] into Canada until a federal regulation closed the bridge to inflammable materials; and finally, petitioner exported all of the gasoline to Canada when shipping space became available. There is nothing in the record to indicate either that petitioner at any time deviated from that expressed intent, or that the delay was not due solely to lack of shipping space. The Court is in the anomalous position, therefore, of holding as a matter of law that a fifteen-month delay in transshipment breaks the 'stream of export' because of the resulting uncertainty that the goods will ultimately be exported, when all of the evidence is to the effect that the shipper's intent to export has never waivered; that exportation was as certain as of the date of the tax as it had been fifteen months before. The Court has previously considered the question to be quite a different one. We have held that'The character of the shipment in such a case depends upon all the evidential circumstances looking to what the owner has done in the preparation for the journey and in carrying it out. The mere power of the owner to divert the shipment already started does not take it out of interstate commerce if the other facts show that the journey has already begun in good faith and temporary interruption of the passage is reasonable and in furtherance of the intended transportation, as in the Champlain case (Champlain v. Brattleboro, A.L.R. 1195).' Hughes Brothers Timber Co. v. Minnesota, 1926, , 172. This test was quoted with approval by Mr. Chief Justice Hughes in State of Minnesota v. Blasius, 1933, , 37, and he added, 'The question is always one of substance, and in each case it is necessary to consider the particular occasion or purpose of the interruption during which the tax is sought to be levied.' See also to the same effect, , 291] Champlain Realty Co. v. Town of Brattleboro, 1922, , 43 S. Ct. 146, 149, 25 A.L.R. 1195; Carson Petroleum Co. v. Vial, 1929, , 293; United States v. Erie R. Co., 1929, , 53. The Court now refuses to look at any circumstances except the delay-not even the reason for the delay. It is true that petitioner could have moved the gasoline more quickly had it used the more expensive all-rail service. But in almost every case of delay a quicker method of moving the goods might have been devised. No doubt the logs held up by low water in Coe v. Errol, 1886, , could have been drawn overland by mules or oxen. And it would have been possible, though not practical, for oil to have been transferred directly from tank cars to waiting ships in Carson Petroleum Co. v. Vial, supra, yet this Court found that the delay necessarily attendant upon the accumulation of oil in tanks at the waterfront to await the arrival of ships did not constitute interruption of the process of exportation. The delay was 'reasonable and in furtherance of the intended transportation.' (.) Concededly, he gasoline here involved was in the process of exportation when taxed unless the delay was alone enough to break the stream of export. It had been started on its journey with every indication that it was to be transshipped for export. If actual exportation had followed its arrival in Dearborn by a few days or weeks, there is no question but that it would have been a commodity in the process of exportation and thus exempt from tax. In this situation, the Court has always, until today, applied 'a liberal construction of what is continuity of the journey, in cases where the court finds from the circumstances that export trade has been actually intended and carried through.' Carson Petroleum Co. v. Vial, supraat pages 105-106, 49 S.Ct. at page 295. But the Court now treats as immaterial the fact that the process of exportation had , 292] started, which has always been considered the decisive factor, Cornell v. Coyne, 1904, ; Empresa Siderurgica v. County of Merced, 1949, , and assumes that a delay of fifteen months conclusively demonstrates that certainty of exportation had been undermined. It is almost always possible in cases of this kind that the owner of the goods may change his mind before exportation is actually carried out, as Mr. Justice Holmes pointed out in A. G. Spaulding & Brothers v. Edwards, 1923, , 486. Delay undoubtedly increases the possibility, but it does not work such a change as a matter of law. The question, instead, is that previously pointed out, namely, whether 'the journey has already begun in good faith and (whether) temporary interruption of the passage is reasonable and in furtherance of the intended transportation.' Hughes Brothers Timber Co. v. Minnesota, supra. The result is that the Court, without consideration of the fact that the gasoline had been started on its journey with the intent that it be transshipped for immediate export to Canada, holds that fifteen months' unavoidable delay is so productive of uncertainty that the process of exportation ceases as a matter of law. It might be pointed out that in the leading case of Coe v. Errol, supra, logs being floated down a river were held up by low water for about a year, but this Court did not consider that delay enough to break the continuity of the interstate journey. The line now seems to be drawn somewhere between twelve and fifteen months, whatever the other circumstances. Such an arbitrary demarcation is hardly consonant with 'the liberal protection that hitherto (exports) have received.' A. G. Spaulding & Bros. v. Edwards, supraat page 70, 43 S.Ct. at page 486. I would adhere to the test set out in our previous decisions: whether the delay was reasonable under all the circumstances and in furtherance of the intended transportation.

At petitioner's criminal trial, a witness' alibi evidence was struck as a sanction for petitioner's failure to file a notice of alibi in accordance with Oregon's statutory requirement, and petitioner himself was not allowed to give alibi testimony. Following petitioner's conviction the appellate court, affirming, rejected his constitutional challenge to the state statute, which grants no discovery rights to criminal defendants. Held: Reciprocal discovery is required by fundamental fairness and it is insufficient that although the statute does not require it, the State might grant reciprocal discovery in a given case. In the absence of fair notice that petitioner will have an opportunity to discover the State's rebuttal witnesses, petitioner cannot, consistently with due process requirements, be required to reveal his alibi defense. Pp. 473-479. Reversed and remanded; see 6 Ore. App. 391, 487 P.2d 1380.MARSHALL, J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BURGER, C. J., concurred in the result. DOUGLAS, J., filed an opinion concurring in the result, post, p. 479.J. Marvin Kuhn argued the cause and filed a brief for petitioner.W. Michael Gillette, Assistant Attorney General of Oregon, argued the cause for respondent. With him on the briefs were Lee Johnson, Attorney General, John W. Osburn, Solicitor General, and John H. Clough, Assistant Attorney General.* [Footnote *] Jerome B. Falk, Jr., filed a brief for Virgil Jenkins as amicus curiae urging reversal. MR. JUSTICE MARSHALL delivered the opinion of the Court.This case involves important questions concerning the right of a defendant forced to comply with a "notice-of-alibi" rule to reciprocal discovery.In Williams v. Florida, , we upheld the constitutionality of Florida's notice-of-alibi rule which required criminal defendants intending to rely on an alibi defense to notify the prosecution of the place at which they claimed to be at the time in question, and of the names and addresses of witnesses they intended to call in support of the alibi.1 In so holding, however, we emphasized that the constitutionality of such rules might depend on "whether the defendant enjoys reciprocal discovery against the State." Id., at 82 n. 11.2 In the case presently before us, Oregon prevented a criminal defendant from introducing any evidence to support his alibi defense as a sanction for his failure to comply with a notice-of-alibi rule which, on its face, made no provision for reciprocal discovery.3 The case thus squarely presents the question left open in Williams, and we granted certiorari so that this question could be resolved. .We hold that the Due Process Clause of the Fourteenth Amendment forbids enforcement of alibi rules unless reciprocal discovery rights are given to criminal defendants. Since the Oregon statute did not provide for reciprocal discovery, it was error for the court below to enforce it against petitioner, and his conviction must be reversed.4 IOn May 22, 1970, petitioner was indicted under Ore. Rev. Stat. 474.020 for unlawful sale of narcotics. The sale allegedly occurred the previous day. At trial, after the State had concluded its case, petitioner called one Colleen McFadden who testified that on the night in question, she had been with petitioner at a drive-in movie. The prosecutor thereupon brought to the judge's attention petitioner's failure to file a notice of alibi, and after hearing argument the trial judge granted the State's motion to strike McFadden's testimony because of this failure. Petitioner himself then took the stand and attempted to testify that he was at the drive-in with McFadden at the time when the State alleged the sale occurred. Once again, however, the State objected and the trial judge again refused to permit the evidence.Petitioner was convicted as charged and sentenced to 18 months' imprisonment. On appeal, the Oregon Court of Appeals rejected petitioner's contentions that the Oregon statute was unconstitutional in the absence of reciprocal discovery rights and that the exclusion sanction abridged his right to testify in his own behalf and his right to compulsory process. 6 Ore. App. 391, 487 P.2d 1380 (1971). In an unreported order, the Oregon Supreme Court denied petitioner's petition to review. See App. 21.IINotice-of-alibi rules, now in use in a large and growing number of States,5 are based on the proposition that the ends of justice will best be served by a system of liberal discovery which gives both parties the maximum possible amount of information with which to prepare their cases and thereby reduces the possibility of surprise at trial. See, e. g., Brennan, The Criminal Prosecution: Sporting Event or Quest for Truth?, 1963 Wash. U. L. Q. 279; American Bar Association Project on Standards for Criminal Justice, Discovery and Procedure Before Trial 23-43 (Approved Draft 1970); Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L. J. 1149 (1960). The growth of such discovery devices is a salutary development which, by increasing the evidence available to both parties, enhances the fairness of the adversary system. As we recognized in Williams, nothing in the Due Process Clause precludes States from experimenting with systems of broad discovery designed to achieve these goals. "The adversary system of trial is hardly an end in itself; it is not yet a poker game in which players enjoy an absolute right always to conceal their cards until played. We find ample room in that system, at least as far as `due process' is concerned, for [a rule] which is designed to enhance the search for truth in the criminal trial by insuring both the defendant and the State ample opportunity to investigate certain facts crucial to the determination of guilt or innocence." 399 U.S., at 82 (footnote omitted).Although the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded, but cf. Brady v. Maryland, , it does speak to the balance of forces between the accused and his accuser. Cf. In re Winship, .6 The Williams Court was therefore careful to note that "Florida law provides for liberal discovery by the defendant against the State, and the notice-of-alibi rule is itself carefully hedged with reciprocal duties requiring state disclosure to the defendant." 399 U.S., at 81 (footnote omitted). The same cannot be said of Oregon law. As the State conceded at oral argument, see Tr. of Oral Arg. 19, Oregon grants no discovery rights to criminal defendants, and, indeed, does not even provide defendants with bills of particulars.7 More significantly, Oregon, unlike Florida, has no provision which requires the State to reveal the names and addresses of witnesses it plans to use to refute an alibi defense.8 We do not suggest that the Due Process Clause of its own force requires Oregon to adopt such provisions. Cf. United States v. Augenblick, ; Cicenia v. Lagay, . But we do hold that in the absence of a strong showing of state interests to the contrary, discovery must be a two-way street. The State may not insist that trials be run as a "search for truth" so far as defense witnesses are concerned, while maintaining "poker game" secrecy for its own witnesses.9 It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State.Indeed, neither the respondent nor the Oregon Court of Appeals contests these principles. Nor does the State suggest any significant governmental interests which might support the lack of reciprocity. Instead, respondent has chosen to rest its case on a procedural point. While conceding that Oregon law fails to provide for reciprocal discovery on its face, the State contends that if petitioner had given notice of his alibi defense, the state courts might have read the Oregon statute as requiring the State to give the petitioner the names and addresses of state witnesses used to refute the alibi defense. Since petitioner failed to give notice, his alibi defense was not permitted and there were, therefore, no state rebuttal witnesses whose testimony tended to disprove the alibi. Since no such testimony was introduced, respondent argues that Oregon's willingness to permit reciprocal discovery remains untested. The State says, in effect, that petitioner should not be permitted to litigate the reciprocity issue in the abstract in federal court after bypassing an opportunity to contest the issue concretely before the state judiciary.10 It is, of course, true that the Oregon courts are the final arbiters of the State's own law, and we cannot predict what the state court might have done had it been faced with a defendant who had given the required notice of alibi and then sought reciprocal discovery rights. But it is this very lack of predictability which ultimately defeats the State's argument. At the time petitioner was forced to decide whether or not to reveal his alibi defense to the prosecution, he had to deal with the statute as written with no way of knowing how it might subsequently be interpreted. Nor could he retract the information once provided should it turn out later that the hoped-for reciprocal discovery rights were not granted.For this reason, had petitioner challenged the lack of reciprocity by giving notice and then demanding discovery, he would have done so at considerable risk. To be sure, the state court might have construed the Oregon statutes so as to save the constitutionality of the notice requirement and granted reciprocal discovery rights. But the state court would also have had the option of reading state law as precluding reciprocal discovery. If the court adopted this latter alternative, it would have had to strike down the notice-of-alibi requirement. But petitioner would have had only a Pyrrhic victory, since once having given the State his alibi information, he could not have retracted it. Thus, under this scenario, even though the notice-of-alibi rule would have been invalidated, the State would still have had the benefit of nonreciprocal discovery rights in petitioner's case - the very result which petitioner wishes to avoid by challenging the rule.The statute as written did not provide for reciprocal discovery, and petitioner cannot be faulted for taking the legislature at its word.11 Indeed, even at this stage of the proceedings, the respondent has made no representation that the State would in fact provide reciprocal discovery rights to a defendant who complied with the notice-of-alibi scheme. Respondent says only that the State might have granted such rights.12 But the State cannot constitutionally force compliance with its scheme on the basis of a totally unsubstantiated possibility that the statute might be read in a manner contrary to its plain language. Thus, in the absence of fair notice that he would have an opportunity to discover the State's rebuttal witnesses, petitioner cannot be compelled to reveal his alibi defense.Since the trial court erred and since there is a substantial possibility that its error may have infected the verdict, the conviction must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. Reversed and remanded. THE CHIEF JUSTICE concurs in the result.

A Nebraska statute provides that any person who intends to withdraw ground water from any well located in the State and transport it for use in an adjoining State must obtain a permit from the Nebraska Department of Water Resources. If the Director of Water Resources finds that such withdrawal is reasonable, not contrary to the conservation and use of ground water, and not otherwise detrimental to the public welfare, he will grant the permit if the State in which the water is to be used grants reciprocal rights to withdraw and transport ground water from that State for use in Nebraska. Appellants jointly own contiguous tracts of land in Nebraska and Colorado, on which a well on the Nebraska tract pumps ground water for irrigation of both the Nebraska and Colorado tracts, but they never applied for the permit required by the statute. Appellee brought an action in a Nebraska state court to enjoin appellants from transferring the water across the border without a permit. Rejecting the defense that the statute imposed an undue burden on interstate commerce, the trial court granted the injunction. The Nebraska Supreme Court affirmed.Held: 1. Ground water is an article of commerce and therefore subject to congressional regulation. Pp. 945-954. (a) Although appellee's claimed greater ownership interest in ground water than in certain other natural resources may not be irrelevant to Commerce Clause analysis, it does not remove Nebraska ground water from such scrutiny, since appellee's argument is still based on the legal fiction of state ownership. Pp. 945-952. (b) The States' interests in conserving and preserving scarce water resources in the arid Western States clearly have an interstate dimension. The agricultural markets supplied by irrigated farms provide the archtypical example of commerce among the States for which the Framers of the Constitution intended to authorize federal regulation. Here, the multistate character of the aquifer underlying appellants' tracts of land, as well as parts of Texas, New Mexico, Oklahoma, and Kansas, demonstrates that there is a significant federal interest in conservation as well as in fair allocation of diminishing water resources. Pp. 952-954. 2. The reciprocity requirement of the Nebraska statute violates the Commerce Clause as imposing an impermissible burden on interstate commerce. While the first three conditions set forth in the statute for granting a permit - that the withdrawal of the ground water be reasonable, not contrary to the conservation and use of ground water, and not otherwise detrimental to the public welfare - do not on their faces impermissibly burden interstate commerce, the reciprocity provision operates as an explicit barrier to commerce between Nebraska and its adjoining States. Nebraska therefore has the initial burden of demonstrating a close fit between the reciprocity requirement and its asserted local purpose. Such requirement, when superimposed on the first three restrictions, fails to clear this initial hurdle, since there is no evidence that it is narrowly tailored to the conservation and preservation rationale. Thus, it does not survive the "strictest scrutiny" reserved for facially discriminatory legislation. Pp. 954-958. 3. Congress has not granted the States permission to engage in ground water regulation that would otherwise be impermissible. Although there are 37 federal statutes and a number of interstate compacts demonstrating Congress' deference to state water law, they do not indicate that Congress wished to remove federal constitutional restraints on such state law. Neither the fact that Congress has chosen not to create a federal water law to govern water rights involved in federal water projects nor the fact that Congress has been willing to let the States settle their differences over water rights through mutual agreement, constitutes persuasive evidence that Congress consented to the unilateral imposition of unreasonable burdens on commerce. Pp. 958-960. 208 Neb. 703, 305 N. W. 2d 614, reversed and remanded.STEVENS, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, and POWELL, JJ., joined. REHNQUIST, J., filed a dissenting opinion, in which O'CONNOR, J., joined, post, p. 961.Richard A. Dudden argued the cause and filed a brief for appellants.G. Roderic Anderson, Assistant Attorney General of Nebraska, argued the cause for appellee. With him on the brief was Paul L. Douglas, Attorney General, and Steven C. Smith, Special Assistant Attorney General.* [Footnote *] Briefs of amici curiae urging affirmance were filed by Jeff Bingaman, Attorney General, and Richard A. Simms, Jeffrey L. Fornaciari, and Stephen D. Dillon, Special Assistant Attorneys General, for the State of New Mexico; by John P. Frank and William L. Lutz for the Elephant Butte Irrigation District et al.; by Jon T. Brown, William B. Bonvillian, and Stephen E. Roady for the National Agricultural Lands Center et al.; and by Patrick A. Parenteau for the National Wildlife Federation et al. Briefs of amici curiae were filed for the State of California by George Deukmejian, Attorney General, R. H. Connett, Assistant Attorney General, and Roderick Walston and Gregory K. Wilkinson, Deputy Attorneys General; for the State of Colorado et al. by J. D. MacFarlane, Attorney General of Colorado, Richard F. Hennessey, Deputy Attorney General, Mary J. Mullarkey, Solicitor General, and Dennis M. Montgomery and William A. Paddock, Assistant Attorneys General, Steven F. Freudenthal, Attorney General of Wyoming, Walter Perry, Senior Assistant Attorney General, and Lawrance J. Wolfe, Assistant Attorney General, Robert T. Stephan, Attorney General of Kansas, Mark D. Meierhenry, Attorney General of South Dakota, John Ashcroft, Attorney General of Missouri, Richard H. Bryan, Attorney General of Nevada, and George Campbell, Deputy Attorney General, Robert O. Wefald, Attorney General of North Dakota, and David L. Wilkinson, Attorney General of Utah; and for the City of El Paso by Harry M. Reasoner and Charles J. Meyers. JUSTICE STEVENS delivered the opinion of the Court.Appellants challenge the constitutionality of a Nebraska statutory restriction on the withdrawal of ground water from any well within Nebraska intended for use in an adjoining State. The challenge presents three questions under the Commerce Clause:1 (1) whether ground water is an article of commerce and therefore subject to congressional regulation; (2) whether the Nebraska restriction on the interstate transfer of ground water imposes an impermissible burden on commerce; and (3) whether Congress has granted the States permission to engage in ground water regulation that otherwise would be impermissible. Appellants jointly own contiguous tracts of land in Chase County, Nebraska, and Phillips County, Colorado. A well physically located on the Nebraska tract pumps ground water for irrigation of both the Nebraska tract and the Colorado tract. Previous owners of the land registered the well with the State of Nebraska in 1971, but neither they nor the present owners applied for the permit required by Neb. Rev. Stat. 46-613.01 (1978). That section provides:"Any person, firm, city, village, municipal corporation or any other entity intending to withdraw ground water from any well or pit located in the State of Nebraska and transport it for use in an adjoining state shall apply to the Department of Water Resources for a permit to do so. If the Director of Water Resources finds that the withdrawal of the ground water requested is reasonable, is not contrary to the conservation and use of ground water, and is not otherwise detrimental to the public welfare, he shall grant the permit if the state in which the water is to be used grants reciprocal rights to withdraw and transport ground water from that state for use in the State of Nebraska." Appellee brought this action to enjoin appellants from transferring the water across the border without a permit.2 The trial court rejected the defense that the statute imposed an undue burden on interstate commerce and granted the injunction. The Nebraska Supreme Court affirmed. 208 Neb. 703, 305 N. W. 2d 614 (1981). It held that, under Nebraska law, ground water is not "a market item freely transferable for value among private parties, and therefore [is] not an article of commerce." Id., at 705, 305 N. W. 2d, at 616.3 The Chief Justice, while agreeing that the statutory criteria governing the transfer of water to an adjoining State did not violate the Commerce Clause, dissented on the narrow ground that appellee violated both the Federal and Nebraska Constitutions by attempting "to absolutely prohibit the transfer of water, without regard to its need or availability, based solely upon the acts of another state over which citizens of this state have no control." Id., at 713, 305 N. W. 2d, at 620.IIn holding that ground water is not an article of commerce, the Nebraska Supreme Court and appellee cite as controlling precedent Hudson County Water Co. v. McCarter, . In that case a New Jersey statute prohibited the interstate transfer of any surface water located within the State.4 The Hudson County Water Co. nevertheless contracted with New York City to supply one of its boroughs with water from the Passaic River in New Jersey. The State Attorney General sought from the New Jersey courts an injunction against fulfillment of the contract. Over the water company's objections that the statute impaired the obligation of contract, took property without just compensation, interfered with interstate commerce, denied New York citizens the privileges afforded New Jersey citizens, and denied New York citizens the equal protection of the laws, the injunction was granted. This Court, in an opinion by Justice Holmes, affirmed. Most of the Court's opinion addresses the just compensation claim. Justice Holmes refused to ground the Court's holding, as did the New Jersey state courts,5 on "the more or less attenuated residuum of title that the State may be said to possess." Id., at 355. For the statute was justified as a regulatory measure that, on balance, did not amount to a taking of property that required just compensation. Putting aside the "problems of irrigation," the State's interest in preserving its waters was well within its police power.6 That interest was not dependent on any demonstration that the State's water resources were inadequate for present or future use. The State "finds itself in possession of what all admit to be a great public good, and what it has it may keep and give no one a reason for its will." Id., at 357.Having disposed of the just compensation claim, Justice Holmes turned very briefly to the other constitutional challenges. In one paragraph, he rejected the Contract Clause claim. In the remaining paragraph of the opinion, he rejected all the other defenses. His treatment of the Commerce Clause challenge consists of three sentences: "A man cannot acquire a right to property by his desire to use it in commerce among the States. Neither can he enlarge his otherwise limited and qualified right to the same end. The case is covered in this respect by Geer v. Connecticut, [(1896)]." Ibid.While appellee relies upon Hudson County, appellants rest on our summary affirmance of a three-judge District Court judgment in City of Altus v. Carr, 255 F. Supp. 828 (WD Tex.), summarily aff'd, . The city of Altus is located near the southern border of Oklahoma. Large population increases rendered inadequate its source of municipal water. It consequently obtained from the owners of land in an adjoining Texas county the contractual right to pump the ground water underlying that land and to transport it across the border. The Texas Legislature thereafter enacted a statute that forbade the interstate exportation of ground water without the approval of that body.7 The city filed suit in Federal District Court, claiming that the statute violated the Commerce Clause.The city relied upon West v. Kansas Natural Gas Co., , which invalidated an Oklahoma statute that prevented the interstate transfer of natural gas produced within the State,8 and Pennsylvania v. West Virginia, , which invalidated a West Virginia statute that accorded a preference to the citizens of that State in the purchase of natural gas produced therein.9 The Texas Attorney General defended the statute on two grounds. First, he asserted that its purpose was to conserve and protect the State's water resources by regulating the withdrawal of ground water. The District Court rejected that defense because similar conservation claims had met defeat in West v. Kansas Natural Gas Co., supra, and Pennsylvania v. West Virginia, supra.10 Second, the State argued that the statute regulated ground water and that ground water is not an article of commerce, citing Geer v. Connecticut, , and Hudson County Water Co. v. McCarter, . The court rejected this argument since the statute directly regulated the interstate transportation of water that had been pumped from the ground, and under Texas law such water was an article of commerce. The court then had little difficulty in concluding that the statute imposed an impermissible burden on interstate commerce.11 In summarily affirming the District Court in City of Altus, we did not necessarily adopt the court's reasoning. Our affirmance indicates only our agreement with the result reached by the District Court. Metromedia, Inc. v. San Diego, . That result is not necessarily inconsistent with the Nebraska Supreme Court's holding in this case. For Texas law differs significantly from Nebraska law regarding the rights of a surface owner to ground water that he has withdrawn. According to the District Court in City of Altus, the "rule in Texas was that an owner of land could use all of the percolating water he could capture from the wells on his land for whatever beneficial purposes he needed it, on or off the land, and could likewise sell it to others for use on or off the land and outside the basin where produced, just as he could sell any other species of property." 255 F. Supp., at 833, n. 8. Since ground water, once withdrawn, may be freely bought and sold in States that follow this rule, in those States ground water is appropriately regarded as an article of commerce. In Nebraska the surface owner has no comparable interest in ground water. As explained by the Nebraska Supreme Court, "`the owner of land is entitled to appropriate subterranean waters found under his land, but he cannot extract and appropriate them in excess of a reasonable and beneficial use upon the land which he owns, especially if such use is injurious to others who have substantial rights to the waters, and if the natural underground supply is insufficient for all owners, each is entitled to a reasonable proportion of the whole.'" 208 Neb., at 705, 305 N. W. 2d, at 617 (quoting Olson v. City of Wahoo, 124 Neb. 802, 811, 248 N. W. 304, 308 (1933)).City of Altus, however, is inconsistent with Hudson County. For in the latter case the Court found Geer v. Connecticut, supra, to be controlling on the Commerce Clause issue. Geer, which sustained a Connecticut ban on the interstate transportation of game birds captured in that State, was premised on the theory that the State owned its wild animals and therefore was free to qualify any ownership interest it might recognize in the persons who capture them. One such restriction is a prohibition against interstate transfer of the captured animals. This theory of public ownership was advanced as a defense in City of Altus. The State argued that it owned all subterranean water and therefore could recognize ownership in the surface owner who withdraws the water, but restrict that ownership to use of the water within the State. That theory, upon which the Commerce Clause issue in Hudson County was decided, was rejected by the District Court in City of Altus.12 In expressly overruling Geer three years ago, this Court traced the demise of the public ownership theory and definitively recast it as "`but a fiction expressive in legal shorthand of the importance to its people that a State have power to preserve and regulate the exploitation of an important resource.'" Hughes v. Oklahoma, (quoting Toomer v. Witsell, ). See also Baldwin v. Montana Fish and Game Comm'n, ; Douglas v. Seacoast Products, Inc., . In Hughes the Court found the State's interests insufficient to sustain a ban on the interstate transfer of natural minnows seined from waters within the State.Appellee insists, however, that Nebraska water is distinguishable from other natural resources. The surface owner who withdraws Nebraska ground water enjoys a lesser ownership interest in the water than the captor of game birds in Connecticut or minnows in Oklahoma or ground water in Texas, for in Geer, Hughes, and City of Altus the States permitted intrastate trade in the natural resources once they were captured. Although appellee's greater ownership interest may not be irrelevant to Commerce Clause analysis, it does not absolutely remove Nebraska ground water from such scrutiny. For appellee's argument is still based on the legal fiction of state ownership. The fiction is illustrated by municipal water supply arrangements pursuant to which ground water is withdrawn from rural areas and transferred to urban areas. Such arrangements are permitted in Nebraska, see Metropolitan Utilities District v. Merritt Beach Co., 179 Neb. 783, 140 N. W. 2d 626 (1966), but the Nebraska Supreme Court distinguished them on the ground that the transferor was only permitted to charge as a price for the water his costs of distribution and not the value of the water itself. 208 Neb., at 708, 305 N. W. 2d, at 618. Unless demand is greater than supply, however, this reasoning does not distinguish minnows, the price of which presumably is derived from the costs of seining and of transporting the catch to market. Even in cases of shortage, in which the seller of the natural resource can demand a price that exceeds his costs, the State's rate structure that requires the price to be cost-justified is economically comparable to price regulation. A State's power to regulate prices or rates has never been thought to depend on public ownership of the controlled commodity. It would be anomalous if federal power to regulate economic transactions in natural resources depended on the characterization of the payment as compensation for distribution services, on the one hand, or as the price of goods, on the other. Cf. In re Rahrer, .The second asserted distinction is that water, unlike other natural resources, is essential for human survival. Appellee, and the amici curiae that are vitally interested in conserving and preserving scarce water resources in the arid Western States, have convincingly demonstrated the desirability of state and local management of ground water.13 But the States' interests clearly have an interstate dimension. Although water is indeed essential for human survival, studies indicate that over 80% of our water supplies is used for agricultural purposes.14 The agricultural markets supplied by irrigated farms are worldwide. They provide the archtypical example of commerce among the several States for which the Framers of our Constitution intended to authorize federal regulation. The multistate character of the Ogallala aquifer - underlying appellants' tracts of land in Colorado and Nebraska, as well as parts of Texas, New Mexico, Oklahoma, and Kansas15 - confirms the view that there is a significant federal interest in conservation as well as in fair allocation of this diminishing resource. Cf. Arizona v. California, .The Western States' interests, and their asserted superior competence, in conserving and preserving scarce water resources are not irrelevant in the Commerce Clause inquiry. Nor is appellee's claim to public ownership without significance. Like Congress' deference to state water law, see infra, at 958-960, these factors inform the determination whether the burdens on commerce imposed by state ground water regulation are reasonable or unreasonable. But appellee's claim that Nebraska ground water is not an article of commerce goes too far: it would not only exempt Nebraska ground water regulation from burden-on-commerce analysis, it would also curtail the affirmative power of Congress to implement its own policies concerning such regulation. See Philadelphia v. New Jersey, . If Congress chooses to legislate in this area under its commerce power, its regulation need not be more limited in Nebraska than in Texas and States with similar property laws. Ground water overdraft is a national problem and Congress has the power to deal with it on that scale.IIOur conclusion that water is an article of commerce raises, but does not answer, the question whether the Nebraska statute is unconstitutional. For the existence of unexercised federal regulatory power does not foreclose state regulation of its water resources, of the uses of water within the State, or indeed, of interstate commerce in water. Southern Pacific Co. v. Arizona ex rel. Sullivan, ; United States v. South-Eastern Underwriters Assn., ; Cooley v. Board of Wardens, 12 How. 299, 319 (1852). Determining the validity of state statutes affecting interstate commerce requires a more careful inquiry:"Where the statute regulates evenhandedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits. If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities." Pike v. Bruce Church, Inc., (citation omitted). The only purpose that appellee advances for 46-613.01 is to conserve and preserve diminishing sources of ground water. The purpose is unquestionably legitimate and highly important,16 and the other aspects of Nebraska's ground water regulation demonstrate that it is genuine. Appellants' land in Nebraska is located within the boundaries of the Upper Republican Ground Water Control Area, which was designated as such by the Director of the Nebraska Department of Water Resources based upon a determination that there is "[a]n inadequate ground water supply to meet present or reasonably foreseeable needs for beneficial use of such water supply." Neb. Rev. Stat. 46-658(1) (Supp. 1981); see App. 56-60. Pursuant to 46-666(1), the Upper Republican Natural Resources District has promulgated special rules and regulations governing ground water withdrawal and use. See App. 61-82. The rules and regulations define as "critical" those townships in the control area in which the annual decline of the ground water table exceeds a fixed percentage; appellants' Nebraska tract is located within a critical township. The rules and regulations require the installation of flow meters on every well within the control area, specify the amount of water per acre that may be used for irrigation, and set the spacing that is required between wells. They also strictly limit the intrastate transfer of ground water: transfers are only permitted between lands controlled by the same ground water user, and all transfers must be approved by the District Board of Directors. Id., at 68-69.The State's interest in conservation and preservation of ground water is advanced by the first three conditions in 46-613.01 for the withdrawal of water for an interstate transfer. Those requirements are "that the withdrawal of the ground water requested is reasonable, is not contrary to the conservation and use of ground water, and is not otherwise detrimental to the public welfare." Although Commerce Clause concerns are implicated by the fact that 46-613.01 applies to interstate transfers but not to intrastate transfers, there are legitimate reasons for the special treatment accorded requests to transport ground water across state lines. Obviously, a State that imposes severe withdrawal and use restrictions on its own citizens is not discriminating against interstate commerce when it seeks to prevent the uncontrolled transfer of water out of the State. An exemption for interstate transfers would be inconsistent with the ideal of evenhandedness in regulation. At least in the area in which appellants' Nebraska tract is located, the first three standards of 46-613.01 may well be no more strict in application than the limitations upon intrastate transfers imposed by the Upper Republican Natural Resources District.Moreover, in the absence of a contrary view expressed by Congress, we are reluctant to condemn as unreasonable, measures taken by a State to conserve and preserve for its own citizens this vital resource in times of severe shortage. Our reluctance stems from the "confluence of [several] realities." Hicklin v. Orbeck, . First, a State's power to regulate the use of water in times and places of shortage for the purpose of protecting the health of its citizens - and not simply the health of its economy - is at the core of its police power. For Commerce Clause purposes, we have long recognized a difference between economic protectionism, on the one hand, and health and safety regulation, on the other. See H. P. Hood & Sons v. Du Mond, . Second, the legal expectation that under certain circumstances each State may restrict water within its borders has been fostered over the years not only by our equitable apportionment decrees, see, e. g., Wyoming v. Colorado, , but also by the negotiation and enforcement of interstate compacts. Our law therefore has recognized the relevance of state boundaries in the allocation of scarce water resources. Third, although appellee's claim to public ownership of Nebraska ground water cannot justify a total denial of federal regulatory power, it may support a limited preference for its own citizens in the utilization of the resource. See Hicklin v. Orbeck, supra, at 533-534. In this regard, it is relevant that appellee's claim is logically more substantial than claims to public ownership of other natural resources. See supra, at 950-951. Finally, given appellee's conservation efforts, the continuing availability of ground water in Nebraska is not simply happenstance; the natural resource has some indicia of a good publicly produced and owned in which a State may favor its own citizens in times of shortage. See Reeves, Inc. v. Stake, ; cf. Philadelphia v. New Jersey, 437 U.S., at 627-628, and n. 6; Baldwin v. Montana Fish and Game Comm'n, . A facial examination of the first three conditions set forth in 46-613.01 does not, therefore, indicate that they impermissibly burden interstate commerce. Appellants, indeed, seem to concede their reasonableness.Appellants, however, do challenge the requirement that "the state in which the water is to be used grants reciprocal rights to withdraw and transport ground water from that state for use in the State of Nebraska" - the reciprocity provision that troubled the Chief Justice of the Nebraska Supreme Court. Because Colorado forbids the exportation of its ground water,17 the reciprocity provision operates as an explicit barrier to commerce between the two States. The State therefore bears the initial burden of demonstrating a close fit between the reciprocity requirement and its asserted local purpose. Hughes v. Oklahoma, 441 U.S., at 336; Dean Milk Co. v. City of Madison, .The reciprocity requirement fails to clear this initial hurdle. For there is no evidence that this restriction is narrowly tailored to the conservation and preservation rationale. Even though the supply of water in a particular well may be abundant, or perhaps even excessive, and even though the most beneficial use of that water might be in another State, such water may not be shipped into a neighboring State that does not permit its water to be used in Nebraska. If it could be shown that the State as a whole suffers a water shortage, that the intrastate transportation of water from areas of abundance to areas of shortage is feasible regardless of distance, and that the importation of water from adjoining States would roughly compensate for any exportation to those States, then the conservation and preservation purpose might be credibly advanced for the reciprocity provision. A demonstrably arid State conceivably might be able to marshal evidence to establish a close means-end relationship between even a total ban on the exportation of water and a purpose to conserve and preserve water. Appellee, however, does not claim that such evidence exists. We therefore are not persuaded that the reciprocity requirement - when superimposed on the first three restrictions in the statute - significantly advances the State's legitimate conservation and preservation interest; it surely is not narrowly tailored to serve that purpose. The reciprocity requirement does not survive the "strictest scrutiny" reserved for facially discriminatory legislation. Hughes v. Oklahoma, supra, at 337.18 IIIAppellee's suggestion that Congress has authorized the States to impose otherwise impermissible burdens on interstate commerce in ground water is not well founded. The suggestion is based on 37 statutes in which Congress has deferred to state water law, and on a number of interstate compacts dealing with water that have been approved by Congress. Abstracts of the relevant sections of the 37 statutes relied upon by appellee were submitted in connection with the Hearings on S. 1275 before the Subcommittee on Irrigation and Reclamation of the Senate Committee on Interior and Insular Affairs, 88th Cong., 2d Sess., 302-310 (1964). Appellee refers the Court to that submission but only discusses 8 of the Reclamation Act of 1902, 32 Stat. 390. That section, it turns out, is typical of the other 36 statutes. It contains two parts. The first provides that "nothing in this Act shall be construed as affecting or intended to affect or to in any way interfere with the laws of any State or Territory relating to the control, appropriation, use, or distribution of water used in irrigation." Such language defines the extent of the federal legislation's pre-emptive effect on state law. New England Power Co. v. New Hampshire, ; Lewis v. BT Investment Managers, Inc., . The second part provides that "the Secretary of the Interior, in carrying out the provisions of this Act, shall proceed in conformity with such laws." Such language mandates that questions of water rights that arise in relation to a federal project are to be determined in accordance with state law. See California v. United States, .The interstate compacts to which appellee refers are agreements among States regarding rights to surface water. See The Council of State Governments, Interstate Compacts and Agencies 25-29, 31-32 (1979). Appellee emphasizes a compact between Nebraska and Colorado involving water rights to the South Platte River, see 44 Stat. (part 2) 195, and a compact among Nebraska, Colorado, and Kansas involving water rights to the Republican River, see 57 Stat. 86.Although the 37 statutes and the interstate compacts demonstrate Congress' deference to state water law,19 they do not indicate that Congress wished to remove federal constitutional constraints on such state laws. The negative implications of the Commerce Clause, like the mandates of the Fourteenth Amendment, are ingredients of the valid state law to which Congress has deferred. Neither the fact that Congress has chosen not to create a federal water law to govern water rights involved in federal projects, nor the fact that Congress has been willing to let the States settle their differences over water rights through mutual agreement,20 constitutes persuasive evidence that Congress consented to the unilateral imposition of unreasonable burdens on commerce. In the instances in which we have found such consent, Congress' "`intent and policy' to sustain state legislation from attack under the Commerce Clause" was "`expressly stated.'" New England Power Co. v. New Hampshire, supra, at 343 (quoting Prudential Ins. Co. v. Benjamin, ).21 Cf. Merrion v. Jicarilla Apache Tribe, , n. 21 (1982).The reciprocity requirement of Neb. Rev. Stat. 46-613.01 (1978) violates the Commerce Clause. We leave to the state courts the question whether the invalid portion is severable. The judgment of the Nebraska Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered.

Employees of the Erie Lackawanna Railroad Co., who were furloughed and never recalled, filed suit against the railroad, their union, and subordinate organizations and officers of the union, alleging that the railroad had wrongfully discharged them and that the union defendants had been "guilty of gross nonfeasance and hostile discrimination" in refusing to process their claims. They sought damages from the railroad, the union defendants, or both. The District Court dismissed the complaint against the railroad for failure to exhaust the Railway Labor Act's administrative remedies and for lack of diversity jurisdiction, and against the union for failure adequately to allege a breach of duty and because the plaintiffs could have processed their own grievances. The Court of Appeals reversed with respect to the action against the union defendants, holding that the complaint adequately alleged a breach of the union's duty of fair representation. It affirmed dismissal of the complaint against the railroad, but held that on remand the employees could maintain their action against the railroad if they amended the complaint to allege that the employer was implicated in the union's discrimination. Held: 1. The complaint against the union was sufficient to survive a motion to dismiss. The claim for breach of the union's duty of fair representation is a discrete claim, being distinct from the right of individual employees under the Railway Labor Act to pursue their employer before the Adjustment Board. Pp. 27-28. 2. The union can be sued alone for breach of its duty, and it cannot complain if separate actions are brought against it and the employer for the portion of the total damages caused by each where the union and the employer have independently caused damage to the employees. Pp. 28-29. 407 F.2d 674, affirmed.Richard R. Lyman argued the cause for petitioners. With him on the brief was Clarence M. Mulholland. James P. Shea argued the cause for respondents O'Mara et al. On the brief was William B. Mahoney. Richard F. Griffin argued the cause for respondent Erie Lackawanna Railroad Co. With him on the brief were Thomas G. Rickert and Courtland R. LaVallee.MR. JUSTICE WHITE delivered the opinion of the Court.In 1960, the corporate respondent, Erie Lackawanna Railroad Company, was formed by the merger of the Erie Railroad and the Delaware, Lackawanna & Western Railroad. Thereafter, the individual respondents, former employees of the Delaware Lackawanna, continued as employees of the Erie Lackawanna until 1962, when they were furloughed; after the 1962 furlough, the respondent employees were never recalled by the railroad. Deeming the furlough a final discharge, the individual respondents brought suit in the District Court for the Western District of New York against the Erie Lackawanna and against the International Brotherhood of Firemen and Oilers, subordinate organizations within the union, and local and national officers of the union. The allegations were that the railroad had wrongfully discharged the plaintiffs in violation of 5 et seq. of the Interstate Commerce Act, 24 Stat. 380, as amended, 49 U.S.C. 5 et seq., the Railway Labor Act, 44 Stat. 577, as amended, 45 U.S.C. 151 et seq., and the agreement between the Erie Lackawanna and its employees entered into to implement the 1960 merger of the Erie and the Delaware Lackawanna; and that the union defendants had been "guilty of gross nonfeasance and hostile discrimination" in arbitrarily and capriciously refusing to process the claims of plaintiffs, who had "been replaced by `pre-merger' employees of the Erie Railroad." Damages in the sum of $160,000 were sought against the railroad, the union defendants, or both. The District Court dismissed the complaint against the railroad for failure to exhaust administrative remedies under the Railway Labor Act and for lack of diversity jurisdiction; the court dismissed the complaint against the union because the complaint failed adequately to allege a breach of duty and because the employees could have processed their own grievances.On appeal, the Court of Appeals for the Second Circuit reversed the District Court's decision with respect to the action against the union defendants. O'Mara v. Erie Lackawanna R. Co., 407 F.2d 674 (1969). The Court of Appeals held that the complaint was adequate to allege a breach by the union of its duty of fair representation subject to vindication in the District Court without resort to administrative remedies. Dismissal of the complaint against the railroad was affirmed; but on remand the individual respondents were to be granted leave to maintain their action against the railroad if they should choose to amend their complaint to allege that the employer was somehow implicated in the union's discrimination.We granted certiorari, , and we affirm the judgment of the Court of Appeals. Although the complaint was not as specific with regard to union discrimination as might have been desirable, we deem the complaint against the union sufficient to survive a motion to dismiss. As the Court of Appeals indicated, "where the courts are called upon to fulfill their role as the primary guardians of the duty of fair representation," complaints should be construed to avoid dismissals and the plaintiff at the very least "should be given the opportunity to file supplemental pleadings unless it appears `beyond doubt' that he cannot state a good cause of action." 407 F.2d, at 679. See Conley v. Gibson, . And surely it is beyond cavil that a suit against the union for breach of its duty of fair representation is not within the jurisdiction of the National Railroad Adjustment Board or subject to the ordinary rule that administrative remedies should be exhausted before resort to the courts. Glover v. St. Louis-S. F. R. Co., ; Conley v. Gibson, supra. The claim against the union defendants for the breach of their duty of fair representation is a discrete claim quite apart from the right of individual employees expressly extended to them under the Railway Labor Act to pursue their employer before the Adjustment Board.1 Neither the individual respondents nor the railroad sought review here of the Court of Appeals' judgment insofar as it sustained the dismissal of the complaint against the railroad absent allegations implicating the railroad in the union's claimed breach of duty. The petitioning union defendants, however, challenge this aspect of the Court of Appeals' decision, insisting that they may not be sued alone for breach of duty when the damage to employees had its roots in their discharge by the railroad prior to the union's alleged refusal to process grievances. Apparently fearing that if sued alone they may be forced to pay damages for which the employer is wholly or partly responsible, the petitioners claim error in the Court of Appeals' affirmance of the dismissal of the suit against the railroad. These fears are groundless. The Court of Appeals permitted the railroad to be made a party to the suit if it is properly alleged that the discharge was a consequence of the union's discriminatory conduct or that the employer was in any other way implicated in the union's alleged discriminatory action.2 If these allegations are not made and the employer is not a party defendant, judgment against petitioners can in any event be had only for those damages that flowed from their own conduct.3 Assuming a wrongful discharge by the employer independent of any discriminatory conduct by the union and a subsequent discriminatory refusal by the union to process grievances based on the discharge, damages against the union for loss of employment are unrecoverable except to the extent that its refusal to handle the grievances added to the difficulty and expense of collecting from the employer. If both the union and the employer have independently caused damage to employees, the union cannot complain if separate actions are brought against it and the employer for the portion of the total damages caused by each.Since the petitioning union defendants will not be materially prejudiced by the possible absence of the respondent railroad as a codefendant at trial and since neither the railroad nor the aggrieved employees sought review of the Court of Appeals' judgment, we have no occasion to consider whether under federal law, which governs in cases like these, the employer may always be sued with the union when a single series of events gives rise to claims against the employer for breach of contract and against the union for breach of the duty of fair representation or whether, as the Court of Appeals held, when there are no allegations tying union and employer together, the union is suable in the District Court for breach of duty but resort must be had to the Adjustment Board for a remedy against the employer. Affirmed. THE CHIEF JUSTICE would dismiss the writ of certiorari as improvidently granted.

The reimbursement amount health care providers receive for inpatient services rendered to Medicare beneficiaries is adjusted upward for hospitals that serve a disproportionate share of low-income patients. The adjustment amount is determined in part by the percentage of a hospital's patients who are eligible for Supplemental Security Income (SSI), called the SSI fraction. Each year, the Centers for Medicare & Medicaid Services (CMS) calculates the SSI fraction for an eligible hospital and submits that number to the hospital's "fiscal intermediary," a Department of Health and Human Services (HHS) contractor. The intermediary computes the reimbursement amount due and then sends the hospital a Notice of Program Reimbursement (NPR). A provider dissatisfied with the determination has a right to appeal to the Provider Reimbursement Review Board (PRRB or Board) within 180 days of receiving the NPR. 42 U. S. C. §1395oo(a)(3). By regulation, the Secretary of HHS authorized the PRRB to extend the 180-day limit, for good cause, up to three years. See 42 CFR 405.1841(b) (2007). The Baystate Medical Center — not a party here — timely appealed its SSI fraction calculation for each year from 1993 through 1996. The PRRB found that errors in CMS's methodology resulted in a systematic undercalculation of the disproportionate share adjustment and corresponding underpayments to providers. In March 2006, the Board's Baystate decision was made public. Within 180 days, respondent hospitals filed a complaint with the Board, challenging their adjustments for 1987 through 1994. Acknowledging that their challenges were more than a decade out of time, they urged that equitable tolling of the limitations period was in order due to CMS's failure to tell them about the computation error. The PRRB held that it lacked jurisdiction, reasoning that it had no equitable powers save those legislation or regulation might confer. On judicial review, the District Court dismissed the hospitals' claims. The D. C. Circuit reversed. The presumption that statutory limitations periods are generally subject to equitable tolling, the court concluded, applied to the 180-day time limit because nothing in §1395oo(a)(3) indicated that Congress intended to disallow such tolling.Held: 1. The 180-day limitation in §1395oo(a)(3) is not "jurisdictional." Pp. 6-9. (a) Unless Congress has "clearly state[d]" that a statutory limitation is jurisdictional, the restriction should be treated "as nonjurisdictional." Arbaugh v. Y & H Corp., 546 U. S. 500, 515-516. "[C]ontext, including this Court's interpretations of similar provisions in many years past," is probative of whether Congress intended a particular provision to rank as jurisdictional. Reed Elsevier, Inc. v. Muchnick, 559 U. S. ___, ___. If §1395oo(a)(3) were jurisdictional, the 180-day time limit could not be enlarged by agency or court. Section 1395oo(a)(3) hardly reveals a design to preclude any regulatory extension. The provision instructs that a provider "may obtain a hearing" by filing "a request . . . within 180 days after notice of the intermediary's final determination." It "does not speak in jurisdictional terms." Zipes v. Trans World Airlines, Inc., 455 U. S. 385, 394. This Court has repeatedly held that filing deadlines ordinarily are not jurisdictional; indeed, they have been described as "quintessential claim-processing rules." Henderson v. Shinseki, 562 U. S. ___, ___. Pp. 6-8. (b) Court-appointed amicus urges that §1395oo(a)(3) should be classified as a jurisdictional requirement based on its proximity to §§1395oo(a)(1) and (a)(2), both jurisdictional requirements, amicus asserts. But a requirement that would otherwise be nonjurisdictional does not become jurisdictional simply because it is in a section of a statute that also contains jurisdictional provisions. Gonzalez v. Thaler, 565 U. S. ___, ___. Amicus also urges that the Medicare Act's express grant of authority for the Secretary to extend the time for beneficiary appeals implies the absence of such leeway for §1395oo(a)(3)'s provider appeals. In support, amicus relies on the general rule that Congress's use of "certain language in one part of the statute and different language in another" can indicate that "different meanings were intended," Sosa v. Alvarez-Machain, 542 U. S. 692, 711, n. 9. But that interpretive guide, like other canons of construction, is "no more than [a] rul[e] of thumb" that can tip the scales when a statute could be read in multiple ways. Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253. Here, §1395oo(a)'s limitation is most sensibly characterized as nonjurisdictional. Pp. 8-9. 2. The Secretary's regulation is a permissible interpretation of §1395oo(a)(3). Pp. 10-14. (a) Congress vested in the Secretary large rulemaking authority to administer Medicare. A court lacks authority to undermine the Secretary's regime unless her regulation is "arbitrary, capricious, or manifestly contrary to the statute." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844. Here, the regulation survives inspection under that deferential standard. The Secretary brought to bear practical experience in superintending the huge program generally, and the PRRB in particular, in maintaining a three-year outer limit for intermediary determination challenges. A court must uphold her judgment as long as it is a permissible construction of the statute, even if the court would have interpreted the statute differently absent agency regulation. Pp. 10-11. (b) A presumption of equitable tolling generally applies to suits against the United States, Irwin v. Department of Veterans Affairs, but application of this presumption is not in order for §1395oo(a)(3). This Court has never applied Irwin's presumption to an agency's internal appeal deadline. The presumption was adopted in part on the premise that "[s]uch a principle is likely to be a realistic assessment of legislative intent." Irwin, 498 U. S., at 95. That premise is inapt in the context of providers' administrative appeals under the Medicare Act. For nearly 40 years the Secretary has prohibited the Board from extending the 180-day deadline, except as provided by regulation. In the six times §1395oo has been amended since 1974, Congress has left untouched the 180-day provision and the Secretary's rulemaking authority. Furthermore, the statutory scheme, which applies to sophisticated institutional providers, is not designed to be " 'unusually protective' of claimants." Bowen v. City of New York, 476 U. S. 467, 480. Nor is the scheme one "in which laymen, unassisted by trained lawyers, initiate the process." Zipes, 455 U. S., at 397. The hospitals ultimately argue that the Secretary's regulations fail to adhere to "fundamentals of fair play." FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 143. They point to 42 CFR §405.1885(b)(3), which permits reopening of an intermediary's reimbursement determination "at any time" if the determination was procured by fraud or fault of the provider. But this Court has explained that giving intermediaries more time to discover overpayments than providers have to discover underpayments may be justified by the "administrative realities" of the system: a few dozen fiscal intermediaries are charged with issuing tens of thousands of NPRs, while each provider can concentrate on a single NPR, its own. Your Home Visiting Nurse Services, Inc. v. Shalala, 525 U. S. 449, 455, 456. Pp. 11-14.642 F. 3d 1145, reversed and remanded. Ginsburg, J., delivered the opinion for a unanimous Court. Sotomayor, J., filed a concurring opinion.Opinion of the Court 568 U. S. ____ (2013)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 11-1231KATHLEEN SEBELIUS, SECRETARY OF HEALTHAND HUMAN SERVICES, PETITIONER v. AU-BURN REGIONAL MEDICAL CENTER et al.on writ of certiorari to the united states court of appeals for the district of columbia circuit[January 22, 2013] Justice Ginsburg delivered the opinion of the Court. This case concerns the time within which health care providers may file an administrative appeal from the initial determination of the reimbursement due them for inpatient services rendered to Medicare beneficiaries. Government contractors, called fiscal intermediaries, receive cost reports annually from care providers and notify them of the reimbursement amount for which they qualify. A provider dissatisfied with the fiscal intermediary's determination may appeal to an administrative body named the Provider Reimbursement Review Board (PRRB or Board). The governing statute, §602(h)(l)(D), 97 Stat. 165C. §1395oo(a)(3), sets a 180-day limit for filing appeals from the fiscal intermediary to the PRRB. By a regulation promulgated in 1974, the Secretary of the Department of Health and Human Services (HHS) authorized the Board to extend the 180-day limitation, for good cause, up to three years.1 The providers in this case are hospitals who appealed to the PRRB more than ten years after expiration of the 180-day statutory deadline. They assert that the Secretary's failure to disclose information that made the fiscal intermediary's reimbursement calculation incorrect prevented them from earlier appealing to the Board. Three positions have been briefed and argued regarding the time for providers' appeals to the PRRB. First, a Court-appointed amicus curiae has urged that the 180-day limitation is "jurisdictional," and therefore cannot be enlarged at all by agency or court. Second, the Government maintains that the Secretary has the prerogative to set an outer limit of three years for appeals to the Board. And third, the hospitals argue that the doctrine of equitable tolling applies, stopping the 180-day clock during the time the Secretary concealed the information that made the fiscal intermediary's reimbursement determinations incorrect. We hold that the statutory 180-day limitation is not "jurisdictional," and that the Secretary reasonably construed the statute to permit a regulation extending the time for a provider's appeal to the PRRB to three years. We further hold that the presumption in favor of equitable tolling does not apply to administrative appeals of the kind here at issue.I The Medicare program covers certain inpatient services that hospitals provide to Medicare beneficiaries. Providers are reimbursed at a fixed amount per patient, regardless of the actual operating costs they incur in rendering these services. But the total reimbursement amount is adjusted upward for hospitals that serve a disproportionate share of low-income patients. This adjustment is made because hospitals with an unusually high percentage of low-income patients generally have higher per-patient costs; such hospitals, Congress therefore found, should receive higher reimbursement rates. See H. R. Rep. No. 99-241, pt. 1, p. 16 (1985). The amount of the disproportionate share adjustment is determined in part by the percentage of the patients served by the hospital who are eligible for Supplemental Security Income (SSI) payments, a percentage commonly called the SSI fraction. 42 U. S. C. §1395ww(d) (2006 ed. and Supp. V). At the end of each year, providers participating in Medicare submit cost reports to contractors acting on behalf of HHS known as fiscal intermediaries. Also at year end, the Centers for Medicare & Medicaid Services (CMS) calculates the SSI fraction for each eligible hospital and submits that number to the intermediary for that hospital. Using these numbers to determine the total payment due, the intermediary issues a Notice of Program Reimbursement (NPR) informing the provider how much it will be paid for the year. If a provider is dissatisfied with the intermediary's reimbursement determination, the statute gives it the right to file a request for a hearing before the PRRB within 180 days of receiving the NPR. §1395oo(a)(3) (2006 ed.) In 1974, the Secretary promulgated a regulation, after notice and comment rulemaking, permitting the Board to extend the 180-day time limit upon a showing of good cause; the regulation further provides that "no such extension shall be granted by the Board if such request is filed more than 3 years after the date the notice of the intermediary's determination is mailed to the provider." 39 Fed. Reg. 34517 (1974) (codified in 42 CFR §405.1841(b) (2007)).2 For many years, CMS released only the results of its SSI fraction calculations and not the underlying data.3 The Baystate Medical Center — a hospital not party to this case — timely appealed the calculation of its SSI fraction for each year from 1993 through 1996. Eventually, the PRRB determined that CMS had omitted several categories of SSI data from its calculations and was using a flawed process to determine the number of low-income beneficiaries treated by hospitals. These errors caused a systematic undercalculation of the disproportionate share adjustment, resulting in underpayments to the providers. Baystate Medical Center v. Leavitt, 545 F. Supp. 2d 20, 26-30 (DC 2008); see id., at 57-58 (concluding that CMS failed to use "the best available data"). The methodological errors revealed by the Board's Baystate decision would have yielded similarly reduced payments to all providers for which CMS had calculated an SSI fraction. In March 2006, the Board's decision in the Baystate case was made public. Within 180 days, the hospitals in this case filed a complaint with the Board seeking to challenge their disproportionate share adjustments for the years 1987 through 1994. The hospitals acknowledged that their challenges, unlike Baystate's timely contest, were more than a decade out of time. But equitable tolling of the limitations period was in order, they urged, due to CMS's failure to inform the hospitals that their SSI fractions had been based on faulty data. The PRRB held that it lacked jurisdiction over the hospitals' complaint, reasoning that it had no equitable powers save those legislation or regulation might confer, and that the Secretary's regulation permitted it to excuse late appeals only for good cause, with three years as the outer limit. On judicial review, the District Court dismissed the hospitals' claims for relief, holding that nothing in the statute suggests that "Congress intended to authorize equitable tolling." 686 F. Supp. 2d 55, 70 (DC 2010). The Court of Appeals reversed. 642 F. 3d 1145 (CADC 2011). It relied on the presumption that statutory limitations periods are generally subject to equitable tolling and reasoned that " 'the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States.' " Id., at 1148 (quoting Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95-96 (1990)). The presumption applies to the 180-day time limit for provider appeals from reimbursement determinations, the Court of Appeals held, finding nothing in the statutory provision for PRRB review indicating that Congress intended to disallow equitable tolling. 642 F. 3d, at 1149-1151. We granted the Secretary's petition for certiorari, 567 U. S. ___ (2012), to resolve a conflict among the Courts of Appeals over whether the 180-day time limit in 42 U. S. C. §1395oo(a)(3) constricts the Board's jurisdiction. Compare 642 F. 3d 1145 (case below); Western Medical Enterprises, Inc. v. Heckler, 783 F. 2d 1376, 1379-1380 (CA9 1986) (180-day limit is not jurisdictional and the Secretary may extend it for good cause), with Alacare Home Health Servs., Inc. v. Sullivan, 891 F. 2d 850, 855-856 (CA11 1990) (statute of limitations is jurisdictional and the Secretary lacked authority to promulgate good-cause exception); St. Joseph's Hospital of Kansas City v. Heckler, 786 F. 2d 848, 852-853 (CA8 1986) (same). Beyond the jurisdictional inquiry,4 the Secretary asked us to determine whether the Court of Appeals erred in concluding that equitable tolling applies to providers' Medicare reimbursement appeals to the PRRB, notwithstanding the Secretary's regulation barring such appeals after three years.IIA Characterizing a rule as jurisdictional renders it unique in our adversarial system. Objections to a tribunal's jurisdiction can be raised at any time, even by a party that once conceded the tribunal's subject-matter jurisdiction over the controversy. Tardy jurisdictional objections can therefore result in a waste of adjudicatory resources and can disturbingly disarm litigants. See Henderson v. Shinseki, 562 U. S. ___, ___ (2011) (slip op., at 5); Arbaugh v. Y & H Corp., 546 U. S. 500, 514 (2006). With these untoward consequences in mind, "we have tried in recent cases to bring some discipline to the use" of the term "jurisdiction." Henderson, 562 U. S., at ___ (slip op., at 5); see also Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 90 (1998) (jurisdiction has been a "word of many, too many, meanings" (internal quotation marks omitted)). To ward off profligate use of the term "jurisdiction," we have adopted a "readily administrable bright line" for determining whether to classify a statutory limitation as jurisdictional. Arbaugh, 546 U. S., at 516. We inquire whether Congress has "clearly state[d]" that the rule is jurisdictional; absent such a clear statement, we have cautioned, "courts should treat the restriction as nonjurisdictional in character." Id., at 515-516; see also Gonzalez v. Thaler, 565 U. S. ___, ___ (2012) (slip op., at 6); Henderson, 562 U. S., at ___ (slip op., at 6). This is not to say that Congress must incant magic words in order to speak clearly. We consider "context, including this Court's interpretations of similar provisions in many years past," as probative of whether Congress intended a particular provision to rank as jurisdictional. Reed Elsevier, Inc. v. Muchnick, 559 U. S. 154, 168 (2010); see also John R. Sand & Gravel Co. v. United States, 552 U. S. 130, 133-134 (2008). We reiterate what it would mean were we to type the governing statute, 42 U. S. C. §1395oo(a)(3), "jurisdictional." Under no circumstance could providers engage PRRB review more than 180 days after notice of the fiscal intermediary's final determination. Not only could there be no equitable tolling. The Secretary's regulation providing for a good-cause extension, see supra, at 3, would fall as well. The language Congress used hardly reveals a design to preclude any regulatory extension. Section 1395oo(a)(3) instructs that a provider of services "may obtain a hearing" by the Board regarding its reimbursement amount if "such provider files a request for a hearing within 180 days after notice of the intermediary's final determination." This provision "does not speak in jurisdictional terms." Zipes v. Trans World Airlines, Inc., 455 U. S. 385, 394 (1982). Indeed, it is less "jurisdictional" in tone than the provision we held to be nonjurisdictional in Henderson. There, the statute provided that a veteran seeking Veterans Court review of the Department of Veterans Affairs' determination of disability benefits "shall file a notice of appeal . . . within 120 days." 562 U. S., at ___ (slip op., at 9) (quoting 38 U. S. C. §7266(a) (emphasis added)). Section 1395oo(a)(3), by contrast, contains neither the mandatory word "shall" nor the appellation "notice of appeal," words with jurisdictional import in the context of 28 U. S. C. §2107's limitations on the time for appeal from a district court to a court of appeals. See Bowles v. Russell, 551 U. S. 205, 214 (2007). Key to our decision, we have repeatedly held that filing deadlines ordinarily are not jurisdictional; indeed, we have described them as "quintessential claim-processing rules." Henderson, 562 U. S., at ___ (slip op., at 6); see also Scarborough v. Principi, 541 U. S. 401, 414 (2004) (filing deadline for fee applications under Equal Access to Justice Act); Kontrick v. Ryan, 540 U. S. 443, 454 (2004) (filing deadlines for objecting to debtor's discharge in bankruptcy); Honda v. Clark, 386 U. S. 484, 498 (1967) (filing deadline for claims under the Trading with the Enemy Act). This case is scarcely the exceptional one in which a "century's worth of precedent and practice in American courts" rank a time limit as jurisdictional. Bowles, 551 U. S., at 209, n. 2; cf. Kontrick, 540 U. S., at 454 (a time limitation may be emphatic, yet not jurisdictional).B Amicus urges that the three requirements in §1395oo(a) are specifications that together define the limits of the PRRB's jurisdiction. Subsection (a)(1) specifies the claims providers may bring to the Board, and subsection (a)(2) sets forth an amount-in-controversy requirement. These are jurisdictional requirements, amicus asserts, so we should read the third specification, subsection (a)(3)'s 180-day limitation, as also setting a jurisdictional requirement. Last Term, we rejected a similar proximity-based argument. A requirement we would otherwise classify as nonjurisdictional, we held, does not become jurisdictional simply because it is placed in a section of a statute that also contains jurisdictional provisions. Gonzalez, 565 U. S., at ___ (slip op., at 11); see Weinberger v. Salfi, 422 U. S. 749, 763-764 (1975) (statutory provision at issue contained three requirements for judicial review, only one of which was jurisdictional). Amicus also argues that the 180-day time limit for provider appeals to the PRRB should be viewed as jurisdictional because Congress could have expressly made the provision nonjurisdictional, and indeed did so for other time limits in the Medicare Act. Amicus notes particularly that when Medicare beneficiaries request the Secretary to reconsider a benefits determination, the statute gives them a time limit of 180 days or "such additional time as the Secretary may allow." 42 U. S. C. §1395ff(b)(1)(D)(i); see also §1395ff(b)(1)(D)(ii) (permitting Medicare beneficiary to request a hearing by the Secretary within "time limits" the Secretary "shall establish in regulations"). We have recognized, as a general rule, that Congress's use of "certain language in one part of the statute and different language in another" can indicate that "different meanings were intended." Sosa v. Alvarez-Machain, 542 U. S. 692, 711, n. 9 (2004) (internal quotation marks omitted). Amicus notes this general rule in urging that an express grant of authority for the Secretary to extend the time for beneficiary appeals implies the absence of such leeway for provider appeals. But the interpretive guide just identified, like other canons of construction, is "no more than [a] rul[e] of thumb" that can tip the scales when a statute could be read in multiple ways. Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253 (1992). For the reasons earlier stated, see supra, at 6-8, we are persuaded that the time limitation in §1395oo(a) is most sensibly characterized as a nonjurisdictional prescription. The limitation therefore does not bar the modest extension contained in the Secretary's regulation.III We turn now to the question whether §1395oo(a)(3)'s 180-day time limit for a provider to appeal to the PRRB is subject to equitable tolling.A Congress vested in the Secretary large rulemaking authority to administer the Medicare program. The PRRB may adopt rules and procedures only if "not inconsistent" with the Medicare Act or "regulations of the Secretary." 42 U. S. C. §1395oo(e). Concerning the 180-day period for an appeal to the Board from an intermediary's reimbursement determination, the Secretary's regulation implementing §1395oo, adopted after notice and comment, speaks in no uncertain terms:"A request for a Board hearing filed after [the 180-day time limit] shall be dismissed by the Board, except that for good cause shown, the time limit may be extended. However, no such extension shall be granted by the Board if such request is filed more than 3 years after the date the notice of the intermediary's determination is mailed to the provider." 42 CFR §405.1841(b) (2007). The Secretary allowed only a distinctly limited extension of time to appeal to the PRRB, cognizant that "the Board is burdened by an immense caseload," and that "procedural rules requiring timely filings are indispensable devices for keeping the machinery of the reimbursement appeals process running smoothly." High Country Home Health, Inc. v. Thompson, 359 F. 3d 1307, 1310 (CA10 2004). Imposing equitable tolling to permit appeals barred by the Secretary's regulation would essentially gut the Secretary's requirement that an appeal to the Board "shall be dismissed" if filed more than 180 days after the NPR, unless the provider shows "good cause" and requests an extension no later than three years after the NPR. A court lacks authority to undermine the regime established by the Secretary unless her regulation is "arbitrary, capricious, or manifestly contrary to the statute." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844 (1984). The Secretary's regulation, we are satisfied, survives inspection under that deferential standard. As HHS has explained, "[i]t is in the interest of providers and the program that, at some point, intermediary determinations and the resulting amount of program payment due the provider or the program become no longer open to correction." CMS, Medicare: Provider Reimbursement Manual, pt. 1, ch. 29, §2930, p. 29-73 (rev. no. 372, 2011); cf. Taylor v. Freeland & Kronz, 503 U. S. 638, 644 (1992) ("Deadlines may lead to unwelcome results, but they prompt parties to act and produce finality."). The Secretary brought to bear practical experience in superintending the huge program generally, and the PRRB in particular, in maintaining three years as the outer limit. A court must uphold the Secretary's judgment as long as it is a permissible construction of the statute, even if it differs from how the court would have interpreted the statute in the absence of an agency regulation. National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U. S. 967, 980 (2005); see also Chevron, 467 U. S., at 843, n. 11.B Rejecting the Secretary's position, the Court of Appeals relied principally on this Court's decision in Irwin, 498 U. S., at 95-96. Irwin concerned the then 30-day time period for filing suit against a federal agency under Title VII of the Civil Rights Act of 1964, 42 U. S. C. §2000e-16(c) (1988 ed.). We held in Irwin that "the same rebuttable presumption of equitable tolling applicable to suits against private defendants should also apply to suits against the United States." 498 U. S., at 95-96. Irwin itself, and equitable-tolling cases we have considered both pre- and post-Irwin, have generally involved time limits for filing suit in federal court. See, e.g., Holland v. Florida, 560 U. S. ___ (2010) (one-year limitation for filing application for writ of habeas corpus); Rotella v. Wood, 528 U. S. 549 (2000) (four-year period for filing civil RICO suit); United States v. Beggerly, 524 U. S. 38 (1998) (12-year period to bring suit under Quiet Title Act); Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U. S. 350 (1991) (one- and three-year periods for commencing civil action under §10(b) of the Securities Exchange Act of 1934); Honda v. Clark, 386 U. S. 484 (1967) (60-day period for filing suit under Trading with the Enemy Act); Kendall v. United States, 107 U. S. 123 (1883) (six-year period for filing suit in Court of Claims). Courts in those cases rendered in the first instance the decision whether equity required tolling. This case is of a different order. We have never applied the Irwin presumption to an agency's internal appeal deadline, here the time a provider has to appeal an intermediary's reimbursement determination to the PRRB. Cf. United States v. Brockamp, 519 U. S. 347, 350 (1997) (assuming, arguendo, that Irwin presumption applied to time limit for filing an administrative claim for a tax refund, but concluding based on statutory text, structure, and purpose that there was "good reason to believe that Congress did not want the equitable tolling doctrine to apply"). The presumption of equitable tolling was adopted in part on the premise that "[s]uch a principle is likely to be a realistic assessment of legislative intent." Irwin, 498 U. S., at 95. But that premise is inapt in the context of providers' administrative appeals under the Medicare Act. The Act, until 1972, provided no avenue for providers to obtain administrative or judicial review. When Congress first directed the Secretary to establish the PRRB, Congress simultaneously imposed the 180-day deadline, with no statutory exceptions. For nearly 40 years the Secretary has prohibited the Board from extending that deadline, except as provided by regulation. And until the D. C. Circuit's decision in this case, no court had ever read equitable tolling into §1395oo(a)(3) or the Secretary's implementation of that provision. Congress amended §1395oo six times since 1974, each time leaving untouched the 180-day administrative appeal provision and the Secretary's rulemaking authority. At no time did Congress express disapproval of the three-year outer time limit set by the Secretary for an extension upon a showing of good cause. See Commodity Futures Trading Comm'n v. Schor, 478 U. S. 833, 846 (1986) ("[W]hen Congress revisits a statute giving rise to a longstanding administrative interpretation without pertinent change, the congressional failure to revise or repeal the agency's interpretation is persuasive evidence that the interpretation is the one intended by Congress." (internal quotation marks omitted)). We note, furthermore, that unlike the remedial statutes at issue in many of this Court's equitable-tolling decisions, see Irwin, 498 U. S., at 91; Bowen v. City of New York, 476 U. S. 467, 480 (1986); Zipes, 455 U. S., at 398, the statutory scheme before us is not designed to be " 'unusually protective' of claimants." Bowen, 476 U. S., at 480. Nor is it one "in which laymen, unassisted by trained lawyers, initiate the process." Zipes, 455 U. S., at 397 (internal quotation marks omitted). The Medicare payment system in question applies to "sophisticated" institutional providers assisted by legal counsel, and "generally capable of identifying an underpayment in [their] own NPR within the 180-day time period specified in 42 U. S. C. §1395oo(a)(3)." Your Home Visiting Nurse Services, Inc. v. Shalala, 525 U. S. 449, 456 (1999). As repeat players who elect to participate in the Medicare system, providers can hardly claim lack of notice of the Secretary's regulations. The hospitals ultimately argue that the Secretary's regulations fail to adhere to the "fundamentals of fair play." FCC v. Pottsville Broadcasting Co., 309 U. S. 134, 143 (1940). They point, particularly, to 42 CFR §405.1885(b)(3) (2012), which permits reopening of an intermediary's reimbursement determination "at any time if it is established that such determination . . . was procured by fraud or similar fault of any party to the determination."5 We considered a similar alleged inequity in Your Home and explained that it was justified by the "administrative realities" of the provider reimbursement appeal system. 525 U. S., at 455. There are only a few dozen fiscal intermediaries and they are charged with issuing tens of thousands of NPRs, while each provider can concentrate on a single NPR, its own. Id., at 456. The Secretary, Your Home concluded, could reasonably believe that this asymmetry justifies giving the intermediaries more time to discover overpayments than the providers have to discover underpayments. Moreover, the fraud exception allowing indefinite reopening does apply to an intermediary if it "procured" a Board decision by "fraud or similar fault." Although an intermediary is not a party to its own determination, it does rank as a party in proceedings before the Board. 42 CFR §405.1843(a).6* * * We hold, in sum, that the 180-day statutory deadline for administrative appeals to the PRRB, contained in 42 U. S. C. §1395oo(a)(3), is not "jurisdictional." Therefore the Secretary lawfully exercised her rulemaking authority in providing for a three-year "good cause" extension. We further hold that the equitable tolling presumption our Irwin decision approved for suits brought in court does not similarly apply to administrative appeals of the kind here considered, and that the Secretary's regulation, 42 CFR §405.1841(b), is a permissible interpretation of the statute. The judgment of the United States Court of Appeals for the District of Columbia Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.Sotomayor, J., concurring 568 U. S. ____ (2013)No. 11-1231KATHLEEN SEBELIUS, SECRETARY OF HEALTH AND HUMAN SERVICES, PETITIONER v. AUBURN REGIONAL MEDICAL CENTER et al.on writ of certiorari to the united states court of appeals for the district of columbia circuit[January 22, 2013] Justice Sotomayor, concurring. The Court holds that the presumption in favor of equitable tolling that we adopted in Irwin v. Department of Veterans Affairs, 498 U. S. 89, 95-96 (1990), does not apply to 42 U. S. C. §1395oo(a)(3)'s nonjurisdictional 180-day deadline for health care providers to file administrative appeals with the Provider Reimbursement Review Board (PRRB), and that the Secretary's regulation limiting "good cause" extensions of that deadline to three years is a permissible interpretation of the statute. I agree with those holdings and join the Court's opinion in full. I write separately to note that the Court's decision in this case does not establish that equitable tolling principles are irrelevant to internal administrative deadlines in all, or even most, contexts. The Court is correct that our equitable tolling cases have typically involved deadlines to bring suit in federal court. Ante, at 12. But we have never suggested that the presumption in favor of equitable tolling is generally inapplicable to administrative deadlines. Cf. Henderson v. Shinseki, 562 U. S. ___, ___, n. 4 (2011) (slip op., at 12, n. 4) (noting that the Government did not dispute whether the statutory filing deadline in the Article I Veterans Court was subject to equitable tolling if the deadline was nonjurisdictional); United States v. Brockamp, 519 U. S. 347, 350-353 (1997) (assuming without deciding that the Irwin presumption applied to administrative tax refund claims but finding based on statutory text, structure, and the underlying subject matter that tolling was unavailable); see also ante, at 12 (discussing Brockamp). And we have previously applied the Irwin presumption outside the context of filing deadlines in Article III courts. See Young v. United States, 535 U. S. 43, 49-53 (2002) (applying the presumption to a limitations period in bankruptcy proceedings); cf. Zipes v. Trans World Airlines, Inc., 455 U. S. 385, 392-398 (1982) (holding that the statutory time limit for filing charges with the Equal Employment Opportunity Commission was "not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling"). In administrative settings other than the one presented here, I believe the "background principle" that limitations periods "are customarily subject to equitable tolling," Young, 535 U. S., at 49-50 (internal quotation marks omitted), may limit an agency's discretion to make filing deadlines absolute. The Court quite properly observes that the question whether equitable tolling is available turns on congressional intent. See ante, at 13. "[A] realistic assessment" of that intent, Irwin, 498 U. S., at 95, may vary by context. In this case, given the nature of the statutory scheme, which "applies to 'sophisticated' institutional providers" who are "repeat players" in the Medicare system, and the statute's history, I agree that it would distort congressional intent to presume that the PRRB's administrative deadline should be subject to equitable tolling. Ante, at 12-14 (quoting Your Home Visiting Nurse Services, Inc. v. Shalala, 525 U. S. 449, 456 (1999)). By contrast, with respect to remedial statutes designed to protect the rights of unsophisticated claimants, see ante, at 13, agencies (and reviewing courts) may best honor congressional intent by presuming that statutory deadlines for administrative appeals are subject to equitable tolling, just as courts presume comparable judicial deadlines under such statutes may be tolled. Because claimants must generally pursue administrative relief before seeking judicial review, see Woodford v. Ngo, 548 U. S. 81, 88-91 (2006), a contrary approach could have odd practical consequences and would attribute a strange intent to Congress: to protect a claimant's ability to seek judicial review of an agency's decision by making equitable tolling available, while leaving to the agency's discretion whether the same claimant may invoke equitable tolling in order to seek an administrative remedy in the first place. Even in cases where the governing statute clearly delegates to an agency the discretion to adopt rules that limit the scope of equitable exceptions to administrative deadlines, I believe "cases may arise where the equities in favor of tolling the limitations period are 'so great that deference to the agency's judgment is inappropriate.' " Bowen v. City of New York, 476 U. S. 467, 480 (1986) (quoting Mathews v. Eldridge, 424 U. S. 319, 330 (1976)). In particular, efforts by an agency to enforce tight filing deadlines in cases where there are credible allegations that filing delay was due to the agency's own misfeasance may not survive deferential review. While equitable tolling extends to circumstances outside both parties' control, the related doctrines of equitable estoppel and fraudulent concealment may bar a defendant from enforcing a statute of limitation when its own deception prevented a reasonably diligent plaintiff from bringing a timely claim. See United States v. Beggerly, 524 U. S. 38, 49-50 (1998) (Stevens, J., concurring) (noting that these doctrines are distinct); see generally 2 C. Corman, Limitation of Actions §§9.1, 9.7 (1991) (describing the doctrines). In Bowen, we applied the basic principle underlying these doctrines to an agency's conduct, as we concluded that a 60-day deadline to seek judicial review of the administrative denial of disability benefits should be tolled because the Social Security Administration's " 'secretive conduct prevent[ed] plaintiffs from knowing of a violation of rights.' " 476 U. S., at 481 (quoting New York v. Heckler, 742 F. 2d 729, 738 (CA2 1984)). While the providers in this case allege that the agency's failure to disclose information about how it calculated the Supplemental Security Income fraction prevented them from bringing timely challenges to reimbursement determinations, I am satisfied that the Secretary's 3-year good-cause exception is a reasonable accommodation of the competing interests in administrative efficiency and fairness. We would face a different case if the Secretary's regulation did not recognize an exception for good cause or defined good cause so narrowly as to exclude cases of fraudulent concealment and equitable estoppel. See ante, at 3, n. 2 (explaining that the Secretary's amended regulation limiting the scope of " 'good cause,' " 73 Fed. Reg. 30250 (2008) (codified in 42 CFR §405.1836(b) (2012)), is not before us). With these observations, I join the Court's opinion in full.FOOTNOTESFootnote 1 The agency was called the Department of Health, Education, and Welfare until 1979, but for simplicity's sake we refer to it as HHS throughout this opinion.Footnote 2 In 2008, after this case commenced, the Secretary replaced the 1974 regulation with a new prescription limiting "good cause" to "extraordinary circumstances beyond [the provider's] control (such as a natural or other catastrophe, fire, or strike)." 73 Fed. Reg. 30250 (2008) (codified in 42 CFR §405.1836(b) (2012)). The new regulation retains the strict three-year cutoff for all claims. §405.1836(c)(2). The parties agree that this case is governed by the 1974 regulation, and our opinion today addresses only that regulation.Footnote 3 In §951 of the Medicare Prescription Drug, Improvement, and Modernization Act of 2003, 117 Stat. 2427, Congress required the Secretary to furnish hospitals with the data necessary to compute their own disproportionate share adjustment. Pursuant to this congressional mandate, the Secretary has adopted procedures for turning over the SSI data to hospitals upon request. 70 Fed. Reg. 47438 (2005).Footnote 4 Because no party takes the view that the statutory 180-day time limit is jurisdictional, we appointed John F. Manning to brief and argue this position as amicus curiae. 567 U. S. ___ (2012). Amicus Manning has ably discharged his assigned responsibilities and the Court thanks him for his well-stated arguments.Footnote 5 Because neither the Secretary nor the intermediary counts as a party to the intermediary's determination, 42 CFR §405.1805, providers alone are subject to this exception to the time limitation.Footnote 6 The fraud exception apart, reopening time is limited to three years. §405.1885(a). Within that time, reopening may be sought by the intermediary, the Board, the Secretary, or the provider. Thus an intermediary determination or Board decision could not be reopened if, outside the three-year window, the Secretary discovered errors in calculating the SSI fraction that resulted in overpayments to providers.

Petitioner was convicted under 145 of the Internal Revenue Code of willfully attempting to evade his income taxes for 1945, 1946 and 1947. The Government relied on the net worth method of proof considered in Holland v. United States, ante, p. 121. Petitioner contended that, at the opening of the computation period, he had cash on hand "far in excess" of $60,000, which was not included in the Government's computation. The Government's evidence did not directly dispute this; but it did trace petitioner's finances from 1922 through 1947 and presented detailed evidence of petitioner's financial difficulties, from which the jury could readily concluded that petitioner had accumulated no such financial reserve. Held: The conviction is affirmed. Pp. 143-146. (a) The Government's detailed evidence of petitioner's financial difficulties prior to the beginning of the computation period amply justified the jury's conclusion that he had accumulated no such cash reserve as he claimed. Pp. 143-144. (b) Testimony of a government witness, on cross-examination, that he had not included any cash on hand in computing petitioner's net worth at the beginning of the computation period, because he found no evidence that petitioner had any cash on hand, was not a mere conclusion which invaded the province of the jury. Pp. 144-145. (c) There was no reversible error in the trial judge's supplemental instruction to the jury. Pp. 145-146. 207 F.2d 777, affirmed. Petitioner was convicted of an attempt to evade his federal income taxes. The Court of Appeals affirmed. 207 F.2d 777. This Court granted certiorari. . Affirmed, p. 146.Robert N. Gorman argued the cause for petitioner. With him on the brief was Stanley A. Silversteen. Jas. W. Hengelbrok entered an appearance for petitioner. Assistant Attorney General Holland argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, Marvin E. Frankel, Ellis N. Slack and David L. Luce.MR. JUSTICE CLARK delivered the opinion of the Court.This is the second in the group of four cases involving income tax prosecutions under the net worth method of proof. In this case petitioner was indicted for the years 1944 through 1947, and convicted on all counts except the first, covering the year 1944.While the discussion in Holland v. United States, ante, p. 121, is dispositive of some of the more general problems raised by this type of prosecution, petitioner here directs his fire specifically at the sufficiency of the evidence as to his opening net worth. To highlight his contention that the Government had not properly accounted for an alleged hoard of cash and bonds on hand at the beginning of the indictment period, petitioner has stipulated virtually every other net worth issue out of the case.Although petitioner's testimony as to this cash on hand vacillated,1 we conclude from a careful examination of the testimony that the largest amount claimed at the starting point was "far in excess" of $60,000. The Government's evidence, as in Holland, did not directly dispute this, but it did painstakingly trace the Friedbergs' finances from 1922 through the prosecution years. It pointed unmistakably to the conclusion that petitioner had no such hoard of cash at the starting point. This evidence, briefly outlined, was as follows: Petitioner filed no tax return for 1922, paid nominal taxes for 1923, 1924 and 1925, and, except for 1926, 1927, 1930 and 1937, when he filed nontaxable returns, he filed no returns from 1926 through 1937. He borrowed small sums of money on three occasions in 1931. In 1934, when he failed to pay $30 a month on a real estate mortgage, the mortgagee brought a foreclosure suit and petitioner was unable to meet the modest compromise terms offered him by the court. In 1936 and 1940, levies on a judgment for $13.76 were returned nulla bona. A mortgage on his former home was foreclosed in 1937, and a deficiency judgment entered for over $3,500. The writ of execution was returned "nothing found" in 1939, and petitioner then settled the judgment by paying $100 to the mortgagee in return for release form liability. In 1939, petitioner stated in an application for a loan that his total assets were $9,200, including $150 cash on hand, while his liabilities were $500. The tailoring business in which petitioner had worked since 1922 for an average pay of $50 a week was dissolved in 1941 because it could not meet its bills, and petitioner bought its assets for $650.Yet it was during these years, from the 1920's until 1941, that petitioner claimed to have accumulated "far in excess" of $60,000. We think the jury could readily have concluded that petitioner had saved no such reserve.Petitioner's other objections can be disposed of quickly. First, he contends it was error for the special agent, a witness for the Government, to give his "personal opinion" that petitioner had no cash on hand at the starting point. But this distorts what actually happened. The agent was asked on cross-examination to give a "yes or no" answer to whether in his net worth statement he had credited petitioner with any cash on hand for 1941. The agent said "there was no evidence available to show there was cash." After defense counsel's insistence that the witness answer "did you or didn't you" give credit for any cash, the court allowed the agent to explain his answer. He explained that his investigation disclosed no evidence which would permit him to credit petitioner with cash on hand in 1941 and on redirect examination he elaborated, pointing out the foreclosures and the other evidence which has been detailed above. From this, he said, he "could see no reason why [he] should ... include" any cash on hand at the starting point.This was hardly a "conclusion of the witness," which is an "ultimate issue to be decided by the jury," as petitioner claims. The agent, upon petitioner's insistence, was testifying to a negative fact: he had not included cash because he had found no evidence of cash. The evidence which he then summarized on redirect was only that which had already been introduced at the trial. It is difficult to see how he invaded the province of the jury; nor do we see how petitioner's question could have been answered otherwise.Finally, error is asserted in the trial judge's final instruction to the jury, which was given some three to four hours after it had begun its deliberations. Petitioner contends that the instruction called upon the jury to compromise the issues.2 It may be that "compromise" in its literal sense, if used alone, would leave improper connotations. Though its use here was unfortunate, we do not think it misled the jury. We note that no objection was made to any of the instructions, nor was any of petitioner's oral argument devoted to them a week later on motion for a new trial. In fact, petitioner specifically disclaimed any intent to make the instruction now attacked a ground for a new trial. This is persuasive evidence that he did not originally consider this section of the charge prejudicial; and since the remaining instructions were fair and negatived any inference that a compromise verdict was permissible, we are inclined to agree. In the face of this record, we can hardly conclude that this error is sufficient ground for reversal. Affirmed.

Held: A conviction by a nonunanimous six-person jury in a state criminal trial for a nonpetty offense, as contemplated by provisions of the Louisiana Constitution and Code of Criminal Procedure that permit a conviction by five out of the six jurors, violates the right of an accused to trial by jury guaranteed by the Sixth and Fourteenth Amendments. Pp. 134-139. (a) Lines must be drawn somewhere if the substance of the jury trial right is to be preserved, and while this line-drawing process "cannot be wholly satisfactory, for it requires attaching different consequences to events which, when they lie near the line, actually differ very little," Duncan v. Louisiana, , conviction for a nonpetty offense by only five members of a six-person jury presents a threat to preservation of the substance of the jury trial guarantee and justifies requiring verdicts rendered by such juries to be unanimous. Cf. Ballew v. Georgia, . Pp. 137-138. (b) The near-uniform judgment of those States utilizing six-member juries in trials of nonpetty offenses that the verdict must be unanimous to convict, provides a useful guide in delimiting the line between those jury practices that are constitutionally permissible and those that are not. P. 138. (c) The State's substantial interest in reducing the time and expense associated with the administration of its system of criminal justice is insufficient justification for its use of nonunanimous six-person juries. Any benefits that might accrue from the use of such juries, as compared with requiring unanimity, are speculative, at best, and, more importantly, when a State has reduced the size of its juries to the minimum number permitted by the Constitution, the additional authorization of nonunanimous verdicts sufficiently threatens the constitutional principles establishing the size threshold that any countervailing interest of the State should yield. Pp. 138-139. 360 So.2d 831, reversed in part, affirmed in part, and remanded.REHNQUIST, J., delivered the opinion of the Court, in which BURGER. C. J., and WHITE, BLACKMUN, POWELL, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, post, p. 139. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which STEWART and MARSHALL, JJ., joined, post, p. 140.Jack Peebles argued the cause and filed a brief for petitioners.Louise Korns argued the cause for respondent. With her on the brief were William J. Guste, Jr., Attorney General of Louisiana, and Harry F. Connick.* [Footnote *] Leon Friedman and Bruce J. Ennis filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.MR. JUSTICE REHNQUIST delivered the opinion of the Court.The Louisiana Constitution and Code of Criminal Procedure provide that criminal cases in which the punishment imposed may be confinement for a period in excess of six months "shall be tried before a jury of six persons, five of whom must concur to render a verdict."1 We granted certiorari to decide whether conviction by a nonunanimous six-person jury in a state criminal trial for a nonpetty offense as contemplated by these provisions of Louisiana law violates the rights of an accused to trial by jury guaranteed by the Sixth and Fourteenth Amendments.2 .Petitioners, an individual and a Louisiana corporation, were jointly charged in two counts with the exhibition of two obscene motion pictures.3 Pursuant to Louisiana law, they were tried before a six-person jury, which found both petitioners guilty as charged. A poll of the jury after verdict indicated that the jury had voted unanimously to convict petitioner Wrestle, Inc.,4 and had voted 5-1 to convict petitioner Burch. Burch was sentenced to two consecutive 7-month prison terms, which were suspended, and fined $1,000; Wrestle, Inc., was fined $600 on each count.Petitioners appealed their convictions to the Supreme Court of Louisiana, where they argued that the provisions of Louisiana law permitting conviction by a nonunanimous six-member jury violated the rights of persons accused of nonpetty criminal offenses to trial by jury guaranteed by the Sixth and Fourteenth Amendments.5 Though acknowledging that the issue was "close," the court held that conviction by a nonunanimous six-person jury did not offend the Constitution. State v. Wrestle, Inc., 360 So.2d 831, 838 (1978). The court concluded that none of this Court's decisions precluded use of a nonunanimous six-person jury. "`If 75 percent concurrence (9/12) was enough for a verdict as determined in Johnson v. Louisiana, ... (1972), then requiring 83 percent concurrence (5/6) ought to be within the permissible limits of Johnson.'" Ibid., quoting Hargrave, The Declaration of Rights of the Louisiana Constitution of 1974, 35 La. L. Rev. 1, 56 n. 300 (1974). And our recent decision in Ballew v. Georgia, , striking down a Georgia law allowing conviction by a unanimous five-person jury in nonpetty criminal cases, was distinguishable in the Louisiana Supreme Court's view:"[I]n Williams [v. Florida, the court held that a six-person jury was of sufficient size to promote adequate group deliberation, to insulate members from outside intimidation, and to provide a representative cross-section of the community. These values, which Ballew held a five-person jury is inadequate to serve, are not necessarily defeated because the six-person jury's verdict may be rendered by five instead of by six persons." 360 So.2d, at 838. Since the Louisiana Supreme Court believed that conviction by a nonunanimous six-person jury was not necessarily foreclosed by this Court's decisions, it stated that it preferred to "indulg[e] in the presumption of federal constitutionality which must be afforded to provisions of our state constitution." Ibid.We agree with the Louisiana Supreme Court that the question presented is a "close" one. Nonetheless, we believe that conviction by a nonunanimous six-member jury in a state criminal trial for a nonpetty offense deprives an accused of his constitutional right to trial by jury.Only in relatively recent years has this Court had to consider the practices of the several States relating to jury size and unanimity. Duncan v. Louisiana, , marked the beginning of our involvement with such questions. The Court in Duncan held that because trial by jury in "serious" criminal cases is "fundamental to the American scheme of justice" and essential to due process of law, the Fourteenth Amendment guarantees a state criminal defendant the right to a jury trial in any case which, if tried in a federal court, would require a jury under the Sixth Amendment. Id., at 149, 158-159.6 Two Terms later in Williams v. Florida, , the Court held that this constitutional guarantee of trial by jury did not require a State to provide an accused with a jury of 12 members and that Florida did not violate the jury trial rights of criminal defendants charged with nonpetty offenses by affording them jury panels comprised of only 6 persons. After canvassing the common-law development of the jury and the constitutional history of the jury trial right, the Court concluded that the 12-person requirement was "a historical accident" and that there was no indication that the Framers intended to preserve in the Constitution the features of the jury system as it existed at common law. Id., at 89-90. Thus freed from strictly historical considerations, the Court turned to examine the function that this particular feature performs and its relation to the purposes of jury trial. Id., at 99-100. The purpose of trial by jury, as noted in Duncan, is to prevent government oppression by providing a "safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." 391 U.S., at 156. Given this purpose, the Williams Court observed that the jury's essential feature lies in the "interposition between the accused and his accuser of the commonsense judgment of a group of laymen, and in the community participation and shared responsibility that results from that group's determination of guilt or innocence." 399 U.S., at 100. These purposes could be fulfilled, the Court believed, so long as the jury was of a sufficient size to promote group deliberation, free from outside intimidation, and to provide a fair possibility that a cross section of the community would be represented on it. Ibid. The Court concluded, however, that there is "little reason to think that these goals are in any meaningful sense less likely to be achieved when the jury numbers six, than when it numbers 12 - particularly if the requirement of unanimity is retained." Ibid. (emphasis added).7 A similar analysis led us to conclude in 1972 that a jury's verdict need not be unanimous to satisfy constitutional requirements, even though unanimity had been the rule at common law. Thus, in Apodaca v. Oregon, , we upheld a state statute providing that only 10 members of a 12-person jury need concur to render a verdict in certain noncapital cases.8 In terms of the role of the jury as a safeguard against oppression, the plurality opinion perceived no difference between those juries required to act unanimously and those permitted to act by votes of 10 to 2. 406 U.S., at 411. Nor was unanimity viewed by the plurality as contributing materially to the exercise of the jury's common-sense judgment or as a necessary precondition to effective application of the requirement that jury panels represent a fair cross section of the community. Id., at 410, 412.9 Last Term, in Ballew v. Georgia, , we considered whether a jury of less than six members passes constitutional scrutiny, a question that was explicitly reserved in Williams v. Florida. See 399 U.S., at 91 n. 28. The Court, in separate opinions, held that conviction by a unanimous five-person jury in a trial for a nonpetty offense deprives an accused of his right to trial by jury. While readily admitting that the line between six members and five was not altogether easy to justify, at least five Members of the Court believed that reducing a jury to five persons in nonpetty cases raised sufficiently substantial doubts as to the fairness of the proceeding and proper functioning of the jury to warrant drawing the line at six. See 435 U.S., at 239 (opinion of BLACKMUN, J.); id., at 245-246 (opinion of POWELL, J.).10 We thus have held that the Constitution permits juries of less than 12 members, but that it requires at least 6. Ballew v. Georgia, supra; William v. Florida, supra. And we have approved the use of certain nonunanimous verdicts in cases involving 12-person juries. Apodaca v. Oregon, supra (10-2); Johnson v. Louisiana, (9-3). These principles are not questioned here. Rather, this case lies at the intersection of our decisions concerning jury size and unanimity. As in Ballew, we do not pretend the ability to discern a priori a bright line below which the number of jurors participating in the trial or in the verdict would not permit the jury to function in the manner required by our prior cases. 435 U.S., at 231-232 (opinion of BLACKMUN, J.); id., at 245-246 (opinion of POWELL, J.); see Williams v. Florida, supra, at 100. But having already departed from the strictly historical requirements of jury trial, it is inevitable that lines must be drawn somewhere if the substance of the jury trial right is to be preserved. Cf. Scott v. Illinois, ; Baldwin v. New York, (plurality opinion); Duncan v. Louisiana, 391 U.S., at 161. Even the State concedes as much. Tr. of Oral Arg. 26-27. This line-drawing process, "although essential, cannot be wholly satisfactory, for it requires attaching different consequences to events which, when they lie near the line, actually differ very little." Duncan v. Louisiana, supra, at 161; see Baldwin v. New York, supra, at 72-73 (plurality opinion). However, much the same reasons that led us in Ballew to decide that use of a five-member jury threatened the fairness of the proceeding and the proper role of the jury, lead us to conclude now that conviction for a nonpetty offense by only five members of a six-person jury presents a similar threat to preservation of the substance of the jury trial guarantee and justifies our requiring verdicts rendered by six-person juries to be unanimous.11 We are buttressed in this view by the current jury practices of the several States. It appears that of those States that utilize six-member juries in trials of nonpetty offenses, only two, including Louisiana, also allow nonunanimous verdicts.12 We think that this near-uniform judgment of the Nation provides a useful guide in delimiting the line between those jury practices that are constitutionally permissible and those that are not. See Baldwin v. New York, supra, at 70-72 (plurality opinion); Duncan v. Louisiana, supra, at 161; District of Columbia v. Clawans, .The State seeks to justify its use of nonunanimous six-person juries on the basis of the "considerable time" savings that it claims results from trying cases in this manner. It asserts that under its system, juror deliberation time is shortened and the number of hung juries is reduced. Brief for Respondent 14. Undoubtedly, the State has a substantial interest in reducing the time and expense associated with the administration of its system of criminal justice. But that interest cannot prevail here. First, on this record, any benefits that might accrue by allowing five members of a six-person jury to render a verdict, as compared with requiring unanimity of a six-member jury, are speculative, at best. More importantly, we think that when a State has reduced the size of its juries to the minimum number of jurors permitted by the Constitution, the additional authorization of nonunanimous verdicts by such juries sufficiently threatens the constitutional principles that led to the establishment of the size threshold that any countervailing interest of the State should yield.The judgment of the Louisiana Supreme Court affirming the conviction of petitioner Burch is, therefore, reversed, and its judgment affirming the conviction of petitioner Wrestle, Inc., is affirmed. The case is remanded to the Louisiana Supreme Court for proceedings not inconsistent with this opinion. It is so ordered.

Petitioner, a preoperative transsexual who projects feminine characteristics, has been incarcerated with other males in the federal prison system, sometimes in the general prison population, but more often in segregation. Petitioner claims to have been beaten and raped by another inmate after being transferred by respondent federal prison officials from a correctional institute to a penitentiary - typically a higher security facility with more troublesome prisoners - and placed in its general population. Filing an action under Bivens v. Six Unknown Fed. Narcotics Agents, , petitioner sought damages and an injunction barring future confinement in any penitentiary, and alleged that respondents had acted with "deliberate indifference" to petitioner's safety in violation of the Eighth Amendment because they knew that the penitentiary had a violent environment and a history of inmate assaults and that petitioner would be particularly vulnerable to sexual attack. The District Court granted summary judgment to respondents, denying petitioner's motion under Federal Rule of Civil Procedure 56(f) to delay its ruling until respondents complied with a discovery request. It concluded that failure to prevent inmate assaults violates the Eighth Amendment only if prison officials were "reckless in a criminal sense," i.e., had "actual knowledge" of a potential danger, and that respondents lacked such knowledge because petitioner never expressed any safety concerns to them. The Court of Appeals affirmed.Held: 1. A prison official may be held liable under the Eighth Amendment for acting with "deliberate indifference" to inmate health or safety only if he knows that inmates face a substantial risk of Page II serious harm and disregards that risk by failing to take reasonable measures to abate it. Pp. 5-21. (a) Prison officials have a duty under the Eighth Amendment to provide humane conditions of confinement. They must ensure that inmates receive adequate food, clothing, shelter, and medical care, and must protect prisoners from violence at the hands of other prisoners. However, a constitutional violation occurs only where the deprivation alleged is, objectively, "sufficiently serious," Wilson v. Seiter, , and the official has acted with "deliberate indifference" to inmate health or safety. Pp. 5-7. (b) Deliberate indifference entails something more than negligence, but is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. Thus, it is the equivalent of acting recklessly. However, this does not establish the level of culpability deliberate indifference entails, for the term recklessness is not self-defining, and can take subjective or objective forms. Pp. 7-9. (c) Subjective recklessness, as used in the criminal law, is the appropriate test for "deliberate indifference." Permitting a finding of recklessness only when a person has disregarded a risk of harm of which he was aware is a familiar and workable standard that is consistent with the Cruel and Unusual Punishments Clause as interpreted in this Court's cases. The Amendment outlaws cruel and unusual "punishments," not "conditions," and the failure to alleviate a significant risk that an official should have perceived but did not, while no cause for commendation, cannot be condemned as the infliction of punishment under the Court's cases. Petitioner's invitation to adopt a purely objective test for determining liability - whether the risk is known or should have been known - is rejected. This Court's cases "mandate inquiry into a prison official's state of mind," id., at 299, and it is no accident that the Court has repeatedly said that the Eighth Amendment has a "subjective component." Pp. 10-13. (d) The subjective test does not permit liability to be premised on obviousness or constructive notice. Canton v. Harris, , distinguished. However, this does not mean that prison officials will be free to ignore obvious dangers to inmates. Whether an official had the requisite knowledge is a question of fact subject to demonstration in the usual ways, and a factfinder may conclude that the official knew of a substantial risk from the very fact that it was obvious. Nor may an official escape liability by showing that he knew of the risk but did not think that the complainant was especially likely to be assaulted by the prisoner who committed the act. It does not matter whether the risk came Page III from a particular source or whether a prisoner faced the risk for reasons personal to him or because all prisoners in his situation faced the risk. But prison officials may not be held liable if they prove that they were unaware of even an obvious risk or if they responded reasonably to a known risk, even if the harm ultimately was not averted. Pp. 13-19. (e) Use of subjective test will not foreclose prospective injunctive relief, nor require a prisoner to suffer physical injury before obtaining prospective relief. The subjective test adopted today is consistent with the principle that "[o]ne does not have to await the consummation of threatened injury to obtain preventive relief." Pennsylvania v. West Virginia. In a suit for prospective relief, the subjective factor, deliberate indifference, "should be determined in light of the prison authorities' current attitudes and conduct," Helling v. McKinney___, ___: their attitudes and conduct at the time suit is brought and persisting thereafter. In making the requisite showing of subjective culpability, the prisoner may rely on developments that postdate the pleadings and pretrial motions, as prison officials may rely on such developments to show that the prisoner is not entitled to an injunction. A Court that finds the Eighth Amendment's objective and subjective requirements satisfied may grant appropriate injunctive relief, though it should approach issuance of injunctions with the usual caution. A court need not ignore a prisoner's failure to take advantage of adequate prison procedures to resolve inmate grievances, and may compel a prisoner to pursue them. Pp. 19-21. 2. On remand, the District Court must reconsider its denial of petitioner's Rule 56(f) discovery motion and apply the Eighth Amendment principles explained herein. The court may have erred in placing decisive weight on petitioner's failure to notify respondents of a danger, and such error may have affected the court's ruling on the discovery motion, so that additional evidence may be available to petitioner. Neither of two of respondents' contentions - that some of the officials had no knowledge about the confinement conditions, and thus were alleged to be liable only for the transfer, and that there is no present threat that petitioner will be placed in a penitentiary - is so clearly correct as to justify affirmance. Pp. 22-26. Vacated and remanded.SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BLACKMUN, STEVENS, O'CONNOR, SCALIA, KENNEDY, and GINSBURG, JJ., joined. BLACKMUN, J., and STEVENS, J., filed concurring opinions. THOMAS, J., filed an opinion concurring in the judgment. [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 1] JUSTICE SOUTER delivered the opinion of the Court.A prison official's "deliberate indifference" to a substantial risk of serious harm to an inmate violates the Eighth Amendment. See Helling v. McKinney ___ (1993); Wilson v. Seiter, ; Estelle v. Gamble, . This case requires us to define the term "deliberate indifference," as we do by requiring a showing that the official was subjectively aware of the risk.IThe dispute before us stems from a civil suit brought by petitioner, Dee Farmer, alleging that respondents, federal prison officials, violated the Eighth Amendment by their deliberate indifference to petitioner's safety. Petitioner, who is serving a federal sentence for credit card fraud, has been diagnosed by medical personnel of the Bureau of Prisons as a transsexual, one who has "[a] rare psychiatric disorder in which a person feels persistently uncomfortable about his or her anatomical sex," and who typically seeks medical treatment, including hormonal therapy and surgery, to bring about a permanent sex change. American Medical Association, Encyclopedia of Medicine 1006 (1989); see also American Psychiatric Association, Diagnostic and Statistical [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 2] Manual of Mental Disorders 74-75 (3d rev. ed. 1987). For several years before being convicted and sentenced in 1986 at the age of 18, petitioner, who is biologically male, wore women's clothing (as petitioner did at the 1986 trial), underwent estrogen therapy, received silicone breast implants, and submitted to unsuccessful "black market" testicle-removal surgery. See Farmer v. Haas, 990 F.2d 319, 320 (CA7 1993). Petitioner's precise appearance in prison is unclear from the record before us, but petitioner claims to have continued hormonal treatment while incarcerated by using drugs smuggled into prison, and apparently wears clothing in a feminine manner, as by displaying a shirt "off one shoulder," App. 112. The parties agree that petitioner "projects feminine characteristics." Id., at 51, 74.The practice of federal prison authorities is to incarcerate preoperative transsexuals with prisoners of like biological sex, see Farmer v. Haas, supra, at 320, and, over time, authorities housed petitioner in several federal facilities, sometimes in the general male prison population, but more often in segregation. While there is no dispute that petitioner was segregated at least several times because of violations of prison rules, neither is it disputed that, in at least one penitentiary, petitioner was segregated because of safety concerns. See Farmer v. Carlson, 685 F.Supp. 1335, 1342 (MD Pa. 1988).On March 9, 1989, petitioner was transferred for disciplinary reasons from the Federal Correctional Institute in Oxford, Wisconsin (FCI-Oxford), to the United States Penitentiary in Terre Haute, Indiana (USP-Terre Haute). Though the record before us is unclear about the security designations of the two prisons in 1989, penitentiaries are typically higher security facilities that house more troublesome prisoners than federal correctional institutes. See generally Federal Bureau of Prisons, Facilities 1990. After an initial stay in administrative segregation, petitioner was [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 3] placed in the USP-Terre Haute general population. Petitioner voiced no objection to any prison official about the transfer to the penitentiary or to placement in its general population. Within two weeks, according to petitioner's allegations, petitioner was beaten and raped by another inmate in petitioner's cell. Several days later, after petitioner claims to have reported the incident, officials returned petitioner to segregation to await, according to respondents, a hearing about petitioner's HIV-positive status.Acting without counsel, petitioner then filed a Bivens complaint, alleging a violation of the Eighth Amendment. See Bivens v. Six Unknown Fed. Narcotics Agents, ; Carlson v. Green, . As defendants, petitioner named respondents: the warden of USP-Terre Haute and the Director of the Bureau of Prisons (sued only in their official capacities); the warden of FCI-Oxford and a case manager there; and the director of the Bureau of Prisons North Central Region Office and an official in that office (sued in their official and personal capacities). As later amended, the complaint alleged that respondents either transferred petitioner to USP-Terre Haute or placed petitioner in its general population despite knowledge that the penitentiary had a violent environment and a history of inmate assaults, and despite knowledge that petitioner, as a transsexual who "projects feminine characteristics," would be particularly vulnerable to sexual attack by some USP-Terre Haute inmates. This allegedly amounted to a deliberately indifferent failure to protect petitioner's safety, and thus to a violation of petitioner's Eighth Amendment rights. Petitioner sought compensatory and punitive damages, and an injunction [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 4] barring future confinement in any penitentiary, including USP-Terre Haute.1 Respondents filed a motion for summary judgment supported by several affidavits, to which petitioner responded with an opposing affidavit and a cross-motion for summary judgment; petitioner also invoked Federal Rule of Civil Procedure 56(f), asking the court to delay its ruling until respondents had complied with petitioner's pending request for production of documents. Respondents then moved for a protective order staying discovery until resolution of the issue of qualified immunity, raised in respondents' summary judgment motion.Without ruling on respondents' request to stay discovery, the District Court denied petitioner's Rule 56(f) motion and granted summary judgment to respondents, concluding that there had been no deliberate indifference to petitioner's safety. The failure of prison officials to prevent inmate assaults violates the Eighth Amendment, the court stated, only if prison officials were "reckless in a criminal sense," meaning that they had "actual knowledge" of a potential danger. App. 124. Respondents, however, lacked the requisite knowledge, the court found. "[Petitioner] never expressed any concern for his safety to any of [respondents]. Since [respondents] had no knowledge of any potential danger to [petitioner], they were not deliberately indifferent to his safety." Ibid.The United States Court of Appeals for the Seventh Circuit summarily affirmed without opinion. We granted certiorari___ (1993), because Courts of [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 5] Appeals had adopted inconsistent tests for "deliberate indifference." Compare, for example, McGill v. Duckworth, 944 F.2d 344, 348 (CA7 1991) (holding that "deliberate indifference" requires a "subjective standard of recklessness"), cert. denied___ (1992), with Young v. Quinlan, 960 F.2d 351, 360-361 (CA3 1992) ("[A] prison official is deliberately indifferent when he knows or should have known of a sufficiently serious danger to an inmate").IIAThe Constitution "does not mandate comfortable prisons," Rhodes v. Chapman, , but neither does it permit inhumane ones, and it is now settled that "the treatment a prisoner receives in prison and the conditions under which he is confined are subject to scrutiny under the Eighth Amendment." Helling, 509 U.S., at ___ (slip op., at 5). In its prohibition of "cruel and unusual punishments," the Eighth Amendment places restraints on prison officials, who may not, for example, use excessive physical force against prisoners. See Hudson v. McMillian, . The Amendment also imposes duties on these officials, who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter and medical care, and must "take reasonable measures to guarantee the safety of the inmates," Hudson v. Palmer, . See Helling, supra, at ___ (slip op., at 526-527 Washington v. Harper, ; Estelle, 429 U.S., at 103. Cf. DeShaney v. Winnebago County Dept. of Social Services, .In particular, as the lower courts have uniformly held, and as we have assumed, "[p]rison officials have a duty ... to protect prisoners from violence at the hands of [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 6] other prisoners." Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 558 (CA1) (internal quotation marks and citation omitted), cert. denied, ;2 see also Wilson v. Seiter, 501 U.S., at 303 (describing "the protection [an inmate] is afforded against other inmates" as a "conditio[n] of confinement" subject to the strictures of the Eighth Amendment). Having incarcerated "persons [with] demonstrated proclivit[ies] for antisocial criminal, and often violent, conduct," Hudson v. Palmer, supra, at 526, having stripped them of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course. Cf. DeShaney, supra, at 199-200; Estelle, supra, at 103-104. Prison conditions may be "restrictive and even harsh," Rhodes, supra, at 347, but gratuitously allowing the beating or rape of one prisoner by another serves no "legitimate penological objectiv[e]," Hudson v. Palmer, supra, at 548 (Stevens, J., concurring in part and dissenting in part), any more than it squares with "`evolving standards of decency,'" Estelle, supra, at 102 (quoting Trop v. Dulles, (plurality opinion)). Being violently assaulted in prison is simply not "part of the penalty that criminal offenders pay for their offenses against society." Rhodes, supra, at 347. [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 7] It is not, however, every injury suffered by one prisoner at the hands of another that translates into constitutional liability for prison officials responsible for the victim's safety. Our cases have held that a prison official violates the Eighth Amendment only when two requirements are met. First, the deprivation alleged must be, objectively, "sufficiently serious," Wilson, supra, at 298; see also Hudson v. McMillian, supra, at ___ (slip op., at 5) a prison official's act or omission must result in the denial of "the minimal civilized measure of life's necessities," Rhodes, supra, at 347. For a claim (like the one here) based on a failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of serious harm. See Helling, supra, at ___ (slip op., at 8).3 The second requirement follows from the principle that "only the unnecessary and wanton infliction of pain implicates the Eighth Amendment." Wilson, 501 U.S., at 297 (internal quotation marks, emphasis and citations omitted). To violate the Cruel and Unusual Punishments Clause, a prison official must have a "sufficiently culpable state of mind." Ibid.; see also id., at 302-303; Hudson v. McMillian, supra, at ___ (slip op., at 5). In prison conditions cases that state of mind is one of "deliberate indifference" to inmate health or safety, Wilson, supra, at 302-303; see also Helling, supra, at ___ (slip op., at 6-7); Hudson v. McMillian, supra, at ___ (slip op., at 5); Estelle, supra, at 106, a standard the parties agree governs the claim in this case. The parties disagree, however, on the proper test for deliberate indifference, which we must therefore undertake to define. [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 8] B1Although we have never paused to explain the meaning of the term "deliberate indifference," the case law is instructive. The term first appeared in the United States Reports in Estelle v. Gamble, 429 U.S., at 104, and its use there shows that deliberate indifference describes a state of mind more blameworthy than negligence. In considering the inmate's claim in Estelle that inadequate prison medical care violated the Cruel and Unusual Punishments Clause, we distinguished "deliberate indifference to serious medical needs of prisoners," ibid., from "negligen[ce] in diagnosing or treating a medical condition," id., at 106, holding that only the former violates the Clause. We have since read Estelle for the proposition that Eighth Amendment liability requires "more than ordinary lack of due care for the prisoner's interests or safety." Whitley v. Albers, .While Estelle establishes that deliberate indifference entails something more than mere negligence, the cases are also clear that it is satisfied by something less than acts or omissions for the very purpose of causing harm or with knowledge that harm will result. That point underlies the ruling that "application of the deliberate indifference standard is inappropriate" in one class of prison cases: when "officials stand accused of using excessive physical force." Hudson v. McMillian, 503 U.S., at ___ (slip op., 3-4) see also Whitley, supra, 320. In such situations, where the decisions of prison officials are typically made "`in haste, under pressure, and frequently without the luxury of a second chance,'" Hudson v. McMillian, supra, at ___ (slip op., at 3) (quoting Whitley, supra, at 320), an Eighth Amendment claimant must show more than "indifference," deliberate or otherwise. The claimant must show that officials [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 9] applied force "maliciously and sadistically for the very purpose of causing harm," 503 U.S., at ___ (internal quotation marks and citations omitted), or, as the Court also put it, that officials used force with "a knowing willingness that [harm] occur," 503 U.S., at ___ (slip op., at 5) (internal quotation marks and citation omitted). This standard of purposeful or knowing conduct is not, however, necessary to satisfy the mens rea requirement of deliberate indifference for claims challenging conditions of confinement; "the very high state of mind prescribed by Whitley does not apply to prison conditions cases." Wilson, supra, at 302-303.With deliberate indifference lying somewhere between the poles of negligence at one end and purpose or knowledge at the other, the Courts of Appeals have routinely equated deliberate indifference with recklessness.4 See, e.g., LaMarca v. Turner, 995 F.2d 1526, 1535 (CA11 1993); Manarite v. Springfield, 957 F.2d 953, 957 (CA1); Redman v. County of San Diego, 942 F.2d 1435, 1443 (CA9 1991); McGill v. Duckworth, 944 F.2d, at 347; Miltier v. Beorn, 896 F.2d 848, 851-852 (CA4 1990); Martin v. White, 742 F.2d 469, 474 (CA8 1984); see also Springfield v. Kibbe, (O'CONNOR, J., dissenting). It is, indeed, fair to say that acting or failing to act with deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of recklessly disregarding that risk.That does not, however, fully answer the pending question about the level of culpability deliberate indifference entails, for the term recklessness [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 10] is not self-defining. The civil law generally calls a person reckless who acts or (if the person has a duty to act) fails to act in the face of an unjustifiably high risk of harm that is either known or so obvious that it should be known. See Prosser and Keeton 34, pp. 213-214; Restatement (Second) of Torts 500 (1965). The criminal law, however, generally permits a finding of recklessness only when a person disregards a risk of harm of which he is aware. See R. Perkins & R. Boyce, Criminal Law 850-851 (3d ed. 1982); J. Hall, General Principles of Criminal Law 115-116, 120, 128 (2d ed. 1960) (hereinafter Hall); American Law Institute, Model Penal Code 2.02(2)(c), and Comment 3 (1985); but see Commonwealth v. Pierce, 138 Mass. 165, 175-178 (1884) (Holmes, J.) (adopting an objective approach to criminal recklessness). The standards proposed by the parties in this case track the two approaches (though the parties do not put it that way): petitioner asks us to define deliberate indifference as what we have called civil-law recklessness,5 and respondents urge us to adopt an approach consistent with recklessness in the criminal law.6 We reject petitioner's invitation to adopt an objective test for deliberate indifference. We hold instead that a prison official cannot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 11] could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. This approach comports best with the text of the Amendment as our cases have interpreted it. The Eighth Amendment does not outlaw cruel and unusual "conditions"; it outlaws cruel and unusual "punishments." An act or omission unaccompanied by knowledge of a significant risk of harm might well be something society wishes to discourage, and if harm does result society might well wish to assure compensation. The common law reflects such concerns when it imposes tort liability on a purely objective basis. See Prosser and Keeton 2, 34, pp. 6, 213-214; see also Federal Tort Claims Act, 28 U.S.C. 2671-2680; United States v. Muniz, . But an official's failure to alleviate a significant risk that he should have perceived but did not, while no cause for commendation, cannot under our cases be condemned as the infliction of punishment.In Wilson v. Seiter, we rejected a reading of the Eighth Amendment that would allow liability to be imposed on prison officials solely because of the presence of objectively inhumane prison conditions. See 501 U.S., at 299-302. As we explained there, our "cases mandate inquiry into a prison official's state of mind when it is claimed that the official has inflicted cruel and unusual punishment." Id., at 299. Although "state of mind," like "intent," is an ambiguous term that can encompass objectively defined levels of blameworthiness, see 1 W. LaFave & A. Scott, Substantive Criminal Law 3.4, 3.5, pp. 296-300, 313-314 (1986) (hereinafter LaFave & Scott); United States v. Bailey, , it was no accident that we said in Wilson and repeated in later cases that Eighth Amendment suits against prison officials must satisfy a "subjective" requirement. See Wilson, supra, at 298; see also Helling, 509 U.S., at ___ (slip op., at 9) Hudson v. McMillian, 503 U.S., at ___ (slip op., at 4-5). It is true, [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 12] as petitioner points out, that Wilson cited with approval Court of Appeals decisions applying an objective test for deliberate indifference to claims based on prison officials' failure to prevent inmate assaults. See 501 U.S., at 303 (citing Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d, at 560; and Morgan v. District of Columbia, 824 F.2d 1049, 1057-1058 (CADC 1987)). But Wilson cited those cases for the proposition that the deliberate indifference standard applies to all prison conditions claims, not to undo its holding that the Eighth Amendment has a "subjective component." 501 U.S., at 298. Petitioner's purely objective test for deliberate indifference is simply incompatible with Wilson's holding.To be sure, the reasons for focussing on what a defendant's mental attitude actually was (or is), rather than what it should have been (or should be), differ in the Eighth Amendment context from that of the criminal law. Here, a subjective approach isolates those who inflict punishment; there, it isolates those against whom punishment should be inflicted. But the result is the same: to act recklessly in either setting a person must "consciously disregar[d]" a substantial risk of serious harm. Model Penal Code, supra, 2.02(2)(c).At oral argument, the Deputy Solicitor General advised against frank adoption of a criminal law mens rea requirement, contending that it could encourage triers of fact to find Eighth Amendment liability only if they concluded that prison officials acted like criminals. See Tr. of Oral Arg. 39-40. We think this concern is misdirected. Bivens actions against federal prison officials (and their 1983 counterparts against state officials) are civil in character, and a court should no more allude to the criminal law when enforcing the Cruel and Unusual Punishments Clause than when applying the Free Speech and Press Clauses, where we have also adopted a subjective approach to recklessness. See Harte-Hanks Communications, Inc. v. Connaughton, [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 13] (holding that the standard for "reckless disregard" for the truth in a defamation action by a public figure "is a subjective one," requiring that "the defendant in fact entertained serious doubts as to the truth of his publication," or that "the defendant actually had a high degree of awareness of ... probable falsity") (internal quotation marks and citations omitted).7 That said, subjective recklessness as used in the criminal law is a familiar and workable standard that is consistent with the Cruel and Unusual Punishments Clause as interpreted in our cases, and we adopt it as the test for "deliberate indifference" under the Eighth Amendment.2Our decision that Eighth Amendment liability requires consciousness of a risk is thus based on the Constitution and our cases, not merely on a parsing of the phrase "deliberate indifference." And we do not reject petitioner's arguments for a thoroughly objective approach to deliberate indifference without recognizing that on the crucial point (whether a prison official must know of a risk, or whether it suffices that he should know) the term does not speak with certainty. Use of "deliberate," for example, arguably requires nothing more than an act (or omission) of indifference to a serious risk that is voluntary, not accidental. Cf. Estelle, 429 U.S., at 105 (distinguishing "deliberate indifference" from "accident" or "inadverten[ce]"). And even if "deliberate" is better read as implying knowledge of a risk, the concept of constructive knowledge is familiar enough that the term "deliberate indifference" would not, of its own force, [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 14] preclude a scheme that conclusively presumed awareness from a risk's obviousness.Because "deliberate indifference" is a judicial gloss, appearing neither in the Constitution nor in a statute, we could not accept petitioner's argument that the test for "deliberate indifference" described in Canton v. Harris, , must necessarily govern here. In Canton, interpreting 42 U.S.C. 1983, we held that a municipality can be liable for failure to train its employees when the municipality's failure shows "a deliberate indifference to the rights of its inhabitants." 489 U.S., at 389 (internal quotation marks omitted). In speaking to the meaning of the term, we said that "it may happen that in light of the duties assigned to specific officers or employees the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need." Id., at 390; see also id., at 390, n. 10 (elaborating). JUSTICE O'CONNOR's separate opinion for three Justices agreed with the Court's "obvious[ness]" test and observed that liability is appropriate when policymakers are "on actual or constructive notice" of the need to train, id., at 396 (opinion concurring in part and dissenting in part). It would be hard to describe the Canton understanding of deliberate indifference, permitting liability to be premised on obviousness or constructive notice, as anything but objective.Canton's objective standard, however, is not an appropriate test for determining the liability of prison officials under the Eighth Amendment as interpreted in our cases. Section 1983, which merely provides a cause of action, "contains no state of mind requirement independent of that necessary to state a violation of the underlying constitutional right." Daniels v. Williams, . And while deliberate [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 15] indifference serves under the Eighth Amendment to ensure that only inflictions of punishment carry liability, see Wilson, 501 U.S., at 299-300, the "term was used in the Canton case for the quite different purpose of identifying the threshold for holding a city responsible for the constitutional torts committed by its inadequately trained agents, Collins v. Harker Heights___, ___ (1992), a purpose the Canton Court found satisfied by a test permitting liability when a municipality disregards "obvious" needs. Needless to say, moreover, considerable conceptual difficulty would attend any search for the subjective state of mind of a governmental entity, as distinct from that of a governmental official. For these reasons, we cannot accept petitioner's argument that Canton compels the conclusion here that a prison official who was unaware of a substantial risk of harm to an inmate may nevertheless be held liable under the Eighth Amendment if the risk was obvious and a reasonable prison official would have noticed it.We are no more persuaded by petitioner's argument that, without an objective test for deliberate indifference, prison officials will be free to ignore obvious dangers to inmates. Under the test we adopt today, an Eighth Amendment claimant need not show that a prison official acted or failed to act believing that harm actually would befall an inmate; it is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm. Cf. 1 C. Torcia, Wharton's Criminal Law 27, p. 141 (14th ed. 1978); Hall 115. We doubt that a subjective approach will present prison officials with any serious motivation "to take refuge in the zone between `ignorance of obvious risks' and `actual knowledge of risks.'" Brief for Petitioner 27. Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, cf. Hall 118 [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 16] (cautioning against "confusing a mental state with the proof of its existence"), and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious. Cf. LaFave & Scott 3.7, p. 335 ("[I]f the risk is obvious, so that a reasonable man would realize it, we might well infer that [the defendant] did in fact realize it; but the inference cannot be conclusive, for we know that people are not always conscious of what reasonable people would be conscious of"). For example, if an Eighth Amendment plaintiff presents evidence showing that a substantial risk of inmate attacks was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant official being sued had been exposed to information concerning the risk, and thus "must have known" about it, then such evidence could be sufficient to permit a trier of fact to find that the defendant official had actual knowledge of the risk. Brief for Respondents 22.8 Nor may a prison official escape liability for deliberate indifference by showing that, while he was aware of an [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 17] obvious, substantial risk to inmate safety, he did not know that the complainant was especially likely to be assaulted by the specific prisoner who eventually committed the assault. The question under the Eighth Amendment is whether prison officials, acting with deliberate indifference, exposed a prisoner to a sufficiently substantial "risk of serious damage to his future health," Helling, 509 U.S., at ___, and it does not matter whether the risk comes from a single source or multiple sources, any more than it matters whether a prisoner faces an excessive risk of attack for reasons personal to him or because all prisoners in his situation face such a risk. See Brief for Respondents 15 (stating that a prisoner can establish exposure to a sufficiently serious risk of harm "by showing that he belongs to an identifiable group of prisoners who are frequently singled out for violent attack by other inmates"). If, for example, prison officials were aware that inmate "rape was so common and uncontrolled that some potential victims dared not sleep [but] instead ... would leave their beds and spend the night clinging to the bars nearest the guards' station," Hutto v. Finney, n. 3 (1978), it would obviously be irrelevant to liability that the officials could not guess beforehand precisely who would attack whom. Cf. Helling, supra, at ___ (observing that the Eighth Amendment requires a remedy for exposure of inmates to "infectious maladies" such as hepatitis and venereal disease "even though the possible infection might not affect all of those exposed"); Commonwealth v. Welansky, 316 Mass. 383, 55 N.E.2d 902 (1944) (affirming conviction for manslaughter under a law requiring reckless or wanton conduct of a nightclub owner who failed to protect patrons from a fire, even though the owner did not know in advance who would light the match that ignited the fire or which patrons would lose their lives); State v. Julius, 185 W.Va. 422, [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 18] 431-432, 408 S. E. 2d 1, 10-11 (1991) (holding that a defendant may be held criminally liable for injury to an unanticipated victim).Because, however, prison officials who lacked knowledge of a risk cannot be said to have inflicted punishment, it remains open to the officials to prove that they were unaware even of an obvious risk to inmate health or safety. That a trier of fact may infer knowledge from the obvious, in other words, does not mean that it must do so. Prison officials charged with deliberate indifference might show, for example, that they did not know of the underlying facts indicating a sufficiently substantial danger and that they were therefore unaware of a danger, or that they knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.In addition, prison officials who actually knew of a substantial risk to inmate health or safety may be found free from liability if they responded reasonably to the risk, even if the harm ultimately was not averted. A prison official's duty under the Eighth Amendment is to ensure "reasonable safety," Helling, supra, at ___; see also Washington v. Harper, 494 U.S., at 225; Hudson v. Palmer, 468 U.S., at 526-527, a standard that incorporates due regard for prison officials' "unenviable task of keeping dangerous men in safe custody under humane conditions." Spain v. Procunier, 600 F.2d 189, 193 (CA9 1979) (KENNEDY, J.); see also Bell v. Wolfish, , 562 (1979). Whether one puts it in terms of duty or deliberate indifference, prison officials who act reasonably cannot be found liable under the Cruel and Unusual Punishments Clause.We address, finally, petitioner's argument that a subjective deliberate indifference test will unjustly require prisoners to suffer physical injury before obtaining court-ordered correction of objectively inhumane [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 19] prison conditions. "It would," indeed, "be odd to deny an injunction to inmates who plainly proved an unsafe, life-threatening condition in their prison on the ground that nothing yet had happened to them." Helling, 509 U.S., at ___. But nothing in the test we adopt today clashes with that common sense. Petitioner's argument is flawed for the simple reason that "[o]ne does not have to await the consummation of threatened injury to obtain preventive relief." Pennsylvania v. West Virginia. Consistently with this principle, a subjective approach to deliberate indifference does not require a prisoner seeking "a remedy for unsafe conditions [to] await a tragic event [such as an] actua[l] assaul[t] before obtaining relief." Helling, supra at ___ (slip op., at 7).In a suit such as petitioner's, insofar as it seeks injunctive relief to prevent a substantial risk of serious injury from ripening into actual harm, "the subjective factor, deliberate indifference, should be determined in light of the prison authorities' current attitudes and conduct," Helling, supra, at ___ (slip op., at 10): their attitudes and conduct at the time suit is brought and persisting thereafter. An inmate seeking an injunction on the ground that there is "a contemporary violation of a nature likely to continue," United States v. Oregon Medical Society, , must adequately plead such a violation; to survive summary judgment, he must come forward with evidence from which it can be inferred that the defendant officials were at the time suit was filed, and are at the time of summary judgment, knowingly and unreasonably disregarding an objectively intolerable risk of harm, and that they will continue to do so; and finally to establish eligibility for an injunction, the inmate must demonstrate the continuance of that disregard during the remainder of the litigation and into the future. In so doing, the inmate may rely, in the district court's discretion, [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 20] on developments that postdate the pleadings and pretrial motions, as the defendants may rely on such developments to establish that the inmate is not entitled to an injunction.9 See Fed.Rule Civ.Proc. 15(d); 6A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure 1504-1510, pp. 177-211 (2d ed. 1990). If the court finds the Eighth Amendment's subjective and objective requirements satisfied, it may grant appropriate injunctive relief. See Hutto v. Finney, 437 U.S., at 685-688 and n. 9 (upholding order designed to halt "an ongoing violation" in prison conditions that included extreme overcrowding, rampant violence, insufficient food, and unsanitary conditions). Of course, a district court should approach issuance of injunctive orders with the usual caution, see Bell v. Wolfish, supra, at 562 (warning courts against becoming "enmeshed in the minutiae of prison conditions"), and may, for example, exercise its discretion if appropriate by giving prison officials time to rectify the situation before issuing an injunction.That prison officials' "current attitudes and conduct," Helling, supra, at ___, must be assessed in an action for injunctive relief does not mean, of [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 21] course, that inmates are free to bypass adequate internal prison procedures and bring their health and safety concerns directly to court. An appeal to the equity jurisdiction conferred on federal district courts is an appeal to the sound discretion which guides the determinations of courts of equity, Meredith v. Winter Haven, , and any litigant making such an appeal must show that the intervention of equity is required. When a prison inmate seeks injunctive relief, a court need not ignore the inmate's failure to take advantage of adequate prison procedures, and an inmate who needlessly bypasses such procedures may properly be compelled to pursue them. Cf. 42 U.S.C. 1997e (authorizing district courts in 1983 actions to require inmates to exhaust "such plain, speedy, and effective administrative remedies as are available"). Even apart from the demands of equity, an inmate would be well advised to take advantage of internal prison procedures for resolving inmate grievances. When those procedures produce results, they will typically do so faster than judicial processes can. And even when they do not bring constitutionally required changes, the inmate's task in court will obviously be much easier.Accordingly, we reject petitioner's arguments and hold that a prison official may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.IIIAAgainst this backdrop, we consider whether the District Court's disposition of petitioner's complaint, summarily affirmed without briefing by the Court of Appeals for the Seventh Circuit, comports with Eighth [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 22] Amendment principles. We conclude that the appropriate course is to remand.In granting summary judgment to respondents on the ground that petitioner had failed to satisfy the Eighth Amendment's subjective requirement, the District Court may have placed decisive weight on petitioner's failure to notify respondents of a risk of harm. That petitioner "never expressed any concern for his safety to any of [respondents]," App. 124, was the only evidence the District Court cited for its conclusion that there was no genuine dispute about respondents' assertion that they "had no knowledge of any potential danger to [petitioner]," ibid. But with respect to each of petitioner's claims, for damages and for injunctive relief, the failure to give advance notice is not dispositive. Petitioner may establish respondents' awareness by reliance on any relevant evidence. See supra, at 16.The summary judgment record does not so clearly establish respondent's entitlement to judgment as a matter of law on the issue of subjective knowledge that we can simply assume the absence of error below. For example, in papers filed in opposition to respondents' summary judgment motion, petitioner pointed to respondents' admission that petitioner is a "nonviolent" transsexual who, because of petitioner's "youth and feminine appearance," is "likely to experience a great deal of sexual pressure" in prison. App. 50-51, 73-74. And petitioner recounted a statement by one of the respondents, then warden of the penitentiary in Lewisburg, Pennsylvania, who told petitioner that there was "a high probability that [petitioner] could not safely function at USP-Lewisburg," id., at 109, an incident confirmed in a published District Court opinion. See Farmer v. Carlson, 685 F.Supp., at 1342; see also ibid. ("Clearly, placing plaintiff, a twenty-one year old transsexual, into the general population at [USP-]Lewisburg, a [high-]security institution, could pose a significant [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 23] threat to internal security in general and to plaintiff in particular").We cannot, moreover, be certain that additional evidence is unavailable to petitioner because in denying petitioner's Rule 56(f) motion for additional discovery the District Court may have acted on a mistaken belief that petitioner's failure to notify was dispositive. Petitioner asserted in papers accompanying the Rule 56(f) motion that the requested documents would show that "each defendant had knowledge that USP-Terre Haute was and is, a violent institution with a history of sexual assault, stabbings, etc., [and that] each defendant showed reckless disregard for my safety by designating me to said institution knowing that I would be sexually assaulted." App. 105-106. But in denying the Rule 56(f) motion, the District Court stated that the requested documents were "not shown by plaintiff to be necessary to oppose defendants' motion for summary judgment," App. 121, a statement consistent with the erroneous view that failure to notify was fatal to petitioner's complaint.Because the District Court may have mistakenly thought that advance notification was a necessary element of an Eighth Amendment failure-to-protect claim, we think it proper to remand for reconsideration of petitioner's Rule 56(f) motion and, whether additional discovery is permitted or not, for application of the Eighth Amendment principles explained above.10 [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 24] BRespondents urge us to affirm for reasons not relied on below, but neither of their contentions is so clearly correct as to justify affirmance.With respect to petitioner's damages claim, respondents argue that the officials sued in their individual capacities (officials at FCI-Oxford and the Bureau of Prisons North Central Region office), were alleged to be liable only for their transfer of petitioner from FCI-Oxford to USP-Terre Haute, whereas petitioner "nowhere alleges any reason for believing that these officials, who had no direct responsibility for administering the Terre Haute institution, would have had knowledge of conditions within that institution regarding danger to transsexual inmates." Brief for Respondents 27-28. But petitioner's Rule 56(f) motion alleged just that. Though respondents suggest here that petitioner offered no factual basis for that assertion, that is not a ground on which they chose to oppose petitioner's Rule 56(f) motion below and, in any event, is a matter for the exercise of the District Court's judgment, not ours. Finally, to the extent respondents seek affirmance here on the ground that officials at FCI-Oxford and the Bureau of Prisons regional office had no power to control prisoner placement at Terre Haute, the record gives at least a suggestion to the contrary; the affidavit of one respondent, the warden of USP-Terre Haute, states that, after having been at USP-Terre Haute for about a month, petitioner was placed in administrative segregation "pursuant to directive from the North Central Regional Office" and a "request ... by staff at FCI-Oxford." App. 94-95. Accordingly, though we do not reject respondents' arguments about petitioner's claim for damages, the record does not permit us to accept them as a basis for affirmance when they were not relied upon below. Respondents are free to develop this line of argument on remand. [ FARMER v. BRENNAN, ___ U.S. ___ (1994), 25] With respect to petitioner's claim for injunctive relief, respondents argued in their merits brief that the claim was "foreclosed by [petitioner's] assignment to administrative detention status because of his high-risk HIV-positive condition, ... as well as by the absence of any allegation ... that administrative detention status poses any continuing threat of physical injury to him." Brief for Respondents 28-29. At oral argument, however, the Deputy Solicitor General informed us that petitioner was no longer in administrative detention, having been placed in the general prison population of a medium security prison. Tr. of Oral Arg. 25-26. He suggested that affirmance was nevertheless proper because "there is no present threat" that petitioner will be placed in a setting where he would face a "continuing threat of physical injury," id., at 26, but this argument turns on facts about the likelihood of a transfer that the District Court is far better placed to evaluate than we are. We leave it to respondents to present this point on remand.IVThe judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.So ordered.

A jury found petitioner guilty of one count of participating in a conspiracy to distribute controlled substances in violation of 21 U.S.C. 846 and one count of conducting a continuing criminal enterprise (CCE) "in concert" with others in violation of 848. The "in concert" element of his CCE offense was based on the same agreement as the 846 conspiracy. The District Court entered judgment of conviction on both counts and imposed a sentence of life imprisonment without possible release on each, the sentences to be served concurrently. Pursuant to 18 U.S.C. 3013, it also ordered petitioner to pay a special assessment of $50 on each count. The Seventh Circuit affirmed, relying on Jeffers v. United States, , to reject petitioner's contention that his convictions and concurrent life sentences impermissibly punished him twice for the same offense.Held: The District Court erred in sentencing petitioner to concurrent life sentences on the 846 and 848 counts. Pp. 4-15. (a) It is presumed that a legislature does not intend to impose two punishments where two statutory provisions proscribe the "same offense." The test for determining whether there are two offenses is whether each of the statutory provisions requires proof of a fact which the other does not. Blockburger v. United States. This Court has often concluded that two statutes define the "same offense" where one is a lesser included offense of the other. For the reasons set forth in Jeffers, 432 U.S., at 149-150 (plurality opinion); id., at 158, and 159, n. 5 (dissenting opinion), and particularly because the plain meaning of 848's "in concert" phrase signifies mutual agreement in a common plan or enterprise, the Court now resolves definitively that a guilty verdict on a 848 Page II charge necessarily includes a finding that the defendant also participated in a conspiracy violative of 846. Conspiracy is therefore a lesser included offense of CCE. Pp. 4-8. (b) The Court rejects the Government's contention that the presumption against multiple punishments does not invalidate either of petitioner's convictions because the sentence on the second one was concurrent. That conviction amounts to a second punishment because a $50 special assessment was imposed on it. Cf. Ray v. United States, (per curiam). Even if the assessment were ignored, the force of the Government's argument would be limited by Ball v. United States, , in which the Court concluded that Congress did not intend to allow punishment for both illegally "receiving" and illegally "possessing" a firearm; held that the only remedy consistent with the congressional intent was to vacate one of the underlying convictions as well as the concurrent sentence based upon it; and explained that the second conviction does not evaporate simply because of its sentence's concurrence, since it has potential adverse collateral consequences - e.g., delay of parole eligibility or an increased sentence under a recidivist statute for a future offense - that make it presumptively impermissible to impose. Although petitioner did not challenge the $50 assessment below, the fact that 3013 required its imposition renders it as much a collateral consequence of the conspiracy conviction as the consequences recognized by Ball. Pp. 8-10. (c) Also rejected is the Government's argument that the presumption against multiple punishments is overcome here because Congress has clearly indicated its intent to allow courts to impose them. Support for that view cannot be inferred from the fact that this Court's Jeffers judgment allowed convictions under both 846 and 848 to stand, since those convictions were entered in separate trials, the Court's review addressed only the 848 conviction, and that conviction was affirmed because the four-Justice plurality decided that Jeffers had waived any right to object, see 432 U.S., at 152-154, and because Justice White took the hereinbefore-rejected position that conspiracy was not a lesser included offense of CCE, see id., at 158 (opinion concurring in judgment in part and dissenting in part). As to this issue, then, the judgment is not entitled to precedential weight because it amounts at best to an unexplained affirmance by an equally divided court. Pp. 10-12. (d) The Government's argument that Congress intended to allow multiple convictions here to provide a "back up" conviction, preventing a defendant who later successfully challenges his greater offense from escaping punishment altogether, is unpersuasive. There is no Page III reason why this particular pair of greater and lesser offenses should present any novel problem not already addressed by the federal appellate courts, which have uniformly concluded - with this Court's approval, see, e.g., Morris v. Mathews, - that they may direct the entry of judgment for a lesser included offense when a conviction for a greater offense is reversed on grounds affecting only the greater offense. Pp. 12-14. (e) Because the Court here adheres to the presumption that Congress intended to authorize only one punishment, one of petitioner's convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense and must be vacated under Ball, 470 U.S., at 864. P. 15. 40 F.3d 879, reversed and remanded. STEVENS, J., delivered the opinion for a unanimous Court. [ RUTLEDGE v. UNITED STATES, ___ U.S. ___ (1996), 1] JUSTICE STEVENS DELIVERED THE OPINION OF THE COURT.A jury found petitioner guilty of participating in a conspiracy to distribute controlled substances in violation of 84 Stat. 1265, as amended, 21 U.S.C. 846 and of conducting a continuing criminal enterprise (CCE) in violation of 848. The "in concert" element of his CCE offense was based on the same agreement as the 846 conspiracy. The question presented is whether it was therefore improper for the District Court to sentence him to concurrent life sentences on the two counts.IPetitioner organized and supervised a criminal enterprise that distributed cocaine in Warren County, Illinois, from 1988 until December 1990, when he was arrested by federal agents. He was charged with several offenses, of which only Count One, the CCE charge, and Count Two, the conspiracy charge, are relevant to the issue before us.Count One alleged that during the period between early 1988 and late 1990, petitioner violated 8481 by [ RUTLEDGE v. UNITED STATES, ___ U.S. ___ (1996), 2] engaging in a continuing criminal enterprise that consisted of a series of unlawful acts involving the distribution of cocaine.2 The count alleged that these actions were undertaken "in concert with at least five (5) other persons," that petitioner supervised those other persons, and that he obtained substantial income from the continuing series of violations. App. 2-3.Count Two separately alleged that during the same period, petitioner violated 21 U.S.C. 8463 by conspiring with four codefendants and others to engage in the unlawful distribution of cocaine. The count alleged that each of the conspirators had furthered the conspiracy by performing an overt act involving the delivery, purchase, or distribution of cocaine. App. 3-5.After a 9-day trial, a jury found petitioner guilty on all counts. The trial court entered judgment of conviction on both Count One and Count Two and imposed a sentence of life imprisonment without possible release on each count, the sentences to be served concurrently. Id., [ RUTLEDGE v. UNITED STATES, ___ U.S. ___ (1996), 3] at 8-10. Pursuant to 18 U.S.C. 3013, petitioner was also ordered to pay a special assessment of $50 on each count.On appeal, petitioner contended in a pro se supplemental brief that even though the life sentences were concurrent, entering both convictions and sentences impermissibly punished him twice for the same offense. The Court of Appeals for the Seventh Circuit accepted the premise of his argument, namely that the conspiracy charge was a lesser included offense of the CCE charge. 40 F.3d 879, 886 (1994). The Court of Appeals nonetheless affirmed his convictions and sentences. Relying on its earlier decision in United States v. Bond, 847 F.2d 1233, 1238 (CA7 1988), and our decision in Jeffers v. United States, , it held that convictions and concurrent sentences may be imposed for conspiracy and CCE, "provided the cumulative punishment does not exceed the maximum under the CCE act." 40 F.3d, at 886.The decision of the Seventh Circuit is at odds with the practice of other Circuits. Most federal courts that have confronted the question hold that only one judgment should be entered when a defendant is found guilty on both a CCE count and a conspiracy count based on the same agreements.4 The Second and Third Circuits have [ RUTLEDGE v. UNITED STATES, ___ U.S. ___ (1996), 4] adopted an intermediate position, allowing judgment to be entered on both counts but permitting only one sentence rather than the concurrent sentences allowed in the Seventh Circuit.5 We granted certiorari to resolve the conflict. ___ (1995).IICourts may not "prescrib[e] greater punishment than the legislature intended." Missouri v. Hunter, ; Brown v. Ohio, . In accord with principles rooted in common law and constitutional jurisprudence, see Ex parte Lange, 18 Wall. 163, 168-170 (1874), we presume that "where two statutory provisions proscribe the `same offense,'" a legislature does not intend to impose two punishments for that offense. Whalen v. United States, ; Ball v. United States, .For over half a century we have determined whether a defendant has been punished twice for the "same offense" by applying the rule set forth in Blockburger v. United States. If "the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact which the other does not." Ibid. In subsequent applications of the test, we have often concluded that two different statutes define the "same offense," typically because one is a lesser included offense of the other.6 [ RUTLEDGE v. UNITED STATES, ___ U.S. ___ (1996), 5] In this case it is perfectly clear that the CCE offense requires proof of a number of elements that need not be established in a conspiracy case.7 The Blockburger test requires us to consider whether the converse is also true - whether the 846 conspiracy offense requires proof of any element that is not a part of the CCE offense. That question could be answered affirmatively only by assuming that while the 846 conspiracy requires proof of an actual agreement among the parties, the "in concert" element of the CCE offense might be satisfied by something less.The Government advanced this precise argument in Jeffers v. United States, ,8 but it [ RUTLEDGE v. UNITED STATES, ___ U.S. ___ (1996), 6] managed to persuade only one Justice. Id., at 158 (White, J., concurring). The position was rejected, to varying degrees, by the other eight. The four dissenters adopted, without comment, the proposition that conspiracy was a lesser included offense of CCE. See id., at 158, and 159, n. 5. The remaining Justices joined Justice Blackmun's plurality opinion which, while declining to hold that conspiracy was a lesser included offense,9 nonetheless explained why the Government's argument was inconsistent with the statute's text, with the way the words "in concert" have been used in other statutes, and with the legislative history of this statute.10 Based on its understanding of the "more likely" [ RUTLEDGE v. UNITED STATES, ___ U.S. ___ (1996), 7] interpretation of 848, the plurality assumed, arguendo, "that 848 does require proof of an agreement among the persons involved in the continuing criminal enterprise. So construed, 846 is a lesser included offense of 848, because 848 requires proof of every fact necessary to show a violation under 846 as well as proof of several additional elements." Id., at 149-150.In the years since Jeffers was decided, the Courts of Appeals have also consistently rejected the Government's interpretation of the "in concert" language of 848; they have concluded, without exception, that conspiracy is a lesser included offense of CCE.11 We think it is appropriate now to resolve the point definitively: For the reasons set forth in Jeffers, and particularly because the plain meaning of the phrase "in concert" signifies mutual agreement in a common plan or enterprise, we hold that this element of the CCE offense requires proof of a [ RUTLEDGE v. UNITED STATES, ___ U.S. ___ (1996), 8] conspiracy that would also violate 846. Because 846 does not require proof of any fact that is not also a part of the CCE offense, a straightforward application of the Blockburger test leads to the conclusion that conspiracy as defined in 846 does not define a different offense from the CCE offense defined in 848. Furthermore, since the latter offense is the more serious of the two, and because only one of its elements is necessary to prove a 846 conspiracy, it is appropriate to characterize 846 as a lesser included offense of 848.12 IIIThe Government contends that even if conspiracy is a lesser included offense of CCE, the resulting presumption against multiple punishments does not invalidate either of petitioner's convictions. The second conviction, the Government first argues, may not amount to a punishment at all.We begin by noting that 18 U.S.C. 3013 requires a federal district court to impose a $50 special assessment for every conviction, and that such an assessment was [ RUTLEDGE v. UNITED STATES, ___ U.S. ___ (1996), 9] imposed on both convictions in this case. As long as 3013 stands, a second conviction will amount to a second punishment. Cf. Ray v. United States, (per curiam) (presence of $50 assessment precludes application of "concurrent sentence doctrine"). The Government urges us not to rely on the assessment, however, pointing out that petitioner did not challenge it below, and noting that the question presented "presupposes" fully concurrent sentences. Brief for United States 7, n. 1.If we ignore the assessment as the Government requests, the force of its argument would nonetheless be limited by our decision in Ball v. United States, . There, we concluded that Congress did not intend to allow punishment for both illegally "receiving" and illegally "possessing" a firearm. Id., at 861-864. In light of that conclusion, we held that "the only remedy consistent with the congressional intent is for the District Court ... to exercise its discretion to vacate one of the underlying convictions" as well as the concurrent sentence based upon it. Id., at 864 (emphasis added). We explained further: "The second conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence. The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant's eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant's credibility and certainly carries the societal stigma accompanying any criminal conviction. See Benton v. Maryland, ; Sibron v. New York, . Thus, the second [ RUTLEDGE v. UNITED STATES, ___ U.S. ___ (1996), 10] conviction, even if it results in no greater sentence, is an impermissible punishment." Id., at 864-865. Under Ball, the collateral consequences of a second conviction make it as presumptively impermissible to impose as it would be to impose any other unauthorized cumulative sentence.The Government suggests, however, that petitioner will never be exposed to collateral consequences like those described in Ball because he is subject to multiple life sentences without possibility of release. We need not conclusively resolve the matter, for there is no doubt that the second conviction carried with it, at very least, a $50 assessment. Although the petitioner did not challenge the assessment below, 18 U.S.C. 3013 required the District Court to impose it, and the assessment was therefore as much a collateral consequence of the conspiracy conviction as the consequences recognized by Ball would be. As a result, the conviction amounts to cumulative punishment not authorized by Congress.IVThe Government further argues that even if the second conviction amounts to punishment, the presumption against allowing multiple punishments for the same crime may be overcome if Congress clearly indicates that it intended to allow courts to impose them. Hunter, 459 U.S., at 366 (citing Whalen, 445 U.S., at 691-692); Garrett, 471 U.S., at 779 (allowing multiple punishment in light of Congress' "plainly expressed" view). The Government submits that such clear intent can be found here.The Government finds support for its position in this Court's judgment in Jeffers because that judgment allowed convictions under both 846 and 848 to stand. Those convictions, however, had been entered in separate trials and our review only addressed the conviction [ RUTLEDGE v. UNITED STATES, ___ U.S. ___ (1996), 11] under 848. The Court affirmed that conviction not because anyone on the Court suggested that Congress had intended to authorize dual convictions for the same offense,13 but rather because the four-Justice plurality decided that Jeffers had waived any right to object to Jeffers' prosecution for that conviction, see Jeffers, 432 U.S., at 152-154, and because Justice White believed that the two prosecutions were for different offenses.The sole ground for Justice White's critical fifth vote to affirm the judgment was his belief, set forth in a single short paragraph, that conspiracy was not a lesser included offense of CCE. Id., at 158 (opinion concurring in judgment in part and dissenting in part). In Part II of this opinion we have rejected that view. Accordingly, even if we could infer that the plurality had silently reached the rather bizarre conclusion that Congress intended to allow dual convictions but to preclude other multiple punishments, only four Justices would have supported it, with four others explicitly disagreeing. As to this issue, then, the judgment amounts at best to nothing more than an unexplained affirmance by an equally divided court - a judgment not entitled to precedential weight no matter what reasoning may have supported it. See Neil v. Biggers, . The more important message conveyed by Jeffers is found not in the bare judgment, but in the plurality's conclusion, joined by the four dissenters, that CCE and conspiracy are insufficiently distinct to justify a finding [ RUTLEDGE v. UNITED STATES, ___ U.S. ___ (1996), 12] that Congress intended to allow punishments for both when they rest on the same activity.14 VFinally, the Government argues that Congress must have intended to allow multiple convictions because doing so would provide a "back up" conviction, preventing a defendant who later successfully challenges his greater offense from escaping punishment altogether - even if the basis for the reversal does not affect his conviction under the lesser. Brief for United States 20-22. We find the argument unpersuasive, for there is no reason why this pair of greater and lesser offenses should present any novel problem beyond that posed by [ RUTLEDGE v. UNITED STATES, ___ U.S. ___ (1996), 13] any other greater and lesser included offenses, for which the courts have already developed rules to avoid the perceived danger.In Tinder v. United States, , the defendant had been convicted of theft from a mailbox and improperly sentenced to prison for more than one year even though the evidence only supported a misdemeanor conviction. Exercising our "power to do justice as the case requires" pursuant to 28 U.S.C. 2106, we ordered the District Court to correct the sentence without vacating the underlying conviction. Relying on Tinder and the practice in "state courts, including courts governed by statutes virtually the same as Section 2106," the Court of Appeals for the District of Columbia Circuit later decided that its "power to modify erroneous judgments authorizes reduction to a lesser included offense where the evidence is insufficient to support an element of the [greater] offense stated in the verdict." Austin v. United States, 382 F.2d 129, 141-143 (1967).15 Consistent with the views expressed by the D.C. Circuit, federal appellate courts appear to have uniformly concluded that they may direct the entry of judgment for a lesser included offense when a conviction for a greater offense is reversed on grounds that affect only the greater offense. See 8A J. Moore, Federal Practice § 31.035., and n. 54 (2d ed. 1995); United States v. Ward, 37 F.3d 243, 251 (CA6 1994) (after finding [ RUTLEDGE v. UNITED STATES, ___ U.S. ___ (1996), 14] insufficient evidence to support CCE count, Court of Appeals vacated CCE conviction and sentence and remanded for entry of conspiracy conviction, which District Court had previously vacated as lesser included offense of CCE), cert. denied___ (1995); United States v. Silvers, 888 F. Supp. 1289, 1306-1309 (ND Md. 1995) (reinstating conspiracy conviction previously vacated after granting motion for new trial on CCE conviction). This Court has noted the use of such a practice with approval. Morris v. Mathews, (approving process of reducing erroneous greater offense to lesser included offense as long as the defendant is not able to demonstrate that "but for the improper inclusion of the [erroneous] charge, the result of the proceeding probably would have been different"). See also Jones v. Thomas, , n. 3 (1989) (citing Morris).There is no need for us now to consider the precise limits on the appellate courts' power to substitute a conviction on a lesser offense for an erroneous conviction of a greater offense.16 We need only note that the concern motivating the Government in asking us to endorse either the Seventh Circuit's practice of entering concurrent sentences on CCE and conspiracy counts, or the Second Circuit's practice of entering concurrent judgments, is no different from the problem that arises whenever a defendant is tried for greater and lesser offenses in the same proceeding. In such instances, neither legislatures nor courts have found it necessary [ RUTLEDGE v. UNITED STATES, ___ U.S. ___ (1996), 15] to impose multiple convictions, and we see no reason why Congress, faced with the same problem, would consider it necessary to deviate from the traditional rule.17 VIA guilty verdict on a 848 charge necessarily includes a finding that the defendant also participated in a conspiracy violative of 846; conspiracy is therefore a lesser included offense of CCE. Because the Government's arguments have not persuaded us otherwise, we adhere to the presumption that Congress intended to authorize only one punishment. Accordingly, "[o]ne of [petitioner's] convictions, as well as its concurrent sentence, is unauthorized punishment for a separate offense" and must be vacated. Ball, 470 U.S., at 864.The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

429 F.2d 423, certiorari dismissed as improvidently granted.Jack Greenberg argued the cause for petitioners. With him on the briefs were James M. Nabrit III, Charles Stephen Ralston, Elizabeth B. DuBois, and Thomas J. O'Sullivan.William Bradford Reynolds argued the cause for the federal respondents pro hac vice. With him on the brief were Solicitor General Griswold and Assistant Attorney General Gray. Stanley E. Preiser argued the cause and filed a brief for the state respondents.Kenneth F. Phillips filed a brief for the National Housing and Economic Development Law Project as amicus curiae urging reversal.PER CURIAM.The writ of certiorari is dismissed as improvidently granted.MR. JUSTICE HARLAN, concurring.In light of my Brother DOUGLAS' assertion, post, at 508, that today's disposition might be taken to impair the integrity of the "rule of four," see Ferguson v. Moore-McCormack Lines, , 564 (1957) (opinion of this writer), I deem it appropriate to set forth my reasons for joining in the dismissal of the writ as improvidently granted. The Federal-Aid Highway Act of 1968 provided in pertinent part that: "The Secretary [of Transportation] shall not approve any project [such as that here involved] which will cause the displacement of any person ... unless he receives satisfactory assurances from the State Highway department that - ... . . "(3) within a reasonable period of time prior to displacement there will be available, to the extent that can reasonably be accomplished, in areas not generally less desirable in regard to public utilities and public and commercial facilities and at rents or prices within the financial means of the families and individuals displaced, decent, safe, and sanitary dwellings, as defined by the Secretary, equal in number to the number of and available to such displaced families and individuals and reasonably accessible to their places of employment." 23 U.S.C. 502 (1964 ed., Supp. V). The principal issue presented by this case is whether that statute, either of its own force or together with the administrative regulations promulgated pursuant to it, prevents the Secretary from authorizing construction of a segment of the interstate highway system, even where the rights-of-way had been acquired and some persons displaced prior to the effective date of the 1968 Act, unless the State first compiles a comprehensive formal relocation plan. In short, the question is what constitutes "satisfactory assurances" in such a case.Since certiorari was granted, a number of events have occurred that, in my judgment, have rendered this case wholly inappropriate for our review. First, the Act upon which petitioners base their case has been repealed. Secondly, a new statute has been enacted by the Congress that alters drastically the potential impact of any decision we might reach in this case. Third, we were informed that, as of the date of oral argument, less than 10 persons remained to be displaced by this federal project. Finally, in their brief on the merits in this Court, petitioners have almost completely abandoned their original claim for relief and now seek to broaden substantially the nature of the remedy they seek.The original prayer for relief simply sought to enjoin further displacement pending submission and implementation of a formal relocation plan by the West Virginia State Highway Department. The fact that the statute has been repealed since certiorari was granted and that less than 10 persons would be affected were we to accept petitioners' legal position renders this case, I think, a classic instance of a situation where the exercise of our powers of review would be of no significant continuing national import. Of course, every individual alleging he has been abused by the exercise of federal power should, as a general matter, be heard, even where his situation becomes unique due to repeal or cessation of the action he challenges. That is why federal district courts and courts of appeals are provided and vested with largely obligatory jurisdiction. Hearing such claims is not, however, a principal purpose for which this Court sits. See Rule 19 of the Rules of this Court.At the same time Congress repealed the 1968 Act it enacted the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970. 84 Stat. 1894. Its principal purpose, as the title implies, was to establish a uniform governing rule of federal law for all federally directed and federally financed projects that cause displacement of persons and businesses. The 1970 Act was very consciously modeled on the 1968 Federal-Aid Highway Act, following "as closely as possible [its] substantive provisions," S. Rep. No. 91-488 (1969), in an effort to assure that all persons uprooted by federal authority would receive the beneficent protection earlier extended to those situated in the path of highway construction. See especially 115 Cong. Rec. 31535 (remarks of Sen. Cooper). Section 210 of the new Act provides that:"[T]he head of a Federal agency shall not approve any grant to ... a State agency, under which Federal financial assistance will be available to pay all or part of the cost of any program or project which will result in the displacement of any person on or after the effective date of this title, unless he receives satisfactory assurances from such State agency that - ... . ."(2) relocation assistance programs offering the services described in section 205 shall be provided to such displaced persons;"(3) within a reasonable period of time prior to displacement, decent, safe, and sanitary replacement dwellings will be available to displaced persons in accordance with section 205 (c) (3)." Section 205 (c) (3) describes in some detail the services that must be provided. It does not, however, explicitly state that such "program" shall include a comprehensive plan reflecting the projected relocation of each individual affected.Arguably, the presence of this provision would enhance the general significance of our construction of the relevant,1 and similarly worded, section of the 1968 Act. Indeed, my Brother DOUGLAS asserts that "any necessary interpretation of the 1968 [Act] would be equally applicable to the 1970 Act." Post, at 504, n. 1. For me, however, this does not increase, but rather further diminishes, the appropriateness of our ruling in the instant case.This case comes to us on a record that sheds light only upon the proper construction of the 1968 Act which governed only federal programs, administered by one agency, that aid highway construction by the States. It now appears that anything we might hold in that regard may very well have to be carried over in full force to govern the administration of the large number of federal programs that bring about human displacement. To render our determination upon such a wide-ranging issue we should, at a minimum, have the benefit of the thinking of lower federal courts on this problem, as well as some knowledge of the responses of the various affected agencies to this new statute. Yet we are entirely without these essential aids.To the extent, then, that the instant case has any significance for the future, it seems to me that such issues should await a case arising under the new statute. Insofar as the case can be said to present an issue only as to the proper construction of the 1968 Act, events subsequent to the granting of the writ have, as noted previously, robbed it of all national significance.Finally, it is troublesome that petitioners have virtually abandoned their initial claim for relief. Instead of the preparation of a plan,2 they now seek a decree to the effect that the District Court should bring before it all persons displaced by the highway and inquire whether their new locations meet statutory standards. As to this issue, there is neither an opinion below nor a record upon which to judge the claim. The case was tried upon a theory that the statutes require a formal plan, not that numerous individuals had been improperly relocated in fact. And there would seem to be no bar to the initiation of subsequent proceedings, in the District Court, raising individual claims of this sort where they do exist.In light of this changed posture of the case, I do not think its adjudication would be a provident expenditure of the energies of the Court. Cf. Sanks v. Georgia, .

[ Fleming v. Rhodes ], 101] Mr. Samuel Mermin, of Washington, D.C., for appellant. No appearance for appellees. Mr. Justice REED delivered the opinion of the Court. This appeal is from an interlocutory order of the District Court of the United States for the Northern District of Texas denying preliminary injunctions. Appellant's predecessor sued certain landlord appellees and the Sheriff and a constable of Tarrant County, Texas, in that United States district court for an injunction to stop eviction of tenants under state judgments that were recovered by the landlords in suits for restitution of leased property. 1 The state suits were filed by the landlords without the certificates required by the Rent Regulations for Housing to maintain such actions. 8 F.R. 7322; 10 F.R. 11666; 11 F.R. 5824, 8106. The state judgments were entered , 102] after June 30, 1946, the termination date of the Emergency Price Control Act, and before July 25, 1946, the date of the approval by the President of the Price Control Extension Act. As there was no federal price control statute during this period, these judgments will be treated as valid when granted. The decision of the district court, denying the motion as to the landlords and directing the entry of the order, was based on the unconstitutionality, as applied to these state judgments, of that portion of 18 of the Price Control Extension Act of July 25, 1946, that declared, 'The provisions of this Act shall take effect as of June 30, 1946, * * *'. 2 This provision the Court thought was unconstitutional (1) because the words affected the state judgments retroactively by bringing them under the Extension Act3 and (2) because the vested rights, created by the prior judgments in the landlords to obtain restitution of their leased properties, could not be destroyed by subsequent legislation. Apparently it was felt that the due process clause of the Fifth Amendment forbade such regulation of the incidents of judgments. The question is raised as to whether the Act of August 24, 1937, 50 Stat. 751, 28 U.S.C.A. 17, 349a, 380a, 401, confers power upon this Court to review, on direct appeal, a ruling against the constitutionality of an act of Congress when the ruling of unconstitutionality is made in the application of the statute to a particular circumstance, as in this appeal, rather than upon the challenged statute as a , 103] whole. A reading of the first three sections of the act convinces us that Congress granted litigants in courts of the United States a direct appeal to this Court from decisions against the constitutionality of any act of Congress as applied in the pending litigation. The first section only authorizesthe interv ention of the United States in private litigation, 'whenever the constitutionality of any Act of Congress affecting the public interest is drawn in question.'4 It has nothing to do with appeals. The second section allows an appeal to this Court from a final or interlocutory order only when the United States is a party, through the preceding 1 or roiginally, and the decision is against the constitutionality of the federal law. It provides for expedition in our determination of the appeal. Section three relates to the allowance or refusal of injunctions staying acts of Congress in whole or in part on the ground of repugnancy to the Constitution, and requires a three-judge court, expedition in determination and notice to the United States. The specific provision for prompt review of judgments granting or denying 'in whole or in part' such an injunction is limited to applications for stays of acts of Congress because of their unconstitutionality. Thus the constitutionality of federal acts comes to us by direct appeal, under the Act of August 24, 1937, only when the United States is a party to the litigation below or an injunction is sought. This enables the United States to exercise large discretion, by its determination as to whether or not to intervene, as to what cases are reviewable directly , 104] in this Court. 5 The Congress intended prompt review of the constitutionality of federal acts. 6 Since 1 allows intervention when the constitutionality of an act is 'drawn in question' and 2 allows appeal after intervention, it follows that there is an appeal from an order that invalidates, as unconstitutional, a statute as applied. To limit the generality of the language of 2 of the Act of August 24, 1937, to cases that involved only the constitutionality as a whole of the challenged statutes might seriously impair prompt determinations of matters of great public interest. Litigants may challenge the constitutionality of a statute only in so far as it affects them. 7 We hold that jurisdiction of the appeal from the challenged order is conferred upon this Court by 28 U. S.C. 349a, 28 U.S.C.A. 349a. The Court was also of the view that 265 of the Judicial Code, 28 U. S.C.A. 379, barred any injunction against the state officials. The appellant sought njunctions against future eviction of these tenants through writs of restitution or other process by which eviction might be con- , 105] summated. Sections 2(d), 4(a) and 205(a) of the Emergency Price Control Act of 1942, as amended, and Rent Regulation 6(a), set out below. 8 Such an injunction is in accord with the administrative Interpretations of , 106] the Rent Regulation. 9 The properties involved in this litigation were defense-area housing accommodations. There is no suggestion that the heretofore referred to sections of the price control acts and 6 of the Rent Regulations for Housing do not authorize these legal proceedings. The constitutionality of the price control acts, generally considered, is unquestioned. Bowles v. Willingham, . The sole inquiry for us, at this point, is whether it was erroneous for the district court to refuse to allow the temporary injunction, because to do so would invade the constitutional right of the landlord appellees to retain the fruits of their 'vested rights' in the valid judgments. As the appellant is undertaking to enjoin future eviction of the tenants or lessees, our consideration is not affected by the proviso of 18 of the Extension Act, set out in the margin. 10 The retroactive provision of 18, quoted above , 107] at note 2, is inapposite for the same reason. It is immaterial whether the state judgments were obtained before or after the effective date of the Extension Act. The effort of the appellant is to enjoin future proceedings for eviction after the acquisition by the landlord appellees through valid judgments of what the district court characterized as 'vested rights.' Federal regulation of future action based upon rights previously acquired by the person regulated is not prohibited by the Constitution. So long as the Constitution authorizes the subsequently enacted legislation, the fact that its provisions limit or interfere with previously acquired rights does not condemn it. Immunity from federal regulation is not gained through forehanded contracts. Were it otherwise the paramount powers of Congress could be nullified by 'prophetic discernment.'11 The rights acquired by judgments have no different standing. 12 The protection of housing accommodations in defense-areas through the price control acts may be accomplished by the appellant notwithstanding these prior judgments. The preliminary injunctions should have been granted. Only a word need be said as to the contention that 265 of the Judicial Code forbids an injunction against the execution of state judgments by state officers. 13 A contention , 108] was made before this Court in similar cases last term that 265 forbade a federal injunction to stay such proceedings in any court of a state. The argument was not accepted. We thought that 205 (a) of the Emergency Price Control Act of 1942 created an exception to 265.14 No specific mention was made in these opinions as to whether state officers who were parties in the case could be enjoined. However, we do not see any ground, under 265 of the Judicial Code, to differentiate as to stays against a sheriff or a constable or says against the parties to the litigation. We think the District Court had power to stay the sheriff and constable. Judgment reversed. Mr. Justice FRANKFURTER (dissenting). In considering the scope of our appellate jurisdiction, great weight should be given to the strong policy of the Congress, ever since the Judiciary Act of 1891, to keep the docket of this Court within manageable proportions for the wise disposition of causes by the ultimate judicial tribunal. That consideration applies also to the few Acts, passed since the creation of the circuit courts of appeals, which allow cases to come here directly from the district court where issues of great public importance, such as the constitutionality of legislation, are at stake. In Dahnke-Walker Milling Co. v. Bondurant, , this Court gave an expansive content to review, as a matter of right, of State court judgments where is drawn in question 'the validity of a statute.' Our jurisdiction was held to cover review of a finding of unconstitutionality in the application of a statute to a particular situation, though the statute is otherwise left in full force and effect. While, for the reasons set forth in the dissent of Mr. Justice , 109] Brandeis, I have never been reconciled to the soundness of that decision, I accept it. But I do not feel obliged to extend its scope beyond its requirements. There is an important difference between review of State court decisions and decisions of the district courts. The latter are subject to review as a matter of course by the circuit courts of appeals. They are not dependent on review by grace through certiorari, as would be comparable State decisions except for the Dahnke-Walker doctrine. I do not feel myself required by the Act of August 24, 1937, to hold that direct appeal lies to this Court whenever a district court finds unconstitutional an application of a statute to the circumstances of a particular case. It is one thing not to allow final determination of the fate of a federal statute to be delayed until a decision of a district court can go through a circuit court of appeals and then reach this Court. It is quite another thing to bring here directly from a district court every decision indicating unconstitutionality in application, no matter how restricted its incidence. Of course this does not mean that direct review of district court decisions by this Court would be available only for cases that involve 'the constitutionality as a whole' of a challenged statute. The Act of 1937 refers explicitly to invalidation 'in whole or in part.' Although this is made explicit in 3 of the Act, the scope of direct review here, on the score of unconstitutionality, ought not to be different under different sections of this Act. A direct appeal is called for only when a district court strikes down, in whole or in part, that which Congress has unequivocally written. It is unwarranted when all that is in issue is whether the allowable scope of what Congress has written excludes a particular situation. The immediate case gives point to these general observations. The incidents of a judgment are not the same , 110] in all the States. The effect of this Act upon judgments in the different States may thus involve consideration of the procedure of a particular State. These are hardly questions of the kind which led to the authorization, by the Act of August 24, 1937, of direct review where a district court's decision 'is against the constitutionality of any Act of Congress.' 50 Stat. 751, 752, 28 U.S.C.A. 401. Nor should it be decisive of this Court's exceptional jurisdiction on direct appeal from the distict courts that the Government is the litigant. Like other litigants the Government at times attaches importance to a particular case out of all proportion to the more comprehensive factors that should control this Court's jurisdiction. We cannot be blind to the fact that review here is sometimes pressed in response to commendable administrative earnestness which fails, however, to take fully into account the demands of this Court's business. Moreover, it was not the interest of the Government as such which moved Congress to grant direct appeals from the district courts. By the Judiciary Act of 1925 Congress narrowly confined direct review here of district court decisions regardless of the character of the litigant, and the extension of such review by the Act of 1937 should be strictly confined. I would dismiss this appeal and remand the case to the Circuit Court of Appeals. See Oklahoma Gas & Electric Co. v. Oklahoma Packing Co., , 735, and Phillips v. United States, , 484.

During most of the time that petitioner Ledbetter was employed by respondent Goodyear, salaried employees at the plant where she worked were given or denied raises based on performance evaluations. Ledbetter submitted a questionnaire to the Equal Employment Opportunity Commission (EEOC) in March 1998 and a formal EEOC charge in July 1998. After her November 1998 retirement, she filed suit, asserting, among other things, a sex discrimination claim under Title VII of the Civil Rights Act of 1964. The District Court allowed her Title VII pay discrimination claim to proceed to trial. There, Ledbetter alleged that several supervisors had in the past given her poor evaluations because of her sex; that as a result, her pay had not increased as much as it would have if she had been evaluated fairly; that those past pay decisions affected the amount of her pay throughout her employment; and that by the end of her employment, she was earning significantly less than her male colleagues. Goodyear maintained that the evaluations had been nondiscriminatory, but the jury found for Ledbetter, awarding backpay and damages. On appeal, Goodyear contended that the pay discrimination claim was time barred with regard to all pay decisions made before September 26, 1997 — 180 days before Ledbetter filed her EEOC questionnaire — and that no discriminatory act relating to her pay occurred after that date. The Eleventh Circuit reversed, holding that a Title VII pay discrimination claim cannot be based on allegedly discriminatory events that occurred before the last pay decision that affected the employee's pay during the EEOC charging period, and concluding that there was insufficient evidence to prove that Goodyear had acted with discriminatory intent in making the only two pay decisions during that period, denials of raises in 1997 and 1998. Held: Because the later effects of past discrimination do not restart the clock for filing an EEOC charge, Ledbetter's claim is untimely. Pp. 4-24. (a) An individual wishing to bring a Title VII lawsuit must first file an EEOC charge within, as relevant here, 180 days "after the alleged unlawful employment practice occurred." 42 U. S. C. §2000e-2(a)(1). In addressing the issue of an EEOC charge's timeliness, this Court has stressed the need to identify with care the specific employment practice at issue. Ledbetter's arguments — that the paychecks that she received during the charging period and the 1998 raise denial each violated Title VII and triggered a new EEOC charging period — fail because they would require the Court in effect to jettison the defining element of the disparate-treatment claim on which her Title VII recovery was based, discriminatory intent. United Air Lines, Inc. v. Evans, 431 U. S. 553, Delaware State College v. Ricks, 449 U. S. 250, Lorance v. AT&T Technologies, Inc., 490 U. S. 900, and National Railroad Passenger Corporation v. Morgan, 536 U. S. 101, clearly instruct that the EEOC charging period is triggered when a discrete unlawful practice takes place. A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination. But if an employer engages in a series of separately actionable intentionally discriminatory acts, then a fresh violation takes place when each act is committed. Ledbetter makes no claim that intentionally discriminatory conduct occurred during the charging period or that discriminatory decisions occurring before that period were not communicated to her. She argues simply that Goodyear's nondiscriminatory conduct during the charging period gave present effect to discriminatory conduct outside of that period. But current effects alone cannot breathe life into prior, uncharged discrimination. Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory employment decision was made and communicated to her. Her attempt to shift forward the intent associated with prior discriminatory acts to the 1998 pay decision is unsound, for it would shift intent away from the act that consummated the discriminatory employment practice to a later act not performed with bias or discriminatory motive, imposing liability in the absence of the requisite intent. Her argument would also distort Title VII's "integrated, multistep enforcement procedure." Occidental Life Ins. Co. of Cal. v. EEOC, 432 U. S. 355, 359. The short EEOC filing deadline reflects Congress' strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation. Id., at 367-368. Nothing in Title VII supports treating the intent element of Ledbetter's disparate-treatment claim any differently from the employment practice element of the claim. Pp. 4-13. (b) Bazemore v. Friday, 478 U. S. 385 (per curiam), which concerned a disparate-treatment pay claim, is entirely consistent with Evans, Ricks, Lorance, and Morgan. Bazemore's rule is that an employer violates Title VII and triggers a new EEOC charging period whenever the employer issues paychecks using a discriminatory pay structure. It is not, as Ledbetter contends, a "paycheck accrual rule" under which each paycheck, even if not accompanied by discriminatory intent, triggers a new EEOC charging period during which the complainant may properly challenge any prior discriminatory conduct that impacted that paycheck's amount, no matter how long ago the discrimination occurred. Because Ledbetter has not adduced evidence that Goodyear initially adopted its performance-based pay system in order to discriminate based on sex or that it later applied this system to her within the charging period with discriminatory animus, Bazemore is of no help to her. Pp. 13-21. (c) Ledbetter's "paycheck accrual rule" is also not supported by either analogies to the statutory regimes of the Equal Pay Act of 1963, the Fair Labor Standards Act of 1938, or the National Labor Relations Act, or policy arguments for giving special treatment to pay claims. Pp. 21-24.421 F. 3d 1169, affirmed. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Thomas, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Stevens, Souter, and Breyer, JJ., joined.LILLY M. LEDBETTER, PETITIONER v. THE GOOD-YEAR TIRE & RUBBER COMPANY, INC.on writ of certiorari to the united states court of appeals for the eleventh circuit[May 29, 2007] Justice Alito delivered the opinion of the Court. This case calls upon us to apply established precedent in a slightly different context. We have previously held that the time for filing a charge of employment discrimination with the Equal Employment Opportunity Commission (EEOC) begins when the discriminatory act occurs. We have explained that this rule applies to any "[d]iscrete ac[t]" of discrimination, including discrimination in "termination, failure to promote, denial of transfer, [and] refusal to hire." National Railroad Passenger Corporation v. Morgan, 536 U. S. 101, 114 (2002). Because a pay-setting decision is a "discrete act," it follows that the period for filing an EEOC charge begins when the act occurs. Petitioner, having abandoned her claim under the Equal Pay Act, asks us to deviate from our prior decisions in order to permit her to assert her claim under Title VII. Petitioner also contends that discrimination in pay is different from other types of employment discrimination and thus should be governed by a different rule. But because a pay-setting decision is a discrete act that occurs at a particular point in time, these arguments must be rejected. We therefore affirm the judgment of the Court of Appeals.I Petitioner Lilly Ledbetter (Ledbetter) worked for respondent Goodyear Tire and Rubber Company (Goodyear) at its Gadsden, Alabama, plant from 1979 until 1998. During much of this time, salaried employees at the plant were given or denied raises based on their supervisors' evaluation of their performance. In March 1998, Ledbetter submitted a questionnaire to the EEOC alleging certain acts of sex discrimination, and in July of that year she filed a formal EEOC charge. After taking early retirement in November 1998, Ledbetter commenced this action, in which she asserted, among other claims, a Title VII pay discrimination claim and a claim under the Equal Pay Act of 1963 (EPA), 29 U. S. C. §206(d). The District Court granted summary judgment in favor of Goodyear on several of Ledbetter's claims, including her Equal Pay Act claim, but allowed others, including her Title VII pay discrimination claim, to proceed to trial. In support of this latter claim, Ledbetter introduced evidence that during the course of her employment several supervisors had given her poor evaluations because of her sex, that as a result of these evaluations her pay was not increased as much as it would have been if she had been evaluated fairly, and that these past pay decisions continued to affect the amount of her pay throughout her employment. Toward the end of her time with Goodyear, she was being paid significantly less than any of her male colleagues. Goodyear maintained that the evaluations had been nondiscriminatory, but the jury found for Ledbetter and awarded her backpay and damages. On appeal, Goodyear contended that Ledbetter's pay discrimination claim was time barred with respect to all pay decisions made prior to September 26, 1997 — that is, 180 days before the filing of her EEOC questionnaire.1 And Goodyear argued that no discriminatory act relating to Ledbetter's pay occurred after that date. The Court of Appeals for the Eleventh Circuit reversed, holding that a Title VII pay discrimination claim cannot be based on any pay decision that occurred prior to the last pay decision that affected the employee's pay during the EEOC charging period. 421 F. 3d 1169, 1182-1183 (2005). The Court of Appeals then concluded that there was insufficient evidence to prove that Goodyear had acted with discriminatory intent in making the only two pay decisions that occurred within that time span, namely, a decision made in 1997 to deny Ledbetter a raise and a similar decision made in 1998. Id., at 1186-1187. Ledbetter filed a petition for a writ of certiorari but did not seek review of the Court of Appeals' holdings regarding the sufficiency of the evidence in relation to the 1997 and 1998 pay decisions. Rather, she sought review of the following question:"Whether and under what circumstances a plaintiff may bring an action under Title VII of the Civil Rights Act of 1964 alleging illegal pay discrimination when the disparate pay is received during the statutory limitations period, but is the result of intentionally discriminatory pay decisions that occurred outside the limitations period." Pet. for Cert. i.In light of disagreement among the Courts of Appeals as to the proper application of the limitations period in Title VII disparate-treatment pay cases, compare 421 F. 3d 1169, with Forsyth v. Federation Employment & Guidance Serv., 409 F. 3d 565 (CA2 2005); Shea v. Rice, 409 F. 3d 448 (CADC 2005), we granted certiorari, 548 U. S. ___ (2006).II Title VII of the Civil Rights Act of 1964 makes it an "unlawful employment practice" to discriminate "against any individual with respect to his compensation ... because of such individual's ... sex." 42 U. S. C. §2000e-2(a)(1). An individual wishing to challenge an employment practice under this provision must first file a charge with the EEOC. §2000e-5(e)(1). Such a charge must be filed within a specified period (either 180 or 300 days, depending on the State) "after the alleged unlawful employment practice occurred," ibid., and if the employee does not submit a timely EEOC charge, the employee may not challenge that practice in court, §2000e-5(f)(1). In addressing the issue whether an EEOC charge was filed on time, we have stressed the need to identify with care the specific employment practice that is at issue. Morgan, 536 U. S., at 110-111. Ledbetter points to two different employment practices as possible candidates. Primarily, she urges us to focus on the paychecks that were issued to her during the EEOC charging period (the 180-day period preceding the filing of her EEOC questionnaire), each of which, she contends, was a separate act of discrimination. Alternatively, Ledbetter directs us to the 1998 decision denying her a raise, and she argues that this decision was "unlawful because it carried forward intentionally discriminatory disparities from prior years." Reply Brief for Petitioner 20. Both of these arguments fail because they would require us in effect to jettison the defining element of the legal claim on which her Title VII recovery was based. Ledbetter asserted disparate treatment, the central element of which is discriminatory intent. See Chardon v. Fernandez, 454 U. S. 6, 8 (1981) (per curiam); Teamsters v. United States, 431 U. S. 324, 335, n. 15 (1977); Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 1002 (1998) (Blackmun, J., joined by Brennan, and Marshall, JJ., concurring in part and concurring in judgment) ("[A] disparate-treatment challenge focuses exclusively on the intent of the employer"). However, Ledbetter does not assert that the relevant Goodyear decisionmakers acted with actual discriminatory intent either when they issued her checks during the EEOC charging period or when they denied her a raise in 1998. Rather, she argues that the paychecks were unlawful because they would have been larger if she had been evaluated in a nondiscriminatory manner prior to the EEOC charging period. Brief for Petitioner 22. Similarly, she maintains that the 1998 decision was unlawful because it "carried forward" the effects of prior, uncharged discrimination decisions. Reply Brief for Petitioner 20. In essence, she suggests that it is sufficient that discriminatory acts that occurred prior to the charging period had continuing effects during that period. Brief for Petitioner 13 ("[E]ach paycheck that offers a woman less pay than a similarly situated man because of her sex is a separate violation of Title VII with its own limitations period, regardless of whether the paycheck simply implements a prior discriminatory decision made outside the limitations period"); see also Reply Brief for Petitioner 20. This argument is squarely foreclosed by our precedents. In United Air Lines, Inc. v. Evans, 431 U. S. 553 (1977), we rejected an argument that is basically the same as Ledbetter's. Evans was forced to resign because the airline refused to employ married flight attendants, but she did not file an EEOC charge regarding her termination. Some years later, the airline rehired her but treated her as a new employee for seniority purposes. Id., at 554-555. Evans then sued, arguing that, while any suit based on the original discrimination was time barred, the airline's refusal to give her credit for her prior service gave "present effect to [its] past illegal act and thereby perpetuate[d] the consequences of forbidden discrimination." Id., at 557. We agreed with Evans that the airline's "seniority system [did] indeed have a continuing impact on her pay and fringe benefits," id., at 558, but we noted that "the critical question [was] whether any present violation exist[ed]." Ibid. (emphasis in original). We concluded that the continuing effects of the precharging period discrimination did not make out a present violation. As Justice Stevens wrote for the Court:"United was entitled to treat [Evans' termination] as lawful after respondent failed to file a charge of discrimination within the 90 days then allowed by §706(d). A discriminatory act which is not made the basis for a timely charge ... is merely an unfortunate event in history which has no present legal consequences." Ibid.It would be difficult to speak to the point more directly. Equally instructive is Delaware State College v. Ricks, 449 U. S. 250 (1980), which concerned a college librarian, Ricks, who alleged that he had been discharged because of race. In March 1974, Ricks was denied tenure, but he was given a final, nonrenewable one-year contract that expired on June 30, 1975. Id., at 252-253. Ricks delayed filing a charge with the EEOC until April 1975, id., at 254, but he argued that the EEOC charging period ran from the date of his actual termination rather than from the date when tenure was denied. In rejecting this argument, we recognized that "one of the effects of the denial of tenure," namely, his ultimate termination, "did not occur until later." Id., at 258 (emphasis in original). But because Ricks failed to identify any specific discriminatory act "that continued until, or occurred at the time of, the actual termination of his employment," id., at 257, we held that the EEOC charging period ran from "the time the tenure decision was made and communicated to Ricks," id., at 258. This same approach dictated the outcome in Lorance v. AT&T Technologies, Inc., 490 U. S. 900 (1989), which grew out of a change in the way in which seniority was calculated under a collective-bargaining agreement. Before 1979, all employees at the plant in question accrued seniority based simply on years of employment at the plant. In 1979, a new agreement made seniority for workers in the more highly paid (and traditionally male) position of "tester" depend on time spent in that position alone and not in other positions in the plant. Several years later, when female testers were laid off due to low seniority as calculated under the new provision, they filed an EEOC charge alleging that the 1979 scheme had been adopted with discriminatory intent, namely, to protect incumbent male testers when women with substantial plant seniority began to move into the traditionally male tester positions. Id., at 902-903. We held that the plaintiffs' EEOC charge was not timely because it was not filed within the specified period after the adoption in 1979 of the new seniority rule. We noted that the plaintiffs had not alleged that the new seniority rule treated men and women differently or that the rule had been applied in a discriminatory manner. Rather, their complaint was that the rule was adopted originally with discriminatory intent. Id., at 905. And as in Evans and Ricks, we held that the EEOC charging period ran from the time when the discrete act of alleged intentional discrimination occurred, not from the date when the effects of this practice were felt. 490 U. S., at 907-908. We stated:"Because the claimed invalidity of the facially nondiscriminatory and neutrally applied tester seniority system is wholly dependent on the alleged illegality of signing the underlying agreement, it is the date of that signing which governs the limitations period." Id., at 911.2 Our most recent decision in this area confirms this understanding. In Morgan, we explained that the statutory term "employment practice" generally refers to "a discrete act or single 'occurrence' " that takes place at a particular point in time. 536 U. S., at 110-111. We pointed to "termination, failure to promote, denial of transfer, [and] refusal to hire" as examples of such "discrete" acts, and we held that a Title VII plaintiff "can only file a charge to cover discrete acts that 'occurred' within the appropriate time period." Id., at 114. The instruction provided by Evans, Ricks, Lorance, and Morgan is clear. The EEOC charging period is triggered when a discrete unlawful practice takes place. A new violation does not occur, and a new charging period does not commence, upon the occurrence of subsequent nondiscriminatory acts that entail adverse effects resulting from the past discrimination. But of course, if an employer engages in a series of acts each of which is intentionally discriminatory, then a fresh violation takes place when each act is committed. See Morgan, supra, at 113. Ledbetter's arguments here — that the paychecks that she received during the charging period and the 1998 raise denial each violated Title VII and triggered a new EEOC charging period — cannot be reconciled with Evans, Ricks, Lorance, and Morgan. Ledbetter, as noted, makes no claim that intentionally discriminatory conduct occurred during the charging period or that discriminatory decisions that occurred prior to that period were not communicated to her. Instead, she argues simply that Goodyear's conduct during the charging period gave present effect to discriminatory conduct outside of that period. Brief for Petitioner 13. But current effects alone cannot breathe life into prior, uncharged discrimination; as we held in Evans, such effects in themselves have "no present legal consequences." 431 U. S., at 558. Ledbetter should have filed an EEOC charge within 180 days after each allegedly discriminatory pay decision was made and communicated to her. She did not do so, and the paychecks that were issued to her during the 180 days prior to the filing of her EEOC charge do not provide a basis for overcoming that prior failure. In an effort to circumvent the need to prove discriminatory intent during the charging period, Ledbetter relies on the intent associated with other decisions made by other persons at other times. Reply Brief for Petitioner 6 ("Intentional discrimination ... occurs when ... differential treatment takes place, even if the intent to engage in that conduct for a discriminatory purpose was made previously"). Ledbetter's attempt to take the intent associated with the prior pay decisions and shift it to the 1998 pay decision is unsound. It would shift intent from one act (the act that consummates the discriminatory employment practice) to a later act that was not performed with bias or discriminatory motive. The effect of this shift would be to impose liability in the absence of the requisite intent. Our cases recognize this point. In Evans, for example, we did not take the airline's discriminatory intent in 1968, when it discharged the plaintiff because of her sex, and attach that intent to its later act of neutrally applying its seniority rules. Similarly, in Ricks, we did not take the discriminatory intent that the college allegedly possessed when it denied Ricks tenure and attach that intent to its subsequent act of terminating his employment when his nonrenewable contract ran out. On the contrary, we held that "the only alleged discrimination occurred — and the filing limitations periods therefore commenced — at the time the tenure decision was made and communicated to Ricks." 449 U. S., at 258. Not only would Ledbetter's argument effectively eliminate the defining element of her disparate-treatment claim, but it would distort Title VII's "integrated, multistep enforcement procedure." Occidental Life Ins. Co. of Cal. v. EEOC, 432 U. S. 355, 359 (1977). We have previously noted the legislative compromises that preceded the enactment of Title VII, Mohasco Corp. v. Silver, 447 U. S. 807, 819-821 (1980); EEOC v. Commercial Office Products Co., 486 U. S. 107, 126 (1988) (Stevens, J., joined by Rehnquist, C. J., and Scalia, J., dissenting). Respectful of the legislative process that crafted this scheme, we must "give effect to the statute as enacted," Mohasco, supra, at 819, and we have repeatedly rejected suggestions that we extend or truncate Congress' deadlines. See, e.g., Electrical Workers v. Robbins & Myers, Inc., 429 U. S. 229, 236-240 (1976) (union grievance procedures do not toll EEOC filing deadline); Alexander v. Gardner-Denver Co., 415 U. S. 36, 47-49 (1974) (arbitral decisions do not foreclose access to court following a timely filed EEOC complaint). Statutes of limitations serve a policy of repose. American Pipe & Constr. Co. v. Utah, 414 U. S. 538, 554-555 (1974). They"represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that 'the right to be free of stale claims in time comes to prevail over the right to prosecute them.' " United States v. Kubrick, 444 U. S. 111, 117 (1979) (quoting Railroad Telegraphers v. Railway Express Agency, Inc., 321 U. S. 342, 349 (1944)). The EEOC filing deadline "protect[s] employers from the burden of defending claims arising from employment decisions that are long past." Ricks, supra, at 256-257. Certainly, the 180-day EEOC charging deadline, 42 U. S. C. §2000e-5(e)(1), is short by any measure, but "[b]y choosing what are obviously quite short deadlines, Congress clearly intended to encourage the prompt processing of all charges of employment discrimination." Mohasco, supra, at 825. This short deadline reflects Congress' strong preference for the prompt resolution of employment discrimination allegations through voluntary conciliation and cooperation. Occidental Life Ins., supra, at 367-368; Alexander, supra, at 44. A disparate-treatment claim comprises two elements: an employment practice, and discriminatory intent. Nothing in Title VII supports treating the intent element of Ledbetter's claim any differently from the employment practice element.3 If anything, concerns regarding stale claims weigh more heavily with respect to proof of the intent associated with employment practices than with the practices themselves. For example, in a case such as this in which the plaintiff's claim concerns the denial of raises, the employer's challenged acts (the decisions not to increase the employee's pay at the times in question) will almost always be documented and will typically not even be in dispute. By contrast, the employer's intent is almost always disputed, and evidence relating to intent may fade quickly with time. In most disparate-treatment cases, much if not all of the evidence of intent is circumstantial. Thus, the critical issue in a case involving a long-past performance evaluation will often be whether the evaluation was so far off the mark that a sufficient inference of discriminatory intent can be drawn. See Watson, 487 U. S., at 1004 (Blackmun, J., joined by Brennan and Marshall, JJ., concurring in part and concurring in judgment) (noting that in a disparate-treatment claim, the McDonnell Douglas factors establish discrimination by inference). See also, e.g., Zhuang v. Datacard Corp., 414 F. 3d 849 (CA8 2005) (rejecting inference of discrimination from performance evaluations); Cooper v. Southern Co., 390 F. 3d 695, 732-733 (CA11 2004) (same). This can be a subtle determination, and the passage of time may seriously diminish the ability of the parties and the factfinder to reconstruct what actually happened.4 Ledbetter contends that employers would be protected by the equitable doctrine of laches, but Congress plainly did not think that laches was sufficient in this context. Indeed, Congress took a diametrically different approach, including in Title VII a provision allowing only a few months in most cases to file a charge with the EEOC. 42 U. S. C. §2000e-5(e)(1). Ultimately, "experience teaches that strict adherence to the procedural requirements specified by the legislature is the best guarantee of evenhanded administration of the law." Mohasco, 447 U. S., at 826. By operation of §§2000e-5(e)(1) and 2000e-5(f)(1), a Title VII "claim is time barred if it is not filed within these time limits." Morgan, 536 U. S., at 109; Electrical Workers, 429 U. S., at 236. We therefore reject the suggestion that an employment practice committed with no improper purpose and no discriminatory intent is rendered unlawful nonetheless because it gives some effect to an intentional discriminatory act that occurred outside the charging period. Ledbetter's claim is, for this reason, untimely.IIIA In advancing her two theories Ledbetter does not seriously contest the logic of Evans, Ricks, Lorance, and Morgan as set out above, but rather argues that our decision in Bazemore v. Friday, 478 U. S. 385 (1986) (per curiam), requires different treatment of her claim because it relates to pay. Ledbetter focuses specifically on our statement that "[e]ach week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII." Id., at 395. She argues that in Bazemore we adopted a "paycheck accrual rule" under which each paycheck, even if not accompanied by discriminatory intent, triggers a new EEOC charging period during which the complainant may properly challenge any prior discriminatory conduct that impacted the amount of that paycheck, no matter how long ago the discrimination occurred. On this reading, Bazemore dispensed with the need to prove actual discriminatory intent in pay cases and, without giving any hint that it was doing so, repudiated the very different approach taken previously in Evans and Ricks. Ledbetter's interpretation is unsound. Bazemore concerned a disparate-treatment pay claim brought against the North Carolina Agricultural Extension Service (Service). 478 U. S., at 389-390. Service employees were originally segregated into "a white branch" and "a 'Negro branch,' " with the latter receiving less pay, but in 1965 the two branches were merged. Id., at 390-391. After Title VII was extended to public employees in 1972, black employees brought suit claiming that pay disparities attributable to the old dual pay scale persisted. Id., at 391. The Court of Appeals rejected this claim, which it interpreted to be that the " 'discriminatory difference in salaries should have been affirmatively eliminated.' " Id., at 395. This Court reversed in a per curiam opinion, 478 U. S., at 386-388, but all of the Members of the Court joined Justice Brennan's separate opinion, see id., at 388 (opinion concurring in part). Justice Brennan wrote:"The error of the Court of Appeals with respect to salary disparities created prior to 1972 and perpetuated thereafter is too obvious to warrant extended discussion: that the Extension Service discriminated with respect to salaries prior to the time it was covered by Title VII does not excuse perpetuating that discrimination after the Extension Service became covered by Title VII. To hold otherwise would have the effect of exempting from liability those employers who were historically the greatest offenders of the rights of blacks. A pattern or practice that would have constituted a violation of Title VII, but for the fact that the statute had not yet become effective, became a violation upon Title VII's effective date, and to the extent an employer continued to engage in that act or practice, it is liable under that statute. While recovery may not be permitted for pre-1972 acts of discrimination, to the extent that this discrimination was perpetuated after 1972, liability may be imposed." Id., at 395 (emphasis in original). Far from adopting the approach that Ledbetter advances here, this passage made a point that was "too obvious to warrant extended discussion," ibid.; namely, that when an employer adopts a facially discriminatory pay structure that puts some employees on a lower scale because of race, the employer engages in intentional discrimination whenever it issues a check to one of these disfavored employees. An employer that adopts and intentionally retains such a pay structure can surely be regarded as intending to discriminate on the basis of race as long as the structure is used. Bazemore thus is entirely consistent with our prior precedents, as Justice Brennan's opinion took care to point out. Noting that Evans turned on whether " 'any present violation exist[ed],' " Justice Brennan stated that the Bazemore plaintiffs were alleging that the defendants "ha[d] not from the date of the Act forward made all their employment decisions in a wholly nondiscriminatory way," 478 U. S., at 396-397, n. 6 (emphasis in original; internal quotation marks and brackets omitted)-which is to say that they had engaged in fresh discrimination. Justice Brennan added that the Court's "holding in no sense g[ave] legal effect to the pre-1972 actions, but, consistent with Evans ... focuse[d] on the present salary structure, which is illegal if it is a mere continuation of the pre-1965 discriminatory pay structure." Id., at 397, n. 6 (emphasis added). The sentence in Justice Brennan's opinion on which Ledbetter chiefly relies comes directly after the passage quoted above, and makes a similarly obvious point:"Each week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII, regardless of the fact that this pattern was begun prior to the effective date of Title VII." Id., at 395.5In other words, a freestanding violation may always be charged within its own charging period regardless of its connection to other violations. We repeated this same point more recently in Morgan: "The existence of past acts and the employee's prior knowledge of their occurrence ... does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed." 536 U. S., at 113.6 Neither of these opinions stands for the proposition that an action not comprising an employment practice and alleged discriminatory intent is separately chargeable, just because it is related to some past act of discrimination. Ledbetter attempts to eliminate the obvious inconsistencies between her interpretation of Bazemore and the Evans/Ricks/Lorance/Morgan line of cases on the ground that none of the latter cases involved pay raises, but the logic of our prior cases is fully applicable to pay cases. To take Evans as an example, the employee there was unlawfully terminated; this caused her to lose seniority; and the loss of seniority affected her wages, among other things. 431 U. S., at 555, n. 5 ("[S]eniority determine[s] a flight attendant's wages; the duration and timing of vacations; rights to retention in the event of layoffs and rights to re-employment thereafter; and rights to preferential selection of flight assignments"). The relationship between past discrimination and adverse present effects was the same in Evans as it is here. Thus, the argument that Ledbetter urges us to accept here would necessarily have commanded a different outcome in Evans. Bazemore stands for the proposition that an employer violates Title VII and triggers a new EEOC charging period whenever the employer issues paychecks using a discriminatory pay structure. But a new Title VII violation does not occur and a new charging period is not triggered when an employer issues paychecks pursuant to a system that is "facially nondiscriminatory and neutrally applied." Lorance, 490 U. S., at 911. The fact that precharging period discrimination adversely affects the calculation of a neutral factor (like seniority) that is used in determining future pay does not mean that each new paycheck constitutes a new violation and restarts the EEOC charging period. Because Ledbetter has not adduced evidence that Goodyear initially adopted its performance-based pay system in order to discriminate on the basis of sex or that it later applied this system to her within the charging period with any discriminatory animus, Bazemore is of no help to her. Rather, all Ledbetter has alleged is that Goodyear's agents discriminated against her individually in the past and that this discrimination reduced the amount of later paychecks. Because Ledbetter did not file timely EEOC charges relating to her employer's discriminatory pay decisions in the past, she cannot maintain a suit based on that past discrimination at this time.B The dissent also argues that pay claims are different. Its principal argument is that a pay discrimination claim is like a hostile work environment claim because both types of claims are " 'based on the cumulative effect of individual acts,' " post, at 6-7, but this analogy overlooks the critical conceptual distinction between these two types of claims. And although the dissent relies heavily on Morgan, the dissent's argument is fundamentally inconsistent with Morgan's reasoning. Morgan distinguished between "discrete" acts of discrimination and a hostile work environment. A discrete act of discrimination is an act that in itself "constitutes a separate actionable 'unlawful employment practice' " and that is temporally distinct. Morgan, 536 U. S., at 114, 117. As examples we identified "termination, failure to promote, denial of transfer, or refusal to hire." Id., at 114. A hostile work environment, on the other hand, typically comprises a succession of harassing acts, each of which "may not be actionable on its own." In addition, a hostile work environment claim "cannot be said to occur on any particular day." Id., at 115-116. In other words, the actionable wrong is the environment, not the individual acts that, taken together, create the environment.7 Contrary to the dissent's assertion, post, at 6-7, what Ledbetter alleged was not a single wrong consisting of a succession of acts. Instead, she alleged a series of discrete discriminatory acts, see Brief for Petitioner 13, 15 (arguing that payment of each paycheck constituted a separate violation of Title VII), each of which was independently identifiable and actionable, and Morgan is perfectly clear that when an employee alleges "serial violations," i.e., a series of actionable wrongs, a timely EEOC charge must be filed with respect to each discrete alleged violation. 536 U. S., at 113. While this fundamental misinterpretation of Morgan is alone sufficient to show that the dissent's approach must be rejected, it should also be noted that the dissent is coy as to whether it would apply the same rule to all pay discrimination claims or whether it would limit the rule to cases like Ledbetter's, in which multiple discriminatory pay decisions are alleged. The dissent relies on the fact that Ledbetter was allegedly subjected to a series of discriminatory pay decisions over a period of time, and the dissent suggests that she did not realize for some time that she had been victimized. But not all pay cases share these characteristics. If, as seems likely, the dissent would apply the same rule in all pay cases, then, if a single discriminatory pay decision made 20 years ago continued to affect an employee's pay today, the dissent would presumably hold that the employee could file a timely EEOC charge today. And the dissent would presumably allow this even if the employee had full knowledge of all the circumstances relating to the 20-year-old decision at the time it was made.8 The dissent, it appears, proposes that we adopt a special rule for pay cases based on the particular characteristics of one case that is certainly not representative of all pay cases and may not even be typical. We refuse to take that approach.IV In addition to the arguments previously discussed, Ledbetter relies largely on analogies to other statutory regimes and on extrastatutory policy arguments to support her "paycheck accrual rule."A Ledbetter places significant weight on the EPA, which was enacted contemporaneously with Title VII and prohibits paying unequal wages for equal work because of sex. 29 U. S. C. §206(d). Stating that "the lower courts routinely hear [EPA] claims challenging pay disparities that first arose outside the limitations period," Ledbetter suggests that we should hold that Title VII is violated each time an employee receives a paycheck that reflects past discrimination. Brief for Petitioner 34-35. The simple answer to this argument is that the EPA and Title VII are not the same. In particular, the EPA does not require the filing of a charge with the EEOC or proof of intentional discrimination. See §206(d)(1) (asking only whether the alleged inequality resulted from "any other factor other than sex"). Ledbetter originally asserted an EPA claim, but that claim was dismissed by the District Court and is not before us. If Ledbetter had pursued her EPA claim, she would not face the Title VII obstacles that she now confronts.9 Ledbetter's appeal to the Fair Labor Standards Act of 1938 (FLSA) is equally unavailing. Stating that it is "well established that the statute of limitations for violations of the minimum wage and overtime provisions of the [FLSA] runs anew with each paycheck," Brief for Petitioner 35, Ledbetter urges that the same should be true in a Title VII pay case. Again, however, Ledbetter's argument overlooks the fact that an FLSA minimum wage or overtime claim does not require proof of a specific intent to discriminate. See 29 U. S. C. §207 (establishing overtime rules); cf. §255(a) (establishing 2-year statute of limitations for FLSA claims, except for claims of a "willful violation," which may be commenced within 3 years). Ledbetter is on firmer ground in suggesting that we look to cases arising under the National Labor Relations Act (NLRA) since the NLRA provided a model for Title VII's remedial provisions and, like Title VII, requires the filing of a timely administrative charge (with the National Labor Relations Board) before suit may be maintained. Lorance, 490 U. S., at 909; Ford Motor Co. v. EEOC, 458 U. S. 219, 226, n. 8 (1982). Cf. 29 U. S. C. §160(b) ("[N]o complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board"). Ledbetter argues that the NLRA's 6-month statute of limitations begins anew for each paycheck reflecting a prior violation of the statute, but our precedents suggest otherwise. In Machinists v. NLRB, 362 U. S. 411, 416-417 (1960), we held that "where conduct occurring within the limitations period can be charged to be an unfair labor practice only through reliance on an earlier unfair labor practice[,] the use of the earlier unfair labor practice [merely] serves to cloak with illegality that which was otherwise lawful." This interpretation corresponds closely to our analysis in Evans and Ricks and supports our holding in the present case.B Ledbetter, finally, makes a variety of policy arguments in favor of giving the alleged victims of pay discrimination more time before they are required to file a charge with the EEOC. Among other things, she claims that pay discrimination is harder to detect than other forms of employment discrimination.10 We are not in a position to evaluate Ledbetter's policy arguments, and it is not our prerogative to change the way in which Title VII balances the interests of aggrieved employees against the interest in encouraging the "prompt processing of all charges of employment discrimination," Mohasco, 447 U. S., at 825, and the interest in repose. Ledbetter's policy arguments for giving special treatment to pay claims find no support in the statute and are inconsistent with our precedents.11 We apply the statute as written, and this means that any unlawful employment practice, including those involving compensation, must be presented to the EEOC within the period prescribed by statute.* * * For these reasons, the judgment of the Court of Appeals for the Eleventh Circuit is affirmed.It is so ordered.LILLY M. LEDBETTER, PETITIONER v. THE GOODYEAR TIRE & RUBBER COMPANY, INC.on writ of certiorari to the united states court of appeals for the eleventh circuit[May 29, 2007] Justice Ginsburg, with whom Justice Stevens, Justice Souter, and Justice Breyer join, dissenting. Lilly Ledbetter was a supervisor at Goodyear Tire and Rubber's plant in Gadsden, Alabama, from 1979 until her retirement in 1998. For most of those years, she worked as an area manager, a position largely occupied by men. Initially, Ledbetter's salary was in line with the salaries of men performing substantially similar work. Over time, however, her pay slipped in comparison to the pay of male area managers with equal or less seniority. By the end of 1997, Ledbetter was the only woman working as an area manager and the pay discrepancy between Ledbetter and her 15 male counterparts was stark: Ledbetter was paid $3,727 per month; the lowest paid male area manager received $4,286 per month, the highest paid, $5,236. See 421 F. 3d 1169, 1174 (CA11 2005); Brief for Petitioner 4. Ledbetter launched charges of discrimination before the Equal Employment Opportunity Commission (EEOC) in March 1998. Her formal administrative complaint specified that, in violation of Title VII, Goodyear paid her a discriminatorily low salary because of her sex. See 42 U. S. C. §2000e-2(a)(1) (rendering it unlawful for an employer "to discriminate against any individual with respect to [her] compensation ... because of such individual's ... sex"). That charge was eventually tried to a jury, which found it "more likely than not that [Goodyear] paid [Ledbetter] a[n] unequal salary because of her sex." App. 102. In accord with the jury's liability determination, the District Court entered judgment for Ledbetter for backpay and damages, plus counsel fees and costs. The Court of Appeals for the Eleventh Circuit reversed. Relying on Goodyear's system of annual merit-based raises, the court held that Ledbetter's claim, in relevant part, was time barred. 421 F. 3d, at 1171, 1182-1183. Title VII provides that a charge of discrimination "shall be filed within [180] days after the alleged unlawful employment practice occurred." 42 U. S. C. §2000e-5(e)(1).1 Ledbetter charged, and proved at trial, that within the 180-day period, her pay was substantially less than the pay of men doing the same work. Further, she introduced evidence sufficient to establish that discrimination against female managers at the Gadsden plant, not performance inadequacies on her part, accounted for the pay differential. See, e.g., App. 36-47, 51-68, 82-87, 90-98, 112-113. That evidence was unavailing, the Eleventh Circuit held, and the Court today agrees, because it was incumbent on Ledbetter to file charges year-by-year, each time Goodyear failed to increase her salary commensurate with the salaries of male peers. Any annual pay decision not contested immediately (within 180 days), the Court affirms, becomes grandfathered, a fait accompli beyond the province of Title VII ever to repair. The Court's insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter's case, in small increments; cause to suspect that discrimination is at work develops only over time. Comparative pay information, moreover, is often hidden from the employee's view. Employers may keep under wraps the pay differentials maintained among supervisors, no less the reasons for those differentials. Small initial discrepancies may not be seen as meet for a federal case, particularly when the employee, trying to succeed in a nontraditional environment, is averse to making waves. Pay disparities are thus significantly different from adverse actions "such as termination, failure to promote, ... or refusal to hire," all involving fully communicated discrete acts, "easy to identify" as discriminatory. See National Railroad Passenger Corporation v. Morgan, 536 U. S. 101, 114 (2002). It is only when the disparity becomes apparent and sizable, e.g., through future raises calculated as a percentage of current salaries, that an employee in Ledbetter's situation is likely to comprehend her plight and, therefore, to complain. Her initial readiness to give her employer the benefit of the doubt should not preclude her from later challenging the then current and continuing payment of a wage depressed on account of her sex. On questions of time under Title VII, we have identified as the critical inquiries: "What constitutes an 'unlawful employment practice' and when has that practice 'occurred'?" Id., at 110. Our precedent suggests, and lower courts have overwhelmingly held, that the unlawful practice is the current payment of salaries infected by gender-based (or race-based) discrimination — a practice that occurs whenever a paycheck delivers less to a woman than to a similarly situated man. See Bazemore v. Friday, 478 U. S. 385, 395 (1986) (Brennan, J., joined by all other Members of the Court, concurring in part).I Title VII proscribes as an "unlawful employment practice" discrimination "against any individual with respect to his compensation ... because of such individual's race, color, religion, sex, or national origin." 42 U. S. C. §2000e-2(a)(1). An individual seeking to challenge an employment practice under this proscription must file a charge with the EEOC within 180 days "after the alleged unlawful employment practice occurred." §2000e-5(e)(1). See ante, at 4; supra, at 2, n. 1. Ledbetter's petition presents a question important to the sound application of Title VII: What activity qualifies as an unlawful employment practice in cases of discrimination with respect to compensation. One answer identifies the pay-setting decision, and that decision alone, as the unlawful practice. Under this view, each particular salary-setting decision is discrete from prior and subsequent decisions, and must be challenged within 180 days on pain of forfeiture. Another response counts both the pay-setting decision and the actual payment of a discriminatory wage as unlawful practices. Under this approach, each payment of a wage or salary infected by sex-based discrimination constitutes an unlawful employment practice; prior decisions, outside the 180-day charge-filing period, are not themselves actionable, but they are relevant in determining the lawfulness of conduct within the period. The Court adopts the first view, see ante, at 1, 4, 9, but the second is more faithful to precedent, more in tune with the realities of the workplace, and more respectful of Title VII's remedial purpose.A In Bazemore, we unanimously held that an employer, the North Carolina Agricultural Extension Service, committed an unlawful employment practice each time it paid black employees less than similarly situated white employees. 478 U. S., at 395 (opinion of Brennan, J.). Before 1965, the Extension Service was divided into two branches: a white branch and a "Negro branch." Id., at 390. Employees in the "Negro branch" were paid less than their white counterparts. In response to the Civil Rights Act of 1964, which included Title VII, the State merged the two branches into a single organization, made adjustments to reduce the salary disparity, and began giving annual raises based on nondiscriminatory factors. Id., at 390-391, 394-395. Nonetheless, "some pre-existing salary disparities continued to linger on." Id., at 394 (internal quotation marks omitted). We rejected the Court of Appeals' conclusion that the plaintiffs could not prevail because the lingering disparities were simply a continuing effect of a decision lawfully made prior to the effective date of Title VII. See id., at 395-396. Rather, we reasoned, "[e]ach week's paycheck that delivers less to a black than to a similarly situated white is a wrong actionable under Title VII." Id., at 395. Paychecks perpetuating past discrimination, we thus recognized, are actionable not simply because they are "related" to a decision made outside the charge-filing period, cf. ante, at 17, but because they discriminate anew each time they issue, see Bazemore, 478 U. S., at 395-396, and n. 6; Morgan, 536 U. S., at 111-112. Subsequently, in Morgan, we set apart, for purposes of Title VII's timely filing requirement, unlawful employment actions of two kinds: "discrete acts" that are "easy to identify" as discriminatory, and acts that recur and are cumulative in impact. See id., at 110, 113-115. "[A] [d]iscrete ac[t] such as termination, failure to promote, denial of transfer, or refusal to hire," id., at 114, we explained, " 'occur[s]' on the day that it 'happen[s].' A party, therefore, must file a charge within ... 180 ... days of the date of the act or lose the ability to recover for it." Id., at 110; see id., at 113 ("[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act."). "[D]ifferent in kind from discrete acts," we made clear, are "claims ... based on the cumulative effect of individual acts." Id., at 115. The Morgan decision placed hostile work environment claims in that category. "Their very nature involves repeated conduct." Ibid. "The unlawful employment practice" in hostile work environment claims, "cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." Ibid. (internal quotation marks omitted). The persistence of the discriminatory conduct both indicates that management should have known of its existence and produces a cognizable harm. Ibid. Because the very nature of the hostile work environment claim involves repeated conduct,"[i]t does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period. Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id., at 117.Consequently, although the unlawful conduct began in the past, "a charge may be filed at a later date and still encompass the whole." Ibid. Pay disparities, of the kind Ledbetter experienced, have a closer kinship to hostile work environment claims than to charges of a single episode of discrimination. Ledbetter's claim, resembling Morgan's, rested not on one particular paycheck, but on "the cumulative effect of individual acts." See id., at 115. See also Brief for Petitioner 13, 15-17, and n. 9 (analogizing Ledbetter's claim to the recurring and cumulative harm at issue in Morgan); Reply Brief for Petitioner 13 (distinguishing pay discrimination from "easy to identify" discrete acts (internal quotation marks omitted)). She charged insidious discrimination building up slowly but steadily. See Brief for Petitioner 5-8. Initially in line with the salaries of men performing substantially the same work, Ledbetter's salary fell 15 to 40 percent behind her male counterparts only after successive evaluations and percentage-based pay adjustments. See supra, at 1-2. Over time, she alleged and proved, the repetition of pay decisions undervaluing her work gave rise to the current discrimination of which she complained. Though component acts fell outside the charge-filing period, with each new paycheck, Goodyear contributed incrementally to the accumulating harm. See Morgan, 536 U. S., at 117; Bazemore, 478 U. S., at 395-396; cf. Hanover Shoe, Inc. v. United Shoe Machinery Corp., 392 U. S. 481, 502, n. 15 (1968).2B The realities of the workplace reveal why the discrimination with respect to compensation that Ledbetter suffered does not fit within the category of singular discrete acts "easy to identify." A worker knows immediately if she is denied a promotion or transfer, if she is fired or refused employment. And promotions, transfers, hirings, and firings are generally public events, known to co-workers. When an employer makes a decision of such open and definitive character, an employee can immediately seek out an explanation and evaluate it for pretext. Compensation disparities, in contrast, are often hidden from sight. It is not unusual, decisions in point illustrate, for management to decline to publish employee pay levels, or for employees to keep private their own salaries. See, e.g., Goodwin v. General Motors Corp., 275 F. 3d 1005, 1008-1009 (CA10 2002) (plaintiff did not know what her colleagues earned until a printout listing of salaries appeared on her desk, seven years after her starting salary was set lower than her co-workers' salaries); McMillan v. Massachusetts Soc. for the Prevention of Cruelty to Animals, 140 F. 3d 288, 296 (CA1 1998) (plaintiff worked for employer for years before learning of salary disparity published in a newspaper).3 Tellingly, as the record in this case bears out, Goodyear kept salaries confidential; employees had only limited access to information regarding their colleagues' earnings. App. 56-57, 89. The problem of concealed pay discrimination is particularly acute where the disparity arises not because the female employee is flatly denied a raise but because male counterparts are given larger raises. Having received a pay increase, the female employee is unlikely to discern at once that she has experienced an adverse employment decision. She may have little reason even to suspect discrimination until a pattern develops incrementally and she ultimately becomes aware of the disparity. Even if an employee suspects that the reason for a comparatively low raise is not performance but sex (or another protected ground), the amount involved may seem too small, or the employer's intent too ambiguous, to make the issue immediately actionable — or winnable. Further separating pay claims from the discrete employment actions identified in Morgan, an employer gains from sex-based pay disparities in a way it does not from a discriminatory denial of promotion, hiring, or transfer. When a male employee is selected over a female for a higher level position, someone still gets the promotion and is paid a higher salary; the employer is not enriched. But when a woman is paid less than a similarly situated man, the employer reduces its costs each time the pay differential is implemented. Furthermore, decisions on promotions, like decisions installing seniority systems, often implicate the interests of third-party employees in a way that pay differentials do not. Cf. Teamsters v. United States, 431 U. S. 324, 352-353 (1977) (recognizing that seniority systems involve "vested ... rights of employees" and concluding that Title VII was not intended to "destroy or water down" those rights). Disparate pay, by contrast, can be remedied at any time solely at the expense of the employer who acts in a discriminatory fashion.C In light of the significant differences between pay disparities and discrete employment decisions of the type identified in Morgan, the cases on which the Court relies hold no sway. See ante, at 5-10 (discussing United Air Lines, Inc. v. Evans, 431 U. S. 553 (1977), Delaware State College v. Ricks, 449 U. S. 250 (1980), and Lorance v. AT&T Technologies, Inc., 490 U. S. 900 (1989)). Evans and Ricks both involved a single, immediately identifiable act of discrimination: in Evans, a constructive discharge, 431 U. S., at 554; in Ricks, a denial of tenure, 449 U. S., at 252. In each case, the employee filed charges well after the discrete discriminatory act occurred: When United Airlines forced Evans to resign because of its policy barring married female flight attendants, she filed no charge; only four years later, when Evans was rehired, did she allege that the airline's former no-marriage rule was unlawful and therefore should not operate to deny her seniority credit for her prior service. See Evans, 431 U. S., at 554-557. Similarly, when Delaware State College denied Ricks tenure, he did not object until his terminal contract came to an end, one year later. Ricks, 449 U. S., at 253-254, 257-258. No repetitive, cumulative discriminatory employment practice was at issue in either case. See Evans, 431 U. S., at 557-558; Ricks, 449 U. S., at 258.4 Lorance is also inapposite, for, in this Court's view, it too involved a one-time discrete act: the adoption of a new seniority system that "had its genesis in sex discrimination." See 490 U. S., at 902, 905 (internal quotation marks omitted). The Court's extensive reliance on Lorance, ante, at 7-9, 14, 17-18, moreover, is perplexing for that decision is no longer effective: In the 1991 Civil Rights Act, Congress superseded Lorance's holding. §112, 105 Stat. 1079 (codified as amended at 42 U. S. C. §2000e-5(e)(2)). Repudiating our judgment that a facially neutral seniority system adopted with discriminatory intent must be challenged immediately, Congress provided:"For purposes of this section, an unlawful employment practice occurs ... when the seniority system is adopted, when an individual becomes subject to the seniority system, or when a person aggrieved is injured by the application of the seniority system or provision of the system." Ibid.Congress thus agreed with the dissenters in Lorance that "the harsh reality of [that] decision," was "glaringly at odds with the purposes of Title VII." 490 U. S., at 914 (opinion of Marshall, J.). See also §3, 105 Stat. 1071 (1991 Civil Rights Act was designed "to respond to recent decisions of the Supreme Court by expanding the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination"). True, §112 of the 1991 Civil Rights Act directly addressed only seniority systems. See ante, at 8, and n. 2. But Congress made clear (1) its view that this Court had unduly contracted the scope of protection afforded by Title VII and other civil rights statutes, and (2) its aim to generalize the ruling in Bazemore. As the Senate Report accompanying the proposed Civil Rights Act of 1990, the precursor to the 1991 Act, explained:"Where, as was alleged in Lorance, an employer adopts a rule or decision with an unlawful discriminatory motive, each application of that rule or decision is a new violation of the law. In Bazemore ..., for example, ... the Supreme Court properly held that each application of th[e] racially motivated salary structure, i.e., each new paycheck, constituted a distinct violation of Title VII. Section 7(a)(2) generalizes the result correctly reached in Bazemore." Civil Rights Act of 1990, S. Rep. No. 101-315, p. 54 (1990).5See also 137 Cong. Rec. 29046, 29047 (1991) (Sponsors' Interpretative Memorandum) ("This legislation should be interpreted as disapproving the extension of [Lorance] to contexts outside of seniority systems."). But cf. ante, at 18 (relying on Lorance to conclude that "when an employer issues paychecks pursuant to a system that is facially nondiscriminatory and neutrally applied" a new Title VII violation does not occur (internal quotation marks omitted)). Until today, in the more than 15 years since Congress amended Title VII, the Court had not once relied upon Lorance. It is mistaken to do so now. Just as Congress' "goals in enacting Title VII ... never included conferring absolute immunity on discriminatorily adopted seniority systems that survive their first [180] days," 490 U. S., at 914 (Marshall, J., dissenting), Congress never intended to immunize forever discriminatory pay differentials unchallenged within 180 days of their adoption. This assessment gains weight when one comprehends that even a relatively minor pay disparity will expand exponentially over an employee's working life if raises are set as a percentage of prior pay. A clue to congressional intent can be found in Title VII's backpay provision. The statute expressly provides that backpay may be awarded for a period of up to two years before the discrimination charge is filed. 42 U. S. C. §2000e-5(g)(1) ("Back pay liability shall not accrue from a date more than two years prior to the filing of a charge with the Commission."). This prescription indicates that Congress contemplated challenges to pay discrimination commencing before, but continuing into, the 180-day filing period. See Morgan, 536 U. S., at 119 ("If Congress intended to limit liability to conduct occurring in the period within which the party must file the charge, it seems unlikely that Congress would have allowed recovery for two years of backpay."). As we recognized in Morgan, "the fact that Congress expressly limited the amount of recoverable damages elsewhere to a particular time period [i.e., two years] indicates that the [180-day] timely filing provision was not meant to serve as a specific limitation ... [on] the conduct that may be considered." Ibid.D In tune with the realities of wage discrimination, the Courts of Appeals have overwhelmingly judged as a present violation the payment of wages infected by discrimination: Each paycheck less than the amount payable had the employer adhered to a nondiscriminatory compensation regime, courts have held, constitutes a cognizable harm. See, e.g., Forsyth v. Federation Employment and Guidance Serv., 409 F. 3d 565, 573 (CA2 2005) ("Any paycheck given within the [charge-filing] period ... would be actionable, even if based on a discriminatory pay scale set up outside of the statutory period."); Shea v. Rice, 409 F. 3d 448, 452-453 (CADC 2005) ("[An] employer commit[s] a separate unlawful employment practice each time he pa[ys] one employee less than another for a discriminatory reason" (citing Bazemore, 478 U. S., at 396)); Goodwin v. General Motors Corp., 275 F. 3d 1005, 1009-1010 (CA10 2002) ("[Bazemore] has taught a crucial distinction with respect to discriminatory disparities in pay, establishing that a discriminatory salary is not merely a lingering effect of past discrimination — instead it is itself a continually recurring violation... . [E]ach race-based discriminatory salary payment constitutes a fresh violation of Title VII." (footnote omitted)); Anderson v. Zubieta, 180 F. 3d 329, 335 (CADC 1999) ("The Courts of Appeals have repeatedly reached the ... conclusion" that pay discrimination is "actionable upon receipt of each paycheck."); accord Hildebrandt v. Illinois Dept. of Natural Resources, 347 F. 3d 1014, 1025-1029 (CA7 2003); Cardenas v. Massey, 269 F. 3d 251, 257 (CA3 2001); Ashley v. Boyle's Famous Corned Beef Co., 66 F. 3d 164, 167-168 (CA8 1995) (en banc); Brinkley-Obu v. Hughes Training, Inc., 36 F. 3d 336, 347-349 (CA4 1994); Gibbs v. Pierce County Law Enforcement Support Agency, 785 F. 2d 1396, 1399-1400 (CA9 1986). Similarly in line with the real-world characteristics of pay discrimination, the EEOC — the federal agency responsible for enforcing Title VII, see, e.g., 42 U. S. C. §§2000e-5(f), 2000e-12(a)--has interpreted the Act to permit employees to challenge disparate pay each time it is received. The EEOC's Compliance Manual provides that "repeated occurrences of the same discriminatory employment action, such as discriminatory paychecks, can be challenged as long as one discriminatory act occurred within the charge filing period." 2 EEOC Compliance Manual §2-IV-C(1)(a), p. 605:0024, and n. 183 (2006); cf. id., §10-III, p. 633:0002 (Title VII requires an employer to eliminate pay disparities attributable to a discriminatory system, even if that system has been discontinued). The EEOC has given effect to its interpretation in a series of administrative decisions. See Albritton v. Potter, No. 01A44063, 2004 WL 2983682, *2 (EEOC Office of Fed. Operations, Dec. 17, 2004) (although disparity arose and employee became aware of the disparity outside the charge-filing period, claim was not time barred because "[e]ach paycheck that complainant receives which is less than that of similarly situated employees outside of her protected classes could support a claim under Title VII if discrimination is found to be the reason for the pay discrepancy." (citing Bazemore, 478 U. S., at 396)). See also Bynum-Doles v. Winter, No. 01A53973, 2006 WL 2096290 (EEOC Office of Fed. Operations, July 18, 2006); Ward v. Potter, No. 01A60047, 2006 WL 721992 (EEOC Office of Fed. Operations, Mar. 10, 2006). And in this very case, the EEOC urged the Eleventh Circuit to recognize that Ledbetter's failure to challenge any particular pay-setting decision when that decision was made "does not deprive her of the right to seek relief for discriminatory paychecks she received in 1997 and 1998." Brief of EEOC in Support of Petition for Rehearing and Suggestion for Rehearing En Banc, in No. 03-15264-GG (CA11), p. 14 (hereinafter EEOC Brief) (citing Morgan, 536 U. S., at 113).6II The Court asserts that treating pay discrimination as a discrete act, limited to each particular pay-setting decision, is necessary to "protec[t] employers from the burden of defending claims arising from employment decisions that are long past." Ante, at 11 (quoting Ricks, 449 U. S., at 256-257). But the discrimination of which Ledbetter complained is not long past. As she alleged, and as the jury found, Goodyear continued to treat Ledbetter differently because of sex each pay period, with mounting harm. Allowing employees to challenge discrimination "that extend[s] over long periods of time," into the charge-filing period, we have previously explained, "does not leave employers defenseless" against unreasonable or prejudicial delay. Morgan, 536 U. S., at 121. Employers disadvantaged by such delay may raise various defenses. Id., at 122. Doctrines such as "waiver, estoppel, and equitable tolling" "allow us to honor Title VII's remedial purpose without negating the particular purpose of the filing requirement, to give prompt notice to the employer." Id., at 121 (quoting Zipes v. Trans World Airlines, Inc., 455 U. S. 385, 398 (1982)); see 536 U. S., at 121 (defense of laches may be invoked to block an employee's suit "if he unreasonably delays in filing [charges] and as a result harms the defendant"); EEOC Brief 15 ("[I]f Ledbetter unreasonably delayed challenging an earlier decision, and that delay significantly impaired Goodyear's ability to defend itself ... Goodyear can raise a defense of laches... .").7 In a last-ditch argument, the Court asserts that this dissent would allow a plaintiff to sue on a single decision made 20 years ago "even if the employee had full knowledge of all the circumstances relating to the ... decision at the time it was made." Ante, at 20. It suffices to point out that the defenses just noted would make such a suit foolhardy. No sensible judge would tolerate such inexcusable neglect. See Morgan, 536 U. S., at 121 ("In such cases, the federal courts have the discretionary power ... to locate a just result in light of the circumstances peculiar to the case." (internal quotation marks omitted)). Ledbetter, the Court observes, ante, at 21, n. 9, dropped an alternative remedy she could have pursued: Had she persisted in pressing her claim under the Equal Pay Act of 1963 (EPA), 29 U. S. C. §206(d), she would not have encountered a time bar.8 See ante, at 21 ("If Ledbetter had pursued her EPA claim, she would not face the Title VII obstacles that she now confronts."); cf. Corning Glass Works v. Brennan. Notably, the EPA provides no relief when the pay discrimination charged is based on race, religion, national origin, age, or disability. Thus, in truncating the Title VII rule this Court announced in Bazemore, the Court does not disarm female workers from achieving redress for unequal pay, but it does impede racial and other minorities from gaining similar relief.9 Furthermore, the difference between the EPA's prohibition against paying unequal wages and Title VII's ban on discrimination with regard to compensation is not as large as the Court's opinion might suggest. See ante, at 21. The key distinction is that Title VII requires a showing of intent. In practical effect, "if the trier of fact is in equipoise about whether the wage differential is motivated by gender discrimination," Title VII compels a verdict for the employer, while the EPA compels a verdict for the plaintiff. 2 C. Sullivan, M. Zimmer, & R. White, Employment Discrimination: Law and Practice §7.08[F][3], p. 532 (3d ed. 2002). In this case, Ledbetter carried the burden of persuading the jury that the pay disparity she suffered was attributable to intentional sex discrimination. See supra, at 1-2; infra, this page and 18.III To show how far the Court has strayed from interpretation of Title VII with fidelity to the Act's core purpose, I return to the evidence Ledbetter presented at trial. Ledbetter proved to the jury the following: She was a member of a protected class; she performed work substantially equal to work of the dominant class (men); she was compensated less for that work; and the disparity was attributable to gender-based discrimination. See supra, at 1-2. Specifically, Ledbetter's evidence demonstrated that her current pay was discriminatorily low due to a long series of decisions reflecting Goodyear's pervasive discrimination against women managers in general and Ledbetter in particular. Ledbetter's former supervisor, for example, admitted to the jury that Ledbetter's pay, during a particular one-year period, fell below Goodyear's minimum threshold for her position. App. 93-97. Although Goodyear claimed the pay disparity was due to poor performance, the supervisor acknowledged that Ledbetter received a "Top Performance Award" in 1996. Id., at 90-93. The jury also heard testimony that another supervisor — who evaluated Ledbetter in 1997 and whose evaluation led to her most recent raise denial — was openly biased against women. Id., at 46, 77-82. And two women who had previously worked as managers at the plant told the jury they had been subject to pervasive discrimination and were paid less than their male counterparts. One was paid less than the men she supervised. Id., at 51-68. Ledbetter herself testified about the discriminatory animus conveyed to her by plant officials. Toward the end of her career, for instance, the plant manager told Ledbetter that the "plant did not need women, that [women] didn't help it, [and] caused problems." Id., at 36.10 After weighing all the evidence, the jury found for Ledbetter, concluding that the pay disparity was due to intentional discrimination. Yet, under the Court's decision, the discrimination Ledbetter proved is not redressable under Title VII. Each and every pay decision she did not immediately challenge wiped the slate clean. Consideration may not be given to the cumulative effect of a series of decisions that, together, set her pay well below that of every male area manager. Knowingly carrying past pay discrimination forward must be treated as lawful conduct. Ledbetter may not be compensated for the lower pay she was in fact receiving when she complained to the EEOC. Nor, were she still employed by Goodyear, could she gain, on the proof she presented at trial, injunctive relief requiring, prospectively, her receipt of the same compensation men receive for substantially similar work. The Court's approbation of these consequences is totally at odds with the robust protection against workplace discrimination Congress intended Title VII to secure. See, e.g., Teamsters v. United States, 431 U. S., at 348 ("The primary purpose of Title VII was to assure equality of employment opportunities and to eliminate ... discriminatory practices and devices ... ." (internal quotation marks omitted)); Albemarle Paper Co. v. Moody, 422 U. S. 405, 418 (1975) ("It is ... the purpose of Title VII to make persons whole for injuries suffered on account of unlawful employment discrimination."). This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute's broad remedial purpose. See supra, at 10-12. See also Wards Cove Packing Co. v. Atonio, 490 U. S. 642 (1989) (superseded in part by the Civil Rights Act of 1991); Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) (plurality opinion) (same); 1 B. Lindemann & P. Grossman, Employment Discrimination Law 2 (3d ed. 1996) ("A spate of Court decisions in the late 1980s drew congressional fire and resulted in demands for legislative change[,]" culminating in the 1991 Civil Rights Act (footnote omitted)). Once again, the ball is in Congress' court. As in 1991, the Legislature may act to correct this Court's parsimonious reading of Title VII.* * * For the reasons stated, I would hold that Ledbetter's claim is not time barred and would reverse the Eleventh Circuit's judgment.FOOTNOTESFootnote 1 The parties assume that the EEOC charging period runs backwards from the date of the questionnaire, even though Ledbetter's discriminatory pay claim was not added until the July 1998 formal charge. 421 F. 3d 1169, 1178 (CA11 2005). We likewise assume for the sake of argument that the filing of the questionnaire, rather than the formal charge, is the appropriate date.Footnote 2 After Lorance, Congress amended Title VII to cover the specific situation involved in that case. See 42 U. S. C. §2000e-5(e)(2) (allowing for Title VII liability arising from an intentionally discriminatory seniority system both at the time of its adoption and at the time of its application). The dissent attaches great significance to this amendment, suggesting that it shows that Lorance was wrongly reasoned as an initial matter. Post, at 10-12 (opinion of Ginsburg, J.). However, the very legislative history cited by the dissent explains that this amendment and the other 1991 Title VII amendments " 'expand[ed] the scope of relevant civil rights statutes in order to provide adequate protection to victims of discrimination.' " Post, at 11 (emphasis added). For present purposes, what is most important about the amendment in question is that it applied only to the adoption of a discriminatory seniority system, not to other types of employment discrimination. Evans and Ricks, upon which Lorance relied, 490 U. S., at 906-908, and which employed identical reasoning, were left in place, and these decisions are more than sufficient to support our holding today.Footnote 3 Of course, there may be instances where the elements forming a cause of action span more than 180 days. Say, for instance, an employer forms an illegal discriminatory intent towards an employee but does not act on it until 181 days later. The charging period would not begin to run until the employment practice was executed on day 181 because until that point the employee had no cause of action. The act and intent had not yet been joined. Here, by contrast, Ledbetter's cause of action was fully formed and present at the time that the discriminatory employment actions were taken against her, at which point she could have, and should have, sued.Footnote 4 The dissent dismisses this concern, post, at 15-16, but this case illustrates the problems created by tardy lawsuits. Ledbetter's claims of sex discrimination turned principally on the misconduct of a single Goodyear supervisor, who, Ledbetter testified, retaliated against her when she rejected his sexual advances during the early 1980's, and did so again in the mid-1990's when he falsified deficiency reports about her work. His misconduct, Ledbetter argues, was "a principal basis for [her] performance evaluation in 1997." Brief for Petitioner 6; see also id., at 5-6, 8, 11 (stressing the same supervisor's misconduct). Yet, by the time of trial, this supervisor had died and therefore could not testify. A timely charge might have permitted his evidence to be weighed contemporaneously.Footnote 5 That the focus in Bazemore was on a current violation, not the carrying forward of a past act of discrimination, was made clearly by the side opinion in the Court of Appeals:"[T]he majority holds, in effect, that because the pattern of discriminatory salaries here challenged originated before applicable provisions of the Civil Rights Act made their payment illegal, any 'lingering effects' of that earlier pattern cannot (presumably on an indefinitely maintained basis) be considered in assessing a challenge to post-act continuation of that pattern. "Hazelwood and Evans indeed made it clear that an employer cannot be found liable, or sanctioned with remedy, for employment decisions made before they were declared illegal or as to which the claimant has lost any right of action by lapse of time. For this reason it is generally true that, as the catch-phrase has it, Title VII imposed 'no obligation to catch-up,' i.e., affirmatively to remedy present effects of pre-Act discrimination, whether in composing a work force or otherwise. But those cases cannot be thought to insulate employment decisions that presently are illegal on the basis that at one time comparable decisions were legal when made by the particular employer. It is therefore one thing to say that an employer who upon the effective date of Title VII finds itself with a racially unbalanced work-force need not act affirmatively to redress the balance; and quite another to say that it may also continue to make discriminatory hiring decisions because it was by that means that its present work force was composed. It may not, in short, under the Hazelwood/Evans principle continue practices now violative simply because at one time they were not." Bazemore v. Friday, 751 F. 2d 662, 695-696 (CA4 1984) (Phillips, J., concurring in part and dissenting in part) (emphasis in original; footnotes omitted).Footnote 6 The briefs filed with this Court in Bazemore v. Friday, 478 U. S. 385 (1986) (per curiam), further elucidate the point. The petitioners described the Service's conduct as "[t]he continued use of a racially explicit base wage." Brief for Petitioner Bazemore et al. in Bazemore v. Friday, O. T. 1985, No. 85-93, p. 33. The United States' brief also properly distinguished the commission of a discrete discriminatory act with continuing adverse results from the intentional carrying forward of a discriminatory pay system. Brief for Federal Petitioners in Bazemore v. Friday, O. T. 1984, Nos. 85-93 and 85-428, p. 17. This case involves the former, not the latter.Footnote 7 Moreover, the proposed hostile salary environment claim would go far beyond Morgan's limits. Morgan still required at least some of the discriminatorily-motivated acts predicate to a hostile work environment claim to occur within the charging period. 536 U. S., at 117 ("Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court" (emphasis added)). But the dissent would permit claims where no one acted in any way with an improper motive during the charging period. Post, at 7, 16.Footnote 8 The dissent admits as much, responding only that an employer could resort to equitable doctrines such as laches. Post, at 16. But first, as we have noted, Congress has already determined that defense to be insufficient. Supra, at 13. Second, it is far from clear that a suit filed under the dissent's theory, alleging that a paycheck paid recently within the charging period was itself a freestanding violation of Title VII because it reflected the effects of 20-year-old discrimination, would even be barred by laches.Footnote 9 The Magistrate Judge recommended dismissal of Ledbetter's EPA claim on the ground that Goodyear had demonstrated that the pay disparity resulted from Ledbetter's consistently weak performance, not her sex. App. to Pet. for Cert. 71a-77a. The Magistrate Judge also recommended dismissing the Title VII disparate-pay claim on the same basis. Id., at 65a-69a. Ledbetter objected to the Magistrate Judge's disposition of the Title VII and EPA claims, arguing that the Magistrate Judge had improperly resolved a disputed factual issue. See Plaintiff's Objections to Magistrate Judge's Report and Recommendation, 1 Record in No. 03-15246-G (CA11), Doc. 32. The District Court sustained this objection as to the "disparate pay" claim, but without specifically mentioning the EPA claim, which had been dismissed by the Magistrate Judge on the same basis. See App. to Pet. for Cert. 43a-44a. While the record is not entirely clear, it appears that at this point Ledbetter elected to abandon her EPA claim, proceeding to trial with only the Title VII disparate-pay claim, thus giving rise to the dispute the Court must now resolve.Footnote 10 We have previously declined to address whether Title VII suits are amenable to a discovery rule. National Railroad Passenger Corporation v. Morgan, 536 U. S. 101, 114, n. 7 (2002). Because Ledbetter does not argue that such a rule would change the outcome in her case, we have no occasion to address this issue.Footnote 11 Ledbetter argues that the EEOC's endorsement of her approach in its Compliance Manual and in administrative adjudications merits deference. But we have previously declined to extend Chevron deference to the Compliance Manual, Morgan, supra, at 111, n. 6, and similarly decline to defer to the EEOC's adjudicatory positions. The EEOC's views in question are based on its misreading of Bazemore. See, e.g., Amft v. Mineta, No. 07A40116, 2006 WL 985183, *5 (EEOC Office of Fed. Operations, Apr. 6, 2006); Albritton v. Postmaster General, No. 01A44063, 2004 WL 2983682, *2 (EEOC Office of Fed. Operations, Dec. 17, 2004). Agencies have no special claim to deference in their interpretation of our decisions. Reno v. Bossier Parish School Bd., 528 U. S. 320, 336, n. 5 (2000). Nor do we see reasonable ambiguity in the statute itself, which makes no distinction between compensation and other sorts of claims and which clearly requires that discrete employment actions alleged to be unlawful be motivated "because of such individual's ... sex." 42 U. S. C. §2000e-a(a)(1).FOOTNOTESFootnote 1 If the complainant has first instituted proceedings with a state or local agency, the filing period is extended to 300 days or 30 days after the denial of relief by the agency. 42 U. S. C. §2000e-5(e)(1). Because the 180-day period applies to Ledbetter's case, that figure will be used throughout. See ante, at 3, 4.Footnote 2 National Railroad Passenger Corporation v. Morgan, 536 U. S. 101, 117 (2002), the Court emphasizes, required that "an act contributing to the claim occu[r] within the [charge-]filing period." Ante, at 19, and n. 7 (emphasis deleted; internal quotation marks omitted). Here, each paycheck within the filing period compounded the discrimination Ledbetter encountered, and thus contributed to the "actionable wrong," i.e., the succession of acts composing the pattern of discriminatory pay, of which she complained.Footnote 3 See also Bierman & Gely, "Love, Sex and Politics? Sure. Salary? No Way": Workplace Social Norms and the Law, 25 Berkeley J. Emp. & Lab. L. 167, 168, 171 (2004) (one-third of private sector employers have adopted specific rules prohibiting employees from discussing their wages with co-workers; only one in ten employers has adopted a pay openness policy).Footnote 4 The Court also relies on Machinists v. NLRB, 362 U. S. 411 (1960), which like Evans and Ricks, concerned a discrete act: the execution of a collective bargaining agreement containing a union security clause. 362 U. S., at 412, 417. In Machinists, it was undisputed that under the National Labor Relations Act (NLRA), a union and an employer may not agree to a union security clause "if at the time of original execution the union does not represent a majority of the employees in the [bargaining] unit." Id., at 412-414, 417. The complainants, however, failed to file a charge within the NLRA's six-month charge filing period; instead, they filed charges 10 and 12 months after the execution of the agreement, objecting to its subsequent enforcement. See id., at 412, 414. Thus, as in Evans and Ricks, but in contrast to Ledbetter's case, the employment decision at issue was easily identifiable and occurred on a single day.Footnote 5 No Senate Report was submitted with the Civil Rights Act of 1991, which was in all material respects identical to the proposed 1990 Act.Footnote 6 The Court dismisses the EEOC's considerable "experience and informed judgment," Firefighters v. Cleveland, 478 U. S. 501, 518 (1986) (internal quotation marks omitted), as unworthy of any deference in this case, see ante, at 23-24, n. 11. But the EEOC's interpretations mirror workplace realities and merit at least respectful attention. In any event, the level of deference due the EEOC here is an academic question, for the agency's conclusion that Ledbetter's claim is not time barred is the best reading of the statute even if the Court "were interpreting [Title VII] from scratch." See Edelman v. Lynchburg College, 535 U. S. 106, 114 (2002); see supra, at 4-14.Footnote 7 Further, as the EEOC appropriately recognized in its brief to the Eleventh Circuit, Ledbetter's failure to challenge particular pay raises within the charge-filing period "significantly limit[s] the relief she can seek. By waiting to file a charge, Ledbetter lost her opportunity to seek relief for any discriminatory paychecks she received between 1979 and late 1997." EEOC Brief 14. See also supra, at 12-13.Footnote 8 Under the EPA 29 U. S. C. §206(d), which is subject to the Fair Labor Standards Act's time prescriptions, a claim charging denial of equal pay accrues anew with each paycheck. 1 B. Lindemann & P. Grossman, Employment Discrimination Law 529 (3d ed. 1996); cf. 29 U. S. C. §255(a) (prescribing a two-year statute of limitations for violations generally, but a three-year limitation period for willful violations).Footnote 9 For example, under today's decision, if a black supervisor initially received the same salary as his white colleagues, but annually received smaller raises, there would be no right to sue under Title VII outside the 180-day window following each annual salary change, however strong the cumulative evidence of discrimination might be. The Court would thus force plaintiffs, in many cases, to sue too soon to prevail, while cutting them off as time barred once the pay differential is large enough to enable them to mount a winnable case.Footnote 10 Given this abundant evidence, the Court cannot tenably maintain that Ledbetter's case "turned principally on the misconduct of a single Goodyear supervisor." See ante, at 12-13, n. 4.

Counsel of RecordFor Petitioner Tennard: Mandy Welch Richard BurrBurr & Welch Houston, TX For Respondent Dretke:Charles A. PalmerAssistant Attorney GeneralAustin, TX During his capital murder trial's penalty phase, petitioner Tennard presented evidence that he had an IQ of 67. The jury was instructed to determine the appropriate punishment by considering two "special issues," which inquired into whether the crime was committed deliberately and whether the defendant posed a risk of future dangerousness. These were materially identical to two special issues found insufficient, in Penry v. Lynaugh, 492 U. S. 302, for the jury to give effect to Penry's mitigating mental retardation and childhood abuse evidence. Tennard's jury answered both special issues affirmatively and Tennard was sentenced to death. The Federal District Court denied Tennard's federal habeas petition in which he claimed that his death sentence violated the Eighth Amendment as interpreted in Penry, and denied a certificate of appealability (COA). The Fifth Circuit agreed that Tennard was not entitled to a COA. It applied a threshold test to Tennard's mitigating evidence, asking whether it met the Fifth Circuit's standard of "constitutional relevance" in Penry cases — that is, whether it was evidence of a "uniquely severe permanent handicap" that bore a "nexus" to the crime. The court concluded that (1) low IQ evidence alone does not constitute a uniquely severe condition, and no evidence tied Tennard's IQ to retardation, and (2) even if his low IQ amounted to mental retardation evidence, Tennard did not show that his crime was attributable to it. After this Court vacated the judgment and remanded for further consideration in light of Atkins v. Virginia, 536 U. S. 304, the Fifth Circuit reinstated its prior opinion.Held: Because "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Slack v. McDaniel, 529 U. S. 473, 484, a COA should have issued. Pp. 7-15. (a) A COA should issue if an applicant has "made a substantial showing of the denial of a constitutional right," 28 U. S. C. §2253(c)(2), by demonstrating "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," 529 U. S., at 484. Relief may not be granted unless the state court adjudication "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by" this Court. §2254(d)(1). Pp. 7-8. (b) The Fifth Circuit assessed Tennard's Penry claim under an improper standard. Its threshold "constitutional relevance" screening test has no foundation in this Court's decisions. Relevance was not at issue in Penry. And this Court spoke in the most expansive terms when addressing the relevance standard directly in McKoy v. North Carolina, 494 U. S. 433, 440-441, finding applicable the general evidentiary standard that " ' "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence," ' " id., at 440. Once this low relevance threshold is met, the "Eighth Amendment requires that the jury must be able to consider and give effect to" a capital defendant's mitigating evidence. Boyde v. California, 494 U. S. 370, 377-378. The Fifth Circuit's test is inconsistent with these principles. Thus, neither the "uniquely severe" nor the "nexus" element of the Fifth Circuit's test was a proper reason not to reach the substance of Tennard's Penry claims. Pp. 8-13. (c) Turning to the analysis that the Fifth Circuit should have conducted, reasonable jurists could conclude that Tennard's low IQ evidence was relevant mitigating evidence, and that the Texas Court of Criminal Appeals' application of Penry was unreasonable, since the relationship between the special issues and Tennard's low IQ evidence has the same essential features as that between those issues and Penry's mental retardation evidence. Impaired intellectual functioning has mitigating dimension beyond the impact it has on the ability to act deliberately. A reasonable jurist could conclude that the jury might have given the low IQ evidence aggravating effect in considering Tennard's future dangerousness. Indeed, the prosecutor pressed exactly the most problematic interpretation of the special issues, suggesting that Tennard's low IQ was irrelevant in mitigation, but relevant to future dangerousness. Pp. 13-15. 317 F. 3d 476, reversed and remanded. O'Connor, J., delivered the opinion of the Court, in which Stevens, Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Rehnquist, C. J., Scalia, J., and Thomas, J., filed dissenting opinions.ROBERT JAMES TENNARD, PETITIONER v. DOUGDRETKE, DIRECTOR, TEXAS DEPARTMENT OFCRIMINAL JUSTICE, CORRECTIONALINSTITUTIONS DIVISIONon writ of certiorari to the united states court of appeals for the fifth circuit[June 24, 2004] Justice O'Connor delivered the opinion of the Court. In Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I), we held that the Texas capital sentencing scheme provided a constitutionally inadequate vehicle for jurors to consider and give effect to the mitigating evidence of mental retardation and childhood abuse the petitioner had presented. The petitioner in this case argues that the same scheme was inadequate for jurors to give effect to his evidence of low intelligence. The Texas courts rejected his claim, and a Federal District Court denied his petition for a writ of habeas corpus. We conclude that "reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong," Slack v. McDaniel, 529 U. S. 473, 484 (2000), and therefore hold that a certificate of appealability should have issued.I Petitioner Robert Tennard was convicted by a jury of capital murder in October 1986. The evidence presented at trial indicated that Tennard and two accomplices killed two of his neighbors and robbed their house. Tennard himself stabbed one of the victims to death, and one of the accomplices killed the other victim with a hatchet. During the penalty phase of the trial, defense counsel called only one witness — Tennard's parole officer — who testified that Tennard's Department of Corrections record from a prior incarceration indicated that he had an IQ of 67. App. 28-29. He testified that the IQ test would have been administered as a matter of course. Ibid. The report, which indicated that Tennard was 17 years old at the time it was prepared, was admitted into evidence. On cross-examination, the parole officer testified that he did not know who had administered the test. Id., at 30. The government introduced evidence in the penalty phase regarding a prior conviction for rape, committed when Tennard was 16. The rape victim testified that she had escaped through a window after Tennard permitted her to go to the bathroom to take a bath, promising him she wouldn't run away. Id., at 16-17. The jury was instructed to consider the appropriate punishment by answering the two "special issues" used at the time in Texas to establish whether a sentence of life imprisonment or death would be imposed: "Was the conduct of the defendant, Robert James Tennard, that caused the death of the deceased committed deliberately and with the reasonable expectation that the death of the deceased or another would result?" Id., at 69 (the "deliberateness special issue"). "Is there a probability that the defendant, Robert James Tennard, would commit criminal acts of violence that would constitute a continuing threat to society?" Id., at 70 (the "future dangerousness special issue"). In his penalty-phase closing argument, defense counsel relied on both the IQ score and the rape victim's testimony to suggest that Tennard's limited mental faculties and gullible nature mitigated his culpability:"Tennard has got a 67 IQ. The same guy that told this poor unfortunate woman [the rape victim] that was trying to work that day, 'Well, if I let you in there, will you leave?' And he believed her. This guy with the 67 IQ, and she goes in and, sure enough, she escapes, just like she should have. That is uncontroverted testimony before you, that we have got a man before us that has got an intelligence quotient . . . that is that low." Id., at 51. In rebuttal, the prosecution suggested that the lowIQ evidence was simply irrelevant to the question ofmitigation:"But whether he has a low IQ or not is not really the issue. Because the legislature, in asking you to address that question [the future dangerousness special issue], the reasons why he became a danger are not really relevant. The fact that he is a danger, that the evidence shows he's a danger, is the criteria to use in answering that question." Id., at 60. The jury answered both special issues in the affirmative, and Tennard was accordingly sentenced to death. Unsuccessful on direct appeal, Tennard sought state postconviction relief. He argued that, in light of the instructions given to the jury, his death sentence had been obtained in violation of the Eighth Amendment as interpreted by this Court in Penry I. In that case, we had held that "it is not enough simply to allow the defendant to present mitigating evidence to the sentencer. The sentencer must also be able to consider and give effect to that evidence in imposing sentence." Penry I, supra, at 319; see also Penry v. Johnson, 532 U. S. 782, 797 (2001) (Penry II) (describing " 'give effect to' " language of Penry I as "the key" to that decision). We concluded that the same two special issues that were presented to Tennard's jury (plus a third immaterial to the questions now before us) were insufficient for the jury in Penry's case to consider and give effect to Penry's evidence of mental retardation and childhood abuse, and therefore ran afoul of the Eighth Amendment. Penry I, 492 U. S., at 319-328. His mental retardation evidence, we held, " 'had relevance to [his] moral culpability beyond the scope of the [deliberateness] special verdict questio[n]' " because "[p]ersonal culpability is not solely a function of a defendant's capacity to act 'deliberately.' " Id., at 322 (some brackets in original). Moreover, because the "evidence concerning Penry's mental retardation indicated that one effect of his retardation is his inability to learn from his mistakes," his retardation was relevant to the future dangerousness special issue "only as an aggravating factor." Id., at 323. As to the evidence of childhood abuse, we held that the two special issues simply failed to "provide a vehicle for the jury to give [it] mitigating effect." Id., at 322-324. The Texas Court of Criminal Appeals rejected Tennard's Penry claim. Ex parte Tennard, 960 S. W. 2d 57 (1997) (en banc). Writing for a plurality of four, Presiding Judge McCormick observed that the definition of mental retardation adopted in Texas involves three components ("(1) subaverage general intellectual functioning; (2) concurrent deficits in adaptive behavior; and (3) onset during the early development period," id., at 60), and concluded: "[Tennard's] evidence of a low IQ score, standing alone, does not meet this definition. Qualitatively and quantitatively, [Tennard's] low IQ evidence does not approach the level of Johnny Paul Penry's evidence of mental retardation... . [W]e find no evidence in this record that applicant is mentally retarded." Id., at 61. The plurality went on to consider whether Tennard would be entitled to relief under Penry even if his low IQ fell "within Penry's definition of mental retardation." 960 S. W. 2d, at 61. It held that he would not. The court explained that, unlike the evidence presented in Penry's case, "there is no evidence ... [that Tennard's] low IQ rendered him unable to appreciate the wrongfulness of his conduct when he committed the offense, or that his low IQ rendered him unable to learn from his mistakes ... or control his impulses ... ." Id., at 62. It found there was "no danger" that the jury would have given the evidence "only aggravating effect in answering" the future dangerousness special issue, and that the low IQ and gullibility evidence was not beyond the jury's effective reach because the jury "could have used this evidence for a 'no' answer" to the deliberateness special issue. Ibid. Two judges concurred separately, and wrote that "this Court has sustained a Penry claim only when there is evidence of mental retardation. But even in those cases, the evidence of mental retardation was always something more than what was presented in this case." 960 S. W. 2d, at 64 (opinion of Meyers, J.) (citations omitted). Taking a more permissive view of evidence of impaired intellectual functioning than did the plurality ("[F]or Penry purposes, courts should not distinguish between mental retardation and dementia," even though the onset of the latter "may occur after age eighteen," id., at 65), the concurring judges nevertheless concluded that "the record does not contain sufficient evidence to support" Tennard's Penry claim. 960 S. W. 2d, at 63. The concurring judges also rejected Tennard's contention that "evidence of an IQ of below 70 alone requires a 'Penry instruction' " because published opinions of the Texas courts had uniformly required more. Id., at 67. Judge Baird dissented, maintaining that the Court of Criminal Appeals had "consistent[ly]" held, in the wake of Penry I, that "evidence of mental retardation cannot be adequately considered within the statutory" special issues. 960 S. W. 2d, at 67. The court had strayed from its precedent, Judge Baird wrote, and instead of asking simply whether the jury had a vehicle for considering the mitigating evidence, had "weigh[ed] the sufficiency of [Tennard's] mitigating evidence." Id., at 70. Judges Overstreet and Womack dissented without opinion. Id., at 63. Tennard sought federal habeas corpus relief. The District Court denied his petition. Tennard v. Johnson, Civ. Action No. H-98-4238 (S D Tex., July 25, 2000), App. 121. The court began by observing that "[e]vidence of a single low score on an unidentified intelligence test is not evidence that Tennard was mentally retarded." Id., at 128. It then considered whether the 67 IQ score was "within 'the effective reach' of the jury." Ibid. Noting that "Tennard's low IQ score was not concealed from the jury; it was in evidence, and both sides argued its significance for punishment," the court concluded that the jury had adequate means, in the two special issues, by which to give effect to that mitigating evidence. Id., at 129. The court subsequently denied Tennard a certificate of appealability (COA). Civ. Action No. H-98-4238 (S D Tex. Oct. 17, 2000), see App. 2. The Court of Appeals for the Fifth Circuit, after full briefing and oral argument, issued an opinion holding that Tennard was not entitled to a COA because his Penry claim was not debatable among jurists of reason. Tennard v. Cockrell, 284 F. 3d 591 (2002). The court began by stating the test applied in the Fifth Circuit to Penry claims, which involves a threshold inquiry into whether the petitioner presented "constitutionally relevant" mitigating evidence, that is, evidence of a " 'uniquely severe permanent handicap with which the defendant was burdened through no fault of his own,' " and evidence that " 'the criminal act was attributable to this severe permanent condition.' " 284 F. 3d, at 595. The court then held that Tennard was not entitled to a COA, for two reasons: First, it held that evidence of low IQ alone does not constitute a uniquely severe condition, and rejected Tennard's claim that his evidence was of mental retardation, not just low IQ, because no evidence had been introduced tying his IQ score to retardation. Id., at 596. Second, it held that even if Tennard's evidence was mental retardation evidence, his claim must fail because he did not show that the crime he committed was attributable to his low IQ. Id., at 596-597. Judge Dennis dissented, concluding that the Texas court's application of Penry was unreasonable and that Tennard was entitled to habeas relief. 284 F. 3d, at 597-604. Tennard filed a petition for certiorari, and this Court granted the writ, vacated the judgment, and remanded for further consideration in light of Atkins v. Virginia, 536 U. S. 304 (2002). Tennard v. Cockrell, 537 U. S. 802 (2002). The Fifth Circuit took the remand to be for consideration of a substantive Atkins claim. It observed that "Tennard has never argued that the Eighth Amendment prohibits his execution" and reinstated its prior panel opinion. 317 F. 3d 476, 477 (2003). We again granted certiorari. 540 U. S. 945 (2003).IIA A COA should issue if the applicant has "made a substantial showing of the denial of a constitutional right," 28 U. S. C. §2253(c)(2), which we have interpreted to require that the "petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 537 U. S. 322, 336 (2003) ("Under the controlling standard, a petitioner must 'sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were "adequate to deserve encouragement to proceed further" ' "). The petitioner's arguments ultimately must be assessed under the deferential standard required by 28 U. S. C. §2254(d)(1): Relief may not be granted unless the state court adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." The State has never disputed that Tennard's Penry claim was properly preserved for federal habeas review. Not only did the state court consider the question on the merits, we note that the issue was also raised by defense counsel prior to trial in a motion to set aside the indictment on the ground, among others, that the "Texas capital murder statutes do not explicitly allow the consideration of any specific mitigating circumstances at the punishment phase of the prosecution and, consequently, are violative of the accused's right to be free from cruel and unusual punishment and are also void for vagueness." Defendant's Motion to Set Aside the Indictment, in Cause No. 431127 (248th Jud. Dist. Ct. Harris County, Tex., May 28, 1986), p. 4.B Despite paying lipservice to the principles guiding issuance of a COA, Tennard v. Cockrell, supra, at 594, the Fifth Circuit's analysis proceeded along a distinctly different track. Rather than examining the District Court's analysis of the Texas court decision, it invoked its own restrictive gloss on Penry I:"In reviewing a Penry claim, we must determine whether the mitigating evidence introduced at trial was constitutionally relevant and beyond the effective reach of the jury. ... To be constitutionally relevant, 'the evidence must show (1) a uniquely severe permanent handicap with which the defendant was burdened through no fault of his own, ... and (2) that the criminal act was attributable to this severe permanent condition.' " 284 F. 3d, at 595 (quoting Davis v. Scott, 51 F. 3d, 457, 460-461 (CA5 1998)). This test for "constitutional relevance," characterized by the State at oral argument as a threshold "screening test," Tr. of Oral Arg.10, 28, appears to be applied uniformly in the Fifth Circuit to Penry claims. See, e.g., Bigby v. Cockrell, 340 F. 3d 259, 273 (2003); Robertson v. Cockrell, 325 F. 3d 243, 251 (2003) (en banc); Smith v. Cockrell, 311 F. 3d 661, 680 (2002); Blue v. Cockrell, 298 F. 3d 318, 320-321 (2002); Davis v. Scott, 51 F. 3d 457, 460-461 (1995). Only after the court finds that certain mitigating evidence is "constitutionally relevant" will it consider whether that evidence was within "the 'effective reach of the jur[y].' " E.g., Smith, supra, at 680 (court asks whether evidence was constitutionally relevant and, "if so," will consider whether it was within jury's effective reach). In the decision below, the Fifth Circuit concluded that Tennard was "precluded from establishing a Penry claim" because his low IQ evidence bore no nexus to the crime, and so did not move on to the "effective reach" question. 284 F. 3d, at 597. The Fifth Circuit's test has no foundation in the decisions of this Court. Neither Penry I nor its progeny screened mitigating evidence for "constitutional relevance" before considering whether the jury instructions comported with the Eighth Amendment. Indeed, the mitigating evidence presented in Penry I was concededly relevant, see Tr. of Oral Arg., O. T. 1988, No. 87-6177, pp. 34-36, so even if limiting principles regarding relevance were suggested in our opinion — and we do not think they were — they could not have been material to the holding. When we addressed directly the relevance standard applicable to mitigating evidence in capital cases in McKoy v. North Carolina, 494 U. S. 433, 440-441 (1990), we spoke in the most expansive terms. We established that the "meaning of relevance is no different in the context of mitigating evidence introduced in a capital sentencing proceeding" than in any other context, and thus the general evidentiary standard--" ' "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence" ' "--applies. Id., at 440 (quoting New Jersey v. T. L. O., 469 U. S. 325, 345 (1985)). We quoted approvingly from a dissenting opinion in the state court: " 'Relevant mitigating evidence is evidence which tends logically to prove or disprove some fact or circumstance which a fact-finder could reasonably deem to have mitigating value." 494 U. S., at 440 (quoting State v. McKoy, 323 N. C. 1, 55-56, 372 S. E. 2d, 12, 45 (1988) (opinion of Exum, C. J.)). Thus, a State cannot bar "the consideration of ... evidence if the sentencer could reasonably find that it warrants a sentence less than death." 494 U. S., at 441. Once this low threshold for relevance is met, the "Eighth Amendment requires that the jury be able to consider and give effect to" a capital defendant's mitigating evidence. Boyde v. California, 494 U. S. 370, 377-378 (1990) (citing Lockett v. Ohio, 438 U. S. 586 (1978); Eddings v. Oklahoma, 455 U. S. 104 (1982); Penry I, 492 U. S. 302 (1989)); see also Payne v. Tennessee, 501 U. S. 808, 822 (1991) ("We have held that a State cannot preclude the sentencer from considering 'any relevant mitigating evidence' that the defendant proffers in support of a sentence less than death... . [V]irtually no limits are placed on the relevant mitigating evidence a capital defendant may introduce concerning his own circumstances" (quoting Eddings, supra, at 114)). The Fifth Circuit's test is inconsistent with these principles. Most obviously, the test will screen out any positive aspect of a defendant's character, because good character traits are neither "handicap[s]" nor typically traits to which criminal activity is "attributable." In Skipper v. South Carolina, 476 U. S. 1, 5 (1986), however, we made clear that good-character evidence can be evidence that, "[u]nder Eddings, ... may not be excluded from the sentencer's consideration." We observed that even though the petitioner's evidence of good conduct in jail did "not relate specifically to petitioner's culpability for the crime he committed, there is no question but that such [evidence] ... would be 'mitigating' in the sense that [it] might serve 'as a basis for a sentence less than death.' Lockett, supra, at 604" id., at 4-5 (citation omitted). Such evidence, we said, of "a defendant's disposition to make a well-behaved and peaceful adjustment to life in prison is ... by its nature relevant to the sentencing determination." Id., at 7. Of course, the Texas courts might reasonably conclude that evidence of good conduct in jail was within the jury's effective reach via the future dangerousness special issue. See Franklin v. Lynaugh, 487 U. S. 164, 177-178 (1988) (plurality opinion); id., at 185-186 (O'Connor, J., concurring in judgment). But under the Fifth Circuit's test, the evidence would have been screened out before the time came to consider that question. In Tennard's case, the Fifth Circuit invoked both the "uniquely severe" and the "nexus" elements of its test to deny him relief under Penry I. Tennard v. Cockrell, 284 F. 3d, at 596 (contrasting Tennard's low IQ evidence, which did "not constitute a uniquely severe condition," with mental retardation, a "severe permanent condition"); id., at 596-597 (concluding that Penry claims "must fail because [Tennard] made no showing at trial that the criminal act was attributable" to his condition).** Neither ground provided an adequate reason to fail to reach the heart of Tennard's Penry claims. We have never denied that gravity has a place in the relevance analysis, insofar as evidence of a trivial feature of the defendant's character or the circumstances of the crime is unlikely to have any tendency to mitigate the defendant's culpability. See Skipper, supra, at 7, n. 2 ("We do not hold that all facets of the defendant's ability to adjust to prison life must be treated as relevant and potentially mitigating. For example, we have no quarrel with the statement ... that 'how often [the defendant] will take a shower' is irrelevant to the sentencing determination" (quoting State v. Plath, 281 S. C. 1, 15, 313 S. E. 2d 619, 627 (1984)). However, to say that only those features and circumstances that a panel of federal appellate judges deems to be "severe" (let alone "uniquely severe") could have such a tendency is incorrect. Rather, the question is simply whether the evidence is of such a character that it "might serve 'as a basis for a sentence less than death,' " Skipper, supra, at 5. The Fifth Circuit was likewise wrong to have refused to consider the debatability of the Penry question on the ground that Tennard had not adduced evidence that his crime was attributable to his low IQ. In Atkins v. Virginia, 536 U. S. 304, 316 (2002), we explained that impaired intellectual functioning is inherently mitigating: "[T]oday our society views mentally retarded offenders as categorically less culpable than the average criminal." Nothing in our opinion suggested that a mentally retarded individual must establish a nexus between her mental capacity and her crime before the Eighth Amendment prohibition on executing her is triggered. Equally, we cannot countenance the suggestion that low IQ evidence is not relevant mitigating evidence — and thus that the Penry question need not even be asked — unless the defendant also establishes a nexus to the crime. The State claims that "the Fifth Circuit's Penry I jurisprudence is not at issue" in this case. Brief for Respondent 35, n. 21; Tr. of Oral Arg. 33. To the contrary, that jurisprudence is directly at issue because the Fifth Circuit denied Tennard relief on the ground that he did not satisfy the requirements imposed by its "constitutional relevance" test. As we have explained, the Fifth Circuit's screening test has no basis in our precedents and, indeed, is inconsistent with the standard we have adopted for relevance in the capital sentencing context. We therefore hold that the Fifth Circuit assessed Tennard's Penry claim under an improper legal standard. Cf. Miller-El v. Cockrell, 537 U. S., at 341 (holding, on certiorari review of the denial of a COA, that the Fifth Circuit had applied an incorrect standard by improperly merging the requirements of two statutory sections).C We turn to the analysis the Fifth Circuit should have conducted: Has Tennard "demonstrate[d] that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong"? Slack v. McDaniel, 529 U. S., at 484. We conclude that he has. Reasonable jurists could conclude that the low IQ evidence Tennard presented was relevant mitigating evidence. Evidence of significantly impaired intellectual functioning is obviously evidence that "might serve 'as a basis for a sentence less than death,' " Skipper, 539 U. S. 510, 535 (2003) (observing, with respect to individual with IQ of 79, that "Wiggins['] ... diminished mental capacitie[s] further augment his mitigation case"); Burger v. Kemp, 483 U. S. 776, 779, 789 n. 7 (1987) (noting that petitioner "had an IQ of 82 and functioned at the level of a 12-year-old child," and later that "[i]n light of petitioner's youth at the time of the offense, ... testimony that his 'mental and emotional development were at a level several years below his chronological age' could not have been excluded by the state court" (quoting Eddings, 455 U. S., at 116)). Reasonable jurists also could conclude that the Texas Court of Criminal Appeals' application of Penry to the facts of Tennard's case was unreasonable. The relationship between the special issues and Tennard's low IQ evidence has the same essential features as the relationship between the special issues and Penry's mental retardation evidence. Impaired intellectual functioning has mitigating dimension beyond the impact it has on the individual's ability to act deliberately. See Penry I, 492 U. S., at 322. A reasonable jurist could conclude that the jury might well have given Tennard's low IQ evidence aggravating effect in considering his future dangerousness, not only as a matter of probable inference from the evidence but also because the prosecutor told them to do so: "[W]hether he has a low IQ or not is not really the issue. Because the legislature, in asking you to address that question, the reasons why he became a danger are not really relevant. The fact that he is a danger, that the evidence shows he's a danger, is the criteria to use in answering that question." App 60. Indeed, the prosecutor's comments pressed exactly the most problematic interpretation of the special issues, suggesting that Tennard's low IQ was irrelevant in mitigation, but relevant to the question whether he posed a future danger.* * * We hold that the Fifth Circuit's "uniquely severe permanent handicap" and "nexus" tests are incorrect, and we reject them. We hold that reasonable jurists would find debatable or wrong the District Court's disposition of Tennard's low-IQ-based Penry claim, and that Tennard is therefore entitled to a certificate of appealability. The judgment of the United States Court of Appeals for the Fifth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.ROBERT JAMES TENNARD, PETITIONER v. DOUGDRETKE, DIRECTOR, TEXAS DEPARTMENT OFCRIMINAL JUSTICE, CORRECTIONALINSTITUTIONS DIVISIONon writ of certiorari to the united states court of appeals for the fifth circuit[June 24, 2004] Chief Justice Rehnquist, dissenting. A certificate of appealability may only issue if the applicant has "made a substantial showing of the denial of a constitutional right," 28 U. S. C. §2253(c)(2). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy §2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U. S. 473, 484 (2000). Because I believe that reasonable jurists would not find the District Court's assessment of the constitutional claims debatable or wrong, I dissent. The District Court conducted the proper inquiry by examining whether Tennard's evidence of low intelligence was " 'within the effective reach' " of the jury. App. 128 (quoting Johnson v. Texas, 509 U. S. 350, 375 (1993)). And the District Court came to the correct result; that is, the special issues allowed the jury to give some mitigating effect to Tennard's evidence of low intelligence. Id., at 369; Graham v. Collins, 506 U. S. 461, 475 (1993). In Jurek v. Texas, 428 U. S. 262 (1976), this Court held that the Texas special issues system, as a general matter, is constitutional. The special issues system guides the jury's consideration of mitigating evidence at sentencing. We have stated: "Although [Lockett v. Ohio, 438 U. S. 586 (1978),] and [Eddings v. Oklahoma, 455 U. S. 104 (1982),] prevent a State from placing relevant mitigating evidence 'beyond the effective reach of the sentencer,' Graham, supra, at 475, those cases and others in that decisional line do not bar a State from guiding the sentencer's consideration of mitigating evidence. Indeed, we have held that 'there is no ... constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence "in an effort to achieve a more rational and equitable administration of the death penalty." ' Boyde v. California, 494 U. S. 370, 377 (1990) (quoting Franklin v. Lynaugh, 487 U. S. 164, 181 (1988) (plurality opinion))." Johnson, supra, at 362. In Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I), the Court concluded that the Texas special issues were too limited to give effect to Penry's mitigating evidence of his mental retardation and severe childhood abuse. But we have noted that Penry I did not "effec[t] a sea change in this Court's view of the constitutionality of the former Texas death penalty statute," Graham, supra, at 474. Tennard's evidence of low intelligence simply does not present the same difficulty that Penry's evidence did. There is no dispute that Tennard's low intelligence is a relevant mitigating circumstance, and that the sentencing jury must be allowed to consider that mitigating evidence. See, e.g., Eddings v. Oklahoma, 455 U. S. 104, 110 (1982) (" '[T]he sentencer ... [may] not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense' "(emphasis deleted) (quoting Lockett v. Ohio, 438 U. S. 586, 604 (1978))). But the Constitution does not require that "a jury be able to give effect to mitigating evidence in every conceivable manner in which the evidence may be relevant." Johnson, supra, at 372. The only question in this case is whether reasonable jurists would find the District Court's assessment that Tennard's evidence of low intelligence was within the effective reach of the jury via the Texas special issues debatable or wrong. The Court concludes that "[t]he relationship between the special issues and Tennard's low IQ evidence has the same essential features as the relationship between the special issues and Penry's mental retardation evidence." Ante, at 14. I disagree. The first special issue asked whether Tennard had caused the death of the victim " 'deliberately and with the reasonable expectation that the death of the deceased or another would result.' " Ante, at 2. As the Court of Criminal Appeals of Texas noted and the District Court agreed, the mitigating evidence of Tennard's low intelligence could be given effect by the jury through this deliberateness special issue. It does not follow from the Court's conclusion in Penry I that mental retardation had relevance to Penry's moral culpability beyond the scope of the deliberateness special issue that evidence of low intelligence has the same relevance. And, after Johnson and Graham, it is clear that the question is simply whether the jury could give some effect to the mitigating evidence through the special issues. Johnson, supra, at 369 (rejecting the petitioner's claim that a special instruction was necessary because his evidence of youth had relevance outside the special issue framework); Graham, supra, at 476-477 ("[R]eading Penry [I] as petitioner urges — and thereby holding that a defendant is entitled to special instructions whenever he can offer mitigating evidence that has some arguable relevance beyond the special issues — would be to require in all cases that a fourth 'special issue' be put to the jury: ' "Does any mitigating evidence before you, whether or not relevant to the [other special issues], lead you to believe that the death penalty should not be imposed?' " The [Franklin v. Lynaugh, 487 U. S. 164 (1988)], plurality rejected precisely this contention, finding it irreconcilable with the Court's holding in Jurek, [487 U. S., at 180, n. 10], and we affirm that conclusion today.") The second special issue asked " '[i]s there a probability that the defendant ... would commit criminal acts of violence that would constitute a continuing threat to society?' " Ante, at 2. Here, too, this case is very different from Penry I, where there was expert medical testimony that Penry's condition prevented him from learning from experience. 492 U. S., at 308-309. Here, no such evidence was presented. Given the evidence, the jury could have concluded that low intelligence meant that Tennard is a slow learner, but with the proper instruction, he could conform his behavior to social norms. It also could have concluded, as the Court of Criminal Appeals of Texas noted, that Tennard was a " 'follower' " rather than a " 'leader,' " App. 91, and that he again could conform his behavior in the proper environment. In either case — contrary to Penry I — the evidence could be given mitigating effect in the second special issue. In short, low intelligence is not the same as mental retardation and does not necessarily create the Penry I "two-edged sword." 492 U. S., at 324. The two should not be summarily bracketed together. Because I do not think that reasonable jurists would disagree with the District Court's conclusion that the jury in this case had the ability to give mitigating effect to Tennard's evidence of low intelligence through the first and second special issues, I dissent.ROBERT JAMES TENNARD, PETITIONER v. DOUGDRETKE, DIRECTOR, TEXAS DEPARTMENT OFCRIMINAL JUSTICE, CORRECTIONALINSTITUTIONS DIVISIONon writ of certiorari to the united states court of appeals for the fifth circuit[June 24, 2004] Justice Scalia, dissenting. Petitioner argues that Texas's statutory special issues framework unconstitutionally constrained the jury's discretion to give effect to his mitigating evidence of a low IQ score, violating the requirement that " ' "a sentencer must be allowed to give full consideration and full effect to mitigating circumstances." ' " Reply Brief for Petitioner 4 (quoting Penry v. Johnson, 532 U. S. 782, 797 (2001) (Penry II), in turn quoting Johnson v. Texas, 509 U. S. 350, 381 (1993) (O'Connor, J., dissenting)). This claim relies on Penry v. Lynaugh, 492 U. S. 302 (1989) (Penry I), a case that applied principles earlier limned in Eddings v. Oklahoma, 455 U. S. 104 (1982), and Lockett v. Ohio, 438 U. S. 586 (1978). I have previously expressed my view that this "right" to unchanneled sentencer discretion has no basis in the Constitution. See Penry I, supra, at 356-360 (opinion concurring in part and dissenting in part). I have also said that the Court's decisions establishing this right do not deserve stare decisis effect, because requiring unchanneled discretion to say no to death cannot rationally be reconciled with our prior decisions requiring canalized discretion to say yes. "[T]he practice which in Furman [v. Georgia, 408 U. S. 238 (1972) (per curiam)] had been described as the discretion to sentence to death and pronounced constitutionally prohibited, was in Woodson [v. North Carolina, 428 U. S. 280 (1976) (plurality opinion)] and Lockett renamed the discretion not to sentence to death and pronounced constitutionally required." Walton v. Arizona, 497 U. S. 639, 662 (1990) (Scalia, J., concurring in part and concurring in judgment). The Court returned greater rationality to our Penry jurisprudence by cutting it back in Graham v. Collins, 506 U. S. 461 (1993), and Johnson v. Texas, supra. I joined the Court in this pruning effort, noting that "the essence of today's holding (to the effect that discretion may constitutionally be channeled) was set forth in my dissent in Penry." Id., at 374 (concurring opinion). As The Chief Justice notes, the lower courts' disposition of petitioner's Penry claim in the present case was entirely appropriate under these cases. Ante, at 2-4 (dissenting opinion). Yet the opinion for the Court does not even acknowledge their existence. It finds failings in the Fifth Circuit's framework for analyzing Penry claims as if this Court's own jurisprudence were not the root of the problem. "The simultaneous pursuit of contradictory objectives necessarily produces confusion." Walton, supra, at 667. Although the present case involves only a COA ruling, rather than a ruling directly on the merits of petitioner's claim, I cannot require the issuance of a COA when the insubstantial right at issue derives from case law in which this Court has long left the Constitution behind and embraced contradiction. I respectfully dissent.ROBERT JAMES TENNARD, PETITIONER v. DOUGDRETKE, DIRECTOR, TEXAS DEPARTMENT OFCRIMINAL JUSTICE, CORRECTIONALINSTITUTIONS DIVISIONon writ of certiorari to the united states court of appeals for the fifth circuit[June 24, 2004] Justice Thomas, dissenting. Petitioner must rely on Penry v. Lynaugh, 492 U. S. 302 (1989), to argue that Texas' special issues framework unconstitutionally limited the discretion of his sentencing jury. I have long maintained, however, that Penry did "so much violence to so many of this Court's settled precedents in an area of fundamental constitutional law, [that] it cannot command the force of stare decisis." Graham v. Collins, 506 U. S. 461, 497 (1993) (concurring opinion). I therefore agree with Justice Scalia that a certificate of appealability cannot be issued based upon an "insubstantial right ... derive[d] from case law in which this Court has long left the Constitution behind and embraced contradiction." Ante, at 2 (dissenting opinion). I respectfully dissent.FOOTNOTESFootnote ** The Fifth Circuit stated that "a majority of the Court of Criminal Appeals found 'no evidence in this record that [Tennard] is mentally retarded.' " 284 F. 3d, at 596-597. As described above, however, that was the conclusion of a four-judge plurality; the narrowest and thus controlling opinion on this point, correctly described by the Fifth Circuit as "conclud[ing] that there was not enough evidence of mental retardation in the record to support Tennard's claim," id., at 596, n. 5 (emphasis added), is Judge Meyers' concurring opinion.

In petitioners' action in Federal District Court under 42 U.S.C. 1983, they alleged and proved that they had been assaulted by an officer of the Memphis Police Department who had a history of violent behavior that was well known within the Department. The court's judgment for petitioners, in addition to awarding compensatory and punitive damages against the officer, also awarded compensatory damages against the then Director of the Police Department "in his official capacity," the court having found that although the Director had no actual knowledge of the officer's disciplinary record because of the Department's administrative policies, he should have known of the officer's dangerous propensities. The Court of Appeals reversed the judgment against the Director, holding that he had acted in good faith and was accordingly entitled to immunity. The court rejected petitioners' contention that the action against the Director was tantamount to an action against the city of Memphis, which could not claim the qualified immunity that its agents could assert and thus was liable for the damages awarded against the Director. The court concluded that the suit was against an individual, not the city.Held: 1. The city was not named as a defendant in this case because the complaint was filed before Monroe v. Pape, - which held that municipalities could not be held liable under 1983 - was overruled by Monell v. New York City Dept. of Social Services, . The course of these proceedings after Monell was decided, however, made it abundantly clear that the action against the Director was in his official capacity and only in that capacity, and that petitioners claimed a right to recover damages from the city. Thus, petitioners would be entitled to amend their pleadings to conform to the proof and to the District Court's findings of fact, and it is appropriate for this Court to decide the legal issues without first insisting that such a formal amendment be filed. Pp. 469-471. 2. In cases under 1983, a judgment against a public servant "in his official capacity" imposes liability on the entity that he represents. This rule was plainly implied in Monell, supra; Hutto v. Finney, ; and Owen v. City of Independence, . The Court of Appeals erred in failing to apply the distinction between suits against government officials "in their individual capacities" entitled to qualified immunity, and suits in which only the liability of the municipality itself was at issue. Pp. 471-473. 719 F.2d 151, reversed and remanded.STEVENS, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, and O'CONNOR, JJ., joined. BURGER, C. J., filed an opinion concurring in the judgment, post, p. 473. REHNQUIST, J., filed a dissenting opinion, post, p. 474.Eric Schnapper argued the cause for petitioners. With him on the briefs were Elizabeth A. McKanna, G. Philip Arnold, William E. Caldwell, and J. LeVonne Chambers.Henry L. Klein argued the cause for respondents. With him on the brief were Clifford D. Pierce, Jr., Charles V. Holmes, and Paul F. Goodman.* [Footnote *] Solicitor General Lee, Acting Assistant Attorney General Willard, Deputy Solicitor General Geller, Bruce N. Kuhlik, Barbara L. Herwig, and Wendy M. Keats filed a brief for the United States as amicus curiae urging reversal.JUSTICE STEVENS delivered the opinion of the Court.The District Court entered a damages judgment against the Director of the Memphis (Tenn.) Police Department in his official capacity. Brandon v. Allen, 516 F. Supp. 1355, 1361 (WD Tenn. 1981). The Court of Appeals for the Sixth Circuit reversed, holding that he was protected by qualified immunity. Brandon v. Allen, 719 F.2d 151, 153 (1983). The question presented is whether the damages judgment is payable by the city of Memphis because the Director was sued in his official capacity or whether the Director is individually liable, but shielded by qualified immunity.Petitioners brought this action under 42 U.S.C. 1983.1 They alleged and proved that Robert J. Allen, who was then a Memphis police officer, viciously assaulted them on March 5, 1977.2 They also proved that Allen had a history of violent and irregular behavior3 that was well known within the Police Department.4 E. Winslow Chapman had been the Director of the Memphis Police Department for approximately six months when Officer Allen attacked the petitioners. It is undisputed that Chapman had no actual knowledge of Allen's disciplinary record. The District Court found, however, that "Director Chapman should have known that Officer Allen's dangerous propensities created a threat to the rights and safety of citizens."5 The Director's lack of actual knowledge of Allen's propensities was found to have been caused by the "policies in effect during that period of Mr. Chapman's relatively new administration," which policies included "the inherently deficient nature of police administrative procedures involving the discovery of officer misconduct."6 Petitioners sought damages from Officer Allen and from Director Chapman. Allen did not defend the action and a default judgment was entered against him for both compensatory and punitive damages. The award against Director Chapman was, however, limited to compensatory damages.7 In its findings and conclusions, the District Court repeatedly and unambiguously stated that the liability of Director Chapman was "in his official capacity."8 The Court of Appeals reversed the judgment against Director Chapman on the ground that he had "acted in good faith and is accordingly entitled to immunity."9 In explaining its holding, the Court of Appeals rejected the petitioners' contention that the action against Chapman was tantamount to an action against the city of Memphis. The court wrote: "The plaintiffs' argument that the qualified immunity is inapplicable simply because they sued Chapman in his official capacity is unavailing. Under Owen v. City of Independence, ... (1980), a municipality is not entitled to claim the qualified immunity that the city's agents can assert. But this is a suit against an individual, not the city. In reality, plaintiffs are attempting to amend their complaint so as to treat the Police Director as though he were the City in order to avoid the qualified immunity which shields Director Chapman. Such an argument is without support in precedent or reason."10 We granted certiorari to consider the validity of that argument. . We now reverse.IIn Monroe v. Pape, , the Court held that a city was not "a person" within the meaning of 42 U.S.C. 1983. That construction of 1983 protected municipalities from liability in cases of this kind until June 6, 1978, when we decided Monell v. New York City Dept. of Social Services, . The complaint in this case was filed on February 22, 1978, before Monroe v. Pape was overruled; this explains why the city of Memphis was not named as a defendant in this case. The timing of the complaint may also explain why petitioners did not expressly allege at the outset of the litigation that they were suing Chapman in his official capacity as Director of Police of the Memphis Police Department.11 The course of proceedings after Monell was decided did, however, make it abundantly clear that the action against Chapman was in his official capacity and only in that capacity. Thus, in petitioners' response to a defense motion for summary judgment, petitioners' counsel stated:"Defendant Chapman is sued in his official capacity as Director of Police Services, City of Memphis, Tennessee. `[O]fficial capacity suits generally represent an action against an entity of which an officer is an agent... . Monell v. New York Department of Social Services, n. 55 (1978).'"12 The point was reiterated in counsel's opening statement,13 in the trial court's evidentiary rulings,14 in the findings on liability,15 and in the proceedings relating to damages in which it was recognized that our decision in Newport v. Facts Concert, Inc., , precluded an award of punitive damages against Director Chapman.16 The Court of Appeals also repeatedly noted that the suit against Chapman was "in his official capacity."17 Moreover, while the appeal was pending Director Chapman left office and was replaced by John D. Holt. Pursuant to Rule 43(c)(1) of the Federal Rules of Appellate Procedure, Holt was automatically substituted as a party.18 It is Director Holt who appears as a respondent in this Court, and there is not even an arguable basis for claiming that the record would support an award of damages against him individually.Given this state of the record, even at this late stage of the proceedings, petitioners are entitled to amend their pleadings to conform to the proof and to the District Court's findings of fact.19 Moreover, it is appropriate for us to proceed to decide the legal issues without first insisting that such a formal amendment be filed; this is because we regard the record as plainly identifying petitioners' claim for damages as one that is asserted against the office of "Director of Police, City of Memphis," rather than against the particular individual who occupied that office when the claim arose. Petitioners are claiming a right to recover damages from the city of Memphis.IIIn at least three recent cases arising under 1983, we have plainly implied that a judgment against a public servant "in his official capacity" imposes liability on the entity that he represents provided, of course, the public entity received notice and an opportunity to respond.20 We now make that point explicit.In Monell, the City of New York was not itself expressly named as a defendant. The suit was nominally against the city's Department of Social Services, but that Department had no greater separate identity from the city than did the Director of the Department when he was acting in his official capacity. For the purpose of evaluating the city's potential liability under 1983, our opinion clearly equated the actions of the Director of the Department in his official capacity with the actions of the city itself.21 Hutto v. Finney, , was an action against state officials rather than municipal officers. Notwithstanding our express recognition that an order requiring the Arkansas Commissioner of Corrections to pay the plaintiff's counsel fees would be satisfied with state funds, we sustained the order against an Eleventh Amendment challenge. We considered it obvious that the State would pay the award because the defendants had been sued in their "official capacities."22 Less than two years later, we decided Owen v. City of Independence, , a 1983 action in which the complaint named as defendants "the city of Independence, City Manager Alberg, and the present members of the City Council in their official capacities."23 We held that the qualified immunity that protects public servants acting in good faith was not available to those defendants. In so holding, we expressly distinguished between suits against government officials "in their individual capacities" on the one hand, and those in which "only the liability of the municipality itself was at issue," on the other.24 Because the Court of Appeals failed to apply that distinction in this case, it erred. Our holding in Owen, that a municipality is not entitled to the shield of qualified immunity from liability under 1983, requires a reversal of the Court of Appeals' judgment. Accordingly, the judgment is reversed, and the case is remanded to that court for further proceedings consistent with this opinion.25 It is so ordered.

[Footnote *] Together with No. 78-303, Colby, Director, Central Intelligence Agency, et al. v. Driver et al., on certiorari to the United States Court of Appeals for the First Circuit. In No. 77-1546, respondents, who had been among those subpoenaed to appear before a federal grand jury in Florida investigating a possible conspiracy to cause a riot, brought suit in the United States District Court for the District of Columbia against petitioners (the then United States Attorney and Assistant United States Attorney for the Northern District of Florida, and a Federal Bureau of Investigation agent) and a Department of Justice attorney, individually and in their official capacities, alleging a conspiracy to deprive respondents of various statutory and constitutional rights, and seeking damages and a declaratory judgment. Petitioners, each of whom resided in Florida, were served by certified mail, and the Department of Justice attorney, who resided in the District of Columbia, was served personally. Respondents relied on 2 of the Mandamus and Venue Act of 1962 (Act), 28 U.S.C. 1391 (e), which provides in part that "[a] civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority ... may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, or (2) the cause of action arose ..., or (4) the plaintiff resides if no real property is involved in the action," and that delivery of the summons and complaint to the officer in such an action may be made by certified mail beyond the territorial limits of the district in which the action is brought. The District Court dismissed the action, ruling that venue was improper and that the court lacked in personam jurisdiction over petitioners. The Court of Appeals reversed, holding that 2 permits damages actions against federal officials to be brought in any district in which any one defendant resides, and that since the Department of Justice attorney was a resident of the District of Columbia venue there was proper. In No. 78-303, respondents, whose mail between the United States and the Soviet Union had allegedly been opened by the Central Intelligence Agency, brought suit in the United States District Court for the District of Rhode Island against petitioners (the then Director and Deputy Director of the CIA) and others, in their individual and official capacities, alleging that interference with respondents' mail violated their constitutional rights, and seeking damages, as well as declaratory and injunctive relief. Petitioners and the other defendants were served outside of Rhode Island by certified mail. The District Court denied the defendants' motion to dismiss the complaint for lack of personal jurisdiction, improper venue, and insufficiency of process, but certified the questions involved for an immediate appeal. The Court of Appeals affirmed the District Court's order as to petitioners, who were CIA officials when the complaint was filed, but reversed as to those defendants who had left their Government positions at the time of filing, holding that 2 applied to damages actions against federal officials in their individual capacities and provided the mechanism for obtaining personal jurisdiction, over them, and that accordingly venue was proper in Rhode Island because one of the respondents resided there.Held: Section 2 of the Act does not apply to actions for money damages brought against federal officials in their individual capacities. Pp. 533-545. (a) Section 2's language "is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority" can reasonably be read as describing the character of the defendant at the time of suit, and, so read, limits a covered "civil action" to one against a federal official who is at that time acting, or failing to act, in an official or apparently official way. Such a "civil action" is that referred to in 1 of the Act, 28 U.S.C. 1361, which gives district courts jurisdiction of "any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." Pp. 535-536. (b) The Act's legislative history clearly indicates that Congress intended nothing more than to provide nationwide venue for the convenience of individual plaintiffs in actions that are nominally against an individual officer but are in reality against the Government. A suit for money damages which must be paid out of the pocket of the private individual who happens to be - or formerly was - employed by the Government plainly is not one "essentially against the United States," and thus is not encompassed by the venue provisions of 2. Pp. 536-543. (c) If 2 were construed to govern damages actions against federal officers individually, suits could be brought against those officers while in Government service - and could be pressed even after the officer has left service - in any one of the 95 federal districts covering the 50 states and other areas within federal jurisdiction. This would place federal officers, solely by reason of their Government service, in a very different posture in personal damages suits from that of all other persons, since under 28 U.S.C. 1391 (b) damages suits against private persons must be brought in the district where all the defendants reside or in which the claim arose. Such was not the intent of Congress. Pp. 544-545. No. 77-1546App. D.C. 170, 569 F.2d 1; and No. 78-303, 577 F.2d 147, reversed and remanded.BURGER, C. J., delivered the opinion of the Court, in which BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. STEWART, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 545. WHITE, J., took no part in the consideration or decision of the cases. MARSHALL, J., took no part in the decision of the cases.Peter Megargee Brown reargued the cause for petitioners in No. 77-1546. With him on the briefs was Earl H. Nemser. Mr. Nemser reargued the cause for petitioners in No. 78-303. With him on the briefs was Mr. Brown.Doris Peterson reargued the cause for respondents in No. 77-1546. With her on the briefs were Morton Stavis, Nancy Stearns, Robert L. Boehm, Cameron Cunningham, Brady Coleman, Jack Levine, and Philip Hirschkop. Melvin L. Wulf reargued the cause for respondents in No. 78-303. With him on the brief were Leon Friedman and Burt Neuborne.Elinor H. Stillman reargued the cause for the United States as amicus curiae urging reversal in No. 78-303. On the brief urging reversal in both cases were Solicitor General McCree, Assistant Attorney General Babcock, Deputy Solicitor General Easterbrook, Allan A. Ryan, Jr., and Robert E. Kopp.MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari in these cases to decide whether the venue provisions contained in 2 of the Mandamus and Venue Act of 1962, 28 U.S.C. 1391 (e), apply to actions for money damages brought against federal officials in their individual capacities. .I No. 77-1546 Stafford et al. v. Briggs et al. In 1972, petitioner William Stafford was United States Attorney and petitioner Stuart Carrouth was an Assistant United States Attorney for the Northern District of Florida. Guy Goodwin was an attorney in the Department of Justice.1 Together they conducted grand jury proceedings in Florida, inquiring into the possibility that various individuals had conspired and engaged in interstate travel with intent to cause a riot. Respondents were among those subpoenaed to appear. At the request of respondents' counsel, the District Judge responsible for the proceedings called Goodwin to the stand and asked him to state, under oath, whether any of the witnesses represented by respondents' counsel was an agent or informant of the Government. Goodwin replied that none was.Respondents later brought this suit in the United States District Court for the District of Columbia against Goodwin, Stafford, Carrouth, and petitioner Claude Meadow, an agent for the Federal Bureau of Investigation. Each was sued individually and in his official capacity. Respondents alleged that Goodwin had testified falsely in furtherance of a conspiracy among petitioners and Goodwin to deprive respondents of various statutory and constitutional rights. Each respondent sought a declaratory judgment, $50,000 in compensatory damages, and $100,000 in punitive damages. Petitioners, each of whom resided in Florida, were served by certified mail; Goodwin, whose residence was in the District of Columbia, was served personally. Respondents relied on 2 of the Mandamus and Venue Act of 1962, which, as amended and codified in Title 28 of the United States Code, provides: " 1391. Venue generally ... . . "(e) A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, or (2) the cause of action arose, or (3) any real property involved in the action is situated, or (4) the plaintiff resides if no real property is involved in the action. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party. "The summons and complaint in such an action shall be served as provided by the Federal Rules of Civil Procedure except that the delivery of the summons and complaint to the officer or agency as required by the rules may be made by certified mail beyond the territorial limits of the district in which the action is brought." Petitioners requested transfer of the action to the Northern District of Florida, or, alternatively, dismissal for improper venue and insufficiency of process. The District Court denied the motion to transfer but granted the motion to dismiss, ruling that venue was improper and that the court lacked in personam jurisdiction over the petitioners.2 Respondents appealed the District Court's order dismissing the case against petitioners, and the Court of Appeals for the District of Columbia Circuit reversed, holding that 28 U.S.C. 1391 (e) permits damages actions against federal officials to be brought in any district in which any one defendant resides. Briggs v. GoodwinApp. D.C. 170, 569 F.2d 1 (1977). Because Goodwin was a resident of the District of Columbia, venue there was proper. The court also held that there was no constitutional infirmity in the statute as applied. It refused to apply the "minimum contacts" analysis of International Shoe Co. v. Washington, , and held that in a case such as this there is no constitutional requirement that defendants have any contacts with the place in which a particular federal court sits before they may be sued in that court. No. 78-303 Colby et al. v. Driver et al. From 1953 to 1973 at the International Airport in New York, the Central Intelligence Agency opened and made photographic copies of certain mail traveling between the United States and the Soviet Union.3 Petitioner Vernon Walters was appointed Deputy Director of Central Intelligence in 1972; petitioner William Colby was appointed Director of Central Intelligence in 1973. Both petitioners were in office in 1975 when respondents, acting on behalf of themselves and others whose mail had allegedly been opened by the CIA, brought suit in the United States District Court for the District of Rhode Island. Respondents alleged that the interference with their mail to and from the Soviet Union violated their constitutional rights. Their suit, brought against both present and former federal officials in their individual and official capacities, requested declaratory, injunctive, and monetary relief, including $20,000 for each letter opened and punitive damages of $100,000 for each member of the plaintiff class.Petitioners and the other defendants were served outside of Rhode Island by certified mail. All the defendants moved to dismiss the complaint for lack of personal jurisdiction, improper venue, and insufficiency of process, claiming that no defendant resided in or had substantial contacts with Rhode Island and that the complaint failed to allege that any activity had occurred there. The District Court denied these motions but certified the questions involved for an immediate appeal.The Court of Appeals for the First Circuit affirmed the order of the District Court as to petitioners, who were CIA officials when the complaint was filed, but it reversed as to those defendants who had left their Government positions at the time of filing. Driver v. Helms, 577 F.2d 147 (1978).4 The court held that 1391 (e) applied to damages actions against federal officials in their individual capacities and provided the mechanism for obtaining personal jurisdiction over them. Venue was proper in Rhode Island because one of the respondents resided there. The court also rejected petitioners' challenge to the constitutionality of the statute, ruling that minimum contacts analysis was not relevant in this situation.IISoon after the passage of the Judiciary Act of 1789, 1 Stat. 73, this Court held that Congress had not granted the federal trial courts generally the power to issue writs of mandamus. McIntire v. Wood, 7 Cranch 504 (1813). The federal courts in the District of Columbia, which derived power to issue the writ from the common law of the State of Maryland, were the sole exception. Kendall v. United States ex rel. Stokes, 12 Pet. 524 (1838).To avoid this jurisdictional obstacle, litigants seeking mandamus-type relief outside of the District of Columbia often brought suits for injunctive or declaratory relief instead. But in most cases a superior federal officer was an indispensable party. See, e. g., Williams v. Fanning, . Because of the legal fiction that officers of such rank resided only where they were stationed - usually the District of Columbia - effective service could be obtained only there. And with the restrictive venue provisions then in effect, joinder of such an official required that the action be brought in the District of Columbia. See 28 U.S.C. 1391 (b) (1946 ed., Supp. II), amended in Pub. L. 89-714, 80 Stat. 1111 (1966). The net result was that persons in distant parts of the country claiming injury by reason of the acts or omissions of a federal officer or agency were faced with significant expense and inconvenience in bringing suits for enforcement of claimed rights.In response to this problem, Congress enacted the Mandamus and Venue Act of 1962. Section 1 of the Act, 28 U.S.C. 1361, provides that actions in the nature of mandamus can be brought in any district court of the United States.5 Section 2 of the Act, 28 U.S.C. 1391 (e), provides a similarly expanded choice of venue and authorizes service by certified mail on federal officers or agencies located outside the district in which such a suit is filed. The 1962 legislation thus makes it more convenient for aggrieved persons to file actions in the nature of mandamus. Respondents argue, however, that much more was intended. They contend that by using the general language "civil action," Congress intended to include in the expanded venue provision not only mandamus-type actions but all civil actions, including those seeking money damages from federal officers as individuals.The language of 1391 (e) does refer to "a civil action." Recitation of that fact, however, but begins our inquiry, as this Court noted over a century ago when faced with a similar problem of statutory interpretation: "The general words used in the clause ... taken by themselves, and literally construed, without regard to the object in view, would seem to sanction the claim of the plaintiff. But this mode of expounding a statute has never been adopted by any enlightened tribunal - because it is evident that in many cases it would defeat the object which the Legislature intended to accomplish. And it is well settled that, in interpreting a statute, the court will not look merely to a particular clause in which general words may be used, but will take in connection with it the whole statute ... and the objects and policy of the law... ." Brown v. Duchesne, 19 How. 183, 194 (1857). Looking first to "the whole statute," two things are apparent: (1) 1 of the Mandamus and Venue Act of 1962 is explicitly limited to "action[s] in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff." 28 U.S.C. 1361. (2) The "civil action" referred to in 2 of the Act is one "in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority... ." 28 U.S.C. 1391 (e) (emphasis added). The highlighted language, cast by Congress in the present tense, can reasonably be read as describing the character of the defendant at the time of the suit. So read, it limits a covered "civil action" to one against a federal official or agency who is at that time acting - or failing to act - in an official or apparently official way.6 Such "civil actions" are those referred to in 1 of the Act, i. e., "action[s] in the nature of mandamus."Our analysis does not stop with the language of the statute; we must also look to "the objects and policy of the law." Brown v. Duchesne, 19 How., at 194. In order to "give [the Act] such a construction as will carry into execution the will of the Legislature ... according to its true intent and meaning," ibid., we turn to the legislative history. Schlanger v. Seamans, , n. 4 (1971). See also United States v. Culbert, , n. 4 (1978); Train v. Colorado Public Interest Research Group, .IIIH. R. 10089, 86th Cong., 2d Sess. (1960), was a precursor of the bill which eventually became the 1962 Act. Congressman Budge, the author of H. R. 10089, explained its purpose: "As it is now, there is no opportunity for a judicial review of the action of any decision that is made by a Federal officer in charge out there [in the field], no matter how arbitrary or capricious, because it is too expensive to come back here [to Washington, D.C.] to litigate it." Hearings on H. R. 10089 before Subcommittee No. 4 of the House Committee on the Judiciary, 86th Cong., 2d Sess., 19-20 (May 26 and June 2, 1960).7 As often happens, the dialogue between witnesses, Members, and Committee Counsel reveals considerable initial confusion as to the extent of the problem and the proposed solution. Of course, the very purpose of hearing witnesses is to expose problems, probe for solutions, and reach a consensus. At one point Congressman Poff, in an obvious effort to clarify the responses, asked the Department of Justice witness, Donald MacGuineas: "Mr. POFF. Wouldn't you say the author's objective is to give a citizen who has a legitimate complaint against his Government the right to sue his Government at the place where the wrong was committed? "Mr. MACGUINEAS. The difficulty, if I may say so, Congressman, with your statement, is you speak of the right to sue his Government. Now, that proposition in itself raises very difficult and complicated legal questions which I touched upon at my appearance last week. "You must first decide whether a particular suit is actually a suit against the man in his official capacity or whether it i[s] a suit against the Government officer in his individual capacity. If it is the latter, it is not in any sense a suit against the Government." Id., at 54. Committee Counsel later asked the Department of Justice witness:"Suppose in order to take care of a body of law which seems to say that when a government official does something wrong he is acting in his individual capacity, we added the following language - `acting in his official capacity or under color of legal authority'?" Id., at 61. Mr. MacGuineas' response, which must now be recognized as prophetic, was that such language might later be misinterpreted as covering a damages action against a person holding Government office. This, he said, would raise "serious policy questions" by allowing a Government official to be sued in the plaintiff's home district while a private defendant in the same kind of action could be sued only in the district of his residence. The Chairman, Mr. Forrester, and the ranking senior Committee Member, Mr. Poff, both stated that they shared the same concern. Id., at 62-63.Judge Albert Maris, then Chairman of the Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, testified that such an "injustice" to the Government officer could be avoided only by requiring a damages suit to be brought in the district of his residence or where the cause of action arose. "That," said Judge Maris, "is the normal procedure in the law. That is what ordinarily happens in the ordinary law suit." Id., at 86. Congressman Dowdy, one of the four Members present, then said:"Speaking to the point you were talking about, I don't understand that we have in consideration suits for money damages. That would be maybe where a person is being sued as an individual." Id., at 87. When Judge Maris stated his view that cases involving money damages would not be involved, Mr. Dowdy agreed: "They would not be covered by this [proposed legislation]." Ibid.Finally, near the conclusion of the hearing, the bill's author, Mr. Budge, stated:"We always get off into these slander type actions which is not what I am seeking at all. When Mr. MacGuineas stated here this morning that he was not sure of the purpose of the legislation, I think that is perhaps true, because I have no intention of bringing [within this bill] tort actions against individual government employees. All I am seeking to do is to have the review of their official actions take place in the United States District Court where the determination was made." Id., at 102 (emphasis added). Following the hearings, the Subcommittee redrafted H. R. 10089. The revised version, H. R. 12622, 86th Cong., 2d Sess. (1960), among other things, added the language "or under color of legal authority" to the phrase "acting in his official capacity." Far from being intended as the master key which would unlock the door to nationwide venue for money damages actions brought against an official as an individual, this language was specifically intended only to alleviate the hardships caused by a relatively narrow but nagging problem, as the Committee Report made clear: "By including the officer or employee, both in his official capacity and acting under color of legal authority, the committee intends to make the proposed section 1391 (e) applicable not only to those cases where an action may be brought against an officer or employee in his official capacity. It intends to include also those cases where the action is nominally brought against the officer in his individual capacity even though he was acting within the apparent scope of his authority and not as a private citizen. Such actions are also in essence against the United States but are brought against the officer or employee as an individual only to circumvent what remains of the doctrine of sovereign immunity. The considerations of policy which demand that an action against an official may be brought locally rather than in the District of Columbia require similar venue provisions where the action is based upon the fiction that the officer is acting as an individual. There is no intention, however, to alter the venue requirements of Federal law insofar as suits resulting from the official's private actions are concerned." H. R. Rep. No. 1936, 86th Cong., 2d Sess., 3-4 (1960) (emphasis added). The Committee's statement of the legislation's purpose also sheds considerable light on the congressional intent: "The purpose of this bill is to make it possible to bring actions against Government officials and agencies in U.S. district courts outside the District of Columbia, which, because of certain existing limitations on jurisdiction and venue, may now be brought only in the U.S. District Court for the District of Columbia." Id., at 1 (emphasis added). In context, this clearly confines the intended thrust of 1391 (e) to mandamus-type actions. See supra, at 533-534. The Report continues: "Section 2 [ 1391 (e)] is the venue section of the bill. Its purpose is similar to that of section 1. It is designed to permit an action which is essentially against the United States to be brought locally rather than requiring that it be brought in the District of Columbia simply because Washington is the official residence of the officer or agency sued." H. R. Rep. No. 1936, supra, at 2 (emphasis added).8 Although H. R. 12622 passed the House in 1960, the Senate adjourned without acting on it. See H. R. Rep. No. 536, 87th Cong., 1st Sess., 1 (1961). The same bill was reintroduced in the next Congress as H. R. 1960, 87th Cong., 1st Sess. (1961). The Committee Report was republished as H. R. Rep. No. 536, 87th Cong., 1st Sess. (1961), and the bill was referred to the Senate.The Senate Judiciary Committee also solicited comments on the bill from the Department of Justice. The Department suggested, inter alia, that it would be prudent to effect the venue reform by amending the Administrative Procedure Act so that "suits for money judgments against officers" would be "unquestionably eliminate[d]." See Letter from Deputy Attorney General White to Senator Eastland (Feb. 28, 1962), reprinted in S. Rep. No. 1992, 87th Cong., 2d Sess., 6 (1962). Although the Senate Committee in its Report commented on other suggestions proffered by the Justice Department, in this instance it made no response at all.9 Respondents and the Courts of Appeals rely on this failure to respond as indicating an intention that the venue provisions were to apply to actions for money damages brought against a federal official in his individual capacity.We are not persuaded by this negative inference. Several passages affirmatively state the limited nature of the bill: The Senate Committee's statement of the bill's purpose is exactly the same as that found in the House Report. Compare S. Rep. No. 1992, supra, at 2, with H. R. Rep. No. 536, supra, at 1. The Committee also states that "[t]he bill, as amended, is intended to facilitate review by the Federal courts of administrative actions," S. Rep. No. 1992, supra, at 2 (emphasis added), which does not afford a basis for reading the language of the statute to include money damages actions against individuals. And the following comment as to the bill's venue provisions appears in the Report: "The committee is of the view that the current state of the law respecting venue in actions against Government officials is contrary to the sound and equitable administration of justice. Frequently, the administrative determinations involved are made not in Washington but in the field. In either event, these are actions which are in essence against the United States. The Government official is defended by the Department of Justice whether the action is brought in the District of Columbia or in any other district. U.S. attorneys are present in every judicial district. Requiring the Government to defend Government officials and agencies in places other than Washington would not appear to be a burdensome imposition." S. Rep. No. 1992, supra, at 3 (emphasis added). Here again is confirmation that there was no thought to expand the venue provisions except as to actions "in essence against the United States," since the Government is not "required" to defend personal actions in which a Government employee is a defendant.What emerges is that the bill's author, the Committees, and the Congress intended nothing more than to provide nationwide venue for the convenience of individual plaintiffs in actions which are nominally against an individual officer but are in reality against the Government. A suit for money damages which must be paid out of the pocket of the private individual who happens to be - or formerly was - employed by the Federal Government plainly is not one "essentially against the United States," and thus is not encompassed by the venue provisions of 1391 (e).10 This is not the first time an overbroad interpretation of 1391 (e) has been rejected by this Court. In Schlanger v. Seamans, , the question was whether in a habeas corpus proceeding "any custodian, or one in the chain of command, as well as the person detained, must be in the territorial jurisdiction of the District Court." Id., at 489. While recognizing that habeas corpus is "a civil action," we noted that reference to 1391 (e) did not provide the answer. In the opinion for the Court, Mr. Justice Douglas stated: "Although by 28 U.S.C. 1391 (e) ... Congress has provided for nationwide service of process in a `civil action in which each defendant is an officer or employee of the United States,' the legislative history of that section is barren of any indication that Congress extended habeas corpus jurisdiction. That section was enacted to broaden the venue of civil actions which could previously have been brought only in the District of Columbia. See H. R. Rep. No. 536, 87th Cong., 1st Sess., 1; S. Rep. No. 1992, 87th Cong., 2d Sess., 2." 401 U.S., at 490, n. 4. (Emphasis added.) As we have noted, the "civil actions which could previously have been brought only in the District of Columbia" were suits for mandamus, not actions for money damages. See supra, at 533-534. The clear purport of our statement in Schlanger is that Congress did not intend the phrase "civil action" to be given the sweeping definition argued for it in that case, and that the Court was required to turn to the legislative history to determine which "civil actions" 1391 (e) governed.IVThe conclusion derived from the legislative history that 1391 (e) does not cover the type of suits here at issue is buttressed by consideration of the consequences of the broad interpretation urged upon us by respondents. The conditions and venue provisions under which officers of the United States may be sued, while in office or after leaving office, have serious implications for defendants as well as for those seeking relief. An officer of the Government while so employed may have numerous mandamus-type suits naming him or her as a party. Without doubt, under 1391 (e), venue lies in every one of the 95 federal districts, and suits may be pending in a dozen or several dozen at any one time. Even though the burden of defending multiple suits while in office may be onerous, the United States Attorney in each of the districts and the Department of Justice carry that burden. In a mandamus suit only rarely would the officer himself be obliged to travel to the district in which the case was heard; if so obliged, the travel would be at Government expense. When an official leaves office, his personal involvement in a mandamus suit effectively ends and his successor carries on. No personal cost or inconvenience is incurred, either while in office or later. It was with this understanding that Congress sought to ameliorate the inconvenience and expense to private plaintiffs seeking relief from the action or inaction of their Government. H. R. Rep. No. 536, at 3; S. Rep. No. 1992, at 3.Suits for money damages for which an individual office-holder may be found personally liable are quite different. If 1391 (e) were construed to govern actions for money damages against federal officers individually, suits could be brought against these federal officers while in Government service - and could be pressed even after the official has left federal service - in any one of the 95 federal districts covering the 50 states and other areas within federal jurisdiction. This would place federal officers, solely by reason of their Government service, in a very different posture in personal damages suits from that of all other persons, since under 28 U.S.C. 1391 (b), suits against private persons for money damages must be brought "in the judicial district where all defendants reside, or in which the claim arose."11 There is, however, no indication that a Congress concerned with "the sound and equitable administration of justice," H. R. Rep. No. 536, at 3; S. Rep. No. 1992, at 3, intended to impose on those serving their Government the burden of defending personal damages actions in a variety of distant districts after leaving office. Absent a clear indication that Congress intended such a sweeping effect, we will not infer such a purpose nor will we interpret a statute to effect that result. "We think these laws ought to be construed in the spirit in which they were made - that is, as founded in justice - and should not be strained by technical constructions to reach cases which Congress evidently could not have contemplated, without departing from the principle upon which they were legislating, and going far beyond the object they intended to accomplish." Brown v. Duchesne, 19 How., at 197.The judgments of the Courts of Appeals in No. 77-1546 and No. 78-303 are reversed, and the cases are remanded for further proceedings consistent with this opinion. Reversed and remanded.MR. JUSTICE WHITE took no part in the consideration or decision of these cases.MR. JUSTICE MARSHALL took no part in the decision of these cases.

North Carolina's Dental Practice Act (Act) provides that the North Carolina State Board of Dental Examiners (Board) is "the agency of the State for the regulation of the practice of dentistry." The Board's principal duty is to create, administer, and enforce a licensing system for dentists; and six of its eight members must be licensed, practicing dentists. The Act does not specify that teeth whitening is "the practice of dentistry." Nonetheless, after dentists complained to the Board that nondentists were charging lower prices for such services than dentists did, the Board issued at least 47 official cease-and-desist letters to nondentist teeth whitening service providers and product manufacturers, often warning that the unlicensed practice of dentistry is a crime. This and other related Board actions led nondentists to cease offering teeth whitening services in North Carolina. The Federal Trade Commission (FTC) filed an administrative complaint, alleging that the Board's concerted action to exclude nondentists from the market for teeth whitening services in North Carolina constituted an anticompetitive and unfair method of competition under the Federal Trade Commission Act. An Administrative Law Judge (ALJ) denied the Board's motion to dismiss on the ground of state-action immunity. The FTC sustained that ruling, reasoning that even if the Board had acted pursuant to a clearly articulated state policy to displace competition, the Board must be actively supervised by the State to claim immunity, which it was not. After a hearing on the merits, the ALJ determined that the Board had unreasonably restrained trade in violation of antitrust law. The FTC again sustained the ALJ, and the Fourth Circuit affirmed the FTC in all respects. Held: Because a controlling number of the Board's decisionmakers are active market participants in the occupation the Board regulates, the Board can invoke state-action antitrust immunity only if it was subject to active supervision by the State, and here that requirement is not met. Pp. 5-18. (a) Federal antitrust law is a central safeguard for the Nation's free market structures. However, requiring States to conform to the mandates of the Sherman Act at the expense of other values a State may deem fundamental would impose an impermissible burden on the States' power to regulate. Therefore, beginning with Parker v. Brown, 317 U. S. 341, this Court interpreted the antitrust laws to confer immunity on the anticompetitive conduct of States acting in their sovereign capacity. Pp. 5-6. (b) The Board's actions are not cloaked with Parker immunity. A nonsovereign actor controlled by active market participants — such as the Board — enjoys Parker immunity only if " 'the challenged restraint . . . [is] clearly articulated and affirmatively expressed as state policy,' and . . . 'the policy . . . [is] actively supervised by the State.' " FTC v. Phoebe Putney Health System, Inc., 568 U. S. ___, ___ (quoting California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97, 105). Here, the Board did not receive active supervision of its anticompetitive conduct. Pp. 6-17. (1) An entity may not invoke Parker immunity unless its actions are an exercise of the State's sovereign power. See Columbia v. Omni Outdoor Advertising, Inc., 499 U. S. 365, 374. Thus, where a State delegates control over a market to a nonsovereign actor the Sherman Act confers immunity only if the State accepts political accountability for the anticompetitive conduct it permits and controls. Limits on state-action immunity are most essential when a State seeks to delegate its regulatory power to active market participants, for dual allegiances are not always apparent to an actor and prohibitions against anticompetitive self-regulation by active market participants are an axiom of federal antitrust policy. Accordingly, Parker immunity requires that the anticompetitive conduct of nonsovereign actors, especially those authorized by the State to regulate their own profession, result from procedures that suffice to make it the State's own. Midcal's two-part test provides a proper analytical framework to resolve the ultimate question whether an anticompetitive policy is indeed the policy of a State. The first requirement — clear articulation — rarely will achieve that goal by itself, for entities purporting to act under state authority might diverge from the State's considered definition of the public good and engage in private self-dealing. The second Midcal requirement — active supervision — seeks to avoid this harm by requiring the State to review and approve interstitial policies made by the entity claiming immunity. Pp. 6-10. (2) There are instances in which an actor can be excused from Midcal's active supervision requirement. Municipalities, which are electorally accountable, have general regulatory powers, and have no private price-fixing agenda, are subject exclusively to the clear articulation requirement. See Hallie v. Eau Claire, 471 U. S. 34, 35. That Hallie excused municipalities from Midcal's supervision rule for these reasons, however, all but confirms the rule's applicability to actors controlled by active market participants. Further, in light of Omni's holding that an otherwise immune entity will not lose immunity based on ad hoc and ex post questioning of its motives for making particular decisions, 499 U. S., at 374, it is all the more necessary to ensure the conditions for granting immunity are met in the first place, see FTC v. Ticor Title Ins. Co., 504 U. S. 621, 633, and Phoebe Putney, supra, at ___. The clear lesson of precedent is that Midcal's active supervision test is an essential prerequisite of Parker immunity for any nonsovereign entity — public or private — controlled by active market participants. Pp. 10-12. (3) The Board's argument that entities designated by the States as agencies are exempt from Midcal's second requirement cannot be reconciled with the Court's repeated conclusion that the need for supervision turns not on the formal designation given by States to regulators but on the risk that active market participants will pursue private interests in restraining trade. State agencies controlled by active market participants pose the very risk of self-dealing Midcal's supervision requirement was created to address. See Goldfarb v. Virginia State Bar, 421 U. S. 773, 791. This conclusion does not question the good faith of state officers but rather is an assessment of the structural risk of market participants' confusing their own interests with the State's policy goals. While Hallie stated "it is likely that active state supervision would also not be required" for agencies, 471 U. S., at 46, n. 10, the entity there was more like prototypical state agencies, not specialized boards dominated by active market participants. The latter are similar to private trade associations vested by States with regulatory authority, which must satisfy Midcal's active supervision standard. 445 U. S., at 105-106. The similarities between agencies controlled by active market participants and such associations are not eliminated simply because the former are given a formal designation by the State, vested with a measure of government power, and required to follow some procedural rules. See Hallie, supra, at 39. When a State empowers a group of active market participants to decide who can participate in its market, and on what terms, the need for supervision is manifest. Thus, the Court holds today that a state board on which a controlling number of decisionmakers are active market participants in the occupation the board regulates must satisfy Midcal's active supervision requirement in order to invoke state-action antitrust immunity. Pp. 12-14. (4) The State argues that allowing this FTC order to stand will discourage dedicated citizens from serving on state agencies that regulate their own occupation. But this holding is not inconsistent with the idea that those who pursue a calling must embrace ethical standards that derive from a duty separate from the dictates of the State. Further, this case does not offer occasion to address the question whether agency officials, including board members, may, under some circumstances, enjoy immunity from damages liability. Of course, States may provide for the defense and indemnification of agency members in the event of litigation, and they can also ensure Parker immunity is available by adopting clear policies to displace competition and providing active supervision. Arguments against the wisdom of applying the antitrust laws to professional regulation absent compliance with the prerequisites for invoking Parker immunity must be rejected, see Patrick v. Burget, 486 U. S. 94, 105-106, particularly in light of the risks licensing boards dominated by market participants may pose to the free market. Pp. 14-16. (5) The Board does not contend in this Court that its anticompetitive conduct was actively supervised by the State or that it should receive Parker immunity on that basis. The Act delegates control over the practice of dentistry to the Board, but says nothing about teeth whitening. In acting to expel the dentists' competitors from the market, the Board relied on cease-and-desist letters threatening criminal liability, instead of other powers at its disposal that would have invoked oversight by a politically accountable official. Whether or not the Board exceeded its powers under North Carolina law, there is no evidence of any decision by the State to initiate or concur with the Board's actions against the nondentists. P. 17. (c) Here, where there are no specific supervisory systems to be reviewed, it suffices to note that the inquiry regarding active supervision is flexible and context-dependent. The question is whether the State's review mechanisms provide "realistic assurance" that a nonsovereign actor's anticompetitive conduct "promotes state policy, rather than merely the party's individual interests." Patrick, 486 U. S., 100-101. The Court has identified only a few constant requirements of active supervision: The supervisor must review the substance of the anticompetitive decision, see id., at 102-103; the supervisor must have the power to veto or modify particular decisions to ensure they accord with state policy, see ibid.; and the "mere potential for state supervision is not an adequate substitute for a decision by the State," Ticor, supra, at 638. Further, the state supervisor may not itself be an active market participant. In general, however, the adequacy of supervision otherwise will depend on all the circumstances of a case. Pp. 17-18.717 F. 3d 359, affirmed.Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Alito, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined.Opinion of the Court 574 U. S. ____ (2015)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 13-534NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS, PETITIONER v. FEDERAL TRADE COMMISSIONon writ of certiorari to the united states court of appeals for the fourth circuit[February 25, 2015] Justice Kennedy delivered the opinion of the Court. This case arises from an antitrust challenge to the actions of a state regulatory board. A majority of the board's members are engaged in the active practice of the profession it regulates. The question is whether the board's actions are protected from Sherman Act regulation under the doctrine of state-action antitrust immunity, as defined and applied in this Court's decisions beginning with Parker v. Brown, 317 U. S. 341 (1943).IA In its Dental Practice Act (Act), North Carolina has declared the practice of dentistry to be a matter of public concern requiring regulation. N. C. Gen. Stat. Ann. §90-22(a) (2013). Under the Act, the North Carolina State Board of Dental Examiners (Board) is "the agency of the State for the regulation of the practice of dentistry." §90-22(b). The Board's principal duty is to create, administer, and enforce a licensing system for dentists. See §§90-29 to 90-41. To perform that function it has broad authority over licensees. See §90-41. The Board's authority with respect to unlicensed persons, however, is more restricted: like "any resident citizen," the Board may file suit to "perpetually enjoin any person from . . . unlawfully practicing dentistry." §90-40.1. The Act provides that six of the Board's eight members must be licensed dentists engaged in the active practice of dentistry. §90-22. They are elected by other licensed dentists in North Carolina, who cast their ballots in elections conducted by the Board. Ibid. The seventh member must be a licensed and practicing dental hygienist, and he or she is elected by other licensed hygienists. Ibid. The final member is referred to by the Act as a "consumer" and is appointed by the Governor. Ibid. All members serve 3-year terms, and no person may serve more than two consecutive terms. Ibid. The Act does not create any mechanism for the removal of an elected member of the Board by a public official. See ibid. Board members swear an oath of office, §138A-22(a), and the Board must comply with the State's Administrative Procedure Act, §150B-1 et seq., Public Records Act, §132-1 et seq., and open-meetings law, §143-318.9 et seq. The Board may promulgate rules and regulations governing the practice of dentistry within the State, provided those mandates are not inconsistent with the Act and are approved by the North Carolina Rules Review Commission, whose members are appointed by the state legislature. See §§90-48, 143B-30.1, 150B-21.9(a).B In the 1990's, dentists in North Carolina started whitening teeth. Many of those who did so, including 8 of the Board's 10 members during the period at issue in this case, earned substantial fees for that service. By 2003, nondentists arrived on the scene. They charged lower prices for their services than the dentists did. Dentists soon began to complain to the Board about their new competitors. Few complaints warned of possible harm to consumers. Most expressed a principal concern with the low prices charged by nondentists. Responding to these filings, the Board opened an investigation into nondentist teeth whitening. A dentist member was placed in charge of the inquiry. Neither the Board's hygienist member nor its consumer member participated in this undertaking. The Board's chief operations officer remarked that the Board was "going forth to do battle" with nondentists. App. to Pet. for Cert. 103a. The Board's concern did not result in a formal rule or regulation reviewable by the independent Rules Review Commission, even though the Act does not, by its terms, specify that teeth whitening is "the practice of dentistry." Starting in 2006, the Board issued at least 47 cease-and-desist letters on its official letterhead to nondentist teeth whitening service providers and product manufacturers. Many of those letters directed the recipient to cease "all activity constituting the practice of dentistry"; warned that the unlicensed practice of dentistry is a crime; and strongly implied (or expressly stated) that teeth whitening constitutes "the practice of dentistry." App. 13, 15. In early 2007, the Board persuaded the North Carolina Board of Cosmetic Art Examiners to warn cosmetologists against providing teeth whitening services. Later that year, the Board sent letters to mall operators, stating that kiosk teeth whiteners were violating the Dental Practice Act and advising that the malls consider expelling violators from their premises. These actions had the intended result. Nondentists ceased offering teeth whitening services in North Carolina.C In 2010, the Federal Trade Commission (FTC) filed an administrative complaint charging the Board with violating §5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U. S. C. §45. The FTC alleged that the Board's concerted action to exclude nondentists from the market for teeth whitening services in North Carolina constituted an anticompetitive and unfair method of competition. The Board moved to dismiss, alleging state-action immunity. An Administrative Law Judge (ALJ) denied the motion. On appeal, the FTC sustained the ALJ's ruling. It reasoned that, even assuming the Board had acted pursuant to a clearly articulated state policy to displace competition, the Board is a "public/private hybrid" that must be actively supervised by the State to claim immunity. App. to Pet. for Cert. 49a. The FTC further concluded the Board could not make that showing. Following other proceedings not relevant here, the ALJ conducted a hearing on the merits and determined the Board had unreasonably restrained trade in violation of antitrust law. On appeal, the FTC again sustained the ALJ. The FTC rejected the Board's public safety justification, noting, inter alia, "a wealth of evidence . . . suggesting that non-dentist provided teeth whitening is a safe cosmetic procedure." Id., at 123a. The FTC ordered the Board to stop sending the cease-and-desist letters or other communications that stated nondentists may not offer teeth whitening services and products. It further ordered the Board to issue notices to all earlier recipients of the Board's cease-and-desist orders advising them of the Board's proper sphere of authority and saying, among other options, that the notice recipients had a right to seek declaratory rulings in state court. On petition for review, the Court of Appeals for the Fourth Circuit affirmed the FTC in all respects. 717 F. 3d 359, 370 (2013). This Court granted certiorari. 571 U. S. ___ (2014).II Federal antitrust law is a central safeguard for the Nation's free market structures. In this regard it is "as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms." United States v. Topco Associates, Inc., 405 U. S. 596, 610 (1972). The antitrust laws declare a considered and decisive prohibition by the Federal Government of cartels, price fixing, and other combinations or practices that undermine the free market. The Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. §1 et seq., serves to promote robust competition, which in turn empowers the States and provides their citizens with opportunities to pursue their own and the public's welfare. See FTC v. Ticor Title Ins. Co., 504 U. S. 621, 632 (1992). The States, however, when acting in their respective realm, need not adhere in all contexts to a model of unfettered competition. While "the States regulate their economies in many ways not inconsistent with the antitrust laws," id., at 635-636, in some spheres they impose restrictions on occupations, confer exclusive or shared rights to dominate a market, or otherwise limit competition to achieve public objectives. If every duly enacted state law or policy were required to conform to the mandates of the Sherman Act, thus promoting competition at the expense of other values a State may deem fundamental, federal antitrust law would impose an impermissible burden on the States' power to regulate. See Exxon Corp. v. Governor of Maryland, 437 U. S. 117, 133 (1978); see also Easterbrook, Antitrust and the Economics of Federalism, 26 J. Law & Econ. 23, 24 (1983). For these reasons, the Court in Parker v. Brown interpreted the antitrust laws to confer immunity on anticompetitive conduct by the States when acting in their sovereign capacity. See 317 U. S., at 350-351. That ruling recognized Congress' purpose to respect the federal balance and to "embody in the Sherman Act the federalism principle that the States possess a significant measure of sovereignty under our Constitution." Community Communications Co. v. Boulder, 455 U. S. 40, 53 (1982). Since 1943, the Court has reaffirmed the importance of Parker's central holding. See, e.g., Ticor, supra, at 632-637; Hoover v. Ronwin, 466 U. S. 558, 568 (1984); Lafayette v. Louisiana Power & Light Co., 435 U. S. 389, 394-400 (1978).III In this case the Board argues its members were invested by North Carolina with the power of the State and that, as a result, the Board's actions are cloaked with Parker immunity. This argument fails, however. A nonsovereign actor controlled by active market participants — such as the Board — enjoys Parker immunity only if it satisfies two requirements: "first that 'the challenged restraint . . . be one clearly articulated and affirmatively expressed as state policy,' and second that 'the policy ... be actively supervised by the State.' " FTC v. Phoebe Putney Health System, Inc., 568 U. S. ___, ___ (2013) (slip op., at 7) (quoting California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97, 105 (1980)). The parties have assumed that the clear articulation requirement is satisfied, and we do the same. While North Carolina prohibits the unauthorized practice of dentistry, however, its Act is silent on whether that broad prohibition covers teeth whitening. Here, the Board did not receive active super-vision by the State when it interpreted the Act as ad-dressing teeth whitening and when it enforced that policy by issuing cease-and-desist letters to nondentist teeth whiteners.A Although state-action immunity exists to avoid conflicts between state sovereignty and the Nation's commitment to a policy of robust competition, Parker immunity is not unbounded. "[G]iven the fundamental national values of free enterprise and economic competition that are embodied in the federal antitrust laws, 'state action immunity is disfavored, much as are repeals by implication.' " Phoebe Putney, supra, at ___ (slip op., at 7) (quoting Ticor, supra, at 636). An entity may not invoke Parker immunity unless the actions in question are an exercise of the State's sovereign power. See Columbia v. Omni Outdoor Advertising, Inc., 499 U. S. 365, 374 (1991). State legislation and "decision[s] of a state supreme court, acting legislatively rather than judicially," will satisfy this standard, and "ipso facto are exempt from the operation of the antitrust laws" because they are an undoubted exercise of state sovereign authority. Hoover, supra, at 567-568. But while the Sherman Act confers immunity on the States' own anticompetitive policies out of respect for federalism, it does not always confer immunity where, as here, a State delegates control over a market to a non-sovereign actor. See Parker, supra, at 351 ("[A] state does not give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful"). For purposes of Parker, a nonsovereign actor is one whose conduct does not automatically qualify as that of the sovereign State itself. See Hoover, supra, at 567-568. State agencies are not simply by their governmental character sovereign actors for purposes of state-action immunity. See Goldfarb v. Virginia State Bar, 421 U. S. 773, 791 (1975) ("The fact that the State Bar is a state agency for some limited purposes does not create an antitrust shield that allows it to foster anticompetitive practices for the benefit of its members"). Immunity for state agencies, therefore, requires more than a mere facade of state involvement, for it is necessary in light of Parker's rationale to ensure the States accept political accountability for anticompetitive conduct they permit and control. See Ticor, 504 U. S., at 636. Limits on state-action immunity are most essential when the State seeks to delegate its regulatory power to active market participants, for established ethical standards may blend with private anticompetitive motives in a way difficult even for market participants to discern. Dual allegiances are not always apparent to an actor. In consequence, active market participants cannot be allowed to regulate their own markets free from antitrust account-ability. See Midcal, supra, at 106 ("The national policy in favor of competition cannot be thwarted by casting [a] gauzy cloak of state involvement over what is essentially a private price-fixing arrangement"). Indeed, prohibitions against anticompetitive self-regulation by active market participants are an axiom of federal antitrust policy. See, e.g., Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U. S. 492, 501 (1988); Hoover, supra, at 584 (Stevens, J., dissenting) ("The risk that private regulation of market entry, prices, or output may be designed to confer monop-oly profits on members of an industry at the expense of the consuming public has been the central concern of . . . our antitrust jurisprudence"); see also Elhauge, The Scope of Antitrust Process, 104 Harv. L. Rev. 667, 672 (1991). So it follows that, under Parker and the Supremacy Clause, the States' greater power to attain an end does not include the lesser power to negate the congressional judgment embodied in the Sherman Act through unsupervised delegations to active market participants. See Garland, Antitrust and State Action: Economic Efficiency and the Political Process, 96 Yale L. J. 486, 500 (1986). Parker immunity requires that the anticompetitive conduct of nonsovereign actors, especially those authorized by the State to regulate their own profession, result from procedures that suffice to make it the State's own. See Goldfarb, supra, at 790; see also 1A P. Areeda & H. Hovencamp, Antitrust Law ¶226, p. 180 (4th ed. 2013) (Areeda & Hovencamp). The question is not whether the challenged conduct is efficient, well-functioning, or wise. See Ticor, supra, at 634-635. Rather, it is "whether anticompetitive conduct engaged in by [nonsovereign actors] should be deemed state action and thus shielded from the antitrust laws." Patrick v. Burget, 486 U. S. 94, 100 (1988). To answer this question, the Court applies the two-part test set forth in California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97, a case arising from California's delegation of price-fixing authority to wine merchants. Under Midcal, "[a] state law or regulatory scheme cannot be the basis for antitrust immunity unless, first, the State has articulated a clear policy to allow the anticompetitive conduct, and second, the State provides active supervision of [the] anticompetitive conduct." Ticor, supra, at 631 (citing Midcal, supra, at 105). Midcal's clear articulation requirement is satisfied "where the displacement of competition [is] the inherent, logical, or ordinary result of the exercise of authority delegated by the state legislature. In that scenario, the State must have foreseen and implicitly endorsed the anticompetitive effects as consistent with its policy goals." Phoebe Putney, 568 U. S., at ___ (slip op., at 11). The active supervision requirement demands, inter alia, "that state officials have and exercise power to review particular anticompetitive acts of private parties and disapprove those that fail to accord with state policy." Patrick, supra, U. S., at 101. The two requirements set forth in Midcal provide a proper analytical framework to resolve the ultimate question whether an anticompetitive policy is indeed the policy of a State. The first requirement — clear articulation — rarely will achieve that goal by itself, for a policy may satisfy this test yet still be defined at so high a level of generality as to leave open critical questions about how and to what extent the market should be regulated. See Ticor, supra, at 636-637. Entities purporting to act under state authority might diverge from the State's considered definition of the public good. The resulting asymmetry between a state policy and its implementation can invite private self-dealing. The second Midcal requirement — active supervision — seeks to avoid this harm by requiring the State to review and approve interstitial policies made by the entity claiming immunity. Midcal's supervision rule "stems from the recognition that '[w]here a private party is engaging in anticompetitive activity, there is a real danger that he is acting to further his own interests, rather than the governmental interests of the State.' " Patrick, supra, at 100. Concern about the private incentives of active market participants animates Midcal's supervision mandate, which demands "realistic assurance that a private party's anticompetitive conduct promotes state policy, rather than merely the party's individual interests." Patrick, supra, at 101.B In determining whether anticompetitive policies and conduct are indeed the action of a State in its sovereign capacity, there are instances in which an actor can be excused from Midcal's active supervision requirement. In Hallie v. Eau Claire, 471 U. S. 34, 45 (1985), the Court held municipalities are subject exclusively to Midcal's " 'clear articulation' " requirement. That rule, the Court observed, is consistent with the objective of ensuring that the policy at issue be one enacted by the State itself. Hallie explained that "[w]here the actor is a municipality, there is little or no danger that it is involved in a private price-fixing arrangement. The only real danger is that it will seek to further purely parochial public interests at the expense of more overriding state goals." 471 U. S., at 47. Hallie further observed that municipalities are electorally accountable and lack the kind of private incentives characteristic of active participants in the market. See id., at 45, n. 9. Critically, the municipality in Hallie exercised a wide range of governmental powers across different economic spheres, substantially reducing the risk that it would pursue private interests while regulating any single field. See ibid. That Hallie excused municipalities from Midcal's supervision rule for these reasons all but confirms the rule's applicability to actors controlled by active market participants, who ordinarily have none of the features justifying the narrow exception Hallie identified. See 471 U. S., at 45. Following Goldfarb, Midcal, and Hallie, which clarified the conditions under which Parker immunity attaches to the conduct of a nonsovereign actor, the Court in Columbia v. Omni Outdoor Advertising, Inc., 499 U. S. 365, addressed whether an otherwise immune entity could lose immunity for conspiring with private parties. In Omni, an aspiring billboard merchant argued that the city of Columbia, South Carolina, had violated the Sherman Act — and forfeited its Parker immunity — by anticompetitively conspiring with an established local company in passing an ordinance restricting new billboard construction. 499 U. S., at 367-368. The Court disagreed, holding there is no "conspiracy exception" to Parker. Omni, supra, at 374. Omni, like the cases before it, recognized the importance of drawing a line "relevant to the purposes of the Sherman Act and of Parker: prohibiting the restriction of competition for private gain but permitting the restriction of competition in the public interest." 499 U. S., at 378. In the context of a municipal actor which, as in Hallie, exercised substantial governmental powers, Omni rejected a conspiracy exception for "corruption" as vague and unworkable, since "virtually all regulation benefits some segments of the society and harms others" and may in that sense be seen as " 'corrupt.' " 499 U. S., at 377. Omni also rejected subjective tests for corruption that would force a "deconstruction of the governmental process and probing of the official 'intent' that we have consistently sought to avoid." Ibid. Thus, whereas the cases preceding it addressed the preconditions of Parker immunity and engaged in an objective, ex ante inquiry into nonsovereign actors' structure and incentives, Omni made clear that recipients of immunity will not lose it on the basis of ad hoc and ex post questioning of their motives for making particular decisions. Omni's holding makes it all the more necessary to ensure the conditions for granting immunity are met in the first place. The Court's two state-action immunity cases decided after Omni reinforce this point. In Ticor the Court affirmed that Midcal's limits on delegation must ensure that "[a]ctual state involvement, not deference to private price-fixing arrangements under the general auspices of state law, is the precondition for immunity from federal law." 504 U. S., at 633. And in Phoebe Putney the Court observed that Midcal's active supervision requirement, in particular, is an essential condition of state-action immunity when a nonsovereign actor has "an incentive to pursue [its] own self-interest under the guise of implementing state policies." 568 U. S., at ___ (slip op., at 8) (quoting Hallie, supra, at 46-47). The lesson is clear: Midcal's active supervision test is an essential prerequisite of Parker immunity for any nonsovereign entity — public or private — controlled by active market participants.C The Board argues entities designated by the States as agencies are exempt from Midcal's second requirement. That premise, however, cannot be reconciled with the Court's repeated conclusion that the need for supervision turns not on the formal designation given by States to regulators but on the risk that active market participants will pursue private interests in restraining trade. State agencies controlled by active market participants, who possess singularly strong private interests, pose the very risk of self-dealing Midcal's supervision requirement was created to address. See Areeda & Hovencamp ¶227, at 226. This conclusion does not question the good faith of state officers but rather is an assessment of the structural risk of market participants' confusing their own interests with the State's policy goals. See Patrick, 486 U. S., at 100-101. The Court applied this reasoning to a state agency in Goldfarb. There the Court denied immunity to a state agency (the Virginia State Bar) controlled by market participants (lawyers) because the agency had "joined in what is essentially a private anticompetitive activity" for "the benefit of its members." 421 U. S., at 791, 792. This emphasis on the Bar's private interests explains why Goldfarb, though it predates Midcal, considered the lack of supervision by the Virginia Supreme Court to be a principal reason for denying immunity. See 421 U. S., at 791; see also Hoover, 466 U. S., at 569 (emphasizing lack of active supervision in Goldfarb); Bates v. State Bar of Ariz., 433 U. S. 350, 361-362 (1977) (granting the Arizona Bar state-action immunity partly because its "rules are subject to pointed re-examination by the policymaker"). While Hallie stated "it is likely that active state supervision would also not be required" for agencies, 471 U. S., at 46, n. 10, the entity there, as was later the case in Omni, was an electorally accountable municipality with general regulatory powers and no private price-fixing agenda. In that and other respects the municipality was more like prototypical state agencies, not specialized boards dominated by active market participants. In important regards, agencies controlled by market participants are more similar to private trade associations vested by States with regulatory authority than to the agencies Hallie considered. And as the Court observed three years after Hallie, "[t]here is no doubt that the members of such associations often have economic incentives to restrain competition and that the product standards set by such associations have a serious potential for anticompetitive harm." Allied Tube, 486 U. S., at 500. For that reason, those associations must satisfy Midcal's active supervision standard. See Midcal, 445 U. S., at 105-106. The similarities between agencies controlled by active market participants and private trade associations are not eliminated simply because the former are given a formal designation by the State, vested with a measure of government power, and required to follow some procedural rules. See Hallie, supra, at 39 (rejecting "purely formalistic" analysis). Parker immunity does not derive from nomenclature alone. When a State empowers a group of active market participants to decide who can participate in its market, and on what terms, the need for supervision is manifest. See Areeda & Hovencamp ¶227, at 226. The Court holds today that a state board on which a controlling number of decisionmakers are active market participants in the occupation the board regulates must satisfy Midcal's active supervision requirement in order to invoke state-action antitrust immunity.D The State argues that allowing this FTC order to stand will discourage dedicated citizens from serving on state agencies that regulate their own occupation. If this were so — and, for reasons to be noted, it need not be so — there would be some cause for concern. The States have a sovereign interest in structuring their governments, see Gregory v. Ashcroft, 501 U. S. 452, 460 (1991), and may conclude there are substantial benefits to staffing their agencies with experts in complex and technical subjects, see Southern Motor Carriers Rate Conference, Inc. v. United States, 471 U. S. 48, 64 (1985). There is, moreover, a long tradition of citizens esteemed by their professional colleagues devoting time, energy, and talent to enhancing the dignity of their calling. Adherence to the idea that those who pursue a calling must embrace ethical standards that derive from a duty separate from the dictates of the State reaches back at least to the Hippocratic Oath. See generally S. Miles, The Hippocratic Oath and the Ethics of Medicine (2004). In the United States, there is a strong tradition of professional self-regulation, particularly with respect to the development of ethical rules. See generally R. Rotunda & J. Dzienkowski, Legal Ethics: The Lawyer's Deskbook on Professional Responsibility (2014); R. Baker, Before Bioethics: A History of American Medical Ethics From the Colonial Period to the Bioethics Revolution (2013). Dentists are no exception. The American Dental Association, for example, in an exercise of "the privilege and obligation of self-government," has "call[ed] upon dentists to follow high ethical standards," including "honesty, compassion, kindness, integrity, fairness and charity." American Dental Association, Principles of Ethics and Code of Professional Conduct 3-4 (2012). State laws and institutions are sustained by this tradition when they draw upon the expertise and commitment of professionals. Today's holding is not inconsistent with that idea. The Board argues, however, that the potential for money damages will discourage members of regulated occupations from participating in state government. Cf. Filarsky v. Delia, 566 U. S. ___, ___ (2012) (slip op., at 12) (warning in the context of civil rights suits that the "the most talented candidates will decline public engagements if they do not receive the same immunity enjoyed by their public employee counterparts"). But this case, which does not present a claim for money damages, does not offer occasion to address the question whether agency officials, including board members, may, under some circumstances, enjoy immunity from damages liability. See Goldfarb, 421 U. S., at 792, n. 22; see also Brief for Respondent 56. And, of course, the States may provide for the defense and indemnification of agency members in the event of litigation. States, furthermore, can ensure Parker immunity is available to agencies by adopting clear policies to displace competition; and, if agencies controlled by active market participants interpret or enforce those policies, the States may provide active supervision. Precedent confirms this principle. The Court has rejected the argument that it would be unwise to apply the antitrust laws to professional regulation absent compliance with the prerequisites for invoking Parker immunity:"[Respondents] contend that effective peer review is essential to the provision of quality medical care and that any threat of antitrust liability will prevent physicians from participating openly and actively in peer-review proceedings. This argument, however, essentially challenges the wisdom of applying the antitrust laws to the sphere of medical care, and as such is properly directed to the legislative branch. To the extent that Congress has declined to exempt medical peer review from the reach of the antitrust laws, peer review is immune from antitrust scrutiny only if the State effectively has made this conduct its own." Patrick, 486 U. S. at 105-106 (footnote omitted). The reasoning of Patrick v. Burget applies to this case with full force, particularly in light of the risks licensing boards dominated by market participants may pose to the free market. See generally Edlin & Haw, Cartels by Another Name: Should Licensed Occupations Face Antitrust Scrutiny? 162 U. Pa. L. Rev. 1093 (2014).E The Board does not contend in this Court that its anticompetitive conduct was actively supervised by the State or that it should receive Parker immunity on that basis. By statute, North Carolina delegates control over the practice of dentistry to the Board. The Act, however, says nothing about teeth whitening, a practice that did not exist when it was passed. After receiving complaints from other dentists about the nondentists' cheaper services, the Board's dentist members — some of whom offered whitening services — acted to expel the dentists' competitors from the market. In so doing the Board relied upon cease-and-desist letters threatening criminal liability, rather than any of the powers at its disposal that would invoke oversight by a politically accountable official. With no active supervision by the State, North Carolina officials may well have been unaware that the Board had decided teeth whitening constitutes "the practice of dentistry" and sought to prohibit those who competed against dentists from participating in the teeth whitening market. Whether or not the Board exceeded its powers under North Carolina law, cf. Omni, 499 U. S., at 371-372, there is no evidence here of any decision by the State to initiate or concur with the Board's actions against the nondentists.IV The Board does not claim that the State exercised active, or indeed any, supervision over its conduct regarding nondentist teeth whiteners; and, as a result, no specific supervisory systems can be reviewed here. It suffices to note that the inquiry regarding active supervision is flexible and context-dependent. Active supervision need not entail day-to-day involvement in an agency's operations or micromanagement of its every decision. Rather, the question is whether the State's review mechanisms provide "realistic assurance" that a nonsovereign actor's anticompetitive conduct "promotes state policy, rather than merely the party's individual interests." Patrick, supra, at 100-101; see also Ticor, 504 U. S., at 639-640. The Court has identified only a few constant requirements of active supervision: The supervisor must review the substance of the anticompetitive decision, not merely the procedures followed to produce it, see Patrick, 486 U. S., at 102-103; the supervisor must have the power to veto or modify particular decisions to ensure they accord with state policy, see ibid.; and the "mere potential for state supervision is not an adequate substitute for a decision by the State," Ticor, supra, at 638. Further, the state supervisor may not itself be an active market participant. In general, however, the adequacy of supervision otherwise will depend on all the circumstances of a case.* * * The Sherman Act protects competition while also respecting federalism. It does not authorize the States to abandon markets to the unsupervised control of active market participants, whether trade associations or hybrid agencies. If a State wants to rely on active market participants as regulators, it must provide active supervision if state-action immunity under Parker is to be invoked. The judgment of the Court of Appeals for the Fourth Circuit is affirmed.It is so ordered.Alito, J., dissenting 574 U. S. ____ (2015)No. 13-534NORTH CAROLINA STATE BOARD OF DENTAL EXAMINERS, PETITIONER v. FEDERAL TRADE COMMISSIONon writ of certiorari to the united states court of appeals for the fourth circuit[February 25, 2015] Justice Alito, with whom Justice Scalia and Justice Thomas join, dissenting. The Court's decision in this case is based on a serious misunderstanding of the doctrine of state-action antitrust immunity that this Court recognized more than 60 years ago in Parker v. Brown, 317 U. S. 341 (1943). In Parker, the Court held that the Sherman Act does not prevent the States from continuing their age-old practice of enacting measures, such as licensing requirements, that are designed to protect the public health and welfare. Id., at 352. The case now before us involves precisely this type of state regulation — North Carolina's laws governing the practice of dentistry, which are administered by the North Carolina Board of Dental Examiners (Board). Today, however, the Court takes the unprecedented step of holding that Parker does not apply to the North Caro-lina Board because the Board is not structured in a way that merits a good-government seal of approval; that is, it is made up of practicing dentists who have a financial incentive to use the licensing laws to further the financial interests of the State's dentists. There is nothing new about the structure of the North Carolina Board. When the States first created medical and dental boards, well before the Sherman Act was enacted, they began to staffthem in this way.1 Nor is there anything new about the suspicion that the North Carolina Board — in attempting to prevent persons other than dentists from performing teeth-whitening procedures — was serving the interests of dentists and not the public. Professional and occupational licensing requirements have often been used in such a way.2 But that is not what Parker immunity is about. Indeed, the very state program involved in that case was unquestionably designed to benefit the regulated entities, California raisin growers. The question before us is not whether such programs serve the public interest. The question, instead, is whether this case is controlled by Parker, and the answer to that question is clear. Under Parker, the Sherman Act (and the Federal Trade Commission Act, see FTC v. Ticor Title Ins. Co., 504 U. S. 621, 635 (1992)) do not apply to state agencies; the North Carolina Board of Dental Examiners is a state agency; and that is the end of the matter. By straying from this simple path, the Court has not only distorted Parker; it has headed into a morass. Determining whether a state agency is structured in a way that militates against regulatory capture is no easy task, and there is reason to fear that today's decision will spawn confusion. The Court has veered off course, and therefore I cannot go along.I In order to understand the nature of Parker state-action immunity, it is helpful to recall the constitutional landscape in 1890 when the Sherman Act was enacted. At that time, this Court and Congress had an understanding of the scope of federal and state power that is very different from our understanding today. The States were understood to possess the exclusive authority to regulate "their purely internal affairs." Leisy v. Hardin, 135 U. S. 100, 122 (1890). In exercising their police power in this area, the States had long enacted measures, such as price controls and licensing requirements, that had the effect of restraining trade.3 The Sherman Act was enacted pursuant to Congress' power to regulate interstate commerce, and in passing the Act, Congress wanted to exercise that power "to the utmost extent." United States v. South-Eastern Underwriters Assn., 322 U. S. 533, 558 (1944). But in 1890, the understanding of the commerce power was far more limited than it is today. See, e.g., Kidd v. Pearson, 128 U. S. 1, 17-18 (1888). As a result, the Act did not pose a threat to traditional state regulatory activity. By 1943, when Parker was decided, however, the situation had changed dramatically. This Court had held that the commerce power permitted Congress to regulate even local activity if it "exerts a substantial economic effect on interstate commerce." Wickard v. Filburn, 317 U. S. 111, 125 (1942). This meant that Congress could regulate many of the matters that had once been thought to fall exclusively within the jurisdiction of the States. The new interpretation of the commerce power brought about an expansion of the reach of the Sherman Act. See HospitalBuilding Co. v. Trustees of Rex Hospital, 425 U. S. 738, 743, n. 2 (1976) ("[D]ecisions by this Court have permitted the reach of the Sherman Act to expand along with expanding notions of congressional power"). And the expanded reach of the Sherman Act raised an important question. The Sherman Act does not expressly exempt States from its scope. Does that mean that the Act applies to the States and that it potentially outlaws many traditional state regulatory measures? The Court confronted that question in Parker. In Parker, a raisin producer challenged the California Agricultural Prorate Act, an agricultural price support program. The California Act authorized the creation of an Agricultural Prorate Advisory Commission (Commission) to establish marketing plans for certain agricultural commodities within the State. 317 U. S., at 346-347. Raisins were among the regulated commodities, and so the Commission established a marketing program that governed many aspects of raisin sales, including the quality and quantity of raisins sold, the timing of sales, and the price at which raisins were sold. Id., at 347-348. The Parker Court assumed that this program would have violated "the Sherman Act if it were organized and made effective solely by virtue of a contract, combination or conspiracy of private persons," and the Court also assumed that Congress could have prohibited a State from creating a program like California's if it had chosen to do so. Id., at 350. Nevertheless, the Court concluded that the California program did not violate the Sherman Act because the Act did not circumscribe state regulatory power. Id., at 351. The Court's holding in Parker was not based on either the language of the Sherman Act or anything in the legislative history affirmatively showing that the Act was not meant to apply to the States. Instead, the Court reasoned that "[i]n a dual system of government in which, under the Constitution, the states are sovereign, save only as Con-gress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state's control over its officers and agents is not lightly to be attributed to Congress." 317 U. S., at 351. For the Congress that enacted the Sherman Act in 1890, it would have been a truly radical and almost certainly futile step to attempt to prevent the States from exercising their traditional regulatory authority, and the Parker Court refused to assume that the Act was meant to have such an effect. When the basis for the Parker state-action doctrine is understood, the Court's error in this case is plain. In 1890, the regulation of the practice of medicine and dentistry was regarded as falling squarely within the States' sovereign police power. By that time, many States had established medical and dental boards, often staffed by doctors or dentists,4 and had given those boards the authority to confer and revoke licenses.5 This was quintessential police power legislation, and although state laws were often challenged during that era under the doctrine of substantive due process, the licensing of medical professionals easily survived such assaults. Just one year before the enactment of the Sherman Act, in Dent v. West Vir-ginia, 129 U. S. 114, 128 (1889), this Court rejected such a challenge to a state law requiring all physicians to obtain a certificate from the state board of health attesting to their qualifications. And in Hawker v. New York, 170 U. S. 189, 192 (1898), the Court reiterated that a lawspecifying the qualifications to practice medicine was clearly a proper exercise of the police power. Thus, the North Carolina statutes establishing and specifying the powers of the State Board of Dental Examiners represent precisely the kind of state regulation that the Parker exemption was meant to immunize.II As noted above, the only question in this case is whether the North Carolina Board of Dental Examiners is really a state agency, and the answer to that question is clearly yes.· The North Carolina Legislature determined that the practice of dentistry "affect[s] the public health, safety and welfare" of North Carolina's citizens and that therefore the profession should be "subject to regulation and control in the public interest" in order to ensure "that only qualified persons be permitted to practice dentistry in the State." N. C. Gen. Stat. Ann. §90-22(a) (2013).· To further that end, the legislature created the North Carolina State Board of Dental Examiners "as the agency of the State for the regulation of the practice of dentistry in th[e] State." §90-22(b).· The legislature specified the membership of the Board. §90-22(c). It defined the "practice of dentistry," §90-29(b), and it set out standards for licensing practitioners, §90-30. The legislature also set out standards under which the Board can initiate disciplinary proceedings against licensees who engage in certain improper acts. §90-41(a).· The legislature empowered the Board to "maintain an action in the name of the State of North Carolina to perpetually enjoin any person from . . . unlawfully practicing dentistry." §90-40.1(a). It authorized the Board to conduct investigations and to hire legalcounsel, and the legislature made any "notice or statement of charges against any licensee" a public record under state law. §§ 90-41(d)-(g).· The legislature empowered the Board "to enact rules and regulations governing the practice of dentistry within the State," consistent with relevant statutes. §90-48. It has required that any such rules be included in the Board's annual report, which the Board must file with the North Carolina secretary of state, the state attorney general, and the legislature's Joint Regulatory Reform Committee. §93B-2. And if the Board fails to file the required report, state law demands that it be automatically suspended until it does so. Ibid. As this regulatory regime demonstrates, North Caro-lina's Board of Dental Examiners is unmistakably a state agency created by the state legislature to serve a prescribed regulatory purpose and to do so using the State's power in cooperation with other arms of state government. The Board is not a private or "nonsovereign" entity that the State of North Carolina has attempted to immunize from federal antitrust scrutiny. Parker made it clear that a State may not " 'give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful.' " Ante, at 7 (quoting Parker, 317 U. S., at 351). When the Parker Court disapproved of any such attempt, it cited Northern Securities Co. v. United States, 193 U. S. 197 (1904), to show what it had in mind. In that case, the Court held that a State's act of chartering a corporation did not shield the corporation's monopolizing activities from federal antitrust law. Id., at 344-345. Nothing similar is involved here. North Carolina did not authorize a private entity to enter into an anticompetitive arrangement; rather, North Carolina created a state agency and gave that agency the power to regulate a particular subject affecting public health andsafety. Nothing in Parker supports the type of inquiry that the Court now prescribes. The Court crafts a test under which state agencies that are "controlled by active market participants," ante, at 12, must demonstrate active state supervision in order to be immune from federal antitrust law. The Court thus treats these state agencies like private entities. But in Parker, the Court did not examine the structure of the California program to determine if it had been captured by private interests. If the Court had done so, the case would certainly have come out differently, because California conditioned its regulatory measures on the participation and approval of market actors in the relevant industry. Establishing a prorate marketing plan under California's law first required the petition of at least 10 producers of the particular commodity. Parker, 317 U. S., at 346. If the Commission then agreed that a marketing plan was warranted, the Commission would "select a program committee from among nominees chosen by the qualified producers." Ibid. (emphasis added). That committee would then formulate the proration marketing program, which the Commission could modify or approve. But even after Commission approval, the program became law (and then, automatically) only if it gained the approval of 65 percent of the relevant producers, representing at least 51 percent of the acreage of the regulated crop. Id., at 347. This scheme gave decisive power to market participants. But despite these aspects of the California program, Parker held that California was acting as a "sovereign" when it "adopt[ed] and enforc[ed] the prorate program." Id., at 352. This reasoning is irreconcilable with the Court's today.III The Court goes astray because it forgets the origin of theParker doctrine and is misdirected by subsequent cases that extended that doctrine (in certain circumstances) to private entities. The Court requires the North Carolina Board to satisfy the two-part test set out in California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U. S. 97 (1980), but the party claiming Parker immunity in that case was not a state agency but a private trade association. Such an entity is entitled to Parker immunity, Midcal held, only if the anticompetitive conduct at issue was both " 'clearly articulated' " and " 'actively supervised by the State itself.' " 445 U. S., at 105. Those requirements are needed where a State authorizes private parties to engage in anticompetitive conduct. They serve to identify those situations in which conduct by private parties can be regarded as the conduct of a State. But when the conduct in question is the conduct of a state agency, no such inquiry is required. This case falls into the latter category, and therefore Midcal is inapposite. The North Carolina Board is not a private trade association. It is a state agency, created and empowered by the State to regulate an industry affecting public health. It would not exist if the State had not created it. And for purposes of Parker, its membership is irrelevant; what matters is that it is part of the government of the sovereign State of North Carolina. Our decision in Hallie v. Eau Claire, 471 U. S. 34 (1985), which involved Sherman Act claims against a municipal-ity, not a State agency, is similarly inapplicable. In Hallie, the plaintiff argued that the two-pronged Midcal test should be applied, but the Court disagreed. The Court acknowledged that municipalities "are not themselves sovereign." 471 U. S., at 38. But recognizing that a municipality is "an arm of the State," id., at 45, the Court held that a municipality should be required to satisfy only the first prong of the Midcal test (requiring a clearly articulated state policy), 471 U. S., at 46. That municipalitiesare not sovereign was critical to our analysis in Hallie, and thus that decision has no application in a case, like this one, involving a state agency. Here, however, the Court not only disregards the North Carolina Board's status as a full-fledged state agency; it treats the Board less favorably than a municipality. This is puzzling. States are sovereign, Northern Ins. Co. of N. Y. v. Chatham County, 547 U. S. 189, 193 (2006), and California's sovereignty provided the foundation for the decision in Parker, supra, at 352. Municipalities are not sovereign. Jinks v. Richland County, 538 U. S. 456, 466 (2003). And for this reason, federal law often treats municipalities differently from States. Compare Will v. Michigan Dept. of State Police, 491 U. S. 58, 71 (1989) ("[N]either a State nor its officials acting it their official capacities are 'persons' under [42 U. S. C.] §1983"), with Monell v. City Dept. of Social Servs., New York, 436 U. S. 658, 694 (1978) (municipalities liable under §1983 where "execution of a government's policy or custom . . . inflicts the injury"). The Court recognizes that municipalities, although not sovereign, nevertheless benefit from a more lenient standard for state-action immunity than private entities. Yet under the Court's approach, the North Carolina Board of Dental Examiners, a full-fledged state agency, is treated like a private actor and must demonstrate that the State actively supervises its actions. The Court's analysis seems to be predicated on an assessment of the varying degrees to which a municipality and a state agency like the North Carolina Board are likely to be captured by private interests. But until today, Parker immunity was never conditioned on the proper use of state regulatory authority. On the contrary, in Columbia v. Omni Outdoor Advertising, Inc., 499 U. S. 365 (1991), we refused to recognize an exception to Parker for cases in which it was shown that the defendants hadengaged in a conspiracy or corruption or had acted in a way that was not in the public interest. Id., at 374. The Sherman Act, we said, is not an anticorruption or good-government statute. 499 U. S., at 398. We were unwilling in Omni to rewrite Parker in order to reach the allegedly abusive behavior of city officials. 499 U. S., at 374-379. But that is essentially what the Court has done here.III Not only is the Court's decision inconsistent with the underlying theory of Parker; it will create practical problems and is likely to have far-reaching effects on the States' regulation of professions. As previously noted, state medical and dental boards have been staffed by practitioners since they were first created, and there are obvious advantages to this approach. It is reasonable for States to decide that the individuals best able to regulate technical professions are practitioners with expertise in those very professions. Staffing the State Board of Dental Examiners with certified public accountants would certainly lessen the risk of actions that place the well-being of dentists over those of the public, but this would also compromise the State's interest in sensibly regulating a technical profession in which lay people have little expertise. As a result of today's decision, States may find it necessary to change the composition of medical, dental, and other boards, but it is not clear what sort of changes are needed to satisfy the test that the Court now adopts. The Court faults the structure of the North Carolina Board because "active market participants" constitute "a controlling number of [the] decisionmakers," ante, at 14, but this test raises many questions. What is a "controlling number"? Is it a majority? And if so, why does the Court eschew that term? Or does the Court mean to leave open the possibility that something less than a majority might suffice in particular circum-stances? Suppose that active market participants constitute a voting bloc that is generally able to get its way? How about an obstructionist minority or an agency chair empowered to set the agenda or veto regulations? Who is an "active market participant"? If Board members withdraw from practice during a short term of service but typically return to practice when their terms end, does that mean that they are not active market participants during their period of service? What is the scope of the market in which a member may not participate while serving on the board? Must the market be relevant to the particular regulation being challenged or merely to the jurisdiction of the entire agency? Would the result in the present case be different if a majority of the Board members, though practicing dentists, did not provide teeth whitening services? What if they were orthodontists, periodontists, and the like? And how much participation makes a person "active" in the market? The answers to these questions are not obvious, but the States must predict the answers in order to make informed choices about how to constitute their agencies. I suppose that all this will be worked out by the lower courts and the Federal Trade Commission (FTC), but the Court's approach raises a more fundamental question, and that is why the Court's inquiry should stop with an examination of the structure of a state licensing board. When the Court asks whether market participants control the North Carolina Board, the Court in essence is asking whether this regulatory body has been captured by the entities that it is supposed to regulate. Regulatory capture can occur in many ways.6 So why ask only whetherthe members of a board are active market participants? The answer may be that determining when regulatory capture has occurred is no simple task. That answer provides a reason for relieving courts from the obligation to make such determinations at all. It does not explain why it is appropriate for the Court to adopt the rather crude test for capture that constitutes the holding of today's decision.IV The Court has created a new standard for distinguishing between private and state actors for purposes of fed-eral antitrust immunity. This new standard is not true to the Parker doctrine; it diminishes our traditional respect for federalism and state sovereignty; and it will be difficult to apply. I therefore respectfully dissent. FOOTNOTESFootnote 1 S. White, History of Oral and Dental Science in America 197214 (1876) (detailing earliest American regulations of the practice of dentistry).Footnote 2 See, e.g., R. Shrylock, Medical Licensing in America 29 (1967) (Shrylock) (detailing the deterioration of licensing regimes in the mid-19th century, in part out of concerns about restraints on trade); Gellhorn, The Abuse of Occupational Licensing, 44 U. Chi. L. Rev. 6 (1976); Shepard, Licensing Restrictions and the Cost of Dental Care, 21 J. Law & Econ. 187 (1978).Footnote 3 See Handler, The Current Attack on the Parker v. Brown State Action Doctrine, 76 Colum. L. Rev. 1, 4-6 (1976) (collecting cases).Footnote 4 Shrylock 54-55; D. Johnson and H. Chaudry, Medical Licensing and Discipline in America 23-24 (2012).Footnote 5 In Hawker v. New York, 170 U. S. 189 (1898), the Court cited state laws authorizing such boards to refuse or revoke medical licenses. Id., at 191-193, n. 1. See also Douglas v. Noble, 261 U. S. 165, 166 (1923) ("In 1893 the legislature of Washington provided that only licensed persons should practice dentistry" and "vested the authority to license in a board of examiners, consisting of five practicing dentists").Footnote 6 See, e.g., R. Noll, Reforming Regulation 40-43, 46 (1971); J. Wilson, The Politics of Regulation 357-394 (1980). Indeed, it has even been charged that the FTC, which brought this case, has been captured by entities over which it has jurisdiction. See E. Cox, "The Nader Report" on the Federal Trade Commission vii-xiv (1969); Posner, Federal Trade Commission, Chi. L. Rev. 47, 82-84 (1969).

The affidavit given by police officers to obtain a state search warrant stated that: "Affiants have received reliable information from a credible person and do believe that heroin ... and other narcotics ... are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law." The affidavit provided no further information concerning either the undisclosed informant or the reliability of the information. The warrant was issued, a search made, and the evidence obtained was admitted at the trial at which petitioner was found guilty of possessing heroin. Held: 1. The standard of reasonableness for obtaining a search warrant is the same under the Fourth and the Fourteenth Amendments. Ker v. California, , followed. P. 110. 2. Although an affidavit supporting a search warrant may be based on hearsay information and need not reflect the direct personal observations of the affiant, the magistrate must be informed of some of the underlying circumstances relied on by the person providing the information and some of the underlying circumstances from which the affiant concluded that the informant, whose identity was not disclosed, was creditable or his information reliable. Giordenello v. United States, , followed. Pp. 110-115. 172 Tex. Cr. R. 629, 631, 362 S. W. 2d 111, 112, reversed and remanded.Clyde W. Woody argued the cause and filed a brief for petitioner.Carl E. F. Dally argued the cause for respondent. With him on the brief were Waggoner Carr, Attorney General of Texas, and Gilbert J. Pena, Assistant Attorney General. MR. JUSTICE GOLDBERG delivered the opinion of the Court.This case presents questions concerning the constitutional requirements for obtaining a state search warrant.Two Houston police officers applied to a local Justice of the Peace for a warrant to search for narcotics in petitioner's home. In support of their application, the officers submitted an affidavit which, in relevant part, recited that:"Affiants have received reliable information from a credible person and do believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law."1 The search warrant was issued.In executing the warrant, the local police, along with federal officers, announced at petitioner's door that they were police with a warrant. Upon hearing a commotion within the house, the officers forced their way into the house and seized petitioner in the act of attempting to dispose of a packet of narcotics.At his trial in the state court, petitioner, through his attorney, objected to the introduction of evidence obtained as a result of the execution of the warrant. The objections were overruled and the evidence admitted. Petitioner was convicted of illegal possession of heroin and sentenced to serve 20 years in the state penitentiary.2 On appeal to the Texas Court of Criminal Appeals, the conviction was affirmed, 172 Tex. Cr. R. 629, 362 S. W. 2d 111, affirmance upheld on rehearing, 172 Tex. Cr. R. 631, 362 S. W. 2d 112. We granted a writ of certiorari to consider the important constitutional questions involved. .In Ker v. California, , we held that the Fourth "Amendment's proscriptions are enforced against the States through the Fourteenth Amendment," and that "the standard of reasonableness is the same under the Fourth and Fourteenth Amendments." Id., at 33. Although Ker involved a search without a warrant, that case must certainly be read as holding that the standard for obtaining a search warrant is likewise "the same under the Fourth and Fourteenth Amendments."An evaluation of the constitutionality of a search warrant should begin with the rule that "the informed and deliberate determinations of magistrates empowered to issue warrants ... are to be preferred over the hurried action of officers ... who may happen to make arrests." United States v. Lefkowitz, . The reasons for this rule go to the foundations of the Fourth Amendment. A contrary rule "that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people's homes secure only in the discretion of police officers." Johnson v. United States, . Under such a rule "resort to [warrants] would ultimately be discouraged." Jones v. United States, . Thus, when a search is based upon a magistrate's, rather than a police officer's, determination of probable cause, the reviewing courts will accept evidence of a less "judicially competent or persuasive character than would have justified an officer in acting on his own without a warrant," ibid., and will sustain the judicial determination so long as "there was substantial basis for [the magistrate] to conclude that narcotics were probably present ... ." Id., at 271. As so well stated by Mr. Justice Jackson: "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United States, supra, at 13-14. Although the reviewing court will pay substantial deference to judicial determinations of probable cause, the court must still insist that the magistrate perform his "neutral and detached" function and not serve merely as a rubber stamp for the police. In Nathanson v. United States, , a warrant was issued upon the sworn allegation that the affiant "has cause to suspect and does believe" that certain merchandise was in a specified location. Id., at 44. The Court, noting that the affidavit "went upon a mere affirmation of suspicion and belief without any statement of adequate supporting facts," id., at 46 (emphasis added), announced the following rule: "Under the Fourth Amendment, an officer may not properly issue a warrant to search a private dwelling unless he can find probable cause therefor from facts or circumstances presented to him under oath or affirmation. Mere affirmance of belief or suspicion is not enough." Id., at 47. (Emphasis added.) The Court, in Giordenello v. United States, , applied this rule to an affidavit similar to that relied upon here.3 Affiant in that case swore that petitioner "did receive, conceal, etc., narcotic drugs ... with knowledge of unlawful importation ... ." Id., at 481. The Court announced the guiding principles to be:"that the inferences from the facts which lead to the complaint `[must] be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.' Johnson v. United States, . The purpose of the complaint, then, is to enable the appropriate magistrate ... to determine whether the `probable cause' required to support a warrant exists. The Commissioner must judge for himself the persuasiveness of the facts relied on by a complaining officer to show probable cause. He should not accept without question the complainant's mere conclusion ... ." 357 U.S., at 486. The Court, applying these principles to the complaint in that case, stated that:"it is clear that it does not pass muster because it does not provide any basis for the Commissioner's determination ... that probable cause existed. The complaint contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein; it does not indicate any sources for the complainant's belief; and it does not set forth any other sufficient basis upon which a finding of probable cause could be made." Ibid. The vice in the present affidavit is at least as great as in Nathanson and Giordenello. Here the "mere conclusion" that petitioner possessed narcotics was not even that of the affiant himself; it was that of an unidentified informant. The affidavit here not only "contains no affirmative allegation that the affiant spoke with personal knowledge of the matters contained therein," it does not even contain an "affirmative allegation" that the affiant's unidentified source "spoke with personal knowledge." For all that appears, the source here merely suspected, believed or concluded that there were narcotics in petitioner's possession.4 The magistrate here certainly could not "judge for himself the persuasiveness of the facts relied on ... to show probable cause." He necessarily accepted "without question" the informant's "suspicion," "belief" or "mere conclusion."Although an affidavit may be based on hearsay information and need not reflect the direct personal observations of the affiant, Jones v. United States, , the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, see Rugendorf v. United States, , was "credible" or his information "reliable."5 Otherwise, "the inferences from the facts which lead to the complaint" will be drawn not "by a neutral and detached magistrate," as the Constitution requires, but instead, by a police officer "engaged in the often competitive enterprise of ferreting out crime," Giordenello v. United States, supra, at 486; Johnson v. United States, supra, at 14, or, as in this case, by an unidentified informant.We conclude, therefore, that the search warrant should not have been issued because the affidavit did not provide a sufficient basis for a finding of probable cause and that the evidence obtained as a result of the search warrant was inadmissible in petitioner's trial.The judgment of the Texas Court of Criminal Appeals is reversed and the case remanded for proceedings not inconsistent with this opinion. Reversed and remanded.MR. JUSTICE HARLAN, concurring.But for Ker v. California, , I would have voted to affirm the judgment of the Texas court. Given Ker, I cannot escape the conclusion that to do so would tend to "relax Fourth Amendment standards ... in derogation of law enforcement standards in the federal system ..." (my concurring opinion in Ker, supra, at 45-46, emphasis added). Contrary to what is suggested in the dissenting opinion of my Brother CLARK in the present case (post, p. 118, note 1), the standards laid down in Giordenello v. United States, , did in my view reflect constitutional requirements. Being unwilling to relax those standards for federal prosecutions, I concur in the opinion of the Court.

Under federal grants awarded by the National Institute of Arthritis, Metabolism, and Digestive Diseases (NIAMDD) (a federal agency), the University Group Diabetes Program (UGDP), a group of private physicians and scientists, conducted a long-term study of the effectiveness of certain diabetes treatment regimens. Pertinent federal regulations authorized some supervision of UGDP and gave NIAMDD the right of access to, or permanent custody of, the raw data generated by UGDP. However, the day-to-day administration of grant-supported activities was in UGDP's hands, and NIAMDD did not exercise its right to review or obtain custody of the raw data, which remained at all times in UGDP's possession and under its ownership. The UGDP's reports on the results of its study, indicating that the use of certain drugs in diabetes treatment increased the risk of heart disease, ultimately resulted in proceedings by the Secretary of Health, Education, and Welfare (HEW) and the Food and Drug Administration (FDA) to restrict the labeling and use of the drugs. After both UGDP and HEW denied petitioners' request for access to the UGDP raw data underlying its published reports, petitioners filed suit in Federal District Court to require HEW to make the raw data available under the Freedom of Information Act (FOIA), which empowers federal courts to order an "agency" to produce "agency records improperly withheld" from an individual requesting access. The District Court granted summary judgment for respondents, holding that HEW properly denied the request on the ground that the data did not constitute "agency records" under the FOIA. The Court of Appeals affirmed.Held: HEW need not produce the requested data because they are not "agency records" within the meaning of the FOIA. Data generated by a privately controlled organization which has received federal grants (grantee), but which data has not at any time been obtained by the agency, are not "agency records" accessible under the FOIA. Pp. 177-187. (a) There is no merit to petitioners' claim that the data were at least records of UGDP, and that the federal funding and supervision of UGDP alone provide the close connection necessary to render its records "agency records" as that term is used in the FOIA. While "agency record" is not defined in the Act, Congress excluded private grantees from FOIA disclosure obligations by excluding them from the Act's definition of "agency," an action consistent with its prevalent practice of preserving the autonomy of federal grantees and their records. Since Congress found that federal funding and supervision (short of Government control) did not justify direct access to the grantee's records, it cannot be concluded that those identical activities were intended to permit indirect access through an expansive definition of "agency records." Pp. 178-182. (b) Nor may a broad definition of "agency records" be invoked so as to include all documents created by a private grantee to which the Government has access and which the Government has used. Such a broad definition is not supported by either the language, structure, or legislative history of the FOIA. Instead, Congress contemplated that an agency must first either create or obtain a record as a prerequisite to its becoming an "agency record" within the meaning of the FOIA. This conclusion is also supported by other Acts in which Congress has associated creation or acquisition with the concept of a governmental record. Although in this case HEW has a right of access to the data, and a right if it so chooses to obtain permanent custody of the UGDP records, in this context the FOIA applies to records which have been in fact obtained, and not to records which merely could have been obtained. Without first establishing that the agency has created or obtained the document, the agency's reliance on or use of the document is similarly irrelevant. Pp. 182-186. App. D.C. 231, 587 F.2d 1128, affirmed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, BLACKMUN, POWELL, and STEVENS, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 187.Michael R. Sonnenreich argued the cause for petitioners. With him on the brief were Neil L. Chayet, Harvey W. Freishtat, and Michael X. Morrell.Deputy Solicitor General Geller argued the cause for the federal respondents. With him on the brief were Solicitor General McCree, Acting Assistant Attorney General Daniel, William Alsup, Richard M. Cooper, and Michael P. Peskoe. Thomas E. Plank, Assistant Attorney General of Maryland, argued the cause for respondent Klimt. With him on the brief were Stephen H. Sachs, Attorney General, and David H. Feldman, Assistant Attorney General.* [Footnote *] Sheldon Elliot Steinbach and Joseph Anthony Keyes, Jr., filed a brief for the American Council on Education et al. as amici curiae.MR. JUSTICE REHNQUIST delivered the opinion of the Court.The Freedom of Information Act, 5 U.S.C. 552, empowers federal courts to order an "agency" to produce "agency records improperly withheld" from an individual requesting access. 552 (a) (4) (B). We hold here that written data generated, owned, and possessed by a privately controlled organization receiving federal study grants are not "agency records" within the meaning of the Act when copies of those data have not been obtained by a federal agency subject to the FOIA. Federal participation in the generation of the data by means of a grant from the Department of Health, Education, and Welfare (HEW) does not make the private organization a federal "agency" within the terms of the Act. Nor does this federal funding in combination with a federal right of access render the data "agency records" of HEW, which is a federal "agency" under the terms of the Act.IIn 1959, a group of private physicians and scientists specializing in the treatment of diabetes formed the University Group Diabetes Program (UGDP). The UGDP conducted a long-term study of the effectiveness of five diabetes treatment regimens. Two of these treatment regimens involved diet control in combination with the administration of either tolbutamide, or phenformin hydrochloride, both "oral hypoglycemic" drugs. The UGDP's participating physicians were located at 12 clinics nationwide and the study was coordinated at the Coordinating Center of the University of Maryland. The study generated more than 55 million records documenting the treatment of over 1,000 diabetic patients who were monitored for a 5- to 8-year period. In 1970, the UGDP presented the initial results of its study indicating that the treatment of adult-onset diabetics with tolbutamide increased the risk of death from cardiovascular disease over that present when diabetes was treated by the other methods studied. The UGDP later expanded these findings to report a similarly increased incidence of heart disease when patients were treated with phenformin hydrochloride. These findings have in turn generated substantial professional debate.The Committee on the Care of the Diabetic (CCD), a national association of physicians involved in the treatment of diabetes mellitus patients, have been among those critical of the UGDP study. CCD requested the UGDP to grant it access to the raw data in order to facilitate its review of the UGDP findings, but UGDP has declined to comply with that request. CCD therefore sought to obtain the information under the Freedom of Information Act. The essential facts are not in dispute, and we hereafter set forth those relevant to our decision.The UGDP study has been solely funded by federal grants in the neighborhood of $15 million between 1961 and 1978. These grants were awarded UGDP by the National Institute of Arthritis, Metabolism, and Digestive Diseases (NIAMDD), a federal agency,1 pursuant to the Public Health Service Act, 42 U.S.C. 241 (c). NIAMDD has not only awarded the federal grants to UGDP, but has exercised a certain amount of supervision over the funded activity. Federal regulations governing supervision of grantees allow for the review of periodic reports submitted by the grantee and on-site visits, and require agency approval of major program or budgetary changes. 45 CFR 74.80-74.85 (1979); 42 CFR 52.20 (b) (1979). It is undisputed, however, both that the day-to-day administration of grant-supported activities is in the hands of a grantee, and that NIAMDD's supervision of UGDP conformed to these regulations.2 The grantee has also retained control of its records: the patient records and raw data generated by UGDP have at all times remained in the possession of that entity, and neither the NIAMDD grants nor related regulations shift ownership of such data to the Federal Government. NIAMDD does, however, have a right of access to the data in order to insure compliance with the grant. 45 CFR 74.24 (a) (1979). And the Government may obtain permanent custody of the documents upon request. 74.21 (c). But NIAMDD has not exercised its right either to review or to obtain permanent custody of the data.Although no employees of the NIAMDD have reviewed the UGDP records, the Institute did contract in 1972 with another private grantee, the Biometric Society, for an assessment of the validity of the UGDP study. The Biometric Society was given direct access to the UGDP raw data by the terms of its contract with NIAMDD. The contract with the Biometric Society, however, did not require the Society to seek access to the UGDP raw data, nor did it require that any data actually reviewed be transmitted to the NIAMDD. While the Society did review some UGDP data, it did not submit any raw data reviewed by it to the NIAMDD. The Society issued a report to the Institute in 1974 concluding that the UGDP results were "mixed" but "moderately strong."An additional connection between the Federal Government and the UGDP study has occurred through the activities of the Food and Drug Administration. After the FDA was apprised of the UGDP results, the agency issued a statement recommending that physicians use tolbutamide in the treatment of diabetes only in limited circumstances. After the UGDP reported finding a similarly higher incidence of cardiovascular disease with the administration of phenformin, the FDA proposed changes in the labeling of these oral hypoglycemic drugs to warn patients of cardiovascular hazards. FDA Drug Bulletin (June 23, 1971). The FDA deferred further action on this labeling proposal, however, until the Biometric Society completed its review of the UGDP study.3 After the Biometric study was issued, FDA renewed its proposal to require a label warning that oral hypoglycemics should be used only in cases of adult-onset, stable diabetes that could not be treated adequately by a combination of diet and insulin. The FDA clearly relied on the UGDP study in renewing this position. 40 Fed. Reg. 28587, 28591 (1975). At the time the proposal was published, the FDA invited public comment. In response to criticism of the UGDP study and the Biometric Society's audit, the FDA conducted its own audit of the UGDP study pursuant to a delegation of NIAMDD's authority to audit grantee records. In conducting this audit, the FDA examined and copied a small sample of the UGDP raw data. This audit report has been made available for public inspection. 43 Fed. Reg. 52733 (1978).Although this labeling proposal has not yet become final, other FDA regulatory action has been taken. On July 25, 1977, the Secretary of HEW suspended the New Drug Application for phenformin, one of the oral hypoglycemic medications studied by the UGDP. The decision was premised in part on the findings of the UGDP study. See Order of the Secretary of Health, Education, and Welfare, July 25, 1977. After the Secretary's temporary order of suspension was issued, proceedings before the FDA continued. The Administrative Law Judge ordered the FDA to produce all UGDP data in its possession. The FDA then produced those portions of the UGDP raw data which the agency had copied, abstracted, or directly transferred to Government premises during its audit. The ALJ found that the HEW suspension order was supported by the evidence. On November 15, 1978, the Commissioner of Food and Drugs affirmed the ALJ's finding that phenformin was not shown to be safe and ordered it withdrawn from the market. 44 Fed. Reg. 20967 (1979). This decision was not based substantially on the UGDP study.4 Petitioners had long since initiated a series of FOIA requests seeking access to the UGDP raw data. On August 7, 1975, HEW denied their request for the UGDP data on the grounds that no branch of HEW had ever reviewed or seen the raw data; that the FDA's proposed relabeling action relied on the UGDP published reports and not on an analysis of the underlying data; that the data were the property of the UGDP, a private group; and that the agencies were not required to acquire and produce those data under the FOIA.5 The following month petitioners filed this FOIA suit in the United States District Court for the District of Columbia to require HEW to make available all of the raw data compiled by UGDP. The District Court granted summary judgment in favor of respondents, holding that HEW properly denied the request on the ground that the patient data did not constitute "agency records" under the FOIA.The Court of Appeals affirmed on the same rationale. Forsham v. CalifanoApp. D.C. 231, 587 F.2d 1128 (1978). The court found that although NIAMDD is a federal agency, its grantees are not federal agencies. The court rejected the petitioners' argument that the UGDP's records were nevertheless also the federal agency's records. Although HEW has a right of access to the documents, the court reasoned that this right did not render the documents "agency records" since the FOIA only applies to records which have been "created or obtained ... in the course of doing its work."6 Id., at 239, 587 F.2d, at 1136. The dissenting judge concluded that the UGDP data were "agency records" under the FOIA since the Government had been "significantly involved" in the study through its funding, access to the raw data, and reliance on the study in its regulatory actions.IIAs we hold in the companion case of Kissinger v. Reporters Committee for Freedom of the Press, ante, p. 136, it must be established that an "agency" has "improperly withheld agency records" for an individual to obtain access to documents through an FOIA action. We hold here that HEW need not produce the requested data because they are not "agency records" within the meaning of the FOIA. In so holding, we reject three separate but related claims of petitioners: (1) the data they seek are "agency records" because they were at least "records" of UGDP, and UGDP in turn received its funds from a federal agency and was subject to some supervision by the agency in its use of those funds; (2) the data they seek are "agency records" because HEW, concededly a federal agency, had sufficient authority under its grant agreement to have obtained the data had it chosen to do so; and (3) the data are "agency records" because they formed the basis for the published reports of UGDP, which in turn were relied upon by the FDA in the actions described above.7 Congress undoubtedly sought to expand public rights of access to Government information when it enacted the Freedom of Information Act, but that expansion was a finite one. Congress limited access to "agency records," 5 U.S.C. 552 (a) (4) (B),8 but did not provide any definition of "agency records" in that Act. The use of the word "agency" as a modifier demonstrates that Congress contemplated some relationship between an "agency" and the "record" requested under the FOIA. With due regard for the policies and language of the FOIA, we conclude that data generated by a privately controlled organization which has received grant funds from an agency (hereafter grantee),9 but which data has not at any time been obtained by the agency, are not "agency records" accessible under the FOIA.AWe first examine petitioners' claim that the data were at least records of UGDP, and that the federal funding and supervision of UGDP alone provides the close connection necessary to render its records "agency records" as that term is used in the Freedom of Information Act. Congress did not define "agency record" under the FOIA, but it did define "agency." The definition of "agency" reveals a great deal about congressional intent as to the availability of records from private grantees under the FOIA, and thus, a great deal about the relevance of federal funding and supervision to the definitional scope of "agency records." Congress excluded private grantees from FOIA disclosure obligations by excluding them from the definition of "agency," an action consistent with its prevalent practice of preserving grantee autonomy. It has, for example, disclaimed any federal property rights in grantee records by virtue of its funding. We cannot agree with petitioners in light of these circumstances that the very federal funding and supervision which Congress found insufficient to make the grantee an agency subject to the FOIA nevertheless makes its records accessible under the same Act.Under 5 U.S.C. 552 (e) an "agency" is defined as"any executive department, military department, Government corporation, Government controlled corporation, or other establishment in the executive branch of the Government ..., or any independent regulatory agency." The legislative history indicates unequivocally that private organizations receiving federal financial assistance grants are not within the definition of "agency." In their Report, the conferees stated that they did "not intend to include corporations which receive appropriated funds but are neither chartered by the Federal Government nor controlled by it, such as the Corporation for Public Broadcasting." H. Conf. Rep. No. 93-1380, pp. 14-15 (1974), reprinted in Freedom of Information Act and Amendments of 1974 Source Book 231-232 (Jt. Comm. Print 1975). Through operation of this exclusion, Congress chose not to confer any direct public rights of access to such federally funded project information.10 This treatment of federal grantees under the FOIA is consistent with congressional treatment of them in other areas of federal law. Grants of federal funds generally do not create a partnership or joint venture with the recipient, nor do they serve to convert the acts of the recipient from private acts to governmental acts absent extensive, detailed, and virtually day-to-day supervision. United States v. Orleans, . Measured by these standards, the UGDP is not a federal instrumentality or an FOIA agency.11 Congress could have provided that the records generated by a federally funded grantee were federal property even though the grantee has not been adopted as a federal entity. But Congress has not done so, reflecting the same regard for the autonomy of the grantee's records as for the grantee itself. Congress expressly requires an agency to use "procurement contracts" when the "principal purpose of the instrument is the acquisition ... of property or services for the direct benefit or use of the Federal Government... ." Federal Grant and Cooperative Agreement Act of 1977, 4, 92 Stat. 4, 41 U.S.C. 503 (1976 ed., Supp. II). In contrast, "grant agreements" must be used when money is given to a recipient "in order to accomplish a public purpose of support or stimulation authorized by Federal statute, rather than acquisition ... of property or services... ." 5, 41 U.S.C. 504 (1976 ed., Supp. II). As in this case, where a grant was used, there is no dispute that the documents created are the property of the recipient, and not the Federal Government. See 45 CFR 74.133 (1979). The HEW regulations do retain a right to acquire the documents. Those regulations, however, clearly demonstrate that unless and until that right is exercised, the records are only the "records of grantees." 45 CFR 74.24 (1979).12 Therefore, were petitioners to prevail in this action, they would have obtained a right of access to some 55 million documents created, owned, and possessed by a private recipient of federal funds. While this fact itself is not dispositive of the outcome, it is nonetheless an important consideration when viewed in light of these congressional attempts to maintain the autonomy of federal grantees and their records.The fact that Congress has chosen not to make a federal grantee an "agency" or to vest ownership of the records in the Government does not resolve with mathematical precision the question of whether the granting agency's funding and supervisory activities nevertheless make the grantee's records "agency records." Records of a nonagency certainly could become records of an agency as well. But if Congress found that federal funding and supervision did not justify direct access to the grantee's records, as it clearly did, we fail to see why we should nevertheless conclude that those identical activities were intended to permit indirect access through an expansive definition of "agency records."13 Such a conclusion would not implement the intent of Congress; it would defeat it.These considerations do not finally conclude the inquiry, for conceivably other facts might indicate that the documents could be "agency records" even though generated by a private grantee. The definition of "agency" and congressional policy towards grantee records indicate, however, that Congress did not intend that grant supervision short of Government control serve as a sufficient basis to make the private records "agency records" under the Act, and reveal a congressional determination to keep federal grantees free from the direct obligations imposed by the FOIA. In ascertaining the intended expanse of the term "agency records" then, we must, of course, construe the Act with regard both for the congressional purpose of increasing public access to governmental records and for this equally explicit purpose of retaining grantee autonomy.BPetitioners seek to prevail on their second and third theories, even though their first be rejected, by invoking a broad definition of "agency records," so as to include all documents created by a private grantee to which the Government has access, and which the Government has used. We do not believe that this broad definition of "agency records," a term undefined in the FOIA, is supported by either the language of that Act or its legislative history. We instead agree with the opinions of the courts below that Congress contemplated that an agency must first either create or obtain a record as a prerequisite to its becoming an "agency record" within the meaning of the FOIA. While it would be stretching the ordinary meaning of the words to call the data in question here "agency records," we need not rest our conclusions solely on the "plain language" rule of statutory construction. The use of the term "record" by Congress in two other Acts, and the structure and legislative history of the FOIA alike support the same conclusion.Although Congress has supplied no definition of agency records in the FOIA, it has formulated a definition in other Acts. The Records Disposal Act, in effect at the time Congress enacted the Freedom of Information Act, provides the following threshold requirement for agency records: "`records' includes all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business... ." 44 U.S.C. 3301.14 (Emphasis added.) The Attorney General's Memorandum on the Public Information Section of the Administrative Procedure Act 23-24 (1967), S. Doc. No. 93-82, pp. 222-223 (1974), concludes that Congress intended this aspect of the Records Act definition to apply to the Freedom of Information Act.The same standard emerges in the Presidential Records Act of 1978. The term "presidential records" is defined as "documentary materials ... created or received by the President... ." 44 U.S.C. 2201 (2) (1976 ed., Supp. II). (Emphasis added.) While these definitions are not dispositive of the proper interpretation of congressional use of the word in the FOIA, it is not insignificant that Congress has associated creation or acquisition with the concept of a governmental record. The text, structure, and legislative history of the FOIA itself reinforce that significance in this case.The only direct reference to a definition of records in the legislative history, of which we are aware, occurred during the Senate hearings leading to the enactment of FOIA. A representative of the Interstate Commerce Commission commented that "[s]ince the word `records' ... is not defined, we assume that it includes all papers which an agency preserves in the performance of its functions." Administrative Procedure Act: Hearings on S. 1160 et al. before the Sub-committee on Administrative Practice and Procedure of the Senate Committee on the Judiciary, 89th Cong., 1st Sess., 244 (1965).15 The legislative history of the FOIA abounds with other references to records acquired by an agency. For example, the legislative Reports clarify that confidential information "submitted ... to a Government ... agency," "obtained by the Government," or "given to an agency" otherwise subject to disclosure, was made exempt. S. Rep. No. 813, 89th Cong., 1st Sess., 9 (1965), reprinted in Freedom of Information Act Source Book, S. Doc. No. 93-82, p. 44 (Comm. Print 1974); H. R. Rep. No. 1497, 89th Cong., 2d Sess. (1966), reprinted in Source Book, at 31.Section 552 (b) (4) provides the strongest structural support for this construction. This section exempts trade secrets and commercial or financial information "obtained from a person." This exemption was designed to protect confidential information "submitted" by a borrower to a lending agency or "obtained by the Government" through questionnaires or other inquiries, where such information "would customarily not be released to the public by the person from whom it was obtained." S. Rep. No. 813, supra, at 9; H. R. Rep. No. 1497, supra, at 10. It is significant that Congress did not include a similar exemption for confidential information contained in records which had never been "obtained from a person." It is obvious that this omission does not reflect a congressional judgment that records remaining in private control are not similarly deserving of this exemption, but rather a judgment that records which have never passed from private to agency control are not agency records which would require any such exemption. This possessory emphasis is buttressed by similar considerations implicit in the use of the word "withholding" in the statutory framework. See Kissinger v. Reporters Committee for Freedom of the Press, ante, p. 136.16 The same focus emerges in a congressional amendment to the Securities Exchange Act of 1934. That Act had provided its own standards for public access to documents generated by the Act. Congress amended the Act to provide:"For purposes of [the FOIA] the term `records' includes all applications, statements, reports, contracts, correspondence, notices, and other documents filed with or otherwise obtained by the Commission pursuant to this chapter or otherwise." (Emphasis added.) 15 U.S.C. 78x. We think that the weight this construction lends to our conclusion is overborne neither by an agency's potential access to the grantee's information nor by its reliance on that information in carrying out the various duties entrusted to it by Congress. The Freedom of Information Act deals with "agency records," not information in the abstract. Petitioners place great reliance on the fact that HEW has a right of access to the data, and a right if it so chooses to obtain permanent custody of the UGDP records. 45 CFR 74.24, 74.21 (1979). But in this context the FOIA applies to records which have been in fact obtained, and not to records which merely could have been obtained.17 To construe the FOIA to embrace the latter class of documents would be to extend the reach of the Act beyond what we believe Congress intended. We rejected a similar argument in NLRB v. Sears, Roebuck & Co., , by holding that the FOIA imposes no duty on the agency to create records. By ordering HEW to exercise its right of access, we effectively would be compelling the agency to "create" an agency record since prior to that exercise the record was not a record of the agency. Thus without first establishing that the agency has created or obtained the document, reliance or use is similarly irrelevant.We think the foregoing reasons dispose of all petitioners' arguments. We therefore conclude that the data petitioners seek are not "agency records" within the meaning of the FOIA. UGDP is not a "federal agency" as that term is defined in the FOIA, and the data petitioners seek have not been created or obtained by a federal agency. Having failed to establish this threshold requirement, petitioners' FOIA claim must fail, and the judgment of the Court of Appeals is accordingly Affirmed.

Petitioners fired respondent Biggins when he was 62 years old and apparently a few weeks short of the years of service he needed for his pension to vest. In his ensuing lawsuit, a jury found, inter alia, a willful violation of the Age Discrimination in Employment Act of 1967 (ADEA), which gave rise to liquidated damages. The District Court granted petitioners' motion for judgment notwithstanding the verdict on the "willfulness" finding, but the Court of Appeals reversed, giving considerable emphasis to evidence of pension interference in upholding ADEA liability and finding that petitioners' conduct was willful because, under the standard of Trans World Airlines, Inc. v. Thurston, , they knew or showed reckless disregard for the matter of whether their conduct contravened the ADEA.Held: 1. An employer does not violate the ADEA by interfering with an older employee's pension benefits that would have vested by virtue of the employee's years of service. In a disparate treatment case, liability depends on whether the protected trait - under the ADEA, age - actually motivated the employer's decision. When that decision is wholly motivated by factors other than age, the problem that prompted the ADEA's passage - inaccurate and stigmatizing stereotypes about older workers' productivity and competence - disappears. Thus, it would be incorrect to say that a decision based on years of service - which is analytically distinct from age - is necessarily age-based. None of this Court's prior decisions should be read to mean that an employer violates the ADEA whenever its reason for firing an employee is improper in any respect. The foregoing holding does not preclude the possibility of liability where an employer uses pension status as a proxy for age, of dual liability under the Employee Retirement Income Security Act of 1974 and the ADEA, or of liability where vesting is based on age, rather than years of service. Because the Court of Appeals cited additional evidentiary support for ADEA liability, this case is remanded for that court to reconsider whether the jury had sufficient evidence to find such liability. Pp. 608-614. 2. The Thurston "knowledge or reckless disregard" standard for liquidated damages applies not only where the predicate ADEA violation is a formal, facially discriminatory policy, as in Thurston, but also where it is an informal decision by the employer that was motivated by the employee's age. Petitioners have not persuaded this Court that Thurston was wrongly decided or that the Court should part from the rule of stare decisis. Applying the Thurston standard to cases of individual discrimination will not defeat the two-tiered system of liability intended by Congress. Since the ADEA affords an employer a "bona fide occupational qualification" defense, and exempts certain subject matters and persons, an employer could incorrectly but in good faith and nonrecklessly believe that the statute permits a particular age-based decision. Nor is there some inherent difference between this case and Thurston to cause a shift in the meaning of the word "willful." The distinction between the formal, publicized policy in Thurston and the undisclosed factor here is not such a difference, since an employer's reluctance to acknowledge its reliance on the forbidden factor should not cut against imposing a penalty. Once a "willful" violation has been shown, the employee need not additionally demonstrate that the employer's conduct was outrageous, provide direct evidence of the employer's motivation, or prove that age was the predominant, rather than a determinative, factor in the employment decision. Pp. 614-617. 953 F.2d 1405, vacated and remanded. O'CONNOR, J., delivered the opinion for a unanimous Court. KENNEDY, J., filed a concurring opinion, in which REHNQUIST, C.J., and THOMAS, J., joined, post, p. 617. Robert B. Gordon argued the cause for petitioners. With him on the briefs were John M. Harrington, Jr., and John H. Mason. Maurice M. Cahillane, Jr., argued the cause for respondent. With him on the briefs were John J. Egan, Edward J. McDonough, Jr., and Eileen Z. Sorrentino. John R. Dunne argued the cause for the United States et al. as amici curiae urging affirmance. With him on the brief were Solicitor General Starr, Deputy Solicitor General Roberts, Edward C. DuMont, Donald R. Livingston, and Gwendolyn Young Reams.* [Footnote *] Robert E. Williams, Douglas S. McDowell, and Mona C., Zeiberg filed a brief for the Equal Employment Advisory Council et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed for the American Association of Retired Persons by Steven S. Zaleznick and Cathy Ventrell-Monsees; and for the National Employment Lawyers Association by Paul H. Tobias. JUSTICE O'CONNOR delivered the opinion of the Court. In this case, we clarify the standards for liability and liquidated damages under the Age Discrimination in Employment Act of 1967 (ADEA), 81 Stat. 602, as amended, 29 U.S.C. 621 et seq.I Petitioner Hazen Paper Company manufactures coated, laminated, and printed paper and paperboard. The company is owned and operated by two cousins, petitioners Robert Hazen and Thomas N. Hazen. The Hazens hired respondent Walter F. Biggins as their technical director in 1977. They fired him in 1986, when he was 62 years old. Respondent brought suit against petitioners in the United States District Court for the District of Massachusetts, alleging a violation of the ADEA. He claimed that age had been a determinative factor in petitioners' decision to fire him. Petitioners contested this claim, asserting instead that respondent had been fired for doing business with competitors of Hazen Paper. The case was tried before a jury, which rendered a verdict for respondent on his ADEA claim and also found violations of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 895, 510, 29 U.S.C. 1140, and state law. On the ADEA count, the jury specifically found that petitioners "willfully" violated the statute. Under 7(b) of the ADEA, 29 U.S.C. 626(b), a "willful" violation gives rise to liquidated damages. Petitioners moved for judgment notwithstanding the verdict. The District Court granted the motion with respect to a state law claim and the finding of "willfulness," but otherwise denied it. An appeal ensued. 953 F.2d 1405 (CA1 1992). The United States Court of Appeals for the First Circuit affirmed judgment for respondent on both the ADEA and ERISA counts, and reversed judgment notwithstanding the verdict for petitioners as to "willfulness." In affirming the judgments of liability, the Court of Appeals relied heavily on the evidence that petitioners had fired respondent in order to prevent his pension benefits from vesting. That evidence, as construed most favorably to respondent by the court, showed that the Hazen Paper pension plan had a 10-year vesting period and that respondent would have reached the 10-year mark had he worked "a few more weeks" after being fired. Id., at 1411. There was also testimony that petitioners had offered to retain respondent as a consultant to Hazen Paper, in which capacity he would not have been entitled to receive pension benefits. Id., at 1412. The Court of Appeals found this evidence of pension interference to be sufficient for ERISA liability, id., at 1416, and also gave it considerable emphasis in upholding ADEA liability. After summarizing all the testimony tending to show age discrimination, the court stated:"Based on the foregoing evidence, the jury could reasonably have found that Thomas Hazen decided to fire [respondent] before his pension rights vested and used the confidentiality agreement [that petitioners had asked respondent to sign] as a means to that end. The jury could also have reasonably found that age was inextricably intertwined with the decision to fire [respondent]. If it were not for [respondent's] age, sixty-two, his pension rights would not have been within a hairbreadth of vesting. [Respondent] was fifty-two years old when he was hired; his pension rights vested in ten years." Id., at 1412. As to the issue of "willfulness" under 7(b) of the ADEA, the Court of Appeals adopted and applied the definition set out in Trans World Airlines, Inc. v. Thurston, . In Thurston, we held that the airline's facially discriminatory job transfer policy was not a "willful" ADEA violation because the airline neither "knew [nor] showed reckless disregard for the matter of whether" the policy contravened the statute. Id., at 128 (internal quotation marks omitted). T he Court of Appeals found sufficient evidence to satisfy the Thurston standard, and ordered that respondent be awarded liquidated damages equal to and in addition to the underlying damages of $419,454.38. 953 F.2d, at 1415-1416. We granted certiorari to decide two questions. . First, does an employer's interference with the vesting of pension benefits violate the ADEA? Second, does the Thurston standard for liquidated damages apply to the case where the predicate ADEA violation is not a formal, facially discriminatory policy, as in Thurston, but rather an informal decision by the employer that was motivated by the employee's age?IIA The courts of appeals repeatedly have faced the question whether an employer violates the ADEA by acting on the basis of a factor, such as an employee's pension status or seniority, that is empirically correlated with age. Compare White v. Westinghouse Electric Co., 862 F.2d 56, 62 (CA3 1988) (firing of older employee to prevent vesting of pension benefits violates ADEA); Metz v. Transit Mix, Inc., 828 F.2d 1202 (CA7 1987) (firing of older employee to save salary costs resulting from seniority violates ADEA) with Williams v. General Motors Corp., 656 F.2d 120, 130 n. 17 (CA5 1981) ("[S]eniority and age discrimination are unrelated... . We state without equivocation that the seniority a given plaintiff has accumulated entitles him to no better or worse treatment in an age discrimination suit."), cert. denied. ; EEOC v. Clay Printing Co., 955 F.2d 936, 942 (CA4 1992) (emphasizing distinction between employee's age and years of service). We now clarify that there is no disparate treatment under the ADEA when the factor motivating the employer is some feature other than the employee's age. We long have distinguished between "disparate treatment" and "disparate impact" theories of employment discrimination."`Disparate treatment' ... is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion [or other protected characteristics.] Proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment... ."[C]laims that stress "disparate impact" [by contrast] involve employment practices that are facially neutral in their treatment of different groups, but that in fact fall more harshly on one group than another and cannot be justified by business necessity. Proof of discriminatory motive ... is not required under a disparate impact theory." Teamsters v. United States, , n. 15 (1977) (citation omitted) (construing Title VII of Civil Rights Act of 1964). The disparate treatment theory is, of course, available under the ADEA, as the language of that statute makes clear. "It shall be unlawful for an employer ... to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. 623(a)(1) (emphasis added). See Thurston, supra, at 120-125 (affirming ADEA liability under disparate treatment theory). By contrast, we have never decided whether a disparate impact theory of liability is available under the ADEA, see Markham v. Geller, (REHNQUIST, J., dissenting from denial of certiorari), and we need not do so here. Respondent claims only that he received disparate treatment. In a disparate treatment case, liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision. See, e.g., United States Postal Service Bd. of Governors v. Aikens, ; Texas Dept. of Community Affairs v. Burdine, ; Furnco Construction Corp. v. Waters, . The employer may have relied upon a formal, facially discriminatory policy requiring adverse treatment of employees with that trait. See, e.g., Thurston, supra; Los Angeles Dept. of Water & Power v. Manhart, . Or the employer may have been motivated by the protected trait on an ad hoc, informal basis. See, e.g., Anderson v. Bessemer City, ; Teamsters, supra, at 334-343. Whatever the employer's decisionmaking process, a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome. Disparate treatment, thus defined, captures the essence of what Congress sought to prohibit in the ADEA. It is the very essence of age discrimination for an older employee to be fired because the employer believes that productivity and competence decline with old age. As we explained in EEOC v. Wyoming, , Congress' promulgation of the ADEA was prompted by its concern that older workers were being deprived of employment on the basis of inaccurate and stigmatizing stereotypes."Although age discrimination rarely was based on the sort of animus motivating some other forms of discrimination, it was based in large part on stereotypes unsupported by objective fact... . Moreover, the available empirical evidence demonstrated that arbitrary age lines were, in fact, generally unfounded and that, as an overall matter, the performance of older workers was at least as good as that of younger workers." Id., at 231. Thus, the ADEA commands that "employers are to evaluate [older] employees ... on their merits, and not their age." Western Air Lines, Inc. v. Criswell, . The employer cannot rely on age as a proxy for an employee's remaining characteristics, such as productivity, but must instead focus on those factors directly. When the employer's decision is wholly motivated by factors other than age, the problem of inaccurate and stigmatizing stereotypes disappears. This is true even if the motivating factor is correlated with age, as pension status typically is. Pension plans typically provide that an employee's accrued benefits will become nonforfeitable, or "vested," once the employee completes a certain number of years of service with the employer. See 1 J. Mamorsky, Employee Benefits Law 5.03 (1992). On average, an older employee has had more years in the workforce than a younger employee, and thus may well have accumulated more years of service with a particular employer. Yet an employee's age is analytically distinct from his years of service. An employee who is younger than 40, and therefore outside the class of older workers as defined by the ADEA, see 29 U.S.C. 631(a), may have worked for a particular employer his entire career, while an older worker may have been newly hired. Because age and years of service are analytically distinct, an employer can take account of one while ignoring the other, and thus it is incorrect to say that a decision based on years of service is necessarily "age-based." The instant case is illustrative. Under the Hazen Paper pension plan, as construed by the Court of Appeals, an employee's pension benefits vest after the employee completes 10 years of service with the company. Perhaps it is true that older employees of Hazen Paper are more likely to be "close to vesting" than younger employees. Yet a decision by the company to fire an older employee solely because he has nine-plus years of service, and therefore is "close to vesting," would not constitute discriminatory treatment on the basis of age. The prohibited stereotype ("Older employees are likely to be ___") would not have figured in this decision, and the attendant stigma would not ensue. The decision would not be the result of an inaccurate and denigrating generalization about age, but would rather represent an accurate judgment about the employee - that he indeed is "close to vesting." We do not mean to suggest that an employer lawfully could fire an employee in order to prevent his pension benefits from vesting. Such conduct is actionable under 510 of ERISA, as the Court of Appeals rightly found in affirming judgment for respondent under that statute. See Ingersoll-Rand Co. v. McClendon, . But it would not, without more, violate the ADEA. That law requires the employer to ignore an employee's age (absent a statutory exemption or defense); it does not specify further characteristics that an employer must also ignore. Although some language in our prior decisions might be read to mean that an employer violates the ADEA whenever its reason for firing an employee is improper in any respect, see McDonnell Douglas Corp. v. Green, (creating proof framework applicable to ADEA) (employer must have "legitimate, nondiscriminatory reason" for action against employee), this reading is obviously incorrect. For example, it cannot be true that an employer who fires an older black worker because the worker is black thereby violates the ADEA. The employee's race is an improper reason, but it is improper under Title VII, not the ADEA. We do not preclude the possibility that an employer who targets employees with a particular pension status on the assumption that these employees are likely to be older thereby engages in age discrimination. Pension status may be a proxy for age, not in the sense that the ADEA makes the two factors equivalent, cf. Metz, 828 F.2d, at 1208 (using "proxy" to mean statutory equivalence), but in the sense that the employer may suppose a correlation between the two factors and act accordingly. Nor do we rule out the possibility of dual liability under ERISA and the ADEA where the decision to fire the employee was motivated both by the employee's age and by his pension status. Finally, we do not consider the special case where an employee is about to vest in pension benefits as a result of his age, rather than years of service, see 1 Mamorsky, supra, at 5.022., and the employer fires the employee in order to prevent vesting. That case is not presented here. Our holding is simply that an employer does not violate the ADEA just by interfering with an older employee's pension benefits that would have vested by virtue of the employee's years of service. Besides the evidence of pension interference, the Court of Appeals cited some additional evidentiary support for ADEA liability. Although there was no direct evidence of petitioners' motivation, except for two isolated comments by the Hazens, the Court of Appeals did note the following indirect evidence: respondent was asked to sign a confidentiality agreement, even though no other employee had been required to do so, and his replacement was a younger man who was given a less onerous agreement. 953 F.2d, at 1411. In the ordinary ADEA case, indirect evidence of this kind may well suffice to support liability if the plaintiff also shows that the employer's explanation for its decision - here, that respondent had been disloyal to Hazen Paper by doing business with its competitors - is "`unworthy of credence.'" Aikens, 460 U.S., at 716 (quoting Burdine, 450 U.S., at 256). But inferring age motivation from the implausibility of the employer's explanation may be problematic in cases where other unsavory motives, such as pension interference, were present. This issue is now before us in the Title VII context, see Hicks v. St. Mary's Honor Center, 970 F.2d 487 (CA8 1992), cert. granted, , and we will not address it prematurely. We therefore remand the case for the Court of Appeals to reconsider whether the jury had sufficient evidence to find an ADEA violation.B Because we remand for further proceedings, we also address the second question upon which certiorari was granted: the meaning of "willful" in 7(b) of the ADEA, which provides for liquidated damages in the case of a "willful" violation. In Thurston, we thoroughly analyzed 7(b) and concluded that "a violation of the Act [would be] "willful" if the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the ADEA" 469 U.S., at 126 (internal quotation marks and ellipsis omitted). We sifted through the legislative history of 7(b), which had derived from 16(a) of the Fair Labor Standards Act (FLSA), 52 Stat. 1069, as amended, 29 U.S.C. 216(a), and determined that the accepted judicial interpretation of 16(a) at the time of the passage of the ADEA supported the "knowledge or reckless disregard" standard. See 469 U.S., at 126. We found that this standard was consistent with the meaning of "willful" in other criminal and civil statutes. See id., at 126-127. Finally, we observed that Congress aimed to create a "two-tiered liability scheme," under which some but not all ADEA violations would give rise to liquidated damages. We therefore rejected a broader definition of "willful" providing for liquidated damages whenever the employer knew that the ADEA was "in the picture." See id., at 127-128. In McLaughlin v. Richland Shoe Co., , a FLSA case, we reaffirmed the Thurston standard. The question in Richland Shoe was whether the limitations provision of the FLSA, creating a 3-year period for "willful" violations, should be interpreted consistently with Thurston. We answered that question in the affirmative."The word `willful' is widely used in the law, and, although it has not by any means been given a perfectly consistent interpretation, it is generally understood to refer to conduct that is not merely negligent. The standard of willfulness that was adopted in Thurston - that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute - is surely a fair reading of the plain language of the Act." 486 U.S., at 133. Once again we rejected the "in the picture standard" because it would "virtually obliterat[e] any distinction between willful and nonwillful violations." Id., at 132-133. Surprisingly, the courts of appeals continue to be confused about the meaning of the term "willful" in 7(b) of the ADEA. A number of circuits have declined to apply Thurston to what might be called an informal disparate treatment case - where age has entered into the employment decision on an ad hoc, informal basis, rather than through a formal policy. At least one circuit refuses to impose liquidated damages in such a case unless the employer's conduct was "outrageous." See, e.g., Lockhart v. Westinghouse Credit Corp., 879 F.2d 43, 57-58 (CA3 1989). Another requires that the underlying evidence of liability be direct, rather than circumstantial. See, e.g., Neufeld v. Searle Laboratories, 884 F.2d 335, 340 (CA8 1989). Still others have insisted that age be the "predominant," rather than simply a determinative, factor. See, e.g., Spulak v. K Mart Corp., 894 F.2d 1150, 1159 (CA10 1990); Schrand v. Federal Pacific Elec. Co., 851 F.2d 152, 158 (CA6 1988). The chief concern of these circuits has been that the application of Thurston would defeat the two-tiered system of liability intended by Congress, because every employer that engages in informal age discrimination knows or recklessly disregards the illegality of its conduct. We believe that this concern is misplaced. The ADEA does not provide for liquidated damages "where consistent with the principle of a two-tiered liability scheme." It provides for liquidated damages where the violation was "willful." That definition must be applied here unless we overrule Thurston, or unless there is some inherent difference between this case and Thurston to cause a shift in the meaning of the word "willful." As for the first possibility, petitioners have not persuaded us that Thurston was wrongly decided, let alone that we should depart from the rule of stare decisis. The two-tiered liability principle was simply one interpretive tool among several that we used in Thurston to decide what Congress meant by the word "willful," and in any event we continue to believe that the "knowledge or reckless disregard" standard will create two tiers of liability across the range of ADEA cases. It is not true that an employer who knowingly relies on age in reaching its decision invariably commits a knowing or reckless violation of the ADEA. The ADEA is not an unqualified prohibition on the use of age in employment decisions, but affords the employer a "bona fide occupational qualification" defense, see 29 U.S.C. 623(f)(1), and exempts certain subject matters and persons, see, e.g., 623(f)(2) (exemption for bona fide seniority systems and employee benefit plans); 631(c) (exemption for bona fide executives and high policymakers). If an employer incorrectly but in good faith and nonrecklessly believes that the statute permits a particular age-based decision, then liquidated damages should not be imposed. See Richland Shoe, supra, at 135, n. 13. Indeed, in Thurston itself, we upheld liability but reversed an award of liquidated damages because the employer "acted [nonrecklessly] and in good faith in attempting to determine whether [its] plan would violate the ADEA." 469 U.S., at 129. Nor do we see how the instant case can be distinguished from Thurston, assuming that petitioners did indeed fire respondent because of his age. The only distinction between Thurston and the case before us is the existence of formal discrimination. Age entered into the employment decision there through a formal and publicized policy, and not as an undisclosed factor motivating the employer on an ad hoc basis, which is what respondent alleges occurred here. But surely an employer's reluctance to acknowledge its reliance on the forbidden factor should not cut against imposing a penalty. It would be a wholly circular and self-defeating interpretation of the ADEA to hold that, in cases where an employer more likely knows its conduct to be illegal, knowledge alone does not suffice for liquidated damages. We therefore reaffirm that the Thurston definition of "willful" - that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute - applies to all disparate treatment cases under the ADEA. Once a "willful" violation has been shown, the employee need not additionally demonstrate that the employer's conduct was outrageous, or provide direct evidence of the employer's motivation, or prove that age was the predominant, rather than a determinative, factor in the employment decision. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. So ordered. JUSTICE KENNEDY, with whom THE CHIEF JUSTICE and JUSTICE THOMAS join, concurring. I agree with the Court that the Court of Appeals placed improper reliance on respondent's evidence of pension interference, and that the standard for determining willfulness announced in Trans World Airlines, Inc. v. Thurston, , applies to individual acts of age discrimination as well as age discrimination manifested in formal, company-wide policy. I write to underscore that the only claim based upon the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq., asserted by respondent in this litigation is that petitioners discriminated against him because of his age. He has advanced no claim that petitioners' use of an employment practice that has a disproportionate effect on older workers violates the ADEA. See App. 2930 (amended complaint); 5 Record 71-76 (jury instructions). As a result, nothing in the Court's opinion should be read as incorporating in the ADEA context the so-called "disparate impact" theory of Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e to 2000e-17. As the Court acknowledges, ante, at 610, we have not yet addressed the question whether such a claim is cognizable under the ADEA, and there are substantial arguments that it is improper to carry over disparate impact analysis from Title VII to the ADEA. See Markham v. Geller, (REHNQUIST J., dissenting from denial of certiorari); Metz v. Transit Mix, Inc., 828 F.2d 1202, 1216-1220 (CA7 1987) (Easterbrook, J., dissenting); Note, Age Discrimination and the Disparate Impact Doctrine, 34 Stan.L.Rev. 837 (1982). It is on the understanding that the Court does not reach this issue that I join in its opinion.

The Federal Tort Claims Act (FTCA) waives the Government's sovereign immunity from tort suits, 28 U. S. C. §1346(b)(1), but excepts from the waiver certain intentional torts, including battery, §2680(h). The FTCA, as originally enacted, afforded tort victims a remedy against the United States, but did not preclude suit against the alleged tortfeasor as sole or joint defendant. Several agency-specific statutes postdating the FTCA, however, immunized certain federal employees from personal liability for torts committed in the course of their official duties. One such statute, the Gonzalez Act, makes the remedy against the United States under the FTCA preclusive of any suit against armed forces medical personnel. 10 U. S. C. §1089(a). The Act also provides that, "[f]or purposes of this section," the intentional tort exception to the FTCA "shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical . . . functions." §1089(e). Congress subsequently enacted comprehensive legislation, the Federal Employees Liability Reform and Tort Compensation Act (Liability Reform Act), which makes the FTCA's remedy against the United States exclusive for torts committed by federal employees acting within the scope of their employment, 28 U. S. C. §2679(b)(1). Under the Liability Reform Act, federal employees are shielded without regard to agency affiliation or line of work. Petitioner Levin suffered injuries as a result of cataract surgery performed at a U. S. Naval Hospital. He filed suit, naming the United States and the surgeon as defendants and asserting, inter alia, a claim of battery, based on his alleged withdrawal of consent to operate shortly before the surgery took place. Finding that the surgeon had acted within the scope of his employment, the District Court released him and substituted the United States as sole defendant. The Government moved to dismiss the battery claim, relying on the FTCA's intentional tort exception. Levin countered that the Gonzalez Act, in particular, §1089(e), renders that exception inapplicable when a plaintiff alleges medical battery by a military physician. The District Court granted the Government's motion to dismiss. Affirming, the Ninth Circuit concluded that §1089(e) served only to buttress the immunity from personal liability granted military medical personnel in §1089(a), and did not negate the FTCA's intentional tort exception.Held: The Gonzalez Act direction in §1089(e) abrogates the FTCA's intentional tort exception and therefore permits Levin's suit against the United States alleging medical battery by a Navy doctor acting within the scope of his employment. Pp. 8-15. (a) To determine whether the Government's immunity is waived for batteries, the Court looks to §1089(e)'s language, "giving the 'words used' their 'ordinary meaning.' " Moskal v. United States, 498 U. S. 103, 108. Levin claims that the operative clause of §1089(e), which provides that the FTCA's intentional tort exception "shall not apply" to medical malpractice claims, is qualified by the provision's introductory clause "[f]or purposes of this section," which confines the operative clause to claims alleging malpractice by personnel in the armed forces and the other agencies specified in the Gonzalez Act. The Government, in contrast, argues that §1089(e)'s introductory clause instructs courts to pretend, "[f]or purposes of" the Gonzalez Act, that §2680(h) does not secure the Government against liability for intentional torts, including battery, even though §2680(h) does provide that shelter. The choice between the parties' dueling constructions is not a difficult one. Section 1089(e)'s operative clause states, in no uncertain terms, that the FTCA's intentional tort exception, §2680(h), "shall not apply," and §1089(e)'s introductory clause confines the abrogation of §2680(h) to medical personnel employed by the agencies listed in the Gonzalez Act. Had Congress wanted to adopt the Government's counterfactual interpretation, it could have used more precise language, as it did in §1089(c), a subsection adjacent to §1089(e). Pp. 8-11. (b) Under the Government's interpretation of §1089(e), the Liability Reform Act would displace much of the Gonzalez Act. That reading conflicts with the view the Government stated in United States v. Smith, 499 U. S. 160. There, the question was whether a person injured abroad due to a military doctor's negligence may seek compensation from the doctor in a U. S. court, for the FTCA gave them no recourse against the Government on a "claim arising in a foreign country," 28 U. S. C. §2680(k). In arguing that such persons also lacked recourse to a suit against the doctor, the Government contended that the Liability Reform Act made "[t]he remedy against the United States" under the FTCA "exclusive." §2679(b)(1). This interpretation, the Government argued, would not override the Gonzalez Act, which would continue to serve two important functions: Title 10 U. S. C. §1089(f)(1) would authorize indemnification of individual military doctors sued abroad where foreign law might govern; and the Gonzalez Act would allow an FTCA suit against the United States if the doctor performed a procedure to which the plaintiff did not consent. Adopting the Government's construction, the Court held that §2679(b)(1) grants all federal employees, including medical personnel, immunity for acts within the scope of their employment, even when the FTCA provides no remedy against the United States. 499 U. S., at 166. Under the Government's current reading of §1089(e), the Liability Reform Act overrides the Gonzalez Act except in the atypical circumstances in which indemnification of the doctor under §1089(f)(1) remains possible, while under Levin's reading, the Gonzalez Act does just what the Government said it did in Smith. Pp. 11-13. (c) The Government attempts to inject ambiguity into §1089(e) by claiming that 38 U. S. C. §7316, a parallel statute that confers immunity on medical personnel of the Department of Veterans Affairs, expresses Congress' intent to abrogate §2680(h) with the unmistakable clarity the Gonzalez Act lacks. But this Court sees nothing dispositively different about the wording of the two provisions, and neither did the Government when it argued in the District Court that §1089(e) and §7316(f) are functionally indistinguishable. Pp. 13-14.663 F. 3d 1059, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, which was unanimous except insofar as Scalia, J., did not join footnotes 6 and 7.Opinion of the Court 568 U. S. ____ (2013)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 11-1351STEVEN ALAN LEVIN, PETITIONER v.UNITED STATES et al.on writ of certiorari to the united states court of appeals for the ninth circuit[March 4, 2013] Justice Ginsburg delivered the opinion of the Court.* Petitioner Steven Alan Levin, a veteran, suffered injuries as a result of cataract surgery performed at the U. S. Naval Hospital in Guam. He asserts that, just prior to the operation, concern about equipment in the operating room led him to withdraw his consent to the surgery. Seeking compensation from the United States, Levin sued under the Federal Tort Claims Act (FTCA), 28 U. S. C. §§1346(b), 2671-2680, which waives the Government's sovereign immunity from tort suits, but excepts from the waiver certain intentional torts, including battery, §2680(h). Levin relied on the Gonzalez Act, 10 U. S. C. §1089, which makes the remedy against the United States under the FTCA preclusive of any suit against armed forces medical personnel, §1089(a). In the provision at issue in this case, §1089(e), the Gonzalez Act declares that, "[f]or purposes of" the Act, the intentional tort exception to the FTCA "shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical . . . functions." The Government reads §1089(e) simply to shore up §1089(a)'s immunization of medical personnel against tort liability. Levin, in contrast, reads §1089(e) to establish his right to bring a claim of medical battery against the United States under the FTCA without encountering the intentional tort exception. The U. S. District Court for the District of Guam, affirmed by the Ninth Circuit, dismissed Levin's battery claim based on the reading of the Gonzalez Act proffered by the Government. We find the Government's reading strained, and Levin's, far more compatible with the text and purpose of the federal legislation. We therefore reverse the Ninth Circuit's judgment.IA The FTCA, enacted in 1946, "was designed primarily to remove the sovereign immunity of the United States from suits in tort." Richards v. United States, 369 U. S. 1, 6 (1962). The Act gives federal district courts exclusive jurisdiction over claims against the United States for "injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission" of federal employees acting within the scope of their employment. 28 U. S. C. §1346(b)(1). Substantively, the FTCA makes the United States liable "to the same extent as a private individual under like circumstances," §2674, under the law of the place where the tort occurred, §1346(b)(1), subject to enumerated exceptions to the immunity waiver, §§2680(a)-(n). The exception relevant in this case is §2680(h), which, inter alia, preserves the Government's immunity from suit on "[a]ny claim arising out of . . . battery." We have referred to §2680(h) as the "intentional tort exception." E.g., United States v. Shearer, 473 U. S. 52, 54 (1985).2 Originally, the FTCA afforded tort victims a remedy against the United States, but did not preclude lawsuits against individual tortfeasors. See Henderson v. Blue- mink, 511 F. 2d 399, 404 (CADC 1974). Judgment against the United States in an FTCA action would bar a subsequent action against the federal employee whose conduct gave rise to the claim, 28 U. S. C. §2676, but plaintiffs were not obliged to proceed exclusively against the Government. They could sue as sole or joint defendants federal employees alleged to have acted tortiously in the course of performing their official duties. In time, Congress enacted a series of agency-specific statutes designed to shield precisely drawn classes of employees from the threat of personal liability. United States v. Smith, 499 U. S. 160, 170 (1991). One such measure was the Medical Malpractice Immunity Act, 90 Stat. 1985, 10 U. S. C. §1089, passed in 1976 and commonly known as the Gonzalez Act.3 That Act, controlling in this case, makes claims against the United States under the FTCA the "exclusive" remedy for injuries resulting from malpractice committed by medical personnel of the armed forces and other specified agencies. 10 U. S. C. §1089(a).4 A subsection of the Gonzalez Act key to the issue before us, §1089(e), refers to the FTCA's intentional tort exception. It provides: "For purposes of this section, the provisions of section 2680(h) of title 28 shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions." Section 1089(e) was patterned on a provision in a statute, enacted six years earlier, that conferred immunity on medical personnel of the Public Health Service. See 84 Stat. 1870, 42 U. S. C. §233(e) (1976 ed.) ("For purposes of this section, the provisions of [§2680(h)] shall not apply to assault or battery arising out of negligence in the performance of medical . . . functions."). Targeted immunity statutes enacted around the same time as the Gonzalez Act similarly shielded medical personnel employed by specific agencies. See supra, at 3, n. 2. Each such measure contained a provision resembling §1089(e). See 22 U. S. C. §2702(e) ("For purposes of this section, the provisions of [§2680(h)], shall not apply to any tort enumerated therein arising out of negligence in the furnishing of medical care or related services."); 38 U. S. C. §7316(f) ("The exception provided in [§2680(h)] shall not apply to any claim arising out of a negligent or wrongful act or omission of any person described in subsection (a) in furnishing medical care or treatment . . . while in the exercise of such person's duties in or for the Administration."); 51 U. S. C. §20137(e) ("For purposes of this section, the provisions of [§2680(h)] shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical . . . functions."). In 1988, departing from the above-described agency-specific approach, Congress enacted comprehensive legislation titled the Federal Employees Liability Reform and Tort Compensation Act (Liability Reform Act), 102 Stat. 4563, and often called the Westfall Act. This embracive measure makes the remedy against the United States under the FTCA exclusive for torts committed by federal employees acting within the scope of their employment, 28 U. S. C. §2679(b)(1). Shielding all federal employees from personal liability without regard to agency affiliation or line of work, the personal immunity provision of the Liability Reform Act tracks the text of §1089(a). The comprehensive enactment, however, did not repeal the Gonzalez Act, Smith, 499 U. S., at 172, or, presumably, any of the other laws covering medical personnel employed at particular agencies. Unlike the Gonzalez Act and kindred statutes, the Liability Reform Act does not reference, as §1089(e) does, the FTCA's intentional tort exception, 28 U. S. C. §2680(h).B The petitioner, Steven Alan Levin, a veteran, was diagnosed with a cataract in his right eye. He sought treatment at the United States Naval Hospital in Guam and was evaluated by Lieutenant Commander Frank Bishop, M. D., an ophthalmologist serving in the U. S. Navy. Dr. Bishop recommended that Levin undergo "phacoemulsification with intraocular lens placement," a surgical procedure involving extraction of the cataract and insertion of an artificial replacement lens. Levin signed forms consenting to the operation, which took place on March 12, 2003. Shortly before the surgery began, Levin alleges, he orally withdrew his consent twice, but Dr. Bishop conducted the operation nevertheless. Due to complications occurring while the surgery was underway, Levin developed corneal edema, a condition that left him with diminished eyesight, discomfort, problems with glare and depth-of-field vision, and in need of ongoing medical treatment. Levin sought compensation for the untoward results of the surgery. After exhausting administrative remedies, he commenced a civil action in the U. S. District Court for the District of Guam. Naming the United States and Dr. Bishop as defendants, Levin asserted claims of battery, based on his alleged withdrawal of consent to the surgery, and negligence, based on alleged flaws in Dr. Bishop's performance of the operation. Accepting the Government's representation that Dr. Bishop was acting within the scope of his employment while performing the surgery, the District Court granted the Government's motion to release Dr. Bishop and substitute the United States as sole defendant. When Levin failed to produce expert testimony in support of his negligence allegations, the court granted the Government's motion for summary judgment on that claim. Next, the Government moved to dismiss the battery claim. The District Court no longer had jurisdiction over Levin's case, the Government argued, because the FTCA's intentional tort exception, §2680(h), disallows suits against the United States for battery. Levin countered that the Gonzalez Act, in particular, §1089(e), renders the intentional tort exception inapplicable when a plaintiff alleges medical battery by an armed forces physician. The District Court rejected Levin's plea and granted the Government's motion to dismiss for lack of subject-matter jurisdiction. App. to Pet. for Cert. 14a-41a. On appeal to the Ninth Circuit, Levin did not question the adverse judgment on his negligent performance claim, but he renewed the argument that the battery claim, based on his alleged withdrawal of consent, survived. That was so, he maintained, because §1089(e) negated §2680(h), the FTCA's intentional tort exception. The Court of Appeals thought Levin's construction of the Gonzalez Act "plausible," but "not the best reading of the statute." 663 F. 3d 1059, 1062 (2011). As perceived by the Ninth Circuit, §1089(e) had a limited office, serving only to buttress the immunity from personal liability granted military medical personnel in §1089(a). "[C]lever tort plaintiffs," the court conjectured, might argue in future cases that because the FTCA does not authorize battery claims against the United States, such claims may be asserted against military doctors notwithstanding §1089(a). Ibid. Section 1089(e) foreclosed that argument, but the provision did nothing more, the court concluded. Satisfied that §1089(e) served the dominant purpose of the Gonzalez Act — to immunize covered medical personnel against malpractice liability — and did not unequivocally waive the United States' sovereign immunity from battery claims, the Ninth Circuit affirmed the District Court's disposition.5 We granted certiorari, 567 U. S. ___ (2012), recognizing that Courts of Appeals have divided on the question whether the controlling provision of the Gonzalez Act, §1089(e), authorizes battery claims against the United States when military doctors operate without the patient's consent. Compare 663 F. 3d, at 1063 (case below), with Keir v. United States, 853 F. 2d 398, 409-410 (CA6 1988) (§1089(e) waives sovereign immunity for battery suits alleging malpractice by military medical personnel); and Lojuk v. Quandt, 706 F. 2d 1456, 1463 (CA7 1983) (same). See also Franklin v. United States, 992 F. 2d 1492, 1501 (CA10 1993) (38 U. S. C. §7316(f), concerning Department of Veterans Affairs' medical personnel, includes an "essentially identical counterpart" to §1089(e), which similarly "nullif[ies] §2680(h) and thereby expand[s] the injured party's remedy against the government under the FTCA").6IIA We note at the outset that medical malpractice claims may be based on negligence, in which case the FTCA's waiver of the Government's sovereign immunity is not in doubt. See 28 U. S. C. §1346(b)(1); supra, at 2. Or they may be based on alleged lack of consent, therefore qualifying as batteries. Whether the Government's immunity is waived for such claims depends on the meaning of 10 U. S. C. §1089(e). See supra, at 4. In determining the meaning of a statute, "we look first to its language, giving the words used their ordinary meaning." Moskal v. United States, 498 U. S. 103, 108 (1990) (citation and internal quotation marks omitted). The provision of the Gonzalez Act at issue, §1089(e), has two components: an introductory clause and an operative clause. The introductory clause prefaces §1089(e) with "[f]or purposes of this section." The operative clause instructs that 28 U. S. C. §2680(h), the FTCA's intentional tort exception, "shall not apply to any cause of action arising out of . . . negligent or wrongful" conduct taken "in the performance of medical, dental or related health care functions." §1089(e). We set out below the parties' dueling constructions of §1089(e). Levin reads §1089(e) to negate §2680(h) for battery claims involving medical personnel of the armed forces and other specified agencies. He trains first on the operative clause of §1089(e), which contains this directive: The intentional tort exception to the FTCA "shall not apply" to claims alleging medical malpractice. But, he points out, if left unqualified, the operative clause would expose the United States to liability for medical malpractice committed by federal employees across all agencies. The introductory clause, Levin maintains, supplies the qualification: It confines the operative clause to claims covered by "this section," i.e., claims alleging malpractice by personnel in the armed forces and the other agencies specified in the Gonzalez Act. Because Levin's claim concerning Dr. Bishop's alleged battery fits that category, Levin concludes, he may sue to recover from the United States. The Government, in contrast, reads §1089(e)'s introductory clause as instructing courts to pretend, "[f]or purposes of" the Gonzalez Act, that §2680(h) does not secure the Government against liability for intentional torts, including battery, even though §2680(h) does provide that shelter. Congress included this counterfactual instruction in the Gonzalez Act, the Government successfully argued in the Ninth Circuit, "to guard against the negative inference that, if no remedy against the United States were available for a medical battery claim, a remedy against an individual defendant must exist." Brief for United States 8. Warding off this mistaken inference, the Government asserts, §1089(e) eliminates any doubt that the military medical personnel covered by §1089(a) are personally immune from malpractice liability. Ensuring that immunity, the Government reminds us, was the very purpose of the Gonzalez Act. The choice between these alternative readings of §1089(e) is not difficult to make. Section §1089(e)'s operative clause states, in no uncertain terms, that the intentional tort exception to the FTCA, §2680(h), "shall not apply," and §1089(e)'s introductory clause confines the abrogation of §2680(h) to medical personnel employed by the agencies listed in the Gonzalez Act.7 The Government invites us to read the phrase "section 2680(h) . . . shall not apply," to convey "§2680(h) does apply," a reading most unnatural. Had Congress wanted to guard against any inference that individual employees may be liable, despite §1089(a)'s statement that the remedy against the United States is exclusive, see supra, at 4, n. 3, Congress might have stated, "subsection (a) applies even when §2680(h) precludes recovery against the United States under the FTCA." Or, Congress might have provided that §2680(h) shall be "deemed" or "considered" inapplicable, a formulation commonly employed to direct courts to make counterfactual assumptions. See, e.g., 7 U. S. C. §7283(b) ("For purposes of this section, raw cane sugar, refined beet sugar, and in-process sugar eligible for a loan . . . shall not be considered an agricultural commodity."); 15 U. S. C. §78o-11(e)(3)(B) (2006 ed., Supp. V) ("For purposes of this subsection, the Federal National Mortgage Association, the Federal Home Loan Mortgage Corporation, and the Federal home loan banks shall not be considered an agency of the United States."); 42 U. S. C. §416(b) ("For purposes of subparagraph (C) of section 402(b)(1) of this title, a divorced wife shall be deemed not to be married throughout the month in which she becomes divorced."). We note, furthermore, that in 10 U. S. C. §1089(c), a subsection of the Gonzalez Act adjacent to §1089(e), Congress used the counterfactual formulation absent in §1089(e). Section 1089(c) provides that certain actions brought against military employees acting within the scope of their employment "shall be . . . deemed a tort action brought against the United States under the provisions of title 28." See Barnhart v. Sigmon Coal Co., 534 U. S. 438, 452 (2002) ("[W]hen Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." (internal quotation marks omitted)).B Were we to accept the Government's interpretation of §1089(e), the Liability Reform Act would displace much of the Gonzalez Act. To explain why this is so, we describe the situation before the Court in United States v. Smith, 499 U. S. 160. Smith presented the question whether persons injured abroad due to a military doctor's negligence may seek compensation in a U. S. court from the doctor who caused the injury. Because the FTCA excludes from the Government's waiver of immunity "[a]ny claim arising in a foreign country," 28 U. S. C. §2680(k), the plaintiffs in Smith had no remedy against the United States. They also lacked recourse to a suit in this country against the doctor, the Government urged, for the Liability Reform Act made "[t]he remedy against the United States" under the FTCA "exclusive of any other civil action." §2679(b)(1). Were that the case, the plaintiffs responded, the Liability Reform Act would effectively repeal the Gonzalez Act. See Brief for Respondents in Smith, O. T. 1990, No. 89-1646, pp. 33-46. In particular, they observed, 10 U. S. C. §1089(f)(1) authorizes the head of an agency to indemnify military doctors "assigned to a foreign country" whose negligent conduct injures a patient. But the indemnification provision would have no work to do, the plaintiffs argued, if the Liability Reform Act foreclosed suit against the doctor. Not so, the Government responded. The Gonzalez Act would continue to serve two important functions. First, §1089(f)(1) would authorize indemnification of individual military doctors sued abroad where foreign law, rather than the FTCA, might govern. Brief for United States in Smith 34 (citing Powers v. Schultz, 821 F. 2d 295, 297-298 (CA5 1987)). Second, the Gonzalez Act would allow an FTCA suit against the United States if the doctor's malpractice ranked as "intentional," i.e., if he performed a procedure to which the plaintiff did not consent. See Brief for United States in Smith 32-34; Reply Brief in Smith 12 ("[T]he provision of the Gonzalez Act waiving sovereign immunity as to medical malpractice claims sounding in intentional tort, 10 U. S. C. §1089(e), will enable plaintiffs to pursue those claims against the United States."). Thus, the Government told this Court, "in view of the continued need for the provisions of the Gonzalez Act even after the enactment of the [Liability] Reform Act, leaving that statute on the books was an entirely sensible drafting decision." Id., at 13. Adopting the Government's construction of the Liability Reform Act, we held in Smith that §2679(b)(1) grants all federal employees, including medical personnel, immunity for acts within the scope of their employment, even when an FTCA exception (such as §2680(k)) left the plaintiff without a remedy against the United States. 499 U. S., at 166. Our decision in Smith was thus informed by the Government's position that the Gonzalez Act would remain " 'an operative part of the integrated statutory scheme.' " Reply Brief in Smith 12 (quoting United States v. Fausto, 484 U. S. 439, 453 (1988)). The Government now disavows the reading of §1089(e) it advanced in Smith. See Brief for United States 24, n. 8. Under its current reading, the Liability Reform Act does indeed override the Gonzalez Act save in two slim applications: If a military doctor employed by the United States is sued in a foreign court, or is detailed to a non-federal institution, indemnification of the doctor under §1089(f)(1) would remain possible. See id., at 26. Under Levin's reading of §1089(e), the Gonzalez Act does just what the Government said that legislation did in briefing Smith: It renders §2680(h) inapplicable to medical batteries committed by military personnel within the scope of their employment, thereby permitting civil actions against the United States by persons situated as Levin is.C Endeavoring to inject ambiguity into §1089(e) notwithstanding its direction that "section 2680(h) . . . shall not apply," the Government refers to 38 U. S. C. §7316, a parallel statute that confers immunity on medical personnel of the Department of Veterans Affairs (VA). As enacted in 1965, §7316's statutory predecessor had no provision akin to §1089(e). See 79 Stat. 1156, 38 U. S. C. §4116 (1970 ed.). Congress added such a provision in 1988, but it was not a carbon copy of §1089(e). In particular, the new provision did not include the words that preface §1089(e). It reads: "The exception provided in section 2680(h) of title 28 shall not apply to any claim arising out of a negligent or wrongful act or omission of any person described in subsection (a) of this section in furnishing medical care or treatment." 38 U. S. C. §7316(f). This phrasing, which refers to "any person described in [§7316(a)]"--i.e., any "health care employee of the" VA — does indeed express Congress' intent to abrogate §2680(h), the Government acknowledges. But §7316(f) does so, the Government adds, with the unmistakable clarity the Gonzalez Act lacks. We see nothing dispositively different about the wording of the two provisions.8 Neither did the Government earlier on. In the District Court, the Government argued that §1089(e) and §7316(f) are functionally indistinguishable. See Record 366 ("§1089(e) has language that is identical to . . . §7316(f)"); id., at 435 ("originally [Levin] talked about the doctor being under the VA; in fact, the doctor is a Navy doctor, but the statute is exactly the same"); id., at 447-448 (Dr. Bishop was "[n]ot an employee of the VA[,] . . . [but] it's an academic argument because the exact same language [appears in] §1089(e)"). We agree with the Government's earlier view, and not with the freshly minted revision.* * * For the reasons stated, we hold that the Gonzalez Act direction in 10 U. S. C. §1089(e) abrogates the FTCA's intentional tort exception and therefore permits Levin's suit against the United States alleging medical battery by a Navy doctor acting within the scope of his employment. Accordingly, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.It is so ordered.FOOTNOTESFootnote 1* Justice Scalia joins this opinion, except as to footnotes 6 and 7.Footnote 2 This shorthand description is not entirely accurate. Section 2680(h) does not remove from the FTCA's waiver all intentional torts, e.g., conversion and trespass, and it encompasses certain torts, e.g., misrepresentation, that may arise out of negligent conduct. See United States v. Neustadt, 366 U. S. 696, 702 (1961).Footnote 3 The agency-specific statutes were patterned on the Federal Drivers Act, 75 Stat. 539, 28 U. S. C. §§2679(b)-(e) (1970 ed.), passed in 1961 and amended in 1988 by Pub. L. 100-694, §5(b), 102 Stat. 4564. The Drivers Act made an action against the United States under the FTCA the "exclusive" remedy for "personal injury ... resulting from the operation by any employee of the Government of any motor vehicle while acting within the scope of his office or employment." §2679(b). Statutes conferring immunity on medical personnel of the Department of Veterans Affairs, 79 Stat. 1156, 38 U. S. C. §4116 (1970 ed.), now codified at 38 U. S. C. §7316 (2006 ed.), and the Public Health Service, 84 Stat. 1870, 42 U. S. C. §233 (2006 ed.), followed in 1965 and 1970, respectively. In 1976, in addition to the Gonzalez Act, Congress enacted a statute immunizing medical personnel of the National Aeronautics and Space Administration, 90 Stat. 1988, 42 U. S. C. §2458a (1982 ed.), now codified at 51 U. S. C. §20137 (2006 ed., Supp. IV). And in 1980, it enacted a personal immunity statute covering medical personnel of the Department of State, 94 Stat. 2155, 22 U. S. C. §2702 (2006 ed.).Footnote 4 In full, §1089(a) reads: "The remedy against the United States provided by sections 1346(b) and 2672 of title 28 for damages for personal injury, including death, caused by the negligent or wrongful act or omission of any physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel (including medical and dental technicians, nursing assistants, and therapists) of the armed forces, the National Guard while engaged in training or duty under section 316, 502, 503, 504, or 505 of title 32, the Department of Defense, the Armed Forces Retirement Home, or the Central Intelligence Agency in the performance of medical, dental, or related health care functions (including clinical studies and investigations) while acting within the scope of his duties or employment therein or therefor shall hereafter be exclusive of any other civil action or proceeding by reason of the same subject matter against such physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel (or the estate of such person) whose act or omission gave rise to such action or proceeding. This subsection shall also apply if the physician, dentist, nurse, pharmacist, or paramedical or other supporting personnel (or the estate of such person) involved is serving under a personal services contract entered into under section 1091 of this title."Footnote 5 In accord with the Ninth Circuit, the Government maintains that sovereign immunity is never waived absent unequivocal congressional statement to that effect. See Brief for United States 14-15 (citing FAA v. Cooper, 566 U. S. ___, ___ (2012) (slip op., at 5)); United States v. Bormes, 568 U. S. ___, ___ (2012) (slip op., at 4). Levin, on the other hand, urges that, in view of the FTCA's sweeping waiver of immunity, §1346(b)(1), exceptions to that waiver, contained in §2680, should not be accorded an unduly generous interpretation. See Brief for Court-Appointed Amicus Curiae in Support of Petitioner 40 (citing Dolan v. Postal Service, 546 U. S. 481, 492 (2006)). We need not settle this dispute. For the reasons stated, infra this page and 9-14, we conclude that §1089(e) meets the unequivocal waiver standard.Footnote 6 We appointed James A. Feldman to brief and argue the position of the petitioner as amicus curiae. 568 U. S. ___ (2012). Amicus Feldman has ably discharged his assigned responsibilities and the Court thanks him for his well stated arguments.Footnote 7 Corroborating this plain reading, the Senate Report on the Gonzalez Act explains that §1089(e) was enacted to "nullify a provision of the Federal Tort Claims Act which would otherwise exclude any action for assault and battery" from FTCA coverage. S. Rep. No. 94-1264, p. 9 (1976).Footnote 8 See S. Rep. No. 100-215, p. 171 (1987) (§7316(f) was "patterned after" §1089(e)).

A radio station of respondent Pacifica Foundation (hereinafter respondent) made an afternoon broadcast of a satiric monologue, entitled "Filthy Words," which listed and repeated a variety of colloquial uses of "words you couldn't say on the public airwaves." A father who heard the broadcast while driving with his young son complained to the Federal Communications Commission (FCC), which, after forwarding the complaint for comment to and receiving a response from respondent, issued a declaratory order granting the complaint. While not imposing formal sanctions, the FCC stated that the order would be "associated with the station's license file, and in the event subsequent complaints are received, the Commission will then decide whether it should utilize any of the available sanctions it has been granted by Congress." In its memorandum opinion, the FCC stated that it intended to "clarify the standards which will be utilized in considering" the growing number of complaints about indecent radio broadcasts, and it advanced several reasons for treating that type of speech differently from other forms of expression. The FCC found a power to regulate indecent broadcasting, inter alia, in 18 U.S.C. 1464 (1976 ed.), which forbids the use of "any obscene, indecent, or profane language by means of radio communications." The FCC characterized the language of the monologue as "patently offensive," though not necessarily obscene, and expressed the opinion that it should be regulated by principles analogous to the law of nuisance where the "law generally speaks to channeling behavior rather than actually prohibiting it." The FCC found that certain words in the monologue depicted sexual and excretory activities in a particularly offensive manner, noted that they were broadcast in the early afternoon "when children are undoubtedly in the audience," and concluded that the language as broadcast was indecent and prohibited by 1464. A three-judge panel of the Court of Appeals reversed, one judge concluding that the FCC's action was invalid either on the ground that the order constituted censorship, which was expressly forbidden by 326 of the Communications Act of 1934, or on the ground that the FCC's opinion was the functional equivalent of a rule, and as such was "overbroad." Another judge, who felt that 326's censorship provision did not apply to broadcasts forbidden by 1464, concluded that 1464, construed narrowly as it has to be, covers only language that is obscene or otherwise unprotected by the First Amendment. The third judge, dissenting, concluded that the FCC had correctly condemned the daytime broadcast as indecent. Respondent contends that the broadcast was not indecent within the meaning of the statute because of the absence of prurient appeal. Held: The judgment is reversed. Pp. 734-741; 748-750; 761-762. App. D.C. 132, 556 F.2d 9, reversed. MR. JUSTICE STEVENS delivered the opinion of the Court with respect to Parts I-III and IV-C, finding: 1. The FCC's order was an adjudication under 5 U.S.C. 554 (e) (1976 ed.), the character of which was not changed by the general statements in the memorandum opinion; nor did the FCC's action constitute rulemaking or the promulgation of regulations. Hence, the Court's review must focus on the FCC's determination that the monologue was indecent as broadcast. Pp. 734-735. 2. Section 326 does not limit the FCC's authority to sanction licensees who engage in obscene, indecent, or profane broadcasting. Though the censorship ban precludes editing proposed broadcasts in advance, the ban does not deny the FCC the power to review the content of completed broadcasts. Pp. 735-738. 3. The FCC was warranted in concluding that indecent language within the meaning of 1464 was used in the challenged broadcast. The words "obscene, indecent, or profane" are in the disjunctive, implying that each has a separate meaning. Though prurient appeal is an element of "obscene," it is not an element of "indecent," which merely refers to noncomformance with accepted standards of morality. Contrary to respondent's argument, this Court in Hamling v. United States, , has not foreclosed a reading of 1464 that authorizes a proscription of "indecent" language that is not obscene, for the statute involved in that case, unlike 1464, focused upon the prurient, and dealt primarily with printed matter in sealed envelopes mailed from one individual to another, whereas 1464 deals with the content of public broadcasts. Pp. 738-741. 4. Of all forms of communication, broadcasting has the most limited First Amendment protection. Among the reasons for specially treating indecent broadcasting is the uniquely pervasive presence that medium of expression occupies in the lives of our people. Broadcasts extend into the privacy of the home and it is impossible completely to avoid those that are patently offensive. Broadcasting, moreover, is uniquely accessible to children. Pp. 748-750. MR. JUSTICE STEVENS, joined by THE CHIEF JUSTICE, and MR. JUSTICE REHNQUIST, concluded in Parts IV-A and IV-B: 1. The FCC's authority to proscribe this particular broadcast is not invalidated by the possibility that its construction of the statute may deter certain hypothetically protected broadcasts containing patently offensive references to sexual and excretory activities. Cf. Red Lion Broadcasting Co. v. FCC, . Pp. 742-743. 2. The First Amendment does not prohibit all governmental regulation that depends on the content of speech. Schenck v. United States, . The content of respondent's broadcast, which was "vulgar," "offensive," and "shocking," is not entitled to absolute constitutional protection in all contexts; it is therefore necessary to evaluate the FCC's action in light of the context of that broadcast. Pp. 744-748. MR. JUSTICE POWELL, joined by MR. JUSTICE BLACKMUN, concluded that the FCC's holding does not violate the First Amendment, though, being of the view that Members of this Court are not free generally to decide on the basis of its content which speech protected by the First Amendment is most valuable and therefore deserving of First Amendment protection, and which is less "valuable" and hence less deserving of protection, he is unable to join Part IV-B (or IV-A) of the opinion. Pp. 761-762. STEVENS, J., announced the Court's judgment and delivered an opinion of the Court with respect to Parts I-III and IV-C, in which BURGER, C. J., and REHNQUIST, J., joined, and in all but Parts IV-A and IV-B of which BLACKMUN and POWELL, JJ., joined, and an opinion as to Parts IV-A and IV-B, in which BURGER, C. J., and REHNQUIST, J., joined. POWELL, J., filed an opinion concurring in part and concurring in the judgment, in which BLACKMUN, J., joined, post, p. 755. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 762. STEWART, J., filed a dissenting opinion, in which BRENNAN, WHITE, and MARSHALL, JJ., joined, post, p. 777.Joseph A. Marino argued the cause for petitioner. With him on the briefs were Robert R. Bruce and Daniel M. Armstrong.Harry M. Plotkin argued the cause for respondent Pacifica Foundation. With him on the brief were David Tillotson and Harry F. Cole. Louis F. Claiborne argued the cause for the United States, a respondent under this Court's Rule 21 (4). With him on the brief were Solicitor General McCree, Assistant Attorney General Civiletti, and Jerome M. Feit.* [Footnote *] Briefs of amici curiae urging reversal were filed by Anthony H. Atlas for Morality in Media, Inc.; and by George E. Reed and Patrick F. Geary for the United States Catholic Conference.Briefs of amici curiae urging affirmance were filed by J. Roger Wollenberg, Timothy B. Dyk, James A. McKenna, Jr., Carl R. Ramey, Erwin G. Krasnow, Floyd Abrams, J. Laurent Scharff, Corydon B. Dunham, and Howard Monderer for the American Broadcasting Companies, Inc., et al.; by Henry R. Kaufman, Joel M. Gora, Charles Sims, and Bruce J. Ennis for the American Civil Liberties Union et al.; by Irwin Karp for the Authors League of America, Inc.; by James Bouras, Barbara Scott, and Fritz E. Attaway for the Motion Picture Association of America, Inc.; and by Paul P. Selvin for the Writers Guild of America, West Inc.Charles M. Firestone filed a brief for the Committee for Open Media as amicus curiae.MR. JUSTICE STEVENS delivered the opinion of the Court (Parts I, II, III, and IV-C) and an opinion in which THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST joined (Parts IV-A and IV-B).This case requires that we decide whether the Federal Communications Commission has any power to regulate a radio broadcast that is indecent but not obscene.A satiric humorist named George Carlin recorded a 12-minute monologue entitled "Filthy Words" before a live audience in a California theater. He began by referring to his thoughts about "the words you couldn't say on the public, ah, airwaves, um, the ones you definitely wouldn't say, ever." He proceeded to list those words and repeat them over and over again in a variety of colloquialisms. The transcript of the recording, which is appended to this opinion, indicates frequent laughter from the audience.At about 2 o'clock in the afternoon on Tuesday, October 30, 1973, a New York radio station, owned by respondent Pacifica Foundation, broadcast the "Filthy Words" monologue. A few weeks later a man, who stated that he had heard the broadcast while driving with his young son, wrote a letter complaining to the Commission. He stated that, although he could perhaps understand the "record's being sold for private use, I certainly cannot understand the broadcast of same over the air that, supposedly, you control."The complaint was forwarded to the station for comment. In its response, Pacifica explained that the monologue had been played during a program about contemporary society's attitude toward language and that, immediately before its broadcast, listeners had been advised that it included "sensitive language which might be regarded as offensive to some." Pacifica characterized George Carlin as "a significant social satirist" who "like Twain and Sahl before him, examines the language of ordinary people... . Carlin is not mouthing obscenities, he is merely using words to satirize as harmless and essentially silly our attitudes towards those words." Pacifica stated that it was not aware of any other complaints about the broadcast.On February 21, 1975, the Commission issued a declaratory order granting the complaint and holding that Pacifica "could have been the subject of administrative sanctions." 56 F. C. C. 2d 94, 99. The Commission did not impose formal sanctions, but it did state that the order would be "associated with the station's license file, and in the event that subsequent complaints are received, the Commission will then decide whether it should utilize any of the available sanctions it has been granted by Congress."1 In its memorandum opinion the Commission stated that it intended to "clarify the standards which will be utilized in considering" the growing number of complaints about indecent speech on the airwaves. Id., at 94. Advancing several reasons for treating broadcast speech differently from other forms of expression,2 the Commission found a power to regulate indecent broadcasting in two statutes: 18 U.S.C. 1464 (1976 ed.), which forbids the use of "any obscene, indecent, or profane language by means of radio communications,"3 and 47 U.S.C. 303 (g), which requires the Commission to "encourage the larger and more effective use of radio in the public interest."4 The Commission characterized the language used in the Carlin monologue as "patently offensive," though not necessarily obscene, and expressed the opinion that it should be regulated by principles analogous to those found in the law of nuisance where the "law generally speaks to channeling behavior more than actually prohibiting it... . [T]he concept of `indecent' is intimately connected with the exposure of children to language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience." 56 F. C. C. 2d, at 98.5 Applying these considerations to the language used in the monologue as broadcast by respondent, the Commission concluded that certain words depicted sexual and excretory activities in a patently offensive manner, noted that they "were broadcast at a time when children were undoubtedly in the audience (i. e., in the early afternoon)," and that the prerecorded language, with these offensive words "repeated over and over," was "deliberately broadcast." Id., at 99. In summary, the Commission stated: "We therefore hold that the language as broadcast was indecent and prohibited by 18 U.S.C. [] 1464."6 Ibid.After the order issued, the Commission was asked to clarify its opinion by ruling that the broadcast of indecent words as part of a live newscast would not be prohibited. The Commission issued another opinion in which it pointed out that it "never intended to place an absolute prohibition on the broadcast of this type of language, but rather sought to channel it to times of day when children most likely would not be exposed to it." 59 F. C. C. 2d 892 (1976). The Commission noted that its "declaratory order was issued in a specific factual context," and declined to comment on various hypothetical situations presented by the petition.7 Id., at 893. It relied on its "long standing policy of refusing to issue interpretive rulings or advisory opinions when the critical facts are not explicitly stated or there is a possibility that subsequent events will alter them." Ibid.The United States Court of Appeals for the District of Columbia Circuit reversed, with each of the three judges on the panel writing separately. App. D.C. 132, 556 F.2d 9. Judge Tamm concluded that the order represented censorship and was expressly prohibited by 326 of the Communications Act.8 Alternatively, Judge Tamm read the Commission opinion as the functional equivalent of a rule and concluded that it was "overbroad." App. D.C., at 141, 556 F.2d, at 18. Chief Judge Bazelon's concurrence rested on the Constitution. He was persuaded that 326's prohibition against censorship is inapplicable to broadcasts forbidden by 1464. However, he concluded that 1464 must be narrowly construed to cover only language that is obscene or otherwise unprotected by the First Amendment. App. D.C., at 140-153, 556 F.2d, at 24-30. Judge Leventhal, in dissent, stated that the only issue was whether the Commission could regulate the language "as broadcast." Id., at 154, 556 F.2d, at 31. Emphasizing the interest in protecting children, not only from exposure to indecent language, but also from exposure to the idea that such language has official approval, id., at 160, and n. 18, 556 F.2d, at 37, and n. 18, he concluded that the Commission had correctly condemned the daytime broadcast as indecent.Having granted the Commission's petition for certiorari, , we must decide: (1) whether the scope of judicial review encompasses more than the Commission's determination that the monologue was indecent "as broadcast"; (2) whether the Commission's order was a form of censorship forbidden by 326; (3) whether the broadcast was indecent within the meaning of 1464; and (4) whether the order violates the First Amendment of the United States Constitution.IThe general statements in the Commission's memorandum opinion do not change the character of its order. Its action was an adjudication under 5 U.S.C. 554 (e) (1976 ed.); it did not purport to engage in formal rulemaking or in the promulgation of any regulations. The order "was issued in a specific factual context"; questions concerning possible action in other contexts were expressly reserved for the future. The specific holding was carefully confined to the monologue "as broadcast.""This Court ... reviews judgments, not statements in opinions." Black v. Cutter Laboratories, . That admonition has special force when the statements raise constitutional questions, for it is our settled practice to avoid the unnecessary decision of such issues. Rescue Army v. Municipal Court, . However appropriate it may be for an administrative agency to write broadly in an adjudicatory proceeding, federal courts have never been empowered to issue advisory opinions. See Herb v. Pitcairn, . Accordingly, the focus of our review must be on the Commission's determination that the Carlin monologue was indecent as broadcast.IIThe relevant statutory questions are whether the Commission's action is forbidden "censorship" within the meaning of 47 U.S.C. 326 and whether speech that concededly is not obscene may be restricted as "indecent" under the authority of 18 U.S.C. 1464 (1976 ed.). The questions are not unrelated, for the two statutory provisions have a common origin. Nevertheless, we analyze them separately.Section 29 of the Radio Act of 1927 provided: "Nothing in this Act shall be understood or construed to give the licensing authority the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the licensing authority which shall interfere with the right of free speech by means of radio communications. No person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means of radio communication." 44 Stat. 1172. The prohibition against censorship unequivocally denies the Commission any power to edit proposed broadcasts in advance and to excise material considered inappropriate for the airwaves. The prohibition, however, has never been construed to deny the Commission the power to review the content of completed broadcasts in the performance of its regulatory duties.9 During the period between the original enactment of the provision in 1927 and its re-enactment in the Communications Act of 1934, the courts and the Federal Radio Commission held that the section deprived the Commission of the power to subject "broadcasting matter to scrutiny prior to its release," but they concluded that the Commission's "undoubted right" to take note of past program content when considering a licensee's renewal application "is not censorship."10 Not only did the Federal Radio Commission so construe the statute prior to 1934; its successor, the Federal Communications Commission, has consistently interpreted the provision in the same way ever since. See Note, Regulation of Program Content by the FCC, 77 Harv. L. Rev. 701 (1964). And, until this case, the Court of Appeals for the District of Columbia Circuit has consistently agreed with this construction.11 Thus, for example, in his opinion in Anti-Defamation League of B'nai B'rith v. FCCApp. D.C. 146, 403 F.2d 169 (1968), cert. denied, , Judge Wright forcefully pointed out that the Commission is not prevented from canceling the license of a broadcaster who persists in a course of improper programming. He explained:"This would not be prohibited `censorship,' ... any more than would the Commission's considering on a license renewal application whether a broadcaster allowed `coarse, vulgar, suggestive, double-meaning' programming; programs containing such material are grounds for denial of a license renewal." App. D.C., at 150-151, n. 3. 403 F.2d, at 173-174, n. 3. See also Office of Communication of United Church of Christ v. FCCApp. D.C. 328, 359 F.2d 994 (1966).Entirely apart from the fact that the subsequent review of program content is not the sort of censorship at which the statute was directed, its history makes it perfectly clear that it was not intended to limit the Commission's power to regulate the broadcast of obscene, indecent, or profane language. A single section of the 1927 Act is the source of both the anticensorship provision and the Commission's authority to impose sanctions for the broadcast of indecent or obscene language. Quite plainly, Congress intended to give meaning to both provisions. Respect for that intent requires that the censorship language be read as inapplicable to the prohibition on broadcasting obscene, indecent, or profane language.There is nothing in the legislative history to contradict this conclusion. The provision was discussed only in generalities when it was first enacted.12 In 1934, the anticensorship provision and the prohibition against indecent broadcasts were re-enacted in the same section, just as in the 1927 Act. In 1948, when the Criminal Code was revised to include provisions that had previously been located in other Titles of the United States Code, the prohibition against obscene, indecent, and profane broadcasts was removed from the Communications Act and re-enacted as 1464 of Title 18. 62 Stat. 769 and 866. That rearrangement of the Code cannot reasonably be interpreted as having been intended to change the meaning of the anticensorship provision. H. R. Rep. No. 304, 80th Cong., 1st Sess., A106 (1947). Cf. Tidewater Oil Co. v. United States, .We conclude, therefore, that 326 does not limit the Commission's authority to impose sanctions on licensees who engage in obscene, indecent, or profane broadcasting.IIIThe only other statutory question presented by this case is whether the afternoon broadcast of the "Filthy Words" monologue was indecent within the meaning of 1464.13 Even that question is narrowly confined by the arguments of the parties.The Commission identified several words that referred to excretory or sexual activities or organs, stated that the repetitive, deliberate use of those words in an afternoon broadcast when children are in the audience was patently offensive, and held that the broadcast was indecent. Pacifica takes issue with the Commission's definition of indecency, but does not dispute the Commission's preliminary determination that each of the components of its definition was present. Specifically, Pacifica does not quarrel with the conclusion that this afternoon broadcast was patently offensive. Pacifica's claim that the broadcast was not indecent within the meaning of the statute rests entirely on the absence of prurient appeal.The plain language of the statute does not support Pacifica's argument. The words "obscene, indecent, or profane" are written in the disjunctive, implying that each has a separate meaning. Prurient appeal is an element of the obscene, but the normal definition of "indecent" merely refers to nonconformance with accepted standards of morality.14 Pacifica argues, however, that this Court has construed the term "indecent" in related statutes to mean "obscene," as that term was defined in Miller v. California, . Pacifica relies most heavily on the construction this Court gave to 18 U.S.C. 1461 in Hamling v. United States, . See also United States v. 12 200-ft. Reels of Film, n. 7 (18 U.S.C. 1462) (dicta). Hamling rejected a vagueness attack on 1461, which forbids the mailing of "obscene, lewd, lascivious, indecent, filthy or vile" material. In holding that the statute's coverage is limited to obscenity, the Court followed the lead of Mr. Justice Harlan in Manual Enterprises, Inc. v. Day, . In that case, Mr. Justice Harlan recognized that 1461 contained a variety of words with many shades of meaning.15 Nonetheless, he thought that the phrase "obscene, lewd, lascivious, indecent, filthy or vile," taken as a whole, was clearly limited to the obscene, a reading well grounded in prior judicial constructions: "[T]he statute since its inception has always been taken as aimed at obnoxiously debasing portrayals of sex." 370 U.S., at 483. In Hamling the Court agreed with Mr. Justice Harlan that 1461 was meant only to regulate obscenity in the mails; by reading into it the limits set by Miller v. California, supra, the Court adopted a construction which assured the statute's constitutionality. The reasons supporting Hamling's construction of 1461 do not apply to 1464. Although the history of the former revealed a primary concern with the prurient, the Commission has long interpreted 1464 as encompassing more than the obscene.16 The former statute deals primarily with printed matter enclosed in sealed envelopes mailed from one individual to another; the latter deals with the content of public broadcasts. It is unrealistic to assume that Congress intended to impose precisely the same limitations on the dissemination of patently offensive matter by such different means.17 Because neither our prior decisions nor the language or history of 1464 supports the conclusion that prurient appeal is an essential component of indecent language, we reject Pacifica's construction of the statute. When that construction is put to one side, there is no basis for disagreeing with the Commission's conclusion that indecent language was used in this broadcast. IVPacifica makes two constitutional attacks on the Commission's order. First, it argues that the Commission's construction of the statutory language broadly encompasses so much constitutionally protected speech that reversal is required even if Pacifica's broadcast of the "Filthy Words" monologue is not itself protected by the First Amendment. Second, Pacifica argues that inasmuch as the recording is not obscene, the Constitution forbids any abridgment of the right to broadcast it on the radio.AThe first argument fails because our review is limited to the question whether the Commission has the authority to proscribe this particular broadcast. As the Commission itself emphasized, its order was "issued in a specific factual context." 59 F. C. C. 2d, at 893. That approach is appropriate for courts as well as the Commission when regulation of indecency is at stake, for indecency is largely a function of context - it cannot be adequately judged in the abstract.The approach is also consistent with Red Lion Broadcasting Co. v. FCC, . In that case the Court rejected an argument that the Commission's regulations defining the fairness doctrine were so vague that they would inevitably abridge the broadcasters' freedom of speech. The Court of Appeals had invalidated the regulations because their vagueness might lead to self-censorship of controversial program content. Radio Television News Directors Assn. v. United States, 400 F.2d 1002, 1016 (CA7 1968). This Court reversed. After noting that the Commission had indicated, as it has in this case, that it would not impose sanctions without warning in cases in which the applicability of the law was unclear, the Court stated:"We need not approve every aspect of the fairness doctrine to decide these cases, and we will not now pass upon the constitutionality of these regulations by envisioning the most extreme applications conceivable, United States v. Sullivan, , but will deal with those problems if and when they arise." 395 U.S., at 396. It is true that the Commission's order may lead some broadcasters to censor themselves. At most, however, the Commission's definition of indecency will deter only the broadcasting of patently offensive references to excretory and sexual organs and activities.18 While some of these references may be protected, they surely lie at the periphery of First Amendment concern. Cf. Bates v. State Bar of Arizona, . Young v. American Mini Theatres, Inc., . The danger dismissed so summarily in Red Lion, in contrast, was that broadcasters would respond to the vagueness of the regulations by refusing to present programs dealing with important social and political controversies. Invalidating any rule on the basis of its hypothetical application to situations not before the Court is "strong medicine" to be applied "sparingly and only as a last resort." Broadrick v. Oklahoma, . We decline to administer that medicine to preserve the vigor of patently offensive sexual and excretory speech. BWhen the issue is narrowed to the facts of this case, the question is whether the First Amendment denies government any power to restrict the public broadcast of indecent language in any circumstances.19 For if the government has any such power, this was an appropriate occasion for its exercise.The words of the Carlin monologue are unquestionably "speech" within the meaning of the First Amendment. It is equally clear that the Commission's objections to the broadcast were based in part on its content. The order must therefore fall if, as Pacifica argues, the First Amendment prohibits all governmental regulation that depends on the content of speech. Our past cases demonstrate, however, that no such absolute rule is mandated by the Constitution.The classic exposition of the proposition that both the content and the context of speech are critical elements of First Amendment analysis is Mr. Justice Holmes' statement for the Court in Schenck v. United States, :"We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done... . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that may have all the effect of force... . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Other distinctions based on content have been approved in the years since Schenck. The government may forbid speech calculated to provoke a fight. See Chaplinsky v. New Hampshire, . It may pay heed to the "`commonsense differences' between commercial speech and other varieties." Bates v. State Bar of Arizona, supra, at 381. It may treat libels against private citizens more severely than libels against public officials. See Gertz v. Robert Welch, Inc., . Obscenity may be wholly prohibited. Miller v. California, . And only two Terms ago we refused to hold that a "statutory classification is unconstitutional because it is based on the content of communication protected by the First Amendment." Young v. American Mini Theatres, Inc., supra, at 52.The question in this case is whether a broadcast of patently offensive words dealing with sex and excretion may be regulated because of its content.20 Obscene materials have been denied the protection of the First Amendment because their content is so offensive to contemporary moral standards. Roth v. United States, . But the fact that society may find speech offensive is not a sufficient reason for suppressing it. Indeed, if it is the speaker's opinion that gives offense, that consequence is a reason for according it constitutional protection. For it is a central tenet of the First Amendment that the government must remain neutral in the marketplace of ideas.21 If there were any reason to believe that the Commission's characterization of the Carlin monologue as offensive could be traced to its political content - or even to the fact that it satirized contemporary attitudes about four-letter words22 - First Amendment protection might be required. But that is simply not this case. These words offend for the same reasons that obscenity offends.23 Their place in the hierarchy of First Amendment values was aptly sketched by Mr. Justice Murphy when he said: "[S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New Hampshire, 315 U.S., at 572.Although these words ordinarily lack literary, political, or scientific value, they are not entirely outside the protection of the First Amendment. Some uses of even the most offensive words are unquestionably protected. See, e. g., Hess v. Indiana, . Indeed, we may assume, arguendo, that this monologue would be protected in other contexts. Nonetheless, the constitutional protection accorded to a communication containing such patently offensive sexual and excretory language need not be the same in every context.24 It is a characteristic of speech such as this that both its capacity to offend and its "social value," to use Mr. Justice Murphy's term, vary with the circumstances. Words that are commonplace in one setting are shocking in another. To paraphrase Mr. Justice Harlan, one occasion's lyric is another's vulgarity. Cf. Cohen v. California, .25 In this case it is undisputed that the content of Pacifica's broadcast was "vulgar," "offensive," and "shocking." Because content of that character is not entitled to absolute constitutional protection under all circumstances, we must consider its context in order to determine whether the Commission's action was constitutionally permissible.CWe have long recognized that each medium of expression presents special First Amendment problems. Joseph Burstyn, Inc. v. Wilson, . And of all forms of communication, it is broadcasting that has received the most limited First Amendment protection. Thus, although other speakers cannot be licensed except under laws that carefully define and narrow official discretion, a broadcaster may be deprived of his license and his forum if the Commission decides that such an action would serve "the public interest, convenience, and necessity."26 Similarly, although the First Amendment protects newspaper publishers from being required to print the replies of those whom they criticize, Miami Herald Publishing Co. v. Tornillo, , it affords no such protection to broadcasters; on the contrary, they must give free time to the victims of their criticism. Red Lion Broadcasting Co. v. FCC, .The reasons for these distinctions are complex, but two have relevance to the present case. First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizen, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder. Rowan v. Post Office Dept., . Because the broadcast audience is constantly tuning in and out, prior warnings cannot completely protect the listener or viewer from unexpected program content. To say that one may avoid further offense by turning off the radio when he hears indecent language is like saying that the remedy for an assault is to run away after the first blow. One may hang up on an indecent phone call, but that option does not give the caller a constitutional immunity or avoid a harm that has already taken place.27 Second, broadcasting is uniquely accessible to children, even those too young to read. Although Cohen's written message might have been incomprehensible to a first grader, Pacifica's broadcast could have enlarged a child's vocabulary in an instant. Other forms of offensive expression may be withheld from the young without restricting the expression at its source. Bookstores and motion picture theaters, for example, may be prohibited from making indecent material available to children. We held in Ginsberg v. New York, , that the government's interest in the "well-being of its youth" and in supporting "parents' claim to authority in their own household" justified the regulation of otherwise protected expression. Id., at 640 and 639.28 The case with which children may obtain access to broadcast material, coupled with the concerns recognized in Ginsberg, amply justify special treatment of indecent broadcasting.It is appropriate, in conclusion, to emphasize the narrowness of our holding. This case does not involve a two-way radio conversation between a cab driver and a dispatcher, or a telecast of an Elizabethan comedy. We have not decided that an occasional expletive in either setting would justify any sanction or, indeed, that this broadcast would justify a criminal prosecution. The Commission's decision rested entirely on a nuisance rationale under which context is all-important. The concept requires consideration of a host of variables. The time of day was emphasized by the Commission. The content of the program in which the language is used will also affect the composition of the audience,29 and differences between radio, television, and perhaps closed-circuit transmissions, may also be relevant. As Mr. Justice Sutherland wrote, a "nuisance may be merely a right thing in the wrong place, - like a pig in the parlor instead of the barnyard." Euclid v. Ambler Realty Co., . We simply hold that when the Commission finds that a pig has entered the parlor, the exercise of its regulatory power does not depend on proof that the pig is obscene.The judgment of the Court of Appeals is reversed. It is so ordered. APPENDIX TO OPINION OF THE COURT The following is a verbatim transcript of "Filthy Words" prepared by the Federal Communications Commission.Aruba-du, ruba-tu, ruba-tu. I was thinking about the curse words and the swear words, the cuss words and the words that you can't say, that you're not supposed to say all the time, [']cause words or people into words want to hear your words. Some guys like to record your words and sell them back to you if they can, (laughter) listen in on the telephone, write down what words you say. A guy who used to be in Washington knew that his phone was tapped, used to answer, Fuck Hoover, yes, go ahead. (laughter) Okay, I was thinking one night about the words you couldn't say on the public, ah, airwaves, um, the ones you definitely wouldn't say, ever, [']cause I heard a lady say bitch one night on television, and it was cool like she was talking about, you know, ah, well, the bitch is the first one to notice that in the litter Johnie right (murmur) Right. And, uh, bastard you can say, and hell and damn so I have to figure out which ones you couldn't and ever and it came down to seven but the list is open to amendment, and in fact, has been changed, uh, by now, ha, a lot of people pointed things out to me, and I noticed some myself. The original seven words were, shit, piss, fuck, cunt, cocksucker, mother-fucker, and tits. Those are the ones that will curve your spine, grow hair on your hands and (laughter) maybe, even bring us, God help us, peace without honor (laughter) um, and a bourbon. (laughter) And now the first thing that we noticed was that word fuck was really repeated in there because the word motherfucker is a compound word and it's another form of the word fuck. (laughter) You want to be a purist it doesn't really - it can't be on the list of basic words. Also, cocksucker is a compound word and neither half of that is really dirty. The word - the half sucker that's merely suggestive (laughter) and the word cock is a half-way dirty word, 50% dirty - dirty half the time, depending on what you mean by it. (laughter) Uh, remember when you first heard it, like in 6th grade, you used to giggle. And the cock crowed three times, heh (laughter) the cock - three times. It's in the Bible, cock in the Bible. (laughter) And the first time you heard about a cock-fight, remember - What? Huh? naw. It ain't that, are you stupid? man. (laughter, clapping) It's chickens, you know, (laughter) Then you have the four letter words from the old Anglo-Saxon fame. Uh, shit and fuck. The word shit, uh, is an interesting kind of word in that the middle class has never really accepted it and approved it. They use it like, crazy but it's not really okay. It's still a rude, dirty, old kind of gushy word. (laughter) They don't like that, but they say it, like, they say it like, a lady now in a middle-class home, you'll hear most of the time she says it as an expletive, you know, it's out of her mouth before she knows. She says, Oh shit oh shit, (laughter) oh shit. If she drops something, Oh, the shit hurt the broccoli. Shit. Thank you. (footsteps fading away) (papers ruffling)Read it! (from audience)Shit! (laughter) I won the Grammy, man, for the comedy album. Isn't that groovy? (clapping, whistling) (murmur) That's true. Thank you. Thank you man. Yeah. (murmur) (continuous clapping) Thank you man. Thank you. Thank you very much, man. Thank, no, (end of continuous clapping) for that and for the Grammy, man, [']cause (laughter) that's based on people liking it man, yeh, that's ah, that's okay man. (laughter) Let's let that go, man. I got my Grammy. I can let my hair hang down now, shit. (laughter) Ha! So! Now the word shit is okay for the man. At work you can say it like crazy. Mostly figuratively, Get that shit out of here, will ya? I don't want to see that shit anymore. I can't cut that shit, buddy. I've had that shit up to here. I think you're full of shit myself. (laughter) He don't know shit from Shinola. (laughter) you know that? (laughter) Always wondered how the Shinola people felt about that (laughter) Hi, I'm the new man from Shinola. (laughter) Hi, how are ya? Nice to see ya. (laughter) How are ya? (laughter) Boy, I don't know whether to shit or wind my watch. (laughter) Guess, I'll shit on my watch. (laughter) Oh, the shit is going to hit de fan. (laughter) Built like a brick shit-house. (laughter) Up, he's up shit's creek. (laughter) He's had it. (laughter) He hit me, I'm sorry. (laughter) Hot shit, holy shit, tough shit, eat shit, (laughter) shit-eating grin. Uh, whoever thought of that was ill. (murmur laughter) He had a shit-eating grin! He had a what? (laughter) Shit on a stick. (laughter) Shit in a handbag. I always like that. He ain't worth shit in a handbag. (laughter) Shitty. He acted real shitty. (laughter) You know what I mean? (laughter) I got the money back, but a real shitty attitude. Heh, he had a shit-fit. (laughter) Wow! Shit-fit. Whew! Glad I wasn't there. (murmur, laughter) All the animals - Bull shit, horse shit, cow shit, rat shit, bat shit. (laughter) First time I heard bat shit, I really came apart. A guy in Oklahoma, Boggs, said it, man. Aw! Bat shit. (laughter) Vera reminded me of that last night, ah (murmur). Snake shit, slicker than owl shit. (laughter) Get your shit together. Shit or get off the pot. (laughter) I got a shit-load full of them. (laughter) I got a shit-pot full, all right. Shit-head, shit-heel, shit in your heart, shit for brains, (laughter) shit-face, heh (laughter) I always try to think how that could have originated; the first guy that said that. Somebody got drunk and fell in some shit, you know. (laughter) Hey, I'm shit-face. (laughter) Shit-face, today. (laughter) Anyway, enough of that shit. (laughter) The big one, the word fuck that's the one that hangs them up the most. [']Cause in a lot of cases that's the very act that hangs them up the most. So, it's natural that the word would, uh, have the same effect. It's a great word, fuck, nice word, easy word, cute word, kind of. Easy word to say. One syllable, short u. (laughter) Fuck. (Murmur) You know, it's easy. Starts with a nice soft sound fuh ends with a kuh. Right? (laughter) A little something for everyone. Fuck (laughter) Good word. Kind of a proud word, too. Who are you? I am FUCK. (laughter) FUCK OF THE MOUNTAIN. (laughter) Tune in again next week to FUCK OF THE MOUNTAIN. (laughter) It's an interesting word too, [']cause it's got a double kind of a life - personality - dual, you know, whatever the right phrase is. It leads a double life, the word fuck. First of all, it means, sometimes, most of the time, fuck. What does it mean? It means to make love. Right? We're going to make love, yeh, we're going to fuck, yeh, we're going to fuck, yeh, we're going to make love. (laughter) we're really going to fuck, yeh, we're going to make love. Right? And it also means the beginning of life, it's the act that begins life, so there's the word hanging around with words like love, and life, and yet on the other hand, it's also a word that we really use to hurt each other with, man. It's a heavy. It's one that you have toward the end of the argument. (laughter) Right? (laughter) You finally can't make out. Oh, fuck you man. I said, fuck you. (laughter, murmur) Stupid fuck. (laughter) Fuck you and everybody that looks like you. (laughter) man. It would be nice to change the movies that we already have and substitute the word fuck for the word kill, wherever we could, and some of those movie cliches would change a little bit. Madfuckers still on the loose. Stop me before I fuck again. Fuck the ump, fuck the ump, fuck the ump, fuck the ump, fuck the ump. Easy on the clutch Bill, you'll fuck that engine again. (laughter) The other shit one was, I don't give a shit. Like it's worth something, you know? (laughter) I don't give a shit. Hey, well, I don't take no shit, (laughter) you know what I mean? You know why I don't take no shit? (laughter) [']Cause I don't give a shit. (laughter) If I give a shit, I would have to pack shit. (laughter) But I don't pack no shit cause I don't give a shit. (laughter) You wouldn't shit me, would you? (laughter) That's a joke when you're a kid with a worm looking out the bird's ass. You wouldn't shit me, would you? (laughter) It's an eight-year-old joke but a good one. (laughter) The additions to the list. I found three more words that had to be put on the list of words you could never say on television, and they were fart, turd and twat, those three. (laughter) Fart, we talked about, it's harmless It's like tits, it's a cutie word, no problem. Turd, you can't say but who wants to, you know? (laughter) The subject never comes up on the panel so I'm not worried about that one. Now the word twat is an interesting word. Twat! Yeh, right in the twat. (laughter) Twat is an interesting word because it's the only one I know of, the only slang word applying to the, a part of the sexual anatomy that doesn't have another meaning to it. Like, ah, snatch, box and pussy all have other meanings, man. Even in a Walt Disney movie, you can say, We're going to snatch that pussy and put him in a box and bring him on the airplane. (murmur, laughter) Everybody loves it. The twat stands alone, man, as it should. And two-way words. Ah, ass is okay providing you're riding into town on a religious feast day. (laughter) You can't say, up your ass. (laughter) You can say, stuff it! (murmur) There are certain things you can say its weird but you can just come so close. Before I cut, I, uh, want to, ah, thank you for listening to my words, man, fellow, uh space travelers. Thank you man for tonight and thank you also. (clapping whistling)

1. Louisiana law requires that objections to a grand jury be raised before the expiration of the third judicial day following the end of the grand jury's term or before trial, whichever is earlier. After expiration of the time allowed, these three Negro petitioners moved to quash their indictments on the ground that there was systematic exclusion of Negroes from the grand juries which indicted them. Their motions were denied and each was convicted of a capital offense. Held: In the circumstances of these cases, application of the rule to these petitioners did not violate the Fourteenth Amendment. Pp. 92-102.2. Michel was indicted on February 19 and presented for arraignment on February 23. He appeared without counsel, and arraignment was continued for one week. The record shows that counsel was appointed for him on March 2, the date the grand-jury term expired. Counsel contended that he did not consider himself appointed until March 5, when he received written notice from the court. The motion to quash, not filed until March 9, was denied as being out of time. Held: The finding of the lower courts that counsel was appointed March 2 is sustained. Since the appointed counsel, a lawyer experienced in state criminal practice, had adequate time to file the motion after his appointment, application of the rule was not unreasonable. Pp. 95-96.3. Poret fled from the State shortly after the crime was committed and remained outside the State until long after the time for filing a motion to quash his indictment had expired. After returning to the State on October 3 and retaining counsel on October 26, he did not file his motion to quash until November 7 - after he had been arraigned and had filed other motions which implied a waiver of his objections to the grand jury. Held: Louisiana's rule requiring timely objections to the composition of a grand jury need not be suspended for the benefit of one who, by his own action, fails to avail himself of the state remedy; and there was no violation of due process in denying the motion as out of time. Pp. 96-100. 4. Labat was indicted December 11, 1950, and arraigned on January 3, 1951. On January 5, 1951, the court appointed competent counsel for him and the term of the grand jury that had indicted him did not expire until March 1951. In January 1952, court-appointed counsel withdrew from the case and another counsel was appointed; but motion to quash the indictment was not made until November 7, 1952. Held: Inadequacy of counsel will not be presumed from failure to file a pretrial motion where the matter was within counsel's discretion and there were valid reasons for not filing. In the circumstances of this case, there was no violation of due process in denying the motion as out of time. Pp. 100-101. 225 La. 1040, 74 So.2d 207, and 226 La. 201, 75 So.2d 333, affirmed.[Footnote *] Together with No. 36, Poret et al. v. Louisiana, also on certiorari to the same court, argued November 9, 1955.Gerard H. Schreiber and George H. Fust argued the cause and filed a brief for petitioner in No. 32.Felicien Y. Lozes and Rudolph F. Becker, Jr. argued the cause and filed a brief for petitioners in No. 36.Leon D. Hubert, Jr. argued the cause for respondent in No. 32. Adrian G. Duplantier argued the cause for respondent in No. 36. With them on the briefs were Fred S. LeBlanc, Attorney General of Louisiana, and Michael E. Culligan, Assistant Attorney General.MR. JUSTICE CLARK delivered the opinion of the Court.Louisiana requires that objections to a grand jury be raised before the expiration of the third judicial day following the end of the grand jury's term or before trial, whichever is earlier.1 In these cases we are asked to decide whether this statute as applied violates the Fourteenth Amendment. The three petitioners, all Negroes sentenced to death for aggravated rape, make no attack on the composition of the petit jury nor on the fairness of their trials but challenge the composition of the grand juries which indicted them on the ground that there was a systematic exclusion of Negroes from the panels. No hearing was held on these allegations because the lower courts found that the question had been waived. In each case the Supreme Court of Louisiana affirmed, 225 La. 1040, 74 So.2d 207, and 226 La. 201, 75 So.2d 333, and we granted certiorari, and 950, because of the importance of the issues involved.Grand juries in Orleans Parish are impaneled in September and March to serve for six months. Since 202 of the Louisiana Criminal Code, as interpreted, requires a defendant to object to the grand jury before three judicial days after its term, the time to raise such objections may vary from a minimum of three days - if the defendant is indicted on the last day of the term - to a much longer period if he is indicted during the term. Section 284 of the Louisiana Code of Criminal Procedure provides that in any case such objections must be made before arraignment.We do not find that this requirement on its face raises an insuperable barrier to one making claim to federal rights. The test is whether the defendant has had "a reasonable opportunity to have the issue as to the claimed right heard and determined by the state court." Parker v. Illinois, ; Davis v. Wechsler, ; Central Union Co. v. Edwardsville, ; Paterno v. Lyons, . See Carter v. Texas, . In Avery v. Alabama, , this Court held that a lapse of three days between the appointment of counsel and the date of trial was not of itself a denial of due process. In Louisiana a motion to quash is a short, simple document, easily prepared in a single afternoon.2 In the light of Avery, a three-day minimum for such a motion is not unreasonable. Wilson v. Louisiana, .3 But in the circumstances of a particular case, the application of such a rule may not give a reasonable opportunity to raise the federal question. See Reece v. Georgia, ante, p. 85, decided this day. Accordingly we pass to a consideration of the facts in each of these cases.No. 32. John Michel. - Michel was indicted by the grand jury on February 19, 1953, and was presented to the court for arraignment on February 23. He appeared without counsel and the arraignment was continued for one week. During that week, the trial judge talked with Mr. Schreiber, a former assistant district attorney with wide experience in local criminal practice. He asked Mr. Schreiber whether he would take the case if private counsel was not retained. The judge indicated that if Mr. Schreiber accepted, additional counsel would be appointed.The term of the grand jury which indicted Michel expired March 2, 1953. On that same date Michel appeared again for arraignment without counsel. Mr. Schreiber was also present in court on other business and the trial judge then appointed him counsel for Michel. Whereupon Mr. Schreiber asked the court to give him an opportunity to look it over and continue the matter for one week. No mention of co-counsel was made, and the continuance was granted.Thereafter, on March 5, Mr. Schreiber received a formal notice of his appointment which, though not required by Louisiana law, appears at times to have been served in appointment cases. On March 6, Mr. Fust was appointed co-counsel. The motion to quash the indictment was filed on March 9 - four days after Mr. Schreiber received the formal notice of appointment, and five judicial days (7 calendar days) after the expiration of the term of the grand jury. The State demurred on the ground that it came too late.The determination of a single question of fact is decisive in this case: the precise date of appointment of counsel for Michel. It is contended that Mr. Schreiber was not appointed as counsel until March 5, the date of his formal notice; that he was not aware that he was to be chief counsel until after Mr. Fust told him on the 7th of his appointment to "assist" Mr. Schreiber; and that even if he assumed that he was appointed on March 2, he was unfamiliar with the case and thought the week's continuance held open for that period all of petitioner's rights. The record, however, shows without contradiction that Mr. Schreiber was appointed in open court, in the presence of petitioner, on March 2. The trial judge so found and the Supreme Court of Louisiana explicitly upheld this finding. While such findings are not conclusive on this Court. Rogers v. Alabama, , they are entitled to great weight, Fay v. New York, . On a question of state practice with which we are unfamiliar, we will not ordinarily overturn the findings of two courts on the mere assertion of counsel that he did not consider himself appointed on the date of record. Since we find that counsel, a lawyer experienced in state criminal practice, had adequate time to file the motion after his appointment, we hold that the application of 202 in this case was not unreasonable.No. 36. Poret and Labat. - These codefendants were also convicted of rape and sentenced to death. Neither made any attack on the composition of the petit jury, but both filed motions to quash their indictments claiming discrimination in the selection of the grand-jury panel. The facts in each case will be considered separately.Poret. - Shortly after the crime was committed, Poret eluded police officers and fled the State of Louisiana. He was indicted on December 11, 1950, but he was not arrested and nothing was known of his whereabouts until late 1951 when Louisiana authorities discovered that he was in prison in Tennessee. That State refused to release him until he had served his term. Louisiana filed a detainer against him, and he was returned to New Orleans on October 3, 1952. At his arraignment on October 27, 1952, he was assisted by counsel of his own selection. He pleaded not guilty to the indictment and was granted additional time to file a motion for severance. On November 7, after denial of his motion for severance, he moved - for the first time - to quash the indictment because of systematic exclusion of Negroes from the grand jury. After a hearing at which it was determined that Poret was a fugitive from justice, this motion was denied by the trial court on the ground that it was filed more than a year and a half too late. Under 202, the time for filing had expired in March 1951, and the trial court held that the provisions of 202 would not be "suspended or nullified for the benefit of a fugitive from justice who, by his own conduct" was unable to assert his right. The holding was affirmed on this ground by the Supreme Court of Louisiana.It is beyond question that under the Due Process Clause of the Fourteenth Amendment Louisiana may attach reasonable time limitations to the assertion of federal constitutional rights.4 More particularly, the State may require prompt assertion of the right to challenge discriminatory practices in the make-up of a grand jury. The problem here is whether such a limitation may be avoided by Poret simply on the showing that he was a fugitive from prosecution throughout the entire period provided him.Petitioner argues that he has had no opportunity to make his challenge to the grand jury, since the time allowed him by 202 had expired before he was returned to Louisiana. But the record shows that he was not sentenced in Tennessee until five months after that period had expired, and nothing appears to have intervened during this period except his own voluntary flight. Thus Poret's claim is, in effect, that a flight which itself is a violation of federal law, 18 U.S.C. 1073, is converted into a federal immunity from the operation of a valid state rule. We do not believe that the mere fugitive status existing here excuses a failure to resort to Louisiana's established statutory procedure available to all who wish to assert claimed constitutional rights. This is not to say that the act of fleeing and becoming a fugitive deprives one of federal rights. We hold only that due regard for the fair as well as effective administration of criminal justice gives the State a legitimate interest in requiring reasonable attacks on its inquisitorial process5 and that the present case is not one in which this interest must bow to essential considerations of fairness to individual defendants.But it is said that Poret had no lawyer, either before he fled the State or during the 87-day period from his indictment to the expiration of his time to file under 202. However, during all of this time he remained a fugitive, and there is no showing that he could not have filed in time had he not elected to flee. In fact, in each of the other cases before us, the court appointed counsel in ample time for those petitioners to raise their claims. We cannot assume that Poret would not have received like treatment if he had been unable to select counsel of his own choice. We, therefore, conclude that Poret, by his own action, failed to avail himself of Louisiana's adequate remedies. "No procedural principle is more familiar to this Court than that a constitutional right may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right ... ." Yakus v. United States, . Even in federal felony cases where, unlike state prosecutions, indictment by a grand jury is a matter of right, this Court has strictly circumscribed the time within which motions addressed to the composition of the grand jury may be made. Fed. Rules Crim. Proc., 12 (b) (3). Likewise the Congress has denied the benefit of such important federal procedural rules as the Statute of Limitations to "any person fleeing from justice." 18 U.S.C. 3290.Poret's case affords a perfect illustration of the necessity for prompt determination of claims such as he raises here. Five years have now elapsed since the crime was committed, and the delay has been largely caused by Poret's own actions. Even if available, and memory permitted, the victim and chief witness would be reluctant to retell the sordid story of her unfortunate experience. Poret's conviction by a petit jury whose composition he did not attack has been affirmed by Louisiana's highest court and no constitutional challenge is made here to the fairness of that trial.Furthermore, it may be added that after being returned to Louisiana on October 3, and employing his personal lawyer on October 26, Poret still did not file his motion to quash until November 7. At this time he had already been arraigned and had filed other motions which implied a waiver of his objections to the grand jury. Rather than asserting his federal claim at the first opportunity,6 he delayed the filing of his motion until 12 days after his selection of counsel. This is four times the period we upheld in Michel. We, therefore, find no violation of due process in denying this motion as out of time.Labat. - Edgar Labat was Poret's codefendant. He was apprehended the evening of the crime, and implicated Poret. Labat was indicted December 11, 1950, and arraigned on January 3, 1951, and he pleaded not guilty. On January 5 the court appointed Mr. E. I. Mahoney as counsel for petitioner. Thereafter the status of the case remained unchanged for more than a year. The next entry is dated January 29, 1952, when Mr. Mahoney asked leave to withdraw. Mr. Gill was thereafter employed, and on June 12, 1952, moved for a continuance. After a hearing, the motion was granted and the case was again continued. In October the codefendant Poret was returned to the State. Labat filed his motion to quash the indictment on November 7. The term of the grand jury that indicted Labat had expired in March 1951.Petitioner now contends that he was denied effective representation of counsel. Powell v. Alabama, . Mr. Mahoney had a reasonable time in which to file his motion to quash, but did not do so. It was stated on oral argument that he was 76 or 77 years old when he took the case, and was ill in bed during several months of the year. The trial court and the Supreme Court of Louisiana held that the facts did not show a lack of effective counsel. As in No. 32, Michel's case, we accept these findings. There is little support for the opposite conclusion in the record. Mr. Mahoney was a well-known criminal lawyer with nearly fifty years' experience at the bar. There is no evidence of incompetence.7 The mere fact that a timely motion to quash was not filed does not overcome the presumption of effectiveness. Feeley v. Ragen, 166 F.2d 976. The delay might be considered sound trial strategy, particularly since the codefendant could not be found. We cannot infer lack of effective counsel from this circumstance alone. Such an inference would vitiate state rules of procedure designed to require preliminary objections to be disposed of before trial.At argument, petitioners for the first time raised the contention that the requirements of 202 had been applied by the district attorney only when Negro defendants attempted to attack the composition of the grand jury. They cited two cases in which the district attorney had failed to file demurrers to such motions and the indictments were quashed after the time set out in the statute. The present district attorney, who had been in office some eighteen months but was not serving at the time of these prosecutions, stated that it was his policy to apply 202 whenever possible. Petitioners' contention was not raised below, and we do not believe it has been properly put in issue, Pennsylvania R. Co. v. Illinois Buick Co., . If such an allegation had been presented and preserved, and found support in the record, we might have a very different case here. See Rogers v. Alabama, .For the reasons stated the judgments of the Supreme Court of Louisiana are Affirmed.

The Constitution requires that the apportionment of Representatives be determined by an "actual Enumeration" of persons "in each State," conducted every 10 years. Art. I, 2, cl. 3; Amdt. 14, 2. After the Secretary of Commerce takes the census in a form and content she determines, 13 U.S.C. 141(a), she reports the tabulation to the President, 141(b). He, in turn, sends Congress a statement showing the number of persons in each State, based on data from the "decennial census," and he determines the number of Representatives to which each State will be entitled. 2 U.S.C. 2a(a). For only the second time since 1900, the Census Bureau (Bureau) allocated the Department of Defense's overseas employees to particular States for reapportionment purposes in the 1990 census, using an allocation method that it determined most closely resembled "usual residence," its standard measure of state affiliation. Appellees Massachusetts and two of its registered voters filed an action against, inter alios, the President and the Secretary of Commerce, alleging, among other things, that the decision to allocate federal overseas employees is inconsistent with the Administrative Procedure Act (APA) and the Constitution. In particular, they alleged that the allocation of overseas military personnel resulted in the shift of a Representative from Massachusetts to Washington State. The District Court, inter alia, held that the Secretary's decision to allocate such employees to the States was arbitrary and capricious under APA standards, directed the Secretary to eliminate them from the apportionment count, and directed the President to recalculate the number of Representatives and submit the new calculation to Congress.Held: The judgment is reversed. 785 F.Supp. 230 (D.Mass. 1992) reversed.JUSTICE O'CONNOR delivered the opinion of the Court with respect to Parts I, II, and IV, concluding that: 1. There was no "final agency action" reviewable under the APA. Pp. 796-801. (a) An agency action is "final" when an agency completes its decisionmaking process and the result of that process is one that will directly affect the parties. Here, the action that creates an entitlement to a particular number of Representatives and has a direct effect on the reapportionment is the President's statement to Congress. He is not required to transmit the Secretary's report directly to Congress. Rather, he uses the data from the "decennial census" in making his statement, and, even after he receives the Secretary's report, he is not prohibited from instructing the Secretary to reform the census. The statutory structure here differs from those statutes under which an agency action automatically triggers a course of action regardless of any discretionary action taken by the President. Japan Whaling Assn. v. American Cetacean Soc., , distinguished. Contrary to appellees' argument, the President's action here is not ceremonial or ministerial. Apportionment is not foreordained by the time the Secretary gives the President the report, and the fact that the final action is the President's is important to the integrity of the process. Pp. 796-800. (b) The President's actions are not reviewable under the APA. He is not specifically included in the APA's purview, and respect for the separation of powers and the President's unique constitutional position makes textual silence insufficient to subject him to its provisions. Pp. 800-801. 2. The Secretary's allocation of overseas federal employees to their home States is consistent with the constitutional language and goal of equal representation. It is compatible with the standard of "usual residence," which was the gloss given the constitutional phrase "in each State" by the first enumeration Act and which has been used by the Bureau ever since to allocate persons to their home States. The phrase may mean more than mere physical presence, and has been used to include some element of allegiance or enduring tie to a place. The first enumeration Act also used "usual place of abode," "usual resident," and "inhabitant" to describe the required tie. And "Inhabitant," in the related context of congressional residence qualifications, Art. I, 2, has been interpreted to include persons occasionally absent for a considerable time on public or private business. "Usual residence" has continued to hold broad connotations up to the present day. The Secretary's judgment does not hamper the underlying constitutional goal of equal representation, but, assuming that overseas employees have retained ties to their home States, actually promotes equality. Pp. 803-806. O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which REHNQUIST, C.J., and WHITE, SCALIA, and THOMAS, JJ., joined, the opinion of the Court with respect to Part IV, in which REHNQUIST, C.J., and WHITE, BLACKMUN, STEVENS, KENNEDY, SOUTER, and THOMAS, JJ., joined, and an opinion with respect to Part III, in which REHNQUIST, C.J., and WHITE and THOMAS, JJ., joined. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, in which BLACKMUN, KENNEDY, and SOUTER, JJ., joined, post, p. 807. SCALIA, J., filed an opinion concurring in part and concurring in the judgment, post, p. 823.Deputy Solicitor General Roberts argued the cause for appellants. With him on the briefs were Solicitor General Starr, Assistant Attorney General Gerson, Edwin S. Kneedler, Michael Jay Singer, and Mark B. Stern.Dwight Golann, Assistant Attorney General of Massachusetts, argued the cause for appellees. With him on the briefs were Scott Harshbarger, Attorney General, Steve Berenson, Assistant Attorney General, and John P. Driscoll, Jr., Edward P. Leibensperger, and Neil P. Motenko, Special Assistant Attorneys General.* [Footnote *] Robert Abrams, Attorney General of New York, Jerry Boone, Solicitor General, and Sanford M. Cohen, Assistant Attorney General, Daniel E. Lungren, Attorney General of California, Thomas D. Barr, and Robert S. Rifkind filed a brief for the State of New York et al. as amici curiae urging affirmance.Kenneth O. Eikenberry, Attorney General of Washington, James M. Johnson, Senior Assistant Attorney General, and J. Lawrence Coniff filed a brief for the State of Washington as amicus curiae.JUSTICE O'CONNOR delivered the opinion of the Court, except as to Part III.As one season follows another, the decennial census has again generated a number of reapportionment controversies. This decade, as a result of the 1990 census and reapportionment, Massachusetts lost a seat in the House of Representatives. Appellees Massachusetts and two of its registered voters brought this action against the President, the Secretary of Commerce (Secretary), Census Bureau officials, and the Clerk of the House of Representatives, challenging, among other things, the method used for counting federal employees serving overseas. In particular, the appellants' allocation of 922,819 overseas military personnel to the State designated in their personnel files as their "home of record" altered the relative state populations enough to shift a Representative from Massachusetts to Washington. A three-judge panel of the United States District Court for the District of Massachusetts held that the decision to allocate military personnel serving overseas to their "homes of record" was arbitrary and capricious under the standards of the Administrative Procedure Act (APA), 5 U.S.C. 701 et seq. As a remedy, the District Court directed the Secretary to eliminate the overseas federal employees from the apportionment counts, directed the President to recalculate the number of Representatives per State and transmit the new calculation to Congress, and directed the Clerk of the House of Representatives to inform the States of the change. The federal officials appealed. We noted probable jurisdiction, stayed the District Court's order, and ordered expedited briefing and argument. . We now reverse.IArticle I, 2, cl. 3, of the Constitution provides that Representatives "shall be apportioned among the several States ... according to their respective Numbers," which requires, by virtue of 2 of the Fourteenth Amendment, "counting the whole number of persons in each State." The number of persons in each State is to be calculated by "actual Enumeration," conducted every 10 years, "in such Manner as [Congress] shall by Law direct." U.S. Const., Art. I, 2, cl. 3.The delegates to the Constitutional Convention included the periodic census requirement in order to ensure that entrenched interests in Congress did not stall or thwart needed reapportionment. See 1 M. Farrand, Records of the Federal Convention of 1787, pp. 571, 578-588 (rev. ed. 1966). Their effort was only partially successful, as the congressional battles over the method for calculating the reapportionment still caused delays. After just such a 10-year stalemate after the 1920 census, Congress reformed the reapportionment process to make it virtually self-executing, so that the number of Representatives per State would be determined by the Secretary of Commerce and the President without any action by Congress. See S.Rep. No. 2, 71st Cong., 1st Sess., 2-3 (1929) ("The need for legislation of this type is confessed by the record of the past nine years, during which Congress has refused to translate the 1920 census into a new apportionment... . As a result, great American constituencies have been robbed of their rightful share of representation ..."); Department of Commerce v. Montana, , and n. 25 (1992).Under the automatic reapportionment statute, the Secretary of Commerce takes the census "in such form and content as [s]he may determine." 13 U.S.C. 141(a). The Secretary is permitted to delegate her authority for establishing census procedures to the Bureau of the Census. See 2, 4. The tabulation of total population by States ... as required for the apportionment of Representatives in Congress ... shall be completed within 9 months after the census date and reported by the Secretary to the President of the United States. 141(b). After receiving the Secretary's report, the President shall transmit to the Congress a statement showing the whole number of persons in each State ... as ascertained under the ... decennial census of the population, and the number of Representatives to which each State would be entitled under an apportionment of the then existing number of Representatives by the method known as the method of equal proportions... . 2 U.S.C. 2a(a). "Each State shall be entitled ... to the number of Representatives shown" in the President's statement, and the Clerk of the House of Representatives must "send to the executive of each State a certificate of the number of Representatives to which such State is entitled." 2a(b).With the one-time exception in 1900 of counting overseas servicemen at their family home, the Census Bureau did not allocate federal personnel stationed overseas to particular States for reapportionment purposes until 1970. App. 175, 177. The 1970 census, taken during the Vietnam War, allocated members of the Armed Forces stationed overseas to their "home of record," using Defense Department personnel records. Id., at 179. "Home of record" is the State declared by the person upon entry into military service, and determines where he or she will be moved after military service is complete. Id., at 149. Because the Bureau found that military personnel were likely to designate a "home of record" with low or no income taxes, instead of their true home State - even though home of record does not determine state taxation - the Bureau did not allocate overseas employees to particular States in the 1980 census. App. 180.Initially, the Bureau took the position that overseas federal employees would not be included in the 1990 state enumerations either. There were, however, stirrings in Congress in favor of including overseas federal employees, especially overseas military, in the state population counts. Several bills requiring the Secretary to include overseas military were introduced but not passed in the 100th and 101st Congresses. See H.R. 3814, 100th Cong., 1st Sess. (1987); H.R. 4234, 100th Cong., 2d Sess. (1988); H.R. 3815, 100th Cong., 1st Sess. (1987); H.R. 4720, 100th Cong., 2d Sess. (1988); S. 2103, 100th Cong., 2d Sess (1988); H.R. 1468, 101st Cong., 1st Sess. (1989); H.R. 2661, 101st Cong., 1st Sess. (1989); H.R. 3016, 101st Cong., 1st Sess. (1989); S. 290, 101st Cong., 1st Sess. (1989). In July, 1989, nine months before the census taking was to begin, then-Secretary of Commerce Robert Mosbacher agreed to allocate overseas federal employees to their home States for purposes of congressional apportionment. App. 182. His decision memorandum cites both the growing congressional support for including overseas employees and the Department of Defense's belief that "its employees should not be excluded from apportionment counts because of temporary and involuntary residence overseas." Id., at 120. Another factor explaining the Secretary's shift was that the Department of Defense, the largest federal overseas employer, planned to poll its employees to determine, among other things, which State they considered their permanent home. Id., at 184. In December, 1989, however, the Defense Department canceled its plans to conduct the survey due to a lack of funds. Ibid. As an alternative, the Defense Department suggested that it could provide data on its employees' last six months of residence in the United States, information that would be more complete and up-to-date than the home of record data already in the personnel files. This possibility also failed to materialize when the Defense Department informed the Census Bureau that it was not able to assemble the information after all. Ibid.In the meantime, two more bills were introduced in Congress, but not passed, which would have required the Census Bureau to apportion members of the overseas military to their home States using the "home of record" data already in their personnel files. See H.R. 4903, 101st Cong., 2d Sess. (1990); S. 2675, 101st Cong., 2d Sess. (1990). In July, 1990, six months before the census count was due to be reported to the President, the Census Bureau decided to allocate the Department of Defense's overseas employees to the States based on their "home of record." App. 185. It chose the home of record designation over other data available, including legal residence and last duty station, because home of record most closely resembled the Census Bureau's standard measure of state affiliation - "usual residence." 3 Record 925. Legal residence was thought less accurate, because the choice of legal residence may have been affected by state taxation. Indeed, the Congressional Research Service found that, in 1990, the nine States with either no income taxes or those which tax only interest and dividend income have approximately 9 percent more of the overseas military personnel claiming the States for tax purposes than those same States receive using home of record. Congressional Research Service Report, App. 151, n. 13. For similar reasons, last duty station was rejected, because it would provide only a work address, and the employee's last home address might have been in a different State, as with those, for example, who worked in the District of Columbia but lived in Virginia or Maryland. 3 Record 925. Residence at a "last duty station" may also have been of a very short duration, and may not have reflected the more enduring tie of usual residence. App. 150. Those military personnel for whom home of record information was not available were allocated based on legal residence or last duty station, in that order. Id., at 186.The Census Bureau invited 40 other federal agencies with overseas employees to submit counts of their employees as well. Of those, only 30 actually submitted counts, and only 20 agencies included dependents in their enumeration. Four of the agencies could not provide a home State for all of their overseas employees. Ibid.Appellees challenged the decision to allocate federal overseas employees, and the method used to do so, as inconsistent with the APA and with the constitutional requirement that the apportionment of Representatives be determined by an "actual Enumeration" of persons "in each State." U.S. Const., Art. I, 2, cl. 3; U.S. Const., Amdt. 14, 2. Appellees focused their attack on the Secretary's decision to use "home of record" data for military personnel. The District Court, finding that it had jurisdiction to address the merits of the claims, was "skeptical" of the merits of appellees' constitutional claims, speculating that [t]here would appear to be nothing inherently unconstitutional in a properly supported decision to include overseas federal employees in apportionment counts. Commonwealth v. Mosbacher, 785 F.Supp. 230, 266 (Mass. 1992). The District Court nonetheless held that, on the administrative record before it, the Secretary's decision to allocate the employees and to use home of record data was arbitrary and capricious under the standards of the APA. Id., at 264-266.IIAppellees raise claims under both the APA and the Constitution. We address first the statutory basis for our jurisdiction under the APA. See Blum v. Bacon, ; Burton v. United States, .The APA sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts. The Secretary's report to the President is an unusual candidate for "agency action" within the meaning of the APA, because it is not promulgated to the public in the Federal Register, no official administrative record is generated, and its effect on reapportionment is felt only after the President makes the necessary calculations and reports the result to the Congress. Contrast 2 U.S.C. 441a(e) (requiring Secretary to publish each year in the Federal Register an estimate of the voting age population). Only after the President reports to Congress do the States have an entitlement to a particular number of Representatives. See 2a(b) ("Each State shall be entitled ... to the number of Representatives shown in the [President's] statement").The APA provides for judicial review of "final agency action for which there is no other adequate remedy in a court." 5 U.S.C. 704. At issue in this case is whether the "final" action that appellees have challenged is that of an "agency" such that the federal courts may exercise their powers of review under the APA. We hold that the final action complained of is that of the President, and the President is not an agency within the meaning of the Act. Accordingly, there is no final agency action that may be reviewed under the APA standards.To determine when an agency action is final, we have looked to, among other things, whether its impact "is sufficiently direct and immediate" and has a "direct effect on ... day-to-day business." Abbott Laboratories v. Gardner, . An agency action is not final if it is only "the ruling of a subordinate official," or "tentative." Id., at 151. The core question is whether the agency has completed its decisionmaking process, and whether the result of that process is one that will directly affect the parties. In this case, the action that creates an entitlement to a particular number of Representatives and has a direct effect on the reapportionment is the President's statement to Congress, not the Secretary's report to the President.Unlike other statutes that expressly require the President to transmit an agency's report directly to Congress, 2a does not. Compare, e.g., 20 U.S.C. 1017(d) ("The President shall transmit each such report [of the National Advisory Council on Continuing Education] to the Congress with his comments and recommendations"); 30 U.S.C. 1315(c) (similar language); 42 U.S.C. 3015(f) (similar language); 42 U.S.C. 6633(b)(2) (similar language). After receiving the Secretary's report, the President is to transmit to the Congress a statement showing the whole number of persons in each State ... as ascertained under the ... decennial census of the population. 2 U.S.C. 2(a). Section 2a does not expressly require the President to use the data in the Secretary's report, but, rather, the data from the "decennial census." There is no statute forbidding amendment of the "decennial census" itself after the Secretary submits the report to the President. For potential litigants, therefore, the "decennial census" still presents a moving target, even after the Secretary reports to the President. In this case, the Department of Commerce, in its press release issued the day the Secretary submitted the report to the President, was explicit that the data presented to the President was still subject to correction. See United States Department of Commerce News, Bureau of Census, 1990 Census Population for the United States is 249,632,692: Reapportionment Will Shift 19 Seats in the U.S. House of Representatives 2 (Dec. 26, 1990) ("The population counts set forth herein are subject to possible correction for undercount and overcount. The United States Department of Commerce is considering whether to correct these counts, and will publish corrected counts, if any, not later than July 15, 1991").1 Moreover, there is no statute that rules out an instruction by the President to the Secretary to reform the census, even after the data is submitted to him. It is not until the President submits the information to Congress that the target stops moving, because only then are the States entitled by 2a to a particular number of Representatives. Because the Secretary's report to the President carries no direct consequences for the reapportionment, it serves more like a tentative recommendation than a final and binding determination. It is, like "the ruling of a subordinate official," Abbott Laboratories v. Gardner, supra, at 151, not final, and therefore not subject to review. Cf. Chicago & Southern Air Lines, Inc. v. Waterman S. S. Corp., ; United States v. George S. Bush & Co., .The statutory structure in this case differs from that at issue in Japan Whaling Assn. v. American Cetacean Soc., , in which we held that the Secretary of Commerce's certification to the President that another country was endangering fisheries was "final agency action." Id., at 231, n. 4. In that case, the Secretary's certification to the President under 22 U.S.C. 1978(a)(1) automatically triggered sanctions by the Secretary of State under 16 U.S.C. 1821(e)(2)(B), regardless of any discretionary action the President himself decided to take. Japan Whaling, supra, at 226. Under 13 U.S.C. 141(a), by contrast, the Secretary's report to the President has no direct effect on reapportionment until the President takes affirmative steps to calculate and transmit the apportionment to Congress.Appellees claim that, because the President exercises no discretion in calculating the numbers of Representatives, his "role in the statutory scheme was intended to have no substantive content," and the final action is the Secretary's, not the President's. Brief for Appellees 86. They cite the Senate Report for the bill that became 2 U.S.C. 2a, which states that the President is to report upon a problem in mathematics which is standard, and for which rigid specifications are provided by Congress itself, and to which there can be but one mathematical answer. S.Rep. No. 2, 71st Cong., 1st Sess., at 4-5.The admittedly ministerial nature of the apportionment calculation itself does not answer the question whether the apportionment is foreordained by the time the Secretary gives her report to the President. To reiterate, 2(a) does not curtail the President's authority to direct the Secretary in making policy judgments that result in "the decennial census"; he is not expressly required to adhere to the policy decisions reflected in the Secretary's report. Because it is the President's personal transmittal of the report to Congress that settles the apportionment, until he acts, there is no determinate agency action to challenge. The President, not the Secretary, takes the final action that affects the States.Indeed, it is clear that Congress thought it was important to involve a constitutional officer in the apportionment process. Congress originally considered a bill requiring the Secretary to report the apportionment calculation directly to Congress. See S.Rep. No. 1446, 70th Cong., 2d Sess., 4 (1929). The bill was later amended to require the participation of the President: Another objection to the previous bill was that the Secretary of Commerce should not be intrusted with the final responsibility for making so important a report to Congress. The new and pending bill recognizes this objection to the extent that the President is substituted for the Secretary of Commerce, so that this function may be served by a constitutional officer. This makes for greater permanence, which is one of the major virtues to be desired in such a statute. S.Rep. No. 2, supra, at 5. It is hard to imagine a purpose for involving the President if he is to be prevented from exercising his accustomed supervisory powers over his executive officers. Certainly no purpose to alter the President's usual superintendent role is evident from the text of the statute.As enacted, 2 U.S.C. 2a provides that the Secretary cannot act alone; she must send her results to the President, who makes the calculations and sends the final apportionment to Congress. That the final act is that of the President is important to the integrity of the process, and bolsters our conclusion that his duties are not merely ceremonial or ministerial. Thus, we can only review the APA claims here if the President, not the Secretary of Commerce, is an "agency" within the meaning of the Act.The APA defines "agency" as each authority of the Government of the United States, whether or not it is within or subject to review by another agency, but does not include - (A) the Congress; (B) the courts of the United States; (C) the governments of the territories or possessions of the United States; (D) the government of the District of Columbia. 5 U.S.C. 701(b)(1), 551(1). The President is not explicitly excluded from the APA's purview, but he is not explicitly included, either. Out of respect for the separation of powers and the unique constitutional position of the President, we find that textual silence is not enough to subject the President to the provisions of the APA. We would require an express statement by Congress before assuming it intended the President's performance of his statutory duties to be reviewed for abuse of discretion. Cf. Nixon v. Fitzgerald, , n. 27 (1982) (Court would require an explicit statement by Congress before assuming Congress had created a damages action against the President). As the APA does not expressly allow review of the President's actions, we must presume that his actions are not subject to its requirements. Although the President's actions may still be reviewed for constitutionality, see Youngstown Sheet & Tube Co. v. Sawyer, ; Panama Refining Co. v. Ryan, , we hold that they are not reviewable for abuse of discretion under the APA, see Armstrong v. BushApp. D.C. 38, 45, 924 F.2d 282, 289 (1991). The District Court erred in proceeding to determine the merits of the APA claims.IIIAlthough the reapportionment determination is not subject to review under the standards of the APA, that does not dispose of appellees' constitutional claims. See Webster v. Doe, . Constitutional challenges to apportionment are justiciable. See Department of Commerce v. Montana, .We first address standing.2 To invoke the constitutional power of the federal courts to adjudicate a case or controversy under Article III, appellees here must allege and prove an injury "fairly traceable to the [appellants'] allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, . To determine whether appellees sufficiently allege and prove causation requires separating out appellees' claims: appellees claim both that the Secretary erred in deciding to allocate overseas employees to various States and that the Secretary erred in using inaccurate data to do so. Appellees have shown that Massachusetts would have had an additional Representative if overseas employees had not been allocated at all. App. 183. They have neither alleged nor shown, however, that Massachusetts would have had an additional Representative if the allocation had been done using some other source of "more accurate" data. Consequently, even if appellees have standing to challenge the Secretary's decision to allocate, they do not have standing to challenge the accuracy of the data used in making that allocation. We need, then, review only the decision to include overseas federal employees in the state population counts, not the Secretary's choice of information sources.The thornier standing question is whether the injury is redressable by the relief sought. Tracking the statutory progress of the census data from the Census Bureau, through the President, and to the States, the District Court entered an injunction against the Secretary of Commerce, the President, and the Clerk of the House. 785 F.Supp., at 268. While injunctive relief against executive officials like the Secretary of Commerce is within the courts' power, see Youngstown Sheet & Tube Co. v. Sawyer, supra, the District Court's grant of injunctive relief against the President himself is extraordinary, and should have raised judicial eyebrows. We have left open the question whether the President might be subject to a judicial injunction requiring the performance of a purely "ministerial" duty, Mississippi v. Johnson, 4 Wall. 475, 498-499 (1867), and we have held that the President may be subject to a subpoena to provide information relevant to an ongoing criminal prosecution, United States v. Nixon, , but, in general, "this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties." Mississippi v. Johnson, supra, at 501. At the threshold, the District Court should have evaluated whether injunctive relief against the President was available, and, if not, whether appellees' injuries were nonetheless redressable.For purposes of establishing standing, however, we need not decide whether injunctive relief against the President was appropriate, because we conclude that the injury alleged is likely to be redressed by declaratory relief against the Secretary alone. See Duke Power Co. v. Carolina Environmental Study Group, Inc., , n. 20 (1978); Allen v. Wright, supra, at 752. The Secretary certainly has an interest in defending her policy determinations concerning the census; even though she cannot herself change the reapportionment, she has an interest in litigating its accuracy. And, as the Solicitor General has not contended to the contrary, we may assume it is substantially likely that the President and other executive and congressional officials would abide by an authoritative interpretation of the census statute and constitutional provision by the District Court, even though they would not be directly bound by such a determination.IVOn the merits, appellees argue that the Secretary's allocation of overseas federal employees to the States violated the command of Article I, 2, cl. 3, that the number of Representatives per State be determined by an "actual Enumeration" of "their respective Numbers," that is, a count of the persons "in" each State. Appellees point out that the first census conducted in 1790 required that persons be allocated to their place of "usual residence." Brief for Appellees 77. See Act of Mar. 1, 1790, 5, 1 Stat. 103. Because the interpretations of the Constitution by the First Congress are persuasive, Bowsher v. Synar, , appellees argue that the Secretary should have allocated the overseas employees to their overseas stations, because those were their usual residences.The appellants respond, on the other hand, that the allocation of employees temporarily stationed overseas to their home States is fully compatible with the standard of "usual residence" used in the early censuses. We review the dispute to the extent of determining whether the Secretary's interpretation is consistent with the constitutional language and the constitutional goal of equal representation. See Department of Commerce v. Montana, at 503 U.S., 459."Usual residence" was the gloss given the constitutional phrase "in each State" by the first enumeration Act, and has been used by the Census Bureau ever since to allocate persons to their home States. App. 173-174. The term can mean more than mere physical presence, and has been used broadly enough to include some element of allegiance or enduring tie to a place. The first enumeration Act itself provided that every person occasionally absent at the time of the enumeration [shall be counted] as belonging to that place in which he usually resides in the United States. Act of Mar. 1, 1790, 5, 1 Stat. 103. The Act placed no limit on the duration of the absence, which, considering the modes of transportation available at the time, may have been quite lengthy. For example, during the 36-week enumeration period of the 1790 census, President George Washington spent 16 weeks traveling through the States, 15 weeks at the seat of Government, and only 10 weeks at his home in Mount Vernon. He was, however, counted as a resident of Virginia. T. Clemence, Place of Abode, reproduced in App. 83. The first enumeration Act uses other words as well to describe the required tie to the State: "usual place of abode," "inhabitant," "usual reside[nt]." Act of Mar.1, 1790, 5, 1 Stat. 103. The first draft of Article I, 2, also used the word "inhabitant," which was omitted by the Committee of Style in the final provision. 2 Farrand, Records of the Federal Convention of 1787, at 566, 590.3 In the related context of congressional residence qualifications, U.S. Const., Art. I, 2, James Madison interpreted the constitutional term "inhabitant" to include "persons absent occasionally for a considerable time on public or private business." 2 Farrand, Records of the Federal Convention of 1787, at 217. This understanding was applied in 1824, when a question was raised about the residency qualifications of would-be Representative John Forsyth, of Georgia. Mr. Forsyth had been living in Spain during his election, serving as minister plenipotentiary from the United States. His qualification for office was challenged on the ground that he was not "an inhabitant of the State in which he [was] chosen." U.S. Const., Art. I, 2, cl. 2. The House Committee of Elections disagreed, reporting: "[T]here is nothing in Mr. Forsyth's case which disqualifies him from holding a seat in this House. The capacity in which he acted excludes the idea that, by the performance of his duty abroad, he ceased to be an inhabitant of the United States; and, if so, inasmuch as he had no inhabitancy in any other part of the Union than Georgia, he must be considered as in the same situation as before the acceptance of the appointment. M. Clarke & D. Hall, Cases of Contested Elections in Congress 497-498 (1834). Representative Bailey, supporting the qualification of Mr. Forsyth, pointed out that, if "the mere living in a place constituted inhabitancy," it would "exclude sitting members of this House." Id., at 497 (emphasis deleted).Up to the present day, "usual residence" has continued to hold broad connotations. For example, up until 1950, college students were counted as belonging to the State where their parents resided, not to the State where they attended school. App. 219. Even today, high school students away at boarding school are allocated to their parents' home State, not the location of the school. Id., at 220. Members of Congress may choose whether to be counted in the Washington, D.C., area or in their home States. Id., at 218. Those who are institutionalized in out-of-state hospitals or jails for short terms are also counted in their home States. Id., at 225.In this case, the Secretary of Commerce made a judgment, consonant with, though not dictated by, the text and history of the Constitution, that many federal employees temporarily stationed overseas had retained their ties to the States, and could and should be counted toward their States' representation in Congress: Many, if not most, of these military overseas consider themselves to be usual residents of the United States, even though they are temporarily assigned overseas. Id., at 120. The Secretary's judgment does not hamper the underlying constitutional goal of equal representation, but, assuming that employees temporarily stationed abroad have indeed retained their ties to their home States, actually promotes equality. If some persons sharing in Washington's fate had not been properly counted, the votes of all those who reside in Washington State would not have been weighted equally to votes of those who reside in other States. Certainly, appellees have not demonstrated that eliminating overseas employees entirely from the state counts will make representation in Congress more equal. Cf. Karcher v. Daggett, (parties challenging state apportionment legislation bear burden of proving disparate representation). We conclude that appellees' constitutional challenge fails on the merits.The District Court's judgment is Reversed.

As a recipient of federal financial assistance, the Alabama Department of Public Safety (Department), of which petitioner Alexander is the Director, is subject to Title VI of the Civil Rights Act of 1964. Section 601 of that Title prohibits discrimination based on race, color, or national origin in covered programs and activities. Section 602 authorizes federal agencies to effectuate §601 by issuing regulations, and the Department of Justice (DOJ) in an exercise of this authority promulgated a regulation forbidding funding recipients to utilize criteria or administrative methods having the effect of subjecting individuals to discrimination based on the prohibited grounds. Respondent Sandoval brought this class action to enjoin the Department's decision to administer state driver's license examinations only in English, arguing that it violated the DOJ regulation because it had the effect of subjecting non-English speakers to discrimination based on their national origin. Agreeing, the District Court enjoined the policy and ordered the Department to accommodate non-English speakers. The Eleventh Circuit affirmed. Both courts rejected petitioners' argument that Title VI did not provide respondents a cause of action to enforce the regulation.Held: There is no private right of action to enforce disparate-impact regulations promulgated under Title VI. Pp. 3-17. (a) Three aspects of Title VI must be taken as given. First, private individuals may sue to enforce §601. See, e.g., Cannon v. University of Chicago, 441 U. S. 677, 694, 696, 699, 703, 710-711. Second, §601 prohibits only intentional discrimination. See, e.g., Alexander v. Choate, 469 U. S. 287, 293. Third, it must be assumed for purposes of deciding this case that regulations promulgated under §602 may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under §601. Pp. 3-5. (b) This Court has not, however, held that Title VI disparate-impact regulations may be enforced through a private right of action. Cannon was decided on the assumption that the respondent there had intentionally discriminated against the petitioner, see 463 U. S. 582, the Court held that private individuals could not recover compensatory damages under Title VI except for intentional discrimination. Of the five Justices who also voted to uphold disparate-impact regulations, three expressly reserved the question of a direct private right of action to enforce them, 463 U. S., at 645, n. 18. Pp. 5-7. (c) Nor does it follow from the three points taken as given that Congress must have intended such a private right of action. There is no doubt that regulations applying §601's ban on intentional discrimination are covered by the cause of action to enforce that section. But the disparate-impact regulations do not simply apply §601 — since they forbid conduct that §601 permits — and thus the private right of action to enforce §601 does not include a private right to enforce these regulations. See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 173. That right must come, if at all, from the independent force of §602. Pp. 7-10. (d) Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress. Touche Ross & Co. v. Redington, 442 U. S. 560, 578. This Court will not revert to the understanding of private causes of action, represented by J. I. Case Co. v. Borak, 377 U. S. 426, 433, that held sway when Title VI was enacted. That understanding was abandoned in Cort v. Ash, 422 U. S. 66, 78. Nor does the Court agree with the Government's contention that cases interpreting statutes enacted prior to Cort v. Ash have given dispositive weight to the expectations that the enacting Congress had formed in light of the contemporary legal context. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353, 378-379; Cannon, supra, at 698-699; and Thompson v. Thompson, 484 U. S. 174, distinguished. Pp. 10-12. (e) The search for Congress's intent in this case begins and ends with Title VI's text and structure. The "rights-creating" language so critical to Cannon's §601 analysis, 489 U. S. 527, 533. Pp. 12-15. (f) The Court rejects arguments that the regulations at issue contain rights-creating language and so must be privately enforceable; that amendments to Title VI in §1003 of the Rehabilitation Act Amendments of 1986 and §6 of the Civil Rights Restoration Act of 1987 "ratified" decisions finding an implied private right of action to enforce the regulations; and that the congressional intent to create a right of action must be inferred under Curran, supra, at 353, 381-382. Pp. 15-17.197 F. 3d 484, reversed. Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Kennedy, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, in which Souter, Ginsburg, and Breyer, JJ., joined.JAMES ALEXANDER, DIRECTOR, ALABAMA DEPART-MENT OF PUBLIC SAFETY, et al., PETITIONERSv. MARTHA SANDOVAL, individually and onbehalf of all others similarly situatedon writ of certiorari to the united states court ofappeals for the eleventh circuit[April 24, 2001] Justice Scalia delivered the opinion of the Court. This case presents the question whether private individuals may sue to enforce disparate-impact regulations promulgated under Title VI of the Civil Rights Act of 1964.I The Alabama Department of Public Safety (Department), of which petitioner James Alexander is the Director, accepted grants of financial assistance from the United States Department of Justice (DOJ) and Department of Transportation (DOT) and so subjected itself to the restrictions of Title VI of the Civil Rights Act of 1964, 78 Stat. 252, as amended, 42 U. S. C. §2000d et seq. Section 601 of that Title provides that no person shall, "on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity" covered by Title VI. 42 U. S. C. §2000d. Section 602 authorizes federal agencies "to effectuate the provisions of [§601] ... by issuing rules, regulations, or orders of general applicability," 42 U. S. C. §2000d-1, and the DOJ in an exercise of this authority promulgated a regulation forbidding funding recipients to "utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin ... ." 28 CFR §42.104(b)(2) (1999). See also 49 CFR §21.5(b)(2) (2000) (similar DOT regulation). The State of Alabama amended its Constitution in 1990 to declare English "the official language of the state of Alabama." Amdt. 509. Pursuant to this provision and, petitioners have argued, to advance public safety, the Department decided to administer state driver's license examinations only in English. Respondent Sandoval, as representative of a class, brought suit in the United States District Court for the Middle District of Alabama to enjoin the English-only policy, arguing that it violated the DOJ regulation because it had the effect of subjecting non-English speakers to discrimination based on their national origin. The District Court agreed. It enjoined the policy and ordered the Department to accommodate non-English speakers. Sandoval v. Hagan, 7 F. Supp. 2d 1234 (1998). Petitioners appealed to the Court of Appeals for the Eleventh Circuit, which affirmed. Sandoval v. Hagan, 197 F. 3d 484 (1999). Both courts rejected petitioners' argument that Title VI did not provide respondents a cause of action to enforce the regulation. We do not inquire here whether the DOJ regulation was authorized by §602, or whether the courts below were correct to hold that the English-only policy had the effect of discriminating on the basis of national origin. The petition for writ of certiorari raised, and we agreed to review, only the question posed in the first paragraph of this opinion: whether there is a private cause of action to enforce the regulation. 530 U. S. 1305 (2000).II Although Title VI has often come to this Court, it is fair to say (indeed, perhaps an understatement) that our opinions have not eliminated all uncertainty regarding its commands. For purposes of the present case, however, it is clear from our decisions, from Congress's amendments of Title VI, and from the parties' concessions that three aspects of Title VI must be taken as given. First, private individuals may sue to enforce §601 of Title VI and obtain both injunctive relief and damages. In Cannon v. University of Chicago, 441 U. S. 677 (1979), the Court held that a private right of action existed to enforce Title IX of the Education Amendments of 1972, 86 Stat. 373, as amended, 20 U. S. C. §1681 et seq. The reasoning of that decision embraced the existence of a private right to enforce Title VI as well. "Title IX," the Court noted, "was patterned after Title VI of the Civil Rights Act of 1964." 503 U. S. 60 (1992), that §2000d-7 "cannot be read except as a validation of Cannon's holding." Id., at 72; see also id., at 78 (Scalia, J., concurring in judgment) (same). It is thus beyond disputethat private individuals may sue to enforce §601. Second, it is similarly beyond dispute — and no party disagrees — that §601 prohibits only intentional discrimination. In Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978), the Court reviewed a decision of the California Supreme Court that had enjoined the University of California Medical School from "according any consideration to race in its admissions process." Id., at 272. Essential to the Court's holding reversing that aspect of the California court's decision was the determination that §601 "proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment." Id., at 287 (opinion of Powell, J.); see also id., at 325, 328, 352 (opinion of Brennan, White, Marshall, and Blackmun, JJ.). In Guardians Assn. v. Civil Serv. Comm'n of New York City, 463 U. S. 582 (1983), the Court made clear that under Bakke only intentional discrimination was forbidden by §601. 469 U. S. 287, 293 (1985), is true today: "Title VI itself directly reach[es] only instances of intentional discrimination."1 Third, we must assume for purposes of deciding this case that regulations promulgated under §602 of Title VI may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under §601. Though no opinion of this Court has held that, five Justices in Guardians voiced that view of the law at least as alternative grounds for their decisions, see 463 U. S., at 591-592 (opinion of White, J.); id., at 623, n. 15 (Marshall, J., dissenting); id., at 643-645 (Stevens, J., joined by Brennan and Blackmun, JJ., dissenting), and dictum in Alexander v. Choate is to the same effect, see 469 U. S., at 293, 295, n. 11. These statements are in considerable tension with the rule of Bakke and Guardians that §601 forbids only intentional discrimination, see, e.g., Guardians Assn. v. Civil Serv. Comm'n of New York City, supra, at 612-613 (O'Connor, J., concurring in judgment), but petitioners have not challenged the regulations here. We therefore assume for the purposes of deciding this case that the DOJ and DOT regulations proscribing activities that have a disparate impact on the basis of race are valid. Respondents assert that the issue in this case, like the first two described above, has been resolved by our cases. To reject a private cause of action to enforce the disparate-impact regulations, they say, we would "[have] to ignore the actual language of Guardians and Cannon." Brief for Respondents 13. The language in Cannon to which respondents refer does not in fact support their position, as we shall discuss at length below, see infra, at 12-13. But in any event, this Court is bound by holdings, not language. Cannon was decided on the assumption that the University of Chicago had intentionally discriminated against petitioner. See 441 U. S., at 680 (noting that respondents "admitted arguendo" that petitioner's "application for admission to medical school was denied by the respondents because she is a woman"). It therefore held that Title IX created a private right of action to enforce its ban on intentional discrimination, but had no occasion to consider whether the right reached regulations barring disparate-impact discrimination.2 In Guardians, the Court held that private individuals could not recover compensatory damages under Title VI except for intentional discrimination. Five Justices in addition voted to uphold the disparate-impact regulations (four would have declared them invalid, see 463 U. S., at 611, n. 5 (Powell, J., concurring in judgment); id., at 612-614 (O'Connor, J., concurring in judgment)), but of those five, three expressly reserved the question of a direct private right of action to enforce the regulations, saying that "[w]hether a cause of action against private parties exists directly under the regulations ... [is a] questio[n] that [is] not presented by this case." Id., at 645, n. 18 (Stevens, J., dissenting).3 Thus, only two Justices had cause to reach the issue that respondents say the "actual language" of Guardians resolves. Neither that case,4 nor any other in this Court, has held that the private right of action exists. Nor does it follow straightaway from the three points we have taken as given that Congress must have intended a private right of action to enforce disparate-impact regulations. We do not doubt that regulations applying §601's ban on intentional discrimination are covered by the cause of action to enforce that section. Such regulations, if valid and reasonable, authoritatively construe the statute itself, see NationsBank of N. C., N. A. v. Variable Annuity Life Ins. Co., 513 U. S. 251, 257 (1995); Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843-844 (1984), and it is therefore meaningless to talk about a separate cause of action to enforce the regulations apart from the statute. A Congress that intends the statute to be enforced through a private cause of action intends the authoritative interpretation of the statute to be so enforced as well. The many cases that respondents say have "assumed" that a cause of action to enforce a statute includes one to enforce its regulations illustrate (to the extent that cases in which an issue was not presented can illustrate anything) only this point; each involved regulations of the type we have just described, as respondents conceded at oral argument, Tr. of Oral Arg. 33. See National Collegiate Athletic Assn. v. Smith, 525 U. S. 459, 468 (1999) (regulation defining who is a "recipient" under Title IX); School Bd. of Nassau Cty. v. Arline, 480 U. S. 273, 279-281 (1987) (regulations defining the terms "physical impairment" and "major life activities" in §504 of the Rehabilitation Act of 1973); Bazemore v. Friday, 478 U. S. 385, 408-409 (1986) (White, J., joined by four other Justices, concurring) (regulation interpreting Title VI to require "affirmative action" remedying effects of intentional discrimination); Alexander v. Choate, 414 U. S. 563 (1974), falls within the same category. The Title VI regulations at issue in Lau, similar to the ones at issue here, forbade funding recipients to take actions which had the effect of discriminating on the basis of race, color, or national origin. Id., at 568. Unlike our later cases, however, the Court in Lau interpreted §601 itself to proscribe disparate-impact discrimination, saying that it "rel[ied] solely on §601 ... to reverse the Court of Appeals," id., at 566, and that the disparate-impact regulations simply "[made] sure that recipients of federal aid ... conduct[ed] any federally financed projects consistently with §601," id., at 567.5 We must face now the question avoided by Lau, because we have since rejected Lau's interpretation of §601 as reaching beyond intentional discrimination. See supra, at 4. It is clear now that the disparate-impact regulations do not simply apply §601 — since they indeed forbid conduct that §601 permits — and therefore clear that the private right of action to enforce §601 does not include a private right to enforce these regulations. See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 173 (1994) (a "private plaintiff may not bring a [suit based on a regulation] against a defendant for acts not prohibited by the text of [the statute]"). That right must come, if at all, from the independent force of §602. As stated earlier, we assume for purposes of this decision that §602 confers the authority to promulgate disparate-impact regulations6 ; the question remains whether it confers a private right of action to enforce them. If not, we must conclude that a failure to comply with regulations promulgated under §602 that is not also a failure to comply with §601 is not actionable. Implicit in our discussion thus far has been a particular understanding of the genesis of private causes of action. Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress. Touche Ross & Co. v. Redington, 442 U. S. 560, 578 (1979) (remedies available are those "that Congress enacted into law"). The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U. S. 11, 15 (1979). Statutory intent on this latter point is determinative. See, e.g., Virginia Bankshares, Inc. v. Sandberg, 501 U. S. 1083, 1102 (1991); Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U. S. 804, 812, n. 9 (1986) (collecting cases). Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute. See, e.g., Massachusetts Mut. Life Ins. Co. v. Russell, 473 U. S. 134, 145, 148 (1985); Transamerica Mortgage Advisors, Inc. v. Lewis, supra, at 23; Touche Ross & Co. v. Redington, supra, at 575-576. "Raising up causes of action where a statute has not created them may be a proper function for common-law courts, but not for federal tribunals." Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U. S. 350, 365 (1991) (Scalia, J., concurring in part and concurring in judgment). Respondents would have us revert in this case to the understanding of private causes of action that held sway 40 years ago when Title VI was enacted. That understanding is captured by the Court's statement in J. I. Case Co. v. Borak, 377 U. S. 426, 433 (1964), that "it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose" expressed by a statute. We abandoned that understanding in Cort v. Ash, 422 U. S. 66, 78 (1975)--which itself interpreted a statute enacted under the ancien regime — and have not returned to it since. Not even when interpreting the same Securities Exchange Act of 1934 that was at issue in Borak have we applied Borak's method for discerning and defining causes of action. See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., supra, at 188; Musick, Peeler & Garrett v. Employers Ins. of Wausau, 508 U. S. 286, 291-293 (1993); Virginia Bankshares, Inc. v. Sandberg, supra, at 1102-1103; Touche Ross & Co. v. Redington, supra, at 576-578. Having sworn off the habit of venturing beyond Congress's intent, we will not accept respondents' invitation to have one last drink. Nor do we agree with the Government that our cases interpreting statutes enacted prior to Cort v. Ash have given "dispositive weight" to the "expectations" that the enacting Congress had formed "in light of the `contemporary legal context.' " Brief for United States 14. Only three of our legion implied-right-of-action cases have found this sort of "contemporary legal context" relevant, and two of those involved Congress's enactment (or reenactment) of the verbatim statutory text that courts had previously interpreted to create a private right of action. See Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353, 378-379 (1982); Cannon v. University of Chicago, 484 U. S. 174 (1988). We have never accorded dispositive weight to context shorn of text. In determining whether statutes create private rights of action, as in interpreting statutes generally, see Blatchford v. Native Village of Noatak, 501 U. S. 775, 784 (1991), legal context matters only to the extent it clarifies text. We therefore begin (and find that we can end) our search for Congress's intent with the text and structure of Title VI.7 Section 602 authorizes federal agencies "to effectuate the provisions of [§601] ... by issuing rules, regulations, or orders of general applicability." 42 U. S. C. §2000d-1. It is immediately clear that the "rights-creating" language so critical to the Court's analysis in Cannon of §601, see 451 U. S. 287, 294 (1981). Section 602 is yet a step further removed: it focuses neither on the individuals protected nor even on the funding recipients being regulated, but on the agencies that will do the regulating. Like the statute found not to create a right of action in Universities Research Assn., Inc. v. Coutu, 450 U. S. 754 (1981), §602 is "phrased as a directive to federal agencies engaged in the distribution of public funds," id., at 772. When this is true, "[t]here [is] far less reason to infer a private remedy in favor of individual persons," Cannon v. University of Chicago, supra, at 690-691. So far as we can tell, this authorizing portion of §602 reveals no congressional intent to create a private right of action. Nor do the methods that §602 goes on to provide for enforcing its authorized regulations manifest an intent to create a private remedy; if anything, they suggest the opposite. Section 602 empowers agencies to enforce their regulations either by terminating funding to the "particular program, or part thereof," that has violated the regulation or "by any other means authorized by law," 42 U. S. C. §2000d-1. No enforcement action may be taken, however, "until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means." Ibid. And every agency enforcement action is subject to judicial review. §2000d-2. If an agency attempts to terminate program funding, still more restrictions apply. The agency head must "file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action." §2000d-1. And the termination of funding does not "become effective until thirty days have elapsed after the filing of such report." Ibid. Whatever these elaborate restrictions on agency enforcement may imply for the private enforcement of rights created outside of §602, compare Cannon v. University of Chicago, supra, at 706, n. 41, 712, n. 49; Regents of Univ. of Cal. v. Bakke, 489 U. S. 527, 533 (1989); Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77, 93-94 (1981); Transamerica Mortgage Advisors, Inc. v. Lewis, 453 U. S. 1, 19-20 (1981). In the present case, the claim of exclusivity for the express remedial scheme does not even have to overcome such obstacles. The question whether §602's remedial scheme can overbear other evidence of congressional intent is simply not presented, since we have found no evidence anywhere in the text to suggest that Congress intended to create a private right to enforce regulations promulgated under §602. Both the Government and respondents argue that the regulations contain rights-creating language and so must be privately enforceable, see Brief for United States 19-20; Brief for Respondents 31, but that argument skips an analytical step. Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not. Touche Ross & Co. v. Redington, 442 U. S., at 577, n. 18 ("[T]he language of the statute and not the rules must control"). Thus, when a statute has provided a general authorization for private enforcement of regulations, it may perhaps be correct that the intent displayed in each regulation can determine whether or not it is privately enforceable. But it is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer's apprentice but not the sorcerer himself. The last string to respondents' and the Government's bow is their argument that two amendments to Title VI "ratified" this Court's decisions finding an implied private right of action to enforce the disparate-impact regulations. See Rehabilitation Act Amendments of 1986, §1003, 42 U. S. C. §2000d-7; Civil Rights Restoration Act of 1987, §6, 102 Stat. 31, 42 U. S. C. §2000d-4a. One problem with this argument is that, as explained above, none of our decisions establishes (or even assumes) the private right of action at issue here, see supra, at 5-8, which is why in Guardians three Justices were able expressly to reserve the question. See 465 U. S. 555 (1984). It is impossible to understand what this has to do with implied causes of action — which is why we declared in Franklin v. Gwinnett County Public Schools, 491 U. S. 164, 175, n. 1 (1989) (quoting Johnson v. Transportation Agency, Santa Clara Cty., 480 U. S. 616, 671-672 (1987) (Scalia, J., dissenting)). Neither as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under §602.8 We therefore hold that no such right of action exists. Since we reach this conclusion applying our standard test for discerning private causes of action, we do not address petitioners' additional argument that implied causes of action against States (and perhaps nonfederal state actors generally) are inconsistent with the clear statement rule of Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981). See Davis v. Monroe County Bd. of Ed., 526 U. S. 629, 656-657, 684-685 (1999) (Kennedy, J., dissenting). The judgment of the Court of Appeals is reversed.It is so ordered.JAMES ALEXANDER, DIRECTOR, ALABAMA DEPART-MENT OF PUBLIC SAFETY, et al., PETITIONERSv. MARTHA SANDOVAL, individually and onbehalf of all others similarly situatedon writ of certiorari to the united states court ofappeals for the eleventh circuit[April 24, 2001] Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, dissenting. In 1964, as part of a groundbreaking and comprehensive civil rights Act, Congress prohibited recipients of federal funds from discriminating on the basis of race, ethnicity, or national origin. Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. §§2000d to 2000d-7. Pursuant to powers expressly delegated by that Act, the federal agencies and departments responsible for awarding and administering federal contracts immediately adopted regulations prohibiting federal contractees from adopting policies that have the "effect" of discriminating on those bases. At the time of the promulgation of these regulations, prevailing principles of statutory construction assumed that Congress intended a private right of action whenever such a cause of action was necessary to protect individual rights granted by valid federal law. Relying both on this presumption and on independent analysis of Title VI, this Court has repeatedly and consistently affirmed the right of private individuals to bring civil suits to enforce rights guaranteed by Title VI. A fair reading of those cases, and coherent implementation of the statutory scheme, requires the same result under Title VI's implementing regulations. In separate lawsuits spanning several decades, we have endorsed an action identical in substance to the one brought in this case, see Lau v. Nichols, 414 U. S. 563 (1974); demonstrated that Congress intended a private right of action to protect the rights guaranteed by Title VI, see Cannon v. University of Chicago, 441 U. S. 677 (1979); and concluded that private individuals may seek declaratory and injunctive relief against state officials for violations of regulations promulgated pursuant to Title VI, see Guardians Assn. v. Civil Serv. Comm'n of New York City, 463 U. S. 582 (1983). Giving fair import to our language and our holdings, every Court of Appeals to address the question has concluded that a private right of action exists to enforce the rights guaranteed both by the text of Title VI and by any regulations validly promulgated pursuant to that Title, and Congress has adopted several statutes that appear to ratify the status quo. Today, in a decision unfounded in our precedent and hostile to decades of settled expectations, a majority of this Court carves out an important exception to the right of private action long recognized under Title VI. In so doing, the Court makes three distinct, albeit interrelated, errors. First, the Court provides a muddled account of both the reasoning and the breadth of our prior decisions endorsing a private right of action under Title VI, thereby obscuring the conflict between those opinions and today's decision. Second, the Court offers a flawed and unconvincing analysis of the relationship between §§601 and 602 of the Civil Rights Act of 1964, ignoring more plausible and persuasive explanations detailed in our prior opinions. Finally, the Court badly misconstrues the theoretical linchpin of our decision in Cannon v. University of Chicago, 441 U. S. 677 (1979), mistaking that decision's careful contextual analysis for judicial fiat.I The majority is undoubtedly correct that this Court has never said in so many words that a private right of action exists to enforce the disparate-impact regulations promulgated under §602. However, the failure of our cases to state this conclusion explicitly does not absolve the Court of the responsibility to canvass our prior opinions for guidance. Reviewing these opinions with the care they deserve, I reach the same conclusion as the Courts of Appeals: This Court has already considered the question presented today and concluded that a private right of action exists.1 When this Court faced an identical case 27 years ago, all the Justices believed that private parties could bring lawsuits under Title VI and its implementing regulations to enjoin the provision of governmental services in a manner that discriminated against non-English speakers. See Lau v. Nichols, 414 U. S. 563 (1974). While five Justices saw no need to go beyond the command of §601, Chief Justice Burger, Justice Stewart, and Justice Blackmun relied specifically and exclusively on the regulations to support the private action, see id., at 569 (Stewart, J., concurring in result) (citing Mourning v. Family Publications Service, Inc.; Thorpe v. Housing Authority of Durham). There is nothing in the majority's opinion in Lau, or in earlier opinions of the Court, that is not fully consistent with the analysis of the concurring Justices or that would have differentiated between private actions to enforce the text of §601 and private actions to enforce the regulations promulgated pursuant to §602. See Guardians, 463 U. S., at 591 (principal opinion of White, J.) (describing this history and noting that, up to that point, no Justice had ever expressed disagreement with Justice Stewart's analysis in Lau).2 Five years later, we more explicitly considered whether a private right of action exists to enforce the guarantees of Title VI and its gender-based twin, Title IX. See Cannon v. University of Chicago, 441 U. S. 677 (1979). In that case, we examined the text of the statutes, analyzed the purpose of the laws, and canvassed the relevant legislative history. Our conclusion was unequivocal: "We have no doubt that Congress intended to create Title IX remedies comparable to those available under Title VI and that it understood Title VI as authorizing an implied private cause of action for victims of the prohibited discrimination." Id., at 703. The majority acknowledges that Cannon is binding precedent with regard to both Title VI and Title IX, ante, at 3-4, but seeks to limit the scope of its holding to cases involving allegations of intentional discrimination. The distinction the majority attempts to impose is wholly foreign to Cannon's text and reasoning. The opinion in Cannon consistently treats the question presented in that case as whether a private right of action exists to enforce "Title IX" (and by extension "Title VI"),3 and does not draw any distinctions between the various types of discrimination outlawed by the operation of those statutes. Though the opinion did not reach out to affirmatively preclude the drawing of every conceivable distinction, it could hardly have been more clear as to the scope of its holding: A private right of action exists for "victims of the prohibited discrimination." 441 U. S., at 703 (emphasis added). Not some of the prohibited discrimination, but all of it.4 Moreover, Cannon was itself a disparate-impact case. In that case, the plaintiff brought suit against two private universities challenging medical school admissions policies that set age limits for applicants. Plaintiff, a 39-year-old woman, alleged that these rules had the effect of discriminating against women because the incidence of interrupted higher education is higher among women than among men. In providing a shorthand description of her claim in the text of the opinion, we ambiguously stated that she had alleged that she was denied admission "because she is a woman," but we appended a lengthy footnote setting forth the details of her disparate-impact claim. Other than the shorthand description of her claim, there is not a word in the text of the opinion even suggesting that she had made the improbable allegation that the University of Chicago and Northwestern University had intentionally discriminated against women. In the context of the entire opinion (including both its analysis and its uncontested description of the facts of the case), that single ambiguous phrase provides no basis for limiting the case's holding to incidents of intentional discrimination. If anything, the fact that the phrase "because she is a woman" encompasses both intentional and disparate- impact claims should have made it clear that the reasoning in the opinion was equally applicable to both types of claims. In any event, the holding of the case certainly applied to the disparate-impact claim that was described in detail in footnote 1 of the opinion, id., at 680. Our fractured decision in Guardians Assn. v. Civil Serv. Comm'n of New York City, 463 U. S. 582 (1983), reinforces the conclusion that this issue is effectively settled. While the various opinions in that case took different views as to the spectrum of relief available to plaintiffs in Title VI cases, a clear majority of the Court expressly stated that private parties may seek injunctive relief against governmental practices that have the effect of discriminating against racial and ethnic minorities. Id., at 594-595, 607 (White, J.); id., at 634 (Marshall, J., dissenting); id., at 638 (Stevens, J., joined by Brennan and Blackmun, JJ., dissenting). As this case involves just such an action, its result ought to follow naturally from Guardians. As I read today's opinion, the majority declines to accord precedential value to Guardians because the five Justices in the majority were arguably divided over the mechanism through which private parties might seek such injunctive relief.5 This argument inspires two responses. First, to the extent that the majority denies relief to the respondents merely because they neglected to mention 42 U. S. C. §1983 in framing their Title VI claim, this case is something of a sport. Litigants who in the future wish to enforce the Title VI regulations against state actors in all likelihood must only reference §1983 to obtain relief; indeed, the plaintiffs in this case (or other similarly situated individuals) presumably retain the option of re-challenging Alabama's English-only policy in a complaint that invokes §1983 even after today's decision. More important, the majority's reading of Guardians is strained even in reference to the broader question whether injunctive relief is available to remedy violations of the Title VI regulations by nongovernmental grantees. As Guardians involved an action against a governmental entity, making §1983 relief available, the Court might have discussed the availability of judicial relief without addressing the scope of the implied private right of action available directly under Title VI. See 463 U. S., at 638 (Stevens, J.) ("Even if it were not settled by now that Title VI authorizes appropriate relief, both prospective and retroactive, to victims of racial discrimination at the hands of recipients of federal funds, the same result would follow in this case because the petitioners have sought relief under 42 U. S. C. §1983" (emphasis deleted)). However, the analysis in each of the relevant opinions did not do so.6 Rather than focusing on considerations specific to §1983, each of these opinions looked instead to our opinion in Cannon, to the intent of the Congress that adopted Title VI and the contemporaneous executive decisionmakers who crafted the disparate-impact regulations, and to general principles of remediation.7 In summary, there is clear precedent of this Court for the proposition that the plaintiffs in this case can seek injunctive relief either through an implied right of action or through §1983. Though the holding in Guardians does not compel the conclusion that a private right of action exists to enforce the Title VI regulations against private parties, the rationales of the relevant opinions strongly imply that result. When that fact is coupled with our holding in Cannon and our unanimous decision in Lau, the answer to the question presented in this case is overdetermined.8 Even absent my continued belief that Congress intended a private right of action to enforce both Title VI and its implementing regulations, I would answer the question presented in the affirmative and affirm the decision of the Court of Appeals as a matter of staredecisis.9II Underlying the majority's dismissive treatment of our prior cases is a flawed understanding of the structure of Title VI and, more particularly, of the relationship between §§601 and 602. To some extent, confusion as to the relationship between the provisions is understandable, as Title VI is a deceptively simple statute. Section 601 of the Act lays out its straightforward commitment: "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U. S. C. §2000d. Section 602 "authorize[s] and direct[s]" all federal departments and agencies empowered to extend federal financial assistance to issue "rules, regulations, or orders of general applicability" in order to "effectuate" §601's antidiscrimination mandate. 42 U. S. C. §2000d-1.10 On the surface, the relationship between §§601 and 602 is unproblematic--§601 states a basic principle, §602 authorizes agencies to develop detailed plans for defining the contours of the principle and ensuring its enforcement. In the context of federal civil rights law, however, nothing is ever so simple. As actions to enforce §601's antidiscrimination principle have worked their way through the courts, we have developed a body of law giving content to §601's broadly worded commitment. E.g., United States v. Fordice, 505 U. S. 717, 732, n. 7 (1992); Guardians Assn. v. Civil Serv. Comm'n of New York City, 463 U. S. 582 (1983); Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978). As the majority emphasizes today, the Judiciary's understanding of what conduct may be remedied in actions brought directly under §601 is, in certain ways, more circumscribed than the conduct prohibited by the regulations. See, e.g., ante, at 5. Given that seeming peculiarity, it is necessary to examine closely the relationship between §§601 and 602, in order to understand the purpose and import of the regulations at issue in this case. For the most part, however, the majority ignores this task, assuming that the judicial decisions interpreting §601 provide an authoritative interpretation of its true meaning and treating the regulations promulgated by the agencies charged with administering the statute as poor step-cousins — either parroting thetext of §601 (in the case of regulations that prohibit intentional discrimination) or forwarding an agenda untetheredto §601's mandate (in the case of disparate-impactregulations). The majority's statutory analysis does violence to both the text and the structure of Title VI. Section 601 does not stand in isolation, but rather as part of an integrated remedial scheme. Section 602 exists for the sole purpose of forwarding the antidiscrimination ideals laid out in §601.11 The majority's persistent belief that the two sections somehow forward different agendas finds no support in the statute. Nor does Title VI anywhere suggest, let alone state, that for the purpose of determining their legal effect, the "rules, regulations, [and] orders of general applicability" adopted by the agencies are to be bifurcated by the judiciary into two categories based on how closely the courts believe the regulations track the text of §601. What makes the Court's analysis even more troubling is that our cases have already adopted a simpler and more sensible model for understanding the relationship between the two sections. For three decades, we have treated §602 as granting the responsible agencies the power to issue broad prophylactic rules aimed at realizing the vision laid out in §601, even if the conduct captured by these rules is at times broader than that which would otherwise be prohibited. In Lau, our first Title VI case, the only three Justices whose understanding of §601 required them to reach the question explicitly endorsed the power of the agencies to adopt broad prophylactic rules to enforce the aims of the statute. As Justice Stewart explained, regulations promulgated pursuant to §602 may "go beyond ... §601" as long as they are "reasonably related" to its antidiscrimination mandate. 469 U. S. 287 (1985), treated this understanding of Title VI's structure as settled law. Writing for the Court, Justice Marshall aptly explained the interpretation of §602's grant of regulatory power that necessarily underlies our prior caselaw: "In essence, then, we [have] held that Title VI [has] delegated to the agencies in the first instance the complex determination of what sorts of disparate impacts upon minorities constituted sufficiently significant social problems, and [are] readily enough remediable, to warrant altering the practices of the federal grantees that ha[ve] produced those impacts." Id., at 293-294. This understanding is firmly rooted in the text of Title VI. As §602 explicitly states, the agencies are authorized to adopt regulations to "effectuate" §601's antidiscrimination mandate. 42 U. S. C. §2000d-1. The plain meaning of the text reveals Congress' intent to provide the relevant agencies with sufficient authority to transform the statute's broad aspiration into social reality. So too does a lengthy, consistent, and impassioned legislative history.12 This legislative design reflects a reasonable — indeed inspired — model for attacking the often-intractable problem of racial and ethnic discrimination. On its own terms, the statute supports an action challenging policies of federal grantees that explicitly or unambiguously violate antidiscrimination norms (such as policies that on their face limit benefits or services to certain races). With regard to more subtle forms of discrimination (such as schemes that limit benefits or services on ostensibly race-neutral grounds but have the predictable and perhaps intended consequence of materially benefiting some races at the expense of others), the statute does not establish a static approach but instead empowers the relevant agencies to evaluate social circumstances to determine whether there is a need for stronger measures.13 Such an approach builds into the law flexibility, an ability to make nuanced assessments of complex social realities, and an admirable willingness to credit the possibility of progress. The "effects" regulations at issue in this case represent the considered judgment of the relevant agencies that discrimination on the basis of race, ethnicity, and national origin by federal contractees are significant social problems that might be remedied, or at least ameliorated, by the application of a broad prophylactic rule. Given the judgment underlying them, the regulations are inspired by, at the service of, and inseparably intertwined with §601's antidiscrimination mandate. Contrary to the majority's suggestion, they "appl[y]" §601's prohibition on discrimination just as surely as the intentional discrimination regulations the majority concedes are privately enforceable. Ante, at 7. To the extent that our prior cases mischaracterize the relationship between §§601 and 602, they err on the side of underestimating, not overestimating, the connection between the two provisions. While our cases have explicitly adopted an understanding of §601's scope that is somewhat narrower than the reach of the regulations,14 they have done so in an unorthodox and somewhat haphazard fashion. Our conclusion that the legislation only encompasses intentional discrimination was never the subject of thorough consideration by a Court focused on that question. In Bakke, five Members of this Court concluded that §601 only prohibits race-based affirmative action programs in situations where the Equal Protection Clause would impose a similar ban. 438 U. S., at 287 (principal opinion of Powell, J.); id., at 325, 328, 352 (Brennan, J., joined by White, Marshall, and Blackmun, JJ., concurring in judgment in part and dissenting in part).15 In Guardians, the majority of the Court held that the analysis of those five Justices in Bakke compelled as a matter of stare decisis the conclusion that §601 does not on its own terms reach disparate impact cases. 463 U. S., at 610-611 (Powell, J., concurring in judgment); id., at 612 (O'Connor, J., concurring in judgment); id., at 642 (Stevens, J., joined by Brennan and Blackmun, JJ.). However, the opinions adopting that conclusion did not engage in any independent analysis of the reach of §601. Indeed, the only writing on this subject came from two of the five Members of the Bakke "majority," each of whom wrote separately to reject the remaining Justices' understanding of their opinions in Bakke and to insist that §601 does in fact reach some instances of unintentional discrimination. 463 U. S., at 589-590 (White, J.); id., at 623-624 (Marshall, J., dissenting).16 The Court's occasional rote invocation of this Guardians majority in later cases ought not obscure the fact that the question whether §601 applies to disparate-impact claims has never been analyzed by this Court on the merits.17 In addition, these Title VI cases seemingly ignore the well-established principle of administrative law that is now most often described as the "Chevron doctrine." See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837 (1984). In most other contexts, when the agencies charged with administering a broadly-worded statute offer regulations interpreting that statute or giving concrete guidance as to its implementation, we treat their interpretation of the statute's breadth as controlling unless it presents an unreasonable construction of the statutory text. See ibid. While there may be some dispute as to the boundaries of Chevron deference, see, e.g., Christensen v. Harris County, 529 U. S. 576 (2000), it is paradigmatically appropriate when Congress has clearly delegated agencies the power to issue regulations with the force of law and established formal procedures for the promulgation of such regulations.18 If we were writing on a blank slate, we might very well conclude that Chevron and similar cases decided both before and after Guardians provide the proper framework for understanding the structure of Title VI. Under such a reading there would be no incongruity between §§601 and 602. Instead, we would read §602 as granting the federal agencies responsible for distributing federal funds the authority to issue regulations interpreting §601 on the assumption that their construction will — if reasonable — be incorporated into our understanding of §601's meaning.19 To resolve this case, however, it is unnecessary to answer the question whether our cases interpreting the reach of §601 should be reinterpreted in light of Chevron. If one understands the relationship between §§601 and 602 through the prism of either Chevron or our prior Title VI cases, the question presented all but answers itself. If the regulations promulgated pursuant to §602 are either an authoritative construction of §601's meaning or prophylactic rules necessary to actualize the goals enunciated in §601, then it makes no sense to differentiate between private actions to enforce §601 and private actions to enforce §602. There is but one private action to enforce Title VI, and we already know that such an action exists.20 See Cannon, 441 U. S., at 703.III The majority couples its flawed analysis of the structure of Title VI with an uncharitable understanding of the substance of the divide between those on this Court who are reluctant to interpret statutes to allow for private rights of action and those who are willing to do so if the claim of right survives a rigorous application of the criteria set forth in Cort v. Ash, 422 U. S. 66 (1975). As the majority narrates our implied right of action jurisprudence, ante, at 10-11, the Court's shift to a more skeptical approach represents the rejection of a common-law judicial activism in favor of a principled recognition of the limited role of a contemporary "federal tribunal." Ante, at 10. According to its analysis, the recognition of an implied right of action when the text and structure of the statute do not absolutely compel such a conclusion is an act of judicial self-indulgence. As much as we would like to help those disadvantaged by discrimination, we must resist the temptation to pour ourselves "one last drink." Ante, at 11. To do otherwise would be to "ventur[e] beyond Congress's intent." Ibid. Overwrought imagery aside, it is the majority's approach that blinds itself to congressional intent. While it remains true that, if Congress intends a private right of action to support statutory rights, "the far better course is for it to specify as much when it creates those rights," Cannon, 441 U. S., at 717, its failure to do so does not absolve us of the responsibility to endeavor to discern its intent. In a series of cases since Cort v. Ash, we have laid out rules and developed strategies for this task. The very existence of these rules and strategies assumes that we will sometimes find manifestations of an implicit intent to create such a right. Our decision in Cannon represents one such occasion. As the Cannon opinion iterated and reiterated, the question whether the plaintiff had a right of action that could be asserted in federal court was a "question of statutory construction," 441 U. S, at 688, see also id., at 717 (Rehnquist, J., concurring), not a question of policy for the Court to decide. Applying the Cort v. Ash factors, we examined the nature of the rights at issue, the text and structure of the statute, and the relevant legislative history.21 Our conclusion was that Congress unmistakably intended a private right of action to enforce both Title IX and Title VI. Our reasoning — and, as I have demonstrated, our holding — was equally applicable to intentional discrimination and disparate impact claims.22 Underlying today's opinion is the conviction that Cannon must be cabined because it exemplifies an "expansive rights-creating approach." Franklin v. Gwinnett County Public Schools, 503 U. S. 60, 77 (1992) (Scalia, J. concurring in judgment). But, as I have taken pains to explain, it was Congress, not the Court, that created the cause of action, and it was the Congress that later ratified the Cannon holding in 1986 and again in 1988. See 503 U. S., at 72-73. In order to impose its own preferences as to the availability of judicial remedies, the Court today adopts a methodology that blinds itself to important evidence of congressional intent. It is one thing for the Court to ignore the import of our holding in Cannon, as the breadth of that precedent is a matter upon which reasonable jurists may differ. It is entirely another thing for the majority to ignore the reasoning of that opinion and the evidence contained therein, as those arguments and that evidence speak directly to the question at issue today. As I stated above, see n. 21, supra, Cannon carefully explained that both Title VI and Title IX were intended to benefit a particular class of individuals, that the purposes of the statutes would be furthered rather than frustrated by the implication of a private right of action, and that the legislative histories of the statutes support the conclusion that Congress intended such a right. See also Part IV, infra. Those conclusions and the evidence supporting them continue to have force today. Similarly, if the majority is genuinely committed to deciphering congressional intent, its unwillingness to even consider evidence as to the context in which Congress legislated is perplexing. Congress does not legislate in a vacuum. As the respondent and the Government suggest, and as we have held several times, the objective manifestations of congressional intent to create a private right of action must be measured in light of the enacting Congress' expectations as to how the judiciary might evaluate the question. See Thompson v. Thompson, 484 U. S. 174 (1988); Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353, 378-379 (1982); Cannon, 441 U. S., at 698-699.23 At the time Congress was considering Title VI, it was normal practice for the courts to infer that Congress intended a private right of action whenever it passed a statute designed to protect a particular class that did not contain enforcement mechanisms which would be thwarted by a private remedy. See Merrill Lynch, 377 U. S. 426, 433 (1964). Assuming, as we must, that Congress was fully informed as to the state of the law, the contemporary context presents important evidence asto Congress' intent — evidence the majority declines to consider. Ultimately, respect for Congress' prerogatives is measured in deeds, not words. Today, the Court coins a new rule, holding that a private cause of action to enforce a statute does not encompass a substantive regulation issued to effectuate that statute unless the regulation does nothing more than "authoritatively construe the statute itself." Ante, at 7.24 This rule might be proper if we were the kind of "common-law court" the majority decries, ante, at 10, inventing private rights of action never intended by Congress. For if we are not construing a statute, we certainly may refuse to create a remedy for violations of federal regulations. But if we are faithful to the commitment to discerning congressional intent that all Members of this Court profess, the distinction is untenable. There is simply no reason to assume that Congress contemplated, desired, or adopted a distinction between regulations that merely parrot statutory text and broader regulations that are authorized by statutory text.25 IV Beyond its flawed structural analysis of Title VI and an evident antipathy toward implied rights of action, the majority offers little affirmative support for its conclusion that Congress did not intend to create a private remedy for violations of the Title VI regulations.26 The Court offers essentially two reasons for its position. First, it attaches significance to the fact that the "rights-creating" language in §601 that defines the classes protected by the statute is not repeated in §602. Ante, at 13-14. But, of course, there was no reason to put that language in §602 because it is perfectly obvious that the regulations authorized by §602 must be designed to protect precisely the same people protected by §601. Moreover, it is self-evident that, linguistic niceties notwithstanding, any statutory provision whose stated purpose is to "effectuate" the eradication of racial and ethnic discrimination has as its "focus" those individuals who, absent such legislation, would be subject to discrimination. Second, the Court repeats the argument advanced and rejected in Cannon that the express provision of a fund cut-off remedy "suggests that Congress intended to preclude others." Ante, at 14. In Cannon, 441 U. S., at 704-708, we carefully explained why the presence of an explicit mechanism to achieve one of the statute's objectives (ensuring that federal funds are not used "to support discriminatory practices") does not preclude a conclusion that a private right of action was intended to achieve the statute's other principal objective ("to provide individual citizens effective protection against those practices"). In support of our analysis, we offered policy arguments, cited evidence from the legislative history, and noted the active support of the relevant agencies. Ibid. In today's decision, the Court does not grapple with — indeed, barely acknowledges — our rejection of this argument in Cannon. Like much else in its opinion, the present majority's unwillingness to explain its refusal to find the reasoning in Cannon persuasive suggests that today's decision is the unconscious product of the majority's profound distaste for implied causes of action rather than an attempt to discern the intent of the Congress that enacted Title VI of the Civil Rights Act of 1964. Its colorful disclaimer of any interest in "venturing beyond Congress's intent," ante, at 11, has a hollow ring.V The question the Court answers today was only an open question in the most technical sense. Given the prevailing consensus in the Courts of Appeals, the Court should have declined to take this case. Having granted certiorari, the Court should have answered the question differently by simply according respect to our prior decisions. But most importantly, even if it were to ignore all of our post-1964 writing, the Court should have answered the question differently on the merits. I respectfully dissent.FOOTNOTESFootnote 1 Since the parties do not dispute this point, it is puzzling to see Justice Stevens go out of his way to disparage the decisions in Regents of Univ. of Cal. v. Bakke, 438 U. S. 265 (1978), and Guardians Assn. v. Civil Serv. Comm'n of New York City, 463 U. S. 582 (1983), as "somewhat haphazard," post, at 16, particularly since he had already accorded stare decisis effect to the former 18 years ago, see Guardians, 467 U. S. 837 (1984), see post, at 17-18, explain his aboutface, since he expressly reaffirms, see post, at 17-18, n. 18, the settled principle that decisions of this Court declaring the meaning of statutes prior to Chevron need not be reconsidered after Chevron in light of agency regulations that were already in force when our decisions were issued, Lechmere, Inc. v. NLRB, 502 U. S. 527, 536-537 (1992); Maislin Industries, U. S., Inc. v. Primary Steel, Inc., 497 U. S. 116, 131 (1990); see also Sullivan v. Everhart, 494 U. S. 83, 103-104, n. 6 (1990) (Stevens, J., dissenting) ("It is, of course, of no importance that [an opinion] predates Chevron ... . As we made clear in Chevron, the interpretive maxims summarized therein were `well-settled principles' ").Footnote 2 Although the dissent acknowledges that "the breadth of [Cannon's] precedent is a matter upon which reasonable jurists may differ," post, at 21, it disagrees with our reading of Cannon's holding because it thinks the distinction we draw between disparate-impact and intentional discrimination was "wholly foreign" to that opinion, see post, at 5. Cannon, however, was decided less than one year after the Court in Bakke had drawn precisely that distinction with respect to Title VI, see supra, at 4, and it is absurd to think that Cannon meant, without discussion, to ban under Title IX the very disparate-impact discrimination that Bakke said Title VI permitted. The only discussion in Cannon of Title IX's scope is found in Justice Powell's dissenting opinion, which simply assumed that the conclusion that Title IX would be limited to intentional discrimination was "forgone in light of our holding" in Bakke. Cannon v. University of Chicago, 441 U. S. 677, 748, n. 19 (1979). The dissent's additional claim that Cannon provided a private right of action for "all the discrimination prohibited by the regulatory scheme contained in Title IX," post, at 5, n. 4 (emphasis added), simply begs the question at the heart of this case, which is whether a right of action to enforce disparate-impact regulations must be independently identified, see infra, at 7-10.Footnote 3 We of course accept the statement by the author of the dissent that he "thought" at the time of Guardians that disparate-impact regulations could be enforced "in an implied action against private parties," post, at 9, n. 6. But we have the better interpretation of what our colleague wrote in Guardians. In the closing section of his opinion, Justice Stevens concluded that because respondents in that case had "violated the petitioners' rights under [the] regulations ... [t]he petitioners were therefore entitled to the compensation they sought under 42 U. S. C. §1983 and were awarded by the District Court." 463 U. S., at 645. The passage omits any mention of a direct private right of action to enforce the regulations, and the footnote we have quoted in text — which appears immediately after this concluding sentence, see id., at 645, n. 18 — makes clear that the omission was not accidental.Footnote 4 Ultimately, the dissent agrees that "the holding in Guardians does not compel the conclusion that a private right of action exists to enforce the Title VI regulations against private parties ... ." Post, at 9.Footnote 5 It is true, as the dissent points out, see post, at 3-4, that three Justices who concurred in the result in Lau relied on regulations promulgated under §602 to support their position, see Lau v. Nichols, 414 U. S. 563, 570-571 (1974) (Stewart, J., concurring in result). But the five Justices who made up the majority did not, and their holding is not made coextensive with the concurrence because their opinion does not expressly preclude (is "consistent with," see post, at 4) the concurrence's approach. The Court would be in an odd predicament if a concurring minority of the Justices could force the majority to address a point they found it unnecessary (and did not wish) to address, under compulsion of Justice Stevens' new principle that silence implies agreement.Footnote 6 For this reason, the dissent's extended discussion of the scope of agencies' regulatory authority under §602, see post, at 13-15, is beside the point. We cannot help observing, however, how strange it is to say that disparate-impact regulations are "inspired by, at the service of, and inseparably intertwined with" §601, post, at 15, when §601 permits the very behavior that the regulations forbid. See Guardians, 463 U. S., at 613 (O'Connor, J., concurring in judgment) ("If, as five members of the Court concluded in Bakke, the purpose of Title VI is to proscribe only purposeful discrimination ... , regulations that would proscribe conduct by the recipient having only a discriminatory effect ... do not simply `further' the purpose of Title VI; they go well beyond that purpose").Footnote 7 Although the dissent claims that we "adop[t] a methodology that blinds itself to important evidence of congressional intent," see post, at 21, our methodology is not novel, but well established in earlier decisions (including one authored by Justice Stevens, see Northwest Airlines, Inc. v. Transport Workers, 451 U. S. 77, 94, n. 31 (1981)), which explain that the interpretive inquiry begins with the text and structure of the statute, see id., at 91, and ends once it has become clear that Congress did not provide a cause of action.Footnote 8 The dissent complains that we "offe[r] little affirmative support" for this conclusion. Post, at 24. But as Justice Stevens has previously recognized in an opinion for the Court, "affirmative" evidence of congressional intent must be provided for an implied remedy, not against it, for without such intent "the essential predicate for implication of a private remedy simply does not exist," Northwest Airlines, Inc., 451 U. S., at 94. The dissent's assertion that "petitioners have marshaled substantial affirmative evidence that a private right of action exists to enforce Title VI and the regulations validly promulgated thereunder," post, at 24-25, n. 26 (second emphasis added), once again begs the question whether authorization of a private right of action to enforce a statute constitutes authorization of a private right of action to enforce regulations that go beyond what the statute itself requires.FOOTNOTESFootnote 1 Just about every Court of Appeals has either explicitly or implicitly held that a private right of action exists to enforce all of the regulations issued pursuant to Title VI, including the disparate-impact regulations. For decisions holding so most explicitly, see, e.g. Powell v. Ridge, 189 F. 3d 387, 400 (CA3 1999); Chester Residents Concerned for Quality Living v. Seif, 132 F. 3d 925, 936-937 (CA3 1997), summarily dism'd; David K. v. Lane, 839 F. 2d 1265, 1274 (CA7 1988); Sandoval v. Hogan, 197 F. 3d 484 (CA11 1999) (case below). See also Latinos Unidos De Chelsea v. Secretary of Housing and Urban Development, 799 F. 2d 774, 785, n. 20 (CA1 1986); New York Urban League, Inc. v. New York, 71 F. 3d 1031, 1036 (CA2 1995); Ferguson v. Charleston, 186 F. 3d 469 (CA4 1999), rev'd on other grounds, 532 U. S. __ (2001); Castaneda v. Pickard, 781 F. 2d 456, 465, n. 11 (CA5 1986); Buchanan v. Bolivar, 99 F. 3d 1352, 1356, n. 5 (CA6 1996); Larry P.. v. Riles, 793 F. 2d 969, 981-982 (CA9 1986); Villanueva v. Carere, 85 F. 3d 481, 486 (CA10 1996). No Court of Appeals has ever reached a contrary conclusion. But cf. New York City Environmental Justice Alliance v. Giuliani, 214 F. 3d 65, 72 (CA2 2000) (suggesting that the question may be open). Footnote 2 Indeed, it would have been remarkable if the majority had offered any disagreement with the concurring analysis as the concurring Justices grounded their argument in well-established principles for determining the availability of remedies under regulations, principles that all but one Member of the Court had endorsed the previous Term. See Mourning v. Family Publications Service, Inc.; id., at 378 (Douglas, J., joined by Stewart and Rehnquist, JJ., concurring in part and dissenting in part) (agreeing with the majority's analysis of the regulation in question); but see id., at 383, n. 1 (Powell, J., dissenting) (reserving analysis of the regulation's validity). The other decision the concurring Justices cited for this well-established principle was unanimous and only five years old. See Thorpe v. Housing Authority of Durham. Footnote 3 See Cannon, 441 U. S., at 687, 699, 702, n. 33, 703, 706, n. 40, 709.Footnote 4 The majority is undoubtedly correct that Cannon was not a case about the substance of Title IX but rather about the remedies available under that statute. Therefore, Cannon can not stand as a precedent for the proposition either that Title IX and its implementing regulations reach intentional discrimination or that they do not do so. What Cannon did hold is that all the discrimination prohibited by the regulatory scheme contained in Title IX may be the subject of a private lawsuit. As the Court today concedes that Cannon's holding applies to Title VI claims as well as Title IX claims, ante, at 3-4, and assumes that the regulations promulgated pursuant to §602 are validly promulgated antidiscrimination measures, ante, at 5, it is clear that today's opinion is in substantial tension with Cannon's reasoning and holding.Footnote 5 None of the relevant opinions was absolutely clear as to whether it envisioned such suits as being brought directly under the statute or under 42 U. S. C. §1983. However, a close reading of the opinions leaves little doubt that all of the Justices making up the Guardians majority contemplated the availability of private actions brought directly under the statute. Justice White fairly explicitly rested his conclusion on Cannon's holding that an implied right of action exists to enforce the terms of both Title VI and Title IX. Guardians, 463 U. S., at 594-595. Given that fact and the added consideration that his opinion appears to have equally contemplated suits against private and public parties, it is clear that he envisioned the availability of injunctive relief directly under the statute. Justice Marshall's opinion never mentions §1983 and refers simply to "Title VI actions." Id., at 625. In addition, his opinion can only be read as contemplating suits on equal terms against both public and private grantees, thus also suggesting that he assumed such suits could be brought directly under the statute. That leaves my opinion. Like Justice White, I made it quite clear that I believed the right to sue to enforce the disparate-impact regulations followed directly from Cannon and, hence, was built directly into the statute. 463 U. S., at 635-636, and n. 1. However, I did also note that, in the alternative, relief would be available in that particular case under §1983. Footnote 6 The Court today cites one sentence in my final footnote in Guardians that it suggests is to the contrary. Ante, at 7 (citing 463 U. S., at 645, n. 18). However, the Court misreads that sentence. In his opinion in Guardians, Justice Powell had stated that he would affirm the judgment for the reasons stated in his dissent in Cannon, see 463 U. S., at 609-610 (opinion concurring in judgment), and that he would also hold that private actions asserting violations of Title VI could not be brought under §1983, id., at 610, and n. 3. One reason that he advanced in support of these conclusions was his view that the standard of proof in a §1983 action against public officials would differ from the standard in an action against private defendants. Id., at 608, n. 1. In a footnote at the end of my opinion, id., at 645, n. 18, I responded (perhaps inartfully) to Justice Powell. I noted that the fact that §1983 authorizes a lawsuit against the police department based on its violation of the governing administrative regulations did not mean, as Justice Powell had suggested, "that a similar action would be unavailable against a similarly situated private party." Ibid. I added the sentence that the Court quotes today, ante at 7, not to reserve a question, but rather to explain that the record did not support Justice Powell's hypothesis regarding the standard of proof. I thought then, as I do now, that a violation of regulations adopted pursuant to Title VI may be established by proof of discriminatory impact in a §1983 action against state actors and also in an implied action against private parties. See n. 5, supra. Contrary to the Court's partial quotation of my opinion, see ante, at 7, n. 3, what I wrote amply reflected what I thought. See 463 U. S., at 635 ("a private action against recipients of federal funds"), id., at 636 ("implied caus[e] of action"); id., at 638 ("Title VI authorizes appropriate relief").Justice Powell was quite correct in noting that it would be anomalous to assume that Congress would have intended to make it easier to recover from public officials than from private parties. That anomaly, however, does not seem to trouble the majority today.Footnote 7 See n. 5, supra.Footnote 8 See also Bazemore v. Friday, 478 U. S. 385 (1986) (per curiam) (adjudicating on the merits a claim brought under Title VI regulations).Footnote 9 The settled expectations the Court undercuts today derive not only from judicial decisions, but also from the consistent statements and actions of Congress. Congress' actions over the last two decades reflect a clear understanding of the existence of a private right action to enforce Title VI and its implementing regulations. In addition to numerous other small-scale amendments, Congress has twice adopted legislation expanding the reach of Title VI. See Civil Rights Restoration Act of 1987, §6, 102 Stat. 31 (codified at 42 U. S. C. §2000d-4a) (expanding definition of "program"); Rehabilitation Act Amendments of 1986, §1003, 100 Stat. 1845 (codified at 42 U. S. C. §2000d-7) (explicitly abrogating States' Eleventh Amendment immunity in suits under Title VI).Both of these bills were adopted after this Court's decision in Lau, Cannon, and Guardians, and after most of the Courts of Appeals had affirmatively acknowledged an implied private right of action to enforce the disparate impact regulations. Their legislative histories explicitly reflect the fact that both proponents and opponents of the bills assumed that the full breadth of Title VI (including the disparate impact regulations promulgated pursuant to it) would be enforceable in private actions. See, e.g., Civil Rights Act of 1984: Hearings on S. 2658 before the Subcommittee. on the Constitution of the Senate Committee on the Judiciary, 98th Cong., 2d Sess., 530 (1984) (memo from the Office of Management and Budget objecting to the Civil Rights Restoration Act of 1987 because it would bring more entities within the scope of Title VI thereby subjecting them to "private lawsuits" to enforce the disparate impact regulations); id. at 532 (same memo warning of a proliferation of "discriminatory effects" suits by "members of the bar" acting as "private Attorneys General"); 134 Cong. Rec. 4257 (1988) (statement of Sen. Hatch) (arguing that the disparate impact regulations go too far and noting that that is a particular problem because "[o]f course, advocacy groups will be able to bring private lawsuits making the same allegations before federal judges"); see also Brief for United States 24, n. 16 (collecting testimony of academics advising Congress that private lawsuits were available to enforce the disparate impact regulations under existing precedent).Thus, this case goes well beyond the normal situation in which "after a comprehensive reeaxmination and significant amendment" Congress "left intact the statutory provisions under which the federal courts had implied a private cause of action." Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U. S. 353, 381-382 (1982). Here, there is no need to rest on presumptions of knowledge and ratification, because the direct evidence of Congress' understanding is plentiful.Footnote 10 The remainder of Title VI provides for judicial and administrative review of agency actions taken pursuant to the statute, §2000d-2; imposes certain limitations not at issue in this case, §§2000d-3 to 2000d-4; and defines some of the terms found in the other provisions of the statute, §200d-4a. Footnote 11 See 42 U. S. C. §2000d-1 (§602) ("Each Federal department and agency which is empowered to extend Federal financial assistance is authorized and directed to effectuate the provisions of [§601] by issuing rules, regulations, or orders of general applicability"). Footnote 12 See, e.g., 110 Cong. Rec. 6543 (1964) (statement of Sen. Humphrey) ("Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination"); id., at 1520 (statement of Rep. Celler) (describing §602 as requiring federal agencies to "reexamine" their programs "to make sure that adequate action has been taken to preclude ... discrimination") .Footnote 13 It is important, in this context, to note that regulations prohibiting policies that have a disparate impact are not necessarily aimed only — or even primarily — at unintentional discrimination. Many policies whose very intent is to discriminate are framed in a race-neutralmanner. It is often difficult to obtain direct evidence of this motivating animus. Therefore, an agency decision to adopt disparate-impact regulations may very well reflect a determination by that agency that substantial intentional discrimination pervades the industry it is charged with regulating but that such discrimination is difficult to prove directly. As I have stated before: "Frequently the most probative evidence of intent will be objective evidence of what actually happened rather than evidence describing the subjective state of mind of the actor." Washington v. Davis, 426 U. S. 229, 253 (1976) (concurring opinion). On this reading, Title VI simply accords the agencies the power to decide whether or not to credit such evidence. Footnote 14 See, e.g., Alexander v. Choate (stating, in dicta, "Title VI itself directly reach[es] only instances of intentional discrimination"); Guardians Assn. v. Civil Serv. Comm'n of New York City, 463 U. S. 582 (1983) (in separate opinions, seven Justices indicate that §601 on its face bars only intentional discrimination). Footnote 15 Of course, those five Justices divided over the application of the Equal Protection Clause — and by extension Title VI — to affirmative action cases. Therefore, it is somewhat strange to treat the opinions of those five Justices in Bakke as constituting a majority for any particular substantive interpretation of Title VI. Footnote 16 The fact that Justices Marshall and White both felt that the opinion they coauthored in Bakke did not resolve the question whether Title VI on its face reaches disparate-impact claims belies the majority's assertion that Bakke "had drawn precisely that distinction," ante, at 6, n. 2, much less its implication that it would have been "absurd" to think otherwise, ibid.Footnote 17 In this context, it is worth noting that in a variety of other settings the Court has interpreted similarly ambiguous civil rights provisions to prohibit some policies based on their disparate impact on a protected group. See, e.g., Griggs v. Duke Power Co. (Title VII); City of Rome v. United States (§5 of the Voting Rights Act); cf. Alexander v. Choate, 469 U. S., at 292-296 (explaining why the Rehabilitation Act of 1973, which was modeled after §601, might be considered to reach some instances of disparate impact and then assuming that it does for purposes of deciding the case).Footnote 18 In relying on the Chevron doctrine, I do not mean to suggest that our decision in Chevron stated a new rule that requires the wholesale reconsideration of our statutory interpretation precedents. Instead, I continue to adhere to my position in Sullivan v. Everhart, 494 U. S. 83, 103-104, n. 6 (1990) (stating that Chevron merely summarized "well-settled principles"). In suggesting that, with regard to Title VI, we might reconsider whether our prior decisions gave sufficient deference to the agencies' interpretation of the statute, I do no more than question whether in this particular instance we paid sufficient consideration to those "well-settled principles." Footnote 19 The legislative history strongly indicates that the Congress that adopted Title VI and the administration that proposed the statute intended that the agencies and departments would utilize the authority granted under §602 to shape the substantive contours of §601. For example, during the hearings that preceded the passage of the statute, Attorney General Kennedy agreed that the administrators of the various agencies would have the power to define "what constitutes discrimination" under Title VI and "what acts or omissions are to be forbidden." Civil Rights — The Presidents Program, 1963: Hearings before the Senate Committee on the Judiciary, 88th Cong., 1st Sess., 399-400 (1963); see also Civil Rights: Hearings before the House Committee on the Judiciary, 88th Cong., 1st Sess., pt. 4, p. 2740 (1963) (remarks of Attorney General Kennedy) (only after the agencies "establish the rules" will recipients "understand what they can and cannot do"). It was, in fact, concern for this broad delegation that inspired Congress to amend the pending bill to ensure that all regulations issued pursuant to Title VI would have to be approved by the President. See 42 U. S. C. §2000d-1 (laying out the requirement); 110 Cong. Rec. 2499 (1964) (remarks of Rep. Lindsay introducing the amendment). For further discussion of this legislative history, see Guardians, 463 U. S., at 615-624 (Marshall, J., dissenting); Abernathy, Title VI and the Constitution: A Regulatory Model for Defining "Discrimination," 70 Geo. L. J. 1 (1981). Footnote 20 The majority twice suggests that I "be[g] the question" whether a private right of action to enforce Title VI necessarily encompasses a right of action to enforce the regulations validly promulgated pursuant to the statute. Ante, at 6, n. 2, 17, n. 8. As the above analysis demonstrates, I do no such thing. On the contrary, I demonstrate that the disparate-impact regulations promulgated pursuant to §602 are — and have always been considered to be — an important part of an integrated remedial scheme intended to promote the statute's antidiscrimination goals. Given that fact, there is simply no logical or legal justification for differentiating between actions to enforce the regulations and actions to enforce the statutory text. Furthermore, as my integrated approach reflects the longstanding practice of this Court, see n. 2, supra, it is the majority's largely unexplained assumption that a private right of action to enforce the disparate-impact regulations must be independently established that "begs the question."Footnote 21 The text of the statute contained "an unmistakable focus on the benefited class," 441 U. S., at 691; its legislative history "rather plainly indicates that Congress intended to create such a remedy," id., at 694; the legislators' repeated references to private enforcement of Title VI reflected "their intent with respect to Title IX," id., at 696-698; and the absence of legislative action to change the prevailing view with respect to Title VI left us with "no doubt that Congress intended to create Title IX remedies comparable to those available under Title VI and that it understood Title VI as authorizing an implied private cause of action for victims of prohibited discrimination," id., at 703.Footnote 22 We should not overlook the fact that Cannon was decided after the Bakke majority had concluded that the coverage of Title VI was co-extensive with the coverage of the Equal Protection Clause. Footnote 23 Like any other type of evidence, contextual evidence may be trumped by other more persuasive evidence. Thus, the fact that, when evaluating older statutes, we have at times reached the conclusion that Congress did not imply a private right of action does not have the significance the majority suggests. Ante, at 13-14. Footnote 24 Only one of this Court's myriad private right of action cases even hints at such a rule. See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 173 (1994). Even that decision, however, does not fully support the majority's position for two important reasons. First, it is not at all clear that the majority opinion in that case simply held that the regulation in question could not be enforced by private action; the opinion also permits the reading, assumed by the dissent, that the majority was in effect invalidating the regulation in question. Id., at 200 (Stevens, J., dissenting) ("The majority leaves little doubt that the Exchange Act does not even permit the SEC to pursue aiders and abettors in civil enforcement actions under §10(b) and Rule 10b-5"). Second, that case involved a right of action that the Court has forthrightly acknowledged was judicially created in exactly the way the majority now condemns. See, e.g., Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 737 (1975) (describing private actions under Rule 10b-5 as "a judicial oak which has grown from little more than a legislative acorn"). As the action in question was in effect a common-law right, the Court was more within its rights to limit that remedy than it would be in a case, such as this one, where we have held that Congress clearly intended such a right.Footnote 25 See Guardians, 463 U. S., at 636 (Stevens, J., dissenting) ("It is one thing to conclude, as the Court did in Cannon, that the 1964 Congress, legislating when implied causes of action were the rule rather than the exception, reasonably assumed that the intended beneficiaries of Title VI would be able to vindicate their rights in court. It is quite another thing to believe that the 1964 Congress substantially qualified that assumption but thought it unnecessary to tell the Judiciary about the qualification").Footnote 26 The majority suggests that its failure to offer such support is irrelevant, because the burden is on the party seeking to establish the existence of an implied right of action. Ante, at 17, n. 8. That response confuses apples and oranges. Undoubtedly, anyone seeking to bring a lawsuit has the burden of establishing that private individuals have the right to bring such a suit. However, once the courts have examined the statutory scheme under which the individual seeks to bring a suit and determined that a private right of action does exist, judges who seek to impose heretofore unrecognized limits on that right have a responsibility to offer reasoned arguments drawn from the text, structure, or history of that statute in order to justify such limitations. Moreover, in this case, the petitioners have marshaled substantial affirmative evidence that a private right of action exists to enforce Title VI and the regulations validly promulgated thereunder. See supra, at 21-22. It strikes me that it aids rather than hinders their case that this evidence is already summarized in an opinion of this Court. See Cannon, 441 U. S., at 691-703.

Held: Title 25 U.S.C. 357, which provides that lands allotted in severalty to Indians may be "condemned" for any public purpose under the laws of the State or Territory where located, does not authorize a state or local government to "condemn" allotted Indian trust lands by physical occupation. Under the "plain meaning" canon of statutory construction, the term "condemned" in 357 refers to a formal condemnation proceeding instituted by the condemning authority for the purpose of acquiring title to private property and paying just compensation for it, not to an "inverse condemnation" action by a landowner to recover compensation for a taking by physical intrusion. Thus, the Court of Appeals erred in holding that 357 permitted acquisition of allotted lands by inverse condemnation by certain cities in Alaska, even though Alaska law might allow the exercise of the power of eminent domain through inverse condemnation. Pp. 254-259. 590 F.2d 765, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, MARSHALL, POWELL, and STEVENS, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which WHITE, J., joined, post, p. 259.Harlon L. Dalton argued the cause for the United States. With him on the brief were Solicitor General McCree, Assistant Attorney General Moorman, Dirk Snel, and Carl Strass. Robert S. Pelcyger argued the cause for Bertha Mae Tabbytite, respondent under this Court's Rule 21 (4), in support of the United States. With him on the briefs was Vincent Vitale.Richard Arthur Weinig argued the cause and filed a brief for respondents. MR. JUSTICE REHNQUIST delivered the opinion of the Court.We granted the petition for certiorari of the United States in this case, , to decide the question "[w]hether 25 U.S.C. [] 357 authorizes a state or local government to `condemn' allotted Indian trust lands by physical occupation." Pet. for Cert. 2. That statute, in turn, provides in pertinent part:"[L]ands allotted in severalty to Indians may be condemned for any public purpose under the laws of the State or Territory where located in the same manner as land owned in fee may be condemned, and the money awarded as damages shall be paid to the allottee." 31 Stat. 1084. We think this is a case in which the meaning of a statute may be determined by the admittedly old-fashioned but nonetheless still entirely appropriate "plain meaning" canon of statutory construction. We further believe that the word "condemned," at least as it was commonly used in 1901, when 25 U.S.C. 357 was enacted, had reference to a judicial proceeding instituted for the purpose of acquiring title to private property and paying just compensation for it.Both the factual and legal background of the case are complicated, but these complications lose their significance under our interpretation of 357. For it is conceded that neither the city of Glen Alps nor the city of Anchorage, both Alaska municipal corporations, ever brought an action to condemn the lands here in question in federal court as required by Minnesota v. United States, . And since we hold that only in such a formal judicial proceeding may lands such as this be acquired, the complex factual and legal history of the dispute between the Government, respondents Glen M. Clarke et al., and respondent Bertha Mae Tabbytite need not be recited in detail.1 The Court of Appeals for the Ninth Circuit held that 357 permits acquisition of allotted lands by what has come to be known as "inverse condemnation." 590 F.2d 765 (1979). In so holding, the court reasoned that "once the taking has been accomplished by the state it serves little purpose to interpret the statute to refuse to permit an inverse condemnation suit to be maintained on the groun[d] that the state should have filed an eminent domain action prior to the taking." Id., at 767. We disagree with the Court of Appeals and accordingly reverse the judgment.There are important legal and practical differences between an inverse condemnation suit and a condemnation proceeding. Although a landowner's action to recover just compensation for a taking by physical intrusion has come to be referred to as "inverse" or "reverse" condemnation, the simple terms "condemn" and "condemnation" are not commonly used to describe such an action. Rather, a "condemnation" proceeding is commonly understood to be an action brought by a condemning authority such as the Government in the exercise of its power of eminent domain. In United States v. Lynah, , for example, which held that the Federal Government's permanent flooding of the plaintiff's land constituted a compensable "taking" under the Fifth Amendment, this Court consistently made separate reference to condemnation proceedings and to the landowner's cause of action to recover damages for the taking. Id., at 462, 467, 468.2 More recent decisions of this Court reaffirm this well-established distinction between condemnation actions and physical takings by governmental bodies that may entitle a landowner to sue for compensation. Thus, in Ivanhoe Irrigation District v. McCracken, , when discussing the acquisition by the Government of property rights necessary to carry out a reclamation project, this Court stated that such rights must be acquired by "paying just compensation therefor, either through condemnation or, if already taken, through action of the owners in the courts." And in United States v. Dickinson, , this Court referred to the Government's choice "not to condemn land but to bring about a taking by a continuous process of physical events." See also id., at 747-748; Dugan v. Rank, .3 The phrase "inverse condemnation" appears to be one that was coined simply as a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted. As defined by one land use planning expert, "[i]nverse condemnation is `a cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency.'" D. Hagman, Urban Planning and Land Development Control Law 328 (1971) (emphasis added). A landowner is entitled to bring such an action as a result of "the self-executing character of the constitutional provision with respect to compensation... ." See 6 P. Nichols, Eminent Domain 25.41 (3d rev. ed. 1972). A condemnation proceeding, by contrast, typically involves an action by the condemnor to effect a taking and acquire title. The phrase "inverse condemnation," as a common understanding of that phrase would suggest, simply describes an action that is the "inverse" or "reverse" of a condemnation proceeding.There are also important practical differences between condemnation proceedings and actions by landowners to recover compensation for "inverse condemnation." Condemnation proceedings, depending on the applicable statute, require various affirmative action on the part of the condemning authority. To accomplish a taking by seizure, on the other hand, a condemning authority need only occupy the land in question. Such a taking thus shifts to the landowner the burden to discover the encroachment and to take affirmative action to recover just compensation. And in the case of Indian trust lands, which present the Government "`with an almost staggering problem in attempting to discharge its trust obligations with respect to thousands upon thousands of scattered Indian allotments,'" Poafpybitty v. Skelly Oil Co., , the United States may be placed at a significant disadvantage by this shifting of the initiative from the condemning authority to the condemnee.Likewise, the choice of the condemning authority to take property by physical invasion rather than by a formal condemnation action may also have important monetary consequences. The value of property taken by a governmental body is to be ascertained as of the date of taking. United States v. Miller, . In a condemnation proceeding, the taking generally occurs sometime during the course of the proceeding, and thus compensation is based on a relatively current valuation of the land. See 1 L. Orgel, Valuation in Eminent Domain 21, n. 29 (2d ed. 1953). When a taking occurs by physical invasion, on the other hand, the usual rule is that the time of the invasion constitutes the act of taking, and "[i]t is that event which gives rise to the claim for compensation and fixes the date as of which the land is to be valued... ." United States v. Dow, .Thus, even assuming that the term "inverse condemnation" were in use in 1901 to the same extent as it is today, there are sufficient legal and practical differences between "condemnation" and "inverse condemnation" to convince us that when 357 authorizes the condemnation of lands pursuant to the laws of a State or Territory, the term "condemned" refers not to an action by a landowner to recover compensation for a taking, but to a formal condemnation proceeding instituted by the condemning authority.4 Respondent municipality of Anchorage argues that the action authorized by the Court of Appeals here should be regarded as one in condemnation because Alaska law allows the "exercise of the power of eminent domain through inverse condemnation or a taking in the nature of inverse condemnation." Brief for Respondent Municipality of Anchorage 16. But we do not reach questions of Alaska law here because 25 U.S.C. 357, although prescribing that allotted lands "may be condemned for any public purpose under the laws of the State or Territory where located," requires that they nonetheless be "condemned." It is conceded that there has never been a formal condemnation action instituted in this case. Since we construe such an action to be an indispensable prerequisite for the reliance of any State or Territory on the other provisions of this section, we therefore reverse the judgment of the Court of Appeals. Reversed.

For the years 1940 through 1945, abatements of federal excess profits taxes; through application of 722 of the Internal Revenue Code, are not retroactive; and they relieve taxpayers from the payment of interest on deficiencies in such taxes only from the time of the abatements, rather than from the original due dates of the taxes abated. Pp. 255-271. 1. This conclusion is supported by a consideration of the statutory scheme as a whole. Pp. 261-263. 2. The interest here involved is attributable to I. R. C., 292 (a), and ran from the original due date of the tax. Pp. 263-264. 3. I. R. C., 710 (a) (5), added in 1942, permits a taxpayer, seeking relief under 722, to defer a part of its existing excess profits taxes where its adjusted excess profits net income exceeds 50% of its normal tax net income. This 1942 amendment, by its restrictions, fairly means that, under all other circumstances, the existing taxes were to be paid when due, or be subjected to interest during their delinquency under 292 (a). Pp. 264-265. 4. The denial of interest on refunds is prescribed by I. R. C., 3771 (g); and equity demands a comparable result in the case of underpayments. Pp. 266-267. 5. The conclusion here reached is supported by the legislative history and administrative interpretation of 722 and is consistent in principle with Manning v. Seely Tube & Box Co., . Pp. 267-271. 126 Ct. Cl. 847, 117 F. Supp. 181, reversed. 209 F.2d 692, affirmed. In No. 29, the Court of Claims awarded a taxpayer a judgment for a refund of interest paid on those portions of deficiencies in excess profits taxes for the years 1940 and 1941 which were abated under 722 of the Internal Revenue Code. 126 Ct. Cl. 847, 117 F. Supp. 181. This Court granted certiorari. . Reversed, p. 271. In No. 41, the Federal District Court awarded a taxpayer a judgment for a refund of interest paid on deficiencies in federal excess profits taxes for the years 1943, 1944 and 1945 which were abated under 722 of the Internal Revenue Code. 107 F. Supp. 837. The Court of Appeals reversed. 209 F.2d 692. This Court granted certiorari. . Affirmed, p. 271.[Footnote *] Together with No. 41, Premier Oil Refining Company of Texas v. United States, on certiorari to the United States Court of Appeals for the Fifth Circuit, argued November 12, 1954.Hilbert P. Zarky argued the causes for the United States. With him on the briefs were Solicitor General Sobeloff, Assistant Attorney General Holland, Ellis N. Slack and Harry Baum. Ralph S. Spritzer was also with them on the brief in No. 41.David W. Richmond argued the cause for respondent in No. 29. With him on the brief were Robert N. Miller, Frederick O. Graves, John M. Crimmins, E. S. Ruffin, Jr. and C. M. Crick.William A. Sutherland argued the cause for petitioner in No. 41. With him on the brief were Eugene M. Locke, Harold B. Pressley, Jr. and Mac Asbill, Jr.MR. JUSTICE BURTON delivered the opinion of the Court.The issue in these cases is whether, for the years 1940 through 1945, abatements of federal excess profits taxes, through application of I. R. C., 722,1 are retroactive. For the reasons hereafter stated, we hold that they are not and that they relieve taxpayers from the payment of interest on deficiencies in such taxes from the time of the abatements, rather than from the original due dates of the taxes abated.In No. 29, United States v. Koppers Co., the taxpayer, respondent therein,2 reported and paid excess profits taxes of $6,512.76 for 1940, and $1,781,288.14 for 1941.3 In computing these taxes, it used excess profits credits based upon invested capital.4 In 1943 and 1945, it applied under 722 for relief from all or part of these taxes, claiming that they were "excessive and discriminatory."5 In accordance with the usual administrative practice, the Commissioner determined the amount of the excess profits taxes due without regard to the application for relief under 722. In doing so, he found it necessary to proceed under I. R. C., 713, using excess profits credits based upon the taxpayer's income, rather than upon its invested capital. As a result he found that the above taxes, as returned and paid by the taxpayer without reference to 722, had been understated and that the following deficiencies existed as of their original due dates, March 15, 1941, and 1942: Excess profits tax under 710 (a) and 1940 1941 713 ..................................... $466,921.67 $2,208,019.09 Payments ................................. 6,512.76 1,781,288.14 ___________ ______________ Deficiencies ............................. 460,408.91 426,730.95The Commissioner computed interest, at 6%, on the above deficiencies, amounting to $217,376.07 for 1940, and $230,504.86 for 1941.6 After extended investigations and negotiations conducted under authority of 722, the Commissioner and the taxpayer agreed upon a "constructive average base period net income" which fixed the excess profits credits for the years in question and, as a result, the relief available under 722. After this agreement was approved by the Excess Profits Tax Council of the Bureau of Internal Revenue, the Commissioner determined that the above-stated deficiencies, with the benefit of 722, should be reduced to $260,554.39 for 1940, and to $95,749.33 for 1941. The taxpayer consented to the assessment of these deficiencies, with interest as provided by law. Where-upon, the Commissioner issued a formal determination of them and assessed them against the taxpayer. He also assessed the above-stated interest charges, based upon the full amount of the original deficiencies.The taxpayer paid the deficiencies and interest so assessed but claimed refunds of $94,358.71 for 1940, and $178,784.48 for 1941. Those sums represented the interest on the abatements in its excess profits taxes made under 722. When the Commissioner disallowed the claims, the taxpayer sued in the Court of Claims to recover their amounts. With one judge dissenting, that court deducted a setoff and rendered judgment in favor of the taxpayer for $270,216.34. 126 Ct. Cl. 847, 117 F. Supp. 181. To resolve the resulting conflict with United States v. Premier Oil Co., 209 F.2d 692, we granted certiorari, .In No. 41, Premier Oil Co. v. United States, the taxpayer, petitioner therein, paid the excess profits taxes shown on its original returns in the following amounts: for 1943, $564,167.70 (adjusted to $560,484.84); for 1944, $353,292.15 (adjusted to $313,639.13); and for 1945, $45,679.67. Thereafter, several deductions which the taxpayer had made from its income were disallowed, resulting, in 1948, in the following deficiencies in its payment of its excess profits and income taxes as of their original due dates: DEFICIENCIES WITHOUT THE APPLICATION OF 722. Deficiencies in excess profits 1943 1944 1945 tax, under 710 (a) and 713 ........................ $78,359.80 $55,529.92 $190,785.32 Deficiencies in income tax ... 9,060.07 9,178.01 (90.00) ___________ _________ ____________ Total deficiencies ........... 87,419.87 64,707.93 190,695.32The Commissioner computed interest, at 6%, on the above excess profits tax deficiencies as follows: For 1943 - on $78,359.80, March 15, 1944, to June 23, 1948 .................................................. $20,084.79 For 1944 - on $55,529.92, March 15, 1945, to June 23, 1948 .................................................. 10,901.36 For 1945 - on $190,785.32, March 15, 1946, to June 19, 1948 ................................................... 25,869.26 __________ Total .................................................... 56,855.41In the meantime, the taxpayer had applied for relief under 722, seeking acceptance of a "constructive average base period net income" of $357,000 for each of the years at issue. The Excess Profits Tax Council approved that figure as a credit in lieu of $93,150.36 for each of the years 1943 and 1944, and of $116,437.95 for 1945. This credit so far reduced the taxpayer's taxable excess profits as to abate its excess profits tax deficiencies for 1943 and 1944 entirely, and that for 1945 to $366.52.7 Accordingly, the Commissioner's assessment of the remainder of the taxpayer's deficiencies in excess profits taxes was for only $366.52. However, as in the Koppers case, supra, he assessed against the taxpayer the full amount of the interest charges based upon the original deficiencies.The taxpayer paid the deficiency and interest so assessed but claimed refunds totaling $56,855.41. That sum represented the interest on the abatements in its excess profits taxes made under 722. When the Commissioner disallowed those claims, the taxpayer brought the instant action to recover their amounts, in the United States District Court for the Northern District of Texas, under 28 U.S.C. 1346 (a) (1). That court rendered judgment for the taxpayer.8 107 F. Supp. 837. The Court of Appeals reversed. 209 F.2d 692. We granted certiorari to resolve the conflict with United States v. Koppers Co., supra. .9 As the underlying issue is the same in each case and for each year, we shall discuss it in relation to the 1940 taxes in the Koppers case. There, the taxpayer, under the usual procedure, computed and paid the excess profits tax of $6,512.76 shown on its return for 1940. In due course the Commissioner, without the application of 722, determined that the payment should have been $466,921.67, and, therefore, that a deficiency of $460,408.91 was due the United States, with interest from March 15, 1941. I. R. C., 53 (a), 56 (a). If the taxpayer had made no application for relief under 722, there is no doubt that such interest would have remained due the United States until paid and that, when paid, it would not have been refundable. The same would have been true if the taxpayer's application for relief under 722 had been finally denied. The taxpayer contends, however, that, because the Commissioner has abated the taxpayer's deficiency from $460,408.91 to $260,554.39 under 722, such reduction is necessarily retroactive to March 15, 1941, and that the taxpayer, accordingly, is entitled to a refund of the interest on the sum abated. The Commissioner, on the other hand, contends that the determination under 722 is not retroactive but is a current abatement effective when made.Congress could have prescribed either treatment but did not expressly specify either. Our answer is determined from our consideration of the statutory scheme as a whole, the related provisions of the statute, the legislative history of 722 and the administrative interpretation that has been given the statute. 1. The statutory scheme as a whole. The excess profits tax was a device initiated by Congress, late in 1940, in great part for the quick collection of large sums needed by the Government in a national emergency. Congress sought to obtain those funds from abnormally high corporate profits while such profits were available. To that end, it prescribed computations of unusual profits and required prompt payment of the taxes on them.10 From the beginning, the statute also provided, in 722, a means of subsequent adjustment of the tax in special instances where the normal computation of the tax was found to result in inequity. The adjustment could be made only after administrative action and, pending its consideration, it did not eliminate the tax return or the tax payment otherwise required. Until 1942, it did not permit even the postponement of the payment of any part of the standard tax. Indeed, the full payment of that tax soon was made an express condition of the application for adjustment. I. R. C., 722 (d). In 1943, Congress stated that if overpayments for either of the taxable years 1940 or 1941 were found to be attributable to 722, no interest on such overpayments was to be paid the taxpayer.11 At least to that extent, Congress expressly recognized that the funds paid as excess profits taxes, when due and without the benefit of 722, were funds owed to and usable by the Government.The significance of this statutory scheme further appears when it is applied to the instant case. If the instant taxpayer had paid its required tax in 1941, the Government would have received an additional $460,408.91 at that time. Accordingly, it would have had the use of that money, without charge, during the crucial war years. Correspondingly, the taxpayer would have been without that money during the same period. Instead, the taxpayer, in fact, retained the funds for its own use and now contends that it need not compensate the Government for such use of a substantial part of it.While in the instant case the taxpayer did not underpay any amount actually shown on its return, as contemplated by I. R. C., 294 (a), it understated its tax and thus withheld the amount in question. The detriment to the Government and benefit to the taxpayer was the same - the use of $460,408.91 for eight years. The above distinction, emphasized by the taxpayer, may have helped it in initiating its application for relief under 722 (d) because it could establish that, at least, it had paid "the tax shown on its return." The distinction, however, supplies no ground for different results once the deficiencies have been determined. We find no implication that a self-serving error in the understatement of its tax on its tax return entitles the taxpayer to a greater ultimate tax advantage than does a self-serving error of the same size in the underpayment of the same tax. A fortiori we find nothing to justify a greater tax advantage to any taxpayer that underpays its correct tax, over one that pays such tax in full when due.2. The interest here in controversy is attributable to I. R. C., 292 (a).12 The interest here in controversy was due under 292 (a) from March 15, 1941, until paid. Accordingly, to obtain a refund of it, the taxpayer must sustain the proposition that the tax relief granted under 722 is necessarily retroactive, extinguishing the deficiency as of the original due date of the tax and thus eliminating the interest charges for the corresponding period. To that end, the taxpayer emphasizes the statement in 722 (a) that, as a condition of securing the application of 722, a taxpayer must establish that the usual procedure "results in an excessive and discriminatory tax" and also must establish "what would be a fair and just amount representing normal earnings to be used as a constructive average base period net income." Once the taxpayer has done that, "the tax shall be determined by using such constructive average base period net income in lieu of the average base period net income otherwise determined under this subchapter." Standing alone, this directive language is elastic. It can be read consistently either with the interpretation that the new computation replaces and abates the old one currently, when the new one is determined and assessed, or that it retroactively replaces the old tax from its original due date. It leaves the issue open for disposition by the effect of other clauses relating more specifically to the issue. For the reasons hereafter stated, we read it as looking forward, rather than backward.13 3. I. R. C., 710 (a) (5),14 permits a taxpayer, seeking relief under 722, to defer a part of its existing excess profits taxes where its adjusted excess profits net income exceeds 50% of its normal tax net income.In 1942, Congress added 710 (a) (5), conditionally authorizing partial deferment of the tax in cases where a taxpayer claimed benefits under 722. The condition was that the taxpayer's "adjusted excess profits net income (computed without reference to section 722)" must exceed 50% of the taxpayer's normal tax net income for the year. Even then, deferment was limited to 33% of the benefit claimed under 722. If a taxpayer, without this amendment, could have successfully deferred payment and avoided interest charges by following the course taken in the instant cases, it could, by understatement of its tax, have deferred, without incurring interest charges, the payment of a corresponding part of its tax pending relief. If so, there would have been little need for 710 (a) (5). The 1942 amendment, by its restrictions, fairly meant that, under all other circumstances, the existing taxes were to be paid when due, or be subjected to interest during their delinquency under 292 (a). 4. The denial of interest on refunds is prescribed by I. R. C., 3771 (g).15 Although 3771 (g) was not enacted until 1943, it was then made applicable to taxable years before, as well as after, January 1, 1942. It denied all interest on refunds attributable to 722 where the refunds related to the taxable years 1940 or 1941. It also denied interest on refunds relating to taxable years beginning after January 1, 1942, but limited such denials to the first year after the filing of an application for relief under 722, or to periods prior to September 16, 1945 (two years after the effective date of the amendment), whichever was the later.16 In cases where the Government has authorized refunds of excess profits taxes overpaid to it by reason of the abatement of taxes attributable to 722, 3771 (g) expressly precludes the payment of interest by the Government upon the amounts abated. This treats the Government as entitled to the use of the abated amounts between the time of their overpayment and that of their abatement. Equity demands a comparable result in the case of underpayments. Where unpaid taxes are abated by reason of 722, the taxpayer then receives a release from its existing obligation to pay the amount abated. However, the Government having been entitled, up to that time, to collect and use the sum abated, the Government should receive interest, on the abated sum, for the period during which the Government was entitled to have its use. This is the natural counterpart of the Government's freedom from paying interest on refunded overpayments. 5. The legislative history of 722.The excess profits tax was initiated in 1940. 54 Stat. 975 et seq. It provided for prompt payment of large taxes computed on income reflecting unusual profits. Computation of the tax on the basis of the taxpayer's prior income or invested capital was prescribed in 713 and 714. A standardized treatment of abnormalities was provided in 721. In addition, 722 authorized the Commissioner "to make such adjustments as may be necessary to adjust abnormalities affecting income or capital." 54 Stat. 986. The procedure under 722 was formalized by the Excess Profits Tax Amendments of 1941, 55 Stat. 23-25, and put in its final form by the Revenue Act of 1942, 56 Stat. 914-917, as amended, 57 Stat. 601-602. The technical and discretionary nature of the adjustment was emphasized by the provision that the determination of most computations under 722 was reviewable only by a special division of the Tax Court constituted for the occasion and by no other court or agency. 55 Stat. 26, as amended, 56 Stat. 917, 59 Stat. 295, 673, 26 U.S.C. 732. A taxpayer never was permitted to file a return of its own under 722. S. Rep. No. 75, 77th Cong., 1st Sess. 13; H. R. Rep. No. 146, 77th Cong., 1st Sess. 13.The statute has been interpreted as authorizing a procedure that is in the nature of a claim for a refund preceded by long investigations of complicated special circumstances, and followed by extended negotiations between the Commissioner and taxpayer to develop a mutually satisfactory "constructive average base period net income." This interpretation leaves the usual procedure under 710 et seq. complete in itself but subject, upon application, to ultimate adjustment in instances accepted by the Commissioner under 722.17 We find no statement of a purpose that 722 shall relieve taxpayers from penalties or interest charges due either to their defaults in paying, or their errors in computing, their taxes. On the contrary, it has been suggested that Congress considered relief under 722 to be in the nature of a favor and as not relieving the taxpayer of its duty to pay the original tax when due.18 The regulations do not deal specifically with the issue before us but, from their beginning, in Treasury Regulations 109, they have been consistent with the interpretation given the Act by the Government. See 30.722-5, as added by T. D. 5264, 1943 Cum. Bull. 761, as amended, T. D. 5393, 1944 Cum. Bull. 415. In addition to the practice of the Commissioner in the instant cases, there is in the record of the Premier Oil Co. case an undisputed affidavit by a Treasury Department reviewer to the effect that the policy followed was the administrative policy of the Bureau: "It is the policy of the Bureau of Internal Revenue in those cases where all or any part of a tax deficiency has been extinguished by application of the relief provisions of Section 722 of the Internal Revenue Code not to assess the extinguished portion of such deficiency. However, interest has been computed and assessed on the extinguished portion of the deficiency from the due date of the return to the thirtieth day after the agreement, Form 874, is filed or date of assessment, whichever is the earlier." (Emphasis supplied.) While Manning v. Seeley Tube & Box Co., , relates to the carry-back provisions of the Internal Revenue Code, it is thoroughly consistent in principle with the above discussion. There the Court upheld the collection of interest on a deficiency which later was extinguished by carrying back a loss which occurred in a subsequent year. It treated the carry-back as a current adjustment of the tax previously determined, characterizing it as an "abatement" at 565. It recognized I. R. C., 3771 (e), as a help to the interpretation of the statute, much as we recognize I. R. C., 3771 (g), as a help here. See 567-568. The Court also there announced that "In the absence of a clear legislative expression to the contrary, the question of who properly should possess the right of use of the money owed the Government for the period it is owed must be answered in favor of the Government." Id., at 566.19 While the deficiency for 1940 in the amount of $460,408.91 was properly determined without reference to 722 and treated as a deficiency for that year by the Commissioner, it was not separately assessed as such. This was not necessary because, at the time of its determination and before its assessment, it was abated to $260,554.39. The latter sum, with interest in the amount of $217,376.07 computed on the whole deficiency of $460,408.91, was correctly and adequately assessed and paid.20 For the foregoing reasons, we conclude that the Government, in each case, is entitled to retain the interest now in controversy. Therefore, in No. 29, the judgment of the Court of Claims is reversed and, in No. 41, the judgment of the Court of Appeals is affirmed. No. 29 - Reversed. No. 41 - Affirmed.MR. JUSTICE REED and MR. JUSTICE DOUGLAS dissent.

Per Curiam. Petitioners Anthony Ash and John Hithon were superintendents at a poultry plant owned and operated by respondent Tyson Foods, Inc. Petitioners, who are African-American, sought promotions to fill two open shiftmanager positions, but two white males were selected instead. Alleging that Tyson had discriminated on account of race, petitioners sued under Rev. Stat. §1977, 42 U. S. C. §1981, and Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. §2000e et seq. A trial proceeded in the United States District Court for the Northern District of Alabama. At the close of the plaintiffs' evidence, Tyson moved for judgment as a matter of law, see Fed. Rule Civ. Proc. 50(a). The District Court denied the motion, and the jury found for petitioners, awarding compensatory and punitive damages. The employer renewed its motion for judgment under Rule 50(b). The District Court granted the motion and, in the alternative, ordered a new trial as to both plaintiffs under Rule 50(c). App. to Pet. for Cert. 35a; see generally Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U. S. ___, ___ (2006) (slip op., at 4-11) (discussing Rule 50). The United States Court of Appeals for the Eleventh Circuit affirmed in part and reversed in part. 129 Fed. Appx. 529, 536 (2005) (per curiam). As to Ash, the court affirmed the grant of the Rule 50(b) motion, deeming the trial evidence insufficient to show pretext (and thus insufficient to show unlawful discrimination) under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973). 129 Fed. Appx., at 533-534. As to Hithon, the court reversed the Rule 50(b) ruling, finding there was enough evidence to go to the jury. The court, however, affirmed the District Court's alternative remedy of a new trial under Rule 50(c), holding that the evidence supported neither the decision to grant punitive damages nor the amount of the compensatory award, and thus that the District Court did not abuse its discretion in ordering a new trial. Id., at 536. The judgment of the Court of Appeals, and the trial court rulings it affirmed, may be correct in the final analysis. In the course of its opinion, however, the Court of Appeals erred in two respects, requiring that its judgment now be vacated and the case remanded for further consideration. First, there was evidence that Tyson's plant manager, who made the disputed hiring decisions, had referred on some occasions to each of the petitioners as "boy." Petitioners argued this was evidence of discriminatory animus. The Court of Appeals disagreed, holding that "[w]hile the use of 'boy' when modified by a racial classification like 'black' or 'white' is evidence of discriminatory intent, the use of 'boy' alone is not evidence of discrimination." Id., at 533 (citation omitted). Although it is true the disputed word will not always be evidence of racial animus, it does not follow that the term, standing alone, is always benign. The speaker's meaning may depend on various factors including context, inflection, tone of voice, local custom, and historical usage. Insofar as the Court of Appeals held that modifiers or qualifications are necessary in all instances to render the disputed term probative of bias, the court's decision is erroneous. Second, the Court of Appeals erred in articulating the standard for determining whether the asserted nondiscriminatory reasons for Tyson's hiring decisions were pretextual. Petitioners had introduced evidence that their qualifications were superior to those of the two successful applicants. (Part of the employer's defense was that the plant with the openings had performance problems and petitioners already worked there in a supervisory capacity.) The Court of Appeals, in finding petitioners' evidence insufficient, cited one of its earlier precedents and stated: "Pretext can be established through comparing qualifications only when 'the disparity in qualifications is so apparent as virtually to jump off the page and slap you in the face.' " Ibid. (quoting Cooper v. Southern Co., 390 F. 3d 695, 732 (CA11 2004)). Under this Court's decisions, qualifications evidence may suffice, at least in some circumstances, to show pretext. See Patterson v. McLean Credit Union, 491 U. S. 164, 187-188 (1989) (indicating a plaintiff "might seek to demonstrate that respondent's claim to have promoted a better qualified applicant was pretextual by showing that she was in fact better qualified than the person chosen for the position"), superseded on other grounds by 42 U. S. C. §1981(b); Texas Dept. of Community Affairs v. Burdine, 450 U. S. 248, 259 (1981) ("The fact that a court may think that the employer misjudged the qualifications of the applicants does not in itself expose him to Title VII liability, although this may be probative of whether the employer's reasons are pretexts for discrimination"); cf. Reeves v. Sanderson Plumbing Products, Inc., 530 U. S. 133, 148 (2000) ("[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated"). The visual image of words jumping off the page to slap you (presumably a court) in the face is unhelpful and imprecise as an elaboration of the standard for inferring pretext from superior qualifications. Federal courts, including the Court of Appeals for the Eleventh Circuit in a decision it cited here, have articulated various other standards, see, e.g., Cooper, supra, at 732 (noting that "disparities in qualifications must be of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question" (internal quotation marks omitted)); Raad v. Fairbanks North Star Borough School Dist., 323 F. 3d 1185, 1194 (CA9 2003) (holding that qualifications evidence standing alone may establish pretext where the plaintiff's qualifications are " 'clearly superior' " to those of the selected job applicant); Aka v. Washington Hospital Center, 156 F. 3d 1284, 1294 (CADC 1998) (en banc) (concluding the factfinder may infer pretext if "a reasonable employer would have found the plaintiff to be significantly better qualified for the job"), and in this case the Court of Appeals qualified its statement by suggesting that superior qualifications may be probative of pretext when combined with other evidence, see 129 Fed. Appx., at 533. This is not the occasion to define more precisely what standard should govern pretext claims based on superior qualifications. Today's decision, furthermore, should not be read to hold that petitioners' evidence necessarily showed pretext. The District Court concluded otherwise. It suffices to say here that some formulation other than the test the Court of Appeals articulated in this case would better ensure that trial courts reach consistent results. The Court of Appeals should determine in the first instance whether the two aspects of its decision here determined to have been mistaken were essential to its holding. On these premises, certiorari is granted, the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.

Choctaw Nation v. Oklahoma, , held that, under pertinent treaties with the Federal Government, certain Indian Tribes, including respondent Tribe, were granted title to the riverbed underlying portions of the Arkansas River in Oklahoma. The Government's construction of a navigable channel in the river damaged respondent's riverbed mineral interests. After unsuccessfully seeking compensation from the Government, respondent filed suit in Federal District Court, contending that the channel project resulted in a taking under the Fifth Amendment of respondent's riverbed interests without just compensation. Granting summary judgment for respondent, the court rejected, on the basis of Choctaw Nation, the Government's defense that its navigational servitude under the Commerce Clause precluded liability for the alleged taking, and held that under the relevant treaties the Government had not reserved its navigational servitude. The Court of Appeals affirmed, adopting a different analysis. It found that the Government retained a navigational servitude in the river, but that - balancing the public and private interests involved - the servitude was insufficient to protect the Government from liability to compensate respondent.Held: No "balancing" test, as formulated by the Court of Appeals, is required where, as here, the interference with in-stream interests results from an exercise of the Government's Commerce Clause power to regulate navigational uses of waters. The proper exercise of the Government's navigational servitude is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the riparian owners' interests are subject. Contrary to respondent's contention, the decision in Choctaw Nation does not support the conclusion that respondent's title to the riverbed is unique in scope, or that under the pertinent treaties the Government abandoned its navigational servitude in the area. Moreover, the Government's fiduciary obligations in dealing with Indian tribal property do not elevate the Government's actions into a taking. The tribal interests here simply do not include the right to be free from the Government's navigational servitude. Pp. 703-708. 782 F.2d 871, reversed and remanded.REHNQUIST, C. J., delivered the opinion for a unanimous Court.Jeffrey P. Minear argued the cause for the United States. With him on the briefs were Solicitor General Fried, Assistant Attorney General Habicht, Deputy Solicitor General Wallace, Peter R. Steenland, Jr., and Jacques B. Gelin.James G. Wilcoxen argued the cause for respondent. With him on the brief was Paul M. Niebell.CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.In Choctaw Nation v. Oklahoma, , the Court determined that certain treaties between the Cherokee, Chickasaw, and Choctaw Tribes and the United States granted to the Tribes fee simple title to the riverbed underlying specified portions of the Arkansas River in Oklahoma. The Court found the circumstances sufficient to overcome the "strong presumption against conveyance by the United States" of title to the bed of a navigable water. Montana v. United States, . See United States v. Holt State Bank, . The question presented in this case is whether the United States must pay the Cherokee Nation compensation for damage to these riverbed interests caused by navigational improvements which it has made on the Arkansas River. The damage to sand and gravel deposits resulted from the McClellan-Kerr Project, approved by Congress in 1946, Act of July 24, 1946, ch. 595, 60 Stat. 634, 635-636, and designed to improve navigation by construction of a channel in the Arkansas River from its mouth at the Mississippi to Catoosa, Oklahoma. The project was completed in 1971.After our decision in Choctaw Nation, the Cherokee Nation sought compensation from the Government. Congress refused to fund the claim after the Department of the Interior and the Army Corps of Engineers concluded that the United States' navigational servitude rendered it meritless. See Department of the Interior and Related Agencies Appropriations for 1980: Hearings Before a Subcommittee of the House Committee on Appropriations, 96th Cong., 1st Sess., pt. 7, pp. 379-392 (1979). Congress did, however, provide respondent with the opportunity to seek judicial relief, conferring jurisdiction on the United States District Court for the Eastern District of Oklahoma to determine "any claim which the Cherokee Nation of Oklahoma may have against the United States for any and all damages to Cherokee tribal assets related to and arising from the construction of the [McClellan-Kerr Project]." H. R. 2329, 97th Cong., 1st Sess. (1981).The Cherokee Nation filed a complaint contending that the construction of the McClellan-Kerr Project resulted in a taking under the Fifth Amendment of the Tribe's riverbed interests without just compensation. The United States in response claimed that its navigational servitude precluded liability for the alleged taking. The District Court granted the Tribe's motion for summary judgment, finding that the decision in Choctaw Nation created a "unique situation by which a portion of the navigable Arkansas River is, essentially, a private waterway belonging exclusively to the Cherokee Nation." App. to Pet. for Cert. 26a. Because the United States did not reserve its navigational servitude in the relevant treaties, the court held, it owed the Tribe just compensation. Id., at 27a.1 A divided panel of the Court of Appeals for the Tenth Circuit affirmed, adopting a different analysis. 782 F.2d 871 (1986). The court rejected the District Court's conclusion that the United States' failure to reserve its navigational servitude defeated that interest. It found it "certain [that] the United States retained a navigational servitude in the Arkansas River." Id., at 876. Nevertheless, the court held that the servitude was insufficient to protect the United States from liability. Finding that "the assertion of a navigational servitude on particular waters acknowledges only that the property owner's right to use these waters is shared with the public at large," id., at 877, the court believed that the effect of the navigational servitude varied with the owner's intended use: "When the exercise of that public power affects private ownership rights not connected to a navigational use, the court must balance the public and private interests to decide whether just compensation is due." Ibid. Applying this test, the court concluded that though the Cherokee Nation could not interfere with the United States' exercise of the navigational servitude, it had a right to compensation for any consequent loss of property or diminution in value.2 We think the Court of Appeals erred in formulating a balancing test to evaluate this assertion of the navigational servitude. No such "balancing" is required where, as here, the interference with in-stream interests results from an exercise of the Government's power to regulate navigational uses of "the deep streams which penetrate our country in every direction." Gibbons v. Ogden, 9 Wheat. 1, 195 (1824). Though "this Court has never held that the navigational servitude creates a blanket exception to the Takings Clause whenever Congress exercises its Commerce Clause authority to promote navigation," Kaiser Aetna v. United States, , there can be no doubt that "[t]he Commerce Clause confers a unique position upon the Government in connection with navigable waters." United States v. Rands, . It gives to the Federal Government "a `dominant servitude,' FPC v. Niagara Mohawk Power Corp., , which extends to the entire stream and the stream bed below ordinary high-water mark. The proper exercise of this power is not an invasion of any private property rights in the stream or the lands underlying it, for the damage sustained does not result from taking property from riparian owners within the meaning of the Fifth Amendment but from the lawful exercise of a power to which the interests of riparian owners have always been subject." Rands, supra, at 123.3 See also United States v. Kansas City Life Ins. Co., ; Scranton v. Wheeler, .The application of these principles to interference with streambed interests has not depended on balancing this valid public purpose in light of the intended use of those interests by the owner. Thus, in Lewis Blue Point Oyster Cultivation Co. v. Briggs, , the Court held that no taking occurred where dredging carried out under the direction of the United States destroyed oysters that had been cultivated on privately held lands under the waters of the Great South Bay in New York. The decision rested on the view that the dominant right of navigation "must include the right to use the bed of the water for every purpose which is in aid of navigation." Id., at 87. The Court did not rely on the particular use to which the private owners put the bed, but rather observed that their very title to the submerged lands "is acquired and held subject to the power of Congress to deepen the water over such lands or to use them for any structure which the interest of navigation, in its judgment, may require." Id., at 88. See also United States v. Commodore Park, ; United States v. Chicago, M., St. P. & P. R. Co., .These well-established principles concerning the exercise of the United States' dominant servitude would, in the usual case, dictate that we reject respondent's "takings" claim. We do not understand respondent to argue otherwise. See e. g., Brief in Opposition 11-12; Tr. of Oral Arg. 16, 28-29. Instead, the Cherokee Nation asserts that its title to the Arkansas River bed is unique in scope and that interference with that interest requires just compensation. Respondent does not rely explicitly on any language of the relevant treaties, but rather on its reading of Choctaw Nation v. Oklahoma, . We have noted that Choctaw Nation involved "very peculiar circumstances," Montana v. United States, 450 U.S., at 555, n. 5, in that "the Indians were promised virtually complete sovereignty over their new lands." Choctaw Nation, supra, at 635. These circumstances allowed the claimants to overcome the strong presumption against conveyance of riverbed interests by the United States, designed to protect the interests of the States under the equal-footing doctrine. See Montana v. United States, supra, at 551-553; Shively v. Bowlby, . Respondent urges that these circumstances further indicate that the United States abandoned its navigational servitude in the area. Thus, in respondent's view, the treaties by which it gained fee simple title to the bed of the Arkansas River were such as to make the Arkansas River a "private stream," Brief for Respondent 28, "not intended as a public highway or artery of commerce." Id., at 23.We think that the decision in Choctaw Nation was quite generous to respondent, and we refuse to give a still more expansive and novel reading of respondent's property interests. There is certainly nothing in Choctaw Nation itself that suggests such a broad reading of the conveyance. To the contrary, the Court expressly noted that the United States had no interest in retaining title to the submerged lands because "it had all it was concerned with in its navigational easement via the constitutional power over commerce." Choctaw Nation, supra, at 635 (emphasis added). The parties, including respondent here, clearly understood that the navigational servitude was dominant no matter how the question of riverbed ownership was resolved. See, e. g., Brief for Petitioner in Cherokee Nation v. Oklahoma, O. T. 1969, No. 59, p. 19 ("[T]here is nothing in the conveyance of title to the land beneath the navigable waters which conflicts with the power of the Government to hold such lands for navigation").4 Any other conclusion would be wholly extraordinary, for we have repeatedly held that the navigational servitude applies to all holders of riparian and riverbed interests. See Montana v. United States, supra, at 555; United States v. Grand River Dam Authority, ; United States v. Chandler-Dunbar Water Power Co., , citing Gibson v. United States, . Indeed, even when the sovereign States gain "the absolute right to all their navigable waters and the soils under them for their own common use" by operation of the equal-footing doctrine, Martin v. Waddell, 16 Pet. 367, 410 (1842), this "absolute right" is unquestionably subject to "the paramount power of the United States to ensure that such waters remain free to interstate and foreign commerce." Montana v. United States, supra, at 551. If the States themselves are subject to this servitude, we cannot conclude that respondent - though granted a degree of sovereignty over tribal lands - gained an exemption from the servitude simply because it received title to the riverbed interests. Such a waiver of sovereign authority will not be implied, but instead must be "`surrendered in unmistakable terms.'" Bowen v. Public Agencies Opposed to Social Security Entrapment, , quoting Merrion v. Jicarilla Apache Tribe, . Respondent can point to no such terms.We also reject respondent's suggestion that the fiduciary obligations of the United States elevate the Government's actions into a taking. It is, of course, well established that the Government in its dealings with Indian tribal property acts in a fiduciary capacity. See Seminole Nation v. United States, . When it holds lands in trust on behalf of the tribes, the United States may not "give the tribal lands to others, or ... appropriate them to its own purposes, without rendering, or assuming an obligation to render, just compensation for them." United States v. Creek Nation, . These principles, however, do little to aid respondent's cause, for they do not create property rights where none would otherwise exist but rather presuppose that the United States has interfered with existing tribal property interests. As we have explained, the tribal interests at issue here simply do not include the right to be free from the navigational servitude, for exercise of the servitude is "not an invasion of any private property rights in the stream or the lands underlying it... ." United States v. Rands, 389 U.S., at 123.The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Respondent NCL is a cruise line operating foreign-flag ships departing from, and returning to, United States ports. The petitioners, disabled individuals and their companions who purchased tickets for round-trip NCL cruises from Houston, sued NCL under Title III of the Americans with Disabilities Act of 1990 (ADA), 42 U. S. C. §12181 et seq., which prohibits discrimination based on disability in places of "public accommodation," §12182(a), and in "specified public transportation services," §12184(a), and requires covered entities to make "reasonable modifications in policies, practices, or procedures" to accommodate disabled persons, §§12182(b)(2)(A)(ii), 12184(b)(2)(A), and to remove "architectural barriers, and communication barriers that are structural in nature" where such removal is "readily achievable," §§12182(b)(2)(A)(iv), 12184(b)(2)(C). Though holding Title III generally applicable, the District Court found that the petitioners' claims regarding physical barriers to access could not go forward because the federal agencies charged with promulgating ADA architectural and structural guidelines had not done so for cruise ships. The court therefore dismissed the barrier-removal claims, but denied NCL's motion to dismiss the petitioners' other claims. The Fifth Circuit held that Title III does not apply to foreign-flag cruise ships in U. S. waters because of a presumption, which the court derived from, e.g., Benz v. Compania Naviera Hidalgo, S. A., 353 U. S. 138, and McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U. S. 10, that absent a clear indication of congressional intent, general statutes do not apply to foreign-flag ships. Emphasizing that Title III does not contain a specific provision mandating its application to such vessels, the court sustained the dismissal of the petitioners' barrier-removal claims and reversed on their remaining claims.Held: The judgment is reversed, and the case is remanded.356 F. 3d 641, reversed and remanded. Justice Kennedy delivered an opinion concluding that except insofar as Title III regulates a vessel's internal affairs, the statute is applicable to foreign-flag cruise ships in U. S. waters. Parts II-A-1 and II-B-2 of that opinion held for the Court: (a) Although Title III's "public accommodation" and "specified public transportation" definitions, §§12181(7)(A),(B)(I),(L), 12181(10), do not expressly mention cruise ships, there is no doubt that the NCL ships in question fall within both definitions under conventional principles of interpretation. The Fifth Circuit nevertheless held Title III inapplicable because the statute has no clear statement or explicit text mandating coverage for foreign-flag ships in U. S waters. This Court's cases, particularly Benz and McCulloch, do hold, in some circumstances, that a general statute will not apply to certain aspects of the internal operations of foreign vessels temporarily in U. S. waters, absent a clear statement. The broad clear statement rule adopted by the Court of Appeals, however, would apply to every facet of the business and operations of foreign-flag ships. That formulation is inconsistent with the Court's case law and with sound principles of statutory interpretation. Pp. 5-6. (b) Title III defines "readily achievable" barrier removal as that which is "easily accomplishable and able to be carried out without much difficulty or expense," §12181(9). The statute does not further define "difficulty," but the section's use of the disjunctive indicates that it extends to considerations in addition to cost. Furthermore, Title III directs that the "readily achievable" determination take into account "the impact ... upon the [facility's] operation," §12181(9)(B). A Title III barrier-removal requirement that would bring a vessel into noncompliance with the International Convention for the Safety of Life at Sea or any other international legal obligation would create serious difficulties for the vessel and would have a substantial impact on its operation, and thus would not be "readily achievable." Congress could not have intended this result. It is logical and proper to conclude, moreover, that whether a barrier modification is "readily achievable" must take into consideration the modification's effect on shipboard safety. Title III's nondiscrimination and accommodation requirements do not apply if disabled individuals would pose "a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures." §12182(b)(3). It would be incongruous to attribute to Congress an intent to require modifications threatening others' safety simply because the threat comes not from the disabled person but from the accommodation itself. Pp. 12-13. Justice Kennedy, joined by Justice Stevens and Justice Souter, concluded in Parts II-A-2, II-B-1, II-B-3, and III-B: (a) As a matter of international comity, a clear statement of congressional intent is necessary before a general statutory requirement can interfere with matters that concern a foreign-flag vessel's internal affairs and operations. See, e.g., Wildenhus's Case, 120 U. S. 1, 12. In Benz and McCulloch, the Court held the National Labor Relations Act (NLRA) inapplicable to labor relations between a foreign vessel and its foreign crew not because foreign ships are generally exempt from the NLRA, but because that particular application of the NLRA would interfere with matters that concern only the ship's internal operations. These cases recognized a narrow rule, applicable only to statutory duties that implicate the foreign vessel's internal order rather than the welfare of American citizens. E.g., McCulloch, supra, at 21. In contrast, the Court later held the NLRA fully applicable to labor relations between a foreign vessel and American longshoremen because this relationship, unlike the one between a vessel and its own crew, does not implicate a foreign ship's internal order and discipline. Longshoremen v. Ariadne Shipping Co., 397 U. S. 195, 198-201. This narrow clear statement rule is supported by sound principles of statutory construction. It is reasonable to presume Congress intends no interference with matters that are primarily of concern only to the ship and the foreign state in which it is registered. It is also reasonable, however, to presume Congress does intend its statutes to apply to entities in U. S. territory that serve, employ, or otherwise affect American citizens, or that affect the peace and tranquility of the United States, even if those entities happen to be foreign-flag ships. Cruise ships flying foreign flags of convenience but departing from and returning to U. S. ports accommodate and transport over 7 million U. S. residents annually, including large numbers of disabled individuals. To hold there is no Title III protection for the disabled would be a harsh and unexpected interpretation of a statute designed to provide broad protection for them. Pp. 6-9. (b) Plainly, most of the Title III violations alleged below — that NCL required disabled passengers to pay higher fares and special surcharges; maintained evacuation programs and equipment in locations not accessible to them; required them, but not other passengers, to waive any potential medical liability and to travel with companions; reserved the right to remove them from ships if they endangered other passengers' comfort; and, more generally, failed to make reasonable modifications necessary to ensure their full enjoyment of the services offered — have nothing to do with a ship's internal affairs. However, the petitioners' allegations concerning physical barriers to access on board — e.g., their assertion that most of NCL's cabins, including the most attractive ones in the most desirable locations, are not accessible to disabled passengers — would appear to involve requirements that might be construed as relating to internal ship affairs. The clear statement rule would most likely come into play if Title III were read to require permanent and significant structural modifications to foreign vessels. Pp. 9-12. (c) Because Title III does not require structural modifications that conflict with international legal obligations or pose any real threat to the safety of the crew or other passengers, it may well follow that Title III does not require any permanent and significant structural modifications that interfere with cruise ships' internal affairs. If so, recourse to the internal affairs clear statement rule would not be necessary. Cases may arise, however, where it is prudent for a court to invoke that rule without determining whether Title III actually imposes a particular barrier-removal requirement entailing a permanent and significant structural modification interfering with a foreign ship's internal affairs. Conversely, where it is not obvious that a particular physical modification relates to a vessel's basic architecture and construction, but it is clear the modification would conflict with an international legal obligation, the court may simply hold the modification not readily achievable, without resort to the clear statement rule. Pp. 13-14. (d) The holding that the clear statement rule operates only when a ship's internal affairs are affected does not implicate the Court's holding in Clark v. Martinez, 543 U. S. ___, ___, that statutory language given a limiting construction in one context must be interpreted consistently in other contexts, "even though other of the statute's applications, standing alone, would not support the same limitation." Martinez applied a canon for choosing among plausible meanings of an ambiguous statute, not a clear statement rule that implies a special substantive limit on the application of an otherwise unambiguous statutory mandate. Pp. 16-18. Justice Kennedy, joined by Justice Stevens, Justice Souter, and Justice Thomas, concluded in Part III-A that if Title III imposed a requirement that interfered with a foreign-flag cruise ship's internal affairs, the clear statement rule would come into play, but that requirement would still apply to domestic ships, and Title III requirements having nothing to do with internal affairs would continue to apply to domestic and foreign ships alike. This application-by-application approach is consistent with how the clear statement rule has traditionally operated. If the rule restricts some NLRA applications to foreign ships (e.g., labor relations with foreign crews in Benz and McCulloch), but not others (e.g., labor relations with American longshoremen in Ariadne Shipping), it follows that its case-by-case application is also required under Title III. The clear statement rule, if it is invoked, would restrict some applications of Title III to foreign ships (e.g., certain structural barrier modification requirements), but not others (e.g., the statute's prohibition on discriminatory ticket pricing). The rule is an implied limitation on a statute's otherwise unambiguous general terms. It operates much like other implied limitation rules, which avoid applications of otherwise unambiguous statutes that would intrude on sensitive domains in a way that Congress is unlikely to have intended had it considered the matter. See, e.g., EEOC v. Arabian American Oil Co., 499 U. S. 244, 260. An all-or-nothing approach would convert the clear statement rule from a principle of interpretive caution into a trap for an unwary Congress, requiring nullification of the entire statute, or of some arbitrary set of applications larger than the domain the rule protects. Pp. 14-16. Justice Ginsburg, joined by Justice Breyer, agreed that Title III of the Americans with Disabilities Act of 1990 covers cruise ships and allows them to resist modifications that would conflict with international legal obligations, but would give no wider berth to the "internal affairs" clear statement rule in determining Title III's application to respondent's ships. That rule derives from, and is moored to, the broader guide that statutes "should not be interpreted to regulate foreign persons or conduct if that regulation would conflict with principles of international law." Hartford Fire Ins. Co. v. California, 509 U. S. 764, 815. This noninterference principle is served here by the Court's interpretation of 42 U. S. C. §12182(b)(2)(A)(iv)'s "readily achievable" language to avoid conflict with international legal obligations. The plurality's further suggestion that the "internal affairs" clear statement rule may block Title III-prompted structural modifications, even in the absence of conflict with international obligations, cuts the rule loose from its foundation. Because international relations are not at risk and the United States has a strong interest in protecting American passengers on foreign and domestic cruise ships, there is no reason to demand a clearer congressional statement that Title III reaches the vessels in question. Pp. 1-4. Justice Thomas concluded that Title III of the of the Americans with Disabilities Act of 1990, insofar as it could be read to require structural changes, lacks a sufficiently clear statement that it applies to the internal affairs of foreign vessels. However, the clear statement rule does not render Title III entirely inapplicable to foreign vessels; instead, Title III applies to foreign ships only to the extent to which it does not bear on their internal affairs. Pp. 1-4. Kennedy, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A-1, and II-B-2, in which Stevens, Souter, Ginsburg, and Breyer, JJ., joined, an opinion with respect to Parts II-A-2, II-B-1, II-B-3, and III-B, in which Stevens and Souter, JJ., joined, and an opinion with respect to Part III-A, in which Stevens, Souter, and Thomas, JJ., joined. Ginsburg, J., filed an opinion concurring in part and concurring in the judgment, in which Breyer, J., joined. Thomas, J., filed an opinion concurring in part, dissenting in part, and concurring in the judgment in part. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and O'Connor, J., joined, and in which Thomas, J., joined with respect to Part I-A.DOUGLAS SPECTOR, et al., PETITIONERS v.NORWEGIAN CRUISE LINE LTD.on writ of certiorari to the united states court of appeals for the fifth circuit[June 6, 2005] Justice Kennedy announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II-A-1, and II-B-2, an opinion with respect to Parts II-A-2, II-B-1, II-B-3, and III-B, in which Justice Stevens and Justice Souter join, and an opinion with respect to Part III-A, in which Justice Stevens, Justice Souter, and Justice Thomas join. This case presents the question whether Title III of the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 353, 42 U. S. C. §12181 et seq., applies to foreign-flag cruise ships in United States waters. The Court of Appeals for the Fifth Circuit held Title III did not apply because of a presumption, which it sought to derive from this Court's case law, that, absent a clear indication of congressional intent, general statutes do not apply to foreign-flag ships. 356 F. 3d 641, 644-646 (2004). The Court of Appeals for the Eleventh Circuit, on the other hand, has held that the ADA does apply to foreign-flag cruise ships in United States waters. See Stevens v. Premier Cruises, Inc., 215 F. 3d 1237 (2000). We granted certiorari to resolve the conflict. 542 U. S. ___ (2004). Our cases hold that a clear statement of congressional intent is necessary before a general statutory requirement can interfere with matters that concern a foreign-flag vessel's internal affairs and operations, as contrasted with statutory requirements that concern the security and well-being of United States citizens or territory. While the clear statement rule could limit Title III's application to foreign-flag cruise ships in some instances, when it requires removal of physical barriers, it would appear the rule is inapplicable to many other duties Title III might impose. We therefore reverse the decision of the Court of Appeals for the Fifth Circuit that the ADA is altogether inapplicable to foreign vessels; and we remand for further proceedings.I The respondent Norwegian Cruise Line Ltd. (NCL), a Bermuda Corporation with a principal place of business in Miami, Florida, operates cruise ships that depart from, and return to, ports in the United States. The ships are essentially floating resorts. They provide passengers with staterooms or cabins, food, and entertainment. The cruise ships stop at different ports of call where passengers may disembark. Most of the passengers on these cruises are United States residents; under the terms and conditions of the tickets, disputes between passengers and NCL are to be governed by United States law; and NCL relies upon extensive advertising in the United States to promote its cruises and increase its revenues. Despite the fact that the cruises are operated by a company based in the United States, serve predominately United States residents, and are in most other respects United States-centered ventures, almost all of NCL's cruise ships are registered in other countries, flying so-called flags of convenience. The two NCL cruise ships that are the subject of the present litigation, the Norwegian Sea and the Norwegian Star, are both registered in the Bahamas. The petitioners are disabled individuals and their companions who purchased tickets in 1998 or 1999 for round-trip cruises on the Norwegian Sea or the Norwegian Star, with departures from Houston, Texas. Naming NCL as the defendant, the petitioners filed a class action in the United States District Court for the Southern District of Texas on behalf of all persons similarly situated. They sought declaratory and injunctive relief under Title III of the ADA, which prohibits discrimination on the basis of disability. The petitioners asserted that cruise ships are covered both by Title III's prohibition on discrimination in places of "public accommodation," §12182(a), and by its prohibition on discrimination in "specified public transportation services," §12184(a). Both provisions requirecovered entities to make "reasonable modifications in policies, practices, or procedures" to accommodate disabled individuals, §§12182(b)(2)(A)(ii), 12184(b)(2)(A), and re-quire removal of "architectural barriers, and communi-cation barriers that are structural in nature" wheresuch removal is "readily achievable," §§12182(b)(2)(A)(iv), 12184(b)(2)(C). The District Court held that, as a general matter, Title III applies to foreign-flag cruise ships in United States territorial waters. Civ. Action No. H-00-2649 (SD Tex., Sept. 10, 2002), App. to Pet. for Cert. 35a. The District Court found, however, that the petitioners' claims regarding physical barriers to access could not go forward because the agencies charged with promulgating architectural and structural guidelines for ADA compliance (the Architectural and Transportation Barriers Compliance Board, the Department of Transportation, and the Department of Justice) had not done so for cruise ships. In these circumstances, the court held, it is unclear what structural modifications NCL would need to make. Id., at 36a-42a. The District Court granted NCL's motion to dismiss the barrier-removal claims, but denied NCL's motion with respect to all the other claims. Id., at 47a. The Court of Appeals for the Fifth Circuit affirmed in part and reversed in part. It reasoned that our cases, particularly Benz v. Compania Naviera Hidalgo, S. A., 353 U. S. 138 (1957), and McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U. S. 10 (1963), stand for the proposition that general statutes do not apply to foreign-flag vessels in United States territory absent a clear indication of congressional intent. 356 F. 3d, at 644 ("[T]o apply domestic law to foreign vessels entering United States waters, there must be present the affirmative intention of the Congress clearly expressed" (quoting Benz, supra, at 147 (internal quotation marks omitted)); 356 F. 3d, at 646 (Benz and McCulloch "prohibit United States courts from applying domestic statutes to foreign-flagged ships without specific evidence of congressional intent"). As Title III does not contain a specific provision mandating its application to foreign-flag vessels, the Court of Appeals sustained the District Court's dismissal of the petitioners' barrier-removal claims on this alternative ground and reversed the District Court on the remaining Title III claims. 356 F. 3d, at 650-651. The action was ordered dismissed for failure to state a claim, Fed. Rule Civ. Proc. 12(b)(6), before extensive discovery. We cannot then discuss the specific allegations in much detail but must confine our opinion to the relevant general principles. (On November 24, 2004, the responsible agencies finally did issue draft guidelines for large passenger vessels and a Notice of Proposed Rulemaking. See 69 Fed. Reg. 69244, 69249. These developments are not dispositive of the legal question on which we granted certiorari, and we do not address how they might affect the ultimate resolution of the petitioners' claims.)IIA1 Title III of the ADA prohibits discrimination againstthe disabled in the full and equal enjoyment of pub-lic accommodations, 42 U. S. C. §12182(a), and public transportation services, §12184(a). The general prohi-bitions are supplemented by various, more specificrequirements. Entities that provide public accommo-dations or public transportation: (1) may not impose"eligibility criteria" that tend to screen out disabledindividuals, §§12182(b)(2)(A)(i), 12184(b)(1); (2) mustmake "reasonable modifications in polices, practices, or procedures, when such modifications are necessary" toprovide disabled individuals full and equal enjoy-ment, §§12182(b)(2)(A)(ii), 12184(b)(2)(A); (3) must pro-vide auxiliary aids and services to disabled individ-uals, §§12182(b)(2)(A)(iii), 12184(b)(2)(B); and (4) must remove architectural and structural barriers, or if barrier removal is not readily achievable, must ensure equal access for the disabled through alternative methods, §§12182(b)(2)(A)(iv)-(v), 12184(b)(2)(C). These specific requirements, in turn, are subject to important exceptions and limitations. Eligibility criteria that screen out disabled individuals are permitted when "necessary for the provision" of the services or facilities being offered, §§12182(b)(2)(A)(i), 12184(b)(1). Policies, practices, and procedures need not be modified, and auxiliary aids need not be provided, if doing so would "fundamentally alter" the services or accommodations being offered. §§12182(b)(2)(A)(ii)-(iii). Auxiliary aids are also unnecessary when they would "result in an undue burden," §12182(b)(2)(A)(iii). As we have noted, moreover, the barrier removal and alternative access requirements do not apply when these requirements are not "readily achievable," §§12182(b)(2)(A)(iv)-(v). Additionally, Title III does not impose nondiscrimination or accommodation requirements if, as a result, disabled individuals would pose "a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services," §12182(b)(3). Although the statutory definitions of "public accommodation" and "specified public transportation" do not expressly mention cruise ships, there can be no serious doubt that the NCL cruise ships in question fall within both definitions under conventional principles of interpretation. §§12181(7)(A)-(B),(I),(L), 12181(10). The Court of Appeals for the Fifth Circuit, nevertheless, held that Title III does not apply to foreign-flag cruise ships in United States waters because the statute has no clear statement or explicit text mandating coverage for these ships. This Court's cases, particularly Benz and McCulloch, do hold, in some circumstances, that a general statute will not apply to certain aspects of the internal operations of foreign vessels temporarily in United States waters, absent a clear statement. The broad clear statement rule adopted by the Court of Appeals, however, would apply to every facet of the business and operations of foreign-flag ships. That formulation is inconsistent with the Court's case law and with sound principles of statutory interpretation.2 This Court has long held that general statutes are presumed to apply to conduct that takes place aboard a foreign-flag vessel in United States territory if the interests of the United States or its citizens, rather than interests internal to the ship, are at stake. See Cunard S. S. Co. v. Mellon, 262 U. S. 100, 127 (1923) (holding that the general terms of the National Prohibition Act apply to foreign-flag ships in United States waters because "[t]here is in the act no provision making it inapplicable" to such ships); Uravic v. F. Jarka Co., 282 U. S. 234, 240 (1931) (holding that "general words" should be "generally applied" and that therefore there is "no reason for limiting the liability for torts committed [aboard foreign-flag ships in United States territory] when they go beyond the scope of discipline and private matters that do not interest the territorial power"). The general rule that United States statutes apply to foreign-flag ships in United States territory is subject only to a narrow exception. Absent a clear statement of congressional intent, general statutes may not apply to foreign-flag vessels insofar as they regulate matters that involve only the internal order and discipline of the vessel, rather than the peace of the port. This qualification derives from the understanding that, as a matter of international comity, "all matters of discipline and all things done on board which affec[t] only the vessel or those belonging to her, and [do] not involve the peace or dignity of the country, or the tranquility of the port, should be left by the local government to be dealt with by the authorities of the nation to which the vessel belonged." Wildenhus's Case, 120 U. S. 1, 12 (1887). This exception to the usual presumption, however, does not extend beyond matters of internal order and discipline. "[I]f crimes are committed on board [a foreign-flag vessel] of a character to disturb the peace and tranquility of the country to which the vessel has been brought, the offenders have never by comity or usage been entitled to any exemption from the operation of the local laws." Ibid. The two cases in recent times in which the presumption against applying general statutes to foreign vessels' internal affairs has been invoked, Benz and McCulloch, concern labor relations. The Court held that the general terms of the National Labor Relations Act (NLRA), 49 Stat. 449, 29 U. S. C. §151 et seq., did not govern the respective rights and duties of a foreign ship and its crew because the NLRA standards would interfere with the foreign vessel's internal affairs in those circumstances. These cases recognized a narrow rule, applicable only to statutory duties that implicate the internal order of the foreign vessel rather than the welfare of American citizens. McCulloch, 397 U. S. 195, 198-201 (1970). This narrow clear statement rule is supported by sound principles of statutory construction. It is reasonable to presume Congress intends no interference with matters that are primarily of concern only to the ship and the foreign state in which it is registered. It is also reasonable, however, to presume Congress does intend its statutes to apply to entities in United States territory that serve, employ, or otherwise affect American citizens, or that affect the peace and tranquility of the United States, even if those entities happen to be foreign-flag ships. Cruise ships flying foreign flags of convenience offer public accommodations and transportation services to over 7 million United States residents annually, departing from and returning to ports located in the United States. Large numbers of disabled individuals, many of whom have mobility impairments that make other kinds of vacation travel difficult, take advantage of these cruises or would like to do so. To hold there is no Title III protection for disabled persons who seek to use the amenities of foreign cruise ships would be a harsh and unexpected interpretation of a statute designed to provide broad protection for the disabled. §12101. The clear statement rule adopted by the Court of Appeals for the Fifth Circuit, moreover, would imply that other general federal statutes — including, for example, Title II of the Civil Rights Act of 1964, 78 Stat. 243, 42 U. S. C. §2000a et seq.--would not apply aboard foreign cruise ships in United States waters. A clear statement rule with this sweeping application is unlikely to reflect congressional intent. The relevant category for which the Court demands a clear congressional statement, then, consists not of all applications of a statute to foreign-flag vessels but only those applications that would interfere with the foreign vessel's internal affairs. This proposition does not mean the clear statement rule is irrelevant to the ADA, however. If Title III by its terms does impose duties that interfere with a foreign-flag cruise ship's internal affairs, the lack of a clear congressional statement can mean that those specific applications of Title III are precluded. On remand, the Court of Appeals may need to consider which, if any, Title III requirements interfere with the internal affairs of foreign-flag vessels. As we will discuss further, however, Title III's own limitations and qualifications may make this inquiry unnecessary.B1 The precise content of the category "internal affairs" (or, as it is variously denoted in the case law, "internal order" or "internal operations") is difficult to define with precision. There is, moreover, some ambiguity in our cases as to whether the relevant category of activities is restricted to matters that affect only the internal order of the ship when there is no effect on United States interests, or whether the clear statement rule further comes into play if the predominant effect of a statutory requirement is on a foreign ship's internal affairs but the requirement also promotes the welfare of United States residents or territory. We need not attempt to define the relevant protected category with precision. It suffices to observe that the guiding principles in determining whether the clear statement rule is triggered are the desire for international comity and the presumed lack of interest by the territorial sovereign in matters that bear no substantial relation to the peace and tranquility of the port. It is plain that Title III might impose any number of duties on cruise ships that have nothing to do with a ship's internal affairs. The pleadings and briefs in this case illustrate, but do not exhaust, the ways a cruise ship might offend such a duty. The petitioners allege the respondent charged disabled passengers higher fares and required disabled passengers to pay special surcharges, Plaintiffs' First Amended Original Complaint in No. H-00-2649 (SD Tex.), ¶32, App. 15 (hereinafter Complaint); Brief for Petitioners 17-20; maintained evacuation programs and equipment in locations not accessible to disabled individuals, Complaint ¶19, App. 12; Brief for Petitioners 21; required disabled individuals, but not other passengers, to waive any potential medical liability and to travel with a companion, id., at 8, 17-18; and reserved the right to remove from the ship any disabled individual whose presence endangers the "comfort" of other passengers, id., at 8, 20. The petitioners also allege more generally that respondent "failed to make reasonable modifications in policies, practices, and procedures" necessary to ensure the petitioners' full enjoyment of the services respondent offered. Complaint ¶30, App. 15. These are bare allegations, and their truth is not conceded. We express no opinion on the factual support for those claims. We can say, however, that none of these alleged Title III violations implicate any requirement that would interfere with the internal affairs and management of a vessel as our cases have employed that term. At least one subset of the petitioners' allegations, however, would appear to involve requirements that might be construed as relating to the internal affairs of foreign-flag cruise ships. These allegations concern physical barriers to access on board. For example, according to the petitioners, most of the cabins on the respondent's cruise ships, including the most attractive cabins in the most desirable locations, are not accessible to disabled passengers. Brief for Petitioners 17-18; Complaint ¶16, App. 11. The petitioners also allege that the ships' coamings — the raised edges around their doors — make many areas of the ships inaccessible to mobility-impaired passengers who use wheelchairs or scooters. Brief for Petitioners 24. Removal of these and other access barriers, the petitioners suggest, may be required by Title III's structural barrier removal requirement, §§12182(b)(2)(A)(iv), 12184(b)(2)(C). Although these physical barriers affect the passengers as well as the ship and its crew, the statutory requirement could mandate a permanent and significant alteration of a physical feature of the ship — that is, an element of basic ship design and construction. If so, these applications of the barrier removal requirement likely would interfere with the internal affairs of foreign ships. A permanent and significant modification to a ship's physical structure goes to fundamental issues of ship design and construction, and it might be impossible for a ship to comply with all the requirements different jurisdictions might impose. The clear statement rule would most likely come into play if Title III were read to require permanent and significant structural modifications to foreign vessels. It is quite a different question, however, whether Title III would require this. The Title III requirements that might impose permanent and substantial changes to a ship's architecture and design, are, like all of Title III's requirements, subject to the statute's own specific limitations and qualifications. These limitations may make resort to the clear statement rule unnecessary.2 Title III requires barrier removal if it is "readily achievable," §12182(b)(2)(A)(iv). The statute defines that term as "easily accomplishable and able to be carried out without much difficulty or expense," §12181(9). Title III does not define "difficulty" in §12181(9), but use of the disjunctive--"easily accomplishable and able to be carried out without much difficulty or expense"--indicates that it extends to considerations in addition to cost. Furthermore, Title III directs that the "readily achievable" determination take into account "the impact ... upon the operation of the facility," §12181(9)(B). Surely a barrier removal requirement under Title III that would bring a vessel into noncompliance with the International Convention for the Safety of Life at Sea (SOLAS), Nov. 1, 1974, [1979-1980], 32 U. S. T. 47, T. I. A. S. No. 9700, or any other international legal obligation, would create serious difficulties for the vessel and would have a substantial impact on its operation, and thus would not be "readily achievable." This understanding of the statute, urged by the United States, is eminently reasonable. Brief as Amicus Curiae 27-28; ADA Title III Technical Assistance Manual III-1.2000(D) (Supp. 1994), available at http://www.usdoj.gov/crt/ada/taman3up.html (as visited May 31, 2005, and available in Clerk of Court's case file); 56 Fed. Reg. 45600 (1991). If, moreover, Title III's "readily achievable" exemption were not to take conflicts with international law into account, it would lead to the anomalous result that American cruise ships are obligated to comply with Title III even if doing so brings them into noncompliance with SOLAS, whereas foreign ships — which unlike American ships have the benefit of the internal affairs clear statement rule — would not be so obligated. Congress could not have intended this result. It is logical and proper to conclude, moreover, that whether a barrier modification is "readily achievable" under Title III must take into consideration the modification's effect on shipboard safety. A separate provision of Title III mandates that the statute's nondiscrimination and accommodation requirements do not apply if disabled individuals would pose "a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids or services," §12182(b)(3). This reference is to a safety threat posed by a disabled individual, whereas here the question would be whether the structural modification itself may pose the safety threat. It would be incongruous, nevertheless, to attribute to Congress an intent to require modifications that threaten safety to others simply because the threat comes not from the disabled person but from the accommodation itself. The anomaly is avoided by concluding that a structural modification is not readily achievable within the meaning of §12181(9) if it would pose a direct threat to the health or safety of others.3 Because Title III does not require structural modifications that would conflict with international legal obligations or pose any real threat to the safety of the crew or other passengers, it may well follow — though we do not decide the question here — that Title III does not require any permanent and significant structural modifications that interfere with the internal affairs of any cruise ship, foreign flag or domestic. If that is indeed the case, recourse to the clear statement rule would not be necessary. Cases may arise, however, where it is prudent for a court to turn first to the internal affairs clear statement rule rather than deciding the precise scope and operation of the statute. Suppose, for example, it is a difficult question whether a particular Title III barrier removal requirement is readily achievable, but the requirement does entail a permanent and significant structural modification, interfering with a foreign ship's internal affairs. In that case a court sensibly could invoke the clear statement rule without determining whether Title III actually imposes the requirement. On the other hand, there may be many cases where it is not obvious that a particular physical modification relates to a vessel's basic architecture and construction, but it is clear the modification would conflict with SOLAS or some other international legal obligation. In those cases, a court may deem it appropriate to hold that the physical barrier modification in question is not readily achievable, without resort to the clear statement rule.IIIA In light of the preceding analysis, it is likely that under a proper interpretation of "readily achievable" Title III would impose no requirements that interfere with the internal affairs of foreign-flag cruise ships. If Title III did impose a duty that required cruise ships to make permanent and significant structural modifications that did not conflict with international law or threaten safety, or if the statute otherwise interfered with a foreign ship's internal affairs, the clear statement rule recognized in Benz and McCulloch would come into play at that point. The Title III requirement in question, however, would still apply to domestic cruise ships, and Title III requirements having nothing to do with internal affairs would continue to apply to domestic and foreign ships alike. This application-by-application use of the internal affairs clear statement rule is consistent with how the rule has traditionally operated. In Benz and McCulloch, the Court concluded that the NLRA did not apply to labor relations between a foreign-flag ship and its foreign crew because of interference with the foreign ships' internal affairs. In Ariadne Shipping, however, the Court held that the NLRA does apply to labor relations between a foreign-flag ship and American longshoremen. Ariadne Shipping acknowledged the clear statement rule invoked in Benz and McCulloch but held that the "considerations that informed the Court's construction of the statute in [those cases] are clearly inapplicable" to the question whether the statute applies to foreign ships' labor relations with American longshoremen. 397 U. S., at 199. Ariadne Shipping held that the longshoremen's "short-term, irregular and casual connection with the [foreign] vessels plainly belied any involvement on their part with the ships' 'internal discipline and order.' " Id., at 200. Therefore, application of the NLRA to foreign ships' relations with American longshoremen "would have threatened no interference in the internal affairs of foreign-flag ships." Ibid. If the clear statement rule restricts some applications of the NLRA to foreign ships (e.g., labor relations with the foreign crew), but not others (e.g., labor relations with American longshoremen), it follows that the case-by-case application is also required under Title III of the ADA. The rule, where it is even necessary to invoke it, would restrict some applications of Title III to foreign ships (e.g., certain structural barrier modification requirements), but not others (e.g., the prohibition on discriminatory ticket pricing). The internal affairs clear statement rule is an implied limitation on otherwise unambiguous general terms of the statute. It operates much like the principle that general statutes are construed not to apply extraterritorially, EEOC v. Arabian American Oil Co., 499 U. S. 244, 260 (1991), or the rule that general statutes are presumed not to impose monetary liability on nonconsenting States, Atascadero State Hospital v. Scanlon, 473 U. S. 234 (1985). Implied limitation rules avoid applications of otherwise unambiguous statutes that would intrude on sensitive domains in a way that Congress is unlikely to have intended had it considered the matter. In these instances, the absence of a clear congressional statement is, in effect, equivalent to a statutory qualification saying, for example, "Notwithstanding any general language of this statute, this statute shall not apply extraterritorially"; or "... this statute shall not abrogate the sovereign immunity of nonconsenting States"; or "... this statute does not regulate the internal affairs of foreign-flag vessels." These clear statement rules ensure Congress does not, by broad or general language, legislate on a sensitive topic inadvertently or without due deliberation. An all-or-nothing approach, under which a statute is altogether inapplicable if but one of its specific applications trenches on the domain protected by a clear statement rule, would convert the clear statement rule from a principle of interpretive caution into a trap for an unwary Congress. If Congress passes broad legislation that has some applications that implicate a clear statement rule — say, some extraterritorial applications, or some applications that would regulate foreign ships' internal affairs — an all-or-nothing approach would require that the entire statute, or some arbitrary set of applications larger than the domain protected by the clear statement rule, would be nullified. We decline to adopt that posture.B Our holding that the clear statement rule operates only when a ship's internal affairs are affected does not implicate our holding in Clark v. Martinez, 543 U. S. ___ (2005). Martinez held that statutory language given a limiting construction in one context must be interpreted consistently in other contexts, "even though other of the statute's applications, standing alone, would not support the same limitation." Id., at ___ (slip op., at 8). This was simply a rule of consistent interpretation of the statu-tory words, with no bearing on the implementation of a clear statement rule addressed to particular statutory applications. The statute in Martinez, 8 U. S. C. §1231(a)(6), authorized detention of aliens pending their removal. In Zadvydas v. Davis, 533 U. S. 678, 696-699 (2001), the Court had interpreted this statute to impose time limits on detention of aliens held for certain reasons stated in the statute. The Court held that an alternative interpretation, one allowing indefinite detention of lawfully admitted aliens, would raise grave constitutional doubts. Having determined the meaning of §1231(a)(6)'s text in Zadvydas, we were obliged in Martinez to follow the same interpretation even in a context where the constitutional concerns were not present. Martinez, 543 U. S., at ___ (slip op., at 5-9). As already made clear, the question was one of textual interpretation, not the scope of some implied exception. The constitutional avoidance canon simply informed the choice among plausible readings of §1231(a)(6)'s text: "The canon of constitutional avoidance," Martinez explained, "comes into play only when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction; and the canon functions as a means of choosing between them." Id., at ___ (slip op., at 13) (emphasis deleted). Martinez gives full respect to the distinction between rules for resolving textual ambiguity and implied limitations on otherwise unambiguous text. Indeed, Martinez relies on the distinction to reconcile its holding with two cases which did involve a clear statement rule, Raygor v. Regents of Univ. of Minn., 534 U. S. 533 (2002), and Jinks v. Richland County, 538 U. S. 456 (2003). Raygor had held that the tolling provision in the supplemental jurisdiction statute, 28 U. S. C. §1367(d), does not apply to nonconsenting States because the statute lacks the required clear statement that States are within its coverage. Later, in Jinks, we held that the §1367(d) tolling provision does apply to suits against counties. The counties were not protected by a clear statement rule analogous to the one applicable to States. See Martinez, 543 U. S., at ___ (slip op., at 11-12, and n. 6); see also id., at ___ (slip op., at 6-8) (Thomas, J., dissenting). "This progression of decisions," we held in Martinez, "does not remotely establish that §1367(d) has two different meanings, equivalent to the unlimited-detention/limited-detention meanings of §1231(a)(6) urged upon us here. They hold that the single and unchanging disposition of §1367(d) ... does not apply to claims against States that have not consented to be sued in federal court." Id., at ___ (slip op., at 12). The distinction between Zadvydas and Martinez, on the one hand, and Raygor and Jinks, on the other, is the distinction between a canon for choosing among plausible meanings of an ambiguous statute and a clear statement rule that implies a special substantive limit on the application of an otherwise unambiguous mandate. The internal affairs clear statement rule is an implied limitation rule, not a principle for resolving textual ambiguity. Our cases, then, do not compel or permit the conclusion that if any one application of Title III might interfere with a foreign-flag ship's internal affairs, Title III is inapplicable to foreign ships in every other instance.*** The Court of Appeals for the Fifth Circuit held that general statutes do not apply to foreign-flag ships in United States waters. This Court's cases, however, stand only for the proposition that general statutes are presumed not to impose requirements that would interfere with the internal affairs of foreign-flag vessels. Except insofar as Title III regulates a vessel's internal affairs — a category that is not always well defined and that may require further judicial elaboration — the statute is applicable to foreign ships in United States waters to the same extent that it is applicable to American ships in those waters. Title III's own limitations and qualifications prevent the statute from imposing requirements that would conflict with international obligations or threaten shipboard safety. These limitations and qualifications, though framed in general terms, employ a conventional vocabulary for instructing courts in the interpretation and application of the statute. If, on remand, it becomes clear that even after these limitations are taken into account Title III nonetheless imposes certain requirements that would interfere with the internal affairs of foreign ships — perhaps, for example, by requiring permanent and substantial structural modifications — the clear statement rule would come into play. It is also open to the court on remand to consider application of the clear statement rule at the outset if, as a prudential matter, that appears to be the more appropriate course. We reverse the judgment of the Court of Appeals and remand the case for further proceedings.It is so ordered.DOUGLAS SPECTOR, et al., PETITIONERS v.NORWEGIAN CRUISE LINE LTD.on writ of certiorari to the united states court of appeals for the fifth circuit[June 6, 2005] Justice Ginsburg, with whom Justice Breyer joins, concurring in part and concurring in the judgment. I agree with the Court's holding that Title III of the Americans with Disabilities Act of 1990 covers cruise ships, ante, at 6, and allows them to resist modifications "that would conflict with international legal obligations," ante, at 12-13. I therefore join Parts I, II-A-1, and II-B-2 of the Court's opinion. I would give no wider berth, however, to the "internal affairs" clear statement rule in determining Title III's application to respondent's cruise ships, the Norwegian Sea and Norwegian Star. But see ante, at 14. That rule, as I understand it, derives from, and is moored to, the broader guide that statutes "should not be interpreted to regulate foreign persons or conduct if that regulation would conflict with principles of international law." Hartford Fire Ins. Co. v. California, 509 U. S. 764, 815 (1993) (Scalia, J., dissenting); see also id., at 816 (describing McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U. S. 10 (1963), as applying this principle); Murray v. Schooner Charming Betsy, 2 Cranch 64, 118 (1804). Title III is properly read to avoid such conflict, but should not be hemmed in where there is no potential for international discord.1 The first of the modern cases to address the application of a domestic statute to a foreign-flag ship in U. S. waters, Benz v. Compania Naviera Hidalgo, S. A., 353 U. S. 138 (1957), did not resort to the tag, "internal affairs" rule, to explain the Court's decision.2 Benz held that the Labor Management Relations Act did not reach relations between "a foreign employer and a foreign crew operating under an agreement made abroad under the laws of another nation." Id., at 142. As we concluded in Benz, before reading our law to "run interference in such a delicate field of international relations," "where the possibilities of international discord are so evident and retaliative action so certain," the Court should await Congress' clearly expressed instruction. Id., at 147. Six years later, in McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U. S. 10 (1963), the Court relied on Benz to hold that the National Labor Relations Act does not regulate the representation of alien seamen recruited in Honduras to serve aboard vessels under Honduran flags. Applying our law "to the internal management and affairs" of the vessels in question, we observed, McCulloch, 397 U. S. 195, 200 (1970) (applying U. S. law to foreign ships' labor relations with longshoreworkers employed at U. S. ports is proper because doing so "would ... threate[n] no interference in the internal affairs of foreign-flag ships likely to lead to conflict with foreign or international law"). The noninterference principle underlying the internal affairs clear statement rule is served in this case by the Court's interpretation of Title III's "readily achievable" provision, 42 U. S. C. §12182(b)(2)(A)(iv). See ante, at 12-13. Construing this language to allow ships to resist modifications "that would conflict with international legal obligations," ante, at 13, the Court ensures that Title III will not provoke "international discord" of the kind Benz and McCulloch sought to avoid. I agree with this interpretation, but would create no larger space for the internal affairs rule. The plurality, however, suggests that the clear statement rule has a further office: It may block structural modifications prompted by Title III that are "readily achievable"--because they do not conflict with international legal obligations — but nonetheless "interfer[e] with a foreign ship's internal affairs." Ante, at 14. I disagree with this conception of the rule. In positing an extended application of the internal affairs rule, the plurality cuts the rule loose from its foundation. As Benz and McCulloch demonstrate, the clear statement rule is an interpretive principle counseling against construction of a statute in a manner productive of international discord. When international relations are not at risk, and there is good reason to apply our own law, asserted internal affairs of a ship should hold no greater sway than asserted management prerogatives of a landlocked enterprise.3 As the plurality rightly notes, Title III is a broad remedial statute designed to protect persons with disabilities in a variety of activities and settings. See ante, at 8-9; §12101(b). The United States has a strong interest in ensuring that U. S. resident cruise passengers enjoy Title III's protections on both domestic and foreign ships. See §12101; Brief for United States as Amicus Curiae 10.4 Once conflicts with international legal obligations are avoided, I see no reason to demand a clearer congressional statement that Title III reaches the vessels in question, ships that regularly sail to and from U. S. ports and derive most of their income from U. S. passengers. In sum, I agree that §12182(b)(2)(A)(iv), properly read, does not require shipowners to make modifications that would conflict with international legal obligations. But I would attribute to the internal affairs clear statement rule no further limitation on Title III's governance in this case.DOUGLAS SPECTOR, et al., PETITIONERS v.NORWEGIAN CRUISE LINE LTD.on writ of certiorari to the united states court of appeals for the fifth circuit[June 6, 2005] Justice Scalia, with whom The Chief Justice and Justice O'Connor join, and with whom Justice Thomas joins as to Part I-A, dissenting. I respectfully dissent. The plurality correctly recognizes that Congress must clearly express its intent to apply its laws to foreign-flag ships when those laws interfere with the ship's internal order. Its attempt to place Title III of the Americans with Disabilities Act of 1990 (ADA), outside this rule through creative statutory interpretation and piecemeal application of its provisions is unsupported by our case law. Title III plainly affects the internal order of foreign-flag cruise ships, subjecting them to the possibility of conflicting international obligations. I would hold that, since there is no clear statement of coverage, Title III does not apply to foreign-flag cruise ships.IA As the plurality explains, where a law would interfere with the regulation of a ship's internal order, we require a clear statement that Congress intended such a result. See ante, at 6. This rule is predicated on the "rule of international law that the law of the flag ship ordinarily governs the internal affairs of a ship," McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U. S. 10, 21 (1963), and is designed to avoid "the possibilit[y] of international discord," Benz v. Compania Naviera Hidalgo, S. A., 353 U. S. 138, 147 (1957); see also McCulloch, supra, at 19. The clear-statement rule finds support not only in Benz and McCulloch, but in cases like Cunard S. S. Co. v. Mellon, 262 U. S. 100, 128-129 (1923), where we held that the National Prohibition Act, 41 Stat. 305, forbade foreign-flag ships from carrying or serving alcohol in United States territorial waters. Though we did not say so expressly in that case, prohibiting the carrying and serving of alcohol in United States waters cannot be said to affect the "internal order" of the ship, because it does not in any way affect the operation or functioning of the craft.1 Similarly, in Lauritzen v. Larsen, 345 U. S. 571 (1953), and Hellenic Lines Ltd. v. Rhoditis, 398 U. S. 306 (1970), we did not employ a clear-statement rule in determining whether foreign seamen injured aboard foreign-flag ships could recover under the Jones Act, 41 Stat. 1007, 46 U. S. C. App. §688. We distinguished these cases in McCulloch, explaining that a clear statement is not required "in different contexts, such as the Jones Act ... where the pervasive regulation of the internal order of a ship may not be present." 372 U. S., at 19, n. 9 (emphasis added).2 As the plurality concedes, ante, at 10-11, the structural modifications that Title III of the ADA requires under its barrier-removal provisions, see 42 U. S. C. §§12182(b)(2)(A)(iv), 12184(b)(2)(C), would plainly affect the ship's "internal order." Rendering exterior cabins handicapped-accessible, changing the levels of coamings, and adding public restrooms — the types of modifications petitioners request — would require alteration of core physical aspects of the ship, some of which relate to safety. (Safety has, under international law, traditionally been the province of a ship's flag state.) This is quite different from prohibiting alcohol in United States waters or imposing tort liability for injuries sustained on foreign ships in port — the laws at issue in Cunard and the Jones Act cases. Those restrictions affected the ship only in limited circumstances, and in ways ancillary to its operation at sea. A ship's design and construction, by contrast, are at least as integral to the ship's operation and functioning as the bargaining relationship between shipowner and crew at issue in Benz and McCulloch. Moreover, the structural changes petitioners request would be permanent. Whereas a ship precluded from serving or carrying alcohol in United States waters may certainly carry and serve alcohol on its next trip from Italy to Greece, structural modifications made to comply with American laws cannot readily be removed once the ship leaves our waters and ceases to carry American passengers. This is again much like the situation presented in Benz and McCulloch, where the application of American labor laws would have continued to govern contracts between foreign shipowners and their foreign crews well beyond their time in our waters. The purpose of the "internal order" clear-statement requirement is to avoid casually subjecting oceangoing vessels to laws that pose obvious risks of conflict with the laws of the ship's flag state, the laws of other nations, and international obligations to which the vessels are subject. That structural modifications required under Title III qualify as matters of "internal order" is confirmed by the fact that they may already conflict with the International Convention for the Safety of Life at Sea (SOLAS), Nov. 1, 1974, [1979-1980] 32 U. S. T. 47, T. I. A. S. No. 9700. That treaty, which establishes the safety standards govern-ing the design and maintenance of oceangoing ships, has been ratified by 155 countries. See International Mari-time Organization, Summary of Status of Conventions, http://www.imo.org/Conventions/mainframe.asp?topic_id=247 (all Internet materials as visited June 2, 2005, and available in Clerk of Court's case file). The ADA Accessibility Guidelines (ADAAG) Review Advisory Committee — the Government body Congress has charged with formulating the Title III barrier-removal guidelines — has promulgated rules requiring at least one accessible means of egress to be an elevator, whereas SOLAS, which requires at least two means of escape, does not allow elevators to be one of them. See Passenger Vessel Access Advisory Committee, Final Report: Recommendations for Accessibility Guidelines for Passenger Vehicles, ch. 13, pt. I (Dec. 2000), http://www.access-board.gov/news/pvaac-rept.htm (hereinafter PVAAC Report) (explaining potential conflicts between ADAAG regulations and SOLAS). The ADAAG rules set coaming heights for doors required to be accessible at one-half inch; SOLAS sets coaming heights for some exterior doors at three to six inches to ensure that those doors will be watertight. Ibid. Similar inconsistencies may exist between Title III's structural requirements and the disability laws of other countries. The United Kingdom, for example, is considering the promulgation of rules to govern handicapped accessibility to passenger vehicles, including cruise ships. The rules being considered currently include exact specifications, down to the centimeter, for the height of handrails, beds and electrical switches, and the width of door openings. See Disabled Persons Transport Advisory Committee, The design of large passenger ships and passenger infrastructure: Guidance on meeting the needs of disabled people (Nov. 2000), http://www.dptac.gov.uk/pubs/guideship/pdf/dptacbroch.pdf. Though many of these regulations may be compatible with Title III, it is easy to imagine conflicts arising, given the detailed nature of ADAAG's regulations. See PVAAC Report, chs. 1-11. As we have previously noted, even this "possibility of international discord" with regard to a seagoing vessel's internal order, McCulloch, 372 U. S., at 21 (emphasis added), gives rise to the presumption of noncoverage absent clear statement to the contrary. The Court asserts that Title III would not produce conflicts with the requirements of SOLAS and would not compromise safety concerns. This argument comes at the expense of an expansive en passant interpretation of the exceptions to the barrier-removal requirements of Title III — which interpretation will likely have more significant nationwide effects than the Court's holding concerning Title III's application to foreign-flag vessels. Assuming, however, that the argument is even correct,3 it is entirely beside the point. It has never been a condition for application of the foreign-flag clear-statement rule that an actual conflict with foreign or international law be established — any more than that has been a condition for application of the clear-statement rule regarding extraterritorial effect of congressional enactments. The reason to apply the rule here is that the structure of a ship pertains to the ship's internal order, which is a matter presumably left to the flag state unless Congress indicates otherwise. The basis for that presumption of congressional intent is principally (though perhaps not exclusively) that subjecting such matters to the commands of various jurisdictions raises the possibility (not necessarily the certainty) of conflict among jurisdictions and with international treaties. Even if the Court could, by an imaginative interpretation of Title III, demonstrate that in this particular instance there would be no conflict with the laws of other nations or with international treaties,4 it would remain true that a ship's structure is preeminently part of its internal order; and it would remain true that subjecting ship structure to multiple national requirements invites conflict. That is what triggers application of the clear-statement rule. Safety concerns — and specifically safety as related to ship structure — are traditionally the responsibility of the flag state. Which is to say they are regarded as part of the ship's internal order. And even if Title III makes ample provision for a safety exception to the barrier-removal requirements, what it considers necessary for safety is not necessarily what other nations or international treaties consider necessary. The foregoing renders quite unnecessary the Court's worry that Title III might require American cruise ships to adhere to Congress's prescription in violation of SOLAS. See ante, at 12. If and when that possibility presents itself, the Court remains free to do what it does here: to interpret Title III so as to avoid any conflict. But the availability of such an interpretation has no bearing upon whether the structural features of an oceangoing vessel are part of its internal order. (I must observe, however, that it seems much more plausible that Congress intended to require American cruise ships to adhere to Title III regardless of SOLAS, than that — what the Court apparently believes — Congress intended Title III to be interpreted with an eye to SOLAS.) In any event, the application of Title III to oceangoing vessels under American flag is not at issue here. I would therefore hold that, because Title III's barrier-removal provisions clearly have the possibility of subjecting foreign-flag ships to conflicting international obligations, no reading of Title III — no matter how creative — can alter the presumption that Title III does not apply to foreign-flag ships without a clear statement from Congress.5B The plurality holds that, even "[i]f Title III did impose a duty that required [foreign-flag] cruise ships to make permanent and significant structural modifications[,] or ... otherwise interfered with a foreign ship's internal affairs ... Title III requirements having nothing to do with internal affairs would continue to apply to domestic and foreign ships alike." Ante, at 14. I disagree. Whether or not Title III's prescriptions regarding such matters implicate the "internal order" of the ship, they still relate to the ships' maritime operations and are part of the same Title III.6 The requirements of that enactment either apply to foreign-flag ships or they do not. It is not within our power to design a statute some of whose provisions apply to foreign-flag ships and other of whose provisions do not — any more than it is within our power to prescribe that the statute applies to foreign-flag cruise ships 60% of whose passengers are United States citizens and does not apply to other foreign-flag cruise ships. The plurality's assertion that those portions of Title III that do not implicate a ship's internal order apply to foreign-flag ships displays a confusion between a principle of interpretation based upon a true-to-fact presumption of congressional intent, and a court-made rule. The plurality seems to forget that it is a matter of determining whether Congress in fact intended that its enactment cover foreign-flag ships. To believe that there was any such intent section-by-section and paragraph-by-paragraph is delusional. Either Congress enacted Title III only with domestic entities (and not foreign-flag ships) in mind, or it intended Title III to apply across-the-board. It could not possibly be the real congressional intent that foreign-flag cruise ships be considered "place[s] of public accommodation" or "specified public transportation" for purposes of certain provisions but not for others. That Congress had separate foreign-flag intent with respect to each requirement — and would presumably adopt a clear statement provision-by-provision — is utterly implausible. And far from its being the case that this creates "a trap for an unwary Congress," ante, at 16, it is the plurality's disposition that, in piecemeal fashion, applies to foreign-flag ships provisions never enacted with foreign-flag vessels in mind.7 We recently addressed a similar question in Clark v. Martinez, 543 U. S. ___ (2005), where we explained that a statutory provision must be interpreted consistently from case to case. "It is not at all unusual to give a statut[e] ... a limiting construction called for by one of the statute's applications, even though other of the statute's applications, standing alone, would not support the same limitation." Id., at ___ (slip op., at 8). That principle should apply here. Since some applications of Title III plainly affect the internal order of foreign-flag ships, the absence of a clear statement renders the statute inapplicable — even though some applications of the statute, if severed from the rest, would not require clear statement. This does not mean that a clear statement is required whenever a court applies Title III to any entity — only that a clear statement is required to apply any part of Title III to foreign-flag ships. Raygor v. Regents of Univ. of Minn., 534 U. S. 533 (2002), and Jinks v. Richland County, 538 U. S. 456 (2003), do not dictate otherwise. Raygor held that 28 U. S. C. §1367(d) does not include, in its tolling of the limitations period, claims against States, because it contains no clear statement that States are covered. Jinks held that §1367(d)'s tolling provision does apply to claims against political subdivisions of States, because no clear-statement requirement applies to those entities. In other words, a clear statement is required to apply §1367(d) to States, just as a clear statement is required to apply Title III to foreign-flag ships. A clear statement is not required to apply §1367(d) to political subdivisions of States, just as a clear statement is not required to apply Title III to domestic ships or other domestic entities. The question in each of these cases is whether the statute at issue covers certain entities, not whether some provisions of a statute cover a given entity. The fine-tuning of legislation that the plurality requires would be better left to Congress. To attempt it through the process of case-by-case adjudication is a recipe for endless litigation and confusion. The plurality's resolution of today's case proves the point. It requires this Title III claimant (and every other one who brings a claim against a foreign shipowner) to show that each particular remedy he seeks does not implicate the internal order of the ship. That showing, where structural modification is involved, would not only require the district court to determine what is "readily achievable," ante, at 12-14, and what would "pose 'a significant risk to the health or safety of others,' " ante, at 13 (quoting §12182(b)(3)), but would also require it to determine the obligations imposed by foreign law and international treaties.8 All this to establish the preliminary point that Title III applies and the claim can proceed to adjudication. If Congress desires to impose this time-consuming and intricate process, it is certainly able to do so — though I think it would likely prefer some more manageable solution.9 But for the plurality to impose it as a novel consequence of the venerable clear-statement rule seems to me unreasonable. I would therefore decline to apply all of Title III to foreign-flag ships without a clear statement from Congress.II As the Court appears to concede, neither the "public accommodation" provision nor the "specified public transportation" provision of Title III clearly covers foreign-flag cruise ships. The former prohibits discrimination "on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U. S. C. §12182(a). Though Congress gave a seemingly exhaustive list of entities constituting "public accommodation[s]"--including inns, hotels, restaurants, theaters, banks, zoos, and laundromats — it failed to mention ships, much less foreign-flag ships. See §12181(7). Particularly where Congress has provided such detailed specification, this is not a clear statement that foreign-flag ships are covered. Petitioners also claim that, because cruise ships are essentially floating hotels that contain restaurants and other facilities explicitly named in §12181(7), they should be covered. While this may support the argument that cruise ships are "public accommodations," it does not support the position that Congress intended to reach foreign-flag cruise ships. The "specified public transportation" provision prohibits discrimination on the basis of disability "in the full and equal enjoyment of specified public transportation services provided by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce." §12184(a). The definition of "specified public transportation" includes "transportation by bus, rail, or any other conveyance (other than by aircraft) that provides the general public with general or special service (including charter service) on a regular and continuing basis." §12181(10). "[A]ny other conveyance" clearly covers ships. But even if the statute specifically mentioned ships, that would not be a clear statement that foreign-flag ships are included — any more than the reference to "employer" in the NLRA constituted a clear statement that foreign-flag ship employers were covered, see McCulloch, 372 U. S., at 19-21. Title III of the ADA stands in contrast to other statutes in which Congress has made clear its intent to extend its laws to foreign ships. For example, the Maritime Drug Law Enforcement Act, 94 Stat. 1159, 46 U. S. C. App. §1901 et seq., which permits the inspection and apprehension of vessels suspected of possessing controlled substances, applies to "vessel[s] subject to the jurisdiction of the United States," §1903(a), which includes vessels "located within the customs waters of the United States," §1903(c)(1)(D), and "vessels registered in a foreign nation where the flag nation has consented or waived objection" to United States jurisdiction, §1903(c)(1)(C). Section 5 of the Johnson Act, 64 Stat. 1135, as amended, 106 Stat. 61, 15 U. S. C. §1175(a), restricts the use of gambling devices "on a vessel ... documented under the laws of a foreign country." See also 14 U. S. C. §89(a) (Coast Guard may engage in searches on "waters over which the United States has jurisdiction" of "any vessel subject to the jurisdiction, or to the operation of any law, of the United States"); 18 U. S. C. §2274 (making it unlawful for "the owner, master or person in charge or command of any private vessel, foreign or domestic ... within the territorial waters of the United States" willfully to cause or permit the destruction or injury of their vessel in certain circumstances). That the Department of Justice and the Department of Transportation — the Executive agencies charged with enforcing the ADA — appear to have concluded that Congress intended Title III to apply to foreign-flag cruise ships does not change my view. We "accept only those agency interpretations that are reasonable in light of the principles of construction courts normally employ." ARAMCO, 499 U. S. 244, 260 (1991) (Scalia, J., concurring in part and concurring in judgment) (declining to adopt the Equal Employment Opportunity Commission's determination that Title VII applied to employers abroad); see also id., at 257-258 (opinion of the Court) (same). In light of our longstanding clear-statement rule, it is not reasonable to apply Title III here. I would therefore affirm the Fifth Circuit's judgment that Title III of the ADA does not apply to foreign-flag cruise ships in United States territorial waters.DOUGLAS SPECTOR, et al., PETITIONERS v.NORWEGIAN CRUISE LINE LTD.on writ of certiorari to the united states court of appeals for the fifth circuit[June 6, 2005] Justice Thomas, concurring in part, dissenting in part, and concurring in the judgment in part. When a law regulates the internal order of ships, Congress must clearly express its intent to apply the law to foreign-flag ships. Ante, at 6-8 (plurality opinion); post, at 1-2 (Scalia, J., dissenting). I agree with Justice Scalia that this rule applies to any structural changes to a ship that Title III of the Americans with Disabilities Act of 1990 (ADA) might require, for such changes to a ship's physical structure pertain to its internal affairs. Post, at 2-4 (Scalia, J., dissenting); see ante, at 11 (plurality opinion). I further agree with Justice Scalia that this clear statement rule applies once the possibility, rather than the certainty, of international discord arises; and that the clear statement rule therefore does not require or permit the kind of express conflicts-of-law analysis that the plurality demands. Post, at 4-6 (Scalia, J., dissenting); ante, at 12-13 (majority opinion). Moreover, I do not think that courts should (as the plurality permits) employ the rule selectively, applying it when "prudent" but declining to apply it when "appropriate." Ante, at 13-14 (plurality opinion); see also post, at 10, n. 8 (Scalia, J., dissenting); Small v. United States, 544 U. S. ___, (2005) (slip op., at 11) (Thomas, J., dissenting) ("Whatever the utility of canons as guides to congressional intent, they are useless when modified in ways that Congress could never have imagined"). For those reasons, I join part I-A of Justice Scalia's dissent. While I conclude that the rule applies to certain aspects of Title III, I agree with the plurality that it does not require an "all-or-nothing approach." Ante, at 16. Consequently, those applications of Title III that do not pertain to internal affairs apply to foreign-flag vessels. For that reason, I join part IIIA of the plurality opinion. Clark. I reach this result, however, only because I continue to reject the "lowest common denominator" principle the Court articulated for the first time in Clark v. Martinez, 544 U. S. ___ (2005). See id., at ___ (slip op., at 9-11) (Thomas, J., dissenting). The Court, by contrast, accepts Clark. Moreover, it claims that applying Title III of the ADA to matters that are not within the realm of a ship's internal order is consistent with Clark. The plurality's efforts to distinguish Clark are implausible. The plurality says that today's case differs from Clark because it invokes a clear statement rule to interpret unambiguous text. According to the plurality, Clark concerned the application of a previously adopted limiting construction of ambiguous text, which this Court imposed to ameliorate unrelated constitutional doubts. Ante, at 16-17. As an initial matter, however, the statute at issue in Zadvydas v. Davis, 533 U. S. 678 (2001) and Clark was not ambiguous. Clark, supra, at ___ (slip op., at 16-17) (Thomas, J., dissenting). Even assuming for the sake of argument that it was ambiguous, the distinction the plurality draws has no basis in Clark. In Clark, this Court addressed the period of detention 8 U. S. C. §1231(a)(6) authorized for inadmissible aliens. This was a question left open by Zadvydas, supra, which had addressed the period of detention under the same statute but with respect to a different class of aliens — those who had been admitted into the country. In Zadvydas, this Court had concluded that the possibility of indefinite detention of admitted aliens raised significant constitutional doubts and, in light of those doubts, it limited the Attorney General's power to detain admitted aliens. 533 U. S., at 689-690, 699. Section 1231(a)(6) does not distinguish between the two classes of aliens. Thus, this Court in Clark concluded it was compelled to apply that same construction, which was warranted only by the specific constitutional concerns arising for admitted aliens, to the unadmitted aliens before it. 543 U. S., at __ (slip op., at 8). Clark's conclusion stemmed from the narrowing construction adopted in Zadvydas, not the type of rule or canon that gave rise to that construction. 543 U. S., at ___ (slip op., at 6-7). The plurality's reasoning cannot be squared with Clark's "lowest common denominator" principle. Under Clark, "[t]he lowest common denominator, as it were, must govern." Id., at ___ (slip op., at 8). Just as in Zadvydas and Clark, this Court is called upon to interpret the same statutory text with respect to two different classes of cases — those that implicate the internal affairs of a vessel and those that do not. And just like the statute at issue in Zadvydas and Clark, Title III "applies without differentiation" to the internal and external affairs of foreign-flag vessels, as well as the internal and external affairs of domestic-flag ships. 543 U. S., at ___ (slip op., at 6). Thus, the limiting construction of Title III's definitions excluding foreign cruise ships from those definitions must govern all applications of the statute, not just those applications that pertain to internal affairs. According to Clark, the Court may not narrow Title III on a case-by-case basis, depending on whether a particular application of Title III interferes with a ship's internal order. In fact, it may not apply Title III to any ship or, for that matter, any entity at all, because Title III does not distinguish between any of the covered entities. This demonstrates why the principle Clark established is flawed. Today's decision, then, cabins the Clark principle to apply only when the canon of constitutional avoidance is invoked to choose among ambiguous readings of a statute. But even here Clark will continue to make mischief. As I explained in Clark, the lowest common denominator principle requires courts to search out a single hypothetical constitutionally doubtful case to limit a statute's terms in the wholly different case actually before the court, lest the court fail to adopt a reading of the statute that reflects the lowest common denominator. Id., at ___ (slip op., at 14) (dissent). This requires a reverse-Salerno analysis that upends our facial challenge requirements. See Clark, supra, at ___ (slip op., at 10); see also United States v. Salerno, 481 U. S. 739, 745 (1987) (for a facial challenge to succeed, there must be no circumstance in which the statute is constitutional). For this and other reasons I have explained, the Clark analysis allows much havoc to be wrought from the canon of constitutional avoidance. See Clark, supra, at __ (slip op., at 10-15) (dissent). In sum, I believe that Title III of the ADA, insofar as it requires structural changes, lacks a sufficiently clear statement that it applies to the internal affairs of foreign vessels. In my view the clear statement rule does not render Title III entirely inapplicable to foreign vessels; instead, Title III applies to foreign ships only to the extent to which it does not bear on their internal affairs. I therefore would remand for consideration of those Title III claims that do not pertain to the structure of the ship. Accordingly, I concur in part III A of the plurality opinion, join part I A of Justice Scalia's dissent, and concur in the judgment in part.FOOTNOTESFootnote 1 Were a clear statement rule in order, I would agree with the plurality's application-by-application approach.Footnote 2 Only in a footnote describing a National Labor Relations Board decision did the Court make a synonymous reference to the "internal economy of a vessel of foreign registry and ownership." Benz, 353 U. S., at 143, n. 5.Footnote 3 One could hardly anticipate that, absent conflict with international legal obligations, the application of Title III sought in this case would generate a "storm of diplomatic protest." Id., at 146 (noting "storm of diplomatic protest" against proposal to apply U. S. law to prohibit advance payments by a foreign vessel to foreign seamen in foreign ports).Footnote 4 As the Court notes, the ships at issue here "are operated by a company based in the United States, serve predominantly United States residents, and are in most other respects United States-centered ventures." Ante, at 2. Merchant ships sailing between U. S. and foreign ports would present a different question.FOOTNOTESFootnote 1 The plurality also appears to have found that the National Prohibition Act contained a clear statement of intent to reach foreign-flag vessels, because the Act had been amended to state that it applied to "all territory subject to [the] jurisdiction" of the United States. Cunard S. S. Co. v. Mellon, 262 U. S. 100, 127 (1923) (internal quotation marks omitted).Footnote 2 The plurality intimates that the clear-statement rule might be inapplicable in situations where, as here, the foreign-flag ships have a number of contacts with the United States. See ante, at 8. McCulloch, 372 U. S., at 19, expressly rejected this approach, explaining that any attempt to weigh the ship's contacts with the United States "would inevitably lead to embarrassment in foreign affairs and would be entirely infeasible in actual practice."Footnote 3 This is by no means clear. Title III defines "readily achievable" as "easily accomplishable and able to be carried out without much difficulty or expense." §12181(9). It is, at best, ambiguous whether a barrier removal can be rendered not "easily accomplishable" or not "able to be carried out without much difficulty" by factors extrinsic to the removal itself. Conflict of an easily altered structure with foreign laws seems to me not much different from the tendency of an easily altered structure to deter customers. That is why, as suggested in text, the Court's unexpected Title III holding may be the most significant aspect of today's foreign-flag decision.Footnote 4 The Court, of course, has not even shown that Title III is consistent with the laws of the cruise ships' flag state; much less has it undertaken the Herculean task — which its theory of presumed coverage by domestic law would require — of showing Title III consistent with the laws of all the cruise ships' ports of call.Footnote 5 Of course this clear-statement rule would not apply to the onshore operations of foreign cruise companies, which would be treated no differently from the operations of other foreign companies on American soil.Footnote 6 This includes the pricing and ticketing policies, which are intimately related to the ships' maritime operations (and perhaps to internal order) because they are designed to defray the added cost and provide the added protection that the cruise-ship companies deem necessary for safe transport of disabled passengers.Footnote 7 The plurality's discussion of Longshoremen v. Ariadne Shipping Co., 397 U. S. 195 (1970), is misleading. Although Ariadne clearly recognized the existence of an internal-order rule in our case law, see id., at 200, Ariadne did not hold, similarly to what the plurality holds here, that application of the foreign-flag clear-statement rule prevented some provisions of the National Labor Relations Act (NLRA) from being applied to foreign-flag ships but allowed others to be applied. Rather, it held that the clear-statement rule did not apply at all to activities that were not "within the 'maritime operations of foreign-flag ships.' " Ibid. The case is relevant only to questions the Court does not decide here — namely, application of Title III to onshore operations of the foreign-flag ships. It is not relevant to the question whether all maritime activities are exempt from Title III for lack of a clear statement.Footnote 8 The plurality attempts to simplify this inquiry by explaining that, if it is "a difficult question whether a particular Title III barrier removal requirement is readily achievable, but the requirement does entail a permanent and significant structural modification, interfering with a foreign ship's internal affairs[,] a court sensibly could invoke the clear statement rule without determining whether Title III actually imposes the requirement." Ante, at 14. It is impossible to reconcile this with the plurality's rationale, which excludes the clear-statement rule when there is no actual conflict with foreign law. On the plurality's own analysis, significant structural modifications are least likely to pose an actual conflict with foreign law, since they are most likely to be regarded as (under the plurality's new Title III jurisprudence) not "readily achievable" and hence not required. I am at a loss to understand what the plurality has in mind.Footnote 9 After this Court concluded, in EEOC v. Arabian American Oil Co., 499 U. S. 244, 260 (1991), (ARAMCO), that Title VII of the Civil Rights Act of 1964, does not protect American citizens working for American employers in foreign countries, Congress amended Title VII. Unlike what would have been this Court's only available resolution of the issue had it come to the opposite conclusion in ARAMCO — that Title VII applies to all American employers operating abroad — Congress was able to craft a more nuanced solution by exempting employers if compliance with Title VII would run afoul of the law in the country where the workplace was located. See 42 U. S. C. §2000e-1(b); cf. §12112(c)(1) (same disposition for Title I of the ADA).

On the strength of a complaint for a search warrant based on an informant's statements that he had observed tinfoil packets on the person of a bartender and behind the bar at a certain tavern and that he had been advised by the bartender that the latter would have heroin for sale on a certain date, a judge of an Illinois state court issued a warrant authorizing the search of the tavern and the person of the bartender for "evidence of the offense of possession of a controlled substance." Upon entering the tavern to execute the warrant, police officers announced their purpose and advised those present that they were going to conduct a "cursory search for weapons." The officer who searched the customers felt what he described as "a cigarette pack with objects in it" in his first patdown of appellant, one of the customers. The officer did not then remove this pack from appellant's pocket but, after patting down other customers, returned to appellant, frisked him again, retrieved the cigarette pack from his pants pocket, and found inside it six tinfoil packets containing heroin. After appellant was indicted for unlawful possession of a controlled substance, he filed a pretrial motion to suppress the contraband seized from his person at the tavern. The trial court denied the motion, finding that the search had been conducted under the authority of an Illinois statute which empowers law enforcement officers executing a search warrant to detain and search any person found on the premises in order to protect themselves from attack or to prevent the disposal or concealment of anything described in the warrant. Appellant was convicted, and the Illinois Appellate Court affirmed, holding that the Illinois statute was not unconstitutional in its application to the facts of this case.Held: The searches of appellant and the seizure of what was in his pocket contravened the Fourth and Fourteenth Amendments. Pp. 90-96. (a) When the search warrant was issued the authorities had no probable cause to believe that any person found in the tavern, aside from the bartender, would be violating the law. The complaint for the warrant did not allege that the tavern was frequented by persons illegally purchasing drugs or that the informant had ever seen a patron of the tavern purchase drugs from the bartender or any other person. And probable cause to search appellant was still absent when the police executed the warrant; upon entering the tavern, the police did not recognize appellant and had no reason to believe that he had committed, was committing, or was about to commit any offense. The police did possess a warrant based on probable cause to search the tavern where appellant happened to be when the warrant was executed, but a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Sibron v. New York, . Although the warrant gave the officers authority to search the premises and the bartender, it gave them no authority to invade the constitutional protections possessed individually by the tavern's customers. Pp. 90-92. (b) Nor was the action of the police constitutionally permissible on the theory that the first search of appellant constituted a reasonable frisk for weapons under the doctrine of Terry v. Ohio, , and yielded probable cause to believe that appellant was carrying narcotics, thus justifying the second search for which no warrant was required in light of the exigencies of the situation coupled with the ease with which appellant could have disposed of the illegal substance. A reasonable belief that a person is armed and presently dangerous must form the predicate to a patdown of the person for weapons. Here, the State is unable to articulate any specific fact that would have justified a police officer at the scene in even suspecting that appellant was armed and dangerous. Pp. 92-93. (c) The Fourth and Fourteenth Amendments will not be construed to permit evidence searches of persons who, at the commencement of the search, are on "compact" premises subject to a search warrant, even where the police have a "reasonable belief" that such persons "are connected with" drug trafficking and "may be concealing or carrying away the contraband." Cf. United States v. Di Re, . Pp. 94-96. 58 Ill. App. 3d 57, 373 N. E. 2d 1013, reversed and remanded.STEWART, J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, POWELL, and STEVENS, JJ., joined. BURGER, C. J., filed a dissenting opinion, in which BLACKMUN and REHNQUIST, JJ., joined, post, p. 96. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C. J., and BLACKMUN, J., joined, post, p. 98.Alan D. Goldberg argued the cause pro hac vice for appellant. With him on the briefs were Ralph Ruebner and Mary Robinson. Melbourne A. Noel, Jr., Assistant Attorney General of Illinois, argued the cause for appellee. With him on the brief were William J. Scott, Attorney General, and Donald B. Mackay, Assistant Attorney General.* [Footnote *] Laurance S. Smith filed a brief for the State Public Defender of California as amicus curiae urging reversal.Fred E. Inbau, Wayne W. Schmidt, Frank G. Carrington, Jr., James P. Manak, Richard J. Brzeczek, Mike Greely, Attorney General of Montana, and Marc F. Racicot, Assistant Attorney General, filed a brief for Americans for Effective Law Enforcement, Inc., et al., as amici curiae urging affirmance.MR. JUSTICE STEWART delivered the opinion of the Court.An Illinois statute authorizes law enforcement officers to detain and search any person found on premises being searched pursuant to a search warrant, to protect themselves from attack or to prevent the disposal or concealment of anything described in the warrant.1 The question before us is whether the application of this statute to the facts of the present case violated the Fourth and Fourteenth Amendments.IOn March 1, 1976, a special agent of the Illinois Bureau of Investigation presented a "Complaint for Search Warrant" to a judge of an Illinois Circuit Court. The complaint recited that the agent had spoken with an informant known to the police to be reliable and: "3. The informant related ... that over the weekend of 28 and 29 February he was in the [Aurora Tap Tavern, located in the city of Aurora, Ill.] and observed fifteen to twenty-five tin-foil packets on the person of the bartender `Greg' and behind the bar. He also has been in the tavern on at least ten other occasions and has observed tin-foil packets on `Greg' and in a drawer behind the bar. The informant has used heroin in the past and knows that tin-foil packets are a common method of packaging heroin. "4. The informant advised ... that over the weekend of 28 and 29 February he had a conversation with `Greg' and was advised that `Greg' would have heroin for sale on Monday, March 1, 1976. This conversation took place in the tavern described." On the strength of this complaint, the judge issued a warrant authorizing the search of "the following person or place: ... [T]he Aurora Tap Tavern... . Also the person of `Greg', the bartender, a male white with blondish hair appx. 25 years." The warrant authorized the police to search for "evidence of the offense of possession of a controlled substance," to wit, "[h]eroin, contraband, other controlled substances, money, instrumentalities and narcotics, paraphernalia used in the manufacture, processing and distribution of controlled substances."In the late afternoon of that day, seven or eight officers proceeded to the tavern. Upon entering it, the officers announced their purpose and advised all those present that they were going to conduct a "cursory search for weapons." One of the officers then proceeded to pat down each of the 9 to 13 customers present in the tavern, while the remaining officers engaged in an extensive search of the premises.The police officer who frisked the patrons found the appellant, Ventura Ybarra, in front of the bar standing by a pinball machine. In his first patdown of Ybarra, the officer felt what he described as "a cigarette pack with objects in it." He did not remove this pack from Ybarra's pocket. Instead, he moved on and proceeded to pat down other customers. After completing this process the officer returned to Ybarra and frisked him once again. This second search of Ybarra took place approximately 2 to 10 minutes after the first. The officer relocated and retrieved the cigarette pack from Ybarra's pants pocket. Inside the pack he found six tinfoil packets containing a brown powdery substance which later turned out to be heroin.Ybarra was subsequently indicted by an Illinois grand jury for the unlawful possession of a controlled substance. He filed a pretrial motion to suppress all the contraband that had been seized from his person at the Aurora Tap Tavern. At the hearing on this motion the State sought to justify the search by reference to the Illinois statute in question. The trial court denied the motion to suppress, finding that the search had been conducted under the authority of subsection (b) of the statute, to "prevent the disposal or concealment of [the] things particularly described in the warrant." The case proceeded to trial before the court sitting without a jury, and Ybarra was found guilty of the possession of heroin.On appeal, the Illinois Appellate Court held that the Illinois statute was not unconstitutional "in its application to the facts" of this case. 58 Ill. App. 3d 57, 64, 373 N. E. 2d 1013, 1017. The court acknowledged that, had the warrant directed that a "large retail or commercial establishment" be searched, the statute could not constitutionally have been read to "authorize a `blanket search' of persons or patrons found" therein. Id., at 62, 373 N. E. 2d, at 1016. The court interpreted the statute as authorizing the search of persons found on premises described in a warrant only if there is "some showing of a connection with those premises, that the police officer reasonably suspected an attack, or that the person searched would destroy or conceal items described in the warrant." Id., at 61, 373 N. E. 2d, at 1016. Accordingly, the State Appellate Court found that the search of Ybarra had been constitutional because it had been "conducted in a one-room bar where it [was] obvious from the complaint ... that heroin was being sold or dispensed," id., at 62, 373 N. E. 2d, at 1016, because "the six packets of heroin ... could easily [have been] concealed by the defendant and thus thwart the purpose of the warrant," id., at 61, 373 N. E. 2d, at 1016, and because Ybarra was not an "innocent strange[r] having no connection with the premises," ibid. The court, therefore, affirmed Ybarra's conviction, and the Illinois Supreme Court denied his petition for leave to appeal. There followed an appeal to this Court, and we noted probable jurisdiction. .IIThere is no reason to suppose that, when the search warrant was issued on March 1, 1976, the authorities had probable cause to believe that any person found on the premises of the Aurora Tap Tavern, aside from "Greg," would be violating the law.2 The search warrant complaint did not allege that the bar was frequented by persons illegally purchasing drugs. It did not state that the informant had ever seen a patron of the tavern purchase drugs from "Greg" or from any other person. Nowhere, in fact, did the complaint even mention the patrons of the Aurora Tap Tavern.Not only was probable cause to search Ybarra absent at the time the warrant was issued, it was still absent when the police executed the warrant. Upon entering the tavern, the police did not recognize Ybarra and had no reason to believe that he had committed, was committing, or was about to commit any offense under state or federal law. Ybarra made no gestures indicative of criminal conduct, made no movements that might suggest an attempt to conceal contraband, and said nothing of a suspicious nature to the police officers. In short, the agents knew nothing in particular about Ybarra, except that he was present, along with several other customers, in a public tavern at a time when the police had reason to believe that the bartender would have heroin for sale.It is true that the police possessed a warrant based on probable cause to search the tavern in which Ybarra happened to be at the time the warrant was executed.3 But, a person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Sibron v. New York, . Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person. This requirement cannot be undercut or avoided by simply pointing to the fact that coincidentally there exists probable cause to search or seizure another or to search the premises where the person may happen to be. The Fourth and Fourteenth Amendments protect the "legitimate expectations of privacy" of persons, not places. See Rakas v. Illinois, , 148-149; Katz v. United States, .Each patron who walked into the Aurora Tap Tavern on March 1, 1976, was clothed with constitutional protection against an unreasonable search or an unreasonable seizure. That individualized protection was separate and distinct from the Fourth and Fourteenth Amendment protection possessed by the proprietor of the tavern or by "Greg." Although the search warrant, issued upon probable cause, gave the officers authority to search the premises and to search "Greg," it gave them no authority whatever to invade the constitutional protections possessed individually by the tavern's customers.4 Notwithstanding the absence of probable cause to search Ybarra, the State argues that the action of the police in searching him and seizing what was found in his pocket was nonetheless constitutionally permissible. We are asked to find that the first patdown search of Ybarra constituted a reasonable frisk for weapons under the doctrine of Terry v. Ohio, . If this finding is made, it is then possible to conclude, the State argues, that the second search of Ybarra was constitutionally justified. The argument is that the patdown yielded probable cause to believe that Ybarra was carrying narcotics, and that this probable cause constitutionally supported the second search, no warrant being required in light of the exigencies of the situation coupled with the ease with which Ybarra could have disposed of the illegal substance.We are unable to take even the first step required by this argument. The initial frisk of Ybarra was simply not supported by a reasonable belief that he was armed and presently dangerous, a belief which this Court has invariably held must form the predicate to a patdown of a person for weapons.5 Adams v. Williams, ; Terry v. Ohio, supra, at 21-24, 27. When the police entered the Aurora Tap Tavern on March 1, 1976, the lighting was sufficient for them to observe the customers. Upon seeing Ybarra, they neither recognized him as a person with a criminal history nor had any particular reason to believe that he might be inclined to assault them. Moreover, as Police Agent Johnson later testified, Ybarra, whose hands were empty, gave no indication of possessing a weapon, made no gestures or other actions indicative of an intent to commit an assault, and acted generally in a manner that was not threatening. At the suppression hearing, the most Agent Johnson could point to was that Ybarra was wearing a 3/4-length lumber jacket, clothing which the State admits could be expected on almost any tavern patron in Illinois in early March. In short, the State is unable to articulate any specific fact that would have justified a police officer at the scene in even suspecting that Ybarra was armed and dangerous.The Terry case created an exception to the requirement of probable cause, an exception whose "narrow scope" this Court "has been careful to maintain."6 Under that doctrine a law enforcement officer, for his own protection and safety, may conduct a patdown to find weapons that he reasonably believes or suspects are then in the possession of the person he has accosted. See, e. g., Adams v. Williams, supra (at night, in high-crime district, lone police officer approached person believed by officer to possess gun and narcotics). Nothing in Terry can be understood to allow a generalized "cursory search for weapons" or, indeed, any search whatever for anything but weapons. The "narrow scope" of the Terry exception does not permit a frisk for weapons on less than reasonable belief or suspicion directed at the person to be frisked, even though that person happens to be on premises where an authorized narcotics search is taking place.What has been said largely disposes of the State's second and alternative argument in this case. Emphasizing the important governmental interest "in effectively controlling traffic in dangerous, hard drugs" and the ease with which the evidence of narcotics possession may be concealed or moved around from person to person, the State contends that the Terry "reasonable belief or suspicion" standard should be made applicable to aid the evidence-gathering function of the search warrant. More precisely, we are asked to construe the Fourth and Fourteenth Amendments to permit evidence searches of persons who, at the commencement of the search, are on "compact" premises subject to a search warrant, at least where the police have a "reasonable belief" that such persons "are connected with" drug trafficking and "may be concealing or carrying away the contraband."Over 30 years ago, the Court rejected a similar argument in United States v. Di Re, . In that case, a federal investigator had been told by an informant that a transaction in counterfeit gasoline ration coupons was going to occur at a particular place. The investigator went to that location at the appointed time and saw the car of one of the suspected parties to the illegal transaction. The investigator went over to the car and observed a man in the driver's seat, another man (Di Re) in the passenger's seat, and the informant in the back. The informant told the investigator that the person in the driver's seat had given him counterfeit coupons. Thereupon, all three men were arrested and searched. Among the arguments unsuccessfully advanced by the Government to support the constitutionality of the search of Di Re was the contention that the investigator could lawfully have searched the car, since he had reasonable cause to believe that it contained contraband, and correspondingly could have searched any occupant of the car because the contraband sought was of the sort "which could easily be concealed on the person."7 Not deciding whether or not under the Fourth Amendment the car could have been searched, the Court held that it was "not convinced that a person, by mere presence in a suspected car, loses immunities from search of his person to which he would otherwise be entitled."8 The Di Re case does not, of course, completely control the case at hand. There the Government investigator was proceeding without a search warrant, and here the police possessed a warrant authorizing the search of the Aurora Tap Tavern. Moreover, in Di Re the Government conceded that its officers could not search all the persons in a house being searched pursuant to a search warrant.9 The State makes no such concession in this case. Yet the governing principle in both cases is basically the same, and we follow that principle today. The "long-prevailing" constitutional standard of probable cause embodies "`the best compromise that has been found for accommodating [the] often opposing interests' in `safeguard[ing] citizens from rash and unreasonable interferences with privacy and in `seek[ing] to give fair leeway for enforcing the law in the community's protection.'"10 For these reasons, we conclude that the searches of Ybarra and the seizure of what was in his pocket contravened the Fourth and Fourteenth Amendments.11 Accordingly, the judgment is reversed, and the case is remanded to the Appellate Court of Illinois, Second District, for further proceedings not inconsistent with this opinion. It is so ordered.

As part of a drug interdiction effort, Broward County Sheriff's Department officers routinely board buses at scheduled stops and ask passengers for permission to search their luggage. Two officers boarded respondent Bostick's bus and, without articulable suspicion, questioned him and requested his consent to search his luggage for drugs, advising him of his right to refuse. He gave his permission, and the officers, after finding cocaine, arrested Bostick on drug trafficking charges. His motion to suppress the cocaine on the ground that it had been seized in violation of the Fourth Amendment was denied by the trial court. The Florida Court of Appeal affirmed, but certified a question to the State Supreme Court. That court, reasoning that a reasonable passenger would not have felt free to leave the bus to avoid questioning by the police, adopted a per se rule that the sheriff's practice of "working the buses" is unconstitutional.Held: 1. The Florida Supreme Court erred in adopting a per se rule that every encounter on a bus is a seizure. The appropriate test is whether, taking into account all of the circumstances surrounding the encounter, a reasonable passenger would feel free to decline the officers' requests or otherwise terminate the encounter. Pp. 433-437. (a) A consensual encounter does not trigger Fourth Amendment scrutiny. See Terry v. Ohio, , n. 16. Even when officers have no basis for suspecting a particular individual, they may generally ask the individual questions, Florida v. Rodriguez, , ask to examine identification, INS v. Delgdo, , and request consent to search luggage, Florida v. Royer, , provided they do not convey a message that compliance with their requests is required. Thus, there is no doubt that, if this same encounter had taken place before Bostick boarded the bus or in the bus terminal, it would not be a seizure. Pp. 434-435. (b) That this encounter took place on a bus is but one relevant factor in determining whether or not it was of a coercive nature. The state court erred in focusing on the "free to leave" language of Michigan v. Chesternut, , rather than on the principle that those words were intended to capture. This inquiry is not an accurate measure of an encounter's coercive effect when a person is seated on a bus about to depart, has no desire to leave, and would not feel free to leave even if there were no police present. The more appropriate inquiry is whether a reasonable passenger would feel free to decline the officers' request or otherwise terminate the encounter. Thus, this case is analytically indistinguishable from INS v. Delgado, supra. There, no seizure occurred when INS agents visited factories at random, stationing some agents at exits while others questioned workers, because, even though workers were not free to leave without being questioned, the agents' conduct gave them no reason to believe that they would be detained if they answered truthfully or refused to answer. Such a refusal, alone, does not furnish the minimal level of objective justification needed for detention or seizure. Id., at 216-217. Pp. 435-437. 2. This case is remanded for the Florida courts to evaluate the seizure question under the correct legal standard. The trial court made no express findings of fact, and the State Supreme Court rested its decision on a single fact - that the encounter took place on a bus - rather than on the totality of the circumstances. Rejected, however, is Bostick's argument that he must have been seized because no reasonable person would freely consent to a search of luggage containing drugs, since the "reasonable person" test presumes an innocent person. Pp. 437-440. 554 So.2d 1153 (Fla. 1989), reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, SCALIA, KENNEDY, and SOUTER, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined, post, p. 440.Joan Fowler, Assistant Attorney General of Florida, argued the cause for petitioner. With her on the brief was Robert A. Butterworth, Attorney General.Solicitor General Starr argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Assistant Attorney General Mueller, Deputy Solicitor General Bryson, Christopher J. Wright, and Kathleen A. Felton.Donald B. Ayer argued the cause for respondents. With him on the brief was Robert H. Klonoff.* [Footnote *] Mary Irene Coombs, Steven R. Sharpiro, John A. Powell, James K. Green, Jefferey S. Weiner, and Robert G. Amsel filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance.Fred E. Inbau, Wayne W. Schmidt, Bernard J. Farber, and James P. Manak filed a brief for Americans for Effective Law Enforcement as amicus curiae. JUSTICE O'CONNOR delivered the opinion of the Court.We have held that the Fourth Amendment permits police officers to approach individuals at random in airport lobbies and other public places to ask them questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate. This case requires us to determine whether the same rule applies to police encounters that take place on a bus.IDrug interdiction efforts have led to the use of police surveillance at airports, train stations, and bus depots. Law enforcement officers stationed at such locations routinely approach individuals, either randomly or because they suspect in some vague way that the individuals may be engaged in criminal activity, and ask them potentially incriminating questions. Broward County has adopted such a program. County Sheriff's Department officers routinely board buses at scheduled stops and ask passengers for permission to search their luggage.In this case, two officers discovered cocaine when they searched a suitcase belonging to Terrance Bostick. The underlying facts of the search are in dispute, but the Florida Supreme Court, whose decision we review here, stated explicitly the factual premise for its decision: "`Two officers, complete with badges, insignia and one of them holding a recognizable zipper pouch, containing a pistol, boarded a bus bound from Miami to Atlanta during a stopover in Fort Lauderdale. Eyeing the passengers, the officers admittedly without articulable suspicion, picked out the defendant passenger and asked to inspect his ticket and identification. The ticket, from Miami to Atlanta, matched the defendant's identification and both were immediately returned to him as unremarkable. However, the two police officers persisted, and explained their presence as narcotics agents on the lookout for illegal drugs. In pursuit of that aim, they then requested the defendant's consent to search his luggage. Needless to say, there is a conflict in the evidence about whether the defendant consented to the search of the second bag in which the contraband was found and as to whether he was informed of his right to refuse consent. However, any conflict must be resolved in favor of the state, it being a question of fact decided by the trial judge.'" 554 So.2d 1153, 1154-1155 (1989), quoting 510 So.2d 321, 322 (Fla. App. 1987) (Letts, J., dissenting in part). Two facts are particularly worth noting. First, the police specifically advised Bostick that he had the right to refuse consent. Bostick appears to have disputed the point, but, as the Florida Supreme Court noted explicitly, the trial court resolved this evidentiary conflict in the State's favor. Second, at no time did the officers threaten Bostick with a gun. The Florida Supreme Court indicated that one officer carried a zipper pouch containing a pistol - the equivalent of carrying a gun in a holster - but the court did not suggest that the gun was ever removed from its pouch, pointed at Bostick, or otherwise used in a threatening manner. The dissent's characterization of the officers as "gun-wielding inquisitor[s]," post, at 448, is colorful, but lacks any basis in fact.Bostick was arrested and charged with trafficking in cocaine. He moved to suppress the cocaine on the grounds that it had been seized in violation of his Fourth Amendment rights. The trial court denied the motion, but made no factual findings. Bostick subsequently entered a plea of guilty, but reserved the right to appeal the denial of the motion to suppress.The Florida District Court of Appeal affirmed, but considered the issue sufficiently important that it certified a question to the Florida Supreme Court. 510 So.2d, at 322. The Supreme Court reasoned that Bostick had been seized because a reasonable passenger in his situation would not have felt free to leave the bus to avoid questioning by the police. 554 So.2d, at 1154. It rephrased and answered the certified question so as to make the bus setting dispositive in every case. It ruled categorically that "`an impermissible seizure result[s] when police mount a drug search on buses during scheduled stops and question boarded passengers without articulable reasons for doing so, thereby obtaining consent to search the passengers' luggage.'" Ibid. The Florida Supreme Court thus adopted a per se rule that the Broward County Sheriff's practice of "working the buses" is unconstitutional.* The result of this decision is that police in Florida, as elsewhere, may approach persons at random in most public places, ask them questions and seek consent to a search, see id., at 1156; but they may not engage in the same behavior on a bus. Id., at 1157. We granted certiorari, , to determine whether the Florida Supreme Court's per se rule is consistent with our Fourth Amendment jurisprudence.IIThe sole issue presented for our review is whether a police encounter on a bus of the type described above necessarily constitutes a "seizure" within the meaning of the Fourth Amendment. The State concedes, and we accept for purposes of this decision, that the officers lacked the reasonable suspicion required to justify a seizure and that, if a seizure took place, the drugs found in Bostick's suitcase must be suppressed as tainted fruit.Our cases make it clear that a seizure does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free "to disregard the police and go about his business," California v. Hodari D., , the encounter is consensual, and no reasonable suspicion is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. The Court made precisely this point in Terry v. Ohio, , n. 16 (1968): "Obviously, not all personal intercourse between policemen and citizens involves "seizures" of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a `seizure' has occurred."Since Terry, we have held repeatedly that mere police questioning does not constitute a seizure. In Florida v. Royer, (plurality opinion), for example, we explained that "law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is willing to answer some questions, by putting questions to him if the person is willing to listen, or by offering in evidence in a criminal prosecution his voluntary answers to such questions." Id., at 497; see id., at 523, n. 3 (REHNQUIST, J., dissenting).There is no doubt that, if this same encounter had taken place before Bostick boarded the bus or in the lobby of the bus terminal, it would not rise to the level of a seizure. The Court has dealt with similar encounters in airports, and has found them to be "the sort of consensual encounter[s] that implicat[e] no Fourth Amendment interest." Florida v. Rodriguez, . We have stated that even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, see INS v. Delgado, ; Rodriguez, supra, at 5-6; ask to examine the individual's identification, see Delgado, supra, at 216; Royer, supra, at 501 (plurality opinion); United States v. Mendenhall, ; and request consent to search his or her luggage, see Royer, supra, at 501 (plurality opinion) - as long as the police do not convey a message that compliance with their requests is required.Bostick insists that this case is different because it took place in the cramped confines of a bus. A police encounter is much more intimidating in this setting, he argues, because police tower over a seated passenger and there is little room to move around. Bostick claims to find support in language from Michigan v. Chesternut, , and other cases, indicating that a seizure occurs when a reasonable person would believe that he or she is not "free to leave." Bostick maintains that a reasonable bus passenger would not have felt free to leave under the circumstances of this case because there is nowhere to go on a bus. Also, the bus was about to depart. Had Bostick disembarked, he would have risked being stranded and losing whatever baggage he had locked away in the luggage compartment.The Florida Supreme Court found this argument persuasive, so much so that it adopted a per se rule prohibiting the police from randomly boarding buses as a means of drug interdiction. The state court erred, however, in focusing on whether Bostick was "free to leave," rather than on the principle that those words were intended to capture. When police attempt to question a person who is walking down the street or through an airport lobby, it makes sense to inquire whether a reasonable person would feel free to continue walking. But when the person is seated on a bus and has no desire to leave, the degree to which a reasonable person would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter.Here, for example, the mere fact that Bostick did not feel free to leave the bus does not mean that the police seized him. Bostick was a passenger on a bus that was scheduled to depart. He would not have felt free to leave the bus even if the police had not been present. Bostick's movements were "confined" in a sense, but this was the natural result of his decision to take the bus; it says nothing about whether or not the police conduct at issue was coercive.In this respect, the Court's decision in INS v. Delgado, supra, is dispositive. At issue there was the INS' practice of visiting factories at random and questioning employees to determine whether any were illegal aliens. Several INS agents would stand near the building's exits, while other agents walked through the factory questioning workers. The Court acknowledged that the workers may not have been free to leave their worksite, but explained that this was not the result of police activity: "Ordinarily, when people are at work, their freedom to move about has been meaningfully restricted, not by the actions of law enforcement officials, but by the workers' voluntary obligations to their employers." Id., at 218. We concluded that there was no seizure because, even though the workers were not free to leave the building without being questioned, the agents' conduct should have given employees "no reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer." Ibid.The present case is analytically indistinguishable from Delgado. Like the workers in that case, Bostick's freedom of movement was restricted by a factor independent of police conduct - i.e., by his being a passenger on a bus. Accordingly, the "free to leave" analysis on which Bostick relies is inapplicable. In such a situation, the appropriate inquiry is whether a reasonable person would feel free to decline the officers' requests or otherwise terminate the encounter. This formulation follows logically from prior cases and breaks no new ground. We have said before that the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would "have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business." Chesternut, supra, at 569. See also Hodari D., supra, 499 U.S., at 628. Where the encounter takes place is one factor, but it is not the only one. And, as the Solicitor General correctly observes, an individual may decline an officer's request without fearing prosecution. See Brief for the United States as Amicus Curiae 25. We have consistently held that a refusal to cooperate, without more, does not furnish the minimal level of objective justification needed for a detention or seizure. See Delgado, supra, at 216-217; Royer, 460 U.S., at 498 (plurality opinion); Brown v. Texas, .The facts of this case, as described by the Florida Supreme Court, leave some doubt whether a seizure occurred. Two officers walked up to Bostick on the bus, asked him a few questions, and asked if they could search his bags. As we have explained, no seizure occurs when police ask questions of an individual, ask to examine the individual's identification, and request consent to search his or her luggage - so long as the officers do not convey a message that compliance with their requests is required. Here, the facts recited by the Florida Supreme Court indicate that the officers did not point guns at Bostick or otherwise threaten him, and that they specifically advised Bostick that he could refuse consent.Nevertheless, we refrain from deciding whether or not a seizure occurred in this case. The trial court made no express findings of fact, and the Florida Supreme Court rested its decision on a single fact - that the encounter took place on a bus - rather than on the totality of the circumstances. We remand so that the Florida courts may evaluate the seizure question under the correct legal standard. We do reject, however, Bostick's argument that he must have been seized because no reasonable person would freely consent to a search of luggage that he or she knows contains drugs. This argument cannot prevail because the "reasonable person" test presupposes an innocent person. See Royer, supra, at 519, n. 4 (BLACKMUN, J., dissenting) ("The fact that [respondent] knew the search was likely to turn up contraband is, of course, irrelevant; the potential intrusiveness of the officers' conduct must be judged from the viewpoint of an innocent person in [his] position"). Accord, Chesternut, 486 U.S., at 574 ("This `reasonable person' standard ... ensures that the scope of Fourth Amendment protection does not vary with the state of mind of the particular individual being approached").The dissent characterizes our decision as holding that police may board buses and, by an "intimidating show of authority," post, at 447 (emphasis added), demand of passengers their "voluntary" cooperation. That characterization is incorrect. Clearly, a bus passenger's decision to cooperate with law enforcement officers authorizes the police to conduct a search without first obtaining a warrant only if the cooperation is voluntary. "Consent" that is the product of official intimidation or harassment is not consent at all. Citizens do not forfeit their constitutional rights when they are coerced to comply with a request that they would prefer to refuse. The question to be decided by the Florida courts on remand is whether Bostick chose to permit the search of his luggage.The dissent also attempts to characterize our decision as applying a lesser degree of constitutional protection to those individuals who travel by bus, rather than by other forms of transportation. This, too, is an erroneous characterization. Our Fourth Amendment inquiry in this ease - whether a reasonable person would have felt free to decline the officers' requests or otherwise terminate the encounter - applies equally to police encounters that take place on trains, planes, and city streets. It is the dissent that would single out this particular mode of travel for differential treatment by adopting a per se rule that random bus searches are unconstitutional.The dissent reserves its strongest criticism for the proposition that police officers can approach individuals as to whom they have no reasonable suspicion and ask them potentially incriminating questions. But this proposition is by no means novel; it has been endorsed by the Court any number of times. Terry, Royer, Rodriguez, and Delgado are just a few examples. As we have explained, today's decision follows logically from those decisions, and breaks no new ground. Unless the dissent advocates overruling a long, unbroken line of decisions dating back more than 20 years, its criticism is not well taken.This Court, as the dissent correctly observes, is not empowered to suspend constitutional guarantees so that the Government may more effectively wage a "war on drugs." See post, at 440, 450-451. If that war is to be fought, those who fight it must respect the rights of individuals, whether or not those individuals are suspected of having committed a crime. By the same token, this Court is not empowered to forbid law enforcement practices simply because it considers them distasteful. The Fourth Amendment proscribes unreasonable searches and seizures; it does not proscribe voluntary cooperation. The cramped confines of a bus are one relevant factor that should be considered in evaluating whether a passenger's consent is voluntary. We cannot agree, however, with the Florida Supreme Court that this single factor will be dispositive in every case.We adhere to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers' requests or otherwise terminate the encounter. That rule applies to encounters that take place on a city street or in an airport lobby, and it applies equally to encounters on a bus. The Florida Supreme Court erred in adopting a per se rule.The judgment of the Florida Supreme Court is reversed, and the case remanded for further proceedings not inconsistent with this opinion.It is so ordered.[Footnote *] The dissent acknowledges that the Florida Supreme Court's answer to the certified question reads like a per se rule, but dismisses as "implausible" the notion that the court would actually apply this rule to "trump" a careful analysis of all the relevant facts. Post, at 445. Implausible as it may seem, that is precisely what the Florida Supreme Court does. It routinely grants review in bus search cases and quashes denials of motions to suppress expressly on the basis of its answer to the certified question in this case. See, e.g., McBride v. State, 554 So.2d 1160 (1989); Mendez v. State, 554 So.2d 1161 (1989); Shaw v. State, 555 So.2d 351 (1989); Avery v. State, 555 So.2d 351 (1989); Serpa v. State, 555 So.2d 1210 (1989); Jones v. State, 559 So.2d 1096 (1990).JUSTICE MARSHALL, with whom JUSTICE BLACKMUN and JUSTICE STEVENS join, dissenting.Our Nation, we are told, is engaged in a "war on drugs." No one disputes that it is the job of law enforcement officials to devise effective weapons for fighting this war. But the effectiveness of a law enforcement technique is not proof of its constitutionality. The general warrant, for example, was certainly an effective means of law enforcement. Yet it was one of the primary aims of the Fourth Amendment to protect citizens from the tyranny of being singled out for search and seizure without particularized suspicion notwithstanding the effectiveness of this method. See Boyd v. United States, ; see also Harris v. United States, (Frankfurter, J., dissenting). In my view, the law enforcement technique with which we are confronted in this case - the suspicionless police sweep of buses in intrastate or interstate travel - bears all of the indicia of coercion and unjustified intrusion associated with the general warrant. Because I believe that the bus sweep at issue in this case violates the core values of the Fourth Amendment, I dissent.IAt issue in this case is a "new and increasingly common tactic in the war on drugs": the suspicionless police sweep of buses in interstate or intrastate travel. United States v. LewisApp. D.C. 306, 307, 921 F.2d 1294, 1295 (1990); see United States v. Flowers, 912 F.2d 707, 710 (CA4 1990) (describing technique in Charlotte, North Carolina); United States v. Madison, 936 F.2d 90, 91, (CA2 1991) (describing technique in Port Authority terminal in New York City); United States v. Chandler, 744 F.Supp. 333, 335 (DC 1990) ("[I]t has become routine to subject interstate travelers to warrantless searches and intimidating interviews while sitting aboard a bus stopped for a short layover in the Capital"); 554 So.2d 1153, 1156-1157 (Fla. 1989) (describing Florida police policy of "`working the buses'"); see also ante, at 431. Typically under this technique, a group of state or federal officers will board a bus while it is stopped at an intermediate point on its route. Often displaying badges, weapons or other indicia of authority, the officers identify themselves and announce their purpose to intercept drug traffickers. They proceed to approach individual passengers, requesting them to show identification, produce their tickets, and explain the purpose of their travels. Never do the officers advise the passengers that they are free not to speak with the officers. An "interview" of this type ordinarily culminates in a request for consent to search the passenger's luggage. See generally United States v. Lewis, supra, at 308, 921 F.2d, at 1296; United States v. Flowers, supra, at 708-709; United States v. Madison, supra, at 91; 554 So.2d, at 1154.These sweeps are conducted in "dragnet" style. The police admittedly act without an "articulable suspicion" in deciding which buses to board and which passengers to approach for interviewing.1 By proceeding systematically in this fashion, the police are able to engage in a tremendously high volume of searches. See, e.g., Florida v. Kerwick, 512 So.2d 347, 348-349 (Fla. App. 1987) (single officer employing sweep technique able to search over 3,000 bags in nine-month period). The percentage of successful drug interdictions is low. See United States v. Flowers, supra, at 710 (sweep of 100 buses resulted in seven arrests).To put it mildly, these sweeps "are inconvenient, intrusive, and intimidating." United States v. Chandler, 744 F.Supp., at 335. They occur within cramped confines, with officers typically placing themselves in between the passenger selected for an interview and the exit of the bus. See, e.g., id., at 336. Because the bus is only temporarily stationed at a point short of its destination, the passengers are in no position to leave as a means of evading the officers' questioning. Undoubtedly, such a sweep holds up the progress of the bus. See United States v. Fields, 909 F.2d 470, 474 n. 2 (CA11 1990); cf. United States v. Rembert, 694 F.Supp. 163, 175 (WDNC 1988) (reporting testimony of officer that he makes "`every effort in the world not to delay the bus,'" but that the driver does not leave terminal until sweep is complete). Thus, this "new and increasingly common tactic," United States v. Lewis, supra, at 307, 921 F.2d, at 1295, burdens the experience of traveling by bus with a degree of governmental interference to which, until now, our society has been proudly unaccustomed. See, e.g., State ex rel. Ekstrom v. Justice Court, 136 Ariz. 1, 6, 663 P.2d 992, 997 (1983) (Feldman, J., concurring) ("The thought that an American can be compelled to `show his papers' before exercising his right to walk the streets, drive the highways, or board the trains is repugnant to American institutions and ideals"). This aspect of the suspicionless sweep has not been lost on many of the lower courts called upon to review the constitutionality of this practice. Remarkably, the courts located at the heart of the "drug war" have been the most adamant in condemning this technique. As one Florida court put it: "`[T]he evidence in this cause has evoked images of other days, under other flags, when no man traveled his nation's roads or railways without fear of unwarranted interruption, by individuals who held temporary power in the Government. The spectre of American citizens being asked, by badge-wielding police, for identification, travel papers - in short, a raison d'etre - is foreign to any fair reading of the Constitution, and its guarantee of human liberties. This is not Hitler's Berlin, nor Stalin's Moscow, nor is it white supremacist South Africa. Yet in Broward County, Florida, these police officers approach every person on board buses and trains ("that time permits") and check identification [and] tickets, [and] ask to search luggage - all in the name of "voluntary cooperation" with law enforcement... .'" 554 So.2d, at 1158, quoting State v. Kerwick, supra, at 348-349 (quoting trial court order). The District Court for the District of Columbia spoke in equally pointed words: "It seems rather incongruous at this point in the world's history that we find totalitarian states becoming more like our free society while we in this nation are taking on their former trappings of suppressed liberties and freedoms." * * * * "The random indiscriminate stopping and questioning of individuals on interstate busses seems to have gone too far. If this Court approves such "bus stops" and allows prosecutions to be based on evidence seized as a result of such "stops," then we will have stripped our citizens of basic Constitutional protections. Such action would be inconsistent with what this nation has stood for during its 200 years of existence. If passengers on a bus passing through the Capital of this great nation cannot be free from police interference where there is absolutely no basis for the police officers to stop and question them, then the police will be free to accost people on our streets without any reason or cause. In this "anything goes" war on drugs, random knocks on the doors of our citizens' homes seeking "consent" to search for drugs cannot be far away. This is not America." United States v. Lewis, 728 F.Supp. 784, 788-789, rev'dApp. D.C. 306, 921 F.2d 1294 (1990). See also United States v. Alexander, 755 F.Supp. 448, 453 (DC 1991); United States v. Madison, 744 F.Supp. 490, 495-497 (SDNY 1990), rev'd, 936 F.2d 90 (CA2 1991); United States v. Chandler, supra, at 335-336; United States v. Mark, 742 F.Supp. 17, 18-19 (DC 1990); United States v. Alston, 742 F.Supp. 13, 15 (DC 1990); United States v. Cothran, 729 F.Supp. 153, 156-158 (DC 1990), rev'dApp. D.C. 306, 921 F.2d 1294 (1990); United States v. Felder, 732 F.Supp. 204, 209 (DC 1990).The question for this Court, then, is whether the suspicionless, dragnet-style sweep of buses in intrastate and interstate travel is consistent with the Fourth Amendment. The majority suggests that this latest tactic in the drug war is perfectly compatible with the Constitution. I disagree.III have no objection to the manner in which the majority frames the test for determining whether a suspicionless bus sweep amounts to a Fourth Amendment "seizure." I agree that the appropriate question is whether a passenger who is approached during such a sweep "would feel free to decline the officers' requests or otherwise terminate the encounter." Ante, at 436. What I cannot understand is how the majority can possibly suggest an affirmative answer to this question.The majority reverses what it characterizes as the Florida Supreme Court's "per se rule" against suspicionless encounters between the police and bus passengers, see ante, at 433, 435-440, suggesting only in dictum its "doubt" that a seizure occurred on the facts of this case, see ante, at 437. However, the notion that the Florida Supreme Court decided this case on the basis of any "per se rule" independent of the facts of this case is wholly a product of the majority's imagination. As the majority acknowledges, the Florida Supreme Court "stated explicitly the factual premise for its decision." Ante, at 431. This factual premise contained all of the details of the encounter between respondent and the police. See 554 So.2d, at 1154; ante, at 431-432. The lower court's analysis of whether respondent was seized drew heavily on these facts, and the court repeatedly emphasized that its conclusion was based on "all the circumstances" of this case. 554 So.2d, at 1157 (emphasis added); see ibid. ("Here, the circumstances indicate that the officers effectively `seized' [respondent]" (emphasis added)).The majority's conclusion that the Florida Supreme Court, contrary to all appearances, ignored these facts is based solely on the failure of the lower court to expressly incorporate all of the facts into its reformulation of the certified question on which respondent took his appeal. See ante, at 433.2 The majority never explains the basis of its implausible assumption that the Florida Supreme Court intended its phrasing of the certified question to trump its opinion's careful treatment of the facts in this case. Certainly, when this Court issues an opinion, it does not intend lower courts and parties to treat as irrelevant the analysis of facts that the parties neglected to cram into the question presented in the petition for certiorari. But in any case, because the issue whether a seizure has occurred in any given factual setting is a question of law, see United States v. Mendenhall, (opinion of Stewart, J.); United States v. MaraghApp. D.C. 256, 258-259, 894 F.2d 415, 417-418 (CADC), cert. denied, , nothing prevents this Court from deciding on its own whether a seizure occurred based on all of the facts of this case as they appear in the opinion of the Florida Supreme Court.These facts exhibit all of the elements of coercion associated with a typical bus sweep. Two officers boarded the Greyhound bus on which respondent was a passenger while the bus, en route from Miami to Atlanta, was on a brief stop to pick up passengers in Fort Lauderdale. The officers made a visible display of their badges and wore bright green "raid" jackets bearing the insignia of the Broward County Sheriff's Department; one held a gun in a recognizable weapons pouch. See 554 So.2d, at 1154, 1157. These facts alone constitute an intimidating "show of authority." See Michigan v. Chesternut, (display of weapon contributes to coercive environment); United States v. Mendenhall, supra, at 554 (opinion of Stewart, J.) ("threatening presence of several officers" and "display of a weapon"); id., at 555 (uniformed attire). Once on board, the officers approached respondent, who was sitting in the back of the bus, identified themselves as narcotics officers and began to question him. See 554 So.2d, at 1154. One officer stood in front of respondent's seat, partially blocking the narrow aisle through which respondent would have been required to pass to reach the exit of the bus. See id., at 1157.As far as is revealed by facts on which the Florida Supreme Court premised its decision, the officers did not advise respondent that he was free to break off this "interview." Inexplicably, the majority repeatedly stresses the trial court's implicit finding that the police officers advised respondent that he was free to refuse permission to search his travel bag. See ante, at 432, 437-438. This aspect of the exchange between respondent and the police is completely irrelevant to the issue before us. For as the State concedes, and as the majority purports to "accept," id., at 433-434, if respondent was unlawfully seized when the officers approached him and initiated questioning, the resulting search was likewise unlawful no matter how well advised respondent was of his right to refuse it. See Florida v. Royer, , 507-508 (1983) (plurality opinion); Wong Sun v. United States, . Consequently, the issue is not whether a passenger in respondent's position would have felt free to deny consent to the search of his bag, but whether such a passenger - without being apprised of his rights - would have felt free to terminate the antecedent encounter with the police.Unlike the majority, I have no doubt that the answer to this question is no. Apart from trying to accommodate the officers, respondent had only two options. First, he could have remained seated while obstinately refusing to respond to the officers' questioning. But in light of the intimidating show of authority that the officers made upon boarding the bus, respondent reasonably could have believed that such behavior would only arouse the officers' suspicions and intensify their interrogation. Indeed, officers who carry out bus sweeps like the one at issue here frequently admit that this is the effect of a passenger's refusal to cooperate. See, e.g., United States v. Cothran, 729 F.Supp., at 156; United States v. Felder, 732 F.Supp., at 205. The majority's observation that a mere refusal to answer questions, "without more," does not give rise to a reasonable basis for seizing a passenger, ante, at 437, is utterly beside the point, because a passenger unadvised of his rights and otherwise unversed in constitutional law has no reason to know that the police cannot hold his refusal to cooperate against him. Second, respondent could have tried to escape the officers' presence by leaving the bus altogether. But because doing so would have required respondent to squeeze past the gun-wielding inquisitor who was blocking the aisle of the bus, this hardly seems like a course that respondent reasonably would have viewed as available to him.3 The majority lamely protests that nothing in the stipulated facts shows that the questioning officer "point[ed] [his] gu[n] at [respondent] or otherwise threatened him" with the weapon. Ante, at 437 (emphasis added). Our decisions recognize the obvious point, however, that the choice of the police to "display" their weapons during an encounter exerts significant coercive pressure on the confronted citizen. E.g., Michigan v. Chesternut, supra, at 575; United States v. Mendenhall, supra, at 554. We have never suggested that the police must go so far as to put a citizen in immediate apprehension of being shot before a court can take account of the intimidating effect of being questioned by an officer with weapon in hand.Even if respondent had perceived that the officers would let him leave the bus, moreover, he could not reasonably have been expected to resort to this means of evading their intrusive questioning. For so far as respondent knew, the bus's departure from the terminal was imminent. Unlike a person approached by the police on the street, see Michigan v. Chesternut, supra, or at a bus or airport terminal after reaching his destination, see United States v. Mendenhall, supra, a passenger approached by the police at an intermediate point in a long bus journey cannot simply leave the scene and repair to a safe haven to avoid unwanted probing by law enforcement officials. The vulnerability that an intrastate or interstate traveler experiences when confronted by the police outside of his "own familiar territory" surely aggravates the coercive quality of such an encounter. See Schneckloth v. Bustamonte, .The case on which the majority primarily relies, INS v. Delgado, , is distinguishable in every relevant respect. In Delgado, this Court held that workers approached by law enforcement officials inside of a factory were not "seized" for purposes of the Fourth Amendment. The Court was careful to point out, however, that the presence of the agents did not furnish the workers with a reasonable basis for believing that they were not free to leave the factory, as at least some of them did. See id., at 218-219, and n. 7. Unlike passengers confronted by law enforcement officials on a bus stopped temporarily at an intermediate point in its journey, workers approached by law enforcement officials at their workplace need not abandon personal belongings and venture into unfamiliar environs in order to avoid unwanted questioning. Moreover, the workers who did not leave the building in Delgado remained free to move about the entire factory, see id., at 218, a considerably less confining environment than a bus. Finally, contrary to the officer who confronted respondent, the law enforcement officials in Delgado did not conduct their interviews with guns in hand. See id., at 212.Rather than requiring the police to justify the coercive tactics employed here, the majority blames respondent for his own sensation of constraint. The majority concedes that respondent "did not feel free to leave the bus" as a means of breaking off the interrogation by the Broward County officers. Ante, at 436. But this experience of confinement, the majority explains, "was the natural result of his decision to take the bus." Ibid. (emphasis added). Thus, in the majority's view, because respondent's "freedom of movement was restricted by a factor independent of police conduct - i.e., by his being a passenger on a bus," ante, at 436 - respondent was not seized for purposes of the Fourth Amendment. This reasoning borders on sophism, and trivializes the values that underlie the Fourth Amendment. Obviously, a person's "voluntary decision" to place himself in a room with only one exit does not authorize the police to force an encounter upon him by placing themselves in front of the exit. It is no more acceptable for the police to force an encounter on a person by exploiting his "voluntary decision" to expose himself to perfectly legitimate personal or social constraints. By consciously deciding to single out persons who have undertaken interstate or intrastate travel, officers who conduct suspicionless, dragnet-style sweeps put passengers to the choice of cooperating or of exiting their buses and possibly being stranded in unfamiliar locations. It is exactly because this "choice" is no "choice" at all that police engage this technique.In my view, the Fourth Amendment clearly condemns the suspicionless, dragnet-style sweep of intrastate or interstate buses. Withdrawing this particular weapon from the government's drug war arsenal would hardly leave the police without any means of combatting the use of buses as instrumentalities of the drug trade. The police would remain free, for example, to approach passengers whom they have a reasonable, articulable basis to suspect of criminal wrongdoing.4 Alternatively, they could continue to confront passengers without suspicion so long as they took simple steps, like advising the passengers confronted of their right to decline to be questioned, to dispel the aura of coercion and intimidation that pervades such encounters. There is no reason to expect that such requirements would render the Nation's buses law enforcement-free zones.IIIThe majority attempts to gloss over the violence that today's decision does to the Fourth Amendment with empty admonitions. "If th[e] [war on drugs] is to be fought," the majority intones, "those who fight it must respect the rights of individuals, whether or not those individuals are suspected of having committed a crime." Ante, at 439. The majority's actions, however, speak louder than its words.I dissent.

An individual convicted for using or carrying a firearm during and in relation to any violent or drug trafficking crime, or possessing a firearm in furtherance of such a crime, receives a 5-year mandatory minimum sentence, in addition to the punishment for the underlying crime. 18 U. S. C. §924(c)(1)(A)(i). The mandatory minimum increases to 7 years "if the firearm is brandished" and to 10 years "if the firearm is discharged." §§924(c)(1)(A)(ii), (iii). Petitioner Dean was convicted of conspiring to commit a bank robbery and discharging a firearm during an armed robbery. Because the firearm was "discharged" during the robbery, Dean was sentenced to a 10-year mandatory minimum prison term on the firearm count. §924(c)(1)(A)(iii). On appeal, he contended that the discharge was accidental, and that §924(c)(1)(A)(iii) requires proof that the defendant intended to discharge the firearm. The Eleventh Circuit affirmed, holding that no proof of intent is required. Held: Section 924(c)(1)(A)(iii) requires no separate proof of intent. The 10-year mandatory minimum applies if a gun is discharged in the course of a violent or drug trafficking crime, whether on purpose or by accident. Pp. 2-9. (a) Subsection (iii) provides a minimum 10-year sentence "if the firearm is discharged." It does not require that the discharge be done knowingly or intentionally, or otherwise contain words of limitation. This Court "ordinarily resist[s] reading words or elements into a statute that do not appear on its face." Bates v. United States, 522 U. S. 23, 29. Congress's use of the passive voice further indicates that subsection (iii) does not require proof of intent. Cf. Watson v. United States, 552 U. S. ___, ___. The statute's structure also suggests no such limitation. Congress expressly included an intent requirement for the 7-year mandatory minimum for brandishing a firearm by separately defining "brandish" to require that the firearm be displayed "in order to intimidate" another person. §924(c)(4). Congress did not, however, separately define "discharge" to include an intent requirement. It is generally presumed that Congress acts intentionally when including particular language in one section of a statute but not in another. Russello v. United States, 464 U. S. 16, 23. Contrary to Dean's contention, the phrase "during and in relation to" in the opening paragraph of §924(c)(1)(A) does not modify "is discharged," which appears in a separate subsection and in a different voice than the principal paragraph. "[I]n relation to" is most naturally read to modify only the nearby verbs "uses" and "carries." This reading will not lead to the absurd results posited by Dean. Pp. 3-6. (b) Dean argues that subsection (iii) must be limited to intentional discharges in order to give effect to the statute's progression of harsher penalties for increasingly culpable conduct. While it is unusual to impose criminal punishment for the consequences of purely accidental conduct, it is not unusual to punish individuals for the unintended consequences of their unlawful acts. The fact that the discharge may be accidental does not mean that the defendant is blameless. The sentencing enhancement accounts for the risk of harm resulting from the manner in which the crime is carried out, for which the defendant is responsible. See Harris v. United States, 536 U. S. 545, 553. An individual bringing a loaded weapon to commit a crime runs the risk that the gun will discharge accidentally. A gunshot — whether accidental or intended — increases the risk that others will be injured, that people will panic, or that violence will be used in response. It also traumatizes bystanders, as it did here. Pp. 6-9. (c) Because the statutory text and structure demonstrate that the discharge provision does not contain an intent requirement, the rule of lenity is not implicated in this case. 517 F. 3d 1224, affirmed. Roberts, C. J., delivered the opinion of the Court, in which Scalia, Kennedy, Souter, Thomas, Ginsburg, and Alito, JJ., joined. Stevens, J., and Breyer, J., filed dissenting opinions.CHRISTOPHER MICHAEL DEAN, PETITIONERv. UNITED STATESon writ of certiorari to the united states court of appeals for the eleventh circuit[April 29, 2009] Chief Justice Roberts delivered the opinion of the Court. Accidents happen. Sometimes they happen to individuals committing crimes with loaded guns. The question here is whether extra punishment Congress imposed for the discharge of a gun during certain crimes applies when the gun goes off accidentally.I Title 18 U. S. C. §924(c)(1)(A) criminalizes using or carrying a firearm during and in relation to any violent or drug trafficking crime, or possessing a firearm in furtherance of such a crime. An individual convicted of that offense receives a 5-year mandatory minimum sentence, in addition to the punishment for the underlying crime. §924(c)(1)(A)(i). The mandatory minimum increases to 7 years "if the firearm is brandished" and to 10 years "if the firearm is discharged." §§924(c)(1)(A)(ii), (iii). In this case, a masked man entered a bank, waved a gun, and yelled at everyone to get down. He then walked behind the teller counter and started removing money from the teller stations. He grabbed bills with his left hand, holding the gun in his right. At one point, he reached over a teller to remove money from her drawer. As he was collecting the money, the gun discharged, leaving a bullet hole in the partition between two stations. The robber cursed and dashed out of the bank. Witnesses later testified that he seemed surprised that the gun had gone off. No one was hurt. App. 16-19, 24, 27, 47-48, 79. Police arrested Christopher Michael Dean and Ricardo Curtis Lopez for the crime. Both defendants were charged with conspiracy to commit a robbery affecting interstate commerce, in violation of 18 U. S. C. §1951(a), and aiding and abetting each other in using, carrying, possessing, and discharging a firearm during an armed robbery, in violation of §924(c)(1)(A)(iii) and §2. App. 11-12. At trial, Dean admitted that he had committed the robbery, id., at 76-81, and a jury found him guilty on both the robbery and firearm counts. The District Court sentenced Dean to a mandatory minimum term of 10 years in prison on the firearm count, because the firearm "discharged" during the robbery. §924(c)(1)(A)(iii); App. 136. Dean appealed, contending that the discharge was accidental, and that the sentencing enhancement in §924(c)(1)(A)(iii) requires proof that the defendant intended to discharge the firearm. The Court of Appeals affirmed, holding that separate proof of intent was not required. 517 F. 3d 1224, 1229 (CA11 2008). That decision created a conflict among the Circuits over whether the accidental discharge of a firearm during the specified crimes gives rise to the 10-year mandatory minimum. See United States v. Brown, 449 F. 3d 154 (CADC 2006) (holding that it does not). We granted certiorari to resolve that conflict. 555 U. S. ____ (2008).II Section 924(c)(1)(A) provides: "[A]ny person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime-- "(i) be sentenced to a term of imprisonment of not less than 5 years; "(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and "(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years." The principal paragraph defines a complete offense and the subsections "explain how defendants are to 'be sentenced.' " Harris v. United States, 536 U. S. 545, 552 (2002). Subsection (i) "sets a catchall minimum" sentence of not less than five years. Id., at 552-553. Subsections (ii) and (iii) increase the minimum penalty if the firearm "is brandished" or "is discharged." See id., at 553. The parties disagree over whether §924(c)(1)(A)(iii) contains a requirement that the defendant intend to discharge the firearm. We hold that it does not.A "We start, as always, with the language of the statute." Williams v. Taylor, 529 U. S. 420, 431 (2000). The text of subsection (iii) provides that a defendant shall be sentenced to a minimum of 10 years "if the firearm is discharged." It does not require that the discharge be done knowingly or intentionally, or otherwise contain words of limitation. As we explained in Bates v. United States, 522 U. S. 23 (1997), in declining to infer an " 'intent to defraud' " requirement into a statute, "we ordinarily resist reading words or elements into a statute that do not appear on its face." Id., at 29. Congress's use of the passive voice further indicates that subsection (iii) does not require proof of intent. The passive voice focuses on an event that occurs without respect to a specific actor, and therefore without respect to any actor's intent or culpability. Cf. Watson v. United States, 552 U. S. ___, ___ (2007) (slip op., at 7) (use of passive voice in statutory phrase "to be used" in 18 U. S. C. §924(d)(1) reflects "agnosticism ... about who does the using"). It is whether something happened — not how or why it happened — that matters. The structure of the statute also suggests that subsection (iii) is not limited to the intentional discharge of a firearm. Subsection (ii) provides a 7-year mandatory minimum sentence if the firearm "is brandished." Congress expressly included an intent requirement for that provision, by defining "brandish" to mean "to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person." §924(c)(4) (emphasis added). The defendant must have intended to brandish the firearm, because the brandishing must have been done for a specific purpose. Congress did not, however, separately define "discharge" to include an intent requirement. "[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." Russello v. United States, 464 U. S. 16, 23 (1983) (internal quotation marks omitted). Dean argues that the statute is not silent on the question presented. Congress, he contends, included an intent element in the opening paragraph of §924(c)(1)(A), and that element extends to the sentencing enhancements. Section 924(c)(1)(A) criminalizes using or carrying a firearm "during and in relation to" any violent or drug trafficking crime. In Smith v. United States, 508 U. S. 223 (1993), we stated that the phrase "in relation to" means "that the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence." Id., at 238. Dean argues that the adverbial phrase thus necessarily embodies an intent requirement, and that the phrase modifies all the verbs in the statute — not only use, carry, and possess, but also brandish and discharge. Such a reading requires that a perpetrator knowingly discharge the firearm for the enhancement to apply. If the discharge is accidental, Dean argues, it is not "in relation to" the underlying crime. The most natural reading of the statute, however, is that "in relation to" modifies only the nearby verbs "uses" and "carries." The next verb--"possesses"--is modified by its own adverbial clause, "in furtherance of." The last two verbs--"is brandished" and "is discharged"--appear in separate subsections and are in a different voice than the verbs in the principal paragraph. There is no basis for reading "in relation to" to extend all the way down to modify "is discharged." The better reading of the statute is that the adverbial phrases in the opening paragraph--"in relation to" and "in furtherance of"--modify their respective nearby verbs, and that neither phrase extends to the sentencing factors. But, Dean argues, such a reading will lead to absurd results. The discharge provision on its face contains no temporal or causal limitations. In the absence of an intent requirement, the enhancement would apply "regardless of when the actions occur, or by whom or for what reason they are taken." Brief for Petitioner 11-12. It would, for example, apply if the gun used during the crime were discharged "weeks (or years) before or after the crime." Reply Brief for Petitioner 11. We do not agree that implying an intent requirement is necessary to address such concerns. As the Government recognizes, sentencing factors such as the one here "often involve ... special features of the manner in which a basic crime was carried out." Brief for United States 29 (quoting Harris, 536 U. S., at 553; internal quotation marks omitted). The basic crime here is using or carrying a firearm during and in relation to a violent or drug trafficking crime, or possessing a firearm in furtherance of any such crime. Fanciful hypotheticals testing whether the discharge was a "special featur[e]" of how the "basic crime was carried out," Harris, 536 U. S., at 553 (internal quotation marks omitted), are best addressed in those terms, not by contorting and stretching the statutory language to imply an intent requirement.B Dean further argues that even if the statute is viewed as silent on the intent question, that silence compels a ruling in his favor. There is, he notes, a presumption that criminal prohibitions include a requirement that the Government prove the defendant intended the conduct made criminal. In light of this presumption, we have "on a number of occasions read a state-of-mind component into an offense even when the statutory definition did not in terms so provide." United States v. United States Gypsum Co., 438 U. S. 422, 437 (1978). "[S]ome indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime." Staples v. United States, 511 U. S. 600, 606 (1994). Dean argues that the presumption is especially strong in this case, given the structure and purpose of the statute. In his view, the three subsections are intended to provide harsher penalties for increasingly culpable conduct: a 5-year minimum for using, carrying, or possessing a firearm; a 7-year minimum for brandishing a firearm; and a 10-year minimum for discharging a firearm. Incorporating an intent requirement into the discharge provision is necessary to give effect to that progression, because an accidental discharge is less culpable than intentional brandishment. See Brown, 449 F. 3d, at 156. It is unusual to impose criminal punishment for the consequences of purely accidental conduct. But it is not unusual to punish individuals for the unintended consequences of their unlawful acts. See 2 W. LaFave, Substantive Criminal Law §14.4, pp. 436-437 (2d ed. 2003). The felony-murder rule is a familiar example: If a defendant commits an unintended homicide while committing another felony, the defendant can be convicted of murder. See 18 U. S. C. §1111. The Sentencing Guidelines reflect the same principle. See United States Sentencing Commission, Guidelines Manual §2A2.2(b)(3) (Nov. 2008) (USSG) (increasing offense level for aggravated assault according to the seriousness of the injury); §2D2.3 (increasing offense level for operating or directing the operation of a common carrier under the influence of alcohol or drugs if death or serious bodily injury results). Blackstone expressed the idea in the following terms:"[I]f any accidental mischief happens to follow from the performance of a lawful act, the party stands excused from all guilt: but if a man be doing any thing unlawful, and a consequence ensues which he did not foresee or intend, as the death of a man or the like, his want of foresight shall be no excuse; for, being guilty of one offence, in doing antecedently what is in itself unlawful, he is criminally guilty of whatever consequence may follow the first misbehaviour." 4 W. Blackstone, Commentaries on the Laws of England 26-27 (1769).Here the defendant is already guilty of unlawful conduct twice over: a violent or drug trafficking offense and the use, carrying, or possession of a firearm in the course of that offense. That unlawful conduct was not an accident. See Smith, 508 U. S., at 238. The fact that the actual discharge of a gun covered under §924(c)(1)(A)(iii) may be accidental does not mean that the defendant is blameless. The sentencing enhancement in subsection (iii) accounts for the risk of harm resulting from the manner in which the crime is carried out, for which the defendant is responsible. See Harris, supra, at 553. An individual who brings a loaded weapon to commit a crime runs the risk that the gun will discharge accidentally. A gunshot in such circumstances — whether accidental or intended — increases the risk that others will be injured, that people will panic, or that violence (with its own danger to those nearby) will be used in response. Those criminals wishing to avoid the penalty for an inadvertent discharge can lock or unload the firearm, handle it with care during the underlying violent or drug trafficking crime, leave the gun at home, or — best yet — avoid committing the felony in the first place. Justice Stevens contends that the statute should be read to require a showing of intent because harm resulting from a discharge may be punishable under other provisions, such as the Sentencing Guidelines (but only if "bodily injury" results). Post, at 6 (dissenting opinion) (citing USSG §2B3.1(b)(3)). But Congress in §924(c)(1)(A)(iii) elected to impose a mandatory term, without regard to more generally applicable sentencing provisions. Punishment available under such provisions therefore does not suggest that the statute at issue here is limited to intentional discharges. And although the point is not relevant under the correct reading of the statute, it is wrong to assert that the gunshot here "caused no harm." Post, at 1. By pure luck, no one was killed or wounded. But the gunshot plainly added to the trauma experienced by those held during the armed robbery. See, e.g., App. 22 (the gunshot "shook us all"); ibid. ("Melissa in the lobby popped up and said, 'oh, my God, has he shot Nora?' "). C Dean finally argues that any doubts about the proper interpretation of the statute should be resolved in his favor under the rule of lenity. See Brief for Petitioner 6. "The simple existence of some statutory ambiguity, however, is not sufficient to warrant application of that rule, for most statutes are ambiguous to some degree." Muscarello v. United States, 524 U. S. 125, 138 (1998); see also Smith, supra, at 239 ("The mere possibility of articulating a narrower construction, however, does not by itself make the rule of lenity applicable"). "To invoke the rule, we must conclude that there is a grievous ambiguity or uncertainty in the statute." Muscarello, supra, at 138-139 (internal quotation marks omitted). In this case, the statutory text and structure convince us that the discharge provision does not contain an intent requirement. Dean's contrary arguments are not enough to render the statute grievously ambiguous. * * * Section 924(c)(1)(A)(iii) requires no separate proof of intent. The 10-year mandatory minimum applies if a gun is discharged in the course of a violent or drug trafficking crime, whether on purpose or by accident. The judgment of the Court of Appeals for the Eleventh Circuit is affirmed.It is so ordered.CHRISTOPHER MICHAEL DEAN, PETITIONER v. UNITED STATESon writ of certiorari to the united states court of appeals for the eleventh circuit[April 29, 2009] Justice Stevens, dissenting. Accidents happen, but they seldom give rise to criminal liability. Indeed, if they cause no harm they seldom give rise to any liability. The Court today nevertheless holds that petitioner is subject to a mandatory additional sentence — a species of criminal liability — for an accident that caused no harm. For two reasons, 18 U. S. C. §924(c)(1)(A)(iii) should not be so construed. First, the structure of §924(c)(1)(A) suggests that Congress intended to provide escalating sentences for increasingly culpable conduct and that the discharge provision therefore applies only to intentional discharges. Second, even if the statute did not affirmatively support that inference, the common-law presumption that provisions imposing criminal penalties require proof of mens rea would lead to the same conclusion. Cf. United States v. X-Citement Video, Inc., 513 U. S. 64, 70 (1994). Accordingly, I would hold that the Court of Appeals erred in concluding that petitioner could be sentenced under §924(c)(1)(A)(iii) absent evidence that he intended to discharge his gun.I It is clear from the structure and history of §924(c)(1)(A) that Congress intended §924(c)(1)(A)(iii) to apply only to intentional discharges. The statute's structure supports the inference that Congress intended to impose increasingly harsh punishment for increasingly culpable conduct. The lesser enhancements for carrying or brandishing provided by clauses (i) and (ii) clearly require proof of intent. Clause (i) imposes a 5-year mandatory minimum sentence for using or carrying a firearm "during and in relation to" a crime of violence or drug trafficking offense, or possessing a firearm "in furtherance" of such an offense. As we have said before, the provision's relational terms convey that it does not reach inadvertent conduct. See Smith v. United States, 508 U. S. 223, 238 (1993) ("The phrase 'in relation to' ... at a minimum, clarifies that the firearm must have some purpose or effect with respect to the drug trafficking crime; its presence or involvement cannot be the result of accident or coincidence"). Similarly, clause (ii) mandates an enhanced penalty for brandishing a firearm only upon proof that a defendant had the specific intent to intimidate. See §924(c)(4). In that context, the most natural reading of clause (iii), which imposes the greatest mandatory penalty, is that it provides additional punishment for the more culpable act of intentional discharge.1 The legislative history also indicates that Congress intended to impose an enhanced penalty only for intentional discharge. In Bailey v. United States, 516 U. S. 137, 148 (1995), the Court held that "use" of a firearm for purposes of §924(c)(1) required some type of "active employment," such as "brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire." Congress responded to Bailey by amending §924(c)(1), making it an offense to "posses[s]" a firearm "in furtherance of" one of the predicate offenses and adding sentencing enhancements for brandishing and discharge. See Pub. L. 105-386, §1(2)(1), 112 Stat. 3469; see also 144 Cong. Rec. 26608 (1998) (remarks of Sen. DeWine) (referring to the amendments as the "Bailey Fix Act"). Given the close relationship between the Bailey decision and Congress' enactment of the brandishing and discharge provisions, those terms are best read as codifying some of the more culpable among the "active employments" of a firearm that the Court identified in Bailey.II Even if there were no evidence that Congress intended §924(c)(1)(A)(iii) to apply only to intentional discharges, the presumption that criminal provisions include an intent requirement would lead me to the same conclusion. Consistent with the common-law tradition, the requirement of mens rea has long been the rule of our criminal jurisprudence. See United States v. United States Gypsum Co., 438 U. S. 422 (1978). The concept of crime as a "concurrence of an evil-meaning mind with an evil-doing hand ... took deep and early root in American soil." Morissette v. United States, 342 U. S. 246, 251-252 (1952). Legislating against that backdrop, States often omitted intent elements when codifying the criminal law, and "courts assumed that the omission did not signify disapproval of the principle but merely recognized that intent was so inherent in the idea of the offense that it required no statutory affirmation." Id., at 252. Similarly, absent a clear statement by Congress that it intended to create a strict-liability offense, a mens rea requirement has generally been presumed in federal statutes. See id., at 273; Staples v. United States, 511 U. S. 600, 605-606 (1994). With only a few narrowly delineated exceptions for such crimes as statutory rape and public welfare offenses, the presumption remains the rule today. See Morissette, 342 U. S., at 251-254, and n. 8; see also Staples, 511 U. S., at 606-607 (discussing United States v. Balint, 258 U. S. 250 (1922)). Although mandatory minimum sentencing provisions are of too recent genesis to have any common-law pedigree, see Harris v. United States, 536 U. S. 545, 579, 581, n. 5 (2002) (Thomas, J., dissenting), there is no sensible reason for treating them differently from offense elements for purposes of the presumption of mens rea. Sentencing provisions of this type have substantially the same effect on a defendant's liberty as aggravated offense provisions. Although a sentencing judge has discretion to issue sentences under §924(c)(1)(A) within the substantial range bounded on one end by the 5-, 7-, or 10-year mandatory minimum sentence and on the other by the statutory maximum sentence, judges in practice rarely exercise that discretion. As Justice Thomas noted in Harris, "the sentence imposed when a defendant is found only to have 'carried' a firearm 'in relation to' a drug trafficking offense appears to be, almost uniformly, if not invariably, five years," and "those found to have brandished a firearm typically, if not always, are sentenced only to 7 years in prison while those found to have discharged a firearm are sentenced only to 10 years." Id., at 578 (dissenting opinion); see also United States Sentencing Commission, Guidelines Manual §2K2.4, comment., n. 2 (Nov. 2008) (USSG) (stating that the minimum sentence required by §924(c)(1)(A) is the guideline sentence and any increase is an upward departure). If anything, imposition of a mandatory minimum sentence under §924(c)(1)(A) will likely have a greater effect on a defendant's liberty than will conviction for another offense because, unlike sentences for most federal offenses, sentences imposed pursuant to that section must be served consecutively to any other sentence. See §924(c)(1)(D)(ii). As the foregoing shows, mandatory minimum sentencing provisions are in effect no different from aggravated offense provisions. The common-law tradition of requiring proof of mens rea to establish criminal culpability should thus apply equally to such sentencing factors. Absent a clear indication that Congress intended to create a strict- liability enhancement, courts should presume that a provision that mandates enhanced criminal penalties requires proof of intent. This conclusion is bolstered by the fact that we have long applied the rule of lenity — which is similar to the mens rea rule in both origin and purpose — to provisions that increase criminal penalties as well as those that criminalize conduct. See United States v. R. L. C., 503 U. S. 291, 305 (1992) (plurality opinion); Bifulco v. United States, 447 U. S. 381, 387 (1980); Ladner v. United States, 358 U. S. 169, 178 (1958).2 Accordingly, I would apply the presumption in this case and avoid the strange result of imposing a substantially harsher penalty for an act caused not by an "evil-meaning mind" but by a clumsy hand. The majority urges the result in this case is not unusual because legislatures commonly "punish individuals for the unintended consequences of their unlawful acts," ante, at 7, but the collection of examples that follows this assertion is telling. The Court cites the felony-murder rule, 18 U. S. C. §1111, and Sentencing Guidelines provisions that permit increased punishment based on the seriousness of the harm caused by the predicate act, see USSG §2A2.2(b)(3) (increasing the offense level for aggravated assault according to the seriousness of the injury); §2D2.3 (increasing the offense level for operating a common carrier under the influence of alcohol or drugs if death or serious injury results). These examples have in common the provision of enhanced penalties for the infliction of some additional harm. By contrast, §924(c)(1)(A)(iii) punishes discharges whether or not any harm is realized. Additionally, in each of the majority's examples Congress or the Sentencing Commission made explicit its intent to punish the resulting harm regardless of the perpetrator's mens rea. Section 924(c)(1)(A)(iii) contains no analogous statement. For these reasons, §924(c)(1)(A)(iii) is readily distinguishable from the provisions the majority cites. Contrary to the majority's suggestion, the existence of provisions that penalize the unintended consequences of felonious conduct underscores the reasonableness of reading §924(c)(1)(A)(iii) to require proof of intent. When harm results from a firearm discharge during the commission of a violent felony or drug trafficking offense, the defendant will be punishable pursuant to USSG §2B3.1(b)(3) (increasing the offense level for robbery according to the resulting degree of bodily injury), the felony-murder rule, or a similar provision. That a defendant will be subject to punishment for the harm resulting from a discharge whether or not he is also subject to the enhanced penalty imposed by §924(c)(1)(A)(iii) indicates that the latter provision was intended to serve a different purpose — namely, to punish the more culpable act of intentional discharge.III In sum, the structure and history of §924(c)(1)(A) indicate that Congress meant to impose the more substantial penalty provided by clause (iii) only in cases of intentional discharge. Were the statute unclear in that regard, I would reach the same conclusion by applying the presumption that Congress intended to include a mens rea requirement. Mandatory sentencing provisions are not meaningfully distinguishable from statutes defining crimes to which we have previously applied the presumption; the rule of Morissette and Staples and not the felony-murder rule should therefore guide our analysis. Because there is insufficient evidence to rebut the presumption in this case, I respectfully dissent.CHRISTOPHER MICHAEL DEAN, PETITIONER v. UNITED STATESon writ of certiorari to the united states court of appeals for the eleventh circuit[April 29, 2009] Justice Breyer, dissenting. For many of the reasons that Justice Stevens sets forth, I believe the statutory provision before us applies to intentional, but not to accidental, discharges of firearms. As Justice Stevens points out, this Court in Bailey v. United States, 516 U. S. 137, 148 (1995), held that simple possession of a firearm, without some type of "active employment," such as "brandishing, displaying, bartering, striking with, and, most obviously, firing or attempting to fire," did not constitute "use" of a firearm. See ante, at 2 (dissenting opinion). It seems possible, if not likely, that Congress, in this statute, amended then-existing law by criminalizing the "simple possession" that Bailey found insufficient and then imposed a set of ever more severe mandatory sentences for the conduct that the Court listed in Bailey when it considered ways in which an offender might use a firearm. See ante, at 2-3. If so, the statutory words "is discharged," 18 U. S. C. §924(c)(1)(A)(iii), refer to what Bailey called "firing," and they do not encompass an accidental discharge. I concede that the Court lists strong arguments to the contrary. But, in my view, the "rule of lenity" tips the balance against the majority's position. The "rule of lenity" as ordinarily applied reflects the law's insistence that a criminal statute provide "fair warning ... of what the law intends to do if a certain line is passed." United States v. Bass, 404 U. S. 336, 348 (1971) (internal quotation marks omitted). But here, where a mandatory minimum sentence is at issue, its application reflects an additional consideration, namely, that its application will likely produce an interpretation that hews more closely to Congress' sentencing intent. That is because, in the case of a mandatory minimum, an interpretation that errs on the side of exclusion (an interpretive error on the side of leniency) still permits the sentencing judge to impose a sentence similar to, perhaps close to, the statutory sentence even if that sentence (because of the court's interpretation of the statute) is not legislatively required. See, e.g., United States Sentencing Commission, Guidelines Manual §2B3.1(b)(2) (Nov. 2008) (Specific Offense Characteristics) (possibly calling for a 7-to-9 year increase in the sentencing range in a case like this one). The sentencing judge is most likely to give a low non-Guidelines sentence in an unusual case — where the nature of the accident, for example, makes clear that the offender was not responsible and perhaps that the discharge put no one at risk. See, e.g., Koon v. United States, 518 U. S. 81, 92-94 (1996). And, of course, the unusual nature of such a case means it is the kind of case that Congress did not have in mind when it enacted the statute. Moreover, an error that excludes (erroneously) a set of instances Congress meant to include (such as accidental discharge) could lead the Sentencing Commission to focus on those cases and exercise its investigative and judgmental powers to decide how those cases should be handled. This investigation would, in turn, make available to Congress a body of evidence and analysis that will help it reconsider the statute if it wishes to do so. On the other hand, an interpretation that errs on the side of inclusion requires imposing 10 years of additional imprisonment on individuals whom Congress would not have intended to punish so harshly. Such an interpretation would prevent a sentencing court from giving a lower sentence even in an unusual case, for example, where the accident is unintended, unforeseeable, and imposes no additional risk. And such an interpretation, by erroneously taking discretion away from the sentencing judge, would ensure results that depart dramatically from those Congress would have intended. Cf. Harris v. United States, 536 U. S. 545, 570 (2002) (Breyer, J., concurring in part and concurring in judgment) ("statutory mandatory minimums generally deny the judge the legal power to depart downward, no matter how unusual the special circumstances that call for leniency"). Moreover, because such unusual cases are (by definition) rare, these errors would provide little incentive to the Sentencing Commission or Congress to reconsider the statute. These interpretive asymmetries give the rule of lenity special force in the context of mandatory minimum provisions. Because I believe the discharge provision here is sufficiently ambiguous to warrant the application of that rule, I respectfully dissent.FOOTNOTESFootnote 1 Contrary to the Court's suggestion, ante, at 4, Congress' provision of a specific intent element for brandishing and not for discharge only supports the conclusion that Congress did not intend enhancements under the discharge provision to require proof of specific intent; it supports no inference that Congress also intended to eliminate any general intent requirement and thereby make offenders strictly liable.Footnote 2 To be sure, there are also inquiries for which the Court has said that sentencing provisions are different. In Harris v. United States, 536 U. S. 545, 557 (2002) (plurality opinion), and McMillan v. Pennsylvania, 477 U. S. 79, 87-88 (1986), the Court distinguished for purposes of constitutional analysis mandatory minimum sentencing schemes from offense elements and provisions that increase the statutory maximum sentence. I continue to agree with Justice Thomas' compelling dissent in Harris, in which he rejected the distinction on the ground that mandatory minimum sentencing provisions have at least as significant an affect on a defendant's liberty as additional convictions or statutory maximum provisions. 536 U. S., at 577-578. The logic of treating these provisions similarly is buttressed by our subsequent decision in United States v. Booker, 543 U. S. 220, 233-234 (2005).

[Footnote *] Together with No. 90-113, Clinchfield Coal Co. V. Director, Office of Workers' Compensation Programs, United States Department of Labor, et al., and No. 90-114, consolidation Coal Co. v. Director, Office of Workers' Compensation Programs, United States Department of Labor, et al., on certiorari to the United States Court of Appeals for the Fourth Circuit. Congress created the black lung benefits program to provide compensation for disability to miners due, at least in part, to pneumoconiosis arising out of coal mine employment. The program was first administered by the Social Security Administration (SSA) under the auspices of the then-existent Department of Health, Education, and Welfare (HEW), and later by the Department of Labor (DOL). Congress authorized these Departments, during their respective tenures, to adopt interim regulations governing claims adjudications, but constrained the Secretary of Labor by providing that the DOL regulations "shall not be more restrictive than" HEW's. As here relevant, the HEW interim regulations permit the invocation of a rebuttable statutory presumption of eligibility for benefits upon introduction by the claimant of specified medical evidence, 20 CFR 410.490(b)(1), and a demonstration that the "impairment [thus] established ... arose out of coal mine employment (see 410.416 and 410.456)," 410.490(b)(2). The referred-to sections presume, "in the absence of persuasive evidence to the contrary," that pneumoconiosis arose out of such employment. Once a claimant invokes the eligibility presumption, 410.490(c) permits the SSA to rebut the presumption by two methods. In contrast, the comparable DOL interim regulations set forth four rebuttal provisions. The first two provisions mimic those in the HEW regulations. The third provision permits rebuttal upon a showing that the miner's disability did not arise in whole or in part out of coal mine employment, and the fourth authorizes rebuttal with evidence demonstrating that the miner does not have pneumoconiosis. In No. 89-1714, the Court of Appeals concluded that the DOL regulations were not "more restrictive than" the HEW regulations by virtue of the DOL's third rebuttal provision, and therefore reversed an administrative award of benefits to a claimant found to qualify under the HEW regulations, but not under the DOL provisions. In Nos. 90-113 and 90-114, the Court of Appeals struck down the DOL regulations as being "more restrictive than" HEW's, reversing DOL's denial of benefits to two claimants whose eligibility was deemed rebutted under the fourth rebuttal provision.Held: The third and fourth rebuttal provisions in the DOL regulations do not render those regulations "more restrictive than" the HEW regulations. Pp. 695-706. (a) The Secretary of Labor's determination that her interim regulations are not more restrictive than HEW's warrants deference from this Court. Deference to an agency's interpretation of ambiguous provisions in the statutes it is authorized to implement is appropriate when Congress has delegated policymaking authority to the agency. See, e.g., Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., . Here, since the relevant legislation has produced a complex and highly technical regulatory program, requiring significant expertise in the identification and classification of medical eligibility criteria, and entailing the exercise of judgment grounded in policy concerns, Congress must have intended, with respect to the "not ... more restrictive than" phrase, a delegation of broad policymaking discretion to the Secretary of Labor. This is evident from the statutory text, in that Congress declined to require that the DOL adopt the HEW interim regulations verbatim, and from the statute's legislative history, which demonstrates that the delegation was made with the intention that the black lung program evolve as technological expertise matured. Thus, the Secretary's authority necessarily entails the authority to interpret HEW's regulations and the discretion to promulgate interim regulations based on a reasonable interpretation thereof. Pp. 696-699. (b) The Secretary of Labor's position satisfies Chevron's reasonableness requirement. See 467 U.S., at 845. Based on the premise that the HEW regulations were adopted to ensure that only miners who were disabled due to pneumoconiosis arising out of coal mine employment would receive benefits, the Secretary interprets HEW's 410.490(b)(2) requirement that the claimant demonstrate that the impairment "arose out of coal mine employment" as comparable to DOL's third rebuttal provision, and views subsection (b)(2)'s incorporation by reference of 410.416 and 410.456 as doing the work of DOL's fourth rebuttal method, in light of the statutory definition of pneumoconiosis as "a ... disease ... arising out of coal mine employment." This interpretation harmonizes the two interim regulations with the statute. Moreover, the Secretary's interpretation is more reasoned than that of the claimants, who assert that the HEW regulations contain no provision, either in the invocation subsection or in the rebuttal subsection, that directs factual inquiry into the issue of disability causation or the existence of pneumoconiosis. The claimants' contention that 410.490(b)(1) creates a "conclusive" presumption of entitlement without regard to the existence of competent evidence on these questions is deficient in two respects. First, the claimants' premise is inconsistent with the statutory text, which expressly provides that the presumptions in question will be rebuttable, and requires the Secretary of HEW to consider all relevant evidence. Second, although subsection (c)'s delineation of two rebuttal methods may support an inference that the drafter intended to exclude other methods, such an inference provides no guidance where its application would render a regulation inconsistent with the statute's purpose and language. The fact that the SSA, under the HEW regulations, appeared to award benefits to miners whose administrative files contained scant evidence of eligibility does not require the Secretary to forgo inquiries into disability causation and disease existence. The claimants' argument that HEW omitted such inquiries from its criteria based on a "cost/benefit" conclusion that the inquiries would engender inordinate delays, yet generate little probative evidence, finds scant support in contemporaneous analyses of the SSA awards; disregards entirely subsequent advances in medical technology that Congress could not have intended the HEW or the DOL to ignore; and is based on the unacceptable premise that the Secretary must demonstrate that her reasonable interpretation of HEW's regulations is consistent with HEW's contemporaneous interpretation of those regulations. Pp. 699-706. No. 89-1714, 890 F.2d 1295, affirmed; No. 90-113, 895 F.2d 178, and No. 90-114, 895 F.2d 173, reversed and remanded.BLACKMUN, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, MARSHALL, STEVENS, O'CONNOR, and SOUTER, JJ., joined. SCALIA, J., filed a dissenting opinion, post, p. 706. KENNEDY, J., took no part in the consideration or decision of the litigation.Mark E. Solomons argued the cause for respondents in No. 89-1714 and petitioners in Nos. 90-113 and 90-114. With him on the briefs for petitioners in Nos. 90-113 and 90-114 were Laura Metcoff Klaus, Allen R. Prunty, and John J. Bagnato. Messrs. Bagnato and Solomons, Ms. Klaus, Curtis H. Barnete, and Mr. Prunty filed a brief for respondent BethEnergy Mines, Inc.Christopher J. Wright argued the cause for the federal respondent in all cases. With him on the briefs were Solicitor General Starr, Deputy Solicitor General Shapior, Allen H. Feldman, and Edward D. Sieger.Julian N. Henriques, Jr., argued the cause for petitioner in No. 89-1714 and private respondents in Nos. 90-113 and 90-114. With him on the briefs for petitioner in 89-1714 were Robert E. Lehrer, Timothy P. Creany, and Blair V. Pawlowski. Sherry Lee Wilson filed a brief for respondent Taylor in No. 90-113. Thomas R. Michael filed a brief for respondent Dayton in No. 90-114.Fn Fn Robert H. Stropp, Jr., and Michael Dinnerstein filed a brief for the United Mine Workers of America as amicus curiae urging reversal in No. 89-1714.Briefs of amici curiae urging reversal in Nos. 90-113 and 90-114 and affirmance in 89-1714 were filed for the National Coal Association by William E. Hynan; and for the National Council on Compensation Insurance by Michael Camilleri. JUSTICE BLACKMUN delivered the opinion of the Court.The black lung benefits program, created by Congress, was to be administered first by the Social Security Administration (SSA) under the auspices of the then-existent Department of Health, Education, and Welfare (HEW), and later by the Department of Labor (DOL). Congress authorized these Departments, during their respective tenures, to adopt interim regulations governing the adjudication of claims for black lung benefits, but constrained the Secretary of Labor by providing that the DOL regulations "shall not be more restrictive than" HEW's. This litigation calls upon us to determine whether the Secretary of Labor has complied with that constraint.IAThe black lung benefits program was enacted originally as Title IV of the Federal Coal Mine Health and Safety Act of 1969 (FCMHSA), 83 Stat. 792, 30 U.S.C. 901 et seq., to provide benefits for miners totally disabled due at least in part to pneumoconiosis arising out of coal mine employment, and to the dependents and survivors of such miners. See Pittston Coal Group v. Sebben, ; Mullins Coal Co. v. Director, OWCP, .Through FCMHSA, Congress established a bifurcated system of compensating miners disabled by pneumoconiosis.1 Part B thereof created a temporary program administered by the Social Security Administration under the auspices of the Secretary of Health, Education, and Welfare. This program was intended for the processing of claims filed on or before December 31, 1972. Benefits awarded under part B were paid by the Federal Government. For claims filed after 1972, part C originally authorized a permanent program, administered by the Secretary of Labor, to be coordinated with federally approved state workmen's compensation programs. Benefits awarded under part C were to be paid by the claimants' coal mining employers.Under FCMHSA, the Secretary of HEW was authorized to promulgate permanent regulations regarding the determination and adjudication of part B claims. 30 U.S.C. 921(b). The Secretary's discretion was limited, however, by three statutory presumptions defining eligibility under the part B program. 921(c). For a claimant suffering from pneumoconiosis who could establish 10 years of coal mine employment, there "shall be a rebuttable presumption that his pneumoconiosis arose out of such employment." 921(c)(1). Similarly, for a miner with at least 10 years of coal mine employment who "died from a respirable disease there shall be a rebuttable presumption that his death was due to pneumoconiosis." 921(c)(2). Finally, there was an irrebuttable presumption that a miner presenting medical evidence demonstrating complicated pneumoconiosis was totally disabled as a result of that condition. 921(c)(3). Consistent with these presumptions, HEW promulgated permanent regulations prescribing the methods and standards for establishing entitlement to black lung benefits under part B. See 20 CFR 410.401 to 410.476 (1990).Dissatisfied with the increasing backlog of unadjudicated claims and the relatively high rate of claim denials resulting from the application of the HEW permanent regulations, Congress in 1972 amended FCMSHA and redesignated Title IV of that Act as the Black Lung Benefits Act of 1972. 86 Stat. 150. See S.Rep. No. 92-743 (1972), U.S. Code Cong. & Admin.News 1972, p. 2305. See also Comptroller General of the United States, General Accounting Office, Report to the Congress: Achievements, Administrative Problems, and Costs in Paying Black Lung Benefits to Coal Miners and Their Widows 16-18 (September 5, 1972) (nationally, as of December 31, 1971, claims filed were 347,716, claims processed were 322,582, and rate of claim denial was 50.5 percent). In addition to extending the coverage of part B to those claims filed by living miners prior to July 1, 1973, and those filed by survivors before January 1, 1974, the 1972 amendments liberalized in several ways the criteria and procedures applicable to part B claims. First, the amendments added a fourth statutory presumption of total disability due to pneumoconiosis for claimants unable to produce X-ray evidence of the disease. This presumption applied to a claimant with 15 years of coal mine employment who presented evidence of a totally disabling respiratory or pulmonary impairment. Congress expressly limited rebuttal of the presumption to a showing that the miner did not have pneumoconiosis or that his respiratory or pulmonary impairment did not arise out of employment in a coal mine. 30 U.S.C. 921(c)(4). Second, the 1972 amendments redefined "total disability" to permit an award of benefits on a showing that a miner was unable to perform his coal mining duties or other comparable work - as opposed to the prior requirement that the miner demonstrate that he was unable to perform any job, see 902(f) - and prohibited HEW from denying a claim for benefits solely on the basis of a negative X-ray. 923(b). Third, the 1972 amendments made it easier for survivors of a deceased miner who had been disabled due to pneumoconiosis but had died from a cause unrelated to the disease to demonstrate eligibility for benefits. See 901. Finally, the amendments made clear that, "[i]n determining the validity of claims under [part B], all relevant evidence shall be considered." 923(b).In response to these amendments, the Secretary of HEW adopted interim regulations "designed to "permit prompt and vigorous processing of the large backlog of claims" that had developed during the early phases of administering part B." Sebben, 488 U.S., at 109 quoting 20 CFR 410.490(a) (1973).2 These interim regulations established adjudicatory rules for processing part B claims that permit the invocation of a presumption of eligibility upon demonstration by the claimant of specified factors, and a subsequent opportunity for the Social Security Administration, in administering the program, to rebut the presumption.Specifically, the HEW interim regulations permit claimants to invoke a rebuttable presumption that a miner is "totally disabled due to pneumoconiosis" in one of two ways. First, the claimant can introduce an X-ray, a biopsy, or an autopsy indicating pneumoconiosis. 20 CFR 410.490(b)(1)(i) (1990). Second, for a miner with at least 15 years of coal mine employment, a claimant may introduce ventilatory studies establishing the presence of a chronic respiratory or pulmonary disease. 410.490(b)(1)(ii). In either case, in order to invoke the presumption, the claimant also must demonstrate that the "impairment established in accordance with paragraph (b)(1) of this section arose out of coal mine employment (see 410.416 and 410.456)." 410.490(b)(2). Once a claimant invokes the presumption of eligibility under 410.490(b), the HEW interim regulations permit rebuttal by the SSA upon a showing that the miner is doing his usual coal mine work or comparable and gainful work, or is capable of doing such work. See 410.490(c).The statutory changes adopted by the 1972 amendments and the application of HEW's interim regulations resulted in a surge of claims approvals under part B. See Lopatto, The Federal Black Lung Program: A 1983 Primer, 85 W.Va.L.Rev. 677, 686 (1983) (demonstrating that the overall approval rate for part B claims had substantially increased by December 31, 1974). Because the HEW interim regulations expired with the part B program, however, the Secretary of Labor was constrained to adjudicate all part C claims, i.e., those filed after June 30, 1973, by living miners, and after December 31, 1973, by survivors, under the more stringent permanent HEW regulations. See Sebben, 488 U.S., at 110. Neither the Congress nor the Secretary of Labor was content with the application to part C claims of the unwieldy and restrictive permanent regulations. See Letter, dated Sept. 13, 1974, of William J. Kilberg, Solicitor of Labor, to John B. Rhinelander, General Counsel, Department of HEW, appearing in H.R.Rep. No. 94-770, p. 14 (1975). Not only did the application of the permanent regulations cause the DOL to process claims slowly, but the DOL's claims approval rate was significantly below that of the SSA. See Lopatto, supra, at 691. Accordingly, Congress turned its attention once again to the black lung benefits program.CThe Black Lung Benefits Reform Act of 1977 (BLBRA), 92 Stat. 95, approved and effective March 1, 1978, further liberalized the criteria for eligibility for black lung benefits in several ways. First, the Act expanded the definition of pneumoconiosis to include "sequelae" of the disease, including respiratory and pulmonary impairments arising out of coal mine employment. See 30 U.S.C. 902(b). Second, BLBRA required the DOL to accept a board certified or board-eligible radiologist's interpretation of submitted X-rays if the films met minimal quality standards, thereby prohibiting the DOL from denying a claim based on a secondary assessment of the X-rays provided by a Government-funded radiologist. See 923(b). Finally, the BLBRA added a fifth presumption of eligibility, and otherwise altered the entitlement structure to make it easier for survivors of a deceased long-term miner to obtain benefits. See 921(c)(5) and 902(f).In addition to liberalizing the statutory prerequisites to benefit entitlement, the BLBRA authorized the DOL to adopt its own interim regulations for processing part C claims filed before March 31, 1980. In so doing, Congress required that the "[c]riteria applied by the Secretary of Labor ... shall not be more restrictive than the criteria applicable to a claim filed on June 30, 1973." 902(f)(2).The Secretary of Labor, pursuant to this authorization, adopted interim regulations governing the adjudication of part C claims. These regulations differ significantly from the HEW interim regulations. See 20 CFR 727.203 (1990). The DOL regulations include two presumption provisions similar to the two presumption provisions in the HEW interim regulations. Compare 727.203(a)(1) and (2) with 410.490(b)(1)(i) and (ii). To invoke the presumption of eligibility under these two provisions, however, a claimant need not prove that the "impairment ... arose out of coal mine employment," as was required under the HEW interim regulations. See 410.490(b)(2).In addition, the DOL interim regulations add three methods of invoking the presumption of eligibility not included in the HEW interim regulations. Specifically, under the DOL regulations, a claimant can invoke the presumption of total disability due to pneumoconiosis by submitting blood gas studies that demonstrate the presence of an impairment in the transfer of oxygen from the lung alveoli to the blood; by submitting other medical evidence establishing the presence of a totally disabling respiratory or pulmonary impairment; or, in the case of a deceased miner for whom no medical evidence is available, by submitting a survivor's affidavit demonstrating such a disability. See 727.203(a)(3), (4), and (5).Finally, the DOL interim regulations provide four methods for rebutting the presumptions established under 727.203. Two of the rebuttal provisions mimic those in the HEW regulations, permitting rebuttal upon a showing that the miner is performing or is able to perform his coal mining or comparable work. See 727.203(b)(1) and (2). The other two rebuttal provisions are at issue in these cases. Under these provisions, a presumption of total disability due to pneumoconiosis can be rebutted if "[t]he evidence establishes that the total disability or death of the miner did not arise in whole or in part out of coal mine employment," or if "[t]he evidence establishes that the miner does not, or did not, have pneumoconiosis." See 727.203(b)(3) and (4).IIThe three cases before us present the question whether the DOL's interim regulations are "more restrictive than" the HEW's interim regulations by virtue of the third and fourth rebuttal provisions, and therefore are inconsistent with the agency's statutory authority. In No. 89-1714, Pauley v. BethEnergy Mines, Inc., the Court of Appeals for the Third Circuit concluded that the DOL interim regulations were not more restrictive. BethEnergy Mines, Inc. v. Director, OWCP, 890 F.2d 1295 (1989). John Pauley, the now-deceased husband of petitioner Harriet Pauley, filed a claim for black lung benefits on April 21, 1978, after he had worked 30 years in the underground mines of Pennsylvania. Pauley stopped working soon after he filed his claim for benefits. At a formal hearing on November 5, 1987, the Administrative Law Judge (ALJ) found that Pauley had begun to experience shortness of breath, coughing, and fatigue in 1974, and that those symptoms had gradually worsened, causing him to leave his job in the mines. The ALJ also found that Pauley had arthritis requiring several medications daily, had suffered a stroke in January, 1987, and had smoked cigarettes for 34 years until he stopped in 1974.Because respondent BethEnergy did not contest the presence of coal workers' pneumoconiosis, the ALJ found that the presumption had been invoked under 727.203(a)(1). Turning to the rebuttal evidence, the judge concluded that Pauley was not engaged in his usual coal mine work or comparable and gainful work, and that Pauley was totally disabled from returning to coal mining or comparable employment. See 727.203(b)(1) and (2). The judge then weighed the evidence submitted under 727.203(b)(3), and determined that respondent BethEnergy had sustained its burden of establishing that pneumoconiosis was not a contributing factor in Pauley's total disability and, accordingly, that his disability did not "arise in whole or in part out of coal mine employment." 727.203(b)(3). See Carozza v. United States Steel Corp., 727 F.2d 74 (CA3 1984).Having determined that Pauley was not entitled to receive black lung benefits under the DOL interim regulations, the ALJ felt constrained by Third Circuit precedent to apply the HEW interim regulations to Pauley's claim. He first concluded that respondent BethEnergy's concession that Pauley had pneumoconiosis arising out of coal mining employment was sufficient to invoke the presumption of total disability due to pneumoconiosis under 410.490(b). Because the evidence demonstrated Pauley's inability to work, and the ALJ interpreted 410.490(c) as precluding rebuttal of the presumption by "showing that the claimant's total disability is unrelated to his coal mine employment," the judge found that BethEnergy could not carry its burden on rebuttal, and that Pauley was entitled to benefits.After the ALJ denied its motion for reconsideration, BethEnergy appealed unsuccessfully to the Benefits Review Board. It then sought review in the Court of Appeals for the Third Circuit. That court reversed. It pointed out that the decisions of the ALJ and the Benefits Review Board created "two disturbing circumstances." 890 F.2d, at 1299. First, the court found it "surely extraordinary," ibid., that a determination that Pauley was totally disabled from causes unrelated to pneumoconiosis, which was sufficient to rebut the presumption under 727.203(b)(3), would preclude respondent BethEnergy from rebutting the presumption under 410.490(c). Second, the court considered it to be "outcome-determinative" that the purpose of the Benefits Act is to provide benefits to miners totally disabled at least in part due to pneumoconiosis if the disability arises out of coal mine employment, and that the ALJ had made unchallenged findings that Pauley's disability did not arise even in part out of such employment. 890 F.2d, at 1299-1300. The court found it to be "perfectly evident that no set of regulations under [the Benefits Act] may provide that a claimant who is statutorily barred from recovery may nevertheless recover." Id., at 1300.Asserting that this Court's decision in Sebben, supra, was not controlling because that decision concerned only the invocation of the presumption, and not its rebuttal, the court then concluded that Congress' mandate that the criteria used by the Secretary of Labor be not more restrictive than the criteria applicable to a claim filed on June 30, 1973, applied only to the criteria for determining whether a claimant is "totally disabled," not to the criteria used in rebuttal. Finally, the court pointed out that its result would not differ if it applied the rebuttal provisions of 410.490(c) to Pauley's claim, because subsections (c)(1) and (2) make reference to 410.412(a), which refers to a miner's being "totally disabled due to pneumoconiosis." According to the Third Circuit, there would be no reason for the regulations to include such a reference "unless it was the intention of the Secretary to permit rebuttal by a showing that the claimant's disability did not arise at least in part from coal mine employment." 890 F.2d, at 1302. In the two other cases now before us, No. 90-113, Clinchfield Coal Co. v. Director, OWCP, and No. 90-114, Consolidation Coal Co. v. Director, OWCP, the Court of Appeals for the Fourth Circuit struck down the DOL interim regulations. John Taylor, a respondent in No. 90-113, applied for black lung benefits in 1976, after having worked for almost 12 years as a coal loader and roof bolter in underground coal mines. The ALJ found that Taylor properly had invoked the presumption of eligibility for benefits under 727.203(a)(3), based on qualifying arterial blood gas studies demonstrating an impairment in the transfer of oxygen from his lungs to his blood. The ALJ then proceeded to weigh the rebuttal evidence, consisting of negative X-ray evidence, nonqualifying ventilatory study scores, and several medical reports respectively submitted by Taylor and by his employer, petitioner Clinchfield Coal Company. In light of this evidence, the ALJ concluded that Taylor neither suffered from pneumoconiosis nor was totally disabled. Rather, the evidence demonstrated that Taylor suffered from chronic bronchitis caused by 30 years of cigarette smoking and obesity. The Benefits Review Board affirmed, concluding that the ALJ's decision was supported by substantial evidence.The Court of Appeals reversed. Taylor v. Clinchfield Coal Co., 895 F.2d 178 (1990). The court first dismissed the argument that the DOL interim regulations cannot be considered more restrictive than HEW's as applied to Taylor because Taylor invoked the presumption of eligibility based on arterial blood gas studies, a method of invocation available under the DOL regulations but not under HEW's, and was therefore unable to use the rebuttal provisions of the HEW interim regulations as a benchmark. Id., at 182. The court reasoned that it was a "matter of indifference" how the claimant invoked the presumption of eligibility, and rejected the argument that the rebuttal provisions must be evaluated in light of corresponding invocation provisions. "It is the fact of establishment of the presumption and the substance thereof which is of consequence in this case, not the number of the regulation which provides for such establishment." Ibid.Focusing on the DOL's rebuttal provisions in isolation, the Fourth Circuit determined that the third and fourth rebuttal methods "permit rebuttal of more elements of entitlement to benefits than do the interim HEW regulations," because the HEW regulations permit rebuttal "solely through attacks on the element of total disability," while the DOL regulations "allow the consideration of evidence disputing both the presence of pneumoconiosis and the connection between total disability and coal mine employment." Ibid. Accordingly, the court concluded that the DOL interim regulations were more restrictive than those found in 410.490, and that the application of these regulations violated 30 U.S.C. 902(f).3 One judge dissented. Noting that the panel's decision was in conflict with the Sixth Circuit in Youghiogheny and Ohio Coal Co. v. Milliken, 866 F.2d 195 (1989), and with the Third Circuit in Pauley, he concluded that those decisions "do less violence to congressional intent, and avoid ... upsetting the statutory scheme." 895 F.2d, at 184.Albert Dayton, a respondent in No. 90114, applied for black lung benefits in 1979, after having worked as a coal miner for 17 years. The ALJ found that Dayton had invoked the presumption of eligibility based on ventilatory test scores showing a chronic pulmonary condition. The judge then determined that petitioner Consolidation Coal Company had successfully rebutted the presumption under 727.203(b)(2) and (4) by demonstrating that Dayton did not have pneumoconiosis and, in any event, that Dayton's pulmonary impairment was not totally disabling. The Benefits Review Board affirmed, concluding that the medical evidence demonstrated that Dayton's pulmonary condition was unrelated to coal dust exposure, but was instead secondary to his smoking and "other ailments," and that the ALJ had correctly concluded that Consolidation had rebutted the presumption under 727.203(b)(4).4 The Fourth Circuit reversed. Dayton v. Consolidation Coal Co., 895 F.2d 173 (1990). Relying on its decision in Taylor, the court held that 30 U.S.C. 902(f) required Dayton's claim to be adjudicated "under the less restrictive rebuttal standards of 410.490." 895 F.2d, at 175. Concluding that the HEW regulations did not permit rebuttal upon a showing that the claimant does not have pneumoconiosis, the court stated that the ALJ's finding that Dayton does not have pneumoconiosis "is superfluous and has no bearing on the case." Id., at 176, n.In view of the conflict among the Courts of Appeals, we granted certiorari in the three cases and consolidated them for hearing in order to resolve the issue of statutory construction. .5 IIIWe turn to the statutory text that provides that "[c]riteria applied by the Secretary of Labor ... shall not be more restrictive than the criteria applicable" under the interim HEW regulations. 30 U.S.C. 902(f)(2). See Sebben, 488 U.S., at 113. Specifically, we must determine whether the third and fourth rebuttal provisions in the DOL regulations render the DOL regulations more restrictive than were the HEW regulations. These provisions permit rebuttal of the presumption of eligibility upon a showing that the miner's disability did not arise in whole or in part out of coal mine employment or that the miner does not have pneumoconiosis.6 AIn the BLBRA, Congress specifically constrained the Secretary of Labor's discretion through the directive that the criteria applied to part C claims could "not be more restrictive than" that applied to part B claims. 30 U.S.C. 902(f)(2). The claimants and the dissent urge that this restriction is unambiguous, and that no deference is due the Secretary's determination that her interim regulations are not more restrictive than the HEW's. In the alternative, both the claimants and the dissent argue that, regardless of whether the statutory mandate is clear, the only interpretation of the HEW interim regulations that warrants deference is the interpretation given those regulations by the Secretary of HEW. In our view, this position misunderstands the principles underlying judicial deference to agency interpretations, as well as the scope of authority delegated to the Secretary of Labor in the BLBRA.Judicial deference to an agency's interpretation of ambiguous provisions of the statutes it is authorized to implement reflects a sensitivity to the proper roles of the political and judicial branches. See Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., ("[F]ederal judges - who have no constituency - have a duty to respect legitimate policy choices made by those who do"); see also Silberman, Chevron - The Intersection of Law & Policy, 58 Geo.Wash.L.Rev. 821, 822-24 (1990). As Chevron itself illustrates, the resolution of ambiguity in a statutory text is often more a question of policy than of law. See Sunstein, Law and Administration After Chevron, 90 Colum.L.Rev. 2071, 2085-2088 (1990). When Congress, through express delegation or the introduction of an interpretive gap in the statutory structure, has delegated policymaking authority to an administrative agency, the extent of judicial review of the agency's policy determinations is limited. Cf. Adams Fruit Co. v. Barrett, ("A precondition to deference under Chevron is a congressional delegation of administrative authority"); Chevron, 467 U.S., at 864-866.It is precisely this recognition that informs our determination that deference to the Secretary is appropriate here. The Benefits Act has produced a complex and highly technical regulatory program. The identification and classification of medical eligibility criteria necessarily require significant expertise, and entail the exercise of judgment grounded in policy concerns. In those circumstances, courts appropriately defer to the agency entrusted by Congress to make such policy determinations. See Martin v. Occupational Safety and Health Review Comm'n, ; Aluminum Co. of America v. Central Lincoln Peoples' Utility District, .In Sebben, we declined to defer to the Secretary's interpretation of the term "criteria" as used in 902(f)(2), as including only medical, but not evidentiary, criteria, because we found Congress' intent to include all criteria in that provision to be manifest. See Sebben, 488 U.S., at 113-114. With respect to the phrase "not ... more restrictive than," Congress' intent is similarly clear: the phrase cannot be read except as a delegation of interpretive authority to the Secretary of Labor.That Congress intended in the BLBRA to delegate to the Secretary of Labor broad policymaking discretion in the promulgation of his interim regulations is clear from the text of the statute and the history of this provision. Congress declined to require that the DOL adopt the HEW interim regulations verbatim. Rather, the delegation of authority requires only that the DOL's regulations be "not ... more restrictive than" HEW's. Further, the delegation was made with the intention that the program evolve as technological expertise matured. The Senate Committee on Human Resources stated: "It is the Committee's belief that the Secretary of Labor should have sufficient statutory authority ... to establish eligibility criteria... . It is intended that, pursuant to this authority, the Secretary of Labor will make every effort to incorporate within his regulations ... to the extent feasible the advances made by medical science in the diagnosis and treatment of pneumoconiosis ... since the promulgation in 1972 of the Secretary of HEW's medical eligibility criteria." S.Rep. No. 95-209, p. 13 (1977). In addition, the Conference Report indicated that the DOL's task was more than simply ministerial when it informed the Secretary that "such [new] regulations shall not provide more restrictive criteria than [the HEW interim regulations], except that, in determining claims under such criteria, all relevant medical evidence shall be considered." H.R.Conf.Rep. No. 95-864, p. 16 (1977), U.S. Code Cong. & Admin.News 1977, pp. 237, 309 (emphasis added). As delegated by Congress, then, the Secretary's authority to promulgate interim regulations "not ... more restrictive than" the HEW interim regulations necessarily entails the authority to interpret HEW's regulations and the discretion to promulgate interim regulations based on a reasonable interpretation thereof. From this congressional delegation derives the Secretary's entitlement to judicial deference.The claimants also argue that, even if the Secretary of Labor's interpretation of the HEW interim regulations is generally entitled to deference, such deference would not be appropriate in this instance because that interpretation has changed without explanation throughout the litigation of these cases. We are not persuaded. As a general matter, of course, the case for judicial deference is less compelling with respect to agency positions that are inconsistent with previously held views. See Bowen v. Georgetown University Hospital, . However, the Secretary has held unswervingly to the view that the DOL interim regulations are consistent with the statutory mandate and not more restrictive than the HEW interim regulations. This view obviously informed the structure of the DOL's regulations. In response to comments suggesting that the DOL's proposed interim regulations might violate 902(f)(2) because they required that all relevant evidence be considered in determining eligibility, the Secretary replied that "the Social Security regulations, while less explicit, similarly do not limit the evidence which can be considered in rebutting the interim presumption." See 43 Fed.Reg. 36,826 (1978). Moreover, this position has been faithfully advanced by each Secretary since the regulations were promulgated. See e.g., Sebben, 488 U.S., at 119. Accordingly, the Secretary's defense of her interim regulations warrants deference from this Court.BHaving determined that the Secretary's position is entitled to deference, we must decide whether this position is reasonable. See Chevron, 467 U.S., at 845. The claimants and the dissent argue that this issue can be resolved simply by comparing the two interim regulations. This argument is straightforward; it reasons that the mere existence of regulatory provisions permitting rebuttal of statutory elements not rebuttable under the HEW interim regulations renders the DOL interim regulations more restrictive than HEW's and, as a consequence renders the Secretary's interpretation unreasonable. See Tr. of Oral Arg. 22-24. Specifically, the claimants and the dissent assert that the HEW interim regulations plainly contain no provision, either in the invocation subsection or in the rebuttal subsection, that directs factual inquiry into the issue of disability causation or the existence of pneumoconiosis. Accordingly, under the claimants' reading of the regulations, there is no manner in which the DOL interim regulations can be seen to be "not ... more restrictive than" the HEW regulations.The regulatory scheme, however, is not so straightforward as the claimants would make it out to be. We have noted before the Byzantine character of these regulations. See Sebben, 488 U.S., at 109 (the second presumption is "drafted in a most confusing manner"); id., at 129 (dissenting opinion) (assuming that the drafters "promulgated a scrivener's error"). In our view, the Secretary presents the more reasoned interpretation of this complex regulatory structure, an interpretation that has the additional benefit of providing coherence among the statute and the two interim regulations.The premise underlying the Secretary's interpretation of the HEW interim regulations is that the regulations were adopted to ensure that miners who were disabled due to pneumoconiosis arising out of coal mine employment would receive benefits from the black lung program. Under the Secretary's view, it disserves congressional intent to interpret HEW's interim regulations to allow recovery by miners who do not have pneumoconiosis or whose total disability did not arise, at least in part, from their coal mine employment. We agree. See Usery v. Turner Elkhorn Mining Co., , n. 21 (1976) ("[A]n operator can be liable only for pneumoconiosis arising out of employment in a coal mine"); Mullins Coal Co. v. Director, OWCP, 484 U.S., at 158 (1987) ("[I]f a miner is not actually suffering from the type of ailment with which Congress was concerned, there is no justification for presuming that the miner is entitled to benefits").The Secretary and the nonfederal petitioners contend that SSA adjudications under the HEW interim regulations permitted the factual inquiry specified in the third and fourth rebuttal provisions of the DOL regulations. According to the Secretary, subsection (b)(2) of HEW's invocation provisions, and the provisions incorporated by reference into that subsection, do the work of DOL's third and fourth rebuttal methods. Subsection (b)(2) of the HEW interim regulations provides that, in order to invoke a presumption of eligibility, the claimant must demonstrate that the "impairment established in accordance with paragraph (b)(1) of this section arose out of coal mine employment (see 410.416 and 410.456)." 20 CFR 410.490(b)(2) (1990). Section 410.416(a) provides: "If a miner was employed for 10 years or more in the Nation's coal mines, and is suffering or suffered from pneumoconiosis, it will be presumed, in the absence of persuasive evidence to the contrary, that the pneumoconiosis arose out of such employment." See also 410.456.The Secretary interprets the requirement in 410.490(b)(2) that the claimant demonstrate that the miner's impairment "arose out of coal mine employment" as comparable to the DOL's third rebuttal provision, which permits the mine operator to show that the miner's disability "did not arise in whole or in part out of coal mine employment." 727.203(b)(3). With respect to DOL's fourth rebuttal provision, the Secretary emphasizes that the statute defines pneumoconiosis as "a chronic dust disease ... arising out of coal mine employment." See 30 U.S.C. 902(b). Accordingly, she views the reference to 410.416 and 410.456 in HEW's invocation provision, and the acknowledgment within these sections that causation is to be presumed "in the absence of persuasive evidence to the contrary," as demonstrating that a miner who is shown not to suffer from pneumoconiosis could not invoke HEW's presumption.7 Petitioners Clinchfield and Consolidation adopt the Third Circuit's reasoning in Pauley. The court in Pauley relied on the reference in the HEW rebuttal provisions to 410.412(a)(1), which in turn refers to a miner's being "totally disabled due to pneumoconiosis." The Third Circuit reasoned that this reference must indicate "the intention of the Secretary [of HEW] to permit rebuttal by a showing that the claimant's disability did not arise at least in part from coal mine employment." 890 F.2d, at 1302.The claimants respond that the Secretary has not adopted the most natural reading of subsection (b)(2). Specifically, the claimants argue that miners who have 10 years of coal mine experience and satisfy the requirements of subsection (b)(1) automatically obtain the presumption of causation that 410.416 or 410.456 confers, and thereby satisfy the causation requirement inherent in the Act. In addition, the claimants point out that the reference in the HEW rebuttal provisions to 410.412(a)(1) may best be read as a reference only to the definition of the term "comparable and gainful work," not to the disability causation provision of 410.412(a). While it is possible that the claimants' parsing of these impenetrable regulations would be consistent with accepted canons of construction, it is axiomatic that the Secretary's interpretation need not be the best or most natural one by grammatical or other standards. EEOC v. Commercial Office Products Co., . Rather, the Secretary's view need be only reasonable to warrant deference. Ibid.; Mullins, 484 U.S., at 159.The claimants' assertion that the Secretary's interpretation is contrary to the plain language of the statute ultimately rests on their contention that subsections (b)(1)(i) and (ii) of the HEW interim regulations create a "conclusive" presumption of entitlement without regard to the existence of competent evidence demonstrating that the miner does not or did not have pneumoconiosis or that the miner's disability was not caused by coal mine employment. This argument is deficient in two respects. First, the claimants' premise is inconsistent with the text of the authorizing statute, which expressly provides that the presumptions in question will be rebuttable, see 30 U.S.C. 921(c)(1), (2), and (4), and requires the Secretary of HEW to consider all relevant evidence in adjudicating claims under part B. See 30 U.S.C. 923(b).8 Second, the presumptions do not, by their terms, conclusively establish any statutory element of entitlement. In setting forth the two rebuttal methods in subsection (c), the Secretary of HEW did not provide that they would be the exclusive methods of rebuttal. In fact, the claimants admit that "conclusively presume" is a term they "coined" for purposes of argument. Tr. of Oral Arg. 34. Although the delineation of two methods of rebuttal may support an inference that the drafter intended to exclude rebuttal methods not so specified, such an inference provides no guidance where its application would render a regulation inconsistent with the purpose and language of the authorizing statute. See Sunstein, 90 Colum.L.Rev., at 2109, n. 182 (recognizing that the principle expressio unius est exclusio alterius "is a questionable one in light of the dubious reliability of inferring specific intent from silence"); cf. Commercial Office Products Co., 486 U.S., at 120 (plurality opinion) (rejecting the more natural reading of statutory language because such an interpretation would lead to "absurd or futile results ... plainly at variance with the policy of the legislation as a whole") (internal quotations omitted).In asserting that the Secretary's interpretation is untenable, the claimants essentially argue that the Secretary is not justified in interpreting the HEW interim regulations in conformance with their authorizing statute. According to the claimants, the HEW officials charged with administering the black lung benefits program and with drafting the HEW interim regulations believed that it was virtually impossible to determine medically whether a miner's respiratory impairment was actually caused by pneumoconiosis or whether his total disability arose out of his coal mine employment. Faced with such medical uncertainty, and instructed to ensure the "prompt and vigorous processing of the large backlog of claims," see 20 CFR 410.490(a) (1990), the claimants assert that HEW omitted from its criteria factual inquiries into disability causation and the existence of pneumoconiosis based on a "cost/benefit" conclusion that such inquiries would engender inordinate delay, yet generate little probative evidence.9 The dissent presents a similar view. Post, at 716-719. We recognize that the SSA, under the HEW interim regulations, appeared to award benefits to miners whose administrative files contained scant evidence of eligibility. See The Comptroller General of the United States, General Accounting Office, Report to Congress: Examination of Allegations Concerning Administration of the Black Lung Benefits Program 6-10, included in Hearings on H.R. 10760 and S. 3183 before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 94th Cong., 2d Sess., 440-444 (1976). We are not, however, persuaded that this circumstance requires the Secretary to award black lung benefits to claimants who do not have pneumoconiosis or whose disability did not arise in whole or in part out of coal mine employment. As an initial matter, contemporaneous analyses of claims approved by the HEW provide little support for the argument that the HEW made a "cost/benefit" decision to forgo inquiry into disease existence or disability causation. Rather, many of the claims allegedly awarded on the basis of insufficient evidence involved miners who were unable to present sufficient evidence of medical disability, not those who did not suffer from pneumoconiosis or were disabled by other causes. See ibid.; see also The Comptroller General of the United States, General Accounting Office, Program to Pay Black Lung Benefits to Miners and Their Survivors - Improvements Are Needed, 45-47 (1977); H.R.Rep. No. 95-151, pp. 73-74 (1977) (Minority Views and Separate Views). Moreover, this argument ignores entirely the advances in medical technology that have occurred since the promulgation of the HEW interim regulations, advances that Congress could not have intended either the HEW or the DOL to ignore in administering the program. See S.Rep. No. 95-209, p. 13 (1977).Finally, we do not accept the implicit premise of this argument: that the Secretary cannot prevail unless she is able to demonstrate that her interpretation of the HEW interim regulations comports with HEW's contemporaneous interpretation of those regulations. As is stated above, the Secretary's interpretation of HEW's interim regulations is entitled to deference so long as it is reasonable. An interpretation that harmonizes an agency's regulations with their authorizing statute is presumptively reasonable, and claimants have not persuaded us that the presumption is unfounded in this case.IVWe conclude that the Secretary of Labor has not acted unreasonably or inconsistently with 402(f)(2) of the Federal Mine Safety and Health Act of 1977 as amended by the Black Lung Benefits Act, in promulgating interim regulations that permit the presumption of entitlement to black lung benefits to be rebutted with evidence demonstrating that the miner does not, or did not, have pneumoconiosis, or that the miner's disability does not, or did not, arise out of coal mine employment. Accordingly, we affirm the judgment of the Third Circuit in No. 89-1714. The judgments of the Fourth Circuit in No. 90-113 and No. 90-114 are reversed, and those cases are remanded for further proceedings consistent with this opinion. No costs are allowed in any of these cases.It is so ordered.JUSTICE KENNEDY took no part in the consideration or decision of this litigation.

In Greenholtz v. Nebraska Penal Inmates, , the Court held that the mandatory language and structure of a Nebraska parole-release statute created an "expectancy of release," a liberty interest entitled to protection under the Due Process Clause. The Montana statute at issue in this case provides that a prisoner eligible for parole "shall" be released when there is a reasonable probability that no detriment will result to him or the community, and specifies that parole shall be ordered for the best interests of society, and when the State Board of Pardons (Board) believes that the prisoner is able and willing to assume the obligations of a law-abiding citizen. After being denied parole, respondent prisoners filed a civil rights action against petitioners, the Board and its Chair, alleging that the Board denied them due process by failing to apply the statutorily mandated criteria in determining parole eligibility, and failing adequately to explain its reasons for parole denials. Although acknowledging that the case was controlled by principles established in Greenholtz, the District Court ruled that respondents were not entitled to due process protections in connection with their parole denials, concluding that, because the Board is required to make determinations with respect to the best interests of the community and the prisoner, its discretion is too broad to provide a prisoner with a liberty interest in parole release. The Court of Appeals reversed and remanded, finding the Montana statute virtually indistinguishable in structure and language from the statute considered in Greenholtz.Held: When scrutinized under the Greenholtz standards, the Montana statute clearly creates a liberty interest in parole release that is protected by the Due Process Clause of the Fourteenth Amendment. Although, as in Greenholtz, the release decision here is "necessarily ... subjective and predictive" and the Board's discretion "very broad," nevertheless, the Montana statute, like the Nebraska statute, uses mandatory language ("shall") to create a presumption that parole release will be granted when the designated findings are made. This presumption exists whether, as in Greenholtz, the statute mandates release "unless" the required findings are made, or whether, as here, release is necessary "when" or "if" the findings are made or is mandated "subject to" them. Moreover, the "substantive predicates" of release in Montana are similar to those in Nebraska, since each statute requires consideration of the impact of release on both the prisoner and the community, of the prisoner's ability to lead a law-abiding life, and of whether release will cause a "detriment to ... the community," and each statute vests the State's parole board with equivalent discretion. That the Montana statute places significant limits on the Board's discretion is further demonstrated by its replacement of an earlier statute which allowed absolute discretion, its specifying as its purpose the creation of restrictions on that discretion, and its addition of a provision authorizing judicial review of parole-release decisions. Pp. 373-381. 792 F.2d 1404, affirmed.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. O'CONNOR, J., filed a dissenting opinion, in which REHNQUIST, C. J., and SCALIA, J., joined, post, p. 381.Clay R. Smith, Assistant Attorney General of Montana, argued the cause for petitioners. With him on the briefs was Michael T. Greely, Attorney General.Stephen L. Pevar argued the cause for respondents. With him on the brief were Edward I. Koren, Elizabeth Alexander, and Alvin J. Bronstein.* [Footnote *] Randall D. Schmidt filed a brief for Eugene Newbury as amicus curiae urging affirmance.Dennis E. Curtis, Judith Resnik, William J. Genego, John L. Pottenger, Jr., and Stephen Wizner filed a brief for the Yale Law School Legal Services Organization et al.JUSTICE BRENNAN delivered the opinion of the Court.The question presented is whether respondents have a liberty interest in parole release that is protected under the Due Process Clause of the Fourteenth Amendment.IRespondents are George Allen and Dale Jacobsen, inmates of the Montana State Prison.1 In 1984, after their applications for parole were denied, they filed this action pursuant to 42 U.S.C. 1983 on behalf of a class of all present and future inmates of the Montana State Prison who were or might become eligible for parole. Seeking declaratory and injunctive relief, as well as compensatory damages, the complaint charged the State Board of Pardons (Board) and its Chair with violations of the inmates' civil rights. Specifically, respondents alleged that the Board does not apply the statutorily mandated criteria in determining inmates' eligibility for parole, Complaint §§ 6-9, App. 5a-6a, and that the Board does not adequately explain its reasons for denial of parole, id., §§ 9, 10, App. 6a.2 The District Court first acknowledged that the case was controlled by the principles established in this Court's decision in Greenholtz v. Nebraska Penal Inmates, . In Greenholtz the Court held that, despite the necessarily subjective and predictive nature of the parole-release decision, see id., at 12, state statutes may create liberty interests in parole release that are entitled to protection under the Due Process Clause. The Court concluded that the mandatory language and the structure of the Nebraska statute at issue in Greenholtz created an "expectancy of release," which is a liberty interest entitled to such protection. Ibid. Although the District Court recognized that the Montana statute, like the Nebraska statute in Greenholtz, contained language mandating release under certain circumstances, it decided that respondents "were not entitled to due process protections in connection with the board's denial of parole." App. 17a. The court concluded that, because the Board is required to make determinations with respect to the best interest of the community and the prisoner, its discretion is too broad to provide a prisoner with a liberty interest in parole release.The Court of Appeals reversed. It compared the provisions of the Montana statute to those of the Nebraska statute in Greenholtz and found their structure and language virtually indistinguishable: "The Montana statute, like the Nebraska statute at issue in Greenholtz, uses mandatory language. It states that the Board `shall' release a prisoner on parole when it determines release would not be harmful, unless specified conditions exist that would preclude parole. There is no doubt that it, like the Nebraska provision in Greenholtz, vests great discretion in the Board. Under both statutes the Board must make difficult and highly subjective decisions about risks of releasing inmates. However, the Board may not deny parole under either statute once it determines that harm is not probable." 792 F.2d 1404, 1406 (CA9 1986). The Court thus held that respondents had stated a claim upon which relief could be granted, and remanded the case to the District Court for consideration of "the nature of the process which is due [respondents]" and "whether Montana's present procedures accord that due process." Id., at 1408.We granted certiorari, , and now affirm. IIGreenholtz set forth two major holdings. The Court first held that the presence of a parole system by itself does not give rise to a constitutionally protected liberty interest in parole release.3 The Court also held, however, that the Nebraska statute did create an "expectation of parole" protected by the Due Process Clause. 442 U.S., at 11. To decide whether the Montana statute also gives rise to a constitutionally protected liberty interest, we scrutinize it under the standards set forth in Greenholtz.The Nebraska statute involved in Greenholtz provides as follows: "Whenever the Board of Parole considers the release of a committed offender who is eligible for release on parole, it shall order his release unless it is of the opinion that his release should be deferred because: "(a) There is a substantial risk that he will not conform to the conditions of parole; "(b) His release would depreciate the seriousness of his crime or promote disrespect for law; "(c) His release would have a substantially adverse effect on institutional discipline; or "(d) His continued correctional treatment, medical care, or vocational or other training in the facility will substantially enhance his capacity to lead a law-abiding life when released at a later date." Neb. Rev. Stat. 83-1, 114(1) (1981) (emphasis added). The statute also sets forth a list of 14 factors (including one catchall factor permitting the Nebraska Board to consider other information it deems relevant) that the Board must consider in reaching a decision. 83-1, 114(2)(a)-(n).In deciding that this statute created a constitutionally protected liberty interest, the Court found significant its mandatory language - the use of the word "shall" - and the presumption created - that parole release must be granted unless one of four designated justifications for deferral is found. See Greenholtz, 442 U.S., at 11-12.4 The Court recognized - indeed highlighted - that parole-release decisions are inherently subjective and predictive, see id., at 12, but nonetheless found that Nebraska inmates possessed a liberty interest in release. The Court observed that parole release is an equity-type judgment involving "a synthesis of record facts and personal observation filtered through the experience of the decisionmaker and leading to a predictive judgment as to what is best both for the individual inmate and for the community," id., at 8,5 and acknowledged that the Nebraska statute, like most parole statutes, "vest[ed] very broad discretion in the Board," id., at 13. Nevertheless, the Court rejected the Board's argument "that a presumption [of release] would be created only if the statutory conditions for deferral were essentially factual, ... rather than predictive." Id., at 12.The Court thus held in Greenholtz that the presence of general or broad release criteria - delegating significant discretion to the decisionmaker - did not deprive the prisoner of the liberty interest in parole release created by the Nebraska statute. In essence, the Court made a distinction between two entirely distinct uses of the term discretion. In one sense of the word, an official has discretion when he or she "is simply not bound by standards set by the authority in question." R. Dworkin, Taking Rights Seriously 32 (1977). In this sense, officials who have been told to parole whomever they wish have discretion. In Greenholtz, the Court determined that a scheme awarding officials this type of discretion does not create a liberty interest in parole release. But the term discretion may instead signify that "an official must use judgment in applying the standards set him [or her] by authority"; in other words, an official has discretion when the standards set by a statutory or regulatory scheme "cannot be applied mechanically." Dworkin, supra, at 31, 32; see also id., at 69 ("[W]e say that a man has discretion if his duty is defined by standards that reasonable [people] can interpret in different ways"). The Court determined in Greenholtz that the presence of official discretion in this sense is not incompatible with the existence of a liberty interest in parole release when release is required after the Board determines (in its broad discretion) that the necessary prerequisites exist.Throughout this litigation, the Board's arguments have had a single theme: that the holding of the Court of Appeals is inconsistent with our decision in Greenholtz.6 The Board is mistaken. The Montana statute, like the Nebraska statute, creates a liberty interest in parole release. It provides in pertinent part: "Prisoners eligible for parole. (1) Subject to the following restrictions, the board shall release on parole ... any person confined in the Montana state prison or the women's correction center ... when in its opinion there is reasonable probability that the prisoner can be released without detriment to the prisoner or to the community[.] ... . . "(2) A parole shall be ordered only for the best interests of society and not as an award of clemency or a reduction of sentence or pardon. A prisoner shall be placed on parole only when the board believes that he is able and willing to fulfill the obligations of a law-abiding citizen." Mont. Code Ann. 46-23-201 (1985) (emphasis added).7 Significantly, the Montana statute, like the Nebraska statute, uses mandatory language ("shall")8 to "creat[e] a presumption that parole release will be granted" when the designated findings are made. Greenholtz, 442 U.S., at 12.9 See Statement of Assistant Attorney General of Montana, Tr. of Oral Arg. 6 ("under our statute once the Board of Pardons determines that the facts underlying a particular parole application are such that the release can occur consistently with the three criteria the statute specifies, then under our law the Board is required to order release"). We reject the argument that a statute that mandates release "unless" certain findings are made is different from a statute that mandates release "if," "when," or "subject to" such findings being made. Any such statute "creates a presumption that parole release will be granted." Greenholtz, supra, at 12.10 Moreover, the "substantive predicates," see Hewitt v. Helms, , of parole release in Montana are similar to those in Nebraska. In both States, the Parole Board must assess the impact of release on both the prisoner and the community. A central concern of each is the prisoner's ability "to lead a law-abiding life." Neb. Rev. Stat. 83-1,114(1)(d) (1981); see 83-1,114(1)(a) (prisoner may not be released if there is "a substantial risk that he will not conform to the conditions of parole"); Mont. Code Ann. 46-23-201(2) (1985) (prisoner must be released when, inter alia, it will cause no detriment to him or her and must not be released unless the prisoner is "able and willing to fulfill the obligations of a law-abiding citizen"). An interrelated concern of both statutes is whether the release can be achieved without "detriment to ... the community." Mont. Code Ann. 46-23-201(1) (1985); see 46-23-201(2) (prisoner must be released only "for the best interests of society"); see Neb. Rev. Stat. 83-1,114(1)(b) (1981) (prisoner must not be released if it "would depreciate the seriousness of his crime or promote disrespect for law"). The discretion left with the parole boards is equivalent in Montana and Nebraska.The legislative history further supports the conclusion that this statute places significant limits on the discretion of the Board. The statute was enacted in 1955, replacing a 1907 statute which had granted absolute discretion to the Board:"Parole of prisoners in State Prison. - The Governor may recommend and the State Board of Prison Commissioners may parole any inmate of the State Prison, under such reasonable conditions and regulations as may be deemed expedient, and adopted by such state board." Mont. Rev. Code 9573 (1907). The new statute made release mandatory upon certain findings and specified its purpose in its title: "An Act Creating a Board of Pardons and Prescribing the Appointment and Composition Thereof, With Power and Duty to Grant Paroles, Within Restrictions ... ." Act of Mar. 3, 1955, 1955 Mont. Laws, ch. 153 (emphasis added). The new statute also added a provision for judicial review of the Board's parole-release decisions, see Mont. Code Ann. 46-23-107 (1985), thus providing a further indication of a legislative intent to cabin the discretion of the Board.Here, as in Greenholtz, the release decision is "necessarily subjective ... and predictive," see 442 U.S., at 13; here, as in Greenholtz, the discretion of the Board is "very broad," see ibid.; and here, as in Greenholtz, the Board shall release the inmate when the findings prerequisite to release are made. See supra, at 377-378 and 379-380. Thus, we find in the Montana statute, as in the Nebraska statute, a liberty interest protected by the Due Process Clause. The judgment of the Court of Appeals is Affirmed.

While serving as an officer of a broker-dealer, petitioner, who specialized in providing investment analysis of insurance company securities to institutional investors, received information from a former officer of an insurance company that its assets were vastly overstated as the result of fraudulent corporate practices and that various regulatory agencies had failed to act on similar charges made by company employees. Upon petitioner's investigation of the allegations, certain company employees corroborated the fraud charges, but senior management denied any wrongdoing. Neither petitioner nor his firm owned or traded any of the company's stock, but throughout his investigation he openly discussed the information he had obtained with a number of clients and investors, some of whom sold their holdings in the company. The Wall Street Journal declined to publish a story on the fraud allegations, as urged by petitioner. After the price of the insurance company's stock fell during petitioner's investigation, the New York Stock Exchange halted trading in the stock. State insurance authorities then impounded the company's records and uncovered evidence of fraud. Only then did the Securities and Exchange Commission (SEC) file a complaint against the company, and only then did the Wall Street Journal publish a story based largely on information assembled by petitioner. After a hearing concerning petitioner's role in the exposure of the fraud, the SEC found that he had aided and abetted violations of the antifraud provisions of the federal securities laws, including 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5, by repeating the allegations of fraud to members of the investment community who later sold their stock in the insurance company. Because of petitioner's role in bringing the fraud to light, however, the SEC only censured him. On review, the Court of Appeals entered judgment against petitioner.Held: 1. Two elements for establishing a violation of 10(b) and Rule 10b-5 by corporate insiders are the existence of a relationship affording access to inside information intended to be available only for a corporate purpose, and the unfairness of allowing a corporate insider to take advantage of that information by trading without disclosure. A duty to disclose or abstain does not arise from the mere possession of nonpublic market information. Such a duty arises rather from the existence of a fiduciary relationship. Chiarella v. United States, . There must also be "manipulation or deception" to bring a breach of fiduciary duty in connection with a securities transaction within the ambit of Rule 10b-5. Thus, an insider is liable under the Rule for inside trading only where he fails to disclose material nonpublic information before trading on it and thus makes secret profits. Pp. 653-654. 2. Unlike insiders who have independent fiduciary duties to both the corporation and its shareholders, the typical tippee has no such relationships. There must be a breach of the insider's fiduciary duty before the tippee inherits the duty to disclose or abstain. Pp. 654-664. (a) The SEC's position that a tippee who knowingly receives nonpublic material information from an insider invariably has a fiduciary duty to disclose before trading rests on the erroneous theory that the antifraud provisions require equal information among all traders. A duty to disclose arises from the relationship between parties and not merely from one's ability to acquire information because of his position in the market. Pp. 655-659. (b) A tippee, however, is not always free to trade on inside information. His duty to disclose or abstain is derivative from that of the insider's duty. Tippees must assume an insider's duty to the shareholders not because they receive inside information, but rather because it has been made available to them improperly. Thus, a tippee assumes a fiduciary duty to the shareholders of a corporation not to trade on material nonpublic information only when the insider has breached his fiduciary duty to the shareholders by disclosing the information to the tippee and the tippee knows or should know that there has been a breach. Pp. 659-661. (c) In determining whether a tippee is under an obligation to disclose or abstain, it is necessary to determine whether the insider's "tip" constituted a breach of the insider's fiduciary duty. Whether disclosure is a breach of duty depends in large part on the personal benefit the insider receives as a result of the disclosure. Absent an improper purpose, there is no breach of duty to stockholders. And absent a breach by the insider, there is no derivative breach. Pp. 661-664. 3. Under the inside-trading and tipping rules set forth above, petitioner had no duty to abstain from use of the inside information that he obtained, and thus there was no actionable violation by him. He had no pre-existing fiduciary duty to the insurance company's shareholders. Moreover, the insurance company's employees, as insiders, did not violate their duty to the company's shareholders by providing information to petitioner. In the absence of a breach of duty to shareholders by the insiders, there was no derivative breach by petitioner. Pp. 665-667. App. D.C. 309, 681 F.2d 824, reversed.POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 667.David Bonderman argued the cause for petitioner. With him on the briefs were Lawrence A. Schneider and Eric Summergrad.Paul Gonson argued the cause for respondent. With him on the brief were Daniel L. Goelzer, Jacob H. Stillman, and Whitney Adams.* [Footnote *] Solicitor General Lee, Assistant Attorney General Jensen, Stephen M. Shapiro, Deputy Assistant Attorney General Olsen, David A. Strauss, and Geoffrey S. Stewart filed a brief for the United States as amicus curiae urging reversal.Edward H. Fleischman, Richard E. Nathan, Martin P. Unger, and William J. Fitzpatrick filed a brief for the Securities Industry Association as amicus curiae.JUSTICE POWELL delivered the opinion of the Court.Petitioner Raymond Dirks received material nonpublic information from "insiders" of a corporation with which he had no connection. He disclosed this information to investors who relied on it in trading in the shares of the corporation. The question is whether Dirks violated the antifraud provisions of the federal securities laws by this disclosure.IIn 1973, Dirks was an officer of a New York broker-dealer firm who specialized in providing investment analysis of insurance company securities to institutional investors.1 On March 6, Dirks received information from Ronald Secrist, a former officer of Equity Funding of America. Secrist alleged that the assets of Equity Funding, a diversified corporation primarily engaged in selling life insurance and mutual funds, were vastly overstated as the result of fraudulent corporate practices. Secrist also stated that various regulatory agencies had failed to act on similar charges made by Equity Funding employees. He urged Dirks to verify the fraud and disclose it publicly.Dirks decided to investigate the allegations. He visited Equity Funding's headquarters in Los Angeles and interviewed several officers and employees of the corporation. The senior management denied any wrongdoing, but certain corporation employees corroborated the charges of fraud. Neither Dirks nor his firm owned or traded any Equity Funding stock, but throughout his investigation he openly discussed the information he had obtained with a number of clients and investors. Some of these persons sold their holdings of Equity Funding securities, including five investment advisers who liquidated holdings of more than $16 million.2 While Dirks was in Los Angeles, he was in touch regularly with William Blundell, the Wall Street Journal's Los Angeles bureau chief. Dirks urged Blundell to write a story on the fraud allegations. Blundell did not believe, however, that such a massive fraud could go undetected and declined to write the story. He feared that publishing such damaging hearsay might be libelous.During the 2-week period in which Dirks pursued his investigation and spread word of Secrist's charges, the price of Equity Funding stock fell from $26 per share to less than $15 per share. This led the New York Stock Exchange to halt trading on March 27. Shortly thereafter California insurance authorities impounded Equity Funding's records and uncovered evidence of the fraud. Only then did the Securities and Exchange Commission (SEC) file a complaint against Equity Funding3 and only then, on April 2, did the Wall Street Journal publish a front-page story based largely on information assembled by Dirks. Equity Funding immediately went into receivership.4 The SEC began an investigation into Dirks' role in the exposure of the fraud. After a hearing by an Administrative Law Judge, the SEC found that Dirks had aided and abetted violations of 17(a) of the Securities Act of 1933, 48 Stat. 84, as amended, 15 U.S.C. 77q(a),5 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U.S.C. 78j(b),6 and SEC Rule 10b-5, 17 CFR 240.10b-5 (1983),7 by repeating the allegations of fraud to members of the investment community who later sold their Equity Funding stock. The SEC concluded: "Where `tippees' - regardless of their motivation or occupation - come into possession of material `corporate information that they know is confidential and know or should know came from a corporate insider,' they must either publicly disclose that information or refrain from trading." 21 S. E. C. Docket 1401, 1407 (1981) (footnote omitted) (quoting Chiarella v. United States, , n. 12 (1980)). Recognizing, however, that Dirks "played an important role in bringing [Equity Funding's] massive fraud to light," 21 S. E. C. Docket, at 1412,8 the SEC only censured him.9 Dirks sought review in the Court of Appeals for the District of Columbia Circuit. The court entered judgment against Dirks "for the reasons stated by the Commission in its opinion." App. to Pet. for Cert. C-2. Judge Wright, a member of the panel, subsequently issued an opinion. Judge Robb concurred in the result and Judge Tamm dissented; neither filed a separate opinion. Judge Wright believed that "the obligations of corporate fiduciaries pass to all those to whom they disclose their information before it has been disseminated to the public at large." App. D.C. 309, 324, 681 F.2d 824, 839 (1982). Alternatively, Judge Wright concluded that, as an employee of a broker-dealer, Dirks had violated "obligations to the SEC and to the public completely independent of any obligations he acquired" as a result of receiving the information. Id., at 325, 681 F.2d, at 840.In view of the importance to the SEC and to the securities industry of the question presented by this case, we granted a writ of certiorari. . We now reverse. IIIn the seminal case of In re Cady, Roberts & Co., 40 S. E. C. 907 (1961), the SEC recognized that the common law in some jurisdictions imposes on "corporate `insiders,' particularly officers, directors, or controlling stockholders" an "affirmative duty of disclosure ... when dealing in securities." Id., at 911, and n. 13.10 The SEC found that not only did breach of this common-law duty also establish the elements of a Rule 10b-5 violation,11 but that individuals other than corporate insiders could be obligated either to disclose material nonpublic information12 before trading or to abstain from trading altogether. Id., at 912. In Chiarella, we accepted the two elements set out in Cady, Roberts for establishing a Rule 10b-5 violation: "(i) the existence of a relationship affording access to inside information intended to be available only for a corporate purpose, and (ii) the unfairness of allowing a corporate insider to take advantage of that information by trading without disclosure." 445 U.S., at 227. In examining whether Chiarella had an obligation to disclose or abstain, the Court found that there is no general duty to disclose before trading on material nonpublic information,13 and held that "a duty to disclose under 10(b) does not arise from the mere possession of nonpublic market information." Id., at 235. Such a duty arises rather from the existence of a fiduciary relationship. See id., at 227-235.Not "all breaches of fiduciary duty in connection with a securities transaction," however, come within the ambit of Rule 10b-5. Santa Fe Industries, Inc. v. Green, . There must also be "manipulation or deception." Id., at 473. In an inside-trading case this fraud derives from the "inherent unfairness involved where one takes advantage" of "information intended to be available only for a corporate purpose and not for the personal benefit of anyone." In re Merrill Lynch, Pierce, Fenner & Smith, Inc., 43 S. E. C. 933, 936 (1968). Thus, an insider will be liable under Rule 10b-5 for inside trading only where he fails to disclose material nonpublic information before trading on it and thus makes "secret profits." Cady, Roberts, supra, at 916, n. 31.IIIWe were explicit in Chiarella in saying that there can be no duty to disclose where the person who has traded on inside information "was not [the corporation's] agent, ... was not a fiduciary, [or] was not a person in whom the sellers [of the securities] had placed their trust and confidence." 445 U.S., at 232. Not to require such a fiduciary relationship, we recognized, would "depar[t] radically from the established doctrine that duty arises from a specific relationship between two parties" and would amount to "recognizing a general duty between all participants in market transactions to forgo actions based on material, nonpublic information." Id., at 232, 233. This requirement of a specific relationship between the shareholders and the individual trading on inside information has created analytical difficulties for the SEC and courts in policing tippees who trade on inside information. Unlike insiders who have independent fiduciary duties to both the corporation and its shareholders, the typical tippee has no such relationships.14 In view of this absence, it has been unclear how a tippee acquires the Cady, Roberts duty to refrain from trading on inside information.AThe SEC's position, as stated in its opinion in this case, is that a tippee "inherits" the Cady, Roberts obligation to shareholders whenever he receives inside information from an insider:"In tipping potential traders, Dirks breached a duty which he had assumed as a result of knowingly receiving confidential information from [Equity Funding] insiders. Tippees such as Dirks who receive non-public, material information from insiders become `subject to the same duty as [the] insiders.' Shapiro v. Merrill Lynch, Pierce, Fenner & Smith, Inc. [495 F.2d 228, 237 (CA2 1974) (quoting Ross v. Licht, 263 F. Supp. 395, 410 (SDNY 1967))]. Such a tippee breaches the fiduciary duty which he assumes from the insider when the tippee knowingly transmits the information to someone who will probably trade on the basis thereof... . Presumably, Dirks' informants were entitled to disclose the [Equity Funding] fraud in order to bring it to light and its perpetrators to justice. However, Dirks - standing in their shoes - committed a breach of the fiduciary duty which he had assumed in dealing with them, when he passed the information on to traders." 21 S. E. C. Docket, at 1410, n. 42. This view differs little from the view that we rejected as inconsistent with congressional intent in Chiarella. In that case, the Court of Appeals agreed with the SEC and affirmed Chiarella's conviction, holding that "[a]nyone - corporate insider or not - who regularly receives material nonpublic information may not use that information to trade in securities without incurring an affirmative duty to disclose." United States v. Chiarella, 588 F.2d 1358, 1365 (CA2 1978) (emphasis in original). Here, the SEC maintains that anyone who knowingly receives nonpublic material information from an insider has a fiduciary duty to disclose before trading.15 In effect, the SEC's theory of tippee liability in both cases appears rooted in the idea that the antifraud provisions require equal information among all traders. This conflicts with the principle set forth in Chiarella that only some persons, under some circumstances, will be barred from trading while in possession of material nonpublic information.16 Judge Wright correctly read our opinion in Chiarella as repudiating any notion that all traders must enjoy equal information before trading: "[T]he `information' theory is rejected. Because the disclose-or-refrain duty is extraordinary, it attaches only when a party has legal obligations other than a mere duty to comply with the general antifraud proscriptions in the federal securities laws." App. D.C., at 322, 681 F.2d, at 837. See Chiarella, 445 U.S., at 235, n. 20. We reaffirm today that "[a] duty [to disclose] arises from the relationship between parties ... and not merely from one's ability to acquire information because of his position in the market." Id., at 231-232, n. 14.Imposing a duty to disclose or abstain solely because a person knowingly receives material nonpublic information from an insider and trades on it could have an inhibiting influence on the role of market analysts, which the SEC itself recognizes is necessary to the preservation of a healthy market.17 It is commonplace for analysts to "ferret out and analyze information," 21 S. E. C. Docket, at 1406,18 and this often is done by meeting with and questioning corporate officers and others who are insiders. And information that the analysts obtain normally may be the basis for judgments as to the market worth of a corporation's securities. The analyst's judgment in this respect is made available in market letters or otherwise to clients of the firm. It is the nature of this type of information, and indeed of the markets themselves, that such information cannot be made simultaneously available to all of the corporation's stockholders or the public generally.BThe conclusion that recipients of inside information do not invariably acquire a duty to disclose or abstain does not mean that such tippees always are free to trade on the information. The need for a ban on some tippee trading is clear. Not only are insiders forbidden by their fiduciary relationship from personally using undisclosed corporate information to their advantage, but they also may not give such information to an outsider for the same improper purpose of exploiting the information for their personal gain. See 15 U.S.C. 78t(b) (making it unlawful to do indirectly "by means of any other person" any act made unlawful by the federal securities laws). Similarly, the transactions of those who knowingly participate with the fiduciary in such a breach are "as forbidden" as transactions "on behalf of the trustee himself." Mosser v. Darrow, . See Jackson v. Smith, ; Jackson v. Ludeling, 21 Wall. 616, 631-632 (1874). As the Court explained in Mosser, a contrary rule "would open up opportunities for devious dealings in the name of others that the trustee could not conduct in his own." 341 U.S., at 271. See SEC v. Texas Gulf Sulphur Co., 446 F.2d 1301, 1308 (CA2), cert. denied, . Thus, the tippee's duty to disclose or abstain is derivative from that of the insider's duty. See Tr. of Oral Arg. 38. Cf. Chiarella, 445 U.S., at 246, n. 1 (BLACKMUN, J., dissenting). As we noted in Chiarella, "[t]he tippee's obligation has been viewed as arising from his role as a participant after the fact in the insider's breach of a fiduciary duty." Id., at 230, n. 12. Thus, some tippees must assume an insider's duty to the shareholders not because they receive inside information, but rather because it has been made available to them improperly.19 And for Rule 10b-5 purposes, the insider's disclosure is improper only where it would violate his Cady, Roberts duty. Thus, a tippee assumes a fiduciary duty to the shareholders of a corporation not to trade on material nonpublic information only when the insider has breached his fiduciary duty to the shareholders by disclosing the information to the tippee and the tippee knows or should know that there has been a breach.20 As Commissioner Smith perceptively observed in In re Investors Management Co., 44 S. E. C. 633 (1971): "[T]ippee responsibility must be related back to insider responsibility by a necessary finding that the tippee knew the information was given to him in breach of a duty by a person having a special relationship to the issuer not to disclose the information ... ." Id., at 651 (concurring in result). Tipping thus properly is viewed only as a means of indirectly violating the Cady, Roberts disclose-or-abstain rule.21 CIn determining whether a tippee is under an obligation to disclose or abstain, it thus is necessary to determine whether the insider's "tip" constituted a breach of the insider's fiduciary duty. All disclosures of confidential corporate information are not inconsistent with the duty insiders owe to shareholders. In contrast to the extraordinary facts of this case, the more typical situation in which there will be a question whether disclosure violates the insider's Cady, Roberts duty is when insiders disclose information to analysts. See n. 16, supra. In some situations, the insider will act consistently with his fiduciary duty to shareholders, and yet release of the information may affect the market. For example, it may not be clear - either to the corporate insider or to the recipient analyst - whether the information will be viewed as material nonpublic information. Corporate officials may mistakenly think the information already has been disclosed or that it is not material enough to affect the market. Whether disclosure is a breach of duty therefore depends in large part on the purpose of the disclosure. This standard was identified by the SEC itself in Cady, Roberts: a purpose of the securities laws was to eliminate "use of inside information for personal advantage." 40 S. E. C., at 912, n. 15. See n. 10, supra. Thus, the test is whether the insider personally will benefit, directly or indirectly, from his disclosure. Absent some personal gain, there has been no breach of duty to stockholders. And absent a breach by the insider, there is no derivative breach.22 As Commissioner Smith stated in Investors Management Co.: "It is important in this type of case to focus on policing insiders and what they do ... rather than on policing information per se and its possession... ." 44 S. E. C., at 648 (concurring in result).The SEC argues that, if inside-trading liability does not exist when the information is transmitted for a proper purpose but is used for trading, it would be a rare situation when the parties could not fabricate some ostensibly legitimate business justification for transmitting the information. We think the SEC is unduly concerned. In determining whether the insider's purpose in making a particular disclosure is fraudulent, the SEC and the courts are not required to read the parties' minds. Scienter in some cases is relevant in determining whether the tipper has violated his Cady, Roberts duty.23 But to determine whether the disclosure itself "deceive[s], manipulate[s], or defraud[s]" shareholders, Aaron v. SEC, , the initial inquiry is whether there has been a breach of duty by the insider. This requires courts to focus on objective criteria, i. e., whether the insider receives a direct or indirect personal benefit from the disclosure, such as a pecuniary gain or a reputational benefit that will translate into future earnings. Cf. 40 S. E. C., at 912, n. 15; Brudney, Insiders, Outsiders, and Informational Advantages Under the Federal Securities Laws, 93 Harv. L. Rev. 322, 348 (1979) ("The theory ... is that the insider, by giving the information out selectively, is in effect selling the information to its recipient for cash, reciprocal information, or other things of value for himself ..."). There are objective facts and circumstances that often justify such an inference. For example, there may be a relationship between the insider and the recipient that suggests a quid pro quo from the latter, or an intention to benefit the particular recipient. The elements of fiduciary duty and exploitation of nonpublic information also exist when an insider makes a gift of confidential information to a trading relative or friend. The tip and trade resemble trading by the insider himself followed by a gift of the profits to the recipient.Determining whether an insider personally benefits from a particular disclosure, a question of fact, will not always be easy for courts. But it is essential, we think, to have a guiding principle for those whose daily activities must be limited and instructed by the SEC's inside-trading rules, and we believe that there must be a breach of the insider's fiduciary duty before the tippee inherits the duty to disclose or abstain. In contrast, the rule adopted by the SEC in this case would have no limiting principle.24 IVUnder the inside-trading and tipping rules set forth above, we find that there was no actionable violation by Dirks.25 It is undisputed that Dirks himself was a stranger to Equity Funding, with no pre-existing fiduciary duty to its shareholders.26 He took no action, directly or indirectly, that induced the shareholders or officers of Equity Funding to repose trust or confidence in him. There was no expectation by Dirks' sources that he would keep their information in confidence. Nor did Dirks misappropriate or illegally obtain the information about Equity Funding. Unless the insiders breached their Cady, Roberts duty to shareholders in disclosing the nonpublic information to Dirks, he breached no duty when he passed it on to investors as well as to the Wall Street Journal. It is clear that neither Secrist nor the other Equity Funding employees violated their Cady, Roberts duty to the corporation's shareholders by providing information to Dirks.27 The tippers received no monetary or personal benefit for revealing Equity Funding's secrets, nor was their purpose to make a gift of valuable information to Dirks. As the facts of this case clearly indicate, the tippers were motivated by a desire to expose the fraud. See supra, at 648-649. In the absence of a breach of duty to shareholders by the insiders, there was no derivative breach by Dirks. See n. 20, supra. Dirks therefore could not have been "a participant after the fact in [an] insider's breach of a fiduciary duty." Chiarella, 445 U.S., at 230, n. 12.VWe conclude that Dirks, in the circumstances of this case, had no duty to abstain from use of the inside information that he obtained. The judgment of the Court of Appeals therefore is Reversed.

Respondent Katz, president of respondent In Defense of Animals, filed a suit pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388, against, inter alios, petitioner Saucier, a military policeman. Katz alleged, among other things, that Saucier had violated his Fourth Amendment rights by using excessive force in arresting him while he protested during Vice President Gore's speech at a San Francisco army base. The District Court declined to grant Saucier summary judgment on qualified immunity grounds. In affirming, the Ninth Circuit made a two-part qualified immunity inquiry. First, it found that the law governing Saucier's conduct was clearly established when the incident occurred. It therefore moved to a second step: to determine if a reasonable officer could have believed, in light of the clearly established law, that his conduct was lawful. The court concluded that this step and the merits of a Fourth Amendment excessive force claim are identical, since both concern the objective reasonableness of the officer's conduct in light of the circumstances the officer faced at the scene. Thus, it found, summary judgment based on qualified immunity was inappropriate.Held: 1. A qualified immunity ruling requires an analysis not susceptible of fusion with the question whether unreasonable force was used in making the arrest. The Ninth Circuit's approach cannot be reconciled with Anderson v. Creighton, 483 U. S. 635. A qualified immunity defense must be considered in proper sequence. A ruling should be made early in the proceedings so that the cost and expenses of trial are avoided where the defense is dispositive. Such immunity is an entitlement not to stand trial, not a defense from liability. Mitchell v. Forsyth, 472 U. S. 511, 526. The initial inquiry is whether a constitutional right would have been violated on the facts alleged, for if no right would have been violated, there is no need for further inquiry into immunity. However, if a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is whether the right was clearly established. This inquiry must be undertaken in light of the case's specific context, not as a broad general proposition. The relevant, dispositive inquiry is whether it would be clear to a reasonable officer that the conduct was unlawful in the situation he confronted. See Wilson v. Layne, 526 U. S. 603, 615. The Ninth Circuit's approach — to deny summary judgment if a material issue of fact remains on the excessive force claim — could undermine the goal of qualified immunity to avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment. Harlow v. Fitzgerald, 457 U. S. 800, 818. If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate. The Ninth Circuit concluded that qualified immunity is duplicative in an excessive force case, thus eliminating the need for the second step. In holding that qualified immunity applied in the Fourth Amendment context just as it would for any other official misconduct claim, the Anderson Court rejected the argument that there is no distinction between the reasonableness standard for warrantless searches and the qualified immunity inquiry. In an attempt to distinguish Anderson, Katz claims that the subsequent Graham v. Connor, 490 U. S. 386, decision set forth an excessive force analysis indistinguishable from qualified immunity, thus rendering the separate immunity inquiry superfluous and inappropriate in such cases. Contrary to his arguments, the immunity and excessive force inquiries remain distinct after Graham. Graham sets forth factors relevant to the merits of a constitutional excessive force claim, which include the severity of the crime, whether the suspect poses a threat to the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. Id., at 396. If an officer reasonably, but mistakenly, believed that a suspect was likely to fight back, for instance, the officer would be justified in using more force than in fact was needed. The qualified immunity inquiry's concern, on the other hand, is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. An officer might correctly perceive all of the relevant facts, but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. Pp. 4-11. 2. Petitioner was entitled to qualified immunity. Assuming that a constitutional violation occurred under the facts alleged, the question is whether this general prohibition was the source for clearly established law that was contravened in the circumstances. In the circumstances presented to petitioner, which included the duty to protect the Vice President's safety and security from persons unknown in number, there was no clearly established rule prohibiting him from acting as he did. This conclusion is confirmed by the uncontested fact that the force used — dragging Katz from the area and shoving him while placing him into a van — was not so excessive that respondent suffered hurt or injury. Pp. 11-14.194 F. 3d 962, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, and Thomas, JJ., joined, and in which Souter, J., joined as to Parts I and II. Ginsburg, J., filed an opinion concurring in the judgment, in which Stevens and Breyer, JJ., joined. Souter, J., filed an opinion concurring in part and dissenting in part.DONALD SAUCIER, PETITIONER v. ELLIOT M. KATZand IN DEFENSE OF ANIMALSon writ of certiorari to the united states court ofappeals for the ninth circuit[June 18, 2001] Justice Kennedy delivered the opinion of the Court. In this case a citizen alleged excessive force was used to arrest him. The arresting officer asserted the defense of qualified immunity. The matter we address is whether the requisite analysis to determine qualified immunity is so intertwined with the question whether the officer used excessive force in making the arrest that qualified immunity and constitutional violation issues should be treated as one question, to be decided by the trier of fact. The Court of Appeals held the inquiries do merge into a single question. We now reverse and hold that the ruling on qualified immunity requires an analysis not susceptible of fusion with the question whether unreasonable force was used in making the arrest.I In autumn of 1994, the Presidio Army Base in San Francisco was the site of an event to celebrate conversion of the base to a national park. Among the speakers was Vice President Albert Gore, Jr., who attracted several hundred observers from the military and the general public. Some in attendance were not on hand to celebrate, however. Respondent Elliot Katz was concerned that the Army's Letterman Hospital would be used for conducting experiments on animals. (Katz was president of a group called In Defense of Animals. Although both he and the group are respondents here, the issues we discuss center upon Katz, and we refer to him as "respondent"). To voice opposition to the possibility that the hospital might be used for experiments, respondent brought with him a cloth banner, approximately 4 by 3 feet, that read "Please Keep Animal Torture Out of Our National Parks." In the past, as respondent was aware, members of the public had been asked to leave the military base when they engaged in certain activities, such as distributing handbills; and he kept the banner concealed under his jacket as he walked through the base. The area designated for the speakers contained seating for the general public, separated from the stage by a waist-high fence. Respondent sat in the front row of the public seating area. At about the time Vice President Gore began speaking, respondent removed the banner from his jacket, started to unfold it, and walked toward the fence and speakers' platform. Petitioner Donald Saucier is a military police officer who was on duty that day. He had been warned by his superiors of the possibility of demonstrations, and respondent had been identified as a potential protestor. Petitioner and Sergeant Steven Parker — also a military police officer, but not a party to the suit — recognized respondent and moved to intercept him as he walked toward the fence. As he reached the barrier and began placing the banner on the other side, the officers grabbed respondent from behind, took the banner, and rushed him out of the area. Each officer had one of respondent's arms, half-walking, half-dragging him, with his feet "barely touching the ground." App. 24. Respondent was wearing a visible, knee-high leg brace, although petitioner later testified he did not remember noticing it at the time. Saucier and Parker took respondent to a nearby military van, where, respondent claims, he was shoved or thrown inside. Id., at 25. The reason for the shove remains unclear. It seems agreed that respondent placed his feet somewhere on the outside of the van, perhaps the bumper, but there is a dispute whether he did so to resist. As a result of the shove, respondent claims, he fell to the floor of the van, where he caught himself just in time to avoid any injury. The officers drove respondent to a military police station, held him for a brief time, and then released him. Though the details are not clear, it appears that at least one other protestor was also placed into the van and detained for a brief time. Id., at 27. Respondent brought this action in the United States District Court for the Northern District of California against petitioner and other officials pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), alleging, inter alia, that defendants had violated respondent's Fourth Amendment rights by using excessive force to arrest him. The District Court granted the defendants' motions for summary judgment on the grounds of qualified immunity on all claims other than the excessive force claim against Saucier. It held a dispute on a material fact existed concerning whether excessive force was used to remove respondent from the crowd and place him into the van. App. to Pet. for Cert. 27a. The District Court held that the law governing excessive force claims was clearly established at the time of the arrest, and that "[i]n the Fourth Amendment context, the qualified immunity inquiry is the same as the inquiry made on the merits." Id., at 29a-30a. As a result, it ruled, petitioner was not entitled to summary judgment. Id., at 30a. In the United States Court of Appeals for the Ninth Circuit petitioner filed an interlocutory appeal from the denial of qualified immunity. 194 F. 3d 962 (1999). The Court of Appeals affirmed, noting at the outset its two-part analysis for qualified immunity questions. First, the Court of Appeals considers "whether the law governing the official's conduct was clearly established." Id., at 967. If it was not, that ends the matter, and the official is entitled to immunity. If, however, the law was clearly established when the conduct occurred, the Court of Appeals' second step is to determine if a reasonable officer could have believed, in light of the clearly established law, that his conduct was lawful. Ibid. As to the first step of its analysis, the court observed that Graham v. Connor, 490 U. S. 386 (1989), sets forth the objective reasonableness test for evaluating excessive force claims, a principle the Court of Appeals concluded was clearly established for qualified immunity purposes. The court then concluded that the second step of the qualified immunity inquiry and the merits of the Fourth Amendment excessive force claim are identical, since both concern the objective reasonableness of the officer's conduct in light of the circumstances the officer faced on the scene. 194 F. 3d, at 968. On this reasoning, summary judgment based on qualified immunity was held inappropriate. Id., at 968-969. Saucier, represented by the Government of the United States, sought review here, arguing the Court of Appeals erred in its view that the qualified immunity inquiry is the same as the constitutional inquiry and so becomes superfluous or duplicative when excessive force is alleged. We granted certiorari, 531 U. S. 991 (2000).II The Court of Appeals ruled first that the right was clearly established; and second that the reasonableness inquiry into excessive force meant that it need not consider aspects of qualified immunity, leaving the whole matter to the jury. 194 F. 3d, at 967. This approach cannot be reconciled with Anderson v. Creighton, 483 U. S. 635 (1987), however, and was in error in two respects. As we shall explain, the first inquiry must be whether a constitutional right would have been violated on the facts alleged; second, assuming the violation is established, the question whether the right was clearly established must be considered on a more specific level than recognized by the Court of Appeals. In a suit against an officer for an alleged violation of a constitutional right, the requisites of a qualified immunity defense must be considered in proper sequence. Where the defendant seeks qualified immunity, a ruling on that issue should be made early in the proceedings so that the costs and expenses of trial are avoided where the defense is dispositive. Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U. S. 511, 526 (1985). The privilege is "an immunity from suit rather than a mere defense to liability; and like an absolute immunity, it is effectively lost if a case is erroneously permitted to go to trial." Ibid. As a result, "we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation." Hunter v. Bryant, 502 U. S. 224, 227 (1991) (per curiam). A court required to rule upon the qualified immunity issue must consider, then, this threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right? This must be the initial inquiry. Siegert v. Gilley, 500 U. S. 226, 232 (1991). In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law's elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer's conduct was unlawful in the circumstances of the case. If no constitutional right would have been violated were the allegations established, there is no necessity for further inquiries concerning qualified immunity. On the other hand, if a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established. This inquiry, it is vital to note, must be undertaken in light of the specific context of the case, not as a broad general proposition; and it too serves to advance understanding of the law and to allow officers to avoid the burden of trial if qualified immunity is applicable. In this litigation, for instance, there is no doubt that Graham v. Connor, supra, clearly establishes the general proposition that use of force is contrary to the Fourth Amendment if it is excessive under objective standards of reasonableness. Yet that is not enough. Rather, we emphasized in Anderson "that the right the official is alleged to have violated must have been `clearly established' in a more particularized, and hence more relevant, sense: The contours of the right must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." 526 U. S. 603, 615 (1999) ("[A]s we explained in Anderson, the right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established"). The approach the Court of Appeals adopted — to deny summary judgment any time a material issue of fact remains on the excessive force claim — could undermine the goal of qualified immunity to "avoid excessive disruption of government and permit the resolution of many insubstantial claims on summary judgment." Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982). If the law did not put the officer on notice that his conduct would be clearly unlawful, summary judgment based on qualified immunity is appropriate. See Malley v. Briggs, 475 U. S. 335, 341 (1986) (qualified immunity protects "all but the plainly incompetent or those who knowingly violate the law"). This is not to say that the formulation of a general rule is beside the point, nor is it to insist the courts must have agreed upon the precise formulation of the standard. Assuming, for instance, that various courts have agreed that certain conduct is a constitutional violation under facts not distinguishable in a fair way from the facts presented in the case at hand, the officer would not be entitled to qualified immunity based simply on the argument that courts had not agreed on one verbal formulation of the controlling standard. The Court of Appeals concluded that qualified immunity is merely duplicative in an excessive force case, eliminating the need for the second step where a constitutional violation could be found based on the allegations. In Anderson, a warrantless search case, we rejected the argument that there is no distinction between the reasonableness standard for warrantless searches and the qualified immunity inquiry. We acknowledged there was some "surface appeal" to the argument that, because the Fourth Amendment's guarantee was a right to be free from "unreasonable" searches and seizures, it would be inconsistent to conclude that an officer who acted unreasonably under the constitutional standard nevertheless was entitled to immunity because he " `reasonably' acted unreasonably." 483 U. S., at 643. This superficial similarity, however, could not overcome either our history of applying qualified immunity analysis to Fourth Amendment claims against officers or the justifications for applying the doctrine in an area where officers perform their duties with considerable uncertainty as to "whether particular searches or seizures comport with the Fourth Amendment." Id., at 644. With respect, moreover, to the argument made in Anderson that an exception should be made for Fourth Amendment cases, we observed "the heavy burden this argument must sustain to be successful," since "the doctrine of qualified immunity reflects a balance that has been struck `across the board.' " Id., at 642 (quoting Harlow v. Fitzgerald, supra, at 821). We held that qualified immunity applied in the Fourth Amendment context just as it would for any other claim of official misconduct. 483 U. S., at 644. Faced, then, with the heavy burden of distinguishing Anderson and of carving out an exception to the typical qualified immunity analysis applied in other Fourth Amendment contexts, the primary submission by respondent in defense of the Court of Appeals' decision is that our decision in Graham v. Connor, 490 U. S. 386 (1989), somehow changes matters. Graham, in respondent's view, sets forth an excessive force analysis indistinguishable from qualified immunity, rendering the separate immunity inquiry superfluous and inappropriate. Respondent asserts that, like the qualified immunity analysis applicable in other contexts, the excessive force test already affords officers latitude for mistaken beliefs as to the amount of force necessary, so that "Graham has addressed for the excessive force area most of the concerns expressed in Anderson." Brief for Respondents 7. Respondent points out that Graham did not address the interaction of excessive force claims and qualified immunity, since the issue was not raised, see 490 U. S., at 399, n. 12; and respondent seeks to distinguish Anderson on the theory that the issue of probable cause implicates evolving legal standards and resulting legal uncertainty, a subject raising recurrent questions of qualified immunity. By contrast, respondent says, excessive force is governed by the standard established in Graham, a standard providing ample guidance for particular situations. Finally, respondent adopts the suggestion made by one Court of Appeals that the relevant distinction is that probable cause is an ex post inquiry, whereas excessive force, like qualified immunity, should be evaluated from an ex ante perspective. See Finnegan v. Fountain, 915 F. 2d 817, 824, n. 11 (CA2 1990). These arguments or attempted distinctions cannot bear the weight respondent seeks to place upon them. Graham did not change the qualified immunity framework explained in Anderson. The inquiries for qualified immunity and excessive force remain distinct, even after Graham. In Graham, we held that claims of excessive force in the context of arrests or investigatory stops should be analyzed under the Fourth Amendment's "objective reasonableness standard," not under substantive due process principles. 490 U. S., at 388, 394. Because "police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation," id., at 397, the reasonableness of the officer's belief as to the appropriate level of force should be judged from that on-scene perspective. Id., at 396. We set out a test that cautioned against the "20/20 vision of hindsight" in favor of deference to the judgment of reasonable officers on the scene. Id., at 393, 396. Graham sets forth a list of factors relevant to the merits of the constitutional excessive force claim, "requir[ing] careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id., at 396. If an officer reasonably, but mistakenly, believed that a suspect was likely to fight back, for instance, the officer would be justified in using more force than in fact was needed. The qualified immunity inquiry, on the other hand, has a further dimension. The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct. It is sometimes difficult for an officer to determine how the relevant legal doctrine, here excessive force, will apply to the factual situation the officer confronts. An officer might correctly perceive all of the relevant facts but have a mistaken understanding as to whether a particular amount of force is legal in those circumstances. If the officer's mistake as to what the law requires is reasonable, however, the officer is entitled to the immunity defense. Graham does not always give a clear answer as to whether a particular application of force will be deemed excessive by the courts. This is the nature of a test which must accommodate limitless factual circumstances. This reality serves to refute respondent's claimed distinction between excessive force and other Fourth Amendment contexts; in both spheres the law must be elaborated from case to case. Qualified immunity operates in this case, then, just as it does in others, to protect officers from the sometimes "hazy border between excessive and acceptable force," Priester v. Riviera Beach, 208 F. 3d 919, 926-927 (CA11 2000), and to ensure that before they are subjected to suit, officers are on notice their conduct is unlawful. Graham and Anderson refute the excessive force/probable cause distinction on which much of respondent's position seems to depend. The deference owed officers facing suits for alleged excessive force is not different in some qualitative respect from the probable cause inquiry in Anderson. Officers can have reasonable, but mistaken, beliefs as to the facts establishing the existence of probable cause or exigent circumstances, for example, and in those situations courts will not hold that they have violated the Constitution. Yet, even if a court were to hold that the officer violated the Fourth Amendment by conducting an unreasonable, warrantless search, Anderson still operates to grant officers immunity for reasonable mistakes as to the legality of their actions. The same analysis is applicable in excessive force cases, where in addition to the deference officers receive on the underlying constitutional claim, qualified immunity can apply in the event the mistaken belief was reasonable. The temporal perspective of the inquiry, whether labeled as ex ante or ex post, offers no meaningful distinction between excessive force and other Fourth Amendment suits. Graham recognized as much, reviewing several of our probable cause and search warrant cases, then stating that "[w]ith respect to a claim of excessive force, the same standard of reasonableness at the moment applies." 392 U. S. 1 (1968); probable cause to arrest under Hill v. California, 401 U. S. 797 (1971); and search warrant requirements under Maryland v. Garrison, 480 U. S. 79 (1987)); see also Hunter v. Bryant, 379 U. S. 89, 91 (1964))). Excessive force claims, like most other Fourth Amendment issues, are evaluated for objective reasonableness based upon the information the officers had when the conduct occurred.III The case was presented to the Court of Appeals on the assumption that respondent's seizure and brief detention did not violate clearly established First Amendment privileges and did not violate the Fourth Amendment right to be free from arrest without probable cause, as distinct from the force used to detain. The sole question, then, is whether the force used violated a clearly established Fourth Amendment protection so that petitioner was not entitled to immunity. Our instruction to the district courts and courts of appeal to concentrate at the outset on the definition of the constitutional right and to determine whether, on the facts alleged, a constitutional violation could be found is important. As we have said, the procedure permits courts in appropriate cases to elaborate the constitutional right with greater degrees of specificity. Because we granted certiorari only to determine whether qualified immunity was appropriate, however, and because of the limits imposed upon us by the questions on which we granted review, we will assume a constitutional violation could have occurred under the facts alleged based simply on the general rule prohibiting excessive force, then proceed to the question whether this general prohibition against excessive force was the source for clearly established law that was contravened in the circumstances this officer faced. There was no contravention under this standard. Though it is doubtful that the force used was excessive, we need not rest our conclusion on that determination. The question is what the officer reasonably understood his powers and responsibilities to be, when he acted, under clearly established standards. Respondent's excessive force claim for the most part depends upon the "gratuitously violent shove" allegedly received when he was placed into the van, although respondent notes as well that the alleged violation resulted from the "totality of the circumstances," including the way he was removed from the speaking area. See Brief for Respondents 3, n. 2. These circumstances, however, disclose substantial grounds for the officer to have concluded he had legitimate justification under the law for acting as he did. In Graham we noted that "[o]ur Fourth Amendment jurisprudence has long recognized that the right to make an arrest or investigatory stop necessarily carries with it the right to use some degree of physical coercion or threat thereof to effect it." 490 U. S., at 396. A reasonable officer in petitioner's position could have believed that hurrying respondent away from the scene, where the Vice President was speaking and respondent had just approached the fence designed to separate the public from the speakers, was within the bounds of appropriate police responses. Petitioner did not know the full extent of the threat respondent posed or how many other persons there might be who, in concert with respondent, posed a threat to the security of the Vice President. There were other potential protestors in the crowd, and at least one other individual was arrested and placed into the van with respondent. In carrying out the detention, as it has been assumed the officers had the right to do, petitioner was required to recognize the necessity to protect the Vice President by securing respondent and restoring order to the scene. It cannot be said there was a clearly established rule that would prohibit using the force petitioner did to place respondent into the van to accomplish these objectives. As for the shove respondent received when he was placed into the van, those same circumstances show some degree of urgency. We have approved the observation that "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment." Ibid. (citations omitted). Pushes and shoves, like other police conduct, must be judged under the Fourth Amendment standard of reasonableness. In the circumstances presented to this officer, which included the duty to protect the safety and security of the Vice President of the United States from persons unknown in number, neither respondent nor the Court of Appeals has identified any case demonstrating a clearly established rule prohibiting the officer from acting as he did, nor are we aware of any such rule. Our conclusion is confirmed by the uncontested fact that the force was not so excessive that respondent suffered hurt or injury. On these premises, petitioner was entitled to qualified immunity, and the suit should have been dismissed at an early stage in the proceedings. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.DONALD SAUCIER, PETITIONER v. ELLIOT M. KATZand IN DEFENSE OF ANIMALSon writ of certiorari to the united states court ofappeals for the ninth circuit[June 18, 2001] Justice Ginsburg, with whom Justice Stevens and Justice Breyer join, concurring in the judgment. In Graham v. Connor, 490 U. S. 386 (1989), the Court announced and described an "objective reasonableness" standard to govern all claims that law enforcement officers, in violation of the Fourth Amendment, used excessive force in the course of an arrest. Measuring material facts of this case that are not subject to genuine dispute against the Graham standard, I conclude that officer Saucier's motion for summary judgment should have been granted. I therefore concur in the Court's judgment. However, I would not travel the complex route the Court lays out for lower courts. Application of the Graham objective reasonableness standard is both necessary, under currently governing precedent, and, in my view, sufficient to resolve cases of this genre. The Court today tacks on to a Graham inquiry a second, overlapping objective reasonableness inquiry purportedly demanded by qualified immunity doctrine. The two-part test today's decision imposes holds large potential to confuse. Endeavors to bring the Court's abstract instructions down to earth, I suspect, will bear out what lower courts have already observed — paradigmatically, the determination of police misconduct in excessive force cases and the availability of qualified immunity both hinge on the same question: Taking into account the particular circumstances confronting the defendant officer, could a reasonable officer, identically situated, have believed the force employed was lawful? See, e.g., Roy v. Inhabitants of City of Lewiston, 42 F. 3d 691, 695 (CA1 1994); Rowland v. Perry, 41 F. 3d 167, 173 (CA4 1994). Nothing more and nothing else need be answered in this case.I All claims that law enforcement officers have used excessive force in the course of an arrest, Graham made explicit, are to be judged "under the Fourth Amendment and its `reasonableness' standard, rather than under a `substantive due process' approach." 490 U. S., at 395. Underlying intent or motive are not relevant to the inquiry; rather, "the question is whether the officers' actions are `objectively reasonable' in light of the facts and circumstances confronting them." Id., at 397. The proper perspective in judging an excessive force claim, Graham explained, is that of "a reasonable officer on the scene" and "at the moment" force was employed. Id., at 396. "Not every push or shove," the Court cautioned, "even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment." Ibid. (citation omitted). "The calculus of reasonableness" must allow for the reality that "police officers are often forced to make split-second judgments" about the force a particular situation warrants "in circumstances that are tense, uncertain, and rapidly evolving." Id., at 396-397. Under Graham's instructions, the question in this case is whether officer Saucier, in light of the facts and circumstances confronting him, could have reasonably believed he acted lawfully. Here, as in the mine run of exces-sive force cases, no inquiry more complex than that is warranted. Inspecting this case under Graham's lens, and without doubling the "objectively reasonable" inquiry, I agree that Katz's submissions were too slim to put officer Saucier to the burden of trial. As the Court points out, it is not genuinely in doubt that "[a] reasonable officer in [Saucier's] position could have believed that hurrying [Katz] away from the scene ... was within the bounds of appropriate police responses." Ante, at 13. Katz's excessive force claim thus depended on the "gratuitously violent shove" he allegedly received. Ante, at 12-13; see Brief for Respondents 3, n. 2 (conceding that "the gratuitous violent shove" was essential to Katz's excessive force claim). Yet Katz failed to proffer proof, after pretrial discovery, that Saucier, as distinguished from his fellow officer Parker,1 had a hand in the allegedly violent shove.2 Saucier, in his deposition, denied participating in any shove, see App. 39-40, while Katz, in his deposition, said, without elaborating: "They [Parker and Saucier] pretty much threw me in. Just shoved me in," id., at 25. But critically, at no point did Katz say, specifically, that Saucier himself, and not only Parker, pushed or shoved. Katz's reluctance directly to charge Saucier with pushing or shoving is understandable in view of a television news videotape of the episode Katz presented as an exhibit to his complaint. See App. to Pet. for Cert. 27a. The videotape shows that the shove, described by Katz as gratuitously violent, came from the officer on the right side of the police van, not from the officer positioned on the left side. It is undisputed that the officer on the right is Parker, the officer on the left, Saucier. See Pet. for Cert. 27-28, and n. 19; Brief for Petitioner 50, n. 26. Mindful of Graham's cautionary observation that "[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment," 490 U. S., at 396 (citation omitted), and in view of Katz's failure to deny that the shove alleged to establish excessive force came from Parker alone, not from Saucier, I am persuaded that Katz tendered no triable excessive force claim against Saucier.3II In the Court's opinion, Graham is inadequate to control adjudication of excessive force cases. Graham must be overlaid, the Court maintains, by a sequential qualified immunity inquiry. Ante, at 5. The Court instructs lower courts first to undertake what appears to be an unadorned Graham inquiry, i.e., to consider initially whether the parties' submissions, viewed favorably to the plaintiff, could show that the officer's conduct violated the Fourth Amendment. Ante, at 5, 6. If the plaintiff prevails on that "threshold question," ante, at 5, the trial court is then to proceed to the "dispositive [qualified immunity] inquiry," asking "whether it would be clear to a reasonable officer that the conduct was unlawful in the situation he confronted," ante, at 6.4 In the instant case, however, the Court finds that procedural impediments stop it from considering first "whether a constitutional right would have been violated on the facts alleged." Ante, at 5, 12. The Court therefore "assume[s] a constitutional violation could have occurred," ante, at 12 — i.e., it supposes a trier could have found that officer Saucier used force excessive under Graham's definition. Even so, the Court reasons, qualified immunity would shield Saucier because he could have "concluded he had legitimate justification under the law for acting as he did." Ante, at 13. Skipping ahead of the basic Graham (constitutional violation) inquiry it admonished lower courts to undertake at the outset, the Court failed to home in on the duplication inherent in its two-step scheme. As lower courts dealing with excessive force cases on the ground have recognized, however, this Court's decisions invoke "the same `objectively reasonable' standard in describing both the constitutional test of liability [citing Graham, 483 U. S. 635, 639 (1987)]." Roy, 42 F. 3d, at 695; see Street v. Parham, 929 F. 2d 537, 540 (CA10 1991) (describing excessive force case as one "where the determination of liability and the availability of qualified immunity depend on the same findings"). In other words, an officer who uses force that is objectively reasonable "in light of the facts and circumstances confronting [him]," Graham, 490 U. S., at 397, simultaneously meets the standard for qualified immunity, see ante, at 6, and the standard the Court set in Graham for a decision on the merits in his favor. Conversely, an officer whose conduct is objectively unreasonable under Graham should find no shelter under a sequential qualified immunity test. Double counting "objective reasonableness," the Court appears to suggest, ante, at 4-5, is demanded by Anderson, which twice restated that qualified immunity shields the conduct of officialdom "across the board." 457 U. S 800, 821 (1982) (Brennan, J., concurring)); see also Anderson, 483 U. S., at 643 ("we have been unwilling to complicate qualified immunity analysis by making the scope or extent of immunity turn on the precise nature of various officials' duties or the precise character of the particular rights alleged to have been violated"). As I see it, however, excessive force cases are not meet for Anderson's two-part test. Anderson presented the question whether the particular search conducted without a warrant was supported by probable cause and exigent circumstances. The answer to such a question is often far from clear.5 Law in the area is constantly evolving and, correspondingly, variously interpreted. As aptly observed by the Second Circuit, "even learned and experienced jurists have had difficulty in defining the rules that govern a determination of probable cause ... . As he tries to find his way in this thicket, the police officer must not be held to act at his peril." Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 456 F. 2d 1339, 1348 (1972) (on remand). In this light, Anderson reasoned: "Law enforcement officers whose judgments in making these difficult determinations [whether particular searches or seizures comport with the Fourth Amendment] are objectively legally reasonable should no more be held personally liable in damages than should officials making analogous determinations in other areas of law." 483 U. S., at 644 (emphasis added). As the foregoing discussion indicates, however, "excessive force" typically is not an "analogous determination." The constitutional issue whether an officer's use of force was reasonable in given circumstances routinely can be answered simply by following Graham's directions. In inquiring, under Graham, whether an officer's use of force was within a range of reasonable options, the decisionmaker is also (and necessarily) answering the question whether a reasonable officer "could have believed" his use of force "to be lawful," Anderson, 483 U. S., at 638. See Street, 929 F. 2d, at 541, n. 2 (because of difficulty of deciding probable-cause issues, the conduct of an officer may be objectively reasonable even if cause did not exist, but "in excessive force cases, once a factfinder has determined that the force used was unnecessary under the circumstances, any question of objective reasonableness has also been foreclosed"). The Court fears that dispensing with the duplicative qualified immunity inquiry will mean "leaving the whole matter to the jury." Ante, at 4. Again, experience teaches otherwise. Lower courts, armed with Graham's directions, have not shied away from granting summary judgment to defendant officials in Fourth Amendment excessive force cases where the challenged conduct is objectively reasonable based on relevant, undisputed facts. See, e.g., Wilson v. Spain, 209 F. 3d 713, 716 (CA8 2000) ("address[ing] in one fell swoop both [defendant's] qualified immunity and the merits of [plaintiff's] Fourth Amendment [excessive force] claim" and concluding officer's conduct was objectively reasonable in the circumstances, so summary judgment for officer was proper); Roy, 42 F. 3d, at 695 (under single objective reasonableness test, district court properly granted summary judgment for defendant);6 Wardlaw v. Pickett, 1 F. 3d 1297, 1303-1304 (CADC 1993) (same). Indeed, this very case, as I earlier explained, see supra, at 2-4, fits the summary judgment bill. Of course, if an excessive force claim turns on which of two conflicting stories best captures what happened on the street, Graham will not permit summary judgment in favor of the defendant official. And that is as it should be. When a plaintiff proffers evidence that the official subdued her with a chokehold even though she complied at all times with his orders, while the official proffers evidence that he used only stern words, a trial must be had. In such a case, the Court's two-step procedure is altogether inutile.* * * For the reasons stated, I concur in the Court's judgment, but not in the two-step inquiry the Court has ordered. Once it has been determined that an officer violated the Fourth Amendment by using "objectively unreasonable" force as that term is explained in Graham v. Connor, there is simply no work for a qualified immunity inquiry to do.DONALD SAUCIER, PETITIONER v. ELLIOT M. KATZand IN DEFENSE OF ANIMALSon writ of certiorari to the united states court ofappeals for the ninth circuit[June 18, 2001] Justice Souter, concurring in part and dissenting in part. I join Parts I and II of the Court's opinion, but would remand the case for application of the qualified immunity standard.FOOTNOTESFootnote 1 Though named as a defendant, Parker was never served with the complaint, and therefore did not become a party to this litigation. See Brief for Petitioner 3, n. 4. Footnote 2 See Fed. Rule Civ. Proc. 56(e) ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response ... must set forth specific facts showing that there is a genuine issue for trial.").Footnote 3As the Court observes, there is a dispute whether Katz was resisting arrest at the time he was placed in the van. Ante, at 3. That dispute is irrelevant, however, in view of the absence of any indication that Saucier employed excessive force in removing Katz from the site of the celebration and placing him in the van. See Rowland v. Perry, 41 F. 3d 167, 174 (CA4 1994) ("[d]isputed versions of the facts alone are not enough to warrant denial of summary judgment").Footnote 4 The Court's observation that "neither respondent nor the Court of Appeals ha[s] identified any case demonstrating a clearly established rule prohibiting the officer from acting as he did," ante, at 14, must be read in light of our previous caution that "the very action in question [need not have] previously been held unlawful" for a plaintiff to defeat qualified immunity, Anderson v. Creighton, 483 U. S. 635, 640 (1987).Footnote 5 Wilson v. Layne, 526 U. S. 603 (1999), is a prototypical case. There, the Court accorded qualified immunity to police who permitted the media to accompany them on a search of a house. The constitutionality of the ride-along practice was unsettled at the time of the incident-in-suit in Wilson, and remained so until this Court spoke.Footnote 6 Upholding summary judgment for a police officer who shot an armed, intoxicated, belligerently behaving arrestee, the First Circuit in Roy elaborated: "[T]he Supreme Court intends to surround the police who make these on-the-spot choices in dangerous situations with a fairly wide zone of protection in close cases. Decisions from this circuit and other circuits are consistent with that view. And in close cases, a jury does not automatically get to second-guess these life and death decisions, even though the plaintiff has an expert and a plausible claim that the situation could better have been handled differently." 42 F. 3d, at 695 (footnote omitted).

Pursuant to its jurisdiction under 26 U.S.C. 7402(b) and 7604(a), the District Court ordered a state court Clerk to comply with a summons issued by the Internal Revenue Service (IRS) for the production of, inter alia, two tapes in the Clerk's custody recording conversations between officials of petitioner Church of Scientology (Church) and their attorneys. Although the Church filed a timely notice of appeal, its request for a stay of the summons enforcement order was unsuccessful, and copies of the tapes were delivered to the IRS while the appeal was pending. The Court of Appeals dismissed the appeal as moot, ruling that no controversy existed because the tapes had already been turned over to the IRS.Held: Compliance with the summons enforcement order did not moot the Church's appeal. Delivery of the tapes to the IRS did not mandate dismissal by making it impossible for the Court of Appeals to grant the Church "any effectual relief." See Mills v. Green, . Although it is now too late to prevent, or to provide a fully satisfactory remedy for, the invasion of privacy that occurred when the IRS obtained the information on the tapes, the Court of Appeals does have power to effectuate a partial remedy by ordering the Government to return or destroy any copies of the tapes that it may possess. Even if the Government is right that, under 7402(b) and 7604(a), the jurisdiction of the district court is limited to those matters directly related to whether or not the summons should be enforced, the question presented here is whether there was jurisdiction in the appellate court to review the allegedly unlawful summons enforcement order. There is nothing in the Internal Revenue Code to suggest that Congress sought to preclude such review, and, indeed, this Court has expressly held that IRS summons enforcement orders are subject to appellate review. See Reisman v. Caplin, . Although several Courts of Appeals have accepted the Government's argument in IRS enforcement proceedings, the force of that line of authority is matched by a similar array of decisions reaching a contrary conclusion in proceedings enforcing Federal Trade Commission discovery requests. There is no significant difference between the governing statutes that can explain the divergent interpretations, nor any reason to conclude that production of records relevant to a tax investigation should have mootness consequences that production of other business records does not have. Pp. 12-18. Vacated and remanded.STEVENS, J., delivered the opinion for a unanimous Court.Eric M. Lieberman argued the cause for petitioner. With him on the briefs were David B. Goldstein, Hillary Richard, and Michael Lee Hertzberg.Deputy Solicitor General Wallace argued the cause for the respondents. With him on the brief were Solicitor General Starr, Acting Assistant Attorney General Griffin, Kent L. Jones, Charles E. Brookhart, and John A. Dudeck, Jr.JUSTICE STEVENS delivered the opinion of the Court.Two tapes recording conversations between officials of the Church of Scientology (Church) and their attorneys in July, 1980, have been the principal bone of contention in this, and two earlier, legal proceedings.In an action filed in the Los Angeles County Superior Court,1 the Church contended that the defendant had unlawfully acquired possession of the tapes. Pending resolution of that action, the state court ordered its Clerk to take custody of the tapes and certain other documents.In 1984, in connection with an investigation of the tax returns of L. Ron Hubbard, founder of the Church of Scientology, the Internal Revenue Service (IRS) sought access to the Church documents in the state court Clerk's possession.2 After the Clerk was served with an IRS summons, he permitted IRS agents to examine and make copies of the tapes. Thereafter, in a federal action initiated by the Church in the Central District of California, the District Court entered a temporary restraining order directing the IRS to file its copies of the tapes, and all related notes, with the federal court.3 Those copies were subsequently returned to the Clerk of the state court.On January 18, 1985, the IRS commenced this proceeding by filing a petition to enforce the summons that had previously been served on the state court Clerk.4 The Church intervened and opposed production of the tapes on the ground that they were protected by the attorney-client privilege. After protracted proceedings, including review in this Court, see United States v. Zolin, , on April 15, 1991, the District Court entered an order enforcing compliance with the summons. The Church filed a timely notice of appeal and unsuccessfully sought a stay of that order. While the appeal was pending, copies of the tapes were delivered to the IRS. Thereafter, the Court of Appeals ordered the Church to show cause why its appeal should not be dismissed as moot. After briefing on the mootness issue, the court dismissed the appeal. It explained: "Because it is undisputed that the tapes have been turned over to the IRS in compliance with the summons enforcement order, no controversy exists presently, and this appeal is moot." United States v. Zolin, No. 91-55506 (CA9, Sept. 10, 1991). We granted the Church's petition for certiorari to consider the narrow question whether the appeal was properly dismissed as moot. .IIt has long been settled that a federal court has no authority "to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it." Mills v. Green, . See also Preiser v. Newkirk, ; North Carolina v. Rice, . For that reason, if an event occurs while a case is pending on appeal that makes it impossible for the court to grant "any effectual relief whatever" to a prevailing party, the appeal must be dismissed. Mills, 159 U.S., at 653. In this case, after the Church took its appeal from the April 15 order, in compliance with that order, copies of the tapes were delivered to the IRS. The Government contends that it was thereafter impossible for the Court of Appeals to grant the Church any effectual relief. We disagree.While a court may not be able to return the parties to the status quo ante - there is nothing a court can do to withdraw all knowledge or information that IRS agents may have acquired by examination of the tapes - a court can fashion some form of meaningful relief in circumstances such as these. Taxpayers have an obvious possessory interest in their records. When the Government has obtained such materials as a result of an unlawful summons, that interest is violated, and a court can effectuate relief by ordering the Government to return the records. Moreover, even if the Government retains only copies of the disputed materials, a taxpayer still suffers injury by the Government's continued possession of those materials, namely, the affront to the taxpayer's privacy. A person's interest in maintaining the privacy of his "papers and effects" is of sufficient importance to merit constitutional protection.5 Indeed, that the Church considers the information contained on the disputed tapes important is demonstrated by the long, contentious history of this litigation. Even though it is now too late to prevent, or to provide a fully satisfactory remedy for, the invasion of privacy that occurred when the IRS obtained the information on the tapes, a court does have power to effectuate a partial remedy by ordering the Government to destroy or return any and all copies it may have in its possession. The availability of this possible remedy is sufficient to prevent this case from being moot.6 The Government argues, however, that these basic principles are inapplicable in IRS summons enforcement proceedings because of the particular nature of the statute governing such proceedings. Reasoning from the premise that federal courts are empowered to consider only those matters within their jurisdiction, the Government argues that in IRS summons enforcement proceedings the subject matter jurisdiction of the District Court is limited to determining only whether the court should "compel ... production of" the information requested by the summons. 26 U.S.C. 7402(b), 7604(a). See n. 4, supra. Once the court has answered that question and compliance has occurred, there is nothing more for the District Court to decide, and the jurisdiction of the District Court evaporates.We think the Government misconceives the inquiry in this case. The Government may or may not be right that, under 7402(b) and 7604(a), the jurisdiction of the District Court is limited to those matters directly related to whether or not the summons should be enforced. Indeed, the scope of the District Court's jurisdiction under those provisions was the issue over which this Court deadlocked in United States v. Zolin, .7 The question presented in the current incarnation of this case is whether there was jurisdiction in the appellate court to review the allegedly unlawful summons enforcement order. On that question, the Government's elaborate statutory argument is largely irrelevant. There is nothing in the statute to suggest that Congress sought to preclude appellate review of district court enforcement orders. To the contrary, we have expressly held that IRS summons enforcement orders are subject to appellate review. See Reisman v. Caplin, . Thus, whether or not there is jurisdiction in the appellate court to review the District Court's order turns not on the subject matter of Congress' jurisdictional grant to the district courts, but on traditional principles of justiciability, namely, whether an intervening event has rendered the controversy moot. And, as we have already explained, this case is not moot, because, if the summons were improperly issued or enforced, a court could order that the IRS' copies of the tapes be either returned or destroyed.IIWe recognize that several Courts of Appeals have accepted the Government's argument in IRS enforcement proceedings,8 but the force of that line of authority is matched by a similar array of decisions reaching a contrary conclusion in proceedings enforcing Federal Trade Commission (FTC) discovery requests.9 There is no significant difference between the governing statutes that can explain the divergent interpretations.10 Nor is there any reason to conclude that production of records relevant to a tax investigation should have mootness consequences that production of other business records does not have. Moreover, in construing these provisions of the Internal Revenue Code, the Court has considered it appropriate to rely on its earlier cases involving other statutes, including the Federal Trade Commission Act. See United States v. Powell, (citing United States v. Morton Salt Co., ).We therefore conclude that the appeal was improperly dismissed as moot. In so concluding, we express no opinion on the merits of the Church's argument that the Government did not establish an adequate evidentiary basis to support the District Court's determination that the tapes fell within the crime-fraud exception to the attorney-client privilege. Nor do we express any opinion about the res judicata contention advanced in the Government's brief in opposition to the petition for certiorari. Brief for United States in Opposition 13-14. We simply hold that compliance with the summons enforcement order did not moot the Church's appeal.11 The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Respondents - passengers and representatives of the estates of passengers on a cruise ship hijacked by terrorists - filed suit in the District Court against petitioner, the ship's owner, to recover damages for personal injuries and for the wrongful death of one passenger. Before trial, petitioner moved to dismiss the actions, citing the forum-selection clause printed on each passenger ticket, which purported to obligate passengers to institute any suit in connection with the contract in Italy and to renounce the right to sue elsewhere. The District Court denied the motions, holding that the ticket did not give passengers reasonable notice that they were waiving the opportunity to sue in a domestic forum. The Court of Appeals dismissed petitioner's appeal on the ground that the District Court's dismissal orders were interlocutory and not appealable under 28 U.S.C. 1291, holding that the orders did not fall within the exception to the rule of nonappealability carved out by the collateral order doctrine.Held: An interlocutory order denying a defendant's motion to dismiss a damages action on the basis of a contractual forum-selection clause is not immediately appealable under 1291. Such an order is not final in the usual sense, for it does not end the litigation on the merits but, on the contrary, ensures that the litigation will continue. Nor does the order fall within the narrow exception to the normal application of the final judgment rule known as the collateral order doctrine, for the order is not effectively unreviewable on appeal from final judgment. The right to be sued only in a particular forum, as compared to the right to avoid suit altogether, although not perfectly secured by an appeal after final judgment, is sufficiently vindicable at that stage and is not essentially destroyed if vindication is postponed until trial is completed. Moreover, the costs associated with unnecessary litigation, should it eventually be decided that the District Court erred in trying the case, do not warrant allowing an immediate appeal of a pretrial order. That there may be a policy favoring enforcement of foreign forum-selection clauses goes to the merits of petitioner's claim that its ticket agreement requires that suit be filed in Italy and that the agreement should be enforced by the federal courts, but does not affect the appealability of a prejudgment order, which turns on the contours of the right asserted, not on the likelihood of eventual success on the merits. Pp. 497-501. 844 F.2d 50, affirmed.BRENNAN, J., delivered the opinion for a unanimous Court. SCALIA, J., filed a concurring opinion, post, p. 502.Raymond A. Connell argued the cause for petitioner. With him on the briefs were John R. Geraghty and LeRoy Lambert. Daniel J. Dougherty filed a brief for Chandris, Inc., respondent under this Court's Rule 19.6 in support of petitioner.Arnold I. Burns argued the cause for respondents. On the brief were Morris J. Eisen and William P. Larsen, Jr.JUSTICE BRENNAN delivered the opinion of the Court.We granted certiorari to consider whether an interlocutory order of a United States District Court denying a defendant's motion to dismiss a damages action on the basis of a contractual forum-selection clause is immediately appealable under 28 U.S.C. 1291 as a collateral final order. We hold that it is not.IThe individual respondents were, or represent the estates of persons who were, passengers aboard the cruise ship Achille Lauro when it was hijacked by terrorists in the Mediterranean in October 1985. Petitioner Lauro Lines s.r.l., an Italian company, owns the Achille Lauro. Respondents filed suits against Lauro Lines in the District Court for the Southern District of New York to recover damages for injuries sustained as a result of the hijacking and for the wrongful death of passenger Leon Klinghoffer. Lauro Lines moved before trial to dismiss the actions, citing the forum-selection clause printed on each passenger ticket. This clause purported to obligate the passenger to institute any suit arising in connection with the contract in Naples, Italy, and to renounce the right to sue elsewhere. The District Court denied petitioner's motions to dismiss, holding that the ticket as a whole did not give reasonable notice to passengers that they were waiving the opportunity to sue in a domestic forum. Without moving for certification for immediate appeal pursuant to 28 U.S.C. 1292(b), Lauro Lines sought to appeal the District Court's orders. The Court of Appeals for the Second Circuit dismissed petitioner's appeal on the ground that the District Court's orders denying petitioner's motions to dismiss were interlocutory and not appealable under 1291. The court held that the orders did not fall within the exception to the rule of non-appealability carved out for collateral final orders in Cohen v. Beneficial Industrial Loan Corp., . 844 F.2d 50 (1988). We granted certiorari to resolve a disagreement among the Courts of Appeals. . Compare, e. g., 844 F.2d 50 (1988) (case below); Rohrer, Hibler & Replogle, Inc. v. Perkins, 728 F.2d 860, 862-863 (CA7) (holding prejudgment denial of motion to dismiss on basis of forum-selection clause not to be immediately appealable under 1291), cert. denied, , with Hodes v. S. N.C. Achille Lauro ed Altri-Gestione, 858 F.2d 905, 908 (CA3 1988), cert. dism'd, ; Sterling Forest Associates, Ltd. v. Barnett-Range Corp., 840 F.2d 249, 253 (CA4 1988); Farmland Industries, Inc. v. Frazier-Parrott Commodities, Inc., 806 F.2d 848, 851 (CA8 1986) (holding such denial to be an immediately appealable collateral final order). We now affirm.IITitle 28 U.S.C. 1291 provides for appeal to the courts of appeals only from "final decisions of the district courts of the United States." For purposes of 1291, a final judgment is generally regarded as "a decision by the district court that `ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'" Van Cauwenberghe v. Biard, , quoting Catlin v. United States, . An order denying a motion to dismiss a civil action on the ground that a contractual forum-selection clause requires that such suit be brought in another jurisdiction is not a decision on the merits that ends the litigation. On the contrary, such an order "ensures that litigation will continue in the District Court." Gulfstream Aerospace Corp. v. Mayacamas Corp., . Section 1291 thus permits an appeal only if an order denying a motion to dismiss based upon a forum-selection clause falls within the "narrow exception to the normal application of the final judgment rule [that] has come to be known as the collateral order doctrine." Midland Asphalt Corp. v. United States, . That exception is for a "small class" of prejudgment orders that "finally determine claims of right separable from, and collateral to, rights asserted in the action, [and that are] too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen, supra, at 546. We have held that to fall within the Cohen exception, an order must satisfy at least three conditions: "It must `conclusively determine the disputed question,' `resolve an important issue completely separate from the merits of the action,' and `be effectively unreviewable on appeal from a final judgment.'" Richardson-Merrell Inc. v. Koller, , quoting Coopers & Lybrand v. Livesay, . For present purposes, we need not decide whether an order denying a dismissal motion based upon a contractual forum-selection clause conclusively determines a disputed issue, or whether it resolves an important issue that is independent of the merits of the action, for the District Court's orders fail to satisfy the third requirement of the collateral order test.We recently reiterated the "general rule" that an order is "effectively unreviewable" only "where the order at issue involves `an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.'" Midland Asphalt Corp., supra, at 798, quoting United States v. MacDonald, . If it is eventually decided that the District Court erred in allowing trial in this case to take place in New York, petitioner will have been put to unnecessary trouble and expense, and the value of its contractual right to an Italian forum will have been diminished. It is always true, however, that "there is value ... in triumphing before trial, rather than after it," MacDonald, supra, at 860, n. 7, and this Court has declined to find the costs associated with unnecessary litigation to be enough to warrant allowing the immediate appeal of a pretrial order, see Richardson-Merrell Inc., supra, at 436 ("[T]he possibility that a ruling may be erroneous and may impose additional litigation expense is not sufficient to set aside the finality requirement imposed by Congress" in 1291). Instead, we have insisted that the right asserted be one that is essentially destroyed if its vindication must be postponed until trial is completed.We have thus held in cases involving criminal prosecutions that the deprivation of a right not to be tried is effectively unreviewable after final judgment and is immediately appealable. Helstoski v. Meanor, (denial of motion to dismiss under the Speech or Debate Clause); Abney v. United States, (denial of motion to dismiss on double jeopardy grounds). See Midland Asphalt Corp., supra, at 801 ("A right not to be tried in the sense relevant to the Cohen exception rests upon an explicit statutory or constitutional guarantee that trial will not occur") (emphasis added). Similarly, in civil cases, we have held that the denial of a motion to dismiss based upon a claim of absolute immunity from suit is immediately appealable prior to final judgment, Nixon v. Fitzgerald, , "for the essence of absolute immunity is its possessor's entitlement not to have to answer for his conduct in a civil damages action," Mitchell v. Forsyth, . And claims of qualified immunity may be pursued by immediate appeal, because qualified immunity too "is an immunity from suit." Id., at 526 (emphasis in original).On the other hand, we have declined to hold the collateral order doctrine applicable where a district court has denied a claim, not that the defendant has a right not to be sued at all, but that the suit against the defendant is not properly before the particular court because it lacks jurisdiction. In Van Cauwenberghe v. Biard, , a civil defendant moved for dismissal on the ground that he had been immune from service of process because his presence in the United States had been compelled by extradition to face criminal charges. We noted that, after Mitchell, "[t]he critical question ... is whether `the essence' of the claimed right is a right not to stand trial," 486 U.S., at 524, and held that the immunity from service of process defendant asserted did not amount to an immunity from suit - even though service was essential to the trial court's jurisdiction over the defendant. See also Catlin v. United States, 324 U.S., at 236 (order denying motion to dismiss petition for condemnation of land not immediately appealable, "even when the motion is based upon jurisdictional grounds").Lauro Lines argues here that its contractual forum-selection clause provided it with a right to trial before a tribunal in Italy, and with a concomitant right not to be sued anywhere else. This "right not to be haled for trial before tribunals outside the agreed forum," petitioner claims, cannot effectively be vindicated by appeal after trial in an improper forum. Brief for Petitioner 38-39. There is no obviously correct way to characterize the right embodied in petitioner's forum-selection provision: "all litigants who have a meritorious pretrial claim for dismissal can reasonably claim a right not to stand trial." Van Cauwenberghe, supra, at 524. The right appears most like the right to be free from trial if it is characterized - as by petitioner - as a right not to be sued at all except in a Neapolitan forum. It appears less like a right not to be subjected to suit if characterized - as by the Court of Appeals - as "a right to have the binding adjudication of claims occur in a certain forum." 844 F.2d, at 55. Cf. Van Cauwenberghe, supra, at 526-527. Even assuming that the former characterization is proper, however, petitioner is obviously not entitled under the forum-selection clause of its contract to avoid suit altogether, and an entitlement to avoid suit is different in kind from an entitlement to be sued only in a particular forum. Petitioner's claim that it may be sued only in Naples, while not perfectly secured by appeal after final judgment, is adequately vindicable at that stage - surely as effectively vindicable as a claim that the trial court lacked personal jurisdiction over the defendant - and hence does not fall within the third prong of the collateral order doctrine.Petitioner argues that there is a strong federal policy favoring the enforcement of foreign forum-selection clauses, citing The Bremen v. Zapata Off-Shore Co., , and that "the essential concomitant of this strong federal policy ... is the right of immediate appellate review of district court orders denying their enforcement." Brief for Petitioner 40-41. A policy favoring enforcement of forum-selection clauses, however, would go to the merits of petitioner's claim that its ticket agreement requires that any suit be filed in Italy and that the agreement should be enforced by the federal courts. Immediate appealability of a prejudgment order denying enforcement, insofar as it depends upon satisfaction of the third prong of the collateral order test, turns on the precise contours of the right asserted, and not upon the likelihood of eventual success on the merits. The Court of Appeals properly dismissed petitioner's appeal, and its judgment is Affirmed. JUSTICE SCALIA, concurring.I join the opinion of the Court and write separately only to make express what seems to me implicit in its analysis.The reason we say that the right not to be sued elsewhere than in Naples is "adequately vindicable," ante, at 501, by merely reversing any judgment obtained in violation of it is, quite simply, that the law does not deem the right important enough to be vindicated by, as it were, an injunction against its violation obtained through interlocutory appeal. The importance of the right asserted has always been a significant part of our collateral order doctrine. When first formulating that doctrine in Cohen v. Beneficial Industrial Loan Corp., , we said that it permits interlocutory appeal of final determinations of claims that are not only "separable from, and collateral to, rights asserted in the action," but also, we immediately added, "too important to be denied review." Id., at 546 (emphasis added). Our later cases have retained that significant requirement. For example, in Abney v. United States, , we said that in order to qualify for immediate appeal the order must involve "an important right which would be `lost, probably irreparably,' if review had to await final judgment." Id., at 658 (emphasis added), quoting Cohen, supra, at 546. And in Coopers & Lybrand v. Livesay, , we said that the order must "resolve an important issue completely separate from the merits of the action." Id., at 468 (emphasis added). See also Van Cauwenberghe v. Biard, ; Gulfstream Aerospace Corp. v. Mayacamas Corp., ; Richardson-Merrell Inc. v. Koller, ; Moses H. Cone Memorial Hospital v. Mercury Construction Corp., ; Nixon v. Fitzgerald, .While it is true, therefore, that the "right not to be sued elsewhere than in Naples" is not fully vindicated - indeed, to be utterly frank, is positively destroyed - by permitting the trial to occur and reversing its outcome, that is vindication enough because the right is not sufficiently important to overcome the policies militating against interlocutory appeals. We have made that judgment when the right not to be tried in a particular court has been created through jurisdictional limitations established by Congress or by international treaty, see Van Cauwenberghe, supra. The same judgment applies - if anything, a fortiori - when the right has been created by private agreement.

Certiorari granted; 357 F.2d 756, affirmed.Arthur Kinoy, William M. Kunstler and J. L. Williams for petitioners.Rutledge C. Clement for respondent.PER CURIAM.The motions to dispense with printing the petition for a writ of certiorari and the respondent's brief are granted. The petition for writ of certiorari is also granted and the judgments are affirmed. City of Greenwood v. Peacock, ante, p. 808.THE CHIEF JUSTICE, MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN and MR. JUSTICE FORTAS would reverse the judgments for the reasons stated in the dissenting opinion of MR. JUSTICE DOUGLAS in City of Greenwood v. Peacock, ante, at 835.

In June 2004, respondent local union (Local), supported by its parent international (IBT), initiated a strike against petitioner Granite Rock, the employer of some of Local's members, following the expiration of the parties' collective-bargaining agreement (CBA) and an impasse in their negotiations. On July 2, the parties agreed to a new CBA containing no-strike and arbitration clauses, but could not reach a separate back-to-work agreement holding local and international union members harmless for any strike-related damages Granite Rock incurred. IBT instructed Local to continue striking until Granite Rock approved such a hold-harmless agreement, but the company refused to do so, informing Local that continued strike activity would violate the new CBA's no-strike clause. IBT and Local responded by announcing a company-wide strike involving numerous facilities and workers, including members of other IBT locals. Granite Rock sued IBT and Local, invoking federal jurisdiction under §301(a) of the Labor Management Relations Act, 1947 (LMRA), seeking strike-related damages for the unions' alleged breach of contract, and asking for an injunction against the ongoing strike because the hold-harmless dispute was an arbitrable grievance under the new CBA. The unions conceded §301(a) jurisdiction, but asserted that the new CBA was never validly ratified by a vote of Local's members, and, thus, the CBA's no-strike clause did not provide a basis for Granite Rock to challenge the strike. After Granite Rock amended its complaint to add claims that IBT tortiously interfered with the new CBA, the unions moved to dismiss. The District Court granted IBT's motion to dismiss the tortious interference claims on the ground that §301(a) supports a federal cause of action only for breach of contract. But the court denied Local's separate motion to send the parties' dispute over the CBA's ratification date to arbitration, ruling that a jury should decide whether ratification occurred on July 2, as Granite Rock contended, or on August 22, as Local alleged. After the jury concluded that the CBA was ratified on July 2, the court ordered arbitration to proceed on Granite Rock's breach-of-contract claims. The Ninth Circuit affirmed the dismissal of the tortious interference claims, but reversed the arbitration order, holding that the parties' ratification-date dispute was a matter for an arbitrator to resolve under the CBA's arbitration clause. The Court of Appeals reasoned that the clause covered the ratification-date dispute because the clause clearly covered the related strike claims; national policy favoring arbitration required ambiguity about the arbitration clause's scope to be resolved in favor of arbitrability; and, in any event, Granite Rock had implicitly consented to arbitrate the ratification-date dispute by suing under the contract. Held: 1. The parties' dispute over the CBA's ratification date was a matter for the District Court, not an arbitrator, to resolve. Pp. 6-20. (a) Whether parties have agreed to arbitrate a particular dispute is typically an " ' issue for judicial determination,' " e.g., Howsam v. Dean Witter Reynolds, Inc., 537 U. S. 79, 83, as is a dispute over an arbitration contract's formation, see, e.g., First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 944. These principles would neatly dispose of this case if the formation dispute here were typical. But it is not. It is based on when (not whether) the new CBA containing the parties' arbitration clause was ratified and thereby formed. To determine whether the parties' dispute over the CBA's ratification date is arbitrable, it is necessary to apply the rule that a court may order arbitration of a particular dispute only when satisfied that the parties agreed to arbitrate that dispute. See, e.g., id., at 943. To satisfy itself that such agreement exists, the court must resolve any issue that calls into question the specific arbitration clause that a party seeks to have the court enforce. See, e.g., Rent-A-Center, West, Inc. v. Jackson, ante, at 4-6. Absent an agreement committing them to an arbitrator, such issues typically concern the scope and enforceability of the parties' arbitration clause. In addition, such issues always include whether the clause was agreed to, and may include when that agreement was formed. Pp. 6-7. (b) In cases invoking the "federal policy favoring arbitration of labor disputes," Gateway Coal Co. v. Mine Workers, 414 U. S. 368, 377, courts adhere to the same framework, see, e.g., AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, and discharge their duty to satisfy themselves that the parties agreed to arbitrate a particular dispute by (1) applying the presumption of arbitrability only where a validly formed and enforceable arbitration agreement is ambiguous about whether it covers the dispute at hand and (2) ordering arbitration only where the presumption is not rebutted, see, e.g., id., at 651-652. Local is thus wrong to suggest that the presumption takes courts outside the settled framework for determining arbitrability. This Court has never held that the presumption overrides the principle that a court may submit to arbitration "only those disputes ... the parties have agreed to submit," First Options, supra, at 943, nor that courts may use policy considerations as a substitute for party agreement, see, e.g., AT&T Technologies, supra, at 648651. The presumption should be applied only where it reflects, and derives its legitimacy from, a judicial conclusion (absent a provision validly committing the issue to an arbitrator) that arbitration of a particular dispute is what the parties intended because their express agreement to arbitrate was validly formed, is legally enforceable, and is best construed to encompass the dispute. See, e.g., First Options, supra, at 944-945. This simple framework compels reversal of the Ninth Circuit's judgment because it requires judicial resolution of two related questions central to Local's arbitration demand: when the CBA was formed, and whether its arbitration clause covers the matters Local wishes to arbitrate. Pp. 7-13. (c) The parties characterize their ratification-date dispute as a formation dispute because a union vote ratifying the CBA's terms was necessary to form the contract. For purposes of determining arbitrability, when a contract is formed can be as critical as whether it was formed. That is so where, as here, an agreement's ratification date determines its formation date, and thus determines whether its provisions were enforceable during the period relevant to the parties' dispute. This formation date question requires judicial resolution here because it relates to Local's arbitration demand in a way that required the District Court to determine the CBA's ratification date in order to decide whether the parties consented to arbitrate the matters the demand covered. The CBA requires arbitration only of disputes that "arise under" the agreement. The parties' ratification-date dispute does not clearly fit that description. But the Ninth Circuit credited Local's argument that the ratification-date dispute should be presumed arbitrable because it relates to a dispute (the no-strike dispute) that does clearly "arise under" the CBA. The Ninth Circuit overlooked the fact that this theory of the ratification-date dispute's arbitrability fails if, as Local asserts, the new CBA was not formed until August 22, because in that case there was no CBA for the July no-strike dispute to "arise under." Local attempts to address this flaw in the Circuit's reasoning by arguing that a December 2004 document the parties executed rendered the new CBA effective as of May 1, 2004, the date the prior CBA expired. The Court of Appeals did not rule on this claim, and this Court need not do so either because it was not raised in Local's brief in opposition to the certiorari petition. Pp. 13-17. (d) Another reason to reverse the Court of Appeals' judgment is that the ratification-date dispute, whether labeled a formation dispute or not, falls outside the arbitration clause's scope on grounds the presumption favoring arbitration cannot cure. CBA §20 provides, inter alia, that "[a]ll disputes arising under this agreement shall be resolved in accordance with the [Grievance] procedure," which includes arbitration. The parties' ratification-date dispute cannot properly be said to fall within this provision's scope for at least two reasons. First, the question whether the CBA was validly ratified on July 2, 2004 — a question concerning the CBA's very existence — cannot fairly be said to "arise under" the CBA. Second, even if the "arising under" language could in isolation be construed to cover this dispute, §20's remaining provisions all but foreclose such a reading by describing that section's arbitration requirement as applicable to labor disagreements that are addressed in the CBA and are subject to its requirement of mandatory mediation. The Ninth Circuit's contrary conclusion finds no support in §20's text. That court's only effort to grapple with that text misses the point by focusing on whether Granite Rock's claim to enforce the CBA's no-strike provisions could be characterized as "arising under" the agreement, which is not the dispositive issue here. Pp. 17-18. (e) Local's remaining argument in support of the Court of Appeals' judgment — that Granite Rock "implicitly" consented to arbitration when it sued to enforce the CBA's no-strike and arbitrable grievance provisions — is similarly unavailing. Although it sought an injunction against the strike so the parties could arbitrate the labor grievance giving rise to it, Granite Rock's decision to sue does not establish an agreement, "implicit" or otherwise, to arbitrate an issue (the CBA's formation date) that the company did not raise and has always rightly characterized as beyond the arbitration clause's scope. Pp. 19-20. 2. The Ninth Circuit did not err in declining to recognize a new federal common-law cause of action under LMRA §301(a) for IBT's alleged tortious interference with the CBA. Though virtually all other Circuits have rejected such claims, Granite Rock argues that doing so in this case is inconsistent with federal labor law's goal of promoting industrial peace and economic stability through judicial enforcement of CBAs, and with this Court's precedents holding that a federal common law of labor contracts is necessary to further this goal, see, e.g., Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448, 451. The company says the remedy it seeks is necessary because other potential avenues for deterrence and redress, such as state-law tort claims, unfair labor practices claims before the National Labor Relations Board (NLRB), and federal common-law breach-of-contract claims, are either unavailable or insufficient. But Granite Rock has not yet exhausted all of these avenues for relief, so this case does not provide an opportunity to judge their efficacy. Accordingly, it would be premature to recognize the cause of action Granite Rock seeks, even assuming §301(a) authorizes this Court to do so. That is particularly true here because the complained-of course of conduct has already prompted judgments favorable to Granite Rock from the jury below and from the NLRB in separate proceedings concerning the union's attempts to delay the new CBA's ratification. Those proceedings, and others to be conducted on remand, buttress the conclusion that Granite Rock's assumptions about the adequacy of other avenues of relief are questionable, and that the Court of Appeals did not err in declining to recognize the new federal tort Granite Rock requests. Pp. 20-25. 546 F. 3d 1169, reversed in part, affirmed in part, and remanded. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Ginsburg, Breyer, and Alito, JJ., joined, and in which Stevens and Sotomayor, JJ., joined as to Part III. Sotomayor, J., filed an opinion concurring in part and dissenting in part, in which Stevens, J., joined.GRANITE ROCK COMPANY, PETITIONER v.INTERNATIONAL BROTHERHOODOF TEAMSTERS et al.on writ of certiorari to the united states court of appeals for the ninth circuit[June 24, 2010] Justice Thomas delivered the opinion of the Court. This case involves an employer's claims against a local union and the union's international parent for economic damages arising out of a 2004 strike. The claims turn in part on whether a collective-bargaining agreement (CBA) containing a no-strike provision was validly formed during the strike period. The employer contends that it was, while the unions contend that it was not. Because the CBA contains an arbitration clause, we first address whether the parties' dispute over the CBA's ratification date was a matter for the District Court or an arbitrator to resolve. We conclude that it was a matter for judicial resolution. Next, we address whether the Court of Appeals erred in declining the employer's request to recognize a new federal cause of action under §301(a) of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U. S. C. §185(a), for the international union's alleged tortious interference with the CBA. The Court of Appeals did not err in declining this request.I Petitioner Granite Rock Company is a concrete and building materials company that has operated in California since 1900. Granite Rock employs approximately 800 employees under different labor contracts with several unions, including respondent International Brotherhood of Teamsters, Local 287 (Local). Granite Rock and Local were parties to a 1999 CBA that expired in April 2004. The parties' attempt to negotiate a new CBA hit an impasse and, on June 9, 2004, Local members initiated a strike in support of their contract demands.1 The strike continued until July 2, 2004, when the parties reached agreement on the terms of a new CBA. The CBA contained a no-strike clause but did not directly address union members' liability for any strike-related damages Granite Rock may have incurred before the new CBA was negotiated but after the prior CBA had expired. At the end of the negotiating session on the new CBA, Local's business representative, George Netto, approached Granite Rock about executing a separate "back-to-work" agreement that would, among other things, hold union members harmless for damages incurred during the June 2004 strike. Netto did not make execution of such an agreement a condition of Local's ratification of the CBA, or of Local's decision to cease picketing. Thus, Local did not have a back-to-work or hold-harmless agreement in place when it voted to ratify the CBA on July 2, 2004. Respondent International Brotherhood of Teamsters (IBT), which had advised Local throughout the CBA negotiations and whose leadership and members supported the June strike, opposed Local's decision to return to work without a back-to-work agreement shielding both Local and IBT members from liability for strike-related damages. In an effort to secure such an agreement, IBT instructed Local's members not to honor their agreement to return to work on July 5, and instructed Local's leaders to continue the work stoppage until Granite Rock agreed to hold Local and IBT members free from liability for the June strike. Netto demanded such an agreement on July 6, but Granite Rock refused the request and informed Local that the company would view any continued strike activity as a violation of the new CBA's no-strike clause. IBT and Local responded by announcing a company-wide strike that involved numerous facilities and hundreds of workers, including members of IBT locals besides Local 287. According to Granite Rock, IBT not only instigated this strike; it supported and directed it. IBT provided pay and benefits to union members who refused to return to work, directed Local's negotiations with Granite Rock, supported Local financially during the strike period with a $1.2 million loan, and represented to Granite Rock that IBT had unilateral authority to end the work stoppage in exchange for a hold-harmless agreement covering IBT members within and outside Local's bargaining unit. On July 9, 2004, Granite Rock sued IBT and Local in the District Court, seeking an injunction against the ongoing strike and strike-related damages. Granite Rock's complaint, originally and as amended, invoked federal jurisdiction under LMRA §301(a), alleged that the July 6 strike violated Local's obligations under the CBA's no-strike provision, and asked the District Court to enjoin the strike because the hold-harmless dispute giving rise to the strike was an arbitrable grievance. See Boys Markets, Inc. v. Retail Clerks, 398 U. S. 235, 237-238, 253-254 (1970) (holding that federal courts may enjoin a strike where a CBA contemplates arbitration of the dispute that occasions the strike). The unions conceded that LMRA §301(a) gave the District Court jurisdiction over the suit but opposed Granite Rock's complaint, asserting that the CBA was not validly ratified on July 2 (or at any other time relevant to the July 2004 strike) and, thus, its no-strike clause did not provide a basis for Granite Rock's claims challenging the strike. The District Court initially denied Granite Rock's request to enforce the CBA's no-strike provision because Granite Rock was unable to produce evidence that the CBA was ratified on July 2. App. 203-213. Shortly after the District Court ruled, however, a Local member testified that Netto had put the new CBA to a ratification vote on July 2, and that the voting Local members unanimously approved the agreement. Based on this statement and supporting testimony from 12 other employees, Granite Rock moved for a new trial on its injunction and damages claims. On August 22, while that motion was pending, Local conducted a second successful "ratification" vote on the CBA, and on September 13, the day the District Court was scheduled to hear Granite Rock's motion, the unions called off their strike. Although their return to work mooted Granite Rock's request for an injunction, the District Court proceeded with the hearing and granted Granite Rock a new trial on its damages claims. The parties proceeded with discovery and Granite Rock amended its complaint, which already alleged federal2 claims for breach of the CBA against both Local and IBT, to add federal inducement of breach and interference with contract (hereinafter tortious interference) claims against IBT. IBT and Local both moved to dismiss. Among other things, IBT argued that Granite Rock could not plead a federal tort claim under §301(a) because that provision supports a federal cause of action only for breach of contract. The District Court agreed and dismissed Granite Rock's tortious interference claims. The District Court did not, however, grant Local's separate motion to send the parties' dispute over the CBA's ratification date to arbitration.3 The District Court held that whether the CBA was ratified on July 2 or August 22 was an issue for the court to decide, and submitted the question to a jury. The jury reached a unanimous verdict that Local ratified the CBA on July 2, 2004. The District Court entered the verdict and ordered the parties to proceed with arbitration on Granite Rock's breach-of-contract claims for strike-related damages. The Court of Appeals for the Ninth Circuit affirmed in part and reversed in part. See 546 F. 3d 1169 (2008). The Court of Appeals affirmed the District Court's dismissal of Granite Rock's tortious interference claims against IBT. See id., at 1170-1175. But it disagreed with the District Court's determination that the date of the CBA's ratification was a matter for judicial resolution. See id., at 1176-1178. The Court of Appeals reasoned that the parties' dispute over this issue was governed by the CBA's arbitration clause because the clause clearly covered the related strike claims, the "national policy favoring arbitration" required that any ambiguity about the scope of the parties' arbitration clause be resolved in favor of arbitrability, and, in any event, Granite Rock had "implicitly" consented to arbitrate the ratification-date dispute "by suing under the contract." Id., at 1178 (internal quotation marks omitted). We granted certiorari. See 557 U. S. ___ (2009).II It is well settled in both commercial and labor cases that whether parties have agreed to "submi[t] a particular dispute to arbitration" is typically an " ' issue for judicial determination.' " Howsam v. Dean Witter Reynolds, Inc., 537 U. S. 79, 83 (2002) (quoting AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 649 (1986)); see John Wiley & Sons, Inc. v. Livingston, 376 U. S. 543, 546-547 (1964). It is similarly well settled that where the dispute at issue concerns contract formation, the dispute is generally for courts to decide. See, e.g., First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 944 (1995) ("When deciding whether the parties agreed to arbitrate a certain matter ... courts generally ... should apply ordinary ... principles that govern the formation of contracts"); AT&T Technologies, supra, at 648-649 (explaining the settled rule in labor cases that " 'arbitration is a matter of contract' " and "arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration"); Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 444, n. 1 (2006) (distinguishing treatment of the generally nonarbitral question whether an arbitration agreement was "ever concluded" from the question whether a contract containing an arbitration clause was illegal when formed, which question we held to be arbitrable in certain circumstances). These principles would neatly dispose of this case if the formation dispute here were typical. But it is not. It is based on when (not whether) the CBA that contains the parties' arbitration clause was ratified and thereby formed.4 And at the time the District Court considered Local's demand to send this issue to an arbitrator, Granite Rock, the party resisting arbitration, conceded both the formation and the validity of the CBA's arbitration clause. These unusual facts require us to reemphasize the proper framework for deciding when disputes are arbitrable under our precedents. Under that framework, a court may order arbitration of a particular dispute only where the court is satisfied that the parties agreed to arbitrate that dispute. See First Options, supra, at 943; AT&T Technologies, supra, at 648-649. To satisfy itself that such agreement exists, the court must resolve any issue that calls into question the formation or applicability of the specific arbitration clause that a party seeks to have the court enforce. See, e.g., Rent-A-Center, West, Inc. v. Jackson, ante, at 4-6 (opinion of Scalia, J.). Where there is no provision validly committing them to an arbitrator, see ante, at 7, these issues typically concern the scope of the arbitration clause and its enforceability. In addition, these issues always include whether the clause was agreed to, and may include when that agreement was formed.A The parties agree that it was proper for the District Court to decide whether their ratification dispute was arbitrable.5 They disagree about whether the District Court answered the question correctly. Local contends that the District Court erred in holding that the CBA's ratification date was an issue for the court to decide. The Court of Appeals agreed, holding that the District Court's refusal to send that dispute to arbitration violated two principles of arbitrability set forth in our precedents. See 546 F. 3d, at 1177-1178. The first principle is that where, as here, parties concede that they have agreed to arbitrate some matters pursuant to an arbitration clause, the "law's permissive policies in respect to arbitration" counsel that " ' any doubts concerning the scope of arbitral issues should be resolved in favor of arbitration.' " First Options, supra, at 945 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 626 (1985)); see 546 F. 3d, at 1177-1178 (citing this principle and the "national policy favoring arbitration" in concluding that arbitration clauses "are to be construed very broadly" (internal quotation marks and citations omitted)). The second principle the Court of Appeals invoked is that this presumption of arbitrability applies even to disputes about the enforceability of the entire contract containing the arbitration clause, because at least in cases governed by the Federal Arbitration Act (FAA), 9 U. S. C. §1 et seq.,6 courts must treat the arbitration clause as severable from the contract in which it appears, and thus apply the clause to all disputes within its scope " '[u]nless the [validity] challenge is to the arbitration clause itself' " or the party "disputes the formation of [the] contract," 546 F. 3d, at 1176 (quoting Buckeye, 546 U. S., at 445-446); 546 F. 3d, at 1177, and n. 4 (explaining that it would treat the parties' arbitration clause as enforceable with respect to the ratification-date dispute because no party argued that the "clause is invalid in any way")). Local contends that our precedents, particularly those applying the " ' federal policy favoring arbitration of labor disputes,' " permit no other result. Brief for Respondent Local, p. 15 (quoting Gateway Coal Co. v. Mine Workers, 414 U. S. 368, 377 (1974)); see Brief for Respondent Local, pp. 10-13; 16-25. Local, like the Court of Appeals, overreads our precedents. The language and holdings on which Local and the Court of Appeals rely cannot be divorced from the first principle that underscores all of our arbitration decisions: Arbitration is strictly "a matter of consent," Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 479 (1989), and thus "is a way to resolve those disputes — but only those disputes — that the parties have agreed to submit to arbitration," First Options, 514 U. S., at 943 (emphasis added).7 Applying this principle, our precedents hold that courts should order arbitration of a dispute only where the court is satisfied that neither the formation of the parties' arbitration agreement nor (absent a valid provision specifically committing such disputes to an arbitrator) its enforceability or applicability to the dispute is in issue. Ibid. Where a party contests either or both matters, "the court" must resolve the disagreement. Ibid. Local nonetheless interprets some of our opinions to depart from this framework and to require arbitration of certain disputes, particularly labor disputes, based on policy grounds even where evidence of the parties' agreement to arbitrate the dispute in question is lacking. See Brief for Respondent Local, p. 16 (citing cases emphasizing the policy favoring arbitration generally and the "impressive policy considerations favoring arbitration" in LMRA cases (internal quotation marks omitted)). That is not a fair reading of the opinions, all of which compelled arbitration of a dispute only after the Court was persuaded that the parties' arbitration agreement was validly formed and that it covered the dispute in question and was legally enforceable. See, e.g., First Options, supra, at 944-945. That Buckeye and some of our cases applying a presumption of arbitrability to certain disputes do not discuss each of these requirements merely reflects the fact that in those cases some of the requirements were so obviously satisfied that no discussion was needed. In Buckeye, the formation of the parties' arbitration agreement was not at issue because the parties agreed that they had "concluded" an agreement to arbitrate and memorialized it as an arbitration clause in their loan contract. 546 U. S., at 444, n. 1. The arbitration clause's scope was also not at issue, because the provision expressly applied to " '[a]ny claim, dispute, or controversy ... arising from or relating to ... the validity, enforceability, or scope of this Arbitration Provision or the entire Agreement.' " Id., at 442. The parties resisting arbitration (customers who agreed to the broad arbitration clause as a condition of using Buckeye's loan service) claimed only that a usurious interest provision in the loan agreement invalidated the entire contract, including the arbitration clause, and thus precluded the Court from relying on the clause as evidence of the parties' consent to arbitrate matters within its scope. See id., at 443. In rejecting this argument, we simply applied the requirement in §2 of the FAA that courts treat an arbitration clause as severable from the contract in which it appears and enforce it according to its terms unless the party resisting arbitration specifically challenges the enforceability of the arbitration clause itself, see id., at 443-445 (citing 9 U. S. C. §2; Southland Corp. v. Keating, 465 U. S. 1, 4-5 (1984); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395, 402-404 (1967)), or claims that the agreement to arbitrate was "[n]ever concluded," 546 U. S., at 444, n. 1; see also Rent-A-Center, ante, at 6-7, and n. 2. Our cases invoking the federal "policy favoring arbitration" of commercial and labor disputes apply the same framework. They recognize that, except where "the parties clearly and unmistakably provide otherwise," AT&T Technologies, 475 U. S., at 649, it is "the court's duty to interpret the agreement and to determine whether the parties intended to arbitrate grievances concerning" a particular matter, id., at 651. They then discharge this duty by: (1) applying the presumption of arbitrability only where a validly formed and enforceable arbitration agreement is ambiguous about whether it covers the dispute at hand; and (2) adhering to the presumption and ordering arbitration only where the presumption is not rebutted. See id., at 651-652; Prima Paint Corp., supra, at 396-398; Gateway Coal Co. v. Mine Workers, 414 U. S. 368, 374-377 (1974); Drake Bakeries Inc. v. Bakery Workers, 370 U. S. 254, 256-257 (1962); Atkinson v. Sinclair Refining Co., 370 U. S. 238, 241-242 (1962); Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574, 576 (1960).8 Local is thus wrong to suggest that the presumption of arbitrability we sometimes apply takes courts outside our settled framework for deciding arbitrability. The presumption simply assists in resolving arbitrability disputes within that framework. Confining the presumption to this role reflects its foundation in "the federal policy favoring arbitration." As we have explained, this "policy" is merely an acknowledgment of the FAA's commitment to "overrule the judiciary's longstanding refusal to enforce agreements to arbitrate and to place such agreements upon the same footing as other contracts." Volt, 489 U. S., at 478 (internal quotation marks and citations omitted). Accordingly, we have never held that this policy overrides the principle that a court may submit to arbitration "only those disputes ... that the parties have agreed to submit." First Options, 514 U. S., at 943; see also Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52, 57 (1995) ("[T]he FAA's proarbitration policy does not operate without regard to the wishes of the contract parties"); AT&T Technologies, 475 U. S., at 650-651 (applying the same rule to the "presumption of arbitrability for labor disputes"). Nor have we held that courts may use policy considerations as a substitute for party agreement. See, e.g., id., at 648-651; Volt, supra, at 478. We have applied the presumption favoring arbitration, in FAA and in labor cases, only where it reflects, and derives its legitimacy from, a judicial conclusion that arbitration of a particular dispute is what the parties intended because their express agreement to arbitrate was validly formed and (absent a provision clearly and validly committing such issues to an arbitrator) is legally enforceable and best construed to encompass the dispute. See First Options, supra, at 944-945 (citing Mitsubishi, 473 U. S., at 626); Howsam, 537 U. S., at 83-84; AT&T Technologies, supra, at 650 (citing Warrior & Gulf, supra, at 582-583); Drake Bakeries, supra, at 259-260. This simple framework compels reversal of the Court of Appeals' judgment because it requires judicial resolution of two questions central to Local's arbitration demand: when the CBA was formed, and whether its arbitration clause covers the matters Local wishes to arbitrate.B We begin by addressing the grounds on which the Court of Appeals reversed the District Court's decision to decide the parties' ratification-date dispute, which the parties characterize as a formation dispute because a union vote ratifying the CBA's terms was necessary to form the contract. See App. 351.9 For purposes of determining arbitrability, when a contract is formed can be as critical as whether it was formed. That is the case where, as here, the date on which an agreement was ratified determines the date the agreement was formed, and thus determines whether the agreement's provisions were enforceable during the period relevant to the parties' dispute.10 This formation date question requires judicial resolution here because it relates to Local's arbitration demand in such a way that the District Court was required to decide the CBA's ratification date in order to determine whether the parties consented to arbitrate the matters covered by the demand.11 The parties agree that the CBA's arbitration clause pertains only to disputes that "arise under" the agreement. Accordingly, to hold the parties' ratification-date dispute arbitrable, the Court of Appeals had to decide whether that dispute could be characterized as "arising under" the CBA. In answering this question in the affirmative, both Local and the Court of Appeals tied the arbitrability of the ratification-date issue — which Local raised as a defense to Granite Rock's strike claims — to the arbitrability of the strike claims themselves. See id., at 347. They did so because the CBA's arbitration clause, which pertains only to disputes "arising under" the CBA and thus presupposes the CBA's existence, would seem plainly to cover a dispute that "arises under" a specific substantive provision of the CBA, but does not so obviously cover disputes about the CBA's own formation. Accordingly, the Court of Appeals relied upon the ratification dispute's relationship to Granite Rock's claim that Local breached the CBA's no-strike clause (a claim the Court of Appeals viewed as clearly "arising under" the CBA) to conclude that "the arbitration clause is certainly 'susceptible of an interpretation' that covers" Local's formation-date defense. 546 F. 3d, at 1177, n. 4. The Court of Appeals overlooked the fact that this theory of the ratification dispute's arbitrability fails if the CBA was not formed at the time the unions engaged in the acts that gave rise to Granite Rock's strike claims. The unions began their strike on July 6, 2004, and Granite Rock filed its suit on July 9. If, as Local asserts, the CBA containing the parties' arbitration clause was not ratified, and thus not formed, until August 22, there was no CBA for the July no-strike dispute to "arise under," and thus no valid basis for the Court of Appeals' conclusion that Granite Rock's July 9 claims arose under the CBA and were thus arbitrable along with, by extension, Local's formation date defense to those claims.12 See ibid. For the foregoing reasons, resolution of the parties' dispute about whether the CBA was ratified in July or August was central to deciding Local's arbitration demand. Accordingly, the Court of Appeals erred in holding that it was not necessary for the District Court to determine the CBA's ratification date in order to decide whether the parties agreed to arbitrate Granite Rock's no-strike claim or the ratification-date dispute Local raised as a defense to that claim. Local seeks to address this flaw in the Court of Appeals' decision by arguing that in December 2004 the parties executed a document that rendered the CBA effective as of May 1, 2004 (the date the prior CBA expired), and that this effective-date language rendered the CBA's arbitration clause (but not its no-strike clause) applicable to the July strike period notwithstanding Local's view that the agreement was ratified in August (which ratification date Local continues to argue controls the period during which the no-strike clause applies). See Brief for Respondent Local, pp. 26-27; Tr. of Oral Arg. 32, 37-39. The Court of Appeals did not rule on the merits of this claim (i.e., it did not decide whether the CBA's effective date language indeed renders some or all of the agreement's provisions retroactively applicable to May 2004), and we need not do so either. Even accepting Local's assertion that it raised this retroactivity argument in the District Court, see Brief for Respondent Local, p. 26,13 Local did not raise this argument in the Court of Appeals. Nor, more importantly, did Local's brief in opposition to Granite Rock's petition for certiorari raise the argument as an alternative ground on which this Court could or should affirm the Court of Appeals' judgment finding the ratification-date dispute arbitrable for the reasons discussed above. Accordingly, the argument is properly "deemed waived." This Court's Rule 15.2; Carcieri v. Salazar, 555 U. S. ___, ___ (2009) (slip op., at 15-16).14C Although the foregoing is sufficient to reverse the Court of Appeals' judgment, there is an additional reason to do so: The dispute here, whether labeled a formation dispute or not, falls outside the scope of the parties' arbitration clause on grounds the presumption favoring arbitration cannot cure. Section 20 of the CBA provides in relevant part that "[a]ll disputes arising under this agreement shall be resolved in accordance with the [Grievance] procedure," which includes arbitration. App. 434 (emphasis added); see also id., at 434-437. The parties' ratification-date dispute cannot properly be characterized as falling within the (relatively narrow, cf., e.g., Drake Bakeries Inc., 370 U. S., at 256-257) scope of this provision for at least two reasons. First, we do not think the question whether the CBA was validly ratified on July 2, 2004 — a question that concerns the CBA's very existence — can fairly be said to "arise under" the CBA. Second, even if the "arising under" language could in isolation be construed to cover this dispute, Section 20's remaining provisions all but foreclose such a reading by describing that section's arbitration requirement as applicable to labor disagreements that are addressed in the CBA and are subject to its requirement of mandatory mediation. See App. 434-437 (requiring arbitration of disputes "arising under" the CBA, but only after the Union and Employer have exhausted mandatory mediation, and limiting any arbitration decision under this provision to those "within the scope and terms of this agreement and ... specifically limited to the matter submitted"). The Court of Appeals' contrary conclusion does not find support in the text of §20. The Court of Appeals' only effort to grapple with that text misses the point because it focuses on whether Granite Rock's claim to enforce the CBA's no-strike provisions could be characterized as "arising under" the agreement. See 546 F. 3d, at 1177, n. 4. Even assuming that claim can be characterized as "arising under" the CBA, it is not the issue here. The issue is whether the formation-date defense that Local raised in response to Granite Rock's no-strike suit can be characterized as "arising under" the CBA. It cannot for the reasons we have explained, namely, the CBA provision requiring arbitration of disputes "arising under" the CBA is not fairly read to include a dispute about when the CBA came into existence. The Court of Appeals erred in failing to address this question and holding instead that the arbitration clause is "susceptible of an interpretation" that covers Local's formation-date defense to Granite Rock's suit "[b]ecause Granite Rock is suing 'under' the alleged new CBA" and "[a]rbitration clauses are to be construed very broadly." Ibid.; see also id., at 1178.D Local's remaining argument in support of the Court of Appeals' judgment is similarly unavailing. Local reiterates the Court of Appeals' conclusion that Granite Rock "implicitly" consented to arbitration when it sued to enforce the CBA's no-strike and arbitrable grievance provisions. See Brief for Respondent Local, pp. 17-18. We do not agree that by seeking an injunction against the strike so the parties could arbitrate the labor grievance that gave rise to it, Granite Rock also consented to arbitrate the ratification (formation) date dispute we address above. See 564 F. 3d, at 1178. It is of course true that when Granite Rock sought that injunction it viewed the CBA (and all of its provisions) as enforceable. But Granite Rock's decision to sue for compliance with the CBA's grievance procedures on strike-related matters does not establish an agreement, "implicit" or otherwise, to arbitrate an issue (the CBA's formation date) that Granite Rock did not raise, and that Granite Rock has always (and rightly, see Part II-C, supra) characterized as beyond the scope of the CBA's arbitration clause. The mere fact that Local raised the formation date dispute as a defense to Granite Rock's suit does not make that dispute attributable to Granite Rock in the waiver or estoppel sense the Court of Appeals suggested, see 546 F. 3d, at 1178, much less establish that Granite Rock agreed to arbitrate it by suing to enforce the CBA as to other matters. Accordingly, we hold that the parties' dispute over the CBA's formation date was for the District Court, not an arbitrator, to resolve, and remand for proceedings consistent with that conclusion.III We turn now to the claims available on remand. The parties agree that Granite Rock can bring a breach-of-contract claim under LMRA §301(a) against Local as a CBA signatory, and against IBT as Local's agent or alter ego. See Brief for Respondent IBT 10-13; Reply Brief for Petitioner 12-13 and n. 11.15 The question is whether Granite Rock may also bring a federal tort claim under §301(a) for IBT's alleged interference with the CBA.16 Brief for Petitioner 32. The Court of Appeals joined virtually all other Circuits in holding that it would not recognize such a claim under §301(a). Granite Rock asks us to reject this position as inconsistent with federal labor law's goal of promoting industrial peace and economic stability through judicial enforcement of CBAs, as well as with our precedents holding that a federal common law of labor contracts is necessary to further this goal. See id., at 31; see also, e.g., Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448, 451 (1957). Explaining that IBT's conduct in this case undermines the very core of the bargaining relationship federal labor laws exist to protect, Granite Rock argues that a federal common-law tort remedy for IBT's conduct is necessary because other potential avenues for deterring and redressing such conduct are either unavailable or insufficient. See Brief for Petitioner 32-33; Reply Brief for Petitioner 19-20. On the unavailable side of the ledger Granite Rock lists state-law tort claims, some of which this Court has held §301(a) pre-empts, as well as administrative (unfair labor practices) claims, which Granite Rock says the National Labor Relations Board (NLRB) cannot entertain against international unions that (like IBT) are not part of the certified local bargaining unit they allegedly control. On the insufficient side of the ledger Granite Rock lists federal common-law breach-of-contract claims, which Granite Rock says are difficult to prove against non-CBA signatories like IBT because international unions structure their relationships with local unions in a way that makes agency or alter ego difficult to establish. Based on these assessments, Granite Rock suggests that this case presents us with the choice of either recognizing the federal common-law tort claim Granite Rock seeks or sanctioning conduct inconsistent with federal labor statutes and our own precedents. See Brief for Petitioner 13-14. We do not believe the choice is as stark as Granite Rock implies. It is of course true that we have construed "Section 301 [to] authoriz[e] federal courts to fashion a body of federal law for the enforcement of collective bargaining agreements." Lewis v. Benedict Coal Corp., 361 U. S. 459, 470 (1960) (citing Lincoln Mills, supra). But we have also emphasized that in developing this common law we "did not envision any freewheeling inquiry into what the federal courts might find to be the most desirable rule." Howard Johnson Co. v. Hotel Employees, 417 U. S. 249, 255 (1974). The balance federal statutes strike between employer and union relations in the collective-bargaining arena is carefully calibrated, see, e.g., NLRB v. Drivers, 362 U. S. 274, 289-290 (1960), and as the parties' briefs illustrate, creating a federal common-law tort cause of action would require a host of policy choices that could easily upset this balance, see Brief for Respondent IBT 42-44; Reply Brief for Petitioner 22-25. It is thus no surprise that virtually all Courts of Appeals have held that federal courts' authority to "create a federal common law of collective bargaining agreements under section 301" should be confined to "a common law of contracts, not a source of independent rights, let alone tort rights; for section 301 is ... a grant of jurisdiction only to enforce contracts." Brazinski v. Amoco Petroleum Additives Co., 6 F. 3d 1176, 1180 (CA7 1993). We see no reason for a different result here because it would be premature to recognize the federal common law tort Granite Rock requests in this case even assuming that §301(a) authorizes us to do so. In reaching this conclusion, we emphasize that the question before us is a narrow one. It is not whether the conduct Granite Rock challenges is remediable, but whether we should augment the claims already available to Granite Rock by creating a new federal common-law cause of action under §301(a). That we decline to do so does not mean that we approve of IBT's alleged actions. Granite Rock describes a course of conduct that does indeed seem to strike at the heart of the collective-bargaining process federal labor laws were designed to protect. As the record in this case demonstrates, however, a new federal tort claim is not the only possible remedy for this conduct. Granite Rock's allegations have prompted favorable judgments not only from a federal jury, but also from the NLRB. In proceedings that predated those in which the District Court entered judgment for Granite Rock on the CBA's formation date,17 the NLRB concluded that a "complete agreement" was reached on July 2, and that Local and IBT violated federal labor laws by attempting to delay the CBA's ratification pending execution of a separate agreement favorable to IBT. See In re Teamsters Local 287, 347 N. L. R. B. 339, 340-341, and n. 1 (2006) (applying the remedial order on the 2004 conduct to both Local and IBT on the grounds that IBT did not disaffiliate from the AFL-CIO until July 25, 2005). These proceedings, and the proceedings that remain to be conducted on remand, buttress our conclusion that Granite Rock's case for a new federal common-law cause of action is based on assumptions about the adequacy of other avenues of relief that are at least questionable because they have not been fully tested in this case and thus their efficacy is simply not before us to evaluate. Notably, Granite Rock (like IBT and the Court of Appeals) assumes that federal common law provides the only possible basis for the type of tort claim it wishes to pursue. See Brief for Respondent IBT 33-34; Reply Brief for Petitioner 16. But Granite Rock did not litigate below, and thus does not present us with occasion to address, whether state law might provide a remedy. See, e.g., Steelworkers v. Rawson, 495 U. S. 362, 369-371 (1990); Textron Lycoming Reciprocating Engine Div., AVCO Corp. v. Automobile Workers, 523 U. S. 653, 656, 658 (1998). Nor did Granite Rock fully explore the breach-of-contract and administrative causes of action it suggests are insufficient to remedy IBT's conduct. For example, far from establishing that an agency or alter ego claim against IBT would be unsuccessful, the record in this case suggests it might be easier to prove than usual if, as the NLRB's decision observes, IBT and Local were affiliated in 2004 in a way relevant to Granite Rock's claims. See In re Teamsters Local 287, supra, at 340, n. 6. Similarly, neither party has established that the Board itself could not issue additional relief against IBT. IBT's amici argue that the "overlap between Granite Rock's §301 claim against the IBT and the NLRB General Counsel's unfair labor practice complaint against Local 287 brings into play the National Labor Relations Act rule that an international union commits an unfair labor practice by causing its affiliated local unions to 'impose extraneous non-bargaining unit considerations into the collective bargaining process.' " Brief for American Federation of Labor et al. 30-31 (quoting Paperworkers Local 620, 309 N. L. R. B. 44, 44 (1992)). The fact that at least one Court of Appeals has recognized the viability of such a claim, see Kobell v. United Paperworkers Int'l Union, 965 F. 2d 1401, 1407-1409 (CA6 1992), further persuades us that Granite Rock's arguments do not justify recognition of a new federal tort claim under §301(a).* * * We reverse the Court of Appeals' judgment on the arbitrability of the parties' formation-date dispute, affirm its judgment dismissing Granite Rock's claims against IBT to the extent those claims depend on the creation of a new federal common-law tort cause of action under §301(a), and remand the case for further proceedings consistent with this opinion.It is so ordered.GRANITE ROCK COMPANY, PETITIONER v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS et al.on writ of certiorari to the united states court of appeals for the ninth circuit[June 24, 2010] Justice Sotomayor, with whom Justice Stevens joins, concurring in part and dissenting in part. I join Part III of the Court's opinion, which holds that petitioner Granite Rock's tortious interference claim against respondent International Brotherhood of Teamsters (IBT) is not cognizable under §301(a) of the Labor Management Relations Act, 1947 (LMRA), 29 U. S. C. §185(a). I respectfully dissent, however, from the Court's conclusion that the arbitration provision in the collective-bargaining agreement (CBA) between Granite Rock and IBT Local 287 does not cover the parties' dispute over whether Local 287 breached the CBA's no-strike clause. In my judgment, the parties clearly agreed in the CBA to have this dispute resolved by an arbitrator, not a court. The legal principles that govern this case are simpler than the Court's exposition suggests. Arbitration, all agree, "is a matter of contract and a party cannot be required to submit to arbitration any dispute which [it] has not agreed so to submit." Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574, 582 (1960). Before ordering parties to arbitrate, a court must therefore confirm (1) that the parties have an agreement to arbitrate and (2) that the agreement covers their dispute. See ante, at 9. In determining the scope of an arbitration agreement, "there is a presumption of arbitrability in the sense that '[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.' " AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 650 (1986) (quoting Warrior, 363 U. S., at 582-583); see also John Wiley & Sons, Inc. v. Livingston, 376 U. S. 543, 550, n. 4 (1964) ("[W]hen a contract is scrutinized for evidence of an intention to arbitrate a particular kind of dispute, national labor policy requires, within reason, that an interpretation that covers the asserted dispute ... be favored" (emphasis deleted; internal quotation marks omitted)).1 The application of these established precepts to the facts of this case strikes me as equally straightforward: It is undisputed that Granite Rock and Local 287 executed a CBA in December 2004. The parties made the CBA retroactively "effect[ive] from May 1, 2004," the day after the expiration of their prior collective-bargaining agreement. App. to Pet. for Cert. A-190. Among other things, the CBA prohibited strikes and lockouts. Id., at A-181. The CBA authorized either party, in accordance with certain grievance procedures, to "refe[r] to arbitration" "[a]ll disputes arising under this agreement," except for three specified "classes of disputes" not implicated here. Id., at A-176 to A-179. Granite Rock claims that Local 287 breached the CBA's no-strike clause by engaging in a work stoppage in July 2004. Local 287 contests this claim. Specifically, it contends that it had no duty to abide by the no-strike clause in July because it did not vote to ratify the CBA until August. As I see it, the parties' disagreement as to whether the no-strike clause proscribed the July work stoppage is plainly a "disput[e] arising under" the CBA and is therefore subject to arbitration as Local 287 demands. Indeed, the parties' no-strike dispute is indistinguishable from myriad other disputes that an employer and union might have concerning the interpretation and application of the substantive provisions of a collective-bargaining agreement. These are precisely the sorts of controversies that labor arbitrators are called upon to resolve every day. The majority seems to agree that the CBA's arbitration provision generally encompasses disputes between Granite Rock and Local 287 regarding the parties' compliance with the terms of the CBA, including the no-strike clause. The majority contends, however, that Local 287's "formation-date defense" raises a preliminary question of contract formation that must be resolved by a court rather than an arbitrator. Ante, at 15. The majority's reasoning appears to be the following: If Local 287 did not ratify the CBA until August, then there is "no valid basis" for applying the CBA's arbitration provision to events that occurred in July. Ibid. The majority's position is flatly inconsistent with the language of the CBA. The parties expressly chose to make the agreement effective from May 1, 2004. As a result, "the date on which [the] agreement was ratified" does not, as the majority contends, determine whether the parties' dispute about the permissibility of the July work stoppage falls within the scope of the CBA's arbitration provision. Ante, at 14. When it comes to answering the arbitrability question, it is entirely irrelevant whether Local 287 ratified the CBA in August (as it contends) or in July (as Granite Rock contends). In either case, the parties' dispute — which postdates May 1 — clearly "aris[es] under" the CBA, which is all the arbitration provision requires to make a dispute referable to an arbitrator. Cf. Litton Financial Printing Div., Litton Business Systems, Inc. v. NLRB, 501 U. S. 190, 201 (1991) (recognizing that "a collective-bargaining agreement might be drafted so as to eliminate any hiatus between expiration of the old and execution of the new agreement").2 Given the CBA's express retroactivity, the majority errs in treating Local 287's ratification-date defense as a "formation dispute" subject to judicial resolution. Ante, at 13. The defense simply goes to the merits of Granite Rock's claim: Local 287 maintains that the no-strike clause should not be construed to apply to the July work stoppage because it had not ratified the CBA at the time of that action. Cf. First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 942 (1995) (distinguishing a disagreement that "makes up the merits of the dispute" from a disagreement "about the arbitrability of the dispute"). Accordingly, the defense is necessarily a matter for the arbitrator, not the court. See AT&T, 475 U. S., at 651 ("[I]t is for the arbitrator to determine the relative merits of the parties' substantive interpretations of the agreement"). Indeed, this Court has been emphatic that "courts ... have no business weighing the merits of the grievance." Steelworkers v. American Mfg. Co., 363 U. S. 564, 568 (1960). "When the judiciary undertakes to determine the merits of a grievance under the guise of interpreting the [arbitration provisions] of collective bargaining agreements, it usurps a function ... entrusted to the arbitration tribunal." Id., at 569; see also AT&T, 475 U. S., at 649 ("[I]n deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the potential merits of the underlying claims"); Warrior, 363 U. S., at 582, 585 ("[T]he judicial inquiry under [LMRA] §301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance"; "the court should view with suspicion an attempt to persuade it to become entangled in the construction of the substantive provisions of a labor agreement"). Attempting to sidestep this analysis, the majority declares that Local 287 waived its retroactivity argument by failing in the courts below to challenge Granite Rock's consistent characterization of the parties' dispute as one of contract formation. See ante, at 16. As a result of Local 287's omission, the District Court and Court of Appeals proceeded under the understanding that this case presented a formation question. It was not until its merits brief in this Court that Local 287 attempted to correct this mistaken premise by pointing to the parties' execution of the December 2004 CBA with its May 2004 effective date. This Court's rules "admonis[h] [counsel] that they have an obligation to the Court to point out in the brief in opposition [to certiorari], and not later, any perceived misstatement made in the petition [for certiorari]"; nonjurisdictional arguments not raised at that time "may be deemed waived." This Court's Rule 15.2. Although it is regrettable and inexcusable that Local 287 did not present its argument earlier, I do not see it as one we can ignore. The question presented in this case presupposes that "it is disputed whether any binding contract exists." Brief for Petitioner i. Because it is instead undisputed that the parties executed a binding contract in December 2004 that was effective as of May 2004, we can scarcely pretend that the parties have a formation dispute. Consideration of this fact is "a 'predicate to an intelligent resolution' of the question presented, and therefore 'fairly included therein.' " Ohio v. Robinette, 519 U. S. 33, 38 (1996) (quoting Vance v. Terrazas, 444 U. S. 252, 258, n. 5 (1980); this Court's Rule 14.1(a)). Indeed, by declining to consider the plain terms of the parties' agreement, the majority offers little more than "an opinion advising what the law would be upon a hypothetical state of facts." Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 241 (1937). In view of the CBA's effective date, I would hold that the parties agreed to arbitrate the no-strike dispute, including Local 287's ratification-date defense, and I would affirm the judgment below on this alternative ground. Cf. Dandridge v. Williams, 397 U. S. 471, 475, n. 6 (1970) ("The prevailing party may, of course, assert in a reviewing court any ground in support of [the] judgment, whether or not that ground was relied upon or even considered by the trial court").FOOTNOTESFootnote 1 In deciding the arbitration question in this case we rely upon the terms of the CBA and the facts in the District Court record. In reviewing the judgment affirming dismissal of Granite Rock's tort claims against respondent International Brotherhood of Teamsters (IBT) for failure to state a claim, we rely on the facts alleged in Granite Rock's Third Amended Complaint. See, e.g., H. J. Inc. v. Northwestern Bell Telephone Co., 492 U. S. 229, 250 (1989).Footnote 2 This Court has recognized a federal common-law claim for breach of a CBA under LMRA §301(a). See, e.g., Textile Workers v. Lincoln Mills of Ala., 353 U. S. 448, 456 (1957).Footnote 3 The CBA's ratification date is important to Granite Rock's underlying suit for strike damages. If the District Court correctly concluded that the CBA was ratified on July 2, Granite Rock could argue on remand that the July work stoppage violated the CBA's no-strike clause.Footnote 4 Although a union ratification vote is not always required for the provisions in a CBA to be considered validly formed, the parties agree that ratification was such a predicate here. See App. 349-351.Footnote 5 Because neither party argues that the arbitrator should decide this question, there is no need to apply the rule requiring " 'clear and unmistakable' " evidence of an agreement to arbitrate arbitrability. First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 944 (1995) (quoting AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 649 (1986) (alterations omitted)).Footnote 6 We, like the Court of Appeals, discuss precedents applying the FAA because they employ the same rules of arbitrability that govern labor cases. See, e.g., AT&T Technologies, supra, at 650. Indeed, the rule that arbitration is strictly a matter of consent — and thus that courts must typically decide any questions concerning the formation or scope of an arbitration agreement before ordering parties to comply with it — is the cornerstone of the framework the Court announced in the Steelworkers Trilogy for deciding arbitrability disputes in LMRA cases. See Steelworkers v. American Mfg. Co., 363 U. S. 564, 567-568 (1960); Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574, 582 (1960); Steelworkers v. Enterprise Wheel & Car Corp., 363 U. S. 593, 597 (1960).Footnote 7 See also Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52, 57 (1995); Dean Witter Reynolds Inc. v. Byrd, 470 U. S. 213, 219-220 (1985); Scherk v. Alberto-Culver Co., 417 U. S. 506, 511 (1974); AT&T Technologies, supra, at 648; Warrior & Gulf, supra, at 582; United States v. Moorman, 338 U. S. 457, 462 (1950).Footnote 8 That our labor arbitration precedents apply this rule is hardly surprising. As noted above, see n. 6, supra, the rule is the foundation for the arbitrability framework this Court announced in the Steelworkers Trilogy. Local's assertion that Warrior & Gulf suggests otherwise is misplaced. Although Warrior & Gulf contains language that might in isolation be misconstrued as establishing a presumption that labor disputes are arbitrable whenever they are not expressly excluded from an arbitration clause, 363 U. S., at 578-582, the opinion elsewhere emphasizes that even in LMRA cases, "courts" must construe arbitration clauses because "a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." Id., at 582 (applying this rule and finding the dispute at issue arbitrable only after determining that the parties' arbitration clause could be construed under standard principles of contract interpretation to cover it). Our use of the same rules in FAA cases is also unsurprising. The rules are suggested by the statute itself. Section 2 of the FAA requires courts to enforce valid and enforceable arbitration agreements according to their terms. And §4 provides in pertinent part that where a party invokes the jurisdiction of a federal court over a matter that the court could adjudicate but for the presence of an arbitration clause, "[t]he court shall hear the parties" and "direc[t] the parties to proceed to arbitration in accordance with the terms of the agreement" except "[i]f the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue," in which case "the court shall proceed summarily to the trial thereof." 9 U. S. C. §4.Footnote 9 The parties' dispute about the CBA's ratification date presents a formation question in the sense above, and is therefore not on all fours with, for example, the formation disputes we referenced in Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 444, n.1 (2006), which concerned whether, not when, an agreement to arbitrate was "concluded." That said, the manner in which the CBA's ratification date relates to Local's arbitration demand makes the ratification-date dispute in this case one that requires judicial resolution. See infra, at 14-19.Footnote 10 Our conclusions about the significance of the CBA's ratification date to the specific arbitrability question before us do not disturb the general rule that parties may agree to arbitrate past disputes or future disputes based on past events.Footnote 11 In reaching this conclusion we need not, and do not, decide whether every dispute over a CBA's ratification date would require judicial resolution. We recognize that ratification disputes in labor cases may often qualify as "formation disputes" for contract law purposes because contract law defines formation as acceptance of an offer on specified terms, and in many labor cases ratification of a CBA is necessary to satisfy this formation requirement. See App. 349-351. But it is not the mere labeling of a dispute for contract law purposes that determines whether an issue is arbitrable. The test for arbitrability remains whether the parties consented to arbitrate the dispute in question.Footnote 12 This analysis pertains only to the Court of Appeals' decision, which did not engage the 11th-hour retroactivity argument Local raised in its merits brief in this Court, and that we address below.Footnote 13 This claim is questionable because Local's February 2005 references to the agreement "now in effect" are not obviously equivalent to the express retroactivity argument Local asserts in its merits brief in this Court. See Brief for Respondent Local, pp. 26->27.Footnote 14 Justice Sotomayor's conclusion that we should nonetheless excuse Local's waiver and consider the retroactivity argument, see post, at 5-6 (opinion concurring in part and dissenting in part), is flawed. This Court's Rule 15.2 reflects the fact that our adversarial system assigns both sides responsibility for framing the issues in a case. The importance of enforcing the Rule is evident in cases where, as here, excusing a party's noncompliance with it would require this Court to decide, in the first instance, a question whose resolution could affect this and other cases in a manner that the District Court and Court of Appeals did not have an opportunity to consider, and that the parties' arguments before this Court may not fully address.Footnote 15 Although the parties concede the general availability of such a claim against IBT, they dispute whether Granite Rock abandoned its agency or alter ego allegations in the course of this litigation. Compare Brief for Respondent IBT, p. 10 with Reply Brief for Petitioner 12-13, n. 11. Granite Rock concedes that it has abandoned its claim that IBT acted as Local's undisclosed principal in orchestrating the ratification response to the July 2, 2004, CBA. See Plaintiff Granite Rock's Memorandum of Points and Authorities in Opposition to Defendant IBT's Motion to Dismiss in No. 5:04-cv-02767-JW (ND Cal., Aug. 7, 2006), Doc. 178, pp. 6, 8 (hereinafter Points and Authorities). But Granite Rock insists that it preserved its argument that Local served as IBT's agent or alter ego when Local denied ratification and engaged in unauthorized strike activity in July 2004. Nothing in the record before us unequivocally refutes this assertion. See App. 306, 311-315, 318; Points and Authorities 6, n. 3. Accordingly, nothing in this opinion forecloses the parties from litigating these claims on remand.Footnote 16 IBT argues that we should dismiss this question as improvidently granted because Granite Rock abandoned its tortious interference claim when it declared its intention to seek only contractual (as opposed to punitive) damages on the claim. See Brief for Respondent IBT 16. We reject this argument, which confuses Granite Rock's decision to forgo the pursuit of punitive damages on its claim with a decision to abandon the claim itself. The two are not synonymous, and IBT cites no authority for the proposition that Granite Rock must allege more than economic damages to state a claim on which relief could be granted.Footnote 17 Although the Board and federal jury reached different conclusions with respect to the CBA's ratification date, the discrepancy has little practical significance because the Board's remedial order against Local and IBT gives "retroactive effect to the terms of the [CBA of] July 2, 2004, as if ratified on that date." In re Teamsters Local 287, 347 N. L. R. B. 339, 340 (2006).FOOTNOTESFootnote 1 When the question is " 'who (primarily) should decide arbitrability' " (as opposed to " 'whether a particular merits-related dispute is arbitrable' "), "the law reverses the presumption." First Options of Chicago, Inc. v. Kaplan, 514 U. S. 938, 944-945 (1995). In other words, "[u]nless the parties clearly and unmistakably provide otherwise," it is presumed that courts, not arbitrators, are responsible for resolving antecedent questions concerning the scope of an arbitration agreement. AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 649 (1986). As the majority correctly observes, ante, at 7, n. 5, this case does not implicate the reversed presumption because both parties accept that a court, not an arbitrator, should resolve their current disagreement about whether their underlying dispute is arbitrable.Footnote 2 Notably, at the time they executed the CBA in December 2004, the parties were well aware that they disagreed about the legitimacy of the July work stoppage. Yet they made the CBA retroactive to May and declined to carve out their no-strike dispute from the arbitration provision, despite expressly excluding three other classes of disputes from arbitration. Cf. Steelworkers v. Warrior & Gulf Nav. Co., 363 U. S. 574, 584-585 (1960) ("In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail").

Since this Court denied petitioner Demos leave to proceed in forma pauperis in all future petitions for extraordinary relief, he ha filed 14 petitions for certiorari.Held: Demos is denied leave to proceed under this Court's rule 39.5, and the Clerk is directed to reject all future petitions for certiorari from Demos in noncriminal matters unless he pays the required docketing fee and submits his petition in compliance with Rule 33. His continued course of abusive filings plainly warrants this sanction. Motion denied.PER CURIAM. Pro se petitioner John R. Demos, Jr., has made 48 in forma pauperis filings in this Court since the beginning of the October 1988 Term, many of which challenged sanctions imposed by lower courts for frivolous filings. Almost two years ago, we prospectively denied Demos leave to proceed in forma pauperis "in all future petitions for extraordinary relief." In re Demos, (per curiam). At that time, we said that Demos remains free under the present order to file in forma pauperis requests for relief other than an extraordinary writ, if he qualifies under this Court's Rule 39 and does not similarly abuse that privilege. Ibid. Since then, Demos has filed 14 petitions for certiorari. We denied the first seven petitions outright, and denied Demos leave to proceed in forma pauperis under our Rule 39.8 as to the following six. Today, we invoke Rule 39.8 again with respect to the instant petition. Demos is allowed until March 29, 1993, within which to pay the docketing fees required by Rule 38 and to submit the petition in compliance with this Court's Rule 33. Because Demos has refused to heed our prior warning, we further direct the Clerk to reject all future petitions for certiorari from Demos in noncriminal matters unless he pays the docketing fee required by Rule 38 and submits his petition in compliance with Rule 33. See Martin v. District of Columbia Court of Appeals, (per curiam). Demos' continued course of abusive filings plainly warrants this sanction. It is so ordered. JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting. In my opinion, the administration of special procedures for disposing of repetitive and frivolous petitions is less efficient than our past practice of simply denying such petitions.* I continue to adhere to my previously stated views on this issue, see Martin v. District of Columbia Court of Appeals, (STEVENS J., dissenting); Zatko v. California, (STEVENS, J., dissenting), and would deny certiorari rather than invoking Rule 39 in this case. Accordingly, I respectfully dissent.[Footnote *] The next issue the Court will confront in developing its Rule 39.8 jurisprudence, for instance is whether to apply orders like today's retroactively, to petitions pending on the date they are issued.

Per Curiam. Around one o'clock in the morning on May 27, 2008, Officer Mike Stanton and his partner responded to a call about an "unknown disturbance" involving a person with a baseball bat in La Mesa, California. App. to Pet. for Cert. 6. Stanton was familiar with the neighborhood, known for "violence associated with the area gangs." Ibid. The officers — wearing uniforms and driving a marked police vehicle — approached the place where the disturbance had been reported and noticed three men walking in the street. Upon seeing the police car, two of the men turned into a nearby apartment complex. The third, Nicholas Patrick, crossed the street about 25 yards in front of Stanton's car and ran or quickly walked toward a residence. Id., at 7, 17. Nothing in the record shows that Stanton knew at the time whether that residence belonged to Patrick or someone else; in fact, it belonged to Drendolyn Sims. Stanton did not see Patrick with a baseball bat, but he considered Patrick's behavior suspicious and decided to detain him in order to investigate. Ibid.; see Terry v. Ohio, 392 U. S. 1 (1968). Stanton exited his patrol car, called out "police," and ordered Patrick to stop in a voice loud enough for all in the area to hear. App. to Pet. for Cert. 7. But Patrick did not stop. Instead, he "looked directly at Stanton, ignored his lawful orders[,] and quickly went through [the] front gate" of a fence enclosing Sims' front yard. Id., at 17 (alterations omitted). When the gate closed behind Patrick, the fence — which was more than six feet tall and made of wood — blocked Stanton's view of the yard. Stanton believed that Patrick had committed a jailable misdemeanor under California Penal Code §148 by disobeying his order to stop;1 Stanton also "fear[ed] for [his] safety." App. to Pet. for Cert. 7. He accordingly made the "split-second decision" to kick open the gate in pursuit of Patrick. Ibid. Unfortunately, and unbeknownst to Stanton, Sims herself was standing behind the gate when it flew open. The swinging gate struck Sims, cutting her forehead and injuring her shoulder. Sims filed suit against Stanton in Federal District Court under Rev. Stat. §1979, 42 U. S. C. §1983, alleging that Stanton unreasonably searched her home without a warrant in violation of the Fourth Amendment. The District Court granted summary judgment to Stanton, finding that: (1) Stanton's entry was justified by the potentially dangerous situation, by the need to pursue Patrick as he fled, and by Sims' lesser expectation of privacy in the curtilage of her home; and (2) even if a constitutional violation had occurred, Stanton was entitled to qualified immunity because no clearly established law put him on notice that his conduct was unconstitutional. Sims appealed, and a panel of the Court of Appeals for the Ninth Circuit reversed. 706 F. 3d 954 (2013). The court held that Stanton's warrantless entry into Sims' yard was unconstitutional because Sims was entitled to the same expectation of privacy in her curtilage as in her home itself, because there was no immediate danger, and because Patrick had committed only the minor offense of disobeying a police officer. Id., at 959-963. The court also found the law to be clearly established that Stanton's pursuit of Patrick did not justify his warrantless entry, given that Patrick was suspected of only a misdemeanor. Id., at 963-964. The court accordingly held that Stanton was not entitled to qualified immunity. Id., at 964-965. We address only the latter holding here, and now reverse. "The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Pearson v. Callahan, 555 U. S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982)). "Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments," and "protects 'all but the plainly incompetent or those who knowingly violate the law.' " Ashcroft v. al-Kidd, 563 U. S. ___, ___ (2011) (slip op., at 12) (quoting Malley v. Briggs, 475 U. S. 335, 341 (1986)). "We do not require a case directly on point" before concluding that the law is clearly established, "but existing precedent must have placed the statutory or constitutional question beyond debate." al-Kidd, 563 U. S., at ___ (slip op., at 9). There is no suggestion in this case that Officer Stanton knowingly violated the Constitution; the question is whether, in light of precedent existing at the time, he was "plainly incompetent" in entering Sims' yard to pursue the fleeing Patrick. Id., at ___ (slip op., at 12). The Ninth Circuit concluded that he was. It did so despite the fact that federal and state courts nationwide are sharply divided on the question whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant while in hot pursuit of that suspect. Compare, e.g., Middletown v. Flinchum, 95 Ohio St. 3d 43, 45, 765 N. E. 2d 330, 332 (2002) ("We . . . hold today that when officers, having identified themselves, are in hot pursuit of a suspect who flees to a house in order to avoid arrest, the police may enter without a warrant, regardless of whether the offense for which the suspect is being arrested is a misdemeanor"), and State v. Ricci, 144 N. H. 241, 244, 739 A. 2d 404, 407 (1999) ("the facts of this case demonstrate that the police had probable cause to arrest the defendant for the misdemeanor offense of disobeying a police officer" where the defendant had fled into his home with police officers in hot pursuit), with Mas- corro v. Billings, 656 F. 3d 1198, 1207 (CA10 2011) ("The warrantless entry based on hot pursuit was not justified" where "[t]he intended arrest was for a traffic misdemeanor committed by a minor, with whom the officer was well acquainted, who had fled into his family home from which there was only one exit" (footnote omitted)), and Butler v. State, 309 Ark. 211, 217, 829 S. W. 2d 412, 415 (1992) ("even though Officer Sudduth might have been under the impression that he was in continuous pursuit of Butler for what he considered to be the crime of disorderly conduct, . . . since the crime is a minor offense, under these circumstances there is no exigent circumstance that would allow Officer Sudduth's warrantless entry into Butler's home for what is concededly, at most, a petty disturbance"). Other courts have concluded that police officers are at least entitled to qualified immunity in these circumstances because the constitutional violation is not clearly established. E.g., Grenier v. Champlin, 27 F. 3d 1346, 1354 (CA8 1994) ("Putting firmly to one side the merits of whether the home arrests were constitutional, we cannot say that only a plainly incompetent policeman could have thought them permissible at the time," where officers entered a home without a warrant in hot pursuit of misdemeanor suspects who had defied the officers' order to remain outside (internal quotation marks and citation omitted)). Notwithstanding this basic disagreement, the Ninth Circuit below denied Stanton qualified immunity. In its one-paragraph analysis on the hot pursuit point, the panel relied on two cases, one from this Court, Welsh v. Wisconsin, 466 U. S. 740, 750 (1984), and one from its own, United States v. Johnson, 256 F. 3d 895, 908 (2001) (en banc) (per curiam). Neither case clearly establishes that Stanton violated Sims' Fourth Amendment rights. In Welsh, police officers learned from a witness that Edward Welsh had driven his car off the road and then left the scene, presumably because he was drunk. Acting on that tip, the officers went to Welsh's home without a warrant, entered without consent, and arrested him for driving while intoxicated — a nonjailable traffic offense under state law. 466 U. S., at 742-743. Our opinion first noted our precedent holding that hot pursuit of a fleeing felon justifies an officer's warrantless entry. Id., at 750 (citing United States v. Santana, 427 U. S. 38, 42-43 (1976)). But we rejected the suggestion that the hot pursuit exception applied: "there was no immediate or continuous pursuit of [Welsh] from the scene of a crime." 466 U. S., at 753. We went on to conclude that the officers' entry violated the Fourth Amendment, finding it "important" that "there [was] probable cause to believe that only a minor offense ... ha[d] been committed." Ibid. In those circumstances, we said, "application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned." Ibid. But we did not lay down a categorical rule for all cases involving minor offenses, saying only that a warrant is "usually" required. Id., at 750. In Johnson, police officers broke into Michael Johnson's fenced yard in search of another person (Steven Smith) whom they were attempting to apprehend on five misdemeanor arrest warrants. 256 F. 3d, at 898-900. The Ninth Circuit was clear that this case, like Welsh, did not involve hot pursuit: "the facts of this case simply are not covered by the 'hot pursuit' doctrine" because Smith had escaped from the police 30 minutes prior and his whereabouts were unknown. 256 F. 3d, at 908. The court held that the officers' entry required a warrant, in part because Smith was wanted for only misdemeanor offenses. Then, in a footnote, the court said: "In situations where an officer is truly in hot pursuit and the underlying offense is a felony, the Fourth Amendment usually yields [to law enforcement's interest in apprehending a fleeing suspect]. See [Santana, supra, at 42-43]. However, in situations where the underlying offense is only a misdemeanor, law enforcement must yield to the Fourth Amendment in all but the 'rarest' cases. Welsh, [supra, at 753]." Johnson, supra, at 908, n. 6. In concluding — as it must have — that Stanton was "plainly incompetent," al-Kidd, 563 U. S., at ___ (slip op., at 12), the Ninth Circuit below read Welsh and the footnote in Johnson far too broadly. First, both of those cases cited Santana with approval, a case that approved an officer's warrantless entry while in hot pursuit. And though Santana involved a felony suspect, we did not expressly limit our holding based on that fact. See 427 U. S., at 42 ("The only remaining question is whether [the suspect's] act of retreating into her house could thwart an otherwise proper arrest. We hold that it could not"). Second, to repeat, neither Welsh nor Johnson involved hot pursuit. Welsh, supra, at 753; Johnson, supra, at 908. Thus, despite our emphasis in Welsh on the fact that the crime at issue was minor — indeed, a mere nonjailable civil offense — nothing in the opinion establishes that the seriousness of the crime is equally important in cases of hot pursuit. Third, even in the portion of Welsh cited by the Ninth Circuit below, our opinion is equivocal: We held not that warrantless entry to arrest a misdemeanant is never justified, but only that such entry should be rare. 466 U. S., at 753. That is in fact how two California state courts have read Welsh. In both People v. Lloyd, 216 Cal. App. 3d 1425, 1430, 265 Cal. Rptr. 422, 425 (1989), and In re Lavoyne M., 221 Cal. App. 3d 154, 159, 270 Cal. Rptr. 394, 396 (1990), the California Court of Appeal refused to limit the hot pursuit exception to felony suspects. The court stated in Lloyd: "Where the pursuit into the home was based on an arrest set in motion in a public place, the fact that the offenses justifying the initial detention or arrest were misdemeanors is of no significance in determining the validity of the entry without a warrant." 216 Cal. App. 3d, at 1430, 265 Cal. Rptr., at 425. It is especially troubling that the Ninth Circuit would conclude that Stanton was plainly incompetent — and subject to personal liability for damages — based on actions that were lawful according to courts in the jurisdiction where he acted. Cf. al-Kidd, supra, at ___ (Kennedy, J., concurring) (slip op., at 2-4). Finally, our determination that Welsh and Johnson are insufficient to overcome Stanton's qualified immunity is bolstered by the fact that, even after Johnson, two different District Courts in the Ninth Circuit have granted qualified immunity precisely because the law regarding warrantless entry in hot pursuit of a fleeing misdemeanant is not clearly established. See Kolesnikov v. Sacramento County, No. S-06-2155, 2008 WL 1806193, *7 (ED Cal., Apr. 22, 2008) ("since Welsh, it has not been clearly established that there can never be warrantless home arrests in the context of a 'hot pursuit' of a suspect fleeing from the commission of misdemeanor offenses"); Garcia v. Imperial, No. 08-2357, 2010 WL 3834020, *6, n. 4 (SD Cal., Sept. 28, 2010). In Garcia, a case with facts similar to those here, the District Court distinguished Johnson as a case where "the officers were not in hot pursuit of the suspect, had not seen the suspect enter the neighbor's property, and had no real reason to think the suspect was there." 2010 WL 3834020, *6, n. 4. Precisely the same facts distinguish this case from Johnson: Stanton was in hot pursuit of Patrick, he did see Patrick enter Sims' property, and he had every reason to believe that Patrick was just beyond Sims' gate. App. to Pet. for Cert. 6-7, 17. To summarize the law at the time Stanton made his split-second decision to enter Sims' yard: Two opinions of this Court were equivocal on the lawfulness of his entry; two opinions of the State Court of Appeal affirmatively authorized that entry; the most relevant opinion of the Ninth Circuit was readily distinguishable; two Federal District Courts in the Ninth Circuit had granted qualified immunity in the wake of that opinion; and the federal and state courts of last resort around the Nation were sharply divided. We do not express any view on whether Officer Stanton's entry into Sims' yard in pursuit of Patrick was constitutional. But whether or not the constitutional rule applied by the court below was correct, it was not "beyond debate." al-Kidd, supra, at ___ (slip op., at 9). Stanton may have been mistaken in believing his actions were justified, but he was not "plainly incompetent." Malley, 475 U. S., at 341. The petition for certiorari and respondent's motion for leave to proceed in forma pauperis are granted, the judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.MIKE STANTON, PETITIONER v. DRENDOLYN SIMSon petition for writ of certiorari to the united states court of appeals for the ninth circuitNo. 12-1217. Decided November 4, 2013 Per Curiam. Around one o'clock in the morning on May 27, 2008, Officer Mike Stanton and his partner responded to a call about an "unknown disturbance" involving a person with a baseball bat in La Mesa, California. App. to Pet. for Cert. 6. Stanton was familiar with the neighborhood, known for "violence associated with the area gangs." Ibid. The officers — wearing uniforms and driving a marked police vehicle — approached the place where the disturbance had been reported and noticed three men walking in the street. Upon seeing the police car, two of the men turned into a nearby apartment complex. The third, Nicholas Patrick, crossed the street about 25 yards in front of Stanton's car and ran or quickly walked toward a residence. Id., at 7, 17. Nothing in the record shows that Stanton knew at the time whether that residence belonged to Patrick or someone else; in fact, it belonged to Drendolyn Sims. Stanton did not see Patrick with a baseball bat, but he considered Patrick's behavior suspicious and decided to detain him in order to investigate. Ibid.; see Terry v. Ohio, 392 U. S. 1 (1968). Stanton exited his patrol car, called out "police," and ordered Patrick to stop in a voice loud enough for all in the area to hear. App. to Pet. for Cert. 7. But Patrick did not stop. Instead, he "looked directly at Stanton, ignored his lawful orders[,] and quickly went through [the] front gate" of a fence enclosing Sims' front yard. Id., at 17 (alterations omitted). When the gate closed behind Patrick, the fence — which was more than six feet tall and made of wood — blocked Stanton's view of the yard. Stanton believed that Patrick had committed a jailable misdemeanor under California Penal Code §148 by disobeying his order to stop;1 Stanton also "fear[ed] for [his] safety." App. to Pet. for Cert. 7. He accordingly made the "split-second decision" to kick open the gate in pursuit of Patrick. Ibid. Unfortunately, and unbeknownst to Stanton, Sims herself was standing behind the gate when it flew open. The swinging gate struck Sims, cutting her forehead and injuring her shoulder. Sims filed suit against Stanton in Federal District Court under Rev. Stat. §1979, 42 U. S. C. §1983, alleging that Stanton unreasonably searched her home without a warrant in violation of the Fourth Amendment. The District Court granted summary judgment to Stanton, finding that: (1) Stanton's entry was justified by the potentially dangerous situation, by the need to pursue Patrick as he fled, and by Sims' lesser expectation of privacy in the curtilage of her home; and (2) even if a constitutional violation had occurred, Stanton was entitled to qualified immunity because no clearly established law put him on notice that his conduct was unconstitutional. Sims appealed, and a panel of the Court of Appeals for the Ninth Circuit reversed. 706 F. 3d 954 (2013). The court held that Stanton's warrantless entry into Sims' yard was unconstitutional because Sims was entitled to the same expectation of privacy in her curtilage as in her home itself, because there was no immediate danger, and because Patrick had committed only the minor offense of disobeying a police officer. Id., at 959-963. The court also found the law to be clearly established that Stanton's pursuit of Patrick did not justify his warrantless entry, given that Patrick was suspected of only a misdemeanor. Id., at 963-964. The court accordingly held that Stanton was not entitled to qualified immunity. Id., at 964-965. We address only the latter holding here, and now reverse. "The doctrine of qualified immunity protects government officials 'from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' " Pearson v. Callahan, 555 U. S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982)). "Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments," and "protects 'all but the plainly incompetent or those who knowingly violate the law.' " Ashcroft v. al-Kidd, 563 U. S. ___, ___ (2011) (slip op., at 12) (quoting Malley v. Briggs, 475 U. S. 335, 341 (1986)). "We do not require a case directly on point" before concluding that the law is clearly established, "but existing precedent must have placed the statutory or constitutional question beyond debate." al-Kidd, 563 U. S., at ___ (slip op., at 9). There is no suggestion in this case that Officer Stanton knowingly violated the Constitution; the question is whether, in light of precedent existing at the time, he was "plainly incompetent" in entering Sims' yard to pursue the fleeing Patrick. Id., at ___ (slip op., at 12). The Ninth Circuit concluded that he was. It did so despite the fact that federal and state courts nationwide are sharply divided on the question whether an officer with probable cause to arrest a suspect for a misdemeanor may enter a home without a warrant while in hot pursuit of that suspect. Compare, e.g., Middletown v. Flinchum, 95 Ohio St. 3d 43, 45, 765 N. E. 2d 330, 332 (2002) ("We . . . hold today that when officers, having identified themselves, are in hot pursuit of a suspect who flees to a house in order to avoid arrest, the police may enter without a warrant, regardless of whether the offense for which the suspect is being arrested is a misdemeanor"), and State v. Ricci, 144 N. H. 241, 244, 739 A. 2d 404, 407 (1999) ("the facts of this case demonstrate that the police had probable cause to arrest the defendant for the misdemeanor offense of disobeying a police officer" where the defendant had fled into his home with police officers in hot pursuit), with Mas- corro v. Billings, 656 F. 3d 1198, 1207 (CA10 2011) ("The warrantless entry based on hot pursuit was not justified" where "[t]he intended arrest was for a traffic misdemeanor committed by a minor, with whom the officer was well acquainted, who had fled into his family home from which there was only one exit" (footnote omitted)), and Butler v. State, 309 Ark. 211, 217, 829 S. W. 2d 412, 415 (1992) ("even though Officer Sudduth might have been under the impression that he was in continuous pursuit of Butler for what he considered to be the crime of disorderly conduct, . . . since the crime is a minor offense, under these circumstances there is no exigent circumstance that would allow Officer Sudduth's warrantless entry into Butler's home for what is concededly, at most, a petty disturbance"). Other courts have concluded that police officers are at least entitled to qualified immunity in these circumstances because the constitutional violation is not clearly established. E.g., Grenier v. Champlin, 27 F. 3d 1346, 1354 (CA8 1994) ("Putting firmly to one side the merits of whether the home arrests were constitutional, we cannot say that only a plainly incompetent policeman could have thought them permissible at the time," where officers entered a home without a warrant in hot pursuit of misdemeanor suspects who had defied the officers' order to remain outside (internal quotation marks and citation omitted)). Notwithstanding this basic disagreement, the Ninth Circuit below denied Stanton qualified immunity. In its one-paragraph analysis on the hot pursuit point, the panel relied on two cases, one from this Court, Welsh v. Wisconsin, 466 U. S. 740, 750 (1984), and one from its own, United States v. Johnson, 256 F. 3d 895, 908 (2001) (en banc) (per curiam). Neither case clearly establishes that Stanton violated Sims' Fourth Amendment rights. In Welsh, police officers learned from a witness that Edward Welsh had driven his car off the road and then left the scene, presumably because he was drunk. Acting on that tip, the officers went to Welsh's home without a warrant, entered without consent, and arrested him for driving while intoxicated — a nonjailable traffic offense under state law. 466 U. S., at 742-743. Our opinion first noted our precedent holding that hot pursuit of a fleeing felon justifies an officer's warrantless entry. Id., at 750 (citing United States v. Santana, 427 U. S. 38, 42-43 (1976)). But we rejected the suggestion that the hot pursuit exception applied: "there was no immediate or continuous pursuit of [Welsh] from the scene of a crime." 466 U. S., at 753. We went on to conclude that the officers' entry violated the Fourth Amendment, finding it "important" that "there [was] probable cause to believe that only a minor offense ... ha[d] been committed." Ibid. In those circumstances, we said, "application of the exigent-circumstances exception in the context of a home entry should rarely be sanctioned." Ibid. But we did not lay down a categorical rule for all cases involving minor offenses, saying only that a warrant is "usually" required. Id., at 750. In Johnson, police officers broke into Michael Johnson's fenced yard in search of another person (Steven Smith) whom they were attempting to apprehend on five misdemeanor arrest warrants. 256 F. 3d, at 898-900. The Ninth Circuit was clear that this case, like Welsh, did not involve hot pursuit: "the facts of this case simply are not covered by the 'hot pursuit' doctrine" because Smith had escaped from the police 30 minutes prior and his whereabouts were unknown. 256 F. 3d, at 908. The court held that the officers' entry required a warrant, in part because Smith was wanted for only misdemeanor offenses. Then, in a footnote, the court said: "In situations where an officer is truly in hot pursuit and the underlying offense is a felony, the Fourth Amendment usually yields [to law enforcement's interest in apprehending a fleeing suspect]. See [Santana, supra, at 42-43]. However, in situations where the underlying offense is only a misdemeanor, law enforcement must yield to the Fourth Amendment in all but the 'rarest' cases. Welsh, [supra, at 753]." Johnson, supra, at 908, n. 6. In concluding — as it must have — that Stanton was "plainly incompetent," al-Kidd, 563 U. S., at ___ (slip op., at 12), the Ninth Circuit below read Welsh and the footnote in Johnson far too broadly. First, both of those cases cited Santana with approval, a case that approved an officer's warrantless entry while in hot pursuit. And though Santana involved a felony suspect, we did not expressly limit our holding based on that fact. See 427 U. S., at 42 ("The only remaining question is whether [the suspect's] act of retreating into her house could thwart an otherwise proper arrest. We hold that it could not"). Second, to repeat, neither Welsh nor Johnson involved hot pursuit. Welsh, supra, at 753; Johnson, supra, at 908. Thus, despite our emphasis in Welsh on the fact that the crime at issue was minor — indeed, a mere nonjailable civil offense — nothing in the opinion establishes that the seriousness of the crime is equally important in cases of hot pursuit. Third, even in the portion of Welsh cited by the Ninth Circuit below, our opinion is equivocal: We held not that warrantless entry to arrest a misdemeanant is never justified, but only that such entry should be rare. 466 U. S., at 753. That is in fact how two California state courts have read Welsh. In both People v. Lloyd, 216 Cal. App. 3d 1425, 1430, 265 Cal. Rptr. 422, 425 (1989), and In re Lavoyne M., 221 Cal. App. 3d 154, 159, 270 Cal. Rptr. 394, 396 (1990), the California Court of Appeal refused to limit the hot pursuit exception to felony suspects. The court stated in Lloyd: "Where the pursuit into the home was based on an arrest set in motion in a public place, the fact that the offenses justifying the initial detention or arrest were misdemeanors is of no significance in determining the validity of the entry without a warrant." 216 Cal. App. 3d, at 1430, 265 Cal. Rptr., at 425. It is especially troubling that the Ninth Circuit would conclude that Stanton was plainly incompetent — and subject to personal liability for damages — based on actions that were lawful according to courts in the jurisdiction where he acted. Cf. al-Kidd, supra, at ___ (Kennedy, J., concurring) (slip op., at 2-4). Finally, our determination that Welsh and Johnson are insufficient to overcome Stanton's qualified immunity is bolstered by the fact that, even after Johnson, two different District Courts in the Ninth Circuit have granted qualified immunity precisely because the law regarding warrantless entry in hot pursuit of a fleeing misdemeanant is not clearly established. See Kolesnikov v. Sacramento County, No. S-06-2155, 2008 WL 1806193, *7 (ED Cal., Apr. 22, 2008) ("since Welsh, it has not been clearly established that there can never be warrantless home arrests in the context of a 'hot pursuit' of a suspect fleeing from the commission of misdemeanor offenses"); Garcia v. Imperial, No. 08-2357, 2010 WL 3834020, *6, n. 4 (SD Cal., Sept. 28, 2010). In Garcia, a case with facts similar to those here, the District Court distinguished Johnson as a case where "the officers were not in hot pursuit of the suspect, had not seen the suspect enter the neighbor's property, and had no real reason to think the suspect was there." 2010 WL 3834020, *6, n. 4. Precisely the same facts distinguish this case from Johnson: Stanton was in hot pursuit of Patrick, he did see Patrick enter Sims' property, and he had every reason to believe that Patrick was just beyond Sims' gate. App. to Pet. for Cert. 6-7, 17. To summarize the law at the time Stanton made his split-second decision to enter Sims' yard: Two opinions of this Court were equivocal on the lawfulness of his entry; two opinions of the State Court of Appeal affirmatively authorized that entry; the most relevant opinion of the Ninth Circuit was readily distinguishable; two Federal District Courts in the Ninth Circuit had granted qualified immunity in the wake of that opinion; and the federal and state courts of last resort around the Nation were sharply divided. We do not express any view on whether Officer Stanton's entry into Sims' yard in pursuit of Patrick was constitutional. But whether or not the constitutional rule applied by the court below was correct, it was not "beyond debate." al-Kidd, supra, at ___ (slip op., at 9). Stanton may have been mistaken in believing his actions were justified, but he was not "plainly incompetent." Malley, 475 U. S., at 341. The petition for certiorari and respondent's motion for leave to proceed in forma pauperis are granted, the judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.FOOTNOTESFootnote 1 "Every person who willfully resists, delays, or obstructs any ... peace officer ... in the discharge or attempt to discharge any duty of his or her office or employment ... shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment." Cal. Penal Code Ann. §148(a)(1) (2013 West Cum. Supp.).FOOTNOTESFootnote 1 "Every person who willfully resists, delays, or obstructs any ... peace officer ... in the discharge or attempt to discharge any duty of his or her office or employment ... shall be punished by a fine not exceeding one thousand dollars ($1,000), or by imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment." Cal. Penal Code Ann. §148(a)(1) (2013 West Cum. Supp.).

For the express purpose of providing a place where teenagers can socialize with each other but not be subject to the potentially detrimental influences of older teenagers and adults, a Dallas ordinance authorizes the licensing of "Class E" dance halls, restricting admission thereto to persons between the ages of 14 and 18 and limiting their hours of operation. Respondent, whose roller-skating rink and Class E dance hall share a divided floorspace, filed suit in state court to enjoin the ordinance's age and hour restrictions, contending, inter alia, that they violated the First Amendment and the Equal Protection Clause of the Fourteenth Amendment. The trial court upheld the ordinance, but the Texas Court of Appeals struck down the ordinance's age restriction, holding that it violated the First Amendment associational rights of minors.Held: 1. The ordinance does not infringe on the First Amendment right of association. Respondent's patrons, who may number as many as 1,000 per night, are not engaged in a form of "intimate association." Nor do the opportunities of adults and minors to dance with one another, which might be described as "associational" in common parlance, involve the sort of "expressive association" that the First Amendment has been held to protect. The teenagers who congregate are not members of any organized association, and most are strangers to one another. The dance hall admits all who pay the admission fee, and there is no suggestion that the patrons take positions on public questions or perform other similar activities. Moreover, the Constitution does not recognize a generalized right of "social association" that includes chance encounters in dance halls. Griswold v. Connecticut, , distinguished. Pp. 23-25. 2. The ordinance does not violate the Equal Protection Clause because there is a rational relationship between the age restriction for Class E dance halls and the city's interest in promoting the welfare of teenagers. Respondent's claims - that the ordinance does not meet the city's objectives because adults and teenagers can still associate with one another in places such as his skating rink and that there are other, less intrusive, alternatives to achieve the objectives - misapprehend the nature of rational-basis scrutiny, the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause. Under this standard, a classification that has some reasonable basis does not offend the Constitution because it is imperfect. Here, the city could reasonably conclude that teenagers might be more susceptible to corrupting influences if permitted to frequent dance halls with older persons or that limiting dance-hall contacts between adults and teenagers would make less likely illicit or undesirable juvenile involvement with alcohol, illegal drugs, or promiscuous sex. While the city permits teenagers and adults to roller-skate together, skating involves less physical contact than dancing, a differentiation that need not be striking to survive rational-basis scrutiny. Pp. 25-28. 744 S. W. 2d 165, reversed and remanded.REHNQUIST, C. J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, in which BLACKMUN, J., joined, post, p. 28.Craig Hopkins argued the cause for petitioners. With him on the briefs were Analeslie Muncy and Kenneth C. Dippel.Daniel J. Sheehan, Jr., argued the cause and filed a brief for respondent.* [Footnote *] Briefs of amici curiae urging reversal were filed for the National Institute of Municipal Officers by William I. Thornton, Jr., Frank B. Gummey III, William H. Taube, Roy D. Bates, Robert J. Alfton, James K. Baker, Robert J. Mangler, Neal E. McNeill, Dante R. Pellegrini, Clifford D. Pierce, Jr., Benjamin L. Brown, and Charles S. Rhyne; and for the United States Conference of Mayors et al. by Benna Ruth Solomon.CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Petitioner city of Dallas adopted an ordinance restricting admission to certain dance halls to persons between the ages of 14 and 18. Respondent, the owner of one of these "teenage" dance halls, sued to contest the constitutional validity of the ordinance. The Texas Court of Appeals held that the ordinance violated the First Amendment right of persons between the ages of 14 and 18 to associate with persons outside that age group. We now reverse, holding that the First Amendment secures no such right.In 1985, in response to requests for dance halls open only to teenagers, the city of Dallas authorized the licensing of "Class E" dance halls.1 The purpose of the ordinance was to provide a place where teenagers could socialize with each other, but not be subject to the potentially detrimental influences of older teenagers and young adults. The provision of the ordinance at issue here, Dallas City Code 14-8.1 (1985), restricts the ages of admission to Class E dance halls to persons between the ages of 14 and 18.2 This provision, as enacted, restricted admission to those between 14 and 17, but it was subsequently amended to include 18-year-olds. Parents, guardians, law enforcement, and dance-hall personnel are excepted from the ordinance's age restriction. The ordinance also limits the hours of operation of Class E dance halls to between 1 p.m. and midnight daily when school is not in session. 14-5(d)(2).Respondent operates the Twilight Skating Rink in Dallas and obtained a license for a Class E dance hall. He divided the floor of his roller-skating rink into two sections with moveable plastic cones or pylons. On one side of the pylons, persons between the ages of 14 and 18 dance, while on the other side, persons of all ages skate to the same music - usually soul and "funk" music played by a disc jockey. No age or hour restrictions are applicable to the skating rink. Respondent does not serve alcohol on the premises, and security personnel are present. The Twilight does not have a selective admissions policy. It charges between $3.50 and $5 per person for admission to the dance hall and between $2.50 and $5 per person for admission to the skating rink. Most of the patrons are strangers to each other, and the establishment serves as many as 1,000 customers per night.Respondent sued in the District Court of Dallas County to enjoin enforcement of the age and hour restrictions of the ordinance. He contended that the ordinance violated substantive due process and equal protection under the United States and Texas Constitutions, and that it unconstitutionally infringed the rights of persons between the ages of 14 and 17 (now 18) to associate with persons outside that age bracket.3 The trial court upheld the ordinance, finding that it was rationally related to the city's legitimate interest in ensuring the safety and welfare of children.The Texas Court of Appeals upheld the ordinance's time restriction, but it struck down the age restriction. 744 S. W. 2d 165 (1987). The Court of Appeals held that the age restriction violated the First Amendment associational rights of minors. To support a restriction on the fundamental right of "social association," the court said that "the legislative body must show a compelling interest," and the regulation "must be accomplished by the least restrictive means." Id., at 168. The court recognized the city's interest in "protect[ing] minors from detrimental, corrupting influences," ibid., but held that the "City's stated purposes ... may be achieved in ways that are less intrusive on minors' freedom to associate," id., at 169. The Court of Appeals stated that "[a] child's right of association may not be abridged simply on the premise that he `might' associate with those who would persuade him into bad habits," and that "neither the activity of dancing per se, nor association of children aged fourteen through eighteen with persons of other ages in the context of dancing renders such children peculiarly vulnerable to the evils that defendant City seeks to prevent." Ibid. We granted certiorari, , and now reverse.The dispositive question in this case is the level of judicial "scrutiny" to be applied to the city's ordinance. Unless laws "create suspect classifications or impinge upon constitutionally protected rights," San Antonio Independent School Dist. v. Rodriguez, , it need only be shown that they bear "some rational relationship to a legitimate state purpose," id., at 44. Respondent does not contend that dance-hall patrons are a "suspect classification," but he does urge that the ordinance in question interferes with associational rights of such patrons guaranteed by the First Amendment.While the First Amendment does not in terms protect a "right of association," our cases have recognized that it embraces such a right in certain circumstances. In Roberts v. United States Jaycees, , we noted two different sorts of "freedom of association" that are protected by the United States Constitution: "Our decisions have referred to constitutionally protected `freedom of association' in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment - speech, assembly, petition for the redress of grievances, and the exercise of religion." Id., at 617-618. It is clear beyond cavil that dance-hall patrons, who may number 1,000 on any given night, are not engaged in the sort of "intimate human relationships" referred to in Roberts. The Texas Court of Appeals, however, thought that such patrons were engaged in a form of expressive activity that was protected by the First Amendment. We disagree.The Dallas ordinance restricts attendance at Class E dance halls to minors between the ages of 14 and 18 and certain excepted adults. It thus limits the minors' ability to dance with adults who may not attend, and it limits the opportunity of such adults to dance with minors. These opportunities might be described as "associational" in common parlance, but they simply do not involve the sort of expressive association that the First Amendment has been held to protect. The hundreds of teenagers who congregate each night at this particular dance hall are not members of any organized association; they are patrons of the same business establishment. Most are strangers to one another, and the dance hall admits all who are willing to pay the admission fee. There is no suggestion that these patrons "take positions on public questions" or perform any of the other similar activities described in Board of Directors of Rotary International v. Rotary Club of Duarte, .The cases cited in Roberts recognize that "freedom of speech" means more than simply the right to talk and to write. It is possible to find some kernel of expression in almost every activity a person undertakes - for example, walking down the street or meeting one's friends at a shopping mall - but such a kernel is not sufficient to bring the activity within the protection of the First Amendment. We think the activity of these dance-hall patrons - coming together to engage in recreational dancing - is not protected by the First Amendment. Thus this activity qualifies neither as a form of "intimate association" nor as a form of "expressive association" as those terms were described in Roberts.Unlike the Court of Appeals, we do not think the Constitution recognizes a generalized right of "social association" that includes chance encounters in dance halls. The Court of Appeals relied, mistakenly we think, on a statement from our opinion in Griswold v. Connecticut, , that "[t]he right to freely associate is not limited to `political' assemblies, but includes those that `pertain to the social, legal, and economic benefit' of our citizens." 744 S. W. 2d, at 168, quoting Griswold v. Connecticut, supra, at 483. But the quoted language from Griswold recognizes nothing more than that the right of expressive association extends to groups organized to engage in speech that does not pertain directly to politics.The Dallas ordinance, therefore, implicates no suspect class and impinges on no constitutionally protected right. The question remaining is whether the classification engaged in by the city survives "rational-basis" scrutiny under the Equal Protection Clause. The city has chosen to impose a rule that separates 14- to 18-year-olds from what may be the corrupting influences of older teenagers and young adults. Ray Couch, an urban planner for the city's Department of Planning and Development, testified:"`[O]lder kids [whom the ordinance prohibits from entering Class E dance halls] can access drugs and alcohol, and they have more mature sexual attitudes, more liberal sexual attitudes in general... . And we're concerned about mixing up these [older] individuals with youngsters that [sic] have not fully matured.'" 744 S. W. 2d, at 168, n. 3. A Dallas police officer, Wesley Michael, testified that the age restriction was intended to discourage juvenile crime.Respondent claims that this restriction "has no real connection with the City's stated interests and objectives." Brief for Respondent 13. Except for saloons and teenage dance halls, respondent argues, teenagers and adults in Dallas may associate with each other, including at the skating area of the Twilight Skating Rink. Id., at 14. Respondent also states, as did the court below, that the city can achieve its objectives through increased supervision, education, and prosecution of those who corrupt minors. Id., at 15.We think respondent's arguments misapprehend the nature of rational-basis scrutiny, which is the most relaxed and tolerant form of judicial scrutiny under the Equal Protection Clause. In Dandridge v. Williams, , in rejecting the claim that Maryland welfare legislation violated the Equal Protection Clause, the Court said:"[A] State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect. If the classification has some `reasonable basis,' it does not offend the Constitution simply because the classification `is not made with mathematical nicety or because in practice it results in some inequality.' Lindsley v. Natural Carbonic Gas Co., . `The problems of government are practical ones and may justify, if they do not require, rough accommodations - illogical, it may be, and unscientific.' Metropolis Theatre Co. v. City of Chicago, ... ."... [The rational-basis standard] is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy." Id., at 485-486 (footnote omitted). We think that similar considerations support the age restriction at issue here. As we said in New Orleans v. Dukes, : "[I]n the local economic sphere, it is only the invidious discrimination, the wholly arbitrary act, which cannot stand consistently with the Fourteenth Amendment." See also United States Railroad Retirement Board v. Fritz, . The city could reasonably conclude, as Couch stated, that teenagers might be susceptible to corrupting influences if permitted, unaccompanied by their parents, to frequent a dance hall with older persons. See 7 E. McQuillin, Law of Municipal Corporations 24.210 (3d ed. 1981) ("Public dance halls have been regarded as being in that category of businesses and vocations having potential evil consequences"). The city could properly conclude that limiting dance-hall contacts between juveniles and adults would make less likely illicit or undesirable juvenile involvement with alcohol, illegal drugs, and promiscuous sex.4 It is true that the city allows teenagers and adults to roller-skate together, but skating involves less physical contact than dancing. The differences between the two activities may not be striking, but differentiation need not be striking in order to survive rational-basis scrutiny.We hold that the Dallas ordinance does not infringe on any constitutionally protected right of association, and that a rational relationship exists between the age restriction for Class E dance halls and the city's interest in promoting the welfare of teenagers. The judgment of the Court of Appeals is therefore reversed, and the cause is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Petitioner was convicted in an Oklahoma trial court of first-degree murder for killing a police officer and was sentenced to death. At the time of the offense petitioner was 16 years old, but he was tried as an adult. The Oklahoma death penalty statute provides that in a sentencing proceeding evidence may be presented as to "any mitigating circumstances" or as to any of certain enumerated aggravating circumstances. At the sentencing hearing, the State alleged certain of the enumerated aggravating circumstances, and petitioner, in mitigation, presented substantial evidence of a turbulent family history, of beatings by a harsh father, and of serious emotional disturbance. In imposing the death sentence, the trial judge found that the State had proved each of the alleged aggravating circumstances. But he refused, as a matter of law, to consider in mitigation the circumstances of petitioner's unhappy upbringing and emotional disturbance, and found that the only mitigating circumstance was petitioner's youth, which circumstance was held to be insufficient to outweigh the aggravating circumstances. The Oklahoma Court of Criminal Appeals affirmed.Held: The death sentence must be vacated as it was imposed without "the type of individualized consideration of mitigating factors ... required by the Eighth and Fourteenth Amendments in capital cases," Lockett v. Ohio, . Pp. 110-116. (a) "[T]he Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, supra, at 604. This rule follows from the requirement that capital punishment be imposed fairly and with reasonable consistency or not at all, and recognizes that a consistency produced by ignoring individual differences is a false consistency. Pp. 110-112. (b) The limitation placed by the courts below upon the mitigating evidence they would consider violated the above rule. Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence. The sentencer and the reviewing court may determine the weight to be given relevant mitigating evidence but may not give it no weight by excluding it from their consideration. Here, the evidence of a difficult family history and of emotional disturbance petitioner offered at the sentencing hearing should have been duly considered in sentencing. Pp. 112-116. 616 P.2d 1159, reversed in part and remanded.POWELL. J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, STEVENS, and O'CONNOR, JJ., joined. BRENNAN, J., post, p. 117, and O'CONNOR, J., post, p. 117, filed concurring opinions. BURGER, C. J., filed a dissenting opinion, in which WHITE, BLACKMUN, and REHNQUIST, JJ., joined, post, p. 120.Jay C. Baker, by appointment of the Court, , argued the cause and filed a brief for petitioner.David W. Lee, Assistant Attorney General of Oklahoma, argued the cause for respondent. With him on the brief were Jan Eric Cartwright, Attorney General, and Tomilou Gentry Liddell, Assistant Attorney General.* [Footnote *] Briefs of amici curiae urging reversal were filed by M. Gail Robinson, Kevin Michael McNally, and J. Vincent Aprile II for Kentucky Youth Advocates et al.: and by Robert L. Walker for the National Council on Crime and Delinquency et al. Daniel J. Popeo and Paul D. Kamenar filed a brief for the Washington Legal Foundation as amicus curiae.JUSTICE POWELL delivered the opinion of the Court.Petitioner Monty Lee Eddings was convicted of first-degree murder and sentenced to death. Because this sentence was imposed without "the type of individualized consideration of mitigating factors ... required by the Eighth and Fourteenth Amendments in capital cases," Lockett v. Ohio, (opinion of BURGER, C. J.), we reverse.IOn April 4, 1977, Eddings, a 16-year-old youth, and several younger companions ran away from their Missouri homes. They traveled in a car owned by Eddings' brother, and drove without destination or purpose in a southwesterly direction eventually reaching the Oklahoma Turnpike. Eddings had in the car a shotgun and several rifles he had taken from his father. After he momentarily lost control of the car, he was signalled to pull over by Officer Crabtree of the Oklahoma Highway Patrol. Eddings did so, and when the officer approached the car, Eddings stuck a loaded shotgun out of the window and fired, killing the officer.Because Eddings was a juvenile, the State moved to have him certified to stand trial as an adult. Finding that there was prosecutive merit to the complaint and that Eddings was not amenable to rehabilitation within the juvenile system, the trial court granted the motion. The ruling was affirmed on appeal. In re M. E., 584 P.2d 1340 (Okla. Crim. App.), cert. denied sub nom. Eddings v. Oklahoma, . Eddings was then charged with murder in the first degree, and the District Court of Creek County found him guilty upon his plea of nolo contendere.The Oklahoma death penalty statute provides in pertinent part: "Upon conviction ... of guilt of a defendant of murder in the first degree, the court shall conduct a separate sentencing proceeding to determine whether the defendant should be sentenced to death or life imprisonment... . In the sentencing proceeding, evidence may be presented as to any mitigating circumstances or as to any of the aggravating circumstances enumerated in this act." Okla. Stat., Tit. 21, 701.10 (1980) (emphasis added). Section 701.12 lists seven separate aggravating circumstances; the statute nowhere defines what is meant by "any mitigating circumstances."At the sentencing hearing, the State alleged three of the aggravating circumstances enumerated in the statute: that the murder was especially heinous, atrocious, or cruel, that the crime was committed for the purpose of avoiding or preventing a lawful arrest, and that there was a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. 701.12(4), (5), and (7).In mitigation, Eddings presented substantial evidence at the hearing of his troubled youth. The testimony of his supervising Juvenile Officer indicated that Eddings had been raised without proper guidance. His parents were divorced when he was 5 years old, and until he was 14 Eddings lived with his mother without rules or supervision. App. 109. There is the suggestion that Eddings' mother was an alcoholic and possibly a prostitute. Id., at 110-111. By the time Eddings was 14 he no longer could be controlled, and his mother sent him to live with his father. But neither could the father control the boy. Attempts to reason and talk gave way to physical punishment. The Juvenile Officer testified that Eddings was frightened and bitter, that his father overreacted and used excessive physical punishment: "Mr. Eddings found the only thing that he thought was effectful with the boy was actual punishment, or physical violence - hitting with a strap or something like this."1 Id., at 121.Testimony from other witnesses indicated that Eddings was emotionally disturbed in general and at the time of the crime, and that his mental and emotional development were at a level several years below his age. Id., at 134, 149, and 173. A state psychologist stated that Eddings had a sociopathic or antisocial personality and that approximately 30% of youths suffering from such a disorder grew out of it as they aged. Id., at 137 and 139. A sociologist specializing in juvenile offenders testified that Eddings was treatable. Id., at 149. A psychiatrist testified that Eddings could be rehabilitated by intensive therapy over a 15- to 20-year period. Id., at 181. He testified further that Eddings "did pull the trigger, he did kill someone, but I don't even think he knew that he was doing it."2 The psychiatrist suggested that, if treated, Eddings would no longer pose a serious threat to society. Id., at 180-181.At the conclusion of all the evidence, the trial judge weighed the evidence of aggravating and mitigating circumstances. He found that the State had proved each of the three alleged aggravating circumstances beyond a reasonable doubt.3 Turning to the evidence of mitigating circumstances, the judge found that Eddings' youth was a mitigating factor of great weight: "I have given very serious consideration to the youth of the Defendant when this particular crime was committed. Should I fail to do this, I think I would not be carrying out my duty." Id., at 188-189. But he would not consider in mitigation the circumstances of Eddings' unhappy upbringing and emotional disturbance: "[T]he Court cannot be persuaded entirely by the ... fact that the youth was sixteen years old when this heinous crime was committed. Nor can the Court in following the law, in my opinion, consider the fact of this young man's violent background." Id., at 189 (emphasis added). Finding that the only mitigating circumstance was Eddings' youth and finding further that this circumstance could not outweigh the aggravating circumstances present, the judge sentenced Eddings to death.The Court of Criminal Appeals affirmed the sentence of death. 616 P.2d 1159 (1980). It found that each of the aggravating circumstances alleged by the State had been present.4 It recited the mitigating evidence presented by Eddings in some detail, but in the end it agreed with the trial court that only the fact of Eddings' youth was properly considered as a mitigating circumstance: "[Eddings] also argues his mental state at the time of the murder. He stresses his family history in saying he was suffering from severe psychological and emotional disorders, and that the killing was in actuality an inevitable product of the way he was raised. There is no doubt that the petitioner has a personality disorder. But all the evidence tends to show that he knew the difference between right and wrong at the time he pulled the trigger, and that is the test of criminal responsibility in this State. For the same reason, the petitioner's family history is useful in explaining why he behaved the way he did, but it does not excuse his behaviour." Id., at 1170 (citation omitted).IIIn Lockett v. Ohio, , CHIEF JUSTICE BURGER, writing for the plurality, stated the rule that we apply today:5 "[W]e conclude that the Eighth and Fourteenth Amendments require that the sentencer ... not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Id., at 604 (emphasis in original). Recognizing "that the imposition of death by public authority is ... profoundly different from all other penalties," the plurality held that the sentencer must be free to give "independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation ... ." Id., at 605. Because the Ohio death penalty statute only permitted consideration of three mitigating circumstances, the Court found the statute to be invalid.As THE CHIEF JUSTICE explained, the rule in Lockett is the product of a considerable history reflecting the law's effort to develop a system of capital punishment at once consistent and principled but also humane and sensible to the uniqueness of the individual. Since the early days of the common law, the legal system has struggled to accommodate these twin objectives. Thus, the common law began by treating all criminal homicides as capital offenses, with a mandatory sentence of death. Later it allowed exceptions, first through an exclusion for those entitled to claim benefit of clergy and then by limiting capital punishment to murders upon "malice prepensed." In this country we attempted to soften the rigor of the system of mandatory death sentences we inherited from England, first by grading murder into different degrees of which only murder of the first degree was a capital offense and then by committing use of the death penalty to the absolute discretion of the jury. By the time of our decision in Furman v. Georgia, , the country had moved so far from a mandatory system that the imposition of capital punishment frequently had become arbitrary and capricious.Beginning with Furman, the Court has attempted to provide standards for a constitutional death penalty that would serve both goals of measured, consistent application and fairness to the accused. Thus, in Gregg v. Georgia, , the principal opinion held that the danger of an arbitrary and capricious death penalty could be met "by a carefully drafted statute that ensures that the sentencing authority is given adequate information and guidance." Id., at 195. By its requirement that the jury find one of the aggravating circumstances listed in the death penalty statute, and by its direction to the jury to consider "any mitigating circumstances," the Georgia statute properly confined and directed the jury's attention to the circumstances of the particular crime and to "the characteristics of the person who committed the crime ... ." Id., at 197.6 Similarly, in Woodson v. North Carolina, , the plurality held that mandatory death sentencing was not a permissible response to the problem of arbitrary jury discretion. As the history of capital punishment had shown, such an approach to the problem of discretion could not succeed while the Eighth Amendment required that the individual be given his due: "the fundamental respect for humanity underlying the Eight Amendment ... requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." Id., at 304.7 See Roberts (Harry) v. Louisiana, ; Roberts (Stanislaus) v. Louisiana, .Thus, the rule in Lockett followed from the earlier decisions of the Court and from the Court's insistence that capital punishment be imposed fairly, and with reasonable consistency, or not at all. By requiring that the sentencer be permitted to focus "on the characteristics of the person who committed the crime," Gregg v. Georgia, supra, at 197, the rule in Lockett recognizes that "justice ... requires ... that there be taken into account the circumstances of the offense together with the character and propensities of the offender." Pennsylvania v. Ashe, . By holding that the sentencer in capital cases must be permitted to consider any relevant mitigating factor, the rule in Lockett recognizes that a consistency produced by ignoring individual differences is a false consistency.IIIWe now apply the rule in Lockett to the circumstances of this case. The trial judge stated that "in following the law," he could not "consider the fact of this young man's violent background." App. 189. There is no dispute that by "violent background" the trial judge was referring to the mitigating evidence of Eddings' family history.8 From this statement it is clear that the trial judge did not evaluate the evidence in mitigation and find it wanting as a matter of fact; rather he found that as a matter of law he was unable even to consider the evidence.The Court of Criminal Appeals took the same approach. It found that the evidence in mitigation was not relevant because it did not tend to provide a legal excuse from criminal responsibility. Thus the court conceded that Eddings had a "personality disorder," but cast this evidence aside on the basis that "he knew the difference between right and wrong ... and that is the test of criminal responsibility." 616 P.2d, at 1170. Similarly, the evidence of Eddings' family history was "useful in explaining" his behavior, but it did not "excuse" the behaviour. From these statements it appears that the Court of Criminal Appeals also considered only that evidence to be mitigating which would tend to support a legal excuse from criminal liability.We find that the limitations placed by these courts upon the mitigating evidence they would consider violated the rule in Lockett.9 Just as the State may not by statute preclude the sentencer from considering any mitigating factor, neither may the sentencer refuse to consider, as a matter of law, any relevant mitigating evidence. In this instance, it was as if the trial judge had instructed a jury to disregard the mitigating evidence Eddings proffered on his behalf. The sentencer, and the Court of Criminal Appeals on review, may determine the weight to be given relevant mitigating evidence. But they may not give it no weight by excluding such evidence from their consideration.10 Nor do we doubt that the evidence Eddings offered was relevant mitigating evidence. Eddings was a youth of 16 years at the time of the murder. Evidence of a difficult family history and of emotional disturbance is typically introduced by defendants in mitigation. See McGautha v. California, , 193 (1971). In some cases, such evidence properly may be given little weight. But when the defendant was 16 years old at the time of the offense there can be no doubt that evidence of a turbulent family history, of beatings by a harsh father, and of severe emotional disturbance is particularly relevant.The trial judge recognized that youth must be considered a relevant mitigating factor. But youth is more than a chronological fact. It is a time and condition of life when a person may be most susceptible to influence and to psychological damage.11 Our history is replete with laws and judicial recognition that minors, especially in their earlier years, generally are less mature and responsible than adults.12 Particularly "during the formative years of childhood and adolescence, minors often lack the experience, perspective, and judgment" expected of adults. Bellotti v. Baird, .Even the normal 16-year-old customarily lacks the maturity of an adult. In this case, Eddings was not a normal 16-year-old; he had been deprived of the care, concern, and paternal attention that children deserve. On the contrary, it is not disputed that he was a juvenile with serious emotional problems, and had been raised in a neglectful, sometimes even violent, family background. In addition, there was testimony that Eddings' mental and emotional development were at a level several years below his chronological age. All of this does not suggest an absence of responsibility for the crime of murder, deliberately committed in this case. Rather, it is to say that just as the chronological age of a minor is itself a relevant mitigating factor of great weight, so must the background and mental and emotional development of a youthful defendant be duly considered in sentencing.We are not unaware of the extent to which minors engage increasingly in violent crime.13 Nor do we suggest an absence of legal responsibility where crime is committed by a minor. We are concerned here only with the manner of the imposition of the ultimate penalty: the death sentence imposed for the crime of murder upon an emotionally disturbed youth with a disturbed child's immaturity. On remand, the state courts must consider all relevant mitigating evidence and weigh it against the evidence of the aggravating circumstances. We do not weight the evidence for them. Accordingly, the judgment is reversed to the extent that it sustains the imposition of the death penalty, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered.

Appellees challenge the constitutionality of 5 (b) of the Food Stamp Act of 1964, as amended in 1971, providing that "[a]ny household which includes a member who has reached his eighteenth birthday and who is claimed as a dependent child for Federal income tax purposes by a taxpayer who is not a member of an eligible household, shall be ineligible to participate in any food stamp program ... during the tax period such dependency is claimed and for a period of one year after the expiration of such tax period." This provision was generated by congressional concern over nonneedy households participating in the food stamp program, and abuses of the program by "college students" and "children of wealthy parents." The District Court held the provision unconstitutional, finding that it went far beyond the congressional goal, and operated inflexibly to deny stamps to households, containing no college students, that had established clear eligibility for stamps and remained in dire need, only because a member of the household 18 years or older is claimed by someone as a tax dependent. Held: The tax deduction taken for the benefit of the parent in a prior year is not a rational measure of the need of a different household with which the child of the tax-deducting parent lives, and the administration of the Act allows no hearing to show that the tax deduction is irrelevant to the need of the household. Section 5 (b) therefore violates due process. Pp. 511-514. 348 F. Supp. 242, affirmed.DOUGLAS, J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, and MARSHALL, JJ., joined. STEWART, J., post, p. 514, and MARSHALL, J., post, p. 517, filed concurring opinions. BLACKMUN, J., filed a dissenting opinion, post, p. 520. REHNQUIST, J., filed a dissenting opinion, in which BURGER, C. J., and POWELL, J., joined, post, p. 522. Keith A. Jones argued the cause for appellants. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Wood, Walter H. Fleischer, and William Kanter.Ronald F. Pollack argued the cause for appellees. With him on the brief was Roger A. Schwartz.MR. JUSTICE DOUGLAS delivered the opinion of the Court.The Food Stamp Act of 1964, 7 U.S.C. 2011 et seq., as amended in 1971, 84 Stat. 2048, has been applied to these appellees so as to lead the three-judge District Court to hold one provision of it unconstitutional. 348 F. Supp. 242. We noted probable jurisdiction. .Appellee Murry has two sons and ten grandchildren in her household. Her monthly income is $57.50, which comes from her ex-husband as support for her sons. Her expenses far exceed her monthly income. By payment, however, of $11 she received $128 in food stamps. But she has now been denied food stamps because her ex-husband (who has remarried) had claimed her two sons and one grandchild as tax dependents in his 1971 income tax return. That claim, plus the fact that her eldest son is 19 years old, disqualified her household for food stamps under 5 (b) of the Act.1 Appellee Alderete is in comparable straits because her ex-husband claimed the five children, who live with their mother, as tax dependents, the oldest being 18 years old. Appellee Beavert's case is similar. Appellee Lee is the mother of five children, her entire income per month being $23 derived from public assistance. Her five children live with her. Her monthly bills are $249, of which $148 goes for food. Her husband is not a member of her household; he in fact deserted her and has supplied his family with no support. But he claimed the two oldest sons, ages 20 and 18, as tax dependents in his 1971 tax return, with the result that the wife's household was denied food stamps. Appellee Nevarez is in comparable straits.Appellee Joe Valdez is 18 years old and married; and he and his wife have a child. He lives wholly on public assistance and applied for food stamps. His application was rejected because his father Ben claimed him as a tax dependent in his 1971 income tax return. Joe receives no support from Ben because Ben is in debt and unable to help support Joe.Appellee Broderson is 18 and married to a 16-year-old wife and they have a small child. Their monthly income is $110 consisting of his wages at a service station. He cannot get food stamps because his father claimed him as a tax dependent. The father, however, gives him no support.Appellee Schultz is 19 years old and she resides with a girl friend and the latter's two children. Appellee Schultz has no income of any kind but received food stamps for the household where she lived. Food stamps, however, were discontinued when her parents claimed her as a tax dependent but refused to give her any aid. She soon got married, but she and her husband were denied food stamps because her parents had claimed her for tax dependency.These appellees brought a class action to enjoin the enforcement of the tax dependency provision of the Act; and, as noted, the three-judge court granted the relief.Appellees are members of households that have been denied food stamp eligibility solely because the households contain persons 18 years or older who have been claimed as "dependents" for federal income tax purposes by taxpayers who are themselves ineligible for food stamp relief. Section 5 (b) makes the entire household of which a "tax dependent" was a member ineligible for food stamps for two years: (1) during the tax year for which the dependency was claimed and (2) during the next 12 months. During these two periods of time 5 (b) creates a conclusive presumption that the "tax dependent's" household is not needy and has access to nutritional adequacy. The Acting Administrator of the Food and Nutrition Service of the Department of Agriculture admitted in this case that:"[I]n the case of households which have initially been determined to be ineligible for participation in the program on the basis of tax dependency, there are no factual issues to be presented or challenged by the household at such a hearing, other than the issue of whether or not a member of the household has been claimed as a dependent child by a taxpayer who is not a member of a household eligible for food assistance (a fact the household, in most cases, already will have disclosed in its application). If a household states that it has such a tax dependent member, the household is, in conformity with the Food Stamp Act, the program regulations, and the instructions of FNS governing the program administration by State agencies, determined to be ineligible." App. 83. Thus, in the administration of the Act, a hearing is denied, and is not available as the dissent implies. As stated by the District Court the Act creates "an irrebuttable presumption contrary to fact." 348 F. Supp., at 243. Moreover, an income tax return is filed, say in April 1973, for the year 1972. When the dependency deduction is filed, the year for which the dependency claim was made has already passed. Therefore the disqualification for food stamps cannot apply to 1972 but only to 1973.The tax dependency provision was generated by congressional concern about nonneedy households participating in the food stamp program.2 The legislative history reflects a concern about abuses of the program by "college students, children of wealthy parents."3 But, as the District Court said, the Act goes far beyond that goal and its operation is inflexible. "Households containing no college student, that had established clear eligibility for Food Stamps and which still remain in dire need and otherwise eligible are now denied stamps if it appears that a household member 18 years or older is claimed by someone as a tax dependent." 348 F. Supp., at 243.Tax dependency in a prior year seems to have no relation to the "need" of the dependent in the following year. It doubtless is much easier from the administrative point of view to have a simple tax "dependency" test that will automatically - without hearing, without witnesses, without findings of fact - terminate a household's claim for eligibility for food stamps. Yet, as we recently stated in Stanley v. Illinois, :"[I]t may be argued that unmarried fathers are so seldom fit that Illinois need not undergo the administrative inconvenience of inquiry in any case, including Stanley's. The establishment of prompt efficacious procedures to achieve legitimate state ends is a proper state interest worthy of cognizance in constitutional adjudication. But the Constitution recognizes higher values than speed and efficiency. Indeed, one might fairly say of the Bill of Rights in general, and the Due Process Clause in particular, that they were designed to protect the fragile values of a vulnerable citizenry from the over-bearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones." We have difficulty in concluding that it is rational to assume that a child is not indigent this year because the parent declared the child as a dependent in his tax return for the prior year. But even on that assumption our problem is not at an end. Under the Act the issue is not the indigency of the child but the indigency of a different household with which the child happens to be living. Members of that different household are denied food stamps if one of its present members was used as a tax deduction in the past year by his parents even though the remaining members have no relation to the parent who used the tax deduction, even though they are completely destitute, and even though they are one, or 10 or 20 in number. We conclude that the deduction taken for the benefit of the parent in the prior year is not a rational measure of the need of a different household with which the child of the tax-deducting parent lives and rests on an irrebuttable presumption often contrary to fact. It therefore lacks critical ingredients of due process found wanting in Vlandis v. Kline, ; Stanley v. Illinois, supra; and Bell v. Burson, . Affirmed.

[Footnote *] Together with No. 760, Vignera v. New York, on certiorari to the Court of Appeals of New York and No. 761, Westover v. United States, on certiorari to the United States Court of Appeals for the Ninth Circuit, both argued February 28 - March 1, 1966; and No. 584, California v. Stewart, on certiorari to the Supreme Court of California, argued February 28 - March 2, 1966. In each of these cases the defendant while in police custody was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. None of the defendants was given a full and effective warning of his rights at the outset of the interrogation process. In all four cases the questioning elicited oral admissions, and in three of them signed statements as well, which were admitted at their trials. All defendants were convicted and all convictions, except in No. 584, were affirmed on appeal. Held: 1. The prosecution may not use statements, whether exculpatory or inculpatory, stemming from questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way, unless it demonstrates the use of procedural safeguards effective to secure the Fifth Amendment's privilege against self-incrimination. Pp. 444-491. (a) The atmosphere and environment of incommunicado interrogation as it exists today is inherently intimidating and works to undermine the privilege against self-incrimination. Unless adequate preventive measures are taken to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice. Pp. 445-458. (b) The privilege against self-incrimination, which has had a long and expansive historical development, is the essential mainstay of our adversary system and guarantees to the individual the "right to remain silent unless he chooses to speak in the unfettered exercise of his own will," during a period of custodial interrogation as well as in the courts or during the course of other official investigations. Pp. 458-465. (c) The decision in Escobedo v. Illinois, , stressed the need for protective devices to make the process of police interrogation conform to the dictates of the privilege. Pp. 465-466. (d) In the absence of other effective measures the following procedures to safeguard the Fifth Amendment privilege must be observed: The person in custody must, prior to interrogation, be clearly informed that he has the right to remain silent, and that anything he says will be used against him in court; he must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation, and that, if he is indigent, a lawyer will be appointed to represent him. Pp. 467-473. (e) If the individual indicates, prior to or during questioning, that he wishes to remain silent, the interrogation must cease; if he states that he wants an attorney, the questioning must cease until an attorney is present. Pp. 473-474. (f) Where an interrogation is conducted without the presence of an attorney and a statement is taken, a heavy burden rests on the Government to demonstrate that the defendant knowingly and intelligently waived his right to counsel. P. 475. (g) Where the individual answers some questions during incustody interrogation he has not waived his privilege and may invoke his right to remain silent thereafter. Pp. 475-476. (h) The warnings required and the waiver needed are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement, inculpatory or exculpatory, made by a defendant. Pp. 476-477. 2. The limitations on the interrogation process required for the protection of the individual's constitutional rights should not cause an undue interference with a proper system of law enforcement, as demonstrated by the procedures of the FBI and the safeguards afforded in other jurisdictions. Pp. 479-491. 3. In each of these cases the statements were obtained under circumstances that did not meet constitutional standards for protection of the privilege against self-incrimination. Pp. 491-499. 98 Ariz. 18, 401 P.2d 721; 15 N. Y. 2d 970, 207 N. E. 2d 527; 16 N. Y. 2d 614, 209 N. E. 2d 110; 342 F.2d 684, reversed; 62 Cal. 2d 571, 400 P.2d 97, affirmed. John J. Flynn argued the cause for petitioner in No. 759. With him on the brief was John P. Frank. Victor M. Earle III argued the cause and filed a brief for petitioner in No. 760. F. Conger Fawcett argued the cause and filed a brief for petitioner in No. 761. Gordon Ringer, Deputy Attorney General of California, argued the cause for petitioner in No. 584. With him on the briefs were Thomas C. Lynch, Attorney General, and William E. James, Assistant Attorney General.Gary K. Nelson, Assistant Attorney General of Arizona, argued the cause for respondent in No. 759. With him on the brief was Darrell F. Smith, Attorney General. William I. Siegel argued the cause for respondent in No. 760. With him on the brief was Aaron E. Koota. Solicitor General Marshall argued the cause for the United States in No. 761. With him on the brief were Assistant Attorney General Vinson, Ralph S. Spritzer, Nathan Lewin, Beatrice Rosenberg and Ronald L. Gainer. William A. Norris, by appointment of the Court, , argued the cause and filed a brief for respondent in No. 584.Telford Taylor, by special leave of Court, argued the cause for the State of New York, as amicus curiae, in all cases. With him on the brief were Louis J. Lefkowitz, Attorney General of New York, Samuel A. Hirshowitz, First Assistant Attorney General, and Barry Mahoney and George D. Zuckerman, Assistant Attorneys General, joined by the Attorneys General for their respective States and jurisdictions as follows: Richmond M. Flowers of Alabama, Darrell F. Smith of Arizona, Bruce Bennett of Arkansas, Duke W. Dunbar of Colorado, David P. Buckson of Delaware, Earl Faircloth of Florida, Arthur K. Bolton of Georgia, Allan G. Shepard of Idaho, William G. Clark of Illinois, Robert C. Londerholm of Kansas, Robert Matthews of Kentucky, Jack P. F. Gremillion of Louisiana, Richard J. Dubord of Maine, Thomas B. Finan of Maryland, Norman H. Anderson of Missouri, Forrest H. Anderson of Montana, Clarence A. H. Meyer of Nebraska, T. Wade Bruton of North Carolina, Helgi Johanneson of North Dakota, Robert Y. Thornton of Oregon, Walter E. Alessandroni of Pennsylvania, J. Joseph Nugent of Rhode Island, Daniel R. McLeod of South Carolina, Waggoner Carr of Texas, Robert Y. Button of Virginia, John J. O'Connell of Washington, C. Donald Robertson of West Virginia, John F. Raper of Wyoming, Rafael Hernandez Colon of Puerto Rico and Francisco Corneiro of the Virgin Islands.Duane R. Nedrud, by special leave of Court, argued the cause for the National District Attorneys Association, as amicus curiae, urging affirmance in Nos. 759 and 760, and reversal in No. 584. With him on the brief was Marguerite D. Oberto.Anthony G. Amsterdam, Paul J. Mishkin, Raymond L. Bradley, Peter Hearn and Melvin L. Wulf filed a brief for the American Civil Liberties Union, as amicus curiae, in all cases.MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.The cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime. More specifically, we deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself. We dealt with certain phases of this problem recently in Escobedo v. Illinois, . There, as in the four cases before us, law enforcement officials took the defendant into custody and interrogated him in a police station for the purpose of obtaining a confession. The police did not effectively advise him of his right to remain silent or of his right to consult with his attorney. Rather, they confronted him with an alleged accomplice who accused him of having perpetrated a murder. When the defendant denied the accusation and said "I didn't shoot Manuel, you did it," they handcuffed him and took him to an interrogation room. There, while handcuffed and standing, he was questioned for four hours until he confessed. During this interrogation, the police denied his request to speak to his attorney, and they prevented his retained attorney, who had come to the police station, from consulting with him. At his trial, the State, over his objection, introduced the confession against him. We held that the statements thus made were constitutionally inadmissible.This case has been the subject of judicial interpretation and spirited legal debate since it was decided two years ago. Both state and federal courts, in assessing its implications, have arrived at varying conclusions.1 A wealth of scholarly material has been written tracing its ramifications and underpinnings.2 Police and prosecutor have speculated on its range and desirability.3 We granted certiorari in these cases, , 937, in order further to explore some facets of the problems, thus exposed, of applying the privilege against self-incrimination to in-custody interrogation, and to give concrete constitutional guidelines for law enforcement agencies and courts to follow.We start here, as we did in Escobedo, with the premise that our holding is not an innovation in our jurisprudence, but is an application of principles long recognized and applied in other settings. We have undertaken a thorough re-examination of the Escobedo decision and the principles it announced, and we reaffirm it. That case was but an explication of basic rights that are enshrined in our Constitution - that "No person ... shall be compelled in any criminal case to be a witness against himself," and that "the accused shall ... have the Assistance of Counsel" - rights which were put in jeopardy in that case through official overbearing. These precious rights were fixed in our Constitution only after centuries of persecution and struggle. And in the words of Chief Justice Marshall, they were secured "for ages to come, and ... designed to approach immortality as nearly as human institutions can approach it," Cohens v. Virginia, 6 Wheat. 264, 387 (1821).Over 70 years ago, our predecessors on this Court eloquently stated: "The maxim nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which [have] long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, [were] not uncommon even in England. While the admissions or confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the States, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim, which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment." Brown v. Walker, . In stating the obligation of the judiciary to apply these constitutional rights, this Court declared in Weems v. United States, :"... our contemplation cannot be only of what has been but of what may be. Under any other rule a constitution would indeed be as easy of application as it would be deficient in efficacy and power. Its general principles would have little value and be converted by precedent into impotent and lifeless formulas. Rights declared in words might be lost in reality. And this has been recognized. The meaning and vitality of the Constitution have developed against narrow and restrictive construction." This was the spirit in which we delineated, in meaningful language, the manner in which the constitutional rights of the individual could be enforced against overzealous police practices. It was necessary in Escobedo, as here, to insure that what was proclaimed in the Constitution had not become but a "form of words," Silverthorne Lumber Co. v. United States, , in the hands of government officials. And it is in this spirit, consistent with our role as judges, that we adhere to the principles of Escobedo today.Our holding will be spelled out with some specificity in the pages which follow but briefly stated it is this: the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.4 As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently. If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.I.The constitutional issue we decide in each of these cases is the admissibility of statements obtained from a defendant questioned while in custody or otherwise deprived of his freedom of action in any significant way. In each, the defendant was questioned by police officers, detectives, or a prosecuting attorney in a room in which he was cut off from the outside world. In none of these cases was the defendant given a full and effective warning of his rights at the outset of the interrogation process. In all the cases, the questioning elicited oral admissions, and in three of them, signed statements as well which were admitted at their trials. They all thus share salient features - incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights.An understanding of the nature and setting of this in-custody interrogation is essential to our decisions today. The difficulty in depicting what transpires at such interrogations stems from the fact that in this country they have largely taken place incommunicado. From extensive factual studies undertaken in the early 1930's, including the famous Wickersham Report to Congress by a Presidential Commission, it is clear that police violence and the "third degree" flourished at that time.5 In a series of cases decided by this Court long after these studies, the police resorted to physical brutality - beating, hanging, whipping - and to sustained and protracted questioning incommunicado in order to extort confessions.6 The Commission on Civil Rights in 1961 found much evidence to indicate that "some policemen still resort to physical force to obtain confessions," 1961 Comm'n on Civil Rights Rep., Justice, pt. 5, 17. The use of physical brutality and violence is not, unfortunately, relegated to the past or to any part of the country. Only recently in Kings County, New York, the police brutally beat, kicked and placed lighted cigarette butts on the back of a potential witness under interrogation for the purpose of securing a statement incriminating a third party. People v. Portelli, 15 N. Y. 2d 235, 205 N. E. 2d 857, 257 N. Y. S. 2d 931 (1965).7 The examples given above are undoubtedly the exception now, but they are sufficiently widespread to be the object of concern. Unless a proper limitation upon custodial interrogation is achieved - such as these decisions will advance - there can be no assurance that practices of this nature will be eradicated in the foreseeable future. The conclusion of the Wickersham Commission Report, made over 30 years ago, is still pertinent:"To the contention that the third degree is necessary to get the facts, the reporters aptly reply in the language of the present Lord Chancellor of England (Lord Sankey): `It is not admissible to do a great right by doing a little wrong... . It is not sufficient to do justice by obtaining a proper result by irregular or improper means.' Not only does the use of the third degree involve a flagrant violation of law by the officers of the law, but it involves also the dangers of false confessions, and it tends to make police and prosecutors less zealous in the search for objective evidence. As the New York prosecutor quoted in the report said, `It is a short cut and makes the police lazy and unenterprising.' Or, as another official quoted remarked: `If you use your fists, you are not so likely to use your wits.' We agree with the conclusion expressed in the report, that `The third degree brutalizes the police, hardens the prisoner against society, and lowers the esteem in which the administration of justice is held by the public.'" IV National Commission on Law Observance and Enforcement, Report on Lawlessness in Law Enforcement 5 (1931). Again we stress that the modern practice of in-custody interrogation is psychologically rather than physically oriented. As we have stated before, "Since Chambers v. Florida, , this Court has recognized that coercion can be mental as well as physical, and that the blood of the accused is not the only hallmark of an unconstitutional inquisition." Blackburn v. Alabama, . Interrogation still takes place in privacy. Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in the interrogation rooms. A valuable source of information about present police practices, however, may be found in various police manuals and texts which document procedures employed with success in the past, and which recommend various other effective tactics.8 These texts are used by law enforcement agencies themselves as guides.9 It should be noted that these texts professedly present the most enlightened and effective means presently used to obtain statements through custodial interrogation. By considering these texts and other data, it is possible to describe procedures observed and noted around the country.The officers are told by the manuals that the "principal psychological factor contributing to a successful interrogation is privacy - being alone with the person under interrogation."10 The efficacy of this tactic has been explained as follows: "If at all practicable, the interrogation should take place in the investigator's office or at least in a room of his own choice. The subject should be deprived of every psychological advantage. In his own home he may be confident, indignant, or recalcitrant. He is more keenly aware of his rights and more reluctant to tell of his indiscretions or criminal behavior within the walls of his home. Moreover his family and other friends are nearby, their presence lending moral support. In his own office, the investigator possesses all the advantages. The atmosphere suggests the invincibility of the forces of the law."11 To highlight the isolation and unfamiliar surroundings, the manuals instruct the police to display an air of confidence in the suspect's guilt and from outward appearance to maintain only an interest in confirming certain details. The guilt of the subject is to be posited as a fact. The interrogator should direct his comments toward the reasons why the subject committed the act, rather than court failure by asking the subject whether he did it. Like other men, perhaps the subject has had a bad family life, had an unhappy childhood, had too much to drink, had an unrequited desire for women. The officers are instructed to minimize the moral seriousness of the offense,12 to cast blame on the victim or on society.13 These tactics are designed to put the subject in a psychological state where his story is but an elaboration of what the police purport to know already - that he is guilty. Explanations to the contrary are dismissed and discouraged.The texts thus stress that the major qualities an interrogator should possess are patience and perseverance. One writer describes the efficacy of these characteristics in this manner: "In the preceding paragraphs emphasis has been placed on kindness and stratagems. The investigator will, however, encounter many situations where the sheer weight of his personality will be the deciding factor. Where emotional appeals and tricks are employed to no avail, he must rely on an oppressive atmosphere of dogged persistence. He must interrogate steadily and without relent, leaving the subject no prospect of surcease. He must dominate his subject and overwhelm him with his inexorable will to obtain the truth. He should interrogate for a spell of several hours pausing only for the subject's necessities in acknowledgment of the need to avoid a charge of duress that can be technically substantiated. In a serious case, the interrogation may continue for days, with the required intervals for food and sleep, but with no respite from the atmosphere of domination. It is possible in this way to induce the subject to talk without resorting to duress or coercion. The method should be used only when the guilt of the subject appears highly probable."14 The manuals suggest that the suspect be offered legal excuses for his actions in order to obtain an initial admission of guilt. Where there is a suspected revenge-killing, for example, the interrogator may say: "Joe, you probably didn't go out looking for this fellow with the purpose of shooting him. My guess is, however, that you expected something from him and that's why you carried a gun - for your own protection. You knew him for what he was, no good. Then when you met him he probably started using foul, abusive language and he gave some indication that he was about to pull a gun on you, and that's when you had to act to save your own life. That's about it, isn't it, Joe?"15 Having then obtained the admission of shooting, the interrogator is advised to refer to circumstantial evidence which negates the self-defense explanation. This should enable him to secure the entire story. One text notes that "Even if he fails to do so, the inconsistency between the subject's original denial of the shooting and his present admission of at least doing the shooting will serve to deprive him of a self-defense `out' at the time of trial."16 When the techniques described above prove unavailing, the texts recommend they be alternated with a show of some hostility. One ploy often used has been termed the "friendly-unfriendly" or the "Mutt and Jeff" act: "... In this technique, two agents are employed. Mutt, the relentless investigator, who knows the subject is guilty and is not going to waste any time. He's sent a dozen men away for this crime and he's going to send the subject away for the full term. Jeff, on the other hand, is obviously a kindhearted man. He has a family himself. He has a brother who was involved in a little scrape like this. He disapproves of Mutt and his tactics and will arrange to get him off the case if the subject will cooperate. He can't hold Mutt off for very long. The subject would be wise to make a quick decision. The technique is applied by having both investigators present while Mutt acts out his role. Jeff may stand by quietly and demur at some of Mutt's tactics. When Jeff makes his plea for cooperation, Mutt is not present in the room."17 The interrogators sometimes are instructed to induce a confession out of trickery. The technique here is quite effective in crimes which require identification or which run in series. In the identification situation, the interrogator may take a break in his questioning to place the subject among a group of men in a line-up. "The witness or complainant (previously coached, if necessary) studies the line-up and confidently points out the subject as the guilty party."18 Then the questioning resumes "as though there were now no doubt about the guilt of the subject." A variation on this technique is called the "reverse line-up":"The accused is placed in a line-up, but this time he is identified by several fictitious witnesses or victims who associated him with different offenses. It is expected that the subject will become desperate and confess to the offense under investigation in order to escape from the false accusations."19 The manuals also contain instructions for police on how to handle the individual who refuses to discuss the matter entirely, or who asks for an attorney or relatives. The examiner is to concede him the right to remain silent. "This usually has a very undermining effect. First of all, he is disappointed in his expectation of an unfavorable reaction on the part of the interrogator. Secondly, a concession of this right to remain silent impresses the subject with the apparent fairness of his interrogator."20 After this psychological conditioning, however, the officer is told to point out the incriminating significance of the suspect's refusal to talk: "Joe, you have a right to remain silent. That's your privilege and I'm the last person in the world who'll try to take it away from you. If that's the way you want to leave this, O. K. But let me ask you this. Suppose you were in my shoes and I were in yours and you called me in to ask me about this and I told you, `I don't want to answer any of your questions.' You'd think I had something to hide, and you'd probably be right in thinking that. That's exactly what I'll have to think about you, and so will everybody else. So let's sit here and talk this whole thing over."21 Few will persist in their initial refusal to talk, it is said, if this monologue is employed correctly.In the event that the subject wishes to speak to a relative or an attorney, the following advice is tendered: "[T]he interrogator should respond by suggesting that the subject first tell the truth to the interrogator himself rather than get anyone else involved in the matter. If the request is for an attorney, the interrogator may suggest that the subject save himself or his family the expense of any such professional service, particularly if he is innocent of the offense under investigation. The interrogator may also add, `Joe, I'm only looking for the truth, and if you're telling the truth, that's it. You can handle this by yourself.'"22 From these representative samples of interrogation techniques, the setting prescribed by the manuals and observed in practice becomes clear. In essence, it is this: To be alone with the subject is essential to prevent distraction and to deprive him of any outside support. The aura of confidence in his guilt undermines his will to resist. He merely confirms the preconceived story the police seek to have him describe. Patience and persistence, at times relentless questioning, are employed. To obtain a confession, the interrogator must "patiently maneuver himself or his quarry into a position from which the desired objective may be attained."23 When normal procedures fail to produce the needed result, the police may resort to deceptive stratagems such as giving false legal advice. It is important to keep the subject off balance, for example, by trading on his insecurity about himself or his surroundings. The police then persuade, trick, or cajole him out of exercising his constitutional rights.Even without employing brutality, the "third degree" or the specific stratagems described above, the very fact of custodial interrogation exacts a heavy toll on individual liberty and trades on the weakness of individuals.24 This fact may be illustrated simply by referring to three confession cases decided by this Court in the Term immediately preceding our Escobedo decision. In Townsend v. Sain, , the defendant was a 19-year-old heroin addict, described as a "near mental defective," id., at 307-310. The defendant in Lynumn v. Illinois, , was a woman who confessed to the arresting officer after being importuned to "cooperate" in order to prevent her children from being taken by relief authorities. This Court as in those cases reversed the conviction of a defendant in Haynes v. Washington, , whose persistent request during his interrogation was to phone his wife or attorney.25 In other settings, these individuals might have exercised their constitutional rights. In the incommunicado police-dominated atmosphere, they succumbed.In the cases before us today, given this background, we concern ourselves primarily with this interrogation atmosphere and the evils it can bring. In No. 759, Miranda v. Arizona, the police arrested the defendant and took him to a special interrogation room where they secured a confession. In No. 760, Vignera v. New York, the defendant made oral admissions to the police after interrogation in the afternoon, and then signed an inculpatory statement upon being questioned by an assistant district attorney later the same evening. In No. 761, Westover v. United States, the defendant was handed over to the Federal Bureau of Investigation by local authorities after they had detained and interrogated him for a lengthy period, both at night and the following morning. After some two hours of questioning, the federal officers had obtained signed statements from the defendant. Lastly, in No. 584, California v. Stewart, the local police held the defendant five days in the station and interrogated him on nine separate occasions before they secured his inculpatory statement.In these cases, we might not find the defendants' statements to have been involuntary in traditional terms. Our concern for adequate safeguards to protect precious Fifth Amendment rights is, of course, not lessened in the slightest. In each of the cases, the defendant was thrust into an unfamiliar atmosphere and run through menacing police interrogation procedures. The potentiality for compulsion is forcefully apparent, for example, in Miranda, where the indigent Mexican defendant was a seriously disturbed individual with pronounced sexual fantasies, and in Stewart, in which the defendant was an indigent Los Angeles Negro who had dropped out of school in the sixth grade. To be sure, the records do not evince overt physical coercion or patent psychological ploys. The fact remains that in none of these cases did the officers undertake to afford appropriate safeguards at the outset of the interrogation to insure that the statements were truly the product of free choice.It is obvious that such an interrogation environment is created for no purpose other than to subjugate the individual to the will of his examiner. This atmosphere carries its own badge of intimidation. To be sure, this is not physical intimidation, but it is equally destructive of human dignity.26 The current practice of incommunicado interrogation is at odds with one of our Nation's most cherished principles - that the individual may not be compelled to incriminate himself. Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.From the foregoing, we can readily perceive an intimate connection between the privilege against self-incrimination and police custodial questioning. It is fitting to turn to history and precedent underlying the Self-Incrimination Clause to determine its applicability in this situation.II.We sometimes forget how long it has taken to establish the privilege against self-incrimination, the sources from which it came and the fervor with which it was defended. Its roots go back into ancient times.27 Perhaps the critical historical event shedding light on its origins and evolution was the trial of one John Lilburn, a vocal anti-Stuart Leveller, who was made to take the Star Chamber Oath in 1637. The oath would have bound him to answer to all questions posed to him on any subject. The Trial of John Lilburn and John Wharton, 3 How. St. Tr. 1315 (1637). He resisted the oath and declaimed the proceedings, stating: "Another fundamental right I then contended for, was, that no man's conscience ought to be racked by oaths imposed, to answer to questions concerning himself in matters criminal, or pretended to be so." Haller & Davies, The Leveller Tracts 1647-1653, p. 454 (1944). On account of the Lilburn Trial, Parliament abolished the inquisitorial Court of Star Chamber and went further in giving him generous reparation. The lofty principles to which Lilburn had appealed during his trial gained popular acceptance in England.28 These sentiments worked their way over to the Colonies and were implanted after great struggle into the Bill of Rights.29 Those who framed our Constitution and the Bill of Rights were ever aware of subtle encroachments on individual liberty. They knew that "illegitimate and unconstitutional practices get their first footing ... by silent approaches and slight deviations from legal modes of procedure." Boyd v. United States, . The privilege was elevated to constitutional status and has always been "as broad as the mischief against which it seeks to guard." Counselman v. Hitchcock, . We cannot depart from this noble heritage.Thus we may view the historical development of the privilege as one which groped for the proper scope of governmental power over the citizen. As a "noble principle often transcends its origins," the privilege has come rightfully to be recognized in part as an individual's substantive right, a "right to a private enclave where he may lead a private life. That right is the hallmark of our democracy." United States v. Grunewald, 233 F.2d 556, 579, 581-582 (Frank, J., dissenting), rev'd, . We have recently noted that the privilege against self-incrimination - the essential mainstay of our adversary system - is founded on a complex of values, Murphy v. Waterfront Comm'n, , n. 5 (1964); Tehan v. Shott, , n. 12 (1966). All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government - state or federal - must accord to the dignity and integrity of its citizens. To maintain a "fair state-individual balance," to require the government "to shoulder the entire load," 8 Wigmore, Evidence 317 (McNaughton rev. 1961), to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth. Chambers v. Florida, . In sum, the privilege is fulfilled only when the person is guaranteed the right "to remain silent unless he chooses to speak in the unfettered exercise of his own will." Malloy v. Hogan, .The question in these cases is whether the privilege is fully applicable during a period of custodial interrogation. In this Court, the privilege has consistently been accorded a liberal construction. Albertson v. SACB, ; Hoffman v. United States, ; Arndstein v. McCarthy, ; Counselman v. Hitchock, . We are satisfied that all the principles embodied in the privilege apply to informal compulsion exerted by law-enforcement officers during in-custody questioning. An individual swept from familiar surroundings into police custody, surrounded by antagonistic forces, and subjected to the techniques of persuasion described above cannot be otherwise than under compulsion to speak. As a practical matter, the compulsion to speak in the isolated setting of the police station may well be greater than in courts or other official investigations, where there are often impartial observers to guard against intimidation or trickery.30 This question, in fact, could have been taken as settled in federal courts almost 70 years ago, when, in Bram v. United States, , this Court held: "In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the Fifth Amendment ... commanding that no person `shall be compelled in any criminal case to be a witness against himself.'" In Bram, the Court reviewed the British and American history and case law and set down the Fifth Amendment standard for compulsion which we implement today:"Much of the confusion which has resulted from the effort to deduce from the adjudged cases what would be a sufficient quantum of proof to show that a confession was or was not voluntary, has arisen from a misconception of the subject to which the proof must address itself. The rule is not that in order to render a statement admissible the proof must be adequate to establish that the particular communications contained in a statement were voluntarily made, but it must be sufficient to establish that the making of the statement was voluntary; that is to say, that from the causes, which the law treats as legally sufficient to engender in the mind of the accused hope or fear in respect to the crime charged, the accused was not involuntarily impelled to make a statement, when but for the improper influences he would have remained silent... ." 168 U.S., at 549. And see, id., at 542. The Court has adhered to this reasoning. In 1924, Mr. Justice Brandeis wrote for a unanimous Court in reversing a conviction resting on a compelled confession, Wan v. United States, . He stated:"In the federal courts, the requisite of voluntariness is not satisfied by establishing merely that the confession was not induced by a promise or a threat. A confession is voluntary in law if, and only if, it was, in fact, voluntarily made. A confession may have been given voluntarily, although it was made to police officers, while in custody, and in answer to an examination conducted by them. But a confession obtained by compulsion must be excluded whatever may have been the character of the compulsion, and whether the compulsion was applied in a judicial proceeding or otherwise. Bram v. United States, ." 266 U.S., at 14-15. In addition to the expansive historical development of the privilege and the sound policies which have nurtured its evolution, judicial precedent thus clearly establishes its application to incommunicado interrogation. In fact, the Government concedes this point as well established in No. 761, Westover v. United States, stating: "We have no doubt ... that it is possible for a suspect's Fifth Amendment right to be violated during in-custody questioning by a law-enforcement officer."31 Because of the adoption by Congress of Rule 5 (a) of the Federal Rules of Criminal Procedure, and this Court's effectuation of that Rule in McNabb v. United States, , and Mallory v. United States, , we have had little occasion in the past quarter century to reach the constitutional issues in dealing with federal interrogations. These supervisory rules, requiring production of an arrested person before a commissioner "without unnecessary delay" and excluding evidence obtained in default of that statutory obligation, were nonetheless responsive to the same considerations of Fifth Amendment policy that unavoidably face us now as to the States. In McNabb, 318 U.S., at 343-344, and in Mallory, 354 U.S., at 455-456, we recognized both the dangers of interrogation and the appropriateness of prophylaxis stemming from the very fact of interrogation itself.32 Our decision in Malloy v. Hogan, , necessitates an examination of the scope of the privilege in state cases as well. In Malloy, we squarely held the privilege applicable to the States, and held that the substantive standards underlying the privilege applied with full force to state court proceedings. There, as in Murphy v. Waterfront Comm'n, , and Griffin v. California, , we applied the existing Fifth Amendment standards to the case before us. Aside from the holding itself, the reasoning in Malloy made clear what had already become apparent - that the substantive and procedural safeguards surrounding admissibility of confessions in state cases had become exceedingly exacting, reflecting all the policies embedded in the privilege, 378 U.S., at 7-8.33 The voluntariness doctrine in the state cases, as Malloy indicates, encompasses all interrogation practices which are likely to exert such pressure upon an individual as to disable him from making a free and rational choice.34 The implications of this proposition were elaborated in our decision in Escobedo v. Illinois, , decided one week after Malloy applied the privilege to the States.Our holding there stressed the fact that the police had not advised the defendant of his constitutional privilege to remain silent at the outset of the interrogation, and we drew attention to that fact at several points in the decision, 378 U.S., at 483, 485, 491. This was no isolated factor, but an essential ingredient in our decision. The entire thrust of police interrogation there, as in all the cases today, was to put the defendant in such an emotional state as to impair his capacity for rational judgment. The abdication of the constitutional privilege - the choice on his part to speak to the police - was not made knowingly or competently because of the failure to apprise him of his rights; the compelling atmosphere of the in-custody interrogation, and not an independent decision on his part, caused the defendant to speak.A different phase of the Escobedo decision was significant in its attention to the absence of counsel during the questioning. There, as in the cases today, we sought a protective device to dispel the compelling atmosphere of the interrogation. In Escobedo, however, the police did not relieve the defendant of the anxieties which they had created in the interrogation rooms. Rather, they denied his request for the assistance of counsel, 378 U.S., at 481, 488, 491.35 This heightened his dilemma, and made his later statements the product of this compulsion. Cf. Haynes v. Washington, . The denial of the defendant's request for his attorney thus undermined his ability to exercise the privilege - to remain silent if he chose or to speak without any intimidation, blatant or subtle. The presence of counsel, in all the cases before us today, would be the adequate protective device necessary to make the process of police interrogation conform to the dictates of the privilege. His presence would insure that statements made in the government-established atmosphere are not the product of compulsion.It was in this manner that Escobedo explicated another facet of the pre-trial privilege, noted in many of the Court's prior decisions: the protection of rights at trial.36 That counsel is present when statements are taken from an individual during interrogation obviously enhances the integrity of the fact-finding processes in court. The presence of an attorney, and the warnings delivered to the individual, enable the defendant under otherwise compelling circumstances to tell his story without fear, effectively, and in a way that eliminates the evils in the interrogation process. Without the protections flowing from adequate warnings and the rights of counsel, "all the careful safeguards erected around the giving of testimony, whether by an accused or any other witness, would become empty formalities in a procedure where the most compelling possible evidence of guilt, a confession, would have already been obtained at the unsupervised pleasure of the police." Mapp v. Ohio, (HARLAN, J., dissenting). Cf. Pointer v. Texas, . III.Today, then, there can be no doubt that the Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves. We have concluded that without proper safeguards the process of in-custody interrogation of persons suspected or accused of crime contains inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely. In order to combat these pressures and to permit a full opportunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised of his rights and the exercise of those rights must be fully honored.It is impossible for us to foresee the potential alternatives for protecting the privilege which might be devised by Congress or the States in the exercise of their creative rule-making capacities. Therefore we cannot say that the Constitution necessarily requires adherence to any particular solution for the inherent compulsions of the interrogation process as it is presently conducted. Our decision in no way creates a constitutional straitjacket which will handicap sound efforts at reform, nor is it intended to have this effect. We encourage Congress and the States to continue their laudable search for increasingly effective ways of protecting the rights of the individual while promoting efficient enforcement of our criminal laws. However, unless we are shown other procedures which are at least as effective in apprising accused persons of their right of silence and in assuring a continuous opportunity to exercise it, the following safeguards must be observed.At the outset, if a person in custody is to be subjected to interrogation, he must first be informed in clear and unequivocal terms that he has the right to remain silent. For those unaware of the privilege, the warning is needed simply to make them aware of it - the threshold requirement for an intelligent decision as to its exercise. More important, such a warning is an absolute prerequisite in overcoming the inherent pressures of the interrogation atmosphere. It is not just the subnormal or woefully ignorant who succumb to an interrogator's imprecations, whether implied or expressly stated, that the interrogation will continue until a confession is obtained or that silence in the face of accusation is itself damning and will bode ill when presented to a jury.37 Further, the warning will show the individual that his interrogators are prepared to recognize his privilege should he choose to exercise it.The Fifth Amendment privilege is so fundamental to our system of constitutional rule and the expedient of giving an adequate warning as to the availability of the privilege so simple, we will not pause to inquire in individual cases whether the defendant was aware of his rights without a warning being given. Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation;38 a warning is a clearcut fact. More important, whatever the background of the person interrogated, a warning at the time of the interrogation is indispensable to overcome its pressures and to insure that the individual knows he is free to exercise the privilege at that point in time.The warning of the right to remain silent must be accompanied by the explanation that anything said can and will be used against the individual in court. This warning is needed in order to make him aware not only of the privilege, but also of the consequences of forgoing it. It is only through an awareness of these consequences that there can be any assurance of real understanding and intelligent exercise of the privilege. Moreover, this warning may serve to make the individual more acutely aware that he is faced with a phase of the adversary system - that he is not in the presence of persons acting solely in his interest.The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual's right to choose between silence and speech remains unfettered throughout the interrogation process. A once-stated warning, delivered by those who will conduct the interrogation, cannot itself suffice to that end among those who most require knowledge of their rights. A mere warning given by the interrogators is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of the right to remain silent without more "will benefit only the recidivist and the professional." Brief for the National District Attorneys Association as amicus curiae, p. 14. Even preliminary advice given to the accused by his own attorney can be swiftly overcome by the secret interrogation process. Cf. Escobedo v. Illinois, , n. 5. Thus, the need for counsel to protect the Fifth Amendment privilege comprehends not merely a right to consult with counsel prior to questioning, but also to have counsel present during any questioning if the defendant so desires.The presence of counsel at the interrogation may serve several significant subsidiary functions as well. If the accused decides to talk to his interrogators, the assistance of counsel can mitigate the dangers of untrustworthiness. With a lawyer present the likelihood that the police will practice coercion is reduced, and if coercion is nevertheless exercised the lawyer can testify to it in court. The presence of a lawyer can also help to guarantee that the accused gives a fully accurate statement to the police and that the statement is rightly reported by the prosecution at trial. See Crooker v. California, (DOUGLAS, J., dissenting).An individual need not make a pre-interrogation request for a lawyer. While such request affirmatively secures his right to have one, his failure to ask for a lawyer does not constitute a waiver. No effective waiver of the right to counsel during interrogation can be recognized unless specifically made after the warnings we here delineate have been given. The accused who does not know his rights and therefore does not make a request may be the person who most needs counsel. As the California Supreme Court has aptly put it: "Finally, we must recognize that the imposition of the requirement for the request would discriminate against the defendant who does not know his rights. The defendant who does not ask for counsel is the very defendant who most needs counsel. We cannot penalize a defendant who, not understanding his constitutional rights, does not make the formal request and by such failure demonstrates his helplessness. To require the request would be to favor the defendant whose sophistication or status had fortuitously prompted him to make it." People v. Dorado, 62 Cal. 2d 338, 351, 398 P.2d 361, 369-370, 42 Cal. Rptr. 169, 177-178 (1965) (Tobriner, J.). In Carnley v. Cochran, , we stated: "[I]t is settled that where the assistance of counsel is a constitutional requisite, the right to be furnished counsel does not depend on a request." This proposition applies with equal force in the context of providing counsel to protect an accused's Fifth Amendment privilege in the face of interrogation.39 Although the role of counsel at trial differs from the role during interrogation, the differences are not relevant to the question whether a request is a prerequisite.Accordingly we hold that an individual held for interrogation must be clearly informed that he has the right to consult with a lawyer and to have the lawyer with him during interrogation under the system for protecting the privilege we delineate today. As with the warnings of the right to remain silent and that anything stated can be used in evidence against him, this warning is an absolute prerequisite to interrogation. No amount of circumstantial evidence that the person may have been aware of this right will suffice to stand in its stead: Only through such a warning is there ascertainable assurance that the accused was aware of this right.If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney. The financial ability of the individual has no relationship to the scope of the rights involved here. The privilege against self-incrimination secured by the Constitution applies to all individuals. The need for counsel in order to protect the privilege exists for the indigent as well as the affluent. In fact, were we to limit these constitutional rights to those who can retain an attorney, our decisions today would be of little significance. The cases before us as well as the vast majority of confession cases with which we have dealt in the past involve those unable to retain counsel.40 While authorities are not required to relieve the accused of his poverty, they have the obligation not to take advantage of indigence in the administration of justice.41 Denial of counsel to the indigent at the time of interrogation while allowing an attorney to those who can afford one would be no more supportable by reason or logic than the similar situation at trial and on appeal struck down in Gideon v. Wainwright, , and Douglas v. California, .In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent - the person most often subjected to interrogation - the knowledge that he too has a right to have counsel present.42 As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it.43 Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.44 At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.This does not mean, as some have suggested, that each police station must have a "station house lawyer" present at all times to advise prisoners. It does mean, however, that if police propose to interrogate a person they must make known to him that he is entitled to a lawyer and that if he cannot afford one, a lawyer will be provided for him prior to any interrogation. If authorities conclude that they will not provide counsel during a reasonable period of time in which investigation in the field is carried out, they may refrain from doing so without violating the person's Fifth Amendment privilege so long as they do not question him during that time. If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. Escobedo v. Illinois, , n. 14. This Court has always set high standards of proof for the waiver of constitutional rights, Johnson v. Zerbst, , and we re-assert these standards as applied to in-custody interrogation. Since the State is responsible for establishing the isolated circumstances under which the interrogation takes place and has the only means of making available corroborated evidence of warnings given during incommunicado interrogation, the burden is rightly on its shoulders.An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver. But a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained. A statement we made in Carnley v. Cochran, , is applicable here:"Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not waiver." See also Glasser v. United States, . Moreover, where in-custody interrogation is involved, there is no room for the contention that the privilege is waived if the individual answers some questions or gives some information on his own prior to invoking his right to remain silent when interrogated.45 Whatever the testimony of the authorities as to waiver of rights by an accused, the fact of lengthy interrogation or incommunicado incarceration before a statement is made is strong evidence that the accused did not validly waive his rights. In these circumstances the fact that the individual eventually made a statement is consistent with the conclusion that the compelling influence of the interrogation finally forced him to do so. It is inconsistent with any notion of a voluntary relinquishment of the privilege. Moreover, any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege. The requirement of warnings and waiver of rights is a fundamental with respect to the Fifth Amendment privilege and not simply a preliminary ritual to existing methods of interrogation.The warnings required and the waiver necessary in accordance with our opinion today are, in the absence of a fully effective equivalent, prerequisites to the admissibility of any statement made by a defendant. No distinction can be drawn between statements which are direct confessions and statements which amount to "admissions" of part or all of an offense. The privilege against self-incrimination protects the individual from being compelled to incriminate himself in any manner; it does not distinguish degrees of incrimination. Similarly, for precisely the same reason, no distinction may be drawn between inculpatory statements and statements alleged to be merely "exculpatory." If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution. In fact, statements merely intended to be exculpatory by the defendant are often used to impeach his testimony at trial or to demonstrate untruths in the statement given under interrogation and thus to prove guilt by implication. These statements are incriminating in any meaningful sense of the word and may not be used without the full warnings and effective waiver required for any other statement. In Escobedo itself, the defendant fully intended his accusation of another as the slayer to be exculpatory as to himself.The principles announced today deal with the protection which must be given to the privilege against self-incrimination when the individual is first subjected to police interrogation while in custody at the station or otherwise deprived of his freedom of action in any significant way. It is at this point that our adversary system of criminal proceedings commences, distinguishing itself at the outset from the inquisitorial system recognized in some countries. Under the system of warnings we delineate today or under any other system which may be devised and found effective, the safeguards to be erected about the privilege must come into play at this point.Our decision is not intended to hamper the traditional function of police officers in investigating crime. See Escobedo v. Illinois, . When an individual is in custody on probable cause, the police may, of course, seek out evidence in the field to be used at trial against him. Such investigation may include inquiry of persons not under restraint. General on-the-scene questioning as to facts surrounding a crime or other general questioning of citizens in the fact-finding process is not affected by our holding. It is an act of responsible citizenship for individuals to give whatever information they may have to aid in law enforcement. In such situations the compelling atmosphere inherent in the process of in-custody interrogation is not necessarily present.46 In dealing with statements obtained through interrogation, we do not purport to find all confessions inadmissible. Confessions remain a proper element in law enforcement. Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime,47 or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.To summarize, we hold that when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning, the privilege against self-incrimination is jeopardized. Procedural safeguards must be employed to protect the privilege, and unless other fully effective means are adopted to notify the person of his right of silence and to assure that the exercise of the right will be scrupulously honored, the following measures are required. He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise these rights must be afforded to him throughout the interrogation. After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions or make a statement. But unless and until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained as a result of interrogation can be used against him.48 IV.A recurrent argument made in these cases is that society's need for interrogation outweighs the privilege. This argument is not unfamiliar to this Court. See, e. g., Chambers v. Florida, . The whole thrust of our foregoing discussion demonstrates that the Constitution has prescribed the rights of the individual when confronted with the power of government when it provided in the Fifth Amendment that an individual cannot be compelled to be a witness against himself. That right cannot be abridged. As Mr. Justice Brandeis once observed: "Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the means ... would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face." Olmstead v. United States, (dissenting opinion).49 In this connection, one of our country's distinguished jurists has pointed out: "The quality of a nation's civilization can be largely measured by the methods it uses in the enforcement of its criminal law."50 If the individual desires to exercise his privilege, he has the right to do so. This is not for the authorities to decide. An attorney may advise his client not to talk to police until he has had an opportunity to investigate the case, or he may wish to be present with his client during any police questioning. In doing so an attorney is merely exercising the good professional judgment he has been taught. This is not cause for considering the attorney a menace to law enforcement. He is merely carrying out what he is sworn to do under his oath - to protect to the extent of his ability the rights of his client. In fulfilling this responsibility the attorney plays a vital role in the administration of criminal justice under our Constitution.In announcing these principles, we are not unmindful of the burdens which law enforcement officials must bear, often under trying circumstances. We also fully recognize the obligation of all citizens to aid in enforcing the criminal laws. This Court, while protecting individual rights, has always given ample latitude to law enforcement agencies in the legitimate exercise of their duties. The limits we have placed on the interrogation process should not constitute an undue interference with a proper system of law enforcement. As we have noted, our decision does not in any way preclude police from carrying out their traditional investigatory functions. Although confessions may play an important role in some convictions, the cases before us present graphic examples of the overstatement of the "need" for confessions. In each case authorities conducted interrogations ranging up to five days in duration despite the presence, through standard investigating practices, of considerable evidence against each defendant.51 Further examples are chronicled in our prior cases. See, e. g., Haynes v. Washington, ; Rogers v. Richmond, ; Malinski v. New York, .52 It is also urged that an unfettered right to detention for interrogation should be allowed because it will often redound to the benefit of the person questioned. When police inquiry determines that there is no reason to believe that the person has committed any crime, it is said, he will be released without need for further formal procedures. The person who has committed no offense, however, will be better able to clear himself after warnings with counsel present than without. It can be assumed that in such circumstances a lawyer would advise his client to talk freely to police in order to clear himself.Custodial interrogation, by contrast, does not necessarily afford the innocent an opportunity to clear themselves. A serious consequence of the present practice of the interrogation alleged to be beneficial for the innocent is that many arrests "for investigation" subject large numbers of innocent persons to detention and interrogation. In one of the cases before us, No. 584, California v. Stewart, police held four persons, who were in the defendant's house at the time of the arrest, in jail for five days until defendant confessed. At that time they were finally released. Police stated that there was "no evidence to connect them with any crime." Available statistics on the extent of this practice where it is condoned indicate that these four are far from alone in being subjected to arrest, prolonged detention, and interrogation without the requisite probable cause.53 Over the years the Federal Bureau of Investigation has compiled an exemplary record of effective law enforcement while advising any suspect or arrested person, at the outset of an interview, that he is not required to make a statement, that any statement may be used against him in court, that the individual may obtain the services of an attorney of his own choice and, more recently, that he has a right to free counsel if he is unable to pay.54 A letter received from the Solicitor General in response to a question from the Bench makes it clear that the present pattern of warnings and respect for the rights of the individual followed as a practice by the FBI is consistent with the procedure which we delineate today. It states: "At the oral argument of the above cause, Mr. Justice Fortas asked whether I could provide certain information as to the practices followed by the Federal Bureau of Investigation. I have directed these questions to the attention of the Director of the Federal Bureau of Investigation and am submitting herewith a statement of the questions and of the answers which we have received."`(1) When an individual is interviewed by agents of the Bureau, what warning is given to him? "`The standard warning long given by Special Agents of the FBI to both suspects and persons under arrest is that the person has a right to say nothing and a right to counsel, and that any statement he does make may be used against him in court. Examples of this warning are to be found in the Westover case at 342 F.2d 684 (1965), and Jackson v. U.S., 337 F.2d 136 (1964), cert. den. . "`After passage of the Criminal Justice Act of 1964, which provides free counsel for Federal defendants unable to pay, we added to our instructions to Special Agents the requirement that any person who is under arrest for an offense under FBI jurisdiction, or whose arrest is contemplated following the interview, must also be advised of his right to free counsel if he is unable to pay, and the fact that such counsel will be assigned by the Judge. At the same time, we broadened the right to counsel warning to read counsel of his own choice, or anyone else with whom he might wish to speak."`(2) When is the warning given? "`The FBI warning is given to a suspect at the very outset of the interview, as shown in the Westover case, cited above. The warning may be given to a person arrested as soon as practicable after the arrest, as shown in the Jackson case, also cited above, and in U.S. v. Konigsberg, 336 F.2d 844 (1964), cert. den. , but in any event it must precede the interview with the person for a confession or admission of his own guilt."`(3) What is the Bureau's practice in the event that (a) the individual requests counsel and (b) counsel appears? "`When the person who has been warned of his right to counsel decides that he wishes to consult with counsel before making a statement, the interview is terminated at that point, Shultz v. U.S., 351 F.2d 287 (1965). It may be continued, however, as to all matters other than the person's own guilt or innocence. If he is indecisive in his request for counsel, there may be some question on whether he did or did not waive counsel. Situations of this kind must necessarily be left to the judgment of the interviewing Agent. For example, in Hiram v. U.S., 354 F.2d 4 (1965), the Agent's conclusion that the person arrested had waived his right to counsel was upheld by the courts. "`A person being interviewed and desiring to consult counsel by telephone must be permitted to do so, as shown in Caldwell v. U.S., 351 F.2d 459 (1965). When counsel appears in person, he is permitted to confer with his client in private. "`(4) What is the Bureau's practice if the individual requests counsel, but cannot afford to retain an attorney? "`If any person being interviewed after warning of counsel decides that he wishes to consult with counsel before proceeding further the interview is terminated, as shown above. FBI Agents do not pass judgment on the ability of the person to pay for counsel. They do, however, advise those who have been arrested for an offense under FBI jurisdiction, or whose arrest is contemplated following the interview, of a right to free counsel if they are unable to pay, and the availability of such counsel from the Judge.'"55 The practice of the FBI can readily be emulated by state and local enforcement agencies. The argument that the FBI deals with different crimes than are dealt with by state authorities does not mitigate the significance of the FBI experience.56 The experience in some other countries also suggests that the danger to law enforcement in curbs on interrogation is overplayed. The English procedure since 1912 under the Judges' Rules is significant. As recently strengthened, the Rules require that a cautionary warning be given an accused by a police officer as soon as he has evidence that affords reasonable grounds for suspicion; they also require that any statement made be given by the accused without questioning by police.57 The right of the individual to consult with an attorney during this period is expressly recognized.58 The safeguards present under Scottish law may be even greater than in England. Scottish judicial decisions bar use in evidence of most confessions obtained through police interrogation.59 In India, confessions made to police not in the presence of a magistrate have been excluded by rule of evidence since 1872, at a time when it operated under British law.60 Identical provisions appear in the Evidence Ordinance of Ceylon, enacted in 1895.61 Similarly, in our country the Uniform Code of Military Justice has long provided that no suspect may be interrogated without first being warned of his right not to make a statement and that any statement he makes may be used against him.62 Denial of the right to consult counsel during interrogation has also been proscribed by military tribunals.63 There appears to have been no marked detrimental effect on criminal law enforcement in these jurisdictions as a result of these rules. Conditions of law enforcement in our country are sufficiently similar to permit reference to this experience as assurance that lawlessness will not result from warning an individual of his rights or allowing him to exercise them. Moreover, it is consistent with our legal system that we give at least as much protection to these rights as is given in the jurisdictions described. We deal in our country with rights grounded in a specific requirement of the Fifth Amendment of the Constitution, whereas other jurisdictions arrived at their conclusions on the basis of principles of justice not so specifically defined.64 It is also urged upon us that we withhold decision on this issue until state legislative bodies and advisory groups have had an opportunity to deal with these problems by rule making.65 We have already pointed out that the Constitution does not require any specific code of procedures for protecting the privilege against self-incrimination during custodial interrogation. Congress and the States are free to develop their own safeguards for the privilege, so long as they are fully as effective as those described above in informing accused persons of their right of silence and in affording a continuous opportunity to exercise it. In any event, however, the issues presented are of constitutional dimensions and must be determined by the courts. The admissibility of a statement in the face of a claim that it was obtained in violation of the defendant's constitutional rights is an issue the resolution of which has long since been undertaken by this Court. See Hopt v. Utah, . Judicial solutions to problems of constitutional dimension have evolved decade by decade. As courts have been presented with the need to enforce constitutional rights, they have found means of doing so. That was our responsibility when Escobedo was before us and it is our responsibility today. Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.V.Because of the nature of the problem and because of its recurrent significance in numerous cases, we have to this point discussed the relationship of the Fifth Amendment privilege to police interrogation without specific concentration on the facts of the cases before us. We turn now to these facts to consider the application to these cases of the constitutional principles discussed above. In each instance, we have concluded that statements were obtained from the defendant under circumstances that did not meet constitutional standards for protection of the privilege. No. 759. Miranda v. Arizona.On March 13, 1963, petitioner, Ernesto Miranda, was arrested at his home and taken in custody to a Phoenix police station. He was there identified by the complaining witness. The police then took him to "Interrogation Room No. 2" of the detective bureau. There he was questioned by two police officers. The officers admitted at trial that Miranda was not advised that he had a right to have an attorney present.66 Two hours later, the officers emerged from the interrogation room with a written confession signed by Miranda. At the top of the statement was a typed paragraph stating that the confession was made voluntarily, without threats or promises of immunity and "with full knowledge of my legal rights, understanding any statement I make may be used against me."67 At his trial before a jury, the written confession was admitted into evidence over the objection of defense counsel, and the officers testified to the prior oral confession made by Miranda during the interrogation. Miranda was found guilty of kidnapping and rape. He was sentenced to 20 to 30 years' imprisonment on each count, the sentences to run concurrently. On appeal, the Supreme Court of Arizona held that Miranda's constitutional rights were not violated in obtaining the confession and affirmed the conviction. 98 Ariz. 18, 401 P.2d 721. In reaching its decision, the court emphasized heavily the fact that Miranda did not specifically request counsel.We reverse. From the testimony of the officers and by the admission of respondent, it is clear that Miranda was not in any way apprised of his right to consult with an attorney and to have one present during the interrogation, nor was his right not to be compelled to incriminate himself effectively protected in any other manner. Without these warnings the statements were inadmissible. The mere fact that he signed a statement which contained a typed-in clause stating that he had "full knowledge" of his "legal rights" does not approach the knowing and intelligent waiver required to relinquish constitutional rights. Cf. Haynes v. Washington, , 512-513 (1963); Haley v. Ohio, (opinion of MR. JUSTICE DOUGLAS). No. 760. Vignera v. New York.Petitioner, Michael Vignera, was picked up by New York police on October 14, 1960, in connection with the robbery three days earlier of a Brooklyn dress shop. They took him to the 17th Detective Squad headquarters in Manhattan. Sometime thereafter he was taken to the 66th Detective Squad. There a detective questioned Vignera with respect to the robbery. Vignera orally admitted the robbery to the detective. The detective was asked on cross-examination at trial by defense counsel whether Vignera was warned of his right to counsel before being interrogated. The prosecution objected to the question and the trial judge sustained the objection. Thus, the defense was precluded from making any showing that warnings had not been given. While at the 66th Detective Squad, Vignera was identified by the store owner and a saleslady as the man who robbed the dress shop. At about 3 p. m. he was formally arrested. The police then transported him to still another station, the 70th Precinct in Brooklyn, "for detention." At 11 p. m. Vignera was questioned by an assistant district attorney in the presence of a hearing reporter who transcribed the questions and Vignera's answers. This verbatim account of these proceedings contains no statement of any warnings given by the assistant district attorney. At Vignera's trial on a charge of first degree robbery, the detective testified as to the oral confession. The transcription of the statement taken was also introduced in evidence. At the conclusion of the testimony, the trial judge charged the jury in part as follows:"The law doesn't say that the confession is void or invalidated because the police officer didn't advise the defendant as to his rights. Did you hear what I said? I am telling you what the law of the State of New York is." Vignera was found guilty of first degree robbery. He was subsequently adjudged a third-felony offender and sentenced to 30 to 60 years' imprisonment.68 The conviction was affirmed without opinion by the Appellate Division, Second Department, 21 App. Div. 2d 752, 252 N. Y. S. 2d 19, and by the Court of Appeals, also without opinion, 15 N. Y. 2d 970, 207 N. E. 2d 527, 259 N. Y. S. 2d 857, remittitur amended, 16 N. Y. 2d 614, 209 N. E. 2d 110, 261 N. Y. S. 2d 65. In argument to the Court of Appeals, the State contended that Vignera had no constitutional right to be advised of his right to counsel or his privilege against self-incrimination.We reverse. The foregoing indicates that Vignera was not warned of any of his rights before the questioning by the detective and by the assistant district attorney. No other steps were taken to protect these rights. Thus he was not effectively apprised of his Fifth Amendment privilege or of his right to have counsel present and his statements are inadmissible. No. 761. Westover v. United States.At approximately 9:45 p. m. on March 20, 1963, petitioner, Carl Calvin Westover, was arrested by local police in Kansas City as a suspect in two Kansas City robberies. A report was also received from the FBI that he was wanted on a felony charge in California. The local authorities took him to a police station and placed him in a line-up on the local charges, and at about 11:45 p. m. he was booked. Kansas City police interrogated Westover on the night of his arrest. He denied any knowledge of criminal activities. The next day local officers interrogated him again throughout the morning. Shortly before noon they informed the FBI that they were through interrogating Westover and that the FBI could proceed to interrogate him. There is nothing in the record to indicate that Westover was ever given any warning as to his rights by local police. At noon, three special agents of the FBI continued the interrogation in a private interview room of the Kansas City Police Department, this time with respect to the robbery of a savings and loan association and a bank in Sacramento, California. After two or two and one-half hours, Westover signed separate confessions to each of these two robberies which had been prepared by one of the agents during the interrogation. At trial one of the agents testified, and a paragraph on each of the statements states, that the agents advised Westover that he did not have to make a statement, that any statement he made could be used against him, and that he had the right to see an attorney.Westover was tried by a jury in federal court and convicted of the California robberies. His statements were introduced at trial. He was sentenced to 15 years' imprisonment on each count, the sentences to run consecutively. On appeal, the conviction was affirmed by the Court of Appeals for the Ninth Circuit. 342 F.2d 684.We reverse. On the facts of this case we cannot find that Westover knowingly and intelligently waived his right to remain silent and his right to consult with counsel prior to the time he made the statement.69 At the time the FBI agents began questioning Westover, he had been in custody for over 14 hours and had been interrogated at length during that period. The FBI interrogation began immediately upon the conclusion of the interrogation by Kansas City police and was conducted in local police headquarters. Although the two law enforcement authorities are legally distinct and the crimes for which they interrogated Westover were different, the impact on him was that of a continuous period of questioning. There is no evidence of any warning given prior to the FBI interrogation nor is there any evidence of an articulated waiver of rights after the FBI commenced its interrogation. The record simply shows that the defendant did in fact confess a short time after being turned over to the FBI following interrogation by local police. Despite the fact that the FBI agents gave warnings at the outset of their interview, from Westover's point of view the warnings came at the end of the interrogation process. In these circumstances an intelligent waiver of constitutional rights cannot be assumed.We do not suggest that law enforcement authorities are precluded from questioning any individual who has been held for a period of time by other authorities and interrogated by them without appropriate warnings. A different case would be presented if an accused were taken into custody by the second authority, removed both in time and place from his original surroundings, and then adequately advised of his rights and given an opportunity to exercise them. But here the FBI interrogation was conducted immediately following the state interrogation in the same police station - in the same compelling surroundings. Thus, in obtaining a confession from Westover the federal authorities were the beneficiaries of the pressure applied by the local in-custody interrogation. In these circumstances the giving of warnings alone was not sufficient to protect the privilege. No. 584. California v. Stewart.In the course of investigating a series of purse-snatch robberies in which one of the victims had died of injuries inflicted by her assailant, respondent, Roy Allen Stewart, was pointed out to Los Angeles police as the endorser of dividend checks taken in one of the robberies. At about 7:15 p. m., January 31, 1963, police officers went to Stewart's house and arrested him. One of the officers asked Stewart if they could search the house, to which he replied, "Go ahead." The search turned up various items taken from the five robbery victims. At the time of Stewart's arrest, police also arrested Stewart's wife and three other persons who were visiting him. These four were jailed along with Stewart and were interrogated. Stewart was taken to the University Station of the Los Angeles Police Department where he was placed in a cell. During the next five days, police interrogated Stewart on nine different occasions. Except during the first interrogation session, when he was confronted with an accusing witness, Stewart was isolated with his interrogators.During the ninth interrogation session, Stewart admitted that he had robbed the deceased and stated that he had not meant to hurt her. Police then brought Stewart before a magistrate for the first time. Since there was no evidence to connect them with any crime, the police then released the other four persons arrested with him.Nothing in the record specifically indicates whether Stewart was or was not advised of his right to remain silent or his right to counsel. In a number of instances, however, the interrogating officers were asked to recount everything that was said during the interrogations. None indicated that Stewart was ever advised of his rights.Stewart was charged with kidnapping to commit robbery, rape, and murder. At his trial, transcripts of the first interrogation and the confession at the last interrogation were introduced in evidence. The jury found Stewart guilty of robbery and first degree murder and fixed the penalty as death. On appeal, the Supreme Court of California reversed. 62 Cal. 2d 571, 400 P.2d 97, 43 Cal. Rptr. 201. It held that under this Court's decision in Escobedo, Stewart should have been advised of his right to remain silent and of his right to counsel and that it would not presume in the face of a silent record that the police advised Stewart of his rights.70 We affirm.71 In dealing with custodial interrogation, we will not presume that a defendant has been effectively apprised of his rights and that his privilege against self-incrimination has been adequately safeguarded on a record that does not show that any warnings have been given or that any effective alternative has been employed. Nor can a knowing and intelligent waiver of these rights be assumed on a silent record. Furthermore, Stewart's steadfast denial of the alleged offenses through eight of the nine interrogations over a period of five days is subject to no other construction than that he was compelled by persistent interrogation to forgo his Fifth Amendment privilege.Therefore, in accordance with the foregoing, the judgments of the Supreme Court of Arizona in No. 759, of the New York Court of Appeals in No. 760, and of the Court of Appeals for the Ninth Circuit in No. 761 are reversed. The judgment of the Supreme Court of California in No. 584 is affirmed. It is so ordered.

Certiorari dismissed as improvidently granted. Reported below: 332 F.2d 602.Chester C. Davis argued the cause for petitioners. With him on the briefs were Paul A. Porter, Victor H. Kramer, Abe Krash, Dennis G. Lyons, Werner J. Kronstein and Daniel A. Rezneck.John F. Sonnett argued the cause for respondent. With him on the briefs were Dudley B. Tenney, Raymond L. Falls, Jr., Marshall H. Cox, Jr., and Abraham P. Ordover.Acting Solicitor General Spritzer, Assistant Attorney General Orrick, Lionel Kestenbaum, O. D. Ozment and Robert L. Toomey filed a memorandum for the Civil Aeronautics Board, as amicus curiae.PER CURIAM.The writ of certiorari is dismissed as improvidently granted.

[Footnote *] Together with No. 18, U.S. A. C. Transport, Inc., et al. v. J-T Transport Co., Inc., et al., on appeal from the same Court, argued October 17-18, 1961; No. 49, Atchison, Topeka & Santa Fe Railway Co. et al. v. Reddish et al., No. 53, Interstate Commerce Commission v. Reddish et al., and No. 54, Arkansas-Best Freight System, Inc., et al. v. Reddish et al., on appeal from the United States District Court for the Western District of Arkansas, argued October 18, 1961. Under 209 (b) of the Interstate Commerce Act, as amended in 1957, the Commission denied applications for operating permits filed by contract motor carriers, supported by shippers and opposed by common carriers. In one case the shipper claimed that a contract carrier's operations could be better integrated with its production of parts for airplanes. In the other case the shippers claimed that the services of common carriers were unsatisfactory and that their rates were prohibitive on less-than-truckload shipments of canned goods. Three-judge district courts held that the Commission had incorrectly applied the Act, as amended, set aside the Commission's orders and remanded the cases for further consideration. Held: The judgments are affirmed. Pp. 83-93. (a) Under 209 (b), as amended, the adequacy of existing services is a criterion to be considered by the Commission in passing upon such an application; but it is not determinative. Under 203 (a) (15), as amended, the "distinct need" of shippers for the new contract service must be weighed against the adequacy of existing services. P. 88. (b) By indulging in a presumption that the services which existing common carriers render the public would be adversely affected by a loss of "potential" traffic, even if they had not handled it before, and by assigning to the applicants the burden of proving the inadequacy of existing services, the Commission favored the protestants' interests at the expense of the shippers' in a manner not intended by Congress. Pp. 88-90. (c) The proper procedure is for the applicant first to demonstrate that the undertaking it proposes is specialized and tailored to a shipper's "distinct need." The protestants then may present evidence to show that they have the ability and the willingness to meet that specialized need. If that is done, the burden then shifts to the applicant to demonstrate that it is better equipped to meet the distinct needs of the shipper than the protestants. P. 90. (d) Under the Act, as amended in 1957, the standard is not whether existing services are "reasonably adequate." It is whether a shipper has a "distinct need" for a different or a more select or a more specialized service which the protesting carriers cannot fill. Pp. 90-91. (e) The Commission erred in ruling that the desire for lower rates offered by the applicant was not relevant to the shippers' needs, since the matter of rates is one factor to be weighed in determining whether the shipper has established a "need" for more "economical" service, within the meaning of the National Transportation Policy. Pp. 91-92. (f) Under the statute, as amended, a shipper is entitled to have his "distinct needs" met. The adequacy of existing services for normal needs and the willingness and ability of an existing carrier to render the service are not conclusive, since the "distinct need" of the shipper may not be served by the existing services, if the new service is better tailored to fit the special requirements of the shipper's business, the length of its purse, or the select nature of the delivery service that is desired. Pp. 92-93. 185 F. Supp. 838; 188 F. Supp. 160, affirmed.B. Franklin Taylor, Jr. argued the cause for appellant in No. 17. With him on the briefs were Robert W. Ginnane and James Y. Piper.Roland Rice argued the cause for appellants in No. 18 With him on the briefs were John C. Bradley and James E. Wilson.Richard A. Solomon argued the cause for the United States in all five cases. With him on the briefs were Solicitor General Cox and Assistant Attorney General Loevinger. James W. Wrape argued the cause for J-T Transport Co., Inc., appellee in Nos. 17 and 18. With him on the briefs was Glen M. Elliott.Clarence D. Todd filed a brief for Contract Carrier Conference of American Trucking Assns., Inc., appellee in Nos. 17 and 18.A brief, urging affirmance, was filed in No. 17 by John S. Burchmore and Robert N. Burchmore for the National Industrial Traffic League, as amicus curiae.Robert W. Ginnane argued the cause for appellant in No. 53. With him on the brief were B. Franklin Taylor, Jr. and Arthur J. Cerra.Roland Rice argued the cause for appellants in Nos. 49 and 54. With him on the briefs were Rollo E. Kidwell, Amos M. Mathews and Ed White.A. Alvis Layne argued the cause for appellees other than the United States in Nos. 49, 53 and 54. With him on the briefs for Elvin L. Reddish was John H. Joyce.MR. JUSTICE DOUGLAS delivered the opinion of the Court.These are appeals from judgments of three-judge district courts, 28 U.S.C. 1253, which set aside orders of the Interstate Commerce Commission denying applications for permits as contract carriers. 185 F. Supp. 838; 188 F. Supp. 160.Appellee J-T Transport Company asked to extend its present operations as an irregular-route contract carrier of airplane parts to include carriage of aircraft landing gear bulkheads for Boeing Airplane Co. Boeing supported the application. Common carriers opposed the application, as did another carrier, U.S. A. C. Transport, Inc., appellant in No. 18. Boeing indicated it preferred the applicant over the other because of its unsatisfactory experience with the latter in other operations. Boeing indicated that contract carriage was more practicable in its experience than common carriage, as a contract carrier's operations could be better integrated with a manufacturer's production. Though the examiner recommended a grant of the permit, the Commission denied it (74 M. C. C. 324, 79 M. C. C. 695) saying that no attempt had been made to ascertain if the existing services were capable of meeting the needs of the shipper. It ruled that "There is, in effect, a presumption that the services of existing carriers will be adversely affected by a loss of `potential' traffic, even if they may not have handled it before." 79 M. C. C. 695, 705. It held that the applicant had not established a need for this contract service and that the applicant had not shown "the existing service" of the other carrier to be "inadequate." Id., 709. It indicated that a service "not needed" cannot be found consistent with the public interest or the National Transportation Policy, as those terms are used in 209 (b) of the Interstate Commerce Act as amended, 71 Stat. 411, 49 U.S.C. 309 (b). It said that the shippers did not require a distinct type of service that could not be provided by the protesting carrier, which was indeed in a position to provide any service needed and which would be adversely affected by a grant of this application, even though it never had had the business in question.Appellee Reddish made application to carry canned goods as a contract carrier from three points in Arkansas and one in Oklahoma to various points in thirty-three States and to carry other goods on return. His application was supported by his prospective shippers and opposed by motor common carriers, appellants in No. 54. and by rail common carriers, appellants in No. 49.Reddish showed that he delivered to customers who ordered goods in less-than-truckload amounts. These customers maintained low inventories and needed expedited deliveries in small quantities and on short notice. Some accepted deliveries only on certain days, a requirement calling for integration and coordination between shipper and customer. The shippers said that common carriage was an inadequate service for these shipments, as they were in such small lots that they often had to be carried in consolidated loads which caused delays in shipments. Moreover, it was shown that not all points would be served by one common carrier, making it necessary to unload the shipments and reload them on another carrier causing delays, misconsignment, and damage to goods. The shippers also testified that the cost of common carriage was prohibitive for less-than-truckload shipments and that if the Reddish application were denied they would use private carriage. The protesting motor common carriers testified they could render adequate service for these shipments and provide multiple pick-up and delivery services to most of the points by transferring the shipments to other carriers. The Examiner recommended that the application be granted. The Commission denied it, saying, inter alia, that the services needed by the shippers could be performed by existing common carriers, that they would be injured by the loss of potential traffic, and that the shippers' desire to obtain lower rates for less-than-truckload shipments was the primary reason for their support of the application, but was not a sufficient basis to justify a grant of authority to this contract carrier. 81 M. C. C. 35.The cases turn on the meaning of language added to the Act in 1957.Our decision in United States v. Contract Steel Carriers, , held that a contract carrier, rendering a specialized service in the sense that it hauled only a limited group of commodities over irregular routes, did not become a common carrier because it reached for new business within the limits of its license. That decision caused concern to the Commission which proposed amendments to the Act.1 It proposed that 203 (a) (15) be amended so as to define a contract carrier as one who engages in transportation by motor vehicle "under continuing contracts with one person or a limited number of persons for the furnishing of transportation services of a special and individual nature required by the customer and not provided by common carriers." It also proposed that 209 (b) be amended by adding an additional requirement for issuance of a contract carrier permit, viz., "that existing common carriers are unwilling or unable to provide the type of service for which a need has been shown."These amendments were vigorously opposed in some quarters.2 The addition to 203 (a) (15) was objected to on the ground that many contract carriers would be driven out of business because they could not meet the test of performing a service "not provided by common carriers." The change in 209 (b) was opposed because it would be impossible for a contract carrier to prove that competing common carriers were "unwilling" to render the service and very difficult for it to prove that common carriers were "unable" to render the service, as the applicant would have no intimate knowledge of the business of the opposing carriers.The Commission bowed to these objections;3 and the bill as it passed eliminated the proposed changes except the ones that changed the result of our decision in United States v. Contract Steel Carriers, supra.4 Section 203 (a) (15), however, was amended, so far as material here, by adding to the description of the term "contract carrier by motor vehicle" one who furnishes "transportation services designed to meet the distinct need of each individual customer."5 And 209 (b) was amended by adding a sentence which sets forth five factors the Commission shall consider in determining whether the permit should issue:"In determining whether issuance of a permit will be consistent with the public interest and the national transportation policy declared in this Act, the Commission shall consider (1) the number of shippers to be served by the applicant, (2) the nature of the service proposed, (3) the effect which granting the permit would have upon the services of the protesting carriers and (4) the effect which denying the permit would have upon the applicant and/or its shipper and (5) the changing character of that shipper's requirements." (Numerals added.) It seems clear from these provisions that the adequacy of existing services is a criterion to be considered by the Commission, as it is instructed to consider "the effect which granting the permit would have upon the services of the protesting carriers," as well as the effect of a denial upon the shippers. Or to put the matter otherwise, the question of the need of the shipping public for the proposed service necessarily includes the question whether the extent, nature, character, and suitability of existing, available service makes the proposed service out of line with the requirements of the national transportation policy. But the adequacy of existing facilities or the willingness or ability of existing carriers to render the new service is not determinative. The "effect which denying the permit would have upon the applicant and/or its shipper and the changing character of that shipper's requirements" have additional relevance. This is a phase of the problem reflected in the broadened definition of a "contract carrier by motor vehicle" - one who furnishes transportation services "designed to meet the distinct need of each individual customer." 203 (a) (15). It means, we think, that the "distinct need" of shippers for the new contract carrier service must be weighed against the adequacy of existing services. The Commission indulged in "a presumption that the services of existing carriers will be adversely affected by a loss of `potential' traffic, even if they may not have handled it before." 79 M. C. C. 695, 705. The effect of the presumption is in substance to limit competing contract carriage to services "not provided" by existing carriers - a provision that the Commission sought unsuccessfully to have incorporated into the Act. We see no room for a presumption in favor of, or against, any of the five factors on which findings must be made under 209 (b). The effect on protesting carriers of a grant of the application and the effect on shippers of a denial are factors to be weighed in determining on balance where the public interest lies. The aim of the 1957 amendments, as we read the legislative history, was not to protect the status quo of existing carriers but to establish a regime under which new contract carriage could be allowed if the "distinct need" of shippers indicated that it was desirable.We cannot assume that Congress, in amending the statute. intended to adopt the administrative construction which prevailed prior to the amendment.By adding the five criteria which it directed the Commission to consider, Congress expressed its will that the Commission should not manifest special solicitude for that criterion which directs attention to the situation of protesting carriers, at the expense of that which directs attention to the situation of supporting shippers, when those criteria have contrary implications. Such a situation doubtless exists in these cases, for granting the permits might well have produced some consequences adverse to the protesting carriers, while denying them may just as certainly prove burdensome to the supporting shippers. Had the Commission, having drawn out and crystallized these competing interests, attempted to judge them with as much delicacy as the prospective nature of the inquiry permits, we should have been cautious about disturbing its conclusion.But while such a determination is primarily a responsibility of the Commission, we are under no compulsion to accept its reading where, as here, we are convinced that it has loaded one of the scales. By indulging in a presumption "that the services of existing carriers will be adversely affected by a loss of `potential' traffic, even if they may not have handled it before," and by assigning to the applicants the burden of proving the inadequacy of existing services, the Commission favored the protestants' interests at the expense of the shippers' in a manner not countenanced by anything discoverable in Congress' delegation to it of responsibility.It is argued that the Commission, in holding that U.S. A. C. is willing and able to render the service, did not rely on the presumption. We are, however, not convinced. The Commission seems to have placed the burden of proving inadequacy of existing services on the applicant, for it said that the applicant had not shown that the service of U.S. A. C. was "inadequate." 79 M. C. C. 695, 709. Such a burden is improperly placed on the applicant, as the rejection of the proposed amendment to 209 (b) suggests. The capabilities of protesting carriers are matters peculiarly within their knowledge. In the Reddish case the Commission made the same error, as is evident from its statement that the "shippers have failed to show that they have been unable to obtain reasonably adequate service upon request." 81 M. C. C. 35, 42.The proper procedure, we conclude, is for the applicant first to demonstrate that the undertaking it proposes is specialized and tailored to a shipper's distinct need. The protestants then may present evidence to show they have the ability as well as the willingness to meet that specialized need. If that is done, then the burden shifts to the applicant to demonstrate that it is better equipped to meet the distinct needs of the shipper than the protestants.Moreover, as we read the Act, as amended in 1957, the standard is not whether existing services are "reasonably adequate." It is whether a shipper has a "distinct need" for a different or a more select or a more specialized service. The protesting carriers must show they can fill that "distinct need," not that they can provide a "reasonably adequate service."In the Reddish case the Commission ruled that the desire for lower rates offered by the applicant was irrelevant to a shipper's needs, that if the rates of existing carriers were too high, shippers should seek relief for their reduction. 81 M. C. C. 35, 42-43. We think the matter of rates is one factor to be weighed in determining the need for the new service. In a contest between carriers by motor vehicles and carriers by rail, we held in Schaffer Transportation Co. v. United States, , that the ability of a particular mode of transportation to operate with a lower rate is one of the "inherent advantages" that one type may have over another within the meaning of the Act. 54 Stat. 899. By analogy, contract carriage may be more "economical" than common carriage by motor or rail within the framework of the national transportation policy, as it is defined in the Act6 - "the Commission's guide" to the public interest. McLean Trucking Co. v. United States, . It would seem hardly contestable that if denial of the application meant, for example, that a shipper's costs of transportation would be prohibitive, the shipper had established a "need" for the more "economical" service. See Herman R. Ewell Extension - Philadelphia, 72 M. C. C. 645. This does not mean that the lawfulness of rates would be injected into certificate proceedings. The issue of whether or not the proposed service offers a rate advantage and if so whether such advantage establishes a "need" for the service that overrides counterbalancing considerations presents issues that fall far short of a rate proceeding.We agree with the court in the J-T Transport Co. case that, while the 1957 amendments changed the result of our decision in United States v. Contract Steel Carriers, supra, by giving the Commission power to limit the number of contracts which a contract carrier can maintain, the amendments in other respects put the contract carrier on a firmer footing. That court said, "Under the statute a shipper is entitled to have his distinct needs met." 185 F. Supp. 838, 849. We agree. We also agree that though common carrier service is reasonably adequate and though another carrier is willing and able to furnish the service, a permit to a contract carrier to furnish this particular service still might be wholly consistent with the national transportation policy defined in the Act. For it is "the distinct need of each individual customer" that the contract carrier is designed to fill. 203 (a) (15). And "the changing character" of the shipper's "requirements" is a factor to be weighed before denying the application. 209 (b). Hence the adequacy of existing services for normal needs and the willingness and ability of an existing carrier to render the service are not the end of the matter. The "distinct need" of the shipper may nonetheless not be served by existing services, if the new service is better tailored to fit the special requirements of a shipper's business, the length of its purse, or the select nature of the delivery service that is desired. The fact that the protesting carriers do not presently perform the service being tendered and that the grant of the application would not divert business from them does not necessarily mean that the grant would have no effect "upon the services" of the protesting carriers within the meaning of 209 (b). But where the protesting carriers do not presently have the business, it would seem that the grant of it to a newcomer would have an adverse effect on them only in the unusual case.We intimate no opinion on the merits, for it is the Commission, not the courts, that brings an expertise to bear on the problem, that makes the findings, and that grants or denies the applications. Yet that expertise is not sufficient by itself. Findings supported by substantial evidence are required. Public Service Comm'n v. United States, ; United States v. United States Smelting Co., .Since the standards and criteria employed by the Commission were not the proper ones, the causes must be remanded for further consideration and for new findings. American Trucking Assns. v. United States, . Accordingly the judgments below are Affirmed.

On appeal from the District Court of the United States for the Southern District of California. Mr. Robert S. Erdahl, of Washington, D.C., for appellant. Mr. Eugene W. Miller, of San Diego, Cal., for appellee. Mr. Justice MURPHY, delivered the opinion of the Court. This appeal brings before us 301(h) of the Federal Food, Drug and Cosmetic Act of 1938, 52 Stat. 1040, 1042, [ United States v. Walsh ], 433] 21 U.S.C. 331(h), 21 U.S.C.A. 331(h), which prohibits the giving of a false guaranty that any food, drug, device or cosmetic is not adulterated or misbranded within the meaning of the Act. Appellee does business in San Diego, California, under the name of Kelp Laboratories. An information has been filed, charging appellee with having given a false guaranty in violation of 301(h). The following facts have been alleged: In February, 1943, appellee gave a continuing guaranty to Richard Harrison Products, of Hollywood, California, stating that no products thereafter shipped to the latter would be adulterated or misbranded within the meaning of the Act. On February 24, 1945, while the guaranty was in full force and effect, appellee consigned to Richard Harrison Products, at Holywood, a shipment of vitamin products which were allegedly adulterated and misbranded-thereby making the guaranty false in respect of that shipment. Prior and subsequent to the date of the shipment, Richard Harrison Products was engaged in the business of introducing and delivering for introduction into interstate commerce quantities of the vitamin product supplied by appellee. Appellee moved to dismiss the information on the ground that it did not state an offense. The argument was that 301(h) applies only to a guaranty that is false relative to an interstate shipment, whereas the alleged shipment here was to a consignee within California, the state of origin, and there was no allegation that the consignee purchased the order for some one outside California or that it intended to sell the products in its interstate rather than its intrastate business. The District Court gave an oral opinion sustaining appellee's contention and granting the motion to dismiss. The case is here on direct appeal by the United States. , 434] The Federal Food, Drug, and Cosmetic Act rests upon the constitutional power resident in Congress to regulate interstate commerce. Article 1, 8, cl. 3. To the end that the public health and safety might be advanced, it seeks to keep interstate channels free from deleterious, adulterated and misbranded articles of the specified types. United States v. Dotterweich, . It is in that interstate setting that the various sections of the Act must be viewed. But 301(h), with which we are concerned, does not speak specifically in interstate terms. It prohibits the 'giving of a guaranty or undertaking referred to in section 303(c)(2), which guaranty or undertaking is false,' the only exception being as to a false guaranty given by a person who, in turn, relied upon a similar guaranty given by the person from whom he received in good faith the adulterated or misbranded article. 1 Nothing on the face of the section limits its application to guaranties relating to articles introduced or delivered for introduction into interstate commerce. From all that appears, its proscription plainly extends to the giving of any false statutory guaranty, without regard to the interstate or intrastate character of the shipment in question, to those who are engaged in the business of making interstate shipments. Nor do we find any interstate limitation of the type which appellee proposes in the reference made in 301(h) , 435] to 303(c)(2).2 That reference is made simply to define the type of guaranty or undertaking the falsification of which is prohibited by 301( h). Instead of spelling out the matter, 301(h) adopts the reference in 303(c)(2) to 'a guaranty or undertaking signed by, and containing the name and address of, the person residing in the United States from whom he received in good faith the article, to the effect * * * that such article is not adulterated or misbranded, within the meaning of this Act, designating this Act.' The fact that 303(c)(2) relieves a holder of such a guaranty from the criminal penalties provided by 303(a) for violating 301(a) does not carry over the interstate limitation of 301(a) to 301( h). Section 301(a) prohibits the introduction or delivery for introduction into interstate commerce of illicit articles,3 and 303(c)(2) relieves one from the liabilities of such introduction if one has a guaranty or undertaking as therein described. Section 301(h)has adopted that description for the entirely different purpose of informing persons what kind of a guaranty or undertaking may not be given falsely. In other words, , 436] s 301(a) is directed to illegal interstate shipments, while 301(h) is directed to the giving of false guaranties. Guaranties as described in 303(c)(2) may be used by interstate dealers in connection with either interstate or intrastate shipments and those guaranties that are false are outlawed by 301(h). It is true, of course, that the guaranty referred to in 303(c)(2) is one given for the purpose of protecting the dealer 'in case of an alleged violation of section 301(a),' thereby relieving him of liability if he reships adulterated or misbranded goods in interstate commerce. But where such a guaranty, as in this case, is given to a dealer regularly engaged in making interstate shipments and who may therefore have need of the guaranty, 301(h) imposes liability on the guarantor if that guaranty turns out to be false. And that liability attaches even where the particular shipment which renders the guaranty false is not alleged to have been an interstate one. It is significant that 301(h) had no counterpart in the predecessor statute, the Food and Drugs Act of 1906, 34 Stat. 768, 21 U.S.C.A. 1 et seq. Under 9 of that Act, a dealer could not be prosecuted for shipping adulterated or misbranded articles in interstate commerce if he had a guaranty of a type similar to that referred to in the present statute. If there were such a guaranty, the guarantor was subject to the penalties which would otherwise attach to the dealer. The result was that the guarantor was not liable on account of a false guaranty unless the dealer had shipped the prohibited article in interstate commerce. Steinhardt Bros . & Co. v. United States, 2 Cir., 191 F. 798, 800; United States v. Charles L. Heinle Specialty Co., D.C., 175 F. 299, 300, 301. There was no liability for issuing a false guaranty as such to one engaged in an interstate business. But in the 1938 Act, Congress added a new liability in the form , 437] of 301(h), making the guarantor liable for giving a false guaranty of the type referred to in 303(c)(2). We find it impossible to say that the framers of the 1938 Act added 301(h) for the useless purpose of achieving the same result as had been reached under the 1906 Act without such a provision. We thus conclude that 301(h) definitely proscribes the giving of a false guaranty to one engaged wholly or partly in an interstate business irrespective of whether that guaranty leads in any particular instance to an illegal shipment in interstate commerce. Such a construction is entirely consistent with the interstate setting of the Act. A manufacturer or processor ordinarily has no way of knowing whether a dealer, whose business includes making interstate sales, will redistribute a particular shipment in interstate or intrastate commerce. But if he guarantees that his product is not adulterated or misbranded within the meaning of the Act, he clearly intends to assure the dealer that the latter may redistribute the product in interstate commerce without ncurring a ny of the liabilities of the Act. And the dealer is thereby more likely to engage in interstate distribution without making an independent check of the product. The possibility that a false guaranty may give rise to an illegal interstate shipment by such a dealer is strong enough to make reasonable the prohibition of all false guaranties to him, even though some of them may actually result only in intrastate distribution. By this means, some of the evils which Congress sought to eliminate are cut down at their source and the effectiveness of the Act's enforcement is greatly enhanced. So construed, 301(h) raises no constitutional difficulties. The commerce clause of the Constitution is not to be interpreted so as to deny to Congress the power to make effective its regulation of interstate commerce. , 438] Where that effectiveness depends upon a regulation or prohibition attaching regardless of whether the particular transaction in issue is interstate or intrastate in character, a transaction that concerns a business generally engaged in interstate commerce, Congress may act. Such is this case. The judgment of the District Court is accordingly reversed. Reversed. Mr. Justice JACKSON (dissenting). Stretch the Food and Drugs Act as we will, I cannot make it cover this charge as a crime. The statutory scheme is to make a crime of 'The introduction or delivery for introduction into interstate commerce' of adulterated or misbranded goods. 52 Stat. 1042, 21 U.S.C. 331(a) and (d), 21 U.S.C.A. 331(a, d). But since many shippers buy goods of others and do not know their precise ingredients, Congress allowed an escape for the violator, provided he acted in good faith and could trace the responsibility to another. This he must do by producing a signed guaranty or undertaking, and the statute requires that it shall be conditioned 'to the effect, in case of an alleged violation of 331(a), that such article is not adulterated or misbranded * * * or to the effect, in case of an alleged violation of 331(d), that such article is not an article' forbidden shipment by stated paragraphs of the Act. (Emphasis added.) 52 Stat. 1043, 21 U.S.C. 333(c), 21 U.S.C.A. 333(c). It will be noticed that Congress not only provided but repeated that the statutory bond required is 'in case of an alleged violation' by introducing or delivering for introduction of goods in interstate commerce. No such violation has been alleged here; these goods were never introduced or delivered for introduction into interstate , 439] commerce. But the Court seems to think it is enough that there are some grounds for expecting that this crime possibly, or probably, or perhaps pretty certainly, would eventually be committed. Of course, if the assured had committed this offense and had fallen back on the guarantor, the statute which reached the assured would not be sufficient. To punish the responsible person, it was made a crime to give a false guaranty 'referred to in' the statute. 52 Stat. 1042, 21 U.S.C. 331(h), 21 U.S.C.A. 331(h). The Government now seeks to exact criminal responsibility on a guarantee, expressly conditioned only 'in case of violation,' in a case of no violation. Until a violation is alleged, the guaranty plays no statutory role at all. It might afford a cause of action if false, but that is quite different from making it a crime. For it is no guaranty at all for criminal prosecution purposes if violation of neither 331(a) nor 331(d) is alleged. The statute requires such violation to be alleged only, not proved, in order to put the guarantor rather than the assured to the proof. This is the only instance I recall where the guarantor is liable when there is no breach of the condition of the bond. The whole plan was to have a substituted liability in case the violator of the Act became such in good faith. This decision makes a new, independent and original liability where there has been no alleged violation by moving the goods in interstatecommerce. I do not think we should take such liberties in expanding criminal statutes in which the sovereign once was considered under a duty to be explicit and the subject entitled to the doubt.

Under United States v. Sells Engineering, Inc., , attorneys for the Civil Division (CD) of the Department of Justice (DOJ) may not automatically obtain disclosure of grand jury materials for use in a civil suit, but must instead seek a district court disclosure order under Rule 6(e)(3)(C)(i) of the Federal Rules of Criminal Procedure, which order is available upon a showing of "particularized need." After an extensive investigation, a grand jury that had been convened by attorneys from the DOJ's Antitrust Division (AD) was discharged upon their conclusion that, although respondents had engaged in price fixing violative of the Sherman Act, criminal prosecution was unwarranted under the circumstances. Subsequently, in preparation for a possible civil action against respondents, the AD attorneys reviewed materials furnished to the grand jury and concluded that respondents had violated the False Claims Act, primary enforcement responsibility for which rests in the CD. Because they wished to consult with CD lawyers and also with the appropriate local United States Attorney before bringing suit, the AD lawyers obtained a Rule 6(e) order allowing them to disclose grand jury material to six named Government attorneys. The District Court denied respondents' motions to vacate the disclosure order and to enjoin the Government from using the grand jury information in the anticipated civil suit. However, after allowing the Government to file a complaint under seal, the Court of Appeals reversed both aspects of the District Court's denial of relief to respondents, holding that, because the AD attorneys were now involved only in civil proceedings, they were forbidden from making continued use of grand jury information without first obtaining a court order, and that disclosure to the six attorneys for consultation purposes was not supported by an adequate showing of "particularized need." Nonetheless, the court took no action with respect to the complaint, concluding that it disclosed nothing about the grand jury investigation.Held: 1. An attorney who conducted a criminal prosecution may make continued use of grand jury materials in the civil phase of the dispute without obtaining a court order to do so under Rule 6(e). The Rule forbids a Government attorney to "disclose" material, which word cannot be interpreted to embrace a solitary reexamination of grand jury material in the privacy of an attorney's office. Thus, by its plain language, the Rule merely prohibits those who already have legitimate access to grand jury material from revealing the material to others not authorized to receive it. Respondents' contention that disclosure to unauthorized outsiders will result inevitably when a civil complaint is filed is refuted by the record, which indicates that the complaint the DOJ filed did not quote or refer to any grand jury transcripts, documents, or witnesses, refer to the existence of a grand jury, or indirectly disclose grand jury material. Pp. 107-111. 2. Pursuant to the considerations described in Sells, there was a "particularized need" for disclosure of the grand jury materials to the CD lawyers and the United States Attorney. Disclosure was requested to enable the AD lawyers to obtain the full benefit of the experience and expertise of the other Government lawyers, and thus serves the public purpose of efficient, effective, and evenhanded enforcement of federal statutes. Since the contemplated use of the material might result in a decision not to proceed with a civil action, the disclosure could have the effect of saving the Government, the potential defendants, and the witnesses costly and time-consuming discovery. The disclosure's public benefits clearly outweigh its dangers, since it poses comparatively little risk to grand jury secrecy, to the integrity of the grand jury itself, or to the normal civil limitations on the Government's discovery and investigative powers. The Court of Appeals exaggerated the significance of potential alternative information sources by means of discovery under the Antitrust Civil Process Act. Wide discretion must be afforded district courts in evaluating the appropriateness of disclosure, and the District Court here did not abuse its discretion. Pp. 111-117. 774 F.2d 34, reversed.STEVENS, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and POWELL, O'CONNOR, and SCALIA, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 117. WHITE, J., took no part in the consideration or decision of the case.Deputy Solicitor General Cohen argued the cause for the United States. With him on the briefs were Solicitor General Fried, Assistant Attorneys General Ginsburg and Willard, Deputy Assistant Attorney General Cannon, Paul J. Larkin, Jr., Robert B. Nicholson, Douglas N. Letter, Anna Swerdel, and Carolyn G. Mark. Paul R. Grand argued the cause for respondents. With him on the brief were Theodore V. Wells, Jr., Walter Sterling Surrey, Carol M. Welu, and Howard Adler, Jr.* [Footnote *] J. Randolph Wilson, William H. Allen, David A. Donohoe, Owen M. Johnson, Jr., and Paul B. Hewitt filed a brief for Archer-Daniels-Midland Co. et al. as amici curiae urging affirmance.JUSTICE STEVENS delivered the opinion of the Court.In United States v. Sells Engineering, Inc., , we held that attorneys for the Civil Division of the Justice Department may not automatically obtain disclosure of grand jury materials for use in a civil suit, but must instead seek a court order of disclosure, available upon a showing of "particularized need." We explicitly left open the "issue concerning continued use of grand jury materials, in the civil phase of a dispute, by an attorney who himself conducted the criminal prosecution." Id., at 431, n. 15. Today, we decide that open question. In addition, for the first time, we review a concrete application of the "particularized need" standard to a request for disclosure to Government attorneys.IIn March 1982, attorneys in the Antitrust Division of the Department of Justice were authorized to conduct a grand jury investigation of three American corporations suspected of conspiring to fix the price of tallow being sold to a foreign government and financed by the Department of State's Agency for International Development. After subpoenaing thousands of documents from the three corporate respondents, and taking the testimony of numerous witnesses, including the five individual respondents, the Department of Justice conferred with some of respondents' attorneys and concluded that although respondents had violated 1 of the Sherman Act, 15 U.S.C. 1, criminal prosecution was not warranted under the circumstances. In early June 1984, the grand jury was discharged without returning any indictments.On June 28, 1984, the attorneys who had been in charge of the grand jury investigation served Civil Investigative Demands (CID's), pursuant to the Antitrust Civil Process Act, 76 Stat. 548, as amended, 15 U.S.C. 1311-1314, on approximately two dozen persons and entities, including the corporate respondents, calling for the production of various documents. The Antitrust Division advised each respondent that it could comply with the CID by certifying that the requested documents had already been furnished to the grand jury. Two of the corporate respondents refused to do so, and also refused to furnish any additional copies of the documents.After further investigation, the Antitrust Division attorneys came to the tentative conclusion that respondents had violated the False Claims Act, 31 U.S.C. 3729-3731, and the Foreign Assistance Act, 22 U.S.C. 2151-2429 (1982 ed. and Supp. III), as well as the Sherman Act. Because the Civil Division of the Department of Justice has primary responsibility for enforcing the False Claims Act, see 28 CFR 0.45(d) (1986), the Antitrust Division deemed it appropriate to consult with lawyers in the Civil Division before initiating a civil action. Additionally, because of the venue of the contemplated civil action, the Antitrust Division felt it necessary to consult with the United States Attorney for the Southern District of New York. Accordingly, the Antitrust Division lawyers filed a motion in the District Court for the Southern District of New York requesting an order under Federal Rule of Criminal Procedure 6(e) allowing them to disclose grand jury material to six named Government attorneys and such associates as those attorneys might designate. After an ex parte hearing, the District Court granted the motion, based on its finding that the Government's interest in coordinating fair and efficient enforcement of the False Claims Act, and obtaining the Civil Division's and United States Attorney's expert consultation, constituted a particularized need for the requested disclosure.On March 6, 1985, the Government advised respondents that the Rule 6(e) order had previously been entered and that a civil action would be filed against them within two weeks. Respondents immediately moved to vacate the Rule 6(e) order and, additionally, to enjoin the Government from using the grand jury information in "preparing, filing, or litigating" the anticipated civil action. The District Court denied both forms of relief. Respondents immediately appealed, and also moved for immediate interim relief from the Court of Appeals for the Second Circuit. The Court of Appeals granted partial relief, allowing the Government to file a complaint, but ordering that it be filed under seal.After expedited consideration, The Court of Appeals reversed both aspects of the District Court's order. In re Grand Jury Investigation, 774 F.2d 34 (1985). First, the court examined the issue left open in Sells, and agreed with respondents that, because the attorneys who had worked on the grand jury investigation were now involved only in civil proceedings, the attorneys were forbidden from making continued use of grand jury information without first obtaining a court order. 774 F.2d, at 40-43. Nonetheless, the Court of Appeals took no action with respect to the complaint that had been filed, because the court concluded that the complaint disclosed nothing about the grand jury investigation. Id., at 42. With respect to the District Court's order allowing disclosure to the six attorneys for consultation purposes, the Court of Appeals held that the order was not supported by an adequate showing of "particularized need." Id., at 37-40. We granted certiorari, , and now reverse.1 IIThe "General Rule of Secrecy" set forth in Federal Rule of Criminal Procedure 6(e) provides that certain persons, including attorneys for the Government, "shall not disclose matters occuring before the grand jury, except as otherwise provided for in these rules."2 Unlike our previous decisions in this area, which have primarily involved exceptions to the general rule,3 this case involves a more preliminary question: what constitutes disclosure? The Court of Appeals acknowledged that "to characterize [attorneys'] continued access in the civil phase to the materials to which they had access in the criminal phase as disclosure within the meaning of rule 6(e) seems fictional at first glance." 774 F.2d, at 40. But the Court of Appeals reasoned that the attorneys could not possibly remember all the details of the grand jury investigation and therefore the use of grand jury materials "to refresh their recollection as to documents or testimony to which they had access in the grand jury proceeding is tantamount to a further disclosure." Ibid.Contrary to the Court of Appeals' conclusion, it seems plain to us that Rule 6(e) prohibits those with information about the workings of the grand jury from revealing such information to other persons who are not authorized to have access to it under the Rule. The Rule does not contain a prohibition against the continued use of information by attorneys who legitimately obtained access to the information through the grand jury investigation. The Court of Appeals' reasoning is unpersuasive because it stretches the plain meaning of the Rule's language much too far. It is indeed fictional - and not just "at first glance" - to interpret the word "disclose" to embrace a solitary reexamination of material in the privacy of an attorney's office.4 For example, it is obvious that the prohibition against disclosure does not mean that an attorney who prepared a legal memorandum (which happens to include some information about matters related to the workings of the grand jury) for his file, is barred from looking at the memorandum once the grand jury investigation terminates. As the Court of Appeals for the Eighth Circuit recently concluded, "[f]or there to be a disclosure, grand jury matters must be disclosed to someone." United States v. Archer-Daniels-Midland Co., 785 F.2d 206, 212 (1986), cert. pending, No. 85-1840.Because we decide this case based on our reading of the Rule's plain language, there is no need to address the parties' arguments about the extent to which continued use threatens some of the values of grand jury privacy indentified in our cases5 and cataloged in Sells Engineering, 463 U.S., at 432-433. While such arguments are relevant when language is susceptible of more than one plausible interpretation, we have recognized that in some cases "[w]e do not have before us a choice between a `liberal' approach toward [a Rule], on the one hand, and a `technical' interpretation of the Rule, on the other hand. The choice, instead, is between recognizing or ignoring what the Rule provides in plain language. We accept the Rule as meaning what it says." Schiavone v. Fortune, . As for the policy arguments, it suffices to say that, as the Court of Appeals recognized, the implications of our construction are not so absurd or contrary to Congress' aims as to call into question our construction of the plain meaning of the term "disclosure" as used in this Rule.Respondents urge in the alternative that Rule 6(e) prohibits attorneys' continued use of grand jury materials because the filing of a civil complaint itself discloses grand jury materials to outsiders. Respondents argue that such disclosure is inevitable because a civil complaint's factual allegations will invariably be based on information obtained during the grand jury investigation. This hypothetical fear is not substantiated by the record in this case. The Court of Appeals stated that the Government's complaint "does not quote from or refer to any grand jury transcripts or documents subpoenaed by the grand jury, and does not mention any witnesses before the grand jury, or even refer to the existence of a grand jury." 774 F.2d, at 37. Nor do respondents identify anything in the complaint that indirectly discloses grand jury information. We have no basis for questioning the accuracy of the Court of Appeals' conclusion that the filing of the complaint did not constitute a prohibited disclosure. A Government attorney may have a variety of uses for grand jury material in a planning stage, even though the material will not be used, or even alluded to, in any filing or proceeding.6 In this vein, it is important to emphasize that the issue before us is only whether an attorney who was involved in a grand jury investigation (and is therefore presumably familiar with the "matters occurring before the grand jury") may later review that information in a manner that does not involve any further disclosure to others. Without addressing the very different matter of an attorney's disclosing grand jury information to others, inadvertently or purposefully, in the course of a civil proceeding, we hold that Rule 6(e) does not require the attorney to obtain a court order before refamiliarizing himself or herself with the details of a grand jury investigation.IIIThe Department of Justice properly recognized that under our holding in Sells it could not disclose information to previously uninvolved attorneys from the Civil Division or the United States Attorney's office without a court order pursuant to Rule 6(e)(3)(C)(i).7 Upon the Department's motion, the District Court granted an order, finding a "particularized need for disclosure" pursuant to the considerations described in Sells. The District Court accepted the Government's argument that consultation and coordination between the Civil Division, the United States Attorney, and the Antitrust Division was necessary to ensure consistent enforcement of the False Claims Act and "the fair and evenhanded administration of justice." App. 14. The Court of Appeals reversed on this point, however, concluding that disclosure was unnecessary because the same information could eventually have been obtained through civil discovery.In Sells we noted that Rule 6(e) itself does not prescribe the substantive standard governing the issuance of an order pursuant to Rule 6(e)(3)(C)(i) and that the case law that had developed in response to requests for disclosure by private parties had consistently required "a strong showing of particularized need" before disclosure is permitted. 463 U.S., at 443-445; see generally Douglas Oil Co. v. Petrol Stops Northwest, .8 Although we held that this same standard applies where a court is asked to order disclosure to a government attorney, see 463 U.S., at 443-444; Illinois v. Abbott & Associates, Inc., , we made it clear that the concerns that underlie the policy of grand jury secrecy are implicated to a much lesser extent when the disclosure merely involves Government attorneys."Nothing in Douglas Oil, however, requires a district court to pretend that there are no differences between governmental bodies and private parties. The Douglas Oil standard is a highly flexible one, adaptable to different circumstances and sensitive to the fact that the requirements of secrecy are greater in some situations than in others. Hence, although Abbott and the legislative history foreclose any special dispensation from the Douglas Oil standard for Government agencies, the standard itself accommodates any relevant considerations, peculiar to Government movants, that weigh for or against disclosure in a given case. For example, a district court might reasonably consider that disclosure to Justice Department attorneys poses less risk of further leakage or improper use than would disclosure to private parties or the general public. Similarly, we are informed that it is the usual policy of the Justice Department not to seek civil use of grand jury materials until the criminal aspect of the matter is closed. Cf. Douglas Oil, supra, at 222-223. And `under the particularized-need standard, the district court may weigh the public interest, if any, served by disclosure to a governmental body ... .' Abbott, supra, at 567-568, n. 15. On the other hand, for example, in weighing the need for disclosure, the court could take into account any alternative discovery tools available by statute or regulation to the agency seeking disclosure." 463 U.S., at 445. In this case, the disclosures were requested to enable the Antitrust Division lawyers who had conducted the grand jury investigation to obtain the full benefit of the experience and expertise of the Civil Division lawyers who regularly handle litigation under the False Claims Act, and of the local United States Attorney who is regularly consulted before actions are filed in his or her district. The public purposes served by the disclosure - efficient, effective, and evenhanded enforcement of federal statutes - are certainly valid and were not questioned by the Court of Appeals. Particularly because the contemplated use of the material was to make a decision on whether to proceed with a civil action, the disclosure here could have had the effect of saving the Government, the potential defendants, and witnesses the pains of costly and time-consuming depositions and interrogatories which might have later turned out to be wasted if the Government decided not to file a civil action after all. To be sure, as we recognized in Sells, not every instance of "saving time and expense" justifies disclosure. Id., at 431. The question that must be asked is whether the public benefits of the disclosure in this case outweigh the dangers created by the limited disclosure requested. In Sells we recognized three types of dangers involved in disclosure of grand jury information to Government attorneys for use related to civil proceedings. First, we stated that disclosure not only increases the "number of persons to whom the information is available (thereby increasing the risk of inadvertent or illegal release to others), but also it renders considerably more concrete the threat to the willingness of witnesses to come forward and to testify fully and candidly." Id., at 432 (footnote omitted). Neither of these fears is well founded with respect to the narrow disclosure involved in this case. The disclosure of a summary of a portion of the grand jury record to named attorneys for purposes of consultation does not pose the same risk of a wide breach of grand jury secrecy as would allowing unlimited use of the material to all attorneys in another division - the disclosure involved in Sells. Moreover, the fact that the grand jury had already terminated mitigates the damage of a possible inadvertent disclosure. See id., at 445. Finally, because the disclosure authorized in this case would not directly result in any witness' testimony being used against him or her in a civil proceeding, there is little fear that the disclosure will have any effect on future grand jury testimony.The second concern identified in Sells is the threat to the integrity of the grand jury itself. We explained that if "prosecutors in a given case knew that their colleagues would be free to use the materials generated by the grand jury for a civil case, they might be tempted to manipulate the grand jury's powerful investigative tools to root out additional evidence useful in the civil suit, or even to start or continue a grand jury inquiry where no criminal prosecution seemed likely." Id., at 432. The discussion of this concern in Sells dealt with whether the Civil Division should be given unfettered access to grand jury materials. We think the concern is far less worrisome when the attorneys seeking disclosure must go before a court and demonstrate a particularized need prior to any disclosure, and when, as part of that inquiry, the district court may properly consider whether the circumstances disclose any evidence of grand jury abuse. In this case, for example, one of the Government attorneys involved in the criminal investigation submitted an affidavit attesting to the Department's good faith in conducting the grand jury investigation, App. 17-19, and there has been no evidence or allegation to the contrary. The fact that a court is involved in this manner lessens some of the usual difficulty in detecting grand jury abuse. See Sells, 463 U.S., at 432. Moreover, we think the fear of abuse is minimal when the civil use contemplated is simply consultation with various Government lawyers about the prudence of proceeding with a civil action.The final concern discussed in Sells is that "use of grand jury materials by Government agencies in civil or administrative settings threatens to subvert the limitations applied outside the grand jury context on the Government's powers of discovery and investigation." Id., at 433. We continue to believe that this is an important concern, but it is not seriously implicated when the Government simply wishes to use the material for consultation. Of course, when the Government requests disclosure for use in an actual adversarial proceeding, this factor (as well as the others) may require a stronger showing of necessity. We have explained that "as the considerations justifying secrecy become less relevant, a party asserting a need for grand jury [material] will have a lesser burden in showing justification." Douglas Oil, 441 U.S., at 223.Although it recognized that the disclosure in this case did not seriously threaten the values of grand jury secrecy, the Court of Appeals nonetheless concluded that the request for disclosure should have been denied because virtually all of the relevant information could have been obtained from respondents through discovery under the Antitrust Civil Process Act.9 The Court of Appeals believed that the delay and expense that would be caused by such duplicative discovery was not a relevant factor in the particularized need analysis. 774 F.2d, at 39.While the possibility of obtaining information from alternative sources is certainly an important factor, we believe that the Court of Appeals exaggerated its significance in this case. Even if we assume that all of the relevant material could have been obtained through the civil discovery tools available to the Government,10 our precedents do not establish a per se rule against disclosure. Rather, we have repeatedly stressed that wide discretion must be afforded to district court judges in evaluating whether disclosure is appropriate. See Douglas Oil, 441 U.S., at 228; id., at 236-237 (STEVENS, J., dissenting); Pittsburgh Plate Glass Co. v. United States, . The threat to grand jury secrecy was minimal in this context, and under the circumstances, the District Court properly considered the strong "public interests served" through disclosure. See Sells, 463 U.S., at 445; id., at 469-470 (Burger, C. J., dissenting). As we noted in Sells, the governing standard is "a highly flexible one, adaptable to different circumstances and sensitive to the fact that the requirements of secrecy are greater in some situations than in others." Id., at 445. The District Court correctly examined the relevant factors and we cannot say that it abused its discretion in determining that the equities leaned in favor of disclosure.11 The judgment of the Court of Appeals is Reversed. JUSTICE WHITE took no part in the consideration or decision of this case.

Holding that 2 (b) of the Clayton Act, as amended by the Robinson-Patman Act, 15 U.S.C. 13 (b), affords a seller a complete defense to a charge of price discrimination if its lower price was "made in good faith to meet a lawful and equally low price of a competitor," this Court remanded this case to the Federal Trade Commission for findings as to whether respondent so acted in selling gasoline to four comparatively large "jobber" customers in Detroit at a lower price than it sold like gasoline to many comparatively small service station customers in the same area. Subsequently, without denying that respondent's lower prices were made to meet the equally low prices of its competitors, the Commission found that respondent's lower prices were made pursuant to a price system rather than being "the result of departures from a nondiscriminatory price scale," and, therefore, were not made "in good faith"; and it again ordered respondent to cease and desist from this practice. The Court of Appeals set aside the order on the ground that such a finding was not supported by the record. Held: The case turns on a factual issue, decided by the Court of Appeals upon a fair assessment of the record, and its judgment is affirmed. Pp. 397-404. (a) Whether on the record as a whole there is substantial evidence to support agency findings is a question which Congress has placed in the keeping of the Court of Appeals; and this Court will intervene only when the standard appears to have been misapprehended or grossly misapplied. Universal Camera Corp. v. Labor Board, . Pp. 400-401. (b) In determining that respondent's prices to these "jobbers" were reduced as a response to individual competitive situations rather than pursuant to a pricing system, which is solely a question of fact, the Court of Appeals made a "fair assessment" of the record in this case. Pp. 401-404. 233 F.2d 649, affirmed. Earl E. Pollock argued the cause for petitioner, pro hac vice, by special leave of Court. With him on the brief were Solicitor General Rankin, Assistant Attorney General Hansen, Earl W. Kintner and James E. Corkey.Hammond E. Chaffetz argued the cause for respondent. With him on the brief were Weymouth Kirkland, Howard Ellis, W. H. Van Oosterhout, Frederick M. Rowe and Thomas E. Sunderland.Cyrus Austin filed a brief for the National Congress of Petroleum Retailers, Inc., et al., as amici curiae, urging reversal.William Simon, Robert L. Wald and John Bodner, Jr. for the Empire State Petroleum Association et al. and Otis H. Ellis for the National Oil Jobbers Association, Inc., et al. filed a brief, as amici curiae, urging affirmance.MR. JUSTICE CLARK delivered the opinion of the Court.This case is a sequel to Standard Oil Co. v. Federal Trade Comm'n, , wherein the Court held that 2 (b) of the Clayton Act, 38 Stat. 730, as amended by the Robinson-Patman Act, 49 Stat. 1526, 15 U.S.C. 13 (b), afforded a seller a complete defense to a charge of price discrimination if its lower price was "made in good faith to meet a lawful and equally low price of a competitor." 340 U.S., at 246. We remanded the case with instructions that the Federal Trade Commission make findings on Standard's contention that its discriminatory prices were so made. The subsequent findings are not altogether clear. The Commission, acting on the same record, seemingly does not contest the fact that Standard's deductions were made to meet the equally low prices of its competitors. However, Standard was held not to have acted in good faith, and the 2 (b) defense precluded, because of the Commission's determination that Standard's reduced prices were made pursuant to a price system rather than being "the result of departures from a nondiscriminatory price scale." 49 F. T. C. 923, 954. The Court of Appeals found no basis in the record for such a finding and vacated the order of the Commission, holding that Standard's "`good faith' defense was firmly established." 233 F.2d 649, 655. In view of our former opinion and the importance of bringing an end to this protracted litigation, we granted certiorari. . Having concluded that the case turns on a factual issue, decided by the Court of Appeals upon a fair assessment of the record, we affirm the decision below.The long history of this 17-year-old case may be found both in the original opinion of the Court of Appeals, 173 F.2d 210, and in the original opinion of this Court, supra. The case arose as a companion to similar complaints filed by the Commission against Gulf Oil Company, the Texas Company, and Shell Oil Company. In its petition for certiorari, the Commission stresses the existence of an industry-wide "dual price system," asserting that the decision below would "insulate from attack a price pattern deeply entrenched in the industry - not only in the Detroit area, but also elsewhere in the country." The pendency of the Gulf, Texas, and Shell complaints is mentioned twice, and the Commission states in a footnote that "[p]roceedings thereon have been deferred until the disposition of this case." However, on April 3, 1957, the Commission decided that "it will not now be practicable to try the issues raised" in the companion complaints "irrespective of the final outcome of ... the matter of Standard Oil Company," and dismissed all three of the companion cases. The claim that the asserted dual pricing system was of industry-wide scope is not vital to the Commission's position here, was not alleged in its complaint, and is not included among its findings;1 therefore, we limit our consideration of the pricing system contention to Standard alone.The Commission urges us to examine its 8-volume record of over 5,500 pages and determine if its finding that Standard reduced prices to four "jobbers"2 pursuant to a pricing system was erroneous, as held by the Court of Appeals.3 The Commission contends that a 2 (b) defense is precluded if the reductions were so made. If wrong in this, it maintains that the "good faith" element of a 2 (b) defense is not made out by showing that competitors employ such a pricing system,4 and in any event is negatived by Standard's failure to make a bona fide effort to review its pricing system upon passage of the Robinson-Patman Act.5 On the present posture of the case we believe that further review of the evidence is unwarranted. As stated in Federal Trade Comm'n v. American Tobacco Co., , although "[t]he statement of the petition for certiorari that the judgment and opinion below might seriously hinder future administration of the law was grave and sufficiently probable to justify issuance of the writ," it now appears that "[p]roper decision of the controversy depends upon a question of fact," and therefore "we adhere to the usual rule of non-interference where conclusions of Circuit Courts of Appeals depend on appreciation of circumstances which admit of different interpretations." Moreover, in Universal Camera Corp. v. Labor Board, , we decided that substantiality of evidence on the record as a whole to support agency findings "is a question which Congress has placed in the keeping of the Courts of Appeals. This Court will intervene only in what ought to be the rare instance when the standard appears to have been misapprehended or grossly misapplied." We do no more on the issue of insubstantiality than decide that the Court of Appeals has made a "fair assessment" of the record.6 That conclusion is strengthened by the fact that the finding made by the Court of Appeals accords with that of the trial examiner, two dissenting members of the Commission, and another panel of the Court of Appeals when the case was first before that court in 1949, all of them being agreed that the prices were reduced in good faith to meet offers of competitors.Both parties acknowledge that discrimination pursuant to a price system would preclude a finding of "good faith." Federal Trade Comm'n v. A. E. Staley Mfg. Co., ; Federal Trade Comm'n v. Cement Institute, ; Federal Trade Comm'n v. National Lead Co., . The sole question then is one of fact: were Standard's reduced prices to four "jobber" buyers - Citrin-Kolb, Stikeman, Wayne, and Ned's - made pursuant to a pricing system rather than to meet individual competitive situations? We have examined the findings of the Commission, which relies most heavily on the fact that no competitors' offers were shown to have been made to Citrin-Kolb, Stikeman, or Wayne prior to the time Standard initially granted them the reduced tank-car price.7 All three of these "jobbers," however, were granted the tank-car price before the passage of the Robinson-Patman Act in 1936, and the trial examiner excluded proof of pre-1936 offers on the ground of irrelevancy. The Commission approved this ruling, and on remand failed to reopen the record to take any further proof. In our former opinion in this case, we said, "There is no doubt that under the Clayton Act, before its amendment by the Robinson-Patman Act, [such] evidence would have been material and, if accepted, would have established a complete defense to the charge of unlawful discrimination." 340 U.S., at 239-240. The proof should have been admitted; its absence can hardly be relied on by the Commission now as a ground for reversal. In any event, the findings that were made are sufficient for our disposition of the case.It appears to us that the crucial inquiry is not why reduced prices were first granted to Citrin-Kolb, Stikeman, and Wayne, but rather why the reduced price was continued subsequent to passage of the Act in 1936. The findings show that both major and local suppliers made numerous attempts in the 1936-1941 period to lure these "jobbers" away from Standard with cut-rate prices, often-times much lower than the one-and-one-half-cent reduction Standard was giving them.8 It is uncontradicted, as pointed out in one of the Commission dissents, that Standard lost three of its seven "jobbers" by not meeting competitors' pirating offers in 1933-1934. All of this occurred in the context of a major gasoline price war in the Detroit area, created by an extreme overabundance of supply - a setting most unlikely to lend itself to general pricing policies. The Commission itself stated: "It may well be that [Standard] was convinced that if it ceased granting tank-car prices to Citrin-Kolb, Wayne, and Stikeman and continued to refuse the tank-car price to Ned's Auto Supply Company it would lose these accounts. It had substantial reasons for believing this to be the case, for all of these concerns, except Ned's Auto Supply Company, had already been recognized as entitled to the tank-car price under the commonly accepted standards of the industry, and Ned's had achieved a volume of distribution which brought it within the range where it was likely to be so recognized by a major oil company at any time." 49 F. T. C., at 952-953. The findings as to Ned's, the only one of the "jobbers" initially to receive the tank-car price post Robinson-Patman, are highly significant. After a prolonged period of haggling, during which Ned's pressured Standard with information as to numerous more attractive price offers made by other suppliers, Standard responded to an ultimatum from Ned's in 1936 with a half-cent-per-gallon reduction from the tank-wagon price. The Commission concedes that this first reduction occurred at a time when Ned's did not meet the criteria normally insisted upon by Standard before giving any reduction. Two years later, after a still further period of haggling9 and another Ned's ultimatum, Standard gave a second reduction of still another cent.In determining that Standard's prices to these four "jobbers" were reduced as a response to individual competitive situations rather than pursuant to a pricing system, the Court of Appeals considered the factors just mentioned, all of which weigh heavily against the Commission's position. The Commission's own findings thus afford ample witness that a "fair assessment" of the record has been made. Standard's use here of two prices, the lower of which could be obtained under the spur of threats to switch to pirating competitors, is a competitive deterrent far short of the discriminatory pricing of Staley, Cement, and National Lead, supra, and one which we believe within the sanction of 2 (b) of the Robinson-Patman Act. Affirmed.

New York statute limiting appointment of members of state police force to citizens of the United States held not to violate the Equal Protection Clause of the Fourteenth Amendment. Pp. 294-300. (a) Citizenship may be a relevant qualification for fulfilling those "important nonelective ... positions" held by "officers who participate directly in the formulation, execution, or review of broad public policy," Sugarman v. Dougall, . Strict equal protection scrutiny is not required to justify classifications applicable to such positions; a State need only show some rational relationship between the interest sought to be protected and the limiting classification. In deciding what level of scrutiny is to be applied, each position in question must be examined to determine whether it involves discretionary decisionmaking, or execution of policy, which substantially affects members of the political community. Pp. 294-297. (b) Police officials are clothed with authority to exercise an almost infinite variety of discretionary powers, calling for a very high degree of judgment and discretion, the exercise of which can seriously affect individuals. Police officers fall within the category of "important nonelective ... officers who participate directly in the ... execution ... of broad public policy." Dougall, supra, at 647 (emphasis added). In the enforcement and execution of the laws the police function is one where citizenship bears a rational relationship to the special demands of the particular position, and a State may therefore confine the performance of this important public responsibility to those who are citizens. Pp. 297-300. 419 F. Supp. 889, affirmed.BURGER, C. J., delivered the opinion of the Court, in which STEWART, WHITE, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed a concurring opinion, post, p. 300. BLACKMUN, J., filed an opinion concurring in the result, post, p. 300. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and STEVENS, JJ., joined, post, p. 302. STEVENS, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 307. Jonathan A. Weiss argued the cause for appellant. With him on the briefs was David S. Preminger.Judith A. Gordon, Assistant Attorney General of New York, argued the cause for appellees. With her on the brief were Louis J. Lefkowitz, Attorney General, and Samuel A. Hirshowitz, First Assistant Attorney General.* [Footnote *] Vilma S. Martinez and Morris J. Baller filed a brief for the Mexican American Legal Defense and Educational Fund, Inc., et al. as amici curiae urging reversal.MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We noted probable jurisdiction in this case to consider whether a State may constitutionally limit the appointment of members of its police force to citizens of the United States. .The appellant, Edmund Foley, is an alien eligible in due course to become a naturalized citizen, who is lawfully in this country as a permanent resident. He applied for appointment as a New York State trooper, a position which is filled on the basis of competitive examinations. Pursuant to a New York statute, N. Y. Exec. Law 215 (3) (McKinney 1972), state authorities refused to allow Foley to take the examination. The statute provides:"No person shall be appointed to the New York state police force unless he shall be a citizen of the United States." Appellant then brought this action in the United States District Court for the Southern District of New York, seeking a declaratory judgment that the State's exclusion of aliens from its police force violates the Equal Protection Clause of the Fourteenth Amendment. After Foley was certified as representative of a class of those similarly situated, a three-judge District Court was convened to consider the merits of the claim. The District Court held the statute to be constitutional. 419 F. Supp. 889 (1976). We affirm.IThe essential facts in this case are uncontroverted. New York Exec. Law 215 (3) (McKinney 1972) prohibits appellant and his class from becoming state troopers. It is not disputed that the State has uniformly complied with this restriction since the statute was enacted in 1927. Under it, an alien who desires to compete for a position as a New York State trooper must relinquish his foreign citizenship and become an American citizen. Some members of the class, including appellant, are not currently eligible for American citizenship due to waiting periods imposed by congressional enactment.1 A trooper in New York is a member of the state police force, a law enforcement body which exercises broad police authority throughout the State. The powers of troopers are generally described in the relevant statutes as including those functions traditionally associated with a peace officer. Like most peace officers, they are charged with the prevention and detection of crime, the apprehension of suspected criminals, investigation of suspect conduct, execution of warrants and have powers of search, seizure and arrest without a formal warrant under limited circumstances. In the course of carrying out these responsibilities an officer is empowered by New York law to resort to lawful force, which may include the use of any weapon that he is required to carry while on duty. All troopers are on call 24 hours a day and are required to take appropriate action whenever criminal activity is observed. Perhaps the best shorthand description of the role of the New York State trooper was that advanced by the District Court: "State police are charged with the enforcement of the law, not in a private profession and for the benefit of themselves and their clients, but for the benefit of the people at large of the State of New York." 419 F. Supp., at 896.IIAppellant claims that the relevant New York statute violates his rights under the Equal Protection Clause.The decisions of this Court with regard to the rights of aliens living in our society have reflected fine, and often difficult, questions of values. As a Nation we exhibit extraordinary hospitality to those who come to our country,2 which is not surprising for we have often been described as "a nation of immigrants." Indeed, aliens lawfully residing in this society have many rights which are accorded to noncitizens by few other countries. Our cases generally reflect a close scrutiny of restraints imposed by States on aliens. But we have never suggested that such legislation is inherently invalid, nor have we held that all limitations on aliens are suspect. See Sugarman v. Dougall, . Rather, beginning with a case which involved the denial of welfare assistance essential to life itself, the Court has treated certain restrictions on aliens with "heightened judicial solicitude," Graham v. Richardson, , a treatment deemed necessary since aliens - pending their eligibility for citizenship - have no direct voice in the political processes. See United States v. Carolene Products Co., , n. 4 (1938).3 Following Graham, a series of decisions has resulted requiring state action to meet close scrutiny to exclude aliens as a class from educational benefits, Nyquist v. Mauclet, ; eligibility for a broad range of public employment, Sugarman v. Dougall, supra; or the practice of licensed professions, Examining Board v. Flores de Otero, ; In re Griffiths, . These exclusions struck at the noncitizens' ability to exist in the community, a position seemingly inconsistent with the congressional determination to admit the alien to permanent residence. See Graham, supra, at 377-378; Barrett, Judicial Supervision of Legislative Classifications - A More Modest Role For Equal Protection?, 1976 B. Y. U. L. Rev. 89, 101.4 It would be inappropriate, however, to require every statutory exclusion of aliens to clear the high hurdle of "strict scrutiny," because to do so would "obliterate all the distinctions between citizens and aliens, and thus depreciate the historic values of citizenship." Mauclet, supra, at 14 (BURGER, C. J., dissenting). The act of becoming a citizen is more than a ritual with no content beyond the fanfare of ceremony. A new citizen has become a member of a Nation, part of a people distinct from others. Cf. Worcester v. Georgia, 6 Pet. 515, 559 (1832). The individual, at that point, belongs to the polity and is entitled to participate in the processes of democratic decisionmaking. Accordingly, we have recognized "a State's historical power to exclude aliens from participation in its democratic political institutions," Dougall, supra, at 648, as part of the sovereign's obligation "`to preserve the basic conception of a political community.'" 413 U.S., at 647.The practical consequence of this theory is that "our scrutiny will not be so demanding where we deal with matters firmly within a State's constitutional prerogatives." Dougall, supra, at 648. The State need only justify its classification by a showing of some rational relationship between the interest sought to be protected and the limiting classification. This is not intended to denigrate the valuable contribution of aliens who benefit from our traditional hospitality. It is no more than recognition of the fact that a democratic society is ruled by its people. Thus, it is clear that a State may deny aliens the right to vote, or to run for elective office, for these lie at the heart of our political institutions. See 413 U.S., at 647-649. Similar considerations support a legislative determination to exclude aliens from jury service. See Perkins v. Smith, 370 F. Supp. 134 (Md. 1974), aff'd, . Likewise, we have recognized that citizenship may be a relevant qualification for fulfilling those "important nonelective executive, legislative, and judicial positions," held by "officers who participate directly in the formulation, execution, or review of broad public policy." Dougall, supra, at 647. This is not because our society seeks to reserve the better jobs to its members. Rather, it is because this country entrusts many of its most important policy responsibilities to these officers, the discretionary exercise of which can often more immediately affect the lives of citizens than even the ballot of a voter or the choice of a legislator. In sum, then, it represents the choice, and right, of the people to be governed by their citizen peers. To effectuate this result, we must necessarily examine each position in question to determine whether it involves discretionary decisionmaking, or execution of policy, which substantially affects members of the political community.5 The essence of our holdings to date is that although we extend to aliens the right to education and public welfare, along with the ability to earn a livelihood and engage in licensed professions, the right to govern is reserved to citizens.IIIA discussion of the police function is essentially a description of one of the basic functions of government, especially in a complex modern society where police presence is pervasive. The police function fulfills a most fundamental obligation of government to its constituency. Police officers in the ranks do not formulate policy, per se, but they are clothed with authority to exercise an almost infinite variety of discretionary powers.6 The execution of the broad powers vested in them affects members of the public significantly and often in the most sensitive areas of daily life. Our Constitution, of course, provides safeguards to persons, homes and possessions, as well as guidance to police officers. And few countries, if any, provide more protection to individuals by limitations on the power and discretion of the police. Nonetheless, police may, in the exercise of their discretion, invade the privacy of an individual in public places, e. g., Terry v. Ohio, . They may under some conditions break down a door to enter a dwelling or other building in the execution of a warrant, e. g., Miller v. United States, , or without a formal warrant in very limited circumstances; they may stop vehicles traveling on public highways, e. g., Pennsylvania v. Mimms, . An arrest, the function most commonly associated with the police, is a serious matter for any person even when no prosecution follows or when an acquittal is obtained. Most arrests are without prior judicial authority, as when an officer observes a criminal act in progress or suspects that felonious activity is afoot. Even the routine traffic arrests made by the state trooper - for speeding, weaving, reckless driving, improper license plates, absence of inspection stickers, or dangerous physical condition of a vehicle, to describe only a few of the more obvious common violations - can intrude on the privacy of the individual. In stopping cars, they may, within limits, require a driver or passengers to disembark and even search them for weapons, depending on time, place and circumstances. That this prophylactic authority is essential is attested by the number of police officers wounded or killed in the process of making inquiry in borderline, seemingly minor violation situations - for example, where the initial stop is made for a traffic offense but, unknown to the officer at the time, the vehicle occupants are armed and engaged in or embarked on serious criminal conduct.Clearly the exercise of police authority calls for a very high degree of judgment and discretion, the abuse or misuse of which can have serious impact on individuals.7 The office of a policeman is in no sense one of "the common occupations of the community" that the then Mr. Justice Hughes referred to in Truax v. Raich, . A policeman vested with the plenary discretionary powers we have described is not to be equated with a private person engaged in routine public employment or other "common occupations of the community" who exercises no broad power over people generally. Indeed, the rationale for the qualified immunity historically granted to the police rests on the difficult and delicate judgments these officers must often make. See Pierson v. Ray, ; cf. Scheuer v. Rhodes, .In short, it would be as anomalous to conclude that citizens may be subjected to the broad discretionary powers of noncitizen police officers as it would be to say that judicial officers and jurors with power to judge citizens can be aliens. It is not surprising, therefore, that most States expressly confine the employment of police officers to citizens,8 whom the State may reasonably presume to be more familiar with and sympathetic to American traditions.9 Police officers very clearly fall within the category of "important nonelective ... officers who participate directly in the ... execution ... of broad public policy." Dougall, 413 U.S., at 647 (emphasis added). In the enforcement and execution of the laws the police function is one where citizenship bears a rational relationship to the special demands of the particular position. A State may, therefore, consonant with the Constitution, confine the performance of this important public responsibility to citizens of the United States.10 Accordingly, the judgment of the District Court is Affirmed.

Petitioner Justus Rosemond took part in a drug deal in which either he or one of his confederates fired a gun. Because the shooter's identity was disputed, the Government charged Rosemond with violating 18 U. S. C. §924(c) by using or carrying a gun in connection with a drug trafficking crime, or, in the alternative, aiding and abetting that offense under 18 U. S. C. §2. The trial judge instructed the jury that Rosemond was guilty of aiding and abetting the §924(c) offense if he (1) "knew his cohort used a firearm in the drug trafficking crime" and (2) "knowingly and actively participated in the drug trafficking crime." This deviated from Rosemond's proposed instruction that the jury must find that he acted intentionally "to facilitate or encourage" the firearm's use, as opposed to merely the predicate drug offense. Rosemond was convicted, and the Tenth Circuit affirmed, rejecting his argument that the District Court's aiding and abetting instructions were erroneous.Held: 1. The Government establishes that a defendant aided and abetted a §924(c) violation by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime's commission. Pp. 5-16. (a) The federal aiding and abetting statute, which derives from common-law standards for accomplice liability, has two components. A person is liable under §2 only if he (1) takes an affirmative act in furtherance of the underlying offense (2) with the intent to facilitate that offense's commission. Pp. 5-6. (b) The first question is whether Rosemond's conduct was sufficient to satisfy the affirmative act requirement of aiding and abetting. Section 924(c) has two elements: a drug deal or violent crime, and using or carrying a firearm in connection with that crime. The instructions permitted the jury to convict Rosemond of aiding and abetting even if he facilitated only the drug element, and not the gun element, of the §924(c) offense. Those instructions were correct. The common law imposed aiding and abetting liability on a person who facilitated any element of a criminal offense, even if he did not facilitate all elements. That principle continues to govern §2. See, e.g., United States v. Johnson, 319 U. S. 503, 515. Pp. 6-11. (c) In addition to conduct extending to some part of the crime, aiding and abetting requires intent extending to the whole crime. The defendant must not just associate himself with the venture, but also participate in it as something that he wishes to bring about and seek by his actions to make it succeed. Nye & Nissen v. United States, 336 U. S. 613, 619. That requirement is satisfied when a person actively participates in a criminal venture with full knowledge of the circumstances constituting the charged offense. See Pereira v. United States, 347 U. S. 1, 12. An active participant in a drug transaction has the intent needed to aid and abet a §924(c) violation when he knows that one of his confederates will carry a gun. This must be advance knowledge — meaning, knowledge at a time when the accomplice has a reasonable opportunity to walk away. Pp. 11-16. 2. The trial court's jury instructions were erroneous because they failed to require that Rosemond knew in advance that one of his cohorts would be armed. In telling the jury to consider merely whether Rosemond "knew his cohort used a firearm," the court did not direct the jury to determine when Rosemond obtained the requisite knowledge — i.e., to decide whether Rosemond knew about the gun in sufficient time to withdraw from the crime. The case is remanded to permit the Tenth Circuit to address whether this objection was properly preserved and whether any error was harmless. Pp. 16-19.695 F. 3d 1151, vacated and remanded. Kagan, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, and Sotomayor, JJ., joined, and in which Scalia, J., joined in all but footnotes 7 and 8. Alito, J., filed an opinion concurring in part and dissenting in part, in which Thomas, J., joined.Opinion of the Court 572 U. S. ____ (2014)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 12-895JUSTUS C. ROSEMOND, PETITIONER v.UNITED STATESon writ of certiorari to the united states court of appeals for the tenth circuit[March 5, 2014] Justice Kagan delivered the opinion of the Court.* A federal criminal statute, §924(c) of Title 18, prohibits "us[ing] or carr[ying]" a firearm "during and in relation to any crime of violence or drug trafficking crime." In this case, we consider what the Government must show when it accuses a defendant of aiding or abetting that offense. We hold that the Government makes its case by proving that the defendant actively participated in the underlying drug trafficking or violent crime with advance knowledge that a confederate would use or carry a gun during the crime's commission. We also conclude that the jury instructions given below were erroneous because they failed to require that the defendant knew in advance that one of his cohorts would be armed.I This case arises from a drug deal gone bad. Vashti Perez arranged to sell a pound of marijuana to Ricardo Gonzales and Coby Painter. She drove to a local park to make the exchange, accompanied by two confederates, Ronald Joseph and petitioner Justus Rosemond. One of those men apparently took the front passenger seat and the other sat in the back, but witnesses dispute who was where. At the designated meeting place, Gonzales climbed into the car's backseat while Painter waited outside. The backseat passenger allowed Gonzales to inspect the marijuana. But rather than handing over money, Gonzales punched that man in the face and fled with the drugs. As Gonzales and Painter ran away, one of the male passengers — but again, which one is contested — exited the car and fired several shots from a semiautomatic handgun. The shooter then re-entered the vehicle, and all three wouldbe drug dealers gave chase after the buyers-turned-robbers. But before the three could catch their quarry, a police officer, responding to a dispatcher's alert, pulled their car over. This federal prosecution of Rosemond followed.2 The Government charged Rosemond with, inter alia, violating §924(c) by using a gun in connection with a drug trafficking crime, or aiding and abetting that offense under §2 of Title 18. Section 924(c) provides that "any person who, during and in relation to any crime of violence or drug trafficking crime[,] . . . uses or carries a firearm," shall receive a five-year mandatory-minimum sentence, with seven- and ten-year minimums applicable, respectively, if the firearm is also brandished or discharged. C. §924(c)(1)(A). Section 2, for its part, is the federal aiding and abetting statute: It provides that "[w]hoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission is punishable as a principal." Consistent with the indictment, the Government prosecuted the §924(c) charge on two alternative theories. The Government's primary contention was that Rosemond himself used the firearm during the aborted drug transaction. But recognizing that the identity of the shooter was disputed, the Government also offered a back-up argument: Even if it was Joseph who fired the gun as the drug deal fell apart, Rosemond aided and abetted the §924(c) violation. The District Judge accordingly instructed the jury on aiding and abetting law. He first explained, in a way challenged by neither party, the rudiments of §2. Under that statute, the judge stated, "[a] person who aids or abets another to commit an offense is just as guilty of that offense as if he committed it himself." App. 195. And in order to aid or abet, the defendant must "willfully and knowingly associate[ ] himself in some way with the crime, and . . . seek[ ] by some act to help make the crime succeed." Id., at 196. The judge then turned to applying those general principles to §924(c)--and there, he deviated from an instruction Rosemond had proposed. According to Rosemond, a defendant could be found guilty of aiding or abetting a §924(c) violation only if he "intentionally took some action to facilitate or encourage the use of the firearm," as opposed to the predicate drug offense. Id., at 14. But the District Judge disagreed, instead telling the jury that it could convict if "(1) the defendant knew his cohort used a firearm in the drug trafficking crime, and (2) the defendant knowingly and actively participated in the drug trafficking crime." Id., at 196. In closing argument, the prosecutor contended that Rosemond easily satisfied that standard, so that even if he had not "fired the gun, he's still guilty of the crime." Id., at 158. After all, the prosecutor stated, Rosemond "certainly knew [of] and actively participated in" the drug transaction. Ibid. "And with regards to the other element," the prosecutor urged, "the fact is a person cannot be present and active at a drug deal when shots are fired and not know their cohort is using a gun. You simply can't do it." Ibid. The jury convicted Rosemond of violating §924(c) (as well as all other offenses charged). The verdict form was general: It did not reveal whether the jury found that Rosemond himself had used the gun or instead had aided and abetted a confederate's use during the marijuana deal. As required by §924(c), the trial court imposed a consec-utive sentence of 120 months of imprisonment for the statute's violation. The Tenth Circuit affirmed, rejecting Rosemond's argument that the District Court's aiding and abetting instructions were erroneous.3 The Court of Appeals acknowledged that some other Circuits agreed with Rosemond that a defendant aids and abets a §924(c) offense only if he intentionally takes "some action to facilitate or encourage his cohort's use of the firearm." 695 F. 3d 1151, 1155 (2012).4 But the Tenth Circuit had already adopted a different standard, which it thought consonant with the District Court's instructions. See, e.g., United States v. Wiseman, 172 F. 3d 1196, 1217 (1999) (requiring that the defendant "actively participated in the" underlying crime and "knew [his confederate] was carrying [a] firearm"). And the Court of Appeals held that Rosemond had presented no sufficient reason for departing from that precedent. See 695 F. 3d, at 1156. We granted certiorari___ (2013), to resolve the Circuit conflict over what it takes to aid and abet a §924(c) offense. Although we disagree with Rosemond's principal arguments, we find that the trial court erred in instructing the jury. We therefore vacate the judgment below.II The federal aiding and abetting statute, 18 U. S. C. §2, states that a person who furthers — more specifically, who "aids, abets, counsels, commands, induces or procures"--the commission of a federal offense "is punishable as a principal." That provision derives from (though simplifies) common-law standards for accomplice liability. See, e.g., Standefer v. United States, 447 U. S. 10, 14-19 (1980); United States v. Peoni, 100 F. 2d 401, 402 (CA2 1938) (L. Hand, J.) ("The substance of [§2's] formula goes back a long way"). And in so doing, §2 reflects a centuries-old view of culpability: that a person may be responsible for a crime he has not personally carried out if he helps another to complete its commission. See J. Hawley & M. McGregor, Criminal Law 81 (1899). We have previously held that under §2 "those who provide knowing aid to persons committing federal crimes, with the intent to facilitate the crime, are themselves committing a crime." Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 181 (1994). Both parties here embrace that formulation, and agree as well that it has two components. See Brief for Petitioner 28; Brief for United States 14. As at common law, a person is liable under §2 for aiding and abetting a crime if (and only if) he (1) takes an affirmative act in furtherance of that offense, (2) with the intent of facili-tating the offense's commission. See 2 W. LaFave, Substantive Criminal Law §13.2, p. 337 (2003) (hereinafter LaFave) (an accomplice is liable as a principal when he gives "assistance or encouragement . . . with the intent thereby to promote or facilitate commission of the crime"); Hicks v. United States, 150 U. S. 442, 449 (1893) (an accomplice is liable when his acts of assistance are done "with the intention of encouraging and abetting" the crime). The questions that the parties dispute, and we here address, concern how those two requirements — affirmative act and intent — apply in a prosecution for aiding and abetting a §924(c) offense. Those questions arise from the compound nature of that provision. Recall that §924(c) forbids "us[ing] or carr[ying] a firearm" when engaged in a "crime of violence or drug trafficking crime." See supra, at 2. The prosecutor must show the use or carriage of a gun; so too he must prove the commission of a predicate (violent or drug trafficking) offense. See Smith v. United States, 508 U. S. 223, 228 (1993). For purposes of ascertaining aiding and abetting liability, we therefore must consider: When does a person act to further this double-barreled crime? And when does he intend to facilitate its commission? We address each issue in turn.A Consider first Rosemond's account of his conduct (divorced from any issues of intent). Rosemond actively par-ticipated in a drug transaction, accompanying two others to a site where money was to be exchanged for a pound of marijuana. But as he tells it, he took no action with respect to any firearm. He did not buy or borrow a gun to facilitate the narcotics deal; he did not carry a gun to the scene; he did not use a gun during the subsequent events constituting this criminal misadventure. His acts thus advanced one part (the drug part) of a two-part incident — or to speak a bit more technically, one element (the drug element) of a two-element crime. Is that enough to satisfy the conduct requirement of this aiding and abetting charge, or must Rosemond, as he claims, have taken some act to assist the commission of the other (firearm) component of §924(c)? The common law imposed aiding and abetting liability on a person (possessing the requisite intent) who facili-tated any part — even though not every part — of a criminal venture. As a leading treatise, published around the time of §2's enactment, put the point: Accomplice liability attached upon proof of "[a]ny participation in a general felonious plan" carried out by confederates. 1 F. Wharton, Criminal Law §251, p. 322 (11th ed. 1912) (hereinafter Wharton) (emphasis added). Or in the words of another standard reference: If a person was "present abetting while any act necessary to constitute the offense [was] being performed through another," he could be charged as a principal — even "though [that act was] not the whole thing necessary." 1 J. Bishop, Commentaries on the Criminal Law §649, p. 392 (7th ed. 1882) (emphasis added). And so "[w]here several acts constitute[d] together one crime, if each [was] separately performed by a different individual[,] . . . all [were] principals as to the whole." Id., §650, at 392.5 Indeed, as yet a third treatise underscored, a person's involvement in the crime could be not merely partial but minimal too: "The quantity [of assistance was] immaterial," so long as the accomplice did "something" to aid the crime. R. Desty, A Compendium of American Criminal Law §37a, p. 106 (1882) (emphasis added). After all, the common law maintained, every little bit helps — and a contribution to some part of a crime aids the whole. That principle continues to govern aiding and abetting law under §2: As almost every court of appeals has held, "[a] defendant can be convicted as an aider and abettor without proof that he participated in each and every element of the offense." United States v. Sigalow, 812 F. 2d 783, 785 (CA2 1987).6 In proscribing aiding and abetting, Congress used language that "comprehends all assistance rendered by words, acts, encouragement, support, or presence," Reves v. Ernst & Young, 507 U. S. 170, 178 (1993)--even if that aid relates to only one (or some) of a crime's phases or elements. So, for example, in upholding convictions for abetting a tax evasion scheme, this Court found "irrelevant" the defendants' "non-participation" in filing a false return; we thought they had amply facilitated the illegal scheme by helping a confederate conceal his assets. United States v. Johnson, 319 U. S. 503, 515, 518 (1943). "[A]ll who shared in [the overall crime's] execution," we explained, "have equal responsibility before the law, whatever may have been [their] different roles." Id., at 515. And similarly, we approved a conviction for abetting mail fraud even though the defendant had played no part in mailing the fraudulent documents; it was enough to sat-isfy the law's conduct requirement that he had in other ways aided the deception. See Pereira v. United States, 347 U. S. 1, 8-11 (1954). The division of labor between two (or more) confederates thus has no significance: A strategy of "you take that element, I'll take this one" would free neither party from liability.7 Under that established approach, Rosemond's participation in the drug deal here satisfies the affirmative-act requirement for aiding and abetting a §924(c) violation. As we have previously described, the commission of a drug trafficking (or violent) crime is — no less than the use of a firearm — an "essential conduct element of the §924(c) offense." United States v. Rodriguez-Moreno, 526 U. S. 275, 280 (1999); see supra, at 6. In enacting the statute, "Congress proscribed both the use of the firearm and the commission of acts that constitute" a drug trafficking crime. Rodriguez-Moreno, 526 U. S, at 281. Rosemond therefore could assist in §924(c)'s violation by facilitating either the drug transaction or the firearm use (or of course both). In helping to bring about one part of the offense (whether trafficking drugs or using a gun), he necessarily helped to complete the whole. And that ends the analysis as to his conduct. It is inconsequential, as courts applying both the common law and §2 have held, that his acts did not advance each element of the offense; all that matters is that they facilitated one component. Rosemond argues, to the contrary, that the requisite act here "must be directed at the use of the firearm," because that element is §924(c)'s most essential feature. Brief for Petitioner 33 (arguing that "it is the firearm crime" he was really charged with aiding and abetting, "not the drug trafficking crime"). But Rosemond can provide no author-ity for demanding that an affirmative act go toward an element considered peculiarly significant; rather, as just noted, courts have never thought relevant the importance of the aid rendered. See supra, at 7-8. And in any event, we reject Rosemond's premise that §924(c) is somehow more about using guns than selling narcotics. It is true enough, as Rosemond says in support of that theory, that §924(c) "establishes a separate, freestanding offense that is 'distinct from the underlying [drug trafficking crime].' " Brief for Petitioner 32 (quoting Simpson v. United States, 435 U. S. 6, 10 (1978)). But it is just as true that §924(c) establishes a freestanding offense distinct from any that might apply just to using a gun — say, for discharging a firearm in a public park. That is because §924(c) is, to coin a term, a combination crime. It punishes the temporal and relational conjunction of two separate acts, on the ground that together they pose an extreme risk of harm. See Muscarello v. United States, 524 U. S. 125, 132 (1998) (noting that §924(c)'s "basic purpose" was "to combat the dangerous combination of drugs and guns"). And so, an act relating to drugs, just as much as an act relating to guns, facilitates a §924(c) violation. Rosemond's related argument that our approach would conflate two distinct offenses — allowing a conviction for abetting a §924(c) violation whenever the prosecution shows that the defendant abetted the underlying drug trafficking crime — fares no better. See Brief for Petitioner 38. That is because, as we will describe, an aiding and abetting conviction requires not just an act facilitating one or another element, but also a state of mind extending to the entire crime. See infra, at 11. And under that rule, a defendant may be convicted of abetting a §924(c) violation only if his intent reaches beyond a simple drug sale, to an armed one. Aiding and abetting law's intent component — to which we now turn — thus preserves the distinction between assisting the predicate drug trafficking crime and assisting the broader §924(c) offense.B Begin with (or return to) some basics about aiding and abetting law's intent requirement, which no party here disputes. As previously explained, a person aids and abets a crime when (in addition to taking the requisite act) he intends to facilitate that offense's commission. See supra, at 5-6. An intent to advance some different or lesser offense is not, or at least not usually, sufficient: Instead, the intent must go to the specific and entire crime charged — so here, to the full scope (predicate crime plus gun use) of §924(c). See, e.g., 2 LaFave §13.2(c); W. Clark & W. Marshall, Law of Crimes, §187, pp. 251-253 (2d ed. 1905); ALI, Model Penal Code §2.06 Comment, p. 306 (1985).8 And the canonical formulation of that needed state of mind — later appropriated by this Court and oft-quoted in both parties' briefs — is Judge Learned Hand's: To aid and abet a crime, a defendant must not just "in some sort associate himself with the venture," but also "participate in it as in something that he wishes to bring about" and "seek by his action to make it succeed." Nye & Nissen v. United States (quoting Peoni, 100 F. 2d, at 402; see Brief for Petitioner 20, 28, 41; Brief for United States 14, 51. We have previously found that intent requirement satisfied when a person actively participates in a criminal venture with full knowledge of the circumstances constituting the charged offense. In Pereira, the mail fraud case discussed above, we found the requisite intent for aiding and abetting because the defendant took part in a fraud "know[ing]" that his confederate would take care of the mailing. 347 U. S., at 12; see supra, at 8. Likewise, in Bozza v. United States, we up-held a conviction for aiding and abetting the evasion of liquor taxes because the defendant helped operate a clandestine distillery "know[ing]" the business was set up "to violate Government revenue laws." And several Courts of Appeals have similarly held — addressing a fact pattern much like this one — that the unarmed driver of a getaway car had the requisite intent to aid and abet armed bank robbery if he "knew" that his confederates would use weapons in carrying out the crime. See, e.g., United States v. Akiti, 701 F. 3d 883, 887 (CA8 2012); United States v. Easter, 66 F. 3d 1018, 1024 (CA9 1995). So for purposes of aiding and abetting law, a person who actively participates in a criminal scheme knowing its extent and character intends that scheme's commission.9 The same principle holds here: An active participant in a drug transaction has the intent needed to aid and abet a §924(c) violation when he knows that one of his confederates will carry a gun. In such a case, the accomplice has decided to join in the criminal venture, and share in its benefits, with full awareness of its scope — that the plan calls not just for a drug sale, but for an armed one. In so doing, he has chosen (like the abettors in Pereira and Bozza or the driver in an armed robbery) to align himself with the illegal scheme in its entirety — including its use of a firearm. And he has determined (again like those other abettors) to do what he can to "make [that scheme] succeed." Nye & Nissen, 336 U. S., at 619. He thus becomes responsible, in the typical way of aiders and abettors, for the conduct of others. He may not have brought the gun to the drug deal himself, but because he took part in that deal knowing a confederate would do so, he intended the commission of a §924(c) offense — i.e., an armed drug sale. For all that to be true, though, the §924(c) defendant's knowledge of a firearm must be advance knowledge — or otherwise said, knowledge that enables him to make the relevant legal (and indeed, moral) choice. When an accomplice knows beforehand of a confederate's design to carry a gun, he can attempt to alter that plan or, if unsuccessful, withdraw from the enterprise; it is deciding instead to go ahead with his role in the venture that shows his intent to aid an armed offense. But when an accomplice knows nothing of a gun until it appears at the scene, he may already have completed his acts of assistance; or even if not, he may at that late point have no realistic opportunity to quit the crime. And when that is so, the defendant has not shown the requisite intent to assist a crime involving a gun. As even the Government concedes, an unarmed accomplice cannot aid and abet a §924(c) violation unless he has "foreknowledge that his confederate will commit the offense with a firearm." Brief for United States 38; see also infra, at 15-17. For the reasons just given, we think that means knowledge at a time the accomplice can do something with it — most notably, opt to walk away.10 Both parties here find something to dislike in our view of this issue. Rosemond argues that a participant in a drug deal intends to assist a §924(c) violation only if he affirmatively desires one of his confederates to use a gun. See Reply Brief 8-11. The jury, Rosemond concedes, could infer that state of mind from the defendant's advance knowledge that the plan included a firearm. See Tr. of Oral Arg. 5. But according to Rosemond, the instructions must also permit the jury to draw the opposite conclusion — that although the defendant participated in a drug deal knowing a gun would be involved, he did not spe-cifically want its carriage or use. That higher standard, Rosemond claims, is necessary to avoid subjecting persons of different culpability to the same punishment. Rosemond offers as an example an unarmed driver assisting in the heist of a store: If that person spent the drive "trying to persuade [his confederate] to leave [the] gun behind," then he should be convicted of abetting shoplifting, but not armed robbery. Reply Brief 9. We think not. What matters for purposes of gauging intent, and so what jury instructions should convey, is that the defendant has chosen, with full knowledge, to participate in the illegal scheme — not that, if all had been left to him, he would have planned the identical crime. Consider a variant of Rosemond's example: The driver of a getaway car wants to help rob a convenience store (and argues passionately for that plan), but eventually accedes when his confederates decide instead to hold up a national bank. Whatever his original misgivings, he has the requisite intent to aid and abet bank robbery; after all, he put aside those doubts and knowingly took part in that more dangerous crime. The same is true of an accomplice who knowingly joins in an armed drug transaction — regardless whether he was formerly indifferent or even resistant to using firearms. The law does not, nor should it, care whether he participates with a happy heart or a sense of foreboding. Either way, he has the same culpability, because either way he has knowingly elected to aid in the commission of a peculiarly risky form of offense. A final, metaphorical way of making the point: By virtue of §924(c), using a firearm at a drug deal ups the ante. A would-be accomplice might decide to play at those perilous stakes. Or he might grasp that the better course is to fold his hand. What he should not expect is the capacity to hedge his bets, joining in a dangerous criminal scheme but evading its penalties by leaving use of the gun to someone else. Aiding and abetting law prevents that outcome, so long as the player knew the heightened stakes when he decided to stay in the game. The Government, for its part, thinks we take too strict a view of when a defendant charged with abetting a §924(c) violation must acquire that knowledge. As noted above, the Government recognizes that the accused accomplice must have "foreknowledge" of a gun's presence. Brief for United States 38; see supra, at 13. But the Government views that standard as met whenever the accomplice, having learned of the firearm, continues any act of assisting the drug transaction. See Brief for United States 48. According to the Government, the jury should convict such a defendant even if he became aware of the gun only after he realistically could have opted out of the crime. But that approach, we think, would diminish too far the requirement that a defendant in a §924(c) prosecution must intend to further an armed drug deal. Assume, for example, that an accomplice agrees to participate in a drug sale on the express condition that no one brings a gun to the place of exchange. But just as the parties are making the trade, the accomplice notices that one of his confederates has a (poorly) concealed firearm in his jacket. The Government would convict the accomplice of aiding and abetting a §924(c) offense if he assists in completing the deal without incident, rather than running away or otherwise aborting the sale. See Tr. of Oral Arg. 40. But behaving as the Government suggests might increase the risk of gun violence — to the accomplice himself, other participants, or bystanders; and conversely, finishing the sale might be the best or only way to avoid that danger. In such a circumstance, a jury is entitled to find that the defendant intended only a drug sale — that he never intended to facilitate, and so does not bear responsibility for, a drug deal carried out with a gun. A defendant manifests that greater intent, and incurs the greater liability of §924(c), when he chooses to participate in a drug transaction knowing it will involve a firearm; but he makes no such choice when that knowledge comes too late for him to be reasonably able to act upon it.11III Under these principles, the District Court erred in instructing the jury, because it did not explain that Rosemond needed advance knowledge of a firearm's presence. Recall that the court stated that Rosemond was guilty of aiding and abetting if "(1) [he] knew his cohort used a firearm in the drug trafficking crime, and (2) [he] knowingly and actively participated in the drug trafficking crime." App. 196. We agree with that instruction's second half: As we have explained, active participation in a drug sale is sufficient for §924(c) liability (even if the conduct does not extend to the firearm), so long as the defendant had prior knowledge of the gun's involvement. See supra, at 9, 11-13. The problem with the court's instruction came in its description of that knowledge requirement. In telling the jury to consider merely whether Rosemond "knew his cohort used a firearm," the court did not direct the jury to determine when Rosemond obtained the requisite knowledge. So, for example, the jury could have convicted even if Rosemond first learned of the gun when it was fired and he took no further action to advance the crime. For that reason, the Government itself describes the instruction's first half as "potentially misleading," candidly explaining that "it would have been clearer to say" that Rosemond had to know that his confederate " ' would use' [a firearm] or something . . . that makes absolutely clear that you [need] foreknowledge." Tr. of Oral Arg. 48-49. We agree with that view, and then some: The court's statement failed to convey that Rosemond had to have advance knowledge, of the kind we have described, that a confederate would be armed. See supra, at 13, 15-16. The Government contends that this problematic instruction looks more accurate when viewed in context. In particular, the Government points to the District Court's prefatory "umbrella instruction" that to aid or abet a crime, a defendant must "willfully and knowingly seek[ ] by some act to help make the crime succeed." App. 196; Brief for United States 49. That statement, the Government rightly notes, "mirrors" Judge Hand's classic formulation. Tr. of Oral Arg. 33; see supra, at 11. But the statement is also pitched at a high level of generality. Immediately afterward, the District Court provided the jury with the two-pronged test noted above — thus indicating how the broad principle should apply to the specific charge of abetting a §924(c) offense. We therefore do not see how the "umbrella" statement could have cured the court's error. Indeed, a different contextual feature of the case would only have amplified that mistake. As earlier described, the prosecutor asserted in closing argument that the court's test was easily satisfied because "a person cannot be present and active at a drug deal when shots are fired and not know their cohort is using a gun." App. 158; see supra, at 3-4. The prosecutor thus invited the jury to convict Rosemond even if he first learned of the gun as it was discharged, and no matter what he did afterward. Once again, then, the message to the jury was that it need not find advance knowledge — exactly what we (and for that matter the Government) have said is required. We send this case back to the Tenth Circuit to consider the appropriate consequence, if any, of the District Court's error. The Government makes two arguments relevant to that inquiry. First, it contends that Rosemond failed to object specifically to the part of the trial court's instructions we have found wanting; thus, the Government asserts, a plain-error standard should apply to his claim. See Fed. Rule Crim. Proc. 52(b); Johnson v. United States, 520 U. S. 461, 465-467 (1997). Second, the Government argues that any error in the court's aiding and abetting instruction was harmless, because the jury must have found (based on another part of its verdict, not discussed here) that Rosemond himself fired the gun. Those claims were not raised or addressed below, and we see no special reason to decide them in the first instance. See Travelers Casualty & Surety Co. of America v. Pacific Gas & Elec. Co., 549 U. S. 443, 455 (2007). Accordingly, we vacate the judgment below and remand the case for further proceedings consistent with this opinion.It is so ordered.Opinion of Alito, J. 572 U. S. ____ (2014)No. 12-895JUSTUS C. ROSEMOND, PETITIONER v. UNITED STATESon writ of certiorari to the united states court of appeals for the tenth circuit[March 5, 2014] Justice Alito, with whom Justice Thomas joins, concurring in part and dissenting in part. I largely agree with the analysis in the first 12 pages of the opinion of the Court, but I strongly disagree with the discussion that comes after that point. Specifically, I reject the Court's conclusion that a conviction for aiding and abetting a violation of 18 U. S. C. §924(c) demands proof that the alleged aider and abettor had what the Court terms "a realistic opportunity" to refrain from engaging in the conduct at issue.1 Ante, at 13. This rule represents an important and, as far as I am aware, unprecedented alteration of the law of aiding and abetting and of the law of intentionality generally. To explain my disagreement with the Court's analysis, I begin with our case law on the mens rea required to establish aiding and abetting. There is some tension in our cases on this point. Specifically, some of our cases suggest that an aider and abettor must act purposefully or with intent. Prominent among these cases is Nye & Nissen v. United States, which the Court quotes. See ante, at 16, n. 10. In that case, the Court, quoting Judge Learned Hand's formulation in United States v. Peoni, 100 F. 2d 401 (CA2 1938), said that an aider and abettor must " 'participate in [the crime] as in something that he wishes to bring about, [and] seek by his action to make it succeed.' " 336 U. S., at 619. On the other hand, there are cases to which the Court also refers, ante, at 12, that appear to hold that the requisite mens rea is simply knowledge. See Pereira v. United States; Bozza v. United States. The Court refers interchangeably to both of these tests and thus leaves our case law in the same, somewhat conflicted state that previously existed. But because the difference between acting purposefully (when that concept is properly understood) and acting knowingly is slight, this is not a matter of great concern. Beginning on page 13, however, the Court veers off in a new and, to my mind, most unfortunate direction. The Court imagines the following situation:"[A]n accomplice agrees to participate in a drug sale on the express condition that no one brings a gun to the place of exchange. But just as the parties are making the trade, the accomplice notices that one of his confederates has a (poorly) concealed firearm in his jacket." Ante, at 15.If the accomplice, despite spotting the gun, continues to assist in the completion of the drug sale, has the accomplice aided and abetted the commission of a violation of §924(c)? The Court's answer is "it depends." Walking away, the Court observes, "might increase the risk of gun violence — to the accomplice himself, other participants, or bystanders; and conversely, finishing the sale might be the best or only way to avoid the danger." Ante, at 16. Moreover — and this is where the seriously misguided step occurs — the Court says that if the risk of walking away exceeds (by some unspecified degree) the risk created by completing the sale and if the alleged aider and abettor chooses to continue for that reason, the alleged aider and abettor lacks the mens rea required for conviction. See ante, at 16, n. 10. What the Court has done is to convert what has up to now been an affirmative defense into a part of the required mens rea, and this step has very important conceptual and practical consequences. It fundamentally alters the prior understanding of mental states that form the foundation of substantive criminal law, and it places a strange and difficult burden on the prosecution. That the Court has taken a radical step can be seen by comparing what the Court now holds with the traditional defense of necessity. That defense excuses a violation of law if "the harm which will result from compliance with the law is greater than that which will result from violation of it." 2 W. LaFave, Substantive Criminal Law §10.1, p. 116 (2003) (hereinafter LaFave).2 This is almost exactly the balance-of-risks calculus adopted by the Court, but under the traditional approach necessity is an affirmative defense. See, e.g., United States v. Bailey, 444 U. S. 394, 416 (1980). Necessity and the closely related defense of duress are affirmative defenses because they almost invariably do not negate the mens rea necessary to incur criminal liability. See 2 LaFave §10.1(a), at 118 ("The rationale of the necessity defense is not that a person, when faced with the pressure of circumstances of nature, lacks the mental element which the crime in question requires"); id., §9.7(a), at 73 (same for duress). This Court has made clear that, except in narrow circumstances, necessity and duress do not negate the mens rea required for conviction. In Dixon v. United States, the defendant was charged with "knowingly" and "willfully" committing certain criminal acts, but she claimed that she committed the acts only because her boyfriend had threatened to kill her or hurt her daughters if she did not do so. Id., at 4. She contended that she could not "have formed the necessary mens rea for these crimes because she did not freely choose to commit the acts in question," but we rejected that argument, explaining that "[t]he duress defense, like the defense of necessity . . . , may excuse conduct that would otherwise be punishable, but the existence of duress normally does not controvert any of the elements of the offense itself." Id., at 6. In a footnote, we suggested one situation in which the prosecution might be required to disprove duress, namely, where a particular crime demands proof that the accused acted "maliciously," which is to say "without justification or excuse." Ibid., n. 4 (internal quotation marks omitted). The Court justifies its holding on the ground that the mens rea standard articulated in Nye & Nissen also falls within an exception to the general rule that proof of necessity or duress does not negate mens rea. Ante, at 16, n. 10. But the Court, having refrained on pages 11-12 of its opinion from deciding whether aiding and abetting requires purposeful, as opposed to knowing, conduct, quickly and without explanation jettisons the "knowing" standard and concludes that purposeful conduct is needed. This is a critical move because if it is enough for an alleged aider and abettor simply to know that his confederate is carrying a gun, then the alleged aider and abettor in the Court's hypothetical case (who spots the gun on the confederate's person) unquestionably had the mens rea needed for conviction. But even accepting the Nye & Nissen standard as the exclusive means of proving the required mens rea, the Court's analysis is still quite wrong. Under the Nye & Nissen standard, the Government must simply prove that a defendant had as his conscious object that the hypothetical drug sale (which, as the defendant knew, included the carrying of a gun by one of the participants) go forward to completion. See Nye & Nissen, 336 U. S., at 619. Such intent is perfectly consistent with facts supporting a necessity or duress defense. A person can certainly intend the success of a criminal enterprise that he aids on the belief that doing so will give rise to a lesser evil than his refusal to participate would bring about. The Court confuses two fundamentally distinct concepts: intent and motive. It seems to assume that, if a defendant's motive in aiding a criminal venture is to avoid some greater evil, he does not have the intent that the venture succeed. But the intent to undertake some act is of course perfectly consistent with the motive of avoiding adverse consequences which would otherwise occur. We can all testify to this from our daily experience. People wake up, go to work, balance their checkbooks, shop for groceries — and yes, commit crimes — because they believe something bad will happen if they do not do these things, not because the deepest desire of their heart is to do them. A person may only go to work in the morning to keep his or her family from destitution; that does not mean he or she does not intend to put in a full day's work. In the same way, the fact that a defendant carries out a crime because he feels he must do so on pain of terrible consequences does not mean he does not intend to carry out the crime. When Jean Valjean stole a loaf of bread to feed his starving family, he certainly intended to commit theft; the fact that, had he been living in America today, he may have pleaded necessity as a defense does not change that fact. See V. Hugo, Les Misérables 54 (Fall River Press ed. 2012). Common-law commentators recognized this elementary distinction between intent and motive. As Sir James FitzJames Stephen explains, if "A puts a loaded pistol to B's temple and shoots B through the head deliberately, . . . . [i]t is obvious that in every such case the intention of A must be to kill B." 2 A History of the Criminal Law of England 110-111 (1883). This fact "throws no light whatever on A's motives for killing B. They may have been infinitely various. . . . The motive may have been a desire for revenge, or a desire for plunder, or a wish on A's part to defend himself against an attack by B, . . . or to put a man already mortally wounded out of his agony." Id., at 111. "In all these cases the intention is the same, but the motives are different, and in all the intention may remain unchanged from first to last whilst the motives may vary from moment to moment." Ibid. Unsurprisingly, our cases have recognized that a lawful motive (such as necessity, duress, or self-defense) is consistent with the mens rea necessary to satisfy a requirement of intent. In Martin v. Ohio, 480 U. S. 228 (1987), we considered whether due process permitted the State of Ohio to place the burden of proving self-defense on a defendant charged with aggravated murder. Under the Ohio statute, aggravated murder consisted of "purposely, and with prior calculation and design, caus[ing] the death of another." Id., at 230 (alteration in original; internal quotation marks omitted). Martin pleaded self-defense, which required her to prove that (1) she was "not at fault in creating the situation giving rise to the argument" with the victim, (2) she "had an honest belief that she was in imminent danger of death or great bodily harm, and that her only means of escape from such danger was in the use of . . . force," and (3) she "did not violate any duty to retreat or avoid danger." Ibid. Martin argued that due process did not permit the State to impose the burden of proving self-defense on her, because proving self-defense would necessarily negate the elements of aggravated murder, which the State was required to prove beyond a reasonable doubt. We disagreed, explaining that the elements which the State was required to prove to convict Martin were not the same as the elements which Martin was required to prove to prevail on her self-defense theory. Id., at 233. By so holding, we recognized that a defendant's purpose to kill another is not incompatible with that defendant's "honest belief that she was in imminent danger of death or great bodily harm" and that her use of force was necessary to preserve her life. Id., at 230. In other words, the fact that a defendant intends to kill another only to avert mortal peril does not mean that the defendant does not intend to kill. That principle plays out in a wide variety of cases. United States v. Leal-Cruz, 431 F. 3d 667 (CA9 2005), provides a good example. There, the Ninth Circuit had to decide whether a defendant could constitutionally be required to bear the burden of proving duress as a defense to conviction under 8 U. S. C. §1326 for attempted illegal reentry into the United States. Leal-Cruz pleaded duress, testifying that he entered the United States only to escape the deadly threat posed by abusive Mexican police officers who were chasing him. 431 F. 3d, at 669. The Ninth Circuit had earlier held that the mens rea required for conviction for attempted illegal reentry was "purpose, i.e., conscious desire, to reenter the United States." Id., at 671. The Court of Appeals nevertheless found that the Constitution permitted imposition of the burden of proving duress on Leal-Cruz, because proving duress did not require him to prove that he had not purposely entered the United States. As the Ninth Circuit explained, duress and the mens rea requirement of intent did not overlap because Leal-Cruz "had the 'conscious desire' to enter the country, even if the act of crossing the border was done to escape harm." Id., at 673. Thus, it seems inarguable to me that the existence of the purpose or intent to carry out a crime is perfectly compatible with facts giving rise to a necessity or duress defense. Once that proposition is established, the Court's error is readily apparent. The Court requires the Government to prove that a defendant in Rosemond's situation could have walked away without risking harm greater than he would cause by continuing with the crime — circumstances that traditionally would support a necessity or duress defense. It imposes this requirement on the Government despite the fact that such dangerous circumstances simply do not bear on whether the defendant intends the §924(c) offense to succeed, as (on the Court's reading) is required for aiding and abetting liability. The usual rule that a defendant bears the burden of proving affirmative defenses is justified by a compelling, commonsense intuition: "[W]here the facts with regard to an issue lie peculiarly in the knowledge of a party, that party is best situated to bear the burden of proof." Smith v. United States___, ___ (2013) (slip op., at 6-7) (quoting Dixon, 548 U. S., at 9; alteration in original and internal quotation marks omitted). By abandoning that rule in cases involving aiding and abetting of §924(c) offenses, the Court creates a perverse arrangement whereby the prosecution must prove something that is peculiarly within the knowledge of the defendant. Imagine that A aids B in committing a §924(c) offense and claims that he only learned of the gun once the crime had begun. If A had the burden of proof, he might testify that B was a hothead who had previously shot others who had crossed him. But under the Court's rule, the prosecution, in order to show the intent needed to convict A as an aider and abettor, presumably has the burden of proving that B was not such a person and that A did not believe him to be. How is the prosecution to do this? By offering testimony by B's friends and associates regarding his peaceful and easygoing nature? By introducing entries from A's diary in which he reflects on the sense of safety he feels when carrying out criminal enterprises in B's company? Furthermore, even if B were a hothead and A knew him to be such, A would presumably only be entitled to escape liability if he continued with the offense because of his fear of B's reaction if he walked away. Under the Court's rule, it is up to the Government to prove that A's continued participation was not on account of his fear of B — but how? By introducing footage of a convenient security camera demonstrating that A's eyes were not wide with fear, nor his breathing rapid? The Court's rule breaks with the common-law tradition and our case law. It also makes no sense. I respectfully dissent from that portion of the Court's opinion which places on the Government the burden of proving that the alleged aider and abettor of a §924(c) offense had what the Court terms "a realistic opportunity" to refrain from engaging in the conduct at issue.FOOTNOTESFootnote 1* Justice Scalia joins all but footnotes 7 and 8 of this opinion.Footnote 2 The Government agreed not to bring charges against the other four participants in the narcotics deal in exchange for their giving truthful testimony against Rosemond. See 2 Record 245, 272, 295-296, 318.Footnote 3 The Court of Appeals stated that it had to address that argument even if the jury could have found that Rosemond himself fired the gun, because "a conviction based on a general verdict is subject to challenge if the jury was instructed on alternative theories of guilt and may have relied on an invalid one." 695 F. 3d 1151, 1154 (2012) (quoting Hedgpeth v. Pulido (per curiam)).Footnote 4 See, e.g., United States v. Rolon-Ramos, 502 F. 3d 750, 758-759 (CA8 2007); United States v. Medina-Roman, 376 F. 3d 1, 6 (CA1 2004); United States v. Bancalari, 110 F. 3d 1425, 1429-1430 (CA9 1997).Footnote 5 The Wharton treatise gave the following example of how multiple confederates could perform different roles in carrying out a crime. Assume, Wharton hypothesized, that several persons "act in concert to steal a man's goods." Wharton §251, at 322. The victim is "induced by fraud to trust one of them[,] in the presence of [the] others[,] with the [goods'] possession." Ibid. Afterward, "another of the party entice[s] the owner away so that he who has the goods may carry them off." Id., at 322-323. Wharton concludes: "[A]ll are guilty as principals." Id., at 323.Footnote 6 See also United States v. Ali, 718 F. 3d 929, 939 (CADC 2013) ("[P]roving a defendant guilty of aiding and abetting does not ordinarily require the government to establish participation in each . . . element of the underlying offense"); United States v. Arias-Izquierdo, 449 F. 3d 1168, 1176 (CA11 2006) ("The government was not required to prove that [the defendant] participated in each element of the substantive offense in order to hold him liable as an aider and abettor"); United States v. Woods, 148 F. 3d 843, 850 (CA7 1998) ("[T]he government need not prove assistance related to every element of the underlying offense"). And so forth and so on.Footnote 7 Consider a hypothetical similar to Johnson and Pereira (and a modern variant of the Wharton treatise's, see n. 4, supra). Suppose that as part of a kidnapping scheme, one accomplice lures the victim into a car under false pretenses; another drives the vehicle; a third allows the use of her house to hold the victim captive; and still a fourth keeps watch outside to divert potential witnesses. None would have personally completed, or even assisted with, all elements of the offense. See, e.g., United States v. Cervantes-Blanco, 504 F. 3d 576, 580 (CA5 2007) (listing elements). But (if they had the requisite intent) all would be liable under §2.Footnote 8 Some authorities suggest an exception to the general rule when another crime is the "natural and probable consequence" of the crime the defendant intended to abet. See, e.g., 2 LaFave §13.3(b), at 356 (citing cases); but see id., §13.3 ("Under the better view, one is not an accomplice to a crime merely because . . . that crime was a natural and probable consequence of another offense as to which he is an accomplice"). That question is not implicated here, because no one contends that a §924(c) violation is a natural and probable consequence of simple drug trafficking. We therefore express no view on the issue.Footnote 9 We did not deal in these cases, nor do we here, with defendants who incidentally facilitate a criminal venture rather than actively participate in it. A hypothetical case is the owner of a gun store who sells a firearm to a criminal, knowing but not caring how the gun will be used. We express no view about what sort of facts, if any, would suffice to show that such a third party has the intent necessary to be convicted of aiding and abetting.Footnote 10 Of course, if a defendant continues to participate in a crime after a gun was displayed or used by a confederate, the jury can permissibly infer from his failure to object or withdraw that he had such knowledge. In any criminal case, after all, the factfinder can draw inferences about a defendant's intent based on all the facts and circumstances of a crime's commission.Footnote 11 Contrary to the dissent's view, see post, at 3-4, nothing in this holding changes the way the defenses of duress and necessity operate. Neither does our decision remotely deny that the "intent to undertake some act is . . . perfectly consistent with the motive of avoiding adverse consequences which would otherwise occur." Post, at 5. Our holding is grounded in the distinctive intent standard for aiding and abetting someone else's act — in the words of Judge Hand, that a defendant must not just "in some sort associate himself with the venture" (as seems to be good enough for the dissent), but also "participate in it as in something that he wishes to bring about" and "seek by his action to make it succeed." Nye & Nissen v. United States (quoting Peoni, 100 F. 2d, at 402). For the reasons just given, see supra, at 13, 15-16, we think that intent standard cannot be satisfied if a defendant charged with aiding and abetting a §924(c) offense learns of a gun only after he can realistically walk away — i.e., when he has no opportunity to decide whether "he wishes to bring about" (or make succeed) an armed drug transaction, rather than a simple drug crime. And because a defendant's prior knowledge is part of the intent required to aid and abet a §924(c) offense, the burden to prove it resides with the Government.FOOTNOTESFootnote 1 I am also concerned that the Court's use, without clarification, of the phrase "advance knowledge" will lead readers astray. E.g., ante, at 1. Viewed by itself, the phrase most naturally means knowledge acquired in advance of the commission of the drug trafficking offense, but this is not what the Court means. Rather, "advance knowledge," as used by the Court, may include knowledge acquired while the drug trafficking offense is in progress. Specifically, a defendant has such knowledge, the Court says, if he or she first learns of the gun while the drug offense is in progress and at that time "realistically could have opted out of the crime." Ante, at 15.Footnote 2 Traditionally, the defense of necessity was employed when natural forces created the situation justifying non-compliance; when the situation was the product of human action, duress was the appropriate defense. 2 LaFave §10.1(a), at 116. But "[m]odern cases have tended to blur the distinction between" these two defenses, United States v. Bailey, 444 U. S. 394, 410 (1980), and "it would doubtless be possible to treat [duress] as a branch of the law of necessity," 2 LaFave §10.1(b), at 121.

A provision of the Bail Reform Act of 1984, 18 U.S.C. 3142(e), requires that a suspect held in pretrial custody on federal criminal charges be detained if, "after a hearing pursuant to ... subsection (f)," he is found to pose a risk of flight and a danger to others or the community and if no condition of release can give reasonable assurances against these contingencies. Section 3142(f) provides that, before detention can occur, a judicial officer "shall" conduct a hearing "immediately upon the person's first appearance before the ... officer" unless he grants a continuance. Respondent was arrested on federal drug charges, and a Magistrate, at a detention hearing held after respondent's "first appearance" and after continuances granted beyond the period permitted by the Act, ordered his release on bond. The District Court, while finding that no conditions reasonably could assure his appearance or the community's safety, held that the detention hearing had not been held upon respondent's first appearance and that pretrial release was the appropriate remedy for violation of the statutory requirement. The Court of Appeals affirmed. Upon issuance of the court's mandate, respondent was released, took flight, and remains at large. He is, however, represented by counsel before this Court.Held: 1. Respondent's flight does not render the case moot, for the resolution of this dispute determines the course of proceedings if and when he is rearrested on the charges now pending. P. 713. 2. In light of the disposition of this case, the Government may detain respondent at once upon his rearrest without first seeking revocation of the existing release order. Pp. 713-714. 3. The failure to comply with the Act's prompt hearing provision does not require release of a person who should otherwise be detained. Pp. 716-722. (a) Neither the time requirements nor any other part of the Act indicates that compliance with the first appearance requirement is a precondition to holding the hearing or that failure to comply so subverts 3142(f)'s procedural scheme as to invalidate the hearing. There is no presumption or rule that for every mandatory duty imposed upon the court or the Government or its prosecutors there must exist some corollary punitive sanction for departures or omissions, even if negligent. See French v. Edwards, 13 Wall. 506, 511; Brock v. Pierce County, . If Congress' mere use of the word "shall" operated to bar all authority to seek pretrial detention once the time limit had passed, then any other violation of subsection (f)'s procedures - such as the right to be represented by counsel, present witnesses and evidence, testify, and cross-examine witnesses - no matter how insignificant, would also prevent a hearing from being "a hearing pursuant to" the statute. Respondent's argument that these other infringements could be subject to a harmless-error analysis cannot be reconciled with his contention that absolute compliance with the timely hearing requirement is necessary. Pp. 716-719. (b) Automatic release contravenes the statutory purpose of providing fair bail procedures while protecting the public's safety and assuring a defendant's appearance at trial. There is no reason to bestow a windfall upon the defendant and visit a severe penalty upon the Government and citizens every time some deviation occurs where the Government and the courts have made diligent efforts, or even where the Government bears some of the responsibility for the hearing's delay. An order of release in the face of the Government's ability to prove that detention is required has neither causal nor proportional relation to any harm caused by the delay in holding the hearing, since release would not restore the benefits of a timely hearing to a defendant who has already suffered from the inconvenience and uncertainty of the delay. Thus, once the Government discovers that the time limits have expired, it may ask for a prompt detention hearing and make its case to detain. Pp. 719-722. (c) This ruling is consistent with the rule of Bank of Nova Scotia v. United States, , that a nonconstitutional error is harmless unless it has a "substantial influence" on the outcome of the proceedings. Here, detention was harmless because respondent, as an individual likely to flee, would have been detained if his hearing had been held upon his first appearance rather than a few days later. P. 722. 876 F.2d 826, reversed.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, BLACKMUN, O'CONNOR, and SCALIA, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 722.Deputy Solicitor General Bryson argued the cause for the United States. With him on the briefs were Solicitor General Starr, Assistant Attorney General Dennis, and Jeffrey P. Minear. Bernard J. Panetta II argued the cause and filed a brief for respondent.[Footnote *] Compare United States v. Vargas, 804 F.2d 157, 162 (CA1 1986) (violation of the time limits specified in the Act does not prevent the Government from seeking pretrial detention at a subsequent detention hearing); United States v. Clark, 865 F.2d 1433, 1436 (CA4 1989) (en banc); and United States v. Hurtado, 779 F.2d 1467, 1481-1482 (CA11 1985) (en banc), with United States v. Al-Azzawy, 768 F.2d 1141, 1145 (CA9 1985) (failure to observe the time limits precludes detention).JUSTICE KENNEDY delivered the opinion of the Court.Both the District Court, 713 F. Supp. 1407 (NM 1989), and the Court of Appeals for the Tenth Circuit, 876 F.2d. 826 (1989), found that one Montalvo-Murillo, a suspect held in pretrial custody on federal criminal charges, posed a risk of flight and a danger to the community. Because no condition of release could give reasonable assurances against these contingencies, detention was required by the Bail Reform Act of 1984, 18 U.S.C. 3142(e). The District Court and Court of Appeals held, nevertheless, that Montalvo-Murillo must be released because there had been a failure to observe the Act's directions for a timely hearing. 3142(f). To no one's great surprise, the suspect became a fugitive after his release and is still at large.We granted certiorari, , to resolve a split among the Courts of Appeals on whether failure to comply with the prompt hearing provision of the Act requires the release of a person who is a flight risk or a danger to other persons or the community.* We decide that the Act does not require release and so we reverse the Court of Appeals. Montalvo-Murillo, though now a fugitive, is the respondent here and is represented by appointed counsel. Respondent's flight does not render the case moot, for our resolution of the dispute determines the course of proceedings if and when he is rearrested on the charges now pending. Since we reverse, the Government may detain respondent at once upon his rearrest without first seeking revocation of the existing release order. See 18 U.S.C. 3148(b).ITwo provisions of the Bail Reform Act of 1984 are relevant. The substantive provisions that allow detention are contained in subsection (e):"DETENTION. - If, after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community, [he] shall order the detention of the person before trial... ." 3142(e). The controversy in this case centers around the procedures for a hearing, found in subsection (f):"DETENTION HEARING. - The judicial officer shall hold a hearing to determine whether any condition or combination of conditions ... will reasonably assure the appearance of such person as required and the safety of any other person and the community - ... . ."The hearing shall be held immediately upon the person's first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause, a continuance on motion of the person may not exceed five days, and a continuance on motion of the attorney for the Government may not exceed three days. During a continuance, such person shall be detained ... . The person may be detained pending completion of the hearing... ." 3142(f). We review the sequence of events to put the statutory issue in proper context. On Wednesday, February 8, 1989, United States Customs Service agents stopped respondent at a New Mexico checkpoint near the international border. The agents discovered approximately 72 pounds of cocaine hidden in respondent's truck. Admitting his plan to link with cocaine purchasers in Chicago, Illinois, respondent agreed to cooperate with the Drug Enforcement Administration (DEA) and to make a controlled delivery under Government surveillance. The DEA took respondent and his truck to Chicago in an attempt to complete the transaction, but the anticipated purchasers did not arrive at the delivery point.The Government then arranged to transfer respondent back to New Mexico, where a criminal complaint had been filed charging him with possession of cocaine with intent to distribute, in violation of 21 U.S.C. 841. Before his departure, respondent was brought before a Magistrate in the Northern District of Illinois for a transfer hearing pursuant to Federal Rule of Criminal Procedure 40. The hearing was held on Friday, February 10, two days after the initial arrest in New Mexico. Respondent was represented by counsel, and it appears that all parties and the Magistrate agreed that the detention hearing would be held in New Mexico, where the charges were pending. Respondent was returned to New Mexico that same evening.The weekend intervened. On Monday, February 13, the DEA asked the United States Magistrate's office in New Mexico to schedule a detention hearing. A hearing was convened on Thursday, February 16, and respondent attended with retained counsel. Because the Pretrial Services Office had not yet prepared a report, the Magistrate, sua sponte, ordered a 3-day continuance, but, observing that the following Monday was a federal holiday, scheduled the hearing for Tuesday, February 21. The record shows no request for a waiver of the time limits, no advice to respondent of the right to a hearing within the time provided by the Act, no finding of good cause for continuance, and no objection to continuance by either party. The detention hearing was held as scheduled on February 21. The Magistrate, unconvinced that respondent was flight risk or danger to other persons or to the community, decided to order release of respondent upon the posting of a $50,000 bond and compliance with other conditions. The Government at once sought review in the District Court.After holding a de novo detention hearing, on Thursday, February 23, the District Court agreed with the Government that no condition or combination of conditions reasonably would assure respondent's appearance or the safety of the community. Nevertheless, it ordered respondent's release. The court found that the detention hearing had not been held upon respondent's first appearance as specified by 3142(f), and that pretrial release on conditions was the appropriate remedy for violation of the statutory requirement. The Court of Appeals affirmed. Upon issuance of its mandate, respondent was released and took flight.Though the Government notes that the statutory phrase "first appearance" is by no means clear, either as an abstract matter or as applied in this case, it does not challenge the Court of Appeals' holding that respondent's detention hearing was held after that event and that continuances were beyond what the Act permits. We decide the case on those same assumptions, though without passing upon them. The sole question presented on certiorari is whether the Court of Appeals was correct in holding that respondent must be released as a remedy for the failure to hold a hearing at his first appearance.IIIn United States v. Salerno, , we upheld the Bail Reform Act of 1984 against constitutional challenge. Though we did not refer in Salerno to the time limits for hearings as a feature which sustained the constitutionality of the Act, we recognize that a vital liberty interest is at stake. A prompt hearing is necessary, and the time limitations of the Act must be followed with care and precision. But the Act is silent on the issue of a remedy for violations of its time limits. Neither the timing requirements nor any other part of the Act can be read to require, or even suggest, that a timing error must result in release of a person who should otherwise be detained.The Act, as quoted above, requires pretrial detention of certain persons charged with federal crimes and directs a judicial officer to detain a person charged, pending trial, if the Government has made the necessary showing of dangerousness or risk of flight. 18 U.S.C. 3142(e), (f). The Act authorizes detention "after a hearing [held] pursuant to the provisions of subsection (f) of this section." 3142(e). Subsection (f) provides that "[t]he judicial officer shall hold a hearing" and sets forth the applicable procedures. Nothing in 3142(f) indicates that compliance with the first appearance requirement is a precondition to holding the hearing or that failure to comply with the requirement renders such a hearing a nullity. It is conceivable that some combination of procedural irregularities could render a detention hearing so flawed that it would not constitute "a hearing pursuant to the provisions of subsection (f)" for purposes of 3142(e). A failure to comply with the first appearance requirement, however, does not so subvert the procedural scheme of 3142(f) as to invalidate the hearing. The contrary interpretation - that noncompliance with the time provisions in 3142(f) requires the release even of a person who presumptively should be detained under 3142(e) - would defeat the purpose of the Act.We hold that a failure to comply with the first appearance requirement does not defeat the Government's authority to seek detention of the person charged. We reject the contention that if there has been a deviation from the time limits of the statute, the hearing necessarily is not one conducted "pursuant to the provisions of subsection (f)." There is no presumption or general rule that for every duty imposed upon the court or the Government and its prosecutors there must exist some corollary punitive sanction for departures or omissions, even if negligent. See French v. Edwards, 13 Wall. 506, 511 (1872) ("[M]any statutory requisitions intended for the guide of officers in the conduct of business devolved upon them ... do not limit their power or render its exercise in disregard of the requisitions ineffectual"). In our view, construction of the Act must conform to the "`great principle of public policy, applicable to all governments alike, which forbids that the public interests should be prejudiced by the negligence of the officers or agents to whose care they are confided.'" Brock v. Pierce County, (quoting United States v. Nashville, C. & St. L. R. Co., ).In Brock v. Pierce County, supra, the Court addressed a statute that stated that the Secretary of Labor "shall" act within a certain time on information concerning misuse of federal funds. The respondent there argued that a failure to act within the specified time divested the Secretary of authority to act to investigate a claim. We read the statute to mean that the Secretary did not lose the power to recover misused funds after the expiration of the time period. Congress' mere use of the word "shall" was not enough to remove the Secretary's power to act. Id., at 260 (footnote omitted) ("We would be most reluctant to conclude that every failure of an agency to observe a procedural requirement voids subsequent agency action, especially when important public rights are at stake. When, as here, there are less drastic remedies available for failure to meet a statutory deadline, courts should not assume that Congress intended the agency to lose its power to act").In a similar manner, in this case the word "shall" in the Act's hearing time requirement does not operate to bar all authority to seek pretrial detention once the time limit has passed. Although the duty is mandatory, the sanction for breach is not loss of all later powers to act. The argument that failure to comply with the Act's time limits prohibits the Government from moving for detention proves too much. If any variation from the time limits of subsection (f) prevents a detention hearing from being "a hearing pursuant to subsection (f)," then the same would have to be true of any deviation from the other procedures prescribed by 3142(f). During the hearing, a person is entitled to be represented by counsel, present witnesses, testify on his own behalf, cross-examine Government witnesses, and present additional evidence. 3142(f). If we suppose an error that infringes any of these rights in an insignificant way, we doubt that anyone would make the serious contention that a hearing, otherwise perfect, is not "a hearing pursuant to" the statute because such an error occurred. Nor should a hearing held after the person's first appearance prevent detention.To avoid the logical implications of his argument with regard to procedural violations other than timeliness, respondent admits that other infringements could be subject to a harmless-error analysis. This position cannot be reconciled with respondent's contention that absolute compliance with the provisions of subsection (f) is mandated by subsection (e). If a failure to follow the provisions of subsection (f) with respect to timeliness means that a condition precedent for detention is lacking, then a failure to comply with the other provisions of subsection (f) would have the same effect. It is no answer to respond that a hearing that violates some of the procedural requirements of subsection (f) may still be "fair," while a hearing held after the person's first appearance cannot be "prompt." If there has been a failure to observe the time limits of the Act, it does not follow that there must be a presumption of prejudice, either as an empirical matter or based on our precedents. We need seek only a practical remedy, not one that strips the Government of all authority to act. Bank of Nova Scotia v. United States, .Our conclusion is consistent with the design and function of the statute. We have sustained the Bail Reform Act of 1984 as an appropriate regulatory device to assure the safety of persons in the community and to protect against the risk of flight. We have upheld the substantive right to detain based upon the Government's meeting the burden required by the statute. United States v. Salerno, . Automatic release contravenes the object of the statute: to provide fair bail procedures while protecting the safety of the public and assuring the appearance at trial of defendants found likely to flee. The end of exacting compliance with the letter of 3142(f) cannot justify the means of exposing the public to an increased likelihood of violent crime by persons on bail, an evil the statute aims to prevent. See S. Rep. No. 98-225, p. 3 (1983) ("Federal bail laws must address the alarming problem of crimes committed by persons on release and must give the courts adequate authority to make release decisions that give appropriate recognition to the danger a person may pose to others if released"). The Government's interest in preventing these harms remains real and substantial even when the time limits have been ignored. The safety of society does not become forfeit to the accident of noncompliance with statutory time limits where the Government is ready and able to come forward with the requisite showing to meet the burden of proof required by the statute.Assessing the situation in realistic and practical terms, it is inevitable that, despite the most diligent efforts of the Government and the courts, some errors in the application of the time requirements of 3142(f) will occur. Detention proceedings take place during the disordered period following arrest. As this case well illustrates, circumstances such as the involvement of more than one district, doubts about whether the defendant was subject to temporary detention under 3142(d), and ambiguity in requests for continuances may contribute to a missed deadline for which no real blame can be fixed. In these situation, there is no reason to bestow upon the defendant a windfall and to visit upon the Government and the citizens a severe penalty by mandating release of possibly dangerous defendants every time some deviation from the strictures of 3142(f) occurs. In the case before us, of course, it is not clear that the Government bears the responsibility for the delay, for the Magistrate continued the hearing sua sponte when the Government announced that it was ready to proceed. But even on the assumption that a violation of the Act occurred and that the Government should bear some of the responsibility for it, the Court of Appeals erred in holding that the Government is barred from proceeding under the Act.We find nothing in the statute to justify denying the Government an opportunity to prove that the person is dangerous or a risk of flight once the statutory time for hearing has passed. We do not agree that we should, or can, invent a remedy to satisfy some perceived need to coerce the courts and the Government into complying with the statutory time limits. Magistrates and district judges can be presumed to insist upon compliance with the law without the threat that we must embarrass the system by releasing a suspect certain to flee from justice, as this one did in such a deft and prompt manner. The district court, the court of appeals, and this Court remain open to order immediate release of anyone detained in violation of the statute. Whatever other remedies may exist for detention without a timely hearing or for conduct that is aggravated or intentional, a matter not before us here, we hold that once the Government discovers that the time limits have expired, it may ask for a prompt detention hearing and make its case to detain based upon the requirements set forth in the statute.An order of release in the face of the Government's ability to prove at once that detention is required by the law has neither causal nor proportional relation to any harm caused by the delay in holding the hearing. When a hearing is held, a defendant subject to detention already will have suffered whatever inconvenience and uncertainty a timely hearing would have spared him. Release would not restore these benefits to him. United States v. Morrison, (remedies should be tailored to the injury suffered). This case is similar to New York v. Harris, ante, p. 14, in which we held that an unlawful arrest does not require a release and rearrest to validate custody, where probable cause exists. In this case, a person does not become immune from detention because of a timing violation.Our ruling is consistent also with Bank of Nova Scotia v. United States, 487 U.S., at 256, where we held that nonconstitutional error will be harmless unless the court concludes from the record as a whole that the error may have had a "substantial influence" on the outcome of the proceeding. In this case, it is clear that the noncompliance with the timing requirement had no substantial influence on the outcome of the proceeding. Because respondent was dangerous and likely to flee, he would have been detained if his hearing had been held upon his first appearance rather than a few days later. On these facts, the detention was harmless. See ibid.; Morrison, supra, at 364-367 (inappropriate to dismiss indictment because of Sixth Amendment violation that had no adverse impact on proceedings). This approach is consistent with the principle of harmless-error analysis that is the governing precept in most matters of criminal procedure. Fed. Rule Crim. Proc. 52. We have no need to consider in this case the remedies available to a person detained beyond the statutory limit and later found eligible for release. We hold that respondent was not, and is not, entitled to release as a sanction for the delay in the case before us.The judgment of the Court of Appeals is Reversed. JUSTICE STEVENS, with whom JUSTICE BRENNAN and JUSTICE MARSHALL join, dissenting.This case involves two lawbreakers. Respondent, as the Court repeatedly argues, ante, at 713, 716, 721, failed to appear after his release on bail, an apparent violation of 18 U.S.C. 3146. Even before that, however, the Government imprisoned respondent without a timely hearing, a conceded violation of 3142.1 In its haste to ensure the detention of respondent, the Court readily excuses the Government's prior and proven violation of the law. I cannot agree.IBefore examining the consequences that follow from the Government's violation of 3142, it is well to remember the magnitude of the injury that pretrial detention inflicts and the departure that it marks from ordinary forms of constitutional governance. Executive power to detain an individual is the hallmark of the totalitarian state. Under our Constitution the prohibition against excessive bail,2 the Due Process Clause of the Fifth Amendment,3 the presumption of innocence4 - indeed, the fundamental separation of powers among the Legislative, the Executive and the Judicial Branches of Government5 - all militate against this abhorrent practice. Our historical approach eschewing detention prior to trial reflects these concerns:"From the passage of the Judiciary Act of 1789, 1 Stat. 73, 91, to the present Federal Rules of Criminal Procedure, Rule 46(a)(1), federal law has unequivocally provided that a person arrested for a non-capital offense shall be admitted to bail. This traditional right to freedom before conviction permits the unhampered preparation of a defense, and serves to prevent the infliction of punishment prior to conviction. See Hudson v. Parker, . Unless this right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning." Stack v. Boyle, . Sections 3142(e) and (f), allowing limited detention of arrestees, were enacted against this historical backdrop. Bail Reform Act of 1984, Pub. L. 98-473, 98 Stat. 1976, 18 U.S.C. 3142(e), (f). Congress carefully prescribed stringent procedures to govern this extraordinary departure from the guarantee of liberty normally accorded to presumptively innocent individuals.6 Accordingly, when this Court upheld the constitutionality of these provisions of the Bail Reform Act, it assumed that pretrial detention would be imposed only on those arrestees "found after an adversary hearing to pose a threat ... which no condition of release can dispel. The numerous procedural safeguards detailed above must attend this adversary hearing." United States v. Salerno, .7 Section 3142(e) permits pretrial detention only "[i]f, after a hearing pursuant to the provisions of subsection (f) of this section, the judicial officer finds that no condition or combination of conditions will reasonably assure the appearance of the person as required and the safety of any other person and the community." Subsection (f) in turn sets forth specific deadlines, chosen "in light of the fact that the defendant will be detained during such a continuance," S. Rep. No. 98-225, p. 22 (1983), within which a detention hearing must be held:"The hearing shall be held immediately upon the person's first appearance before the judicial officer unless that person, or the attorney for the Government, seeks a continuance. Except for good cause, a continuance on motion of such person may not exceed five days, and a continuance on motion of the attorney for the Government may not exceed three days." 3142(f)(2). There was no such hearing - or finding of good cause for continuance - when respondent was arrested on February 8, 1989, when he first appeared before a Northern District of Illinois Magistrate on February 10, or when the New Mexico Magistrate convened the parties on February 16. No court considered the basis of detention until February 21, after respondent had been incarcerated for 13 days.8 Congress' specification of the timing of detention hearings defines one boundary of the courts' power to order pretrial detention. "Because detention may be ordered under section 3142(e) only after a detention hearing pursuant to subsection (f), the requisite circumstances for invoking a detention hearing in effect serve to limit the types of cases in which detention may be ordered prior to trial." S. Rep. No. 98-225, at 20. The clear terms of the statute demand strict adherence. See Hallstrom v. Tillamook County, , 25-31 (1989) (holding notice and 60-day delay requirements mandatory conditions precedent to commencing suit under 42 U.S.C. 6972); cf. Griggs v. Provident Consumer Discount Co., (Fed. Rule App. Proc. 4(a)(4) stating that a premature notice "shall have no effect" is mandatory and jurisdictional).9 A federal prosecutor should have no difficulty comprehending the unequivocal terms of 3142(f)(2) and complying with its deadlines by proceeding or obtaining a proper continuance at the arrestee's first appearance. The rare failure to meet the requirements of subsection (f) will mean only that the Government forfeits the opportunity to seek pretrial detention in that case. Because the provisions of 3142(f)(2) are a prerequisite only for hearings to consider this particular form of pretrial action, the prosecutor still may seek any conditions of release that are "reasonably necessary to assure the appearance of the person as required and to assure the safety of any other person and the community." 3142(c)(1)(B) (xiv). The range of options - the sole safeguards that were available in cases prior to the creation of the special detention provisions in 1984 - remain viable.IIThe Court, however, concludes that no adverse consequences should flow from the prosecutor's violation of this plain statutory command. Treating the case as comparable to an agency's failure to audit promptly a grant recipient's use of federal funds, see Brock v. Pierce County, , the Court concludes that there is no reason to penalize the public for a prosecutor's mistake. If a belated hearing eventually results in a determination that detention was justified, the error has been proved harmless. The Court apparently discards the possibility that the hearing might result in a determination that the arrestee is eligible for release - as the Magistrate so determined in this case - or that detention of any arrestee before establishing the legality of that intrusion on liberty could "affect substantial rights." 876 F.2d 826, 829 (CA10 1989); Fed. Rule Crim. Proc. 52(a). A harmless-error analysis fails to appreciate the gravity of the deprivation of liberty that physical detention imposes and the reality that "[r]elief in this type of case must be speedy if it is to be effective." Stack, 342 U.S., at 4.This casual treatment of official violations of law is disturbing in itself, but it is particularly troubling because it treats the pretrial detention statute as just another routine species of Government regulation of ordinary civilian affairs.10 The Court asserts that the requirements of 3142(f) are in the category of statutory requisitions that do not limit the power of Government officers. Ante, at 717-718 (citing French v. Edwards, 13 Wall. 506, 511 (1872)). But the French Court also identified, and in fact applied, the opposite characterization of the procedural requirements of the sheriff's sale there at issue. It held that laws "intended for the protection of the citizen, and to prevent a sacrifice of his property, and by a disregard of which his rights might be and generally would be injuriously affected, ... are not directory but mandatory," concluding that such requisitions "must be followed or the acts done will be invalid. The power of the officer in all such cases is limited by the manner and conditions prescribed for its exercise." Id., at 511 (emphasis added). The grant of power that Congress gave courts to assess and enforce pretrial detention under 3142(e) and (f) is also of a mandatory nature.11 As Congress recognized, the magnitude of the injury inflicted by pretrial detention requires adherence to strict procedural safeguards that cannot be sacrificed in the name of community safety. While the Court regards any arrestee as "a person who presumptively should be detained under 3142(e)" and as "a suspect certain to flee from justice," ante, at 717, 721, I believe - and the Act reflects - that a new arrestee is initially presumed eligible for release no matter how guilty a prosecutor may believe him to be. Section 3142(e) recognizes that certain characteristics of the offense or arrestee may support a rebuttable presumption that no conditions of release exist, but such a presumption arises only "if such judicial officer finds" that those conditions do exist. (Emphasis added.) The magistrate's say-so cannot make his reasoning any less of a bootstrap. A late detention hearing does not become permissible on the basis of a presumption that cannot exist until after the hearing is held.IIICongress has written detailed legislation in a sensitive area that requires the Government to turn square corners. The Court today, however, permits federal prosecutors to violate the law with impunity. I agree with JUSTICE SCALIA'S observation that strict compliance with such rules may appear to "frustrat[e] justice in the particular case," but"[w]ith technical rules, above all others, it is imperative that we adhere strictly to what we have stated the rules to be. A technical rule with equitable exceptions is no rule at all. Three strikes is out. The State broke the rules here, and must abide by the result." Jones v. Thomas, (dissenting opinion). I respectfully dissent.

The Hawaiian Constitution limits the right to vote for nine trustees chosen in a statewide election. The trustees compose the governing authority of a state agency known as the Office of Hawaiian Affairs, or OHA. The agency administers programs designed for the benefit of two subclasses of Hawaiian citizenry, "Hawaiians" and "native Hawaiians." State law defines "native Hawaiians" as descendants of not less than one-half part of the races inhabiting the Islands before 1778, and "Hawaiians"--a larger class that includes "native Hawaiians"--as descendants of the peoples inhabiting the Hawaiian Islands in 1778. The trustees are chosen in a statewide election in which only "Hawaiians" may vote. Petitioner Rice, a Hawaiian citizen without the requisite ancestry to be a "Hawaiian" under state law, applied to vote in OHA trustee elections. When his application was denied, he sued respondent Governor (hereinafter State), claiming, inter alia, that the voting exclusion was invalid under the Fourteenth and Fifteenth Amendments. The Federal District Court granted the State summary judgment. Surveying the history of the Islands and their people, it determined that Congress and Hawaii have recognized a guardian-ward relationship with the native Hawaiians, which is analogous to the relationship between the United States and Indian tribes. It examined the voting qualifications with the latitude applied to legislation passed pursuant to Congress' power over Indian affairs, see Morton v. Mancari,417 U. S. 535, and found that the electoral scheme was rationally related to the State's responsibility under its Admission Act to utilize a part of the proceeds from certain public lands for the native Hawaiians' benefit. The Ninth Circuit affirmed, finding that Hawaii "may rationally conclude that Hawaiians, being the group to whom trust obligations run and to whom OHA trustees owe a duty of loyalty, should be the group to decide who the trustees ought to be." 146 F. 3d 1075, 1079.Held: Hawaii's denial of Rice's right to vote in OHA trustee elections violates the Fifteenth Amendment. Pp. 15-28. (a) The Amendment's purpose and command are set forth in explicit and comprehensive language. The National Government and the States may not deny or abridge the right to vote on account of race. The Amendment reaffirms the equality of races at the most basic level of the democratic process, the exercise of the voting franchise. It protects all persons, not just members of a particular race. Important precedents give instruction in the instant case. The Amendment was quite sufficient to invalidate a grandfather clause that did not mention race but instead used ancestry in an attempt to confine and restrict the voting franchise, Guinn v. United States,238 U. S. 347, 364-365; and it sufficed to strike down the white primary systems designed to exclude one racial class (at least) from voting, see, e.g., Terry v. Adams,345 U. S. 461, 469-470. The voting structure in this case is neither subtle nor indirect; it specifically grants the vote to persons of the defined ancestry and to no others. Ancestry can be a proxy for race. It is that proxy here. For centuries Hawaii was isolated from migration. The inhabitants shared common physical characteristics, and by 1778 they had a common culture. The provisions at issue reflect the State's effort to preserve that commonality to the present day. In interpreting the Reconstruction Era civil rights laws this Court has observed that racial discrimination is that which singles out "identifiable classes of persons ... solely because of their ancestry or ethnic characteristics." Saint Francis College v. Al-Khazraji,481 U. S. 604, 613. The very object of the statutory definition here is to treat the early Hawaiians as a distinct people, commanding their own recognition and respect. The history of the State's definition also demonstrates that the State has used ancestry as a racial definition and for a racial purpose. The drafters of the definitions of "Hawaiian" and "native Hawaiian" emphasized the explicit tie to race. The State's additional argument that the restriction is race neutral because it differentiates even among Polynesian people based on the date of an ancestor's residence in Hawaii is undermined by the classification's express racial purpose and its actual effects. The ancestral inquiry in this case implicates the same grave concerns as a classification specifying a particular race by name, for it demeans a person's dignity and worth to be judged by ancestry instead of by his or her own merit and essential qualities. The State's ancestral inquiry is forbidden by the Fifteenth Amendment for the further reason that using racial classifications is corruptive of the whole legal order democratic elections seek to preserve. The law itself may not become the instrument for generating the prejudice and hostility all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions. The State's electoral restriction enacts a race-based voting qualification. Pp. 15-21. (b) The State's three principal defenses of its voting law are rejected. It argues first that the exclusion of non-Hawaiians from voting is permitted under this Court's cases allowing the differential treatment of Indian tribes. However, even if Congress had the authority, delegated to the State, to treat Hawaiians or native Hawaiians as tribes, Congress may not authorize a State to create a voting scheme of the sort created here. Congress may not authorize a State to establish a voting scheme that limits the electorate for its public officials to a class of tribal Indians to the exclusion of all non-Indian citizens. The elections for OHA trustee are elections of the State, not of a separate quasi-sovereign, and they are elections to which the Fifteenth Amendment applies. Morton v. Mancari,417 U. S. 535, distinguished. The State's further contention that the limited voting franchise is sustainable under this Court's cases holding that the one-person, one-vote rule does not pertain to certain special purpose districts such as water or irrigation districts also fails, for compliance with the one-person, one-vote rule of the Fourteenth Amendment does not excuse compliance with the Fifteenth Amendment. Hawaii's final argument that the voting restriction does no more than ensure an alignment of interests between the fiduciaries and the beneficiaries of a trust founders on its own terms, for it is not clear that the voting classification is symmetric with the beneficiaries of the programs OHA administers. While the bulk of the funds appears to be earmarked for the benefit of "native Hawaiians," the State permits both "native Hawaiians" and "Hawaiians" to vote for trustees. The argument fails on more essential grounds; it rests on the demeaning premise that citizens of a particular race are somehow more qualified than others to vote on certain matters. There is no room under the Amendment for the concept that the right to vote in a particular election can be allocated based on race. Pp. 21-27.146 F. 3d 1075, reversed. Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, and Thomas, JJ., joined. Breyer, J., filed an opinion concurring in the result, in which Souter, J., joined. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined as to Part II. Ginsburg, J., filed a dissenting opinion. HAROLD F. RICE, PETITIONER v. BENJAMINJ. CAYETANO, GOVERNOR OF HAWAIIon writ of certiorari to the united states court ofappeals for the ninth circuit[February 23, 2000] Justice Kennedy delivered the opinion of the Court. A citizen of Hawaii comes before us claiming that an explicit, race-based voting qualification has barred him from voting in a statewide election. The Fifteenth Amendment to the Constitution of the United States, binding on the National Government, the States, and their political subdivisions, controls the case. The Hawaiian Constitution limits the right to vote for nine trustees chosen in a statewide election. The trustees compose the governing authority of a state agency known as the Office of Hawaiian Affairs, or OHA. Haw. Const., Art. XII, §5. The agency administers programs designed for the benefit of two subclasses of the Hawaiian citizenry. The smaller class comprises those designated as "native Hawaiians," defined by statute, with certain supplementary language later set out in full, as descendants of not less than one-half part of the races inhabiting the Hawaiian Islands prior to 1778. Haw. Rev. Stat. §10-2 (1993). The second, larger class of persons benefited by OHA programs is "Hawaiians," defined to be, with refinements contained in the statute we later quote, those persons who are descendants of people inhabiting the Hawaiian Islands in 1778. Ibid. The right to vote for trustees is limited to "Hawaiians," the second, larger class of persons, which of course includes the smaller class of "native Hawaiians." Haw. Const., Art XII, §5. Petitioner Rice, a citizen of Hawaii and thus himself a Hawaiian in a well-accepted sense of the term, does not have the requisite ancestry even for the larger class. He is not, then, a "Hawaiian" in terms of the statute; so he may not vote in the trustee election. The issue presented by this case is whether Rice may be so barred. Rejecting the State's arguments that the classification in question is not racial or that, if it is, it is nevertheless valid for other reasons, we hold Hawaii's denial of petitioner's right to vote to be a clear violation of the Fifteenth Amendment. I When Congress and the State of Hawaii enacted the laws we are about to discuss and review, they made their own assessments of the events which intertwine Hawaii's history with the history of America itself. We will begin with a very brief account of that historical background. Historians and other scholars who write of Hawaii will have a different purpose and more latitude than do we. They may draw judgments either more laudatory or more harsh than the ones to which we refer. Our more limited role, in the posture of this particular case, is to recount events as understood by the lawmakers, thus ensuring that we accord proper appreciation to their purposes in adopting the policies and laws at issue. The litigants seem to agree that two works in particular are appropriate for our consideration, and we rely in part on those sources. See L. Fuchs, Hawaii Pono: An Ethnic and Political History (1961) (hereinafter Fuchs); 1-3 R. Kuykendall, The Hawaiian Kingdom (1938); (1953); (1967) (hereinafter Kuykendall). The origins of the first Hawaiian people and the date they reached the islands are not established with certainty, but the usual assumption is that they were Polynesians who voyaged from Tahiti and began to settle the islands around A. D. 750. Fuchs 4; 1 Kuykendall 3; see also G. Daws, Shoal of Time: A History of the Hawaiian Islands xii-xiii (1968) (Marquesas Islands and Tahiti). When England's Captain Cook made landfall in Hawaii on his expedition in 1778, the Hawaiian people had developed, over the preceding 1,000 years or so, a cultural and political structure of their own. They had well-established traditions and customs and practiced a polytheistic religion. Agriculture and fishing sustained the people, and, though population estimates vary, some modern historians conclude that the population in 1778 was about 200,000-300,000. See Fuchs 4; R. Schmitt, Historical Statistics of Hawaii 7 (1977) (hereinafter Schmitt). The accounts of Hawaiian life often remark upon the people's capacity to find beauty and pleasure in their island existence, but life was not altogether idyllic. In Cook's time the islands were ruled by four different kings, and intra-Hawaiian wars could inflict great loss and suffering. Kings or principal chieftains, as well as high priests, could order the death or sacrifice of any subject. The society was one, however, with its own identity, its own cohesive forces, its own history. In the years after Cook's voyage many expeditions would follow. A few members of the ships' companies remained on the islands, some as authorized advisors, others as deserters. Their intermarriage with the inhabitants of Hawaii was not infrequent. In 1810, the islands were united as one kingdom under the leadership of an admired figure in Hawaiian history, Kamehameha I. It is difficult to say how many settlers from Europe and America were in Hawaii when the King consolidated his power. One historian estimates there were no more than 60 or so settlers at that time. 1 Kuykendall 27. An influx was soon to follow. Beginning about 1820, missionaries arrived, of whom Congregationalists from New England were dominant in the early years. They sought to teach Hawaiians to abandon religious beliefs and customs that were contrary to Christian teachings and practices. The 1800's are a story of increasing involvement of westerners in the economic and political affairs of the Kingdom. Rights to land became a principal concern, and there was unremitting pressure to allow non-Hawaiians to use and to own land and to be secure in their title. Westerners were not the only ones with pressing concerns, however, for the disposition and ownership of land came to be an unsettled matter among the Hawaiians themselves. The status of Hawaiian lands has presented issues of complexity and controversy from at least the rule of Kamehameha I to the present day. We do not attempt to interpret that history, lest our comments be thought to bear upon issues not before us. It suffices to refer to various of the historical conclusions that appear to have been persuasive to Congress and to the State when they enacted the laws soon to be discussed. When Kamehameha I came to power, he reasserted suzerainty over all lands and provided for control of parts of them by a system described in our own cases as "feudal." Hawaii Housing Authority v. Midkiff,467 U. S. 229, 232 (1984); Kaiser Aetna v. United States,444 U. S. 164, 166 (1979). A well-known description of the King's early decrees is contained in an 1864 opinion of the Supreme Court of the Kingdom of Hawaii. The court, in turn, drew extensively upon an earlier report which recited, in part, as follows:"`When the islands were conquered by Kamehameha I., he followed the example of his predecessors, and divided out the lands among his principal warrior chiefs, retaining, however, a portion in his own hands to be cultivated or managed by his own immediate servants or attendants. Each principal chief divided his lands anew and gave them out to an inferior order of chiefs or persons of rank, by whom they were subdivided again and again after (often) passing through the hands of four, five or six persons from the King down to the lowest class of tenants. All these persons were considered to have rights in the lands, or the productions of them, the proportions of which rights were not clearly defined, although universally acknowledged... . The same rights which the King possessed over the superior landlords and all under them, the several grades of landlords possessed over their inferiors, so that there was a joint ownership of the land, the King really owning the allodium, and the person in whose hands he placed the land, holding it in trust.'" In re Estate of His Majesty Kamehameha IV, 2 Haw. 715, 718-719 (quoting Principles Adopted by the Board of Commissioners to Quiet Land Titles, 2 Stat. Laws 81-82 (Haw. Kingdom 1847)). Beginning in 1839 and through the next decade, a successive ruler, Kamehameha III, approved a series of decrees and laws designed to accommodate demands for ownership and security of title. In the words of the Hawaiian Supreme Court, "[t]he subject of rights in land was one of daily increasing importance to the newly formed Government, for it was obvious that the internal resources of the country could not be developed until the system of undivided and undefined ownership in land should be abolished." 2 Haw., at 721. Arrangements were made to confer freehold title in some lands to certain chiefs and other individuals. The King retained vast lands for himself, and directed that other extensive lands be held by the government, which by 1840 had adopted the first Constitution of the islands. Thus was effected a fundamental and historic division, known as the Great Mahele. In 1850, foreigners, in turn, were given the right of land ownership. The new policies did not result in wide dispersal of ownership. Though some provisions had been attempted by which tenants could claim lands, these proved ineffective in many instances, and ownership became concentrated. In 1920, the Congress of the United States, in a Report on the bill establishing the Hawaiian Homes Commission, made an assessment of Hawaiian land policy in the following terms: "Your committee thus finds that since the institution of private ownership of lands in Hawaii the native Hawaiians, outside of the King and the chiefs, were granted and have held but a very small portion of the lands of the Islands. Under the homestead laws somewhat more than a majority of the lands were homesteaded to Hawaiians, but a great many of these lands have been lost through improvidence and inability to finance farming operations. Most frequently, however, the native Hawaiian, with no thought of the future, has obtained the land for a nominal sum, only to turn about and sell it to wealthy interests for a sum more nearly approaching its real value. The Hawaiians are not business men and have shown themselves unable to meet competitive conditions unaided. In the end the speculators are the real beneficiaries of the homestead laws. Thus the tax returns for 1919 show that only 6.23 per centum of the property of the Islands is held by native Hawaiians and this for the most part is lands in the possession of approximately a thousand wealthy Hawaiians, the descendents of the chiefs." H. R. Rep. No. 839, 66th Cong., 2d Sess., 6 (1920). While these developments were unfolding, the United States and European powers made constant efforts to protect their interests and to influence Hawaiian political and economic affairs in general. The first "articles of arrangement" between the United States and the Kingdom of Hawaii were signed in 1826, 8 Department of State, Treaties and Other International Agreements of the United States of America 1776-1949, p. 861 (C. Bevans comp. 1968), and additional treaties and conventions between the two countries were signed in 1849, 1875, and 1887, see Treaty with the Hawaiian Islands, 9 Stat. 977 (1849) (friendship, commerce, and navigation); Convention between the United States of America and His Majesty the King of the Hawaiian Islands, 19 Stat. 625 (1875) (commercial reciprocity); Supplementary Convention between the United States of America and His Majesty the King of the Hawaiian Islands, 25 Stat. 1399 (1887) (same). The United States was not the only country interestedin Hawaii and its affairs, but by the later part of the century the reality of American dominance in trade, settlement, economic expansion, and political influence became apparent. Tensions intensified between an anti-Western, pro-native bloc in the government on the one hand and Western business interests and property owners on the other. The conflicts came to the fore in 1887. Westerners forced the resignation of the Prime Minister of the Kingdom of Hawaii and the adoption of a new Constitution, which, among other things, reduced the power of the monarchy and extended the right to vote to non-Hawaiians. 3 Kuykendall 344-372. Tensions continued through 1893, when they again peaked, this time in response to an attempt by the then Hawaiian monarch, Queen Liliuokalani, to promulgate a new constitution restoring monarchical control over the House of Nobles and limiting the franchise to Hawaiian subjects. A so-called Committee of Safety, a group of professionals and businessmen, with the active assistance of John Stevens, the United States Minister to Hawaii, acting with United States armed forces, replaced the monarchy with a provisional government. That government sought annexation by the United States. On December 18 of the same year, President Cleveland, unimpressed and indeed offended by the actions of the American Minister, denounced the role of the American forces and called for restoration of the Hawaiian monarchy. Message of the President to the Senate and House of Representatives, reprinted in H. R. Rep. No. 243, 53d Cong., 2d Sess., 3-15 (1893). The Queen could not resume her former place, however, and, in 1894, the provisional government established the Republic of Hawaii. The Queen abdicated her throne a year later. In 1898, President McKinley signed a Joint Resolution, sometimes called the Newlands Resolution, to annex the Hawaiian Islands as territory of the United States. 30 Stat. 750. According to the Joint Resolution, the Republic of Hawaii ceded all former Crown, government, and public lands to the United States. Ibid. The resolution further provided that revenues from the public lands were to be "used solely for the benefit of the inhabitants of the Hawaiian Islands for educational and other public purposes." Ibid. Two years later the Hawaiian Organic Act established the Territory of Hawaii, asserted United States control over the ceded lands, and put those lands "in the possession, use, and control of the government of the Territory of Hawaii ... until otherwise provided for by Congress." Act of Apr. 30, 1900, ch. 339, §91, 31 Stat. 159. In 1993, a century after the intervention by the Committee of Safety, the Congress of the United States reviewed this history, and in particular the role of Minister Stevens. Congress passed a Joint Resolution recounting the events in some detail and offering an apology to the native Hawaiian people. 107 Stat. 1510. Before we turn to the relevant provisions two other important matters, which affected the demographics of Hawaii, must be recounted. The first is the tragedy inflicted on the early Hawaiian people by the introduction of western diseases and infectious agents. As early as the establishment of the rule of Kamehameha I, it was becoming apparent that the native population had serious vulnerability to diseases borne to the islands by settlers. High mortality figures were experienced in infancy and adulthood, even from common illnesses such as diarrhea, colds, and measles. Fuchs 13; see Schmitt 58. More serious diseases took even greater tolls. In the smallpox epidemic of 1853, thousands of lives were lost. Ibid. By 1878, 100 years after Cook's arrival, the native population had been reduced to about 47,500 people. Id., at 25. These mortal illnesses no doubt were an initial cause of the despair, disenchantment, and despondency some commentators later noted in descendents of the early Hawaiian people. See Fuchs 13. The other important feature of Hawaiian demographics to be noted is the immigration to the islands by people of many different races and cultures. Mostly in response to the demand of the sugar industry for arduous labor in the cane fields, successive immigration waves brought Chinese, Portuguese, Japanese, and Filipinos to Hawaii. Beginning with the immigration of 293 Chinese in 1852, the plantations alone drew to Hawaii, in one estimate, something over 400,000 men, women, and children over the next century. Id., at 24; A. Lind, Hawaii's People 6-7 (4th ed. 1980). Each of these ethnic and national groups has had its own history in Hawaii, its own struggles with societal and official discrimination, its own successes, and its own role in creating the present society of the islands. See E. Nordyke, The Peopling of Hawai'i 28-98 (2d ed. 1989). The 1990 census figures show the resulting ethnic diversity of the Hawaiian population. U. S. Dept. of Commerce, Bureau of Census, 1990 Census of Population, Supplementary Reports, Detailed Ancestry Groups for States (Oct. 1992). With this background we turn to the legislative enactments of direct relevance to the case before us.II Not long after the creation of the new Territory, Congress became concerned with the condition of the native Hawaiian people. See H. R. Rep. No. 839, 66th Cong., 2d Sess., 2-6 (1920); Hearings on the Rehabilitation and Colonization of Hawaiians and Other Proposed Amendments to the Organic Act of the Territory of Hawaii before the House Committee on the Territories, 66th Cong., 2d Sess. (1920). Reciting its purpose to rehabilitate the native Hawaiian population, see H. R. Rep. No. 839, at 1-2, Congress enacted the Hawaiian Homes Commission Act, which set aside about 200,000 acres of the ceded public lands and created a program of loans and long-term leases for the benefit of native Hawaiians. Act of July 9, 1921, ch. 42, 42 Stat. 108. The Act defined "native Hawaiian[s]" to include "any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778." Ibid. Hawaii was admitted as the fiftieth State of the Union in 1959. With admission, the new State agreed to adopt the Hawaiian Homes Commission Act as part of its own Constitution. Pub. L. 86-3, §§4, 7, 73 Stat. 5, 7 (Admission Act); see Haw. Const., Art. XII, §§1-3. In addition, the United States granted Hawaii title to all public lands and public property within the boundaries of the State, save those which the Federal Government retained for its own use. Admission Act §5(b)-(d), 73 Stat. 5. This grant included the 200,000 acres set aside under the Hawaiian Homes Commission Act and almost 1.2 million additional acres of land. Brief for United States as Amicus Curiae 4. The legislation authorizing the grant recited that these lands, and the proceeds and income they generated, were to be held "as a public trust" to be "managed and disposed of for one or more of" five purposes:"[1] for the support of the public schools and other public educational institutions, [2] for the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act, 1920, as amended, [3] for the development of farm and home ownership on as widespread a basis as possible[,] [4] for the making of public improvements, and [5] for the provision of lands for public use." Admission Act §5(f), 73 Stat. 6. In the first decades following admission, the State apparently continued to administer the lands that had been set aside under the Hawaiian Homes Commission Act for the benefit of native Hawaiians. The income from the balance of the public lands is said to have "by and large flowed to the department of education." Hawaii Senate Journal, Standing Committee Rep. No. 784, pp. 1350, 1351 (1979). In 1978 Hawaii amended its Constitution to establish the Office of Hawaiian Affairs, Haw. Const., Art. XII, §5, which has as its mission "[t]he betterment of conditions of native Hawaiians ... [and] Hawaiians," Haw. Rev. Stat. §10-3 (1993). Members of the 1978 constitutional convention, at which the new amendments were drafted and proposed, set forth the purpose of the proposed agency:"Members [of the Committee of the Whole] were impressed by the concept of the Office of Hawaiian Affairs which establishes a public trust entity for the benefit of the people of Hawaiian ancestry. Members foresaw that it will provide Hawaiians the right to determine the priorities which will effectuate the betterment of their condition and welfare and promote the protection and preservation of the Hawaiian race, and that it will unite Hawaiians as a people." 1 Proceedings of the Constitutional Convention of Hawaii of 1978, Committee of the Whole Rep. No. 13, p. 1018 (1980). Implementing statutes and their later amendments vested OHA with broad authority to administer two categories of funds: a 20 percent share of the revenue from the 1.2 million acres of lands granted to the State pursuant to §5(b) of the Admission Act, which OHA is to administer "for the betterment of the conditions of native Hawaiians," Haw. Rev. Stat. §10-13.5, and any state or federal appropriations or private donations that may be made for the benefit of "native Hawaiians" and/or "Hawaiians," Haw. Const., Art. XII, §6. See generally Haw. Rev. Stat. §§10-1 to 10-16. (The 200,000 acres set aside under the Hawaiian Homes Commission Act are administered by a separate agency. See Haw. Rev. Stat. §26-17 (1993).) The Hawaiian Legislature has charged OHA with the mission of "[s]erving as the principal public agency ... responsible for the performance, development, and coordination of programs and activities relating to native Hawaiians and Hawaiians," "[a]ssessing the policies and practices of other agencies impacting on native Hawaiians and Hawaiians," "conducting advocacy efforts for native Hawaiians and Hawaiians," "[a]pplying for, receiving, and disbursing, grants and donations from all sources for native Hawaiian and Hawaiian programs and services," and "[s]erving as a receptacle for reparations." Haw. Rev. Stat. §10-3. OHA is overseen by a nine-member board of trustees, the members of which "shall be Hawaiians" and — presenting the precise issue in this case — shall be "elected by qualified voters who are Hawaiians, as provided by law." Haw. Const., Art. XII, §5; see Haw. Rev. Stat. §§13D-1, 13D-3(b)(1) (1993). The term "Hawaiian" is defined by statute:"`Hawaiian' means any descendant of the aboriginal peoples inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples thereafter have continued to reside in Hawaii." §10-2.The statute defines "native Hawaiian" as follows:"`Native Hawaiian' means any descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to 1778, as defined by the Hawaiian Homes Commission Act, 1920, as amended; provided that the term identically refers to the descendants of such blood quantum of such aboriginal peoples which exercised sovereignty and subsisted in the Hawaiian Islands in 1778 and which peoples thereafter continued to reside in Hawaii." Ibid. Petitioner Harold Rice is a citizen of Hawaii and a descendant of pre-annexation residents of the islands. He is not, as we have noted, a descendant of pre-1778 natives, and so he is neither "native Hawaiian" nor "Hawaiian" as defined by the statute. Rice applied in March 1996 to vote in the elections for OHA trustees. To register to vote for the office of trustee he was required to attest: "I am also Hawaiian and desire to register to vote in OHA elections." Affidavit on Application for Voter Registration, Lodging by Petitioner, Tab 2. Rice marked through the words "am also Hawaiian and," then checked the form "yes." The State denied his application. Rice sued Benjamin Cayetano, the Governor of Hawaii, in the United States District Court for the District of Hawaii. (The Governor was sued in his official capacity, and the Attorney General of Hawaii defends the challenged enactments. We refer to the respondent as "the State.") Rice contested his exclusion from voting in elections for OHA trustees and from voting in a special election relating to native Hawaiian sovereignty which was held in August 1996. After the District Court rejected the latter challenge, see Rice v. Cayetano, 941 F. Supp. 1529 (1996), (a decision not before us), the parties moved for summary judgment on the claim that the Fourteenth and Fifteenth Amendments to the United States Constitution invalidate the law excluding Rice from the OHA trustee elections. The District Court granted summary judgment to the State. 963 F. Supp. 1547 (Haw. 1997). Surveying the history of the islands and their people, the District Court determined that Congress and the State of Hawaii have recognized a guardian-ward relationship with the native Hawaiians, which the court found analogous to the relationship between the United States and the Indian tribes. Id., at 1551-1554. On this premise, the court examined the voting qualification with the latitude that we have applied to legislation passed pursuant to Congress' power over Indian affairs. Id., at 1554-1555 (citing Morton v. Mancari,417 U. S. 535 (1974)). Finding that the electoral scheme was "rationally related to the State's responsibility under the Admission Act to utilize a portion of the proceeds from the §5(b) lands for the betterment of Native Hawaiians," the District Court held that the voting restriction did not violate the Constitution's ban on racial classifications. 963 F. Supp., at 1554-1555. The Court of Appeals affirmed. 146 F. 3d 1075 (CA9 1998). The court noted that Rice had not challenged the constitutionality of the underlying programs or of OHA itself. Id., at 1079. Considering itself bound to "accept the trusts and their administrative structure as [it found] them, and assume that both are lawful," the court held that Hawaii "may rationally conclude that Hawaiians, being the group to whom trust obligations run and to whom OHA trustees owe a duty of loyalty, should be the group to decide who the trustees ought to be." Ibid. The court so held notwithstanding its clear holding that the Hawaii Constitution and implementing statutes "contain a racial classification on their face." Ibid. We granted certiorari, 526 U. S. 1016 (1999), and now reverse.III The purpose and command of the Fifteenth Amendment are set forth in language both explicit and comprehensive. The National Government and the States may not violate a fundamental principle: They may not deny or abridge the right to vote on account of race. Color and previous condition of servitude, too, are forbidden criteria or classifications, though it is unnecessary to consider them in the present case. Enacted in the wake of the Civil War, the immediate concern of the Amendment was to guarantee to the emancipated slaves the right to vote, lest they be denied the civil and political capacity to protect their new freedom. Vital as its objective remains, the Amendment goes beyond it. Consistent with the design of the Constitution, the Amendment is cast in fundamental terms, terms transcending the particular controversy which was the immediate impetus for its enactment. The Amendment grants protection to all persons, not just members of a particular race. The design of the Amendment is to reaffirm the equality of races at the most basic level of the democratic process, the exercise of the voting franchise. A resolve so absolute required language as simple in command as it was comprehensive in reach. Fundamental in purpose and effect and self-executing in operation, the Amendment prohibits all provisions denying or abridging the voting franchise of any citizen or class of citizens on the basis of race. "[B]y the inherent power of the Amendment the word white disappeared" from our voting laws, bringing those who had been excluded by reason of race within "the generic grant of suffrage made by the State." Guinn v. United States,238 U. S. 347, 363 (1915); see also Neal v. Delaware,103 U. S. 370, 389 (1881). The Court has acknowledged the Amendment's mandate of neutrality in straightforward terms: "If citizens of one race having certain qualifications are permitted by law to vote, those of another having the same qualifications must be. Previous to this amendment, there was no constitutional guaranty against this discrimination: now there is." United States v. Reese,92 U. S. 214, 218 (1876). Though the commitment was clear, the reality remained far from the promise. Manipulative devices and practices were soon employed to deny the vote to blacks. We have cataloged before the "variety and persistence" of these techniques. South Carolina v. Katzenbach,383 U. S. 301, 311-312 (1966) (citing, e.g., Guinn, supra (grandfather clause); Myers v. Anderson, 238 U. S. 368 (1915) (same); Lane v. Wilson, 307 U. S. 268 (1939) ("procedural hurdles"); Terry v. Adams,345 U. S. 461 (1953) (white primary); Smith v. Allwright,321 U. S. 649 (1944) (same); United States v. Thomas, 362 U. S. 58 (1960) (per curiam) (registration challenges); Gomillion v. Lightfoot, 364 U. S. 339 (1960) (racial gerrymandering); Louisiana v. United States, 380 U. S. 145 (1965) ("interpretation tests")). Progress was slow, particularly when litigation had to proceed case by case, district by district, sometimes voter by voter. See 383 U. S., at 313-315. Important precedents did emerge, however, which give instruction in the case now before us. The Fifteenth Amendment was quite sufficient to invalidate a scheme which did not mention race but instead used ancestry in an attempt to confine and restrict the voting franchise. In 1910, the State of Oklahoma enacted a literacy requirement for voting eligibility, but exempted from that requirement the " `lineal descendant[s]' " of persons who were " `on January 1, 1866, or at any time prior thereto, entitled to vote under any form of government, or who at that time resided in some foreign nation.' " Guinn, supra, at 357. Those persons whose ancestors were entitled to vote under the State's previous, discriminatory voting laws were thus exempted from the eligibility test. Recognizing that the test served only to perpetuate those old laws and to effect a transparent racial exclusion, the Court invalidated it. 238 U. S., at 364-365. More subtle, perhaps, than the grandfather device in Guinn were the evasions attempted in the white primary cases; but the Fifteenth Amendment, again by its own terms, sufficed to strike down these voting systems, systems designed to exclude one racial class (at least) from voting. See Terry, supra, at 469-470; Allwright, supra, at 663-666 (overruling Grovey v. Townsend, 295 U. S. 45 (1935)). The Fifteenth Amendment, the Court held, could not be so circumvented: "The Amendment bans racial discrimination in voting by both state and nation. It thus establishes a national policy ... not to be discriminated against as voters in elections to determine public governmental policies or to select public officials, national, state, or local." Terry, supra, at 467. Unlike the cited cases, the voting structure now before us is neither subtle nor indirect. It is specific in granting the vote to persons of defined ancestry and to no others. The State maintains this is not a racial category at all but instead a classification limited to those whose ancestors were in Hawaii at a particular time, regardless of their race. Brief for Respondent 38-40. The State points to theories of certain scholars concluding that some inhabitants of Hawaii as of 1778 may have migrated from the Marquesas Islands and the Pacific Northwest, as well as from Tahiti. Id., at 38-39, and n. 15. Furthermore, the State argues, the restriction in its operation excludes a person whose traceable ancestors were exclusively Polynesian if none of those ancestors resided in Hawaii in 1778; and, on the other hand, the vote would be granted to a person who could trace, say, one sixty-fourth of his or her ancestry to a Hawaiian inhabitant on the pivotal date. Ibid. These factors, it is said, mean the restriction is not a racial classification. We reject this line of argument. Ancestry can be a proxy for race. It is that proxy here. Even if the residents of Hawaii in 1778 had been of more diverse ethnic backgrounds and cultures, it is far from clear that a voting test favoring their descendants would not be a race-based qualification. But that is not this case. For centuries Hawaii was isolated from migration. 1 Kuykendall 3. The inhabitants shared common physical characteristics, and by 1778 they had a common culture. Indeed, the drafters of the statutory definition in question emphasized the "unique culture of the ancient Hawaiians" in explaining their work. Hawaii Senate Journal, Standing Committee Rep. No. 784, at 1354; see ibid. ("Modern scholarship also identified such race of people as culturally distinguishable from other Polynesian peoples"). The provisions before us reflect the State's effort to preserve that commonality of people to the present day. In the interpretation of the Reconstruction era civil rights laws we have observed that "racial discrimination" is that which singles out "identifiable classes of persons ... solely because of their ancestry or ethnic characteristics." Saint Francis College v. Al-Khazraji,481 U. S. 604, 613 (1987). The very object of the statutory definition in question and of its earlier congressional counterpart in the Hawaiian Homes Commission Act is to treat the early Hawaiians as a distinct people, commanding their own recognition and respect. The State, in enacting the legislation before us, has used ancestry as a racial definition and for a racial purpose. The history of the State's definition demonstrates the point. As we have noted, the statute defines "Hawaiian" as "any descendant of the aboriginal peoples inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples thereafter have continued to reside in Hawaii." Haw. Rev. Stat. §10-2.A different definition of "Hawaiian" was first promulgated in 1978 as one of the proposed amendments to the State Constitution. As proposed, "Hawaiian" was defined as "any descendant of the races inhabiting the Hawaiian Islands, previous to 1778." 1 Proceedings of the Constitutional Convention of Hawaii of 1978, Committee of the Whole Rep. No. 13, at 1018. Rejected as not ratified in a valid manner, see Kahalekai v. Doi, 60 Haw. 324, 342, 590 P. 2d 543, 555 (1979), the definition was modified and in the end promulgated in statutory form as quoted above. See Hawaii Senate Journal, Standing Committee Rep. No. 784, at 1350, 1353-1354; id., Conf. Comm. Rep. No. 77, at 998. By the drafters' own admission, however, any changes to the language were at most cosmetic. Noting that "[t]he definitions of `native Hawaiian' and `Hawaiian' are changed to substitute `peoples' for `races,'" the drafters of the revised definition "stress[ed] that this change is non-substantive, and that `peoples' does mean `races.'" Ibid.; see also id., at 999 ("[T]he word `peoples' has been substituted for `races' in the definition of `Hawaiian'. Again, your Committee wishes to emphasize that this substitution is merely technical, and that `peoples' does mean `races' "). The next definition in Hawaii's compilation of statutes incorporates the new definition of "Hawaiian" and preserves the explicit tie to race: " `Native Hawaiian' means any descendant of not less than one-half part of the races inhabiting the Hawaiian Islands previous to 1778, as defined by the Hawaiian Homes Commission Act, 1920, as amended; provided that the term identically refers to the descendants of such blood quantum of such aboriginal peoples which exercised sovereignty and subsisted in the Hawaiian Islands in 1778 and which peoples thereafter continued to reside in Hawaii." Haw. Rev. Stat. §10-2.This provision makes it clear: "[T]he descendants ... of [the] aboriginal peoples" means "the descendant[s] ... of the races." Ibid. As for the further argument that the restriction differentiates even among Polynesian people and is based simply on the date of an ancestor's residence in Hawaii, this too is insufficient to prove the classification is nonracial in purpose and operation. Simply because a class defined by ancestry does not include all members of the race does not suffice to make the classification race neutral. Here, the State's argument is undermined by its express racial purpose and by its actual effects. The ancestral inquiry mandated by the State implicates the same grave concerns as a classification specifying a particular race by name. One of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities. An inquiry into ancestral lines is not consistent with respect based on the unique personality each of us possesses, a respect the Constitution itself secures in its concern for persons and citizens. The ancestral inquiry mandated by the State is forbidden by the Fifteenth Amendment for the further reason that the use of racial classifications is corruptive of the whole legal order democratic elections seek to preserve. The law itself may not become the instrument for generating the prejudice and hostility all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions. "Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality." Hirabayashi v. United States,320 U. S. 81, 100 (1943). Ancestral tracing of this sort achieves its purpose by creating a legal category which employs the same mechanisms, and causes the same injuries, as laws or statutes that use race by name. The State's electoral restriction enacts a race-based voting qualification.IV The State offers three principal defenses of its vot-ing law, any of which, it contends, allows it to prevail even if the classification is a racial one under the Fif-teenth Amendment. We examine, and reject, each of these arguments.A The most far reaching of the State's arguments is that exclusion of non-Hawaiians from voting is permitted under our cases allowing the differential treatment of certain members of Indian tribes. The decisions of this Court, interpreting the effect of treaties and congressional enactments on the subject, have held that various tribes retained some elements of quasi-sovereign authority, even after cession of their lands to the United States. See Brendale v. Confederated Tribes and Bands of Yakima Nation,492 U. S. 408, 425 (1989) (plurality opinion); Oliphant v. Suquamish Tribe,435 U. S. 191, 208 (1978). The retained tribal authority relates to self-governance. Brendale, supra, at 425 (plurality opinion). In reliance on that theory the Court has sustained a federal provision giving employment preferences to persons of tribal ancestry. Mancari, 417 U. S., at 553-555. The Mancari case, and the theory upon which it rests, are invoked by the State to defend its decision to restrict voting for the OHA trustees, who are charged so directly with protecting the interests of native Hawaiians. If Hawaii's restriction were to be sustained under Mancari we would be required to accept some beginning premises not yet established in our case law. Among other postulates, it would be necessary to conclude that Congress, in reciting the purposes for the transfer of lands to the State — and in other enactments such as the Hawaiian Homes Commission Act and the Joint Resolution of 1993 — has determined that native Hawaiians have a status like that of Indians in organized tribes, and that it may, and has, delegated to the State a broad authority to preserve that status. These propositions would raise questions of considerable moment and difficulty. It is a matter of some dispute, for instance, whether Congress may treat the native Hawaiians as it does the Indian tribes. Compare Van Dyke, The Political Status of the Hawaiian People, 17 Yale L. & Pol'y Rev. 95 (1998), with Benjamin, Equal Protection and the Special Relationship: The Case of Native Hawaiians, 106 Yale L. J. 537 (1996). We can stay far off that difficult terrain, however. The State's argument fails for a more basic reason. Even were we to take the substantial step of finding authority in Congress, delegated to the State, to treat Hawaiians or native Hawaiians as tribes, Congress may not authorize a State to create a voting scheme of this sort. Of course, as we have established in a series of cases, Congress may fulfill its treaty obligations and its responsibilities to the Indian tribes by enacting legislation dedicated to their circumstances and needs. See Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U. S. 658, 673, n. 20 (1979) (treaties securing preferential fishing rights); United States v. Antelope, 430 U. S. 641, 645-647 (1977) (exclusive federal jurisdiction over crimes committed by Indians in Indian country); Delaware Tribal Business Comm. v. Weeks, 430 U. S. 73, 84-85 (1977) (distribution of tribal property); Moe v. Confederated Salish and Kootenai Tribes of Flathead Reservation, 425 U. S. 463, 479-480 (1976) (Indian immunity from state taxes); Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U. S. 382, 390-391 (1976) (per curiam) (exclusive tribal court jurisdiction over tribal adoptions). As we have observed, "every piece of legislation dealing with Indian tribes and reservations ... single[s] out for special treatment a constituency of tribal Indians." Mancari, supra, at 552. Mancari, upon which many of the above cases rely, presented the somewhat different issue of a preference in hiring and promoting at the federal Bureau of Indian Affairs (BIA), a preference which favored individuals who were "`one-fourth or more degree Indian blood and ... member[s] of a Federally-recognized tribe.'" 417 U. S., at 553, n. 24 (quoting 44 BIAM 335, 3.1 (1972)). Although the classification had a racial component, the Court found it important that the preference was "not directed towards a `racial' group consisting of `Indians,'" but rather "only to members of `federally recognized' tribes." 417 U. S., at 553, n.24. "In this sense," the Court held, "the preference [was] political rather than racial in nature." Ibid.; see also id., at 554 ("The preference, as applied, is granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities whose lives and activities are governed by the BIA in a unique fashion"). Because the BIA preference could be "tied rationally to the fulfillment of Congress' unique obligation toward the Indians," and was "reasonably and rationally designed to further Indian self-government," the Court held that it did not offend the Constitution. Id., at 555. The opinion was careful to note, however, that the case was confined to the authority of the BIA, an agency described as "sui generis." Id., at 554. Hawaii would extend the limited exception of Mancari to a new and larger dimension. The State contends that "one of the very purposes of OHA — and the challenged voting provision — is to afford Hawaiians a measure of self-governance," and so it fits the model of Mancari. Brief for Respondent 34. It does not follow from Mancari, however, that Congress may authorize a State to establish a voting scheme that limits the electorate for its public officials to a class of tribal Indians, to the exclusion of all non-Indian citizens. The tribal elections established by the federal statutes the State cites illuminate its error. See id., at 22 (citing, e.g., the Menominee Restoration Act, 25 U. S. C. §903b, and the Indian Reorganization Act, 25 U. S. C. §476). If a non-Indian lacks a right to vote in tribal elections, it is for the reason that such elections are the internal affair of a quasi-sovereign. The OHA elections, by contrast, are the affair of the State of Hawaii. OHA is a state agency, established by the State Constitution, responsible for the administration of state laws and obligations. See Haw. Const., Art. XII, §§5-6. The Hawaiian Legislature has declared that OHA exists to serve "as the principal public agency in th[e] State responsible for the performance, development, and coordination of programs and activities relating to native Hawaiians and Hawaiians." Haw. Rev. Stat. §10-3(3)); see also Lodging by Petitioner, Tab 6, OHA Annual Report 1993-94, p. 5 (May 27, 1994) (admitting that "OHA is technically a part of the Hawai'i state government," while asserting that "it operates as a semi-autonomous entity"). Foremost among the obligations entrusted to this agency is the administration of a share of the revenues and proceeds from public lands, granted to Hawaii to "be held by said State as a public trust." Admission Act §§5(b), (f), 73 Stat. 5, 6; see Haw. Const., Art. XII, §4. The delegates to the 1978 constitutional convention explained the position of OHA in the state structure:"The committee intends that the Office of Hawaiian Affairs will be independent from the executive branch and all other branches of government although it will assume the status of a state agency. The chairman may be an ex officio member of the governor's cabinet. The status of the Office of Hawaiian Affairs is to be unique and special... . The committee developed this office based on the model of the University of Hawaii. In particular, the committee desired to use this model so that the office could have maximum control over its budget, assets and personnel. The committee felt that it was important to arrange a method whereby the assets of Hawaiians could be kept separate from the rest of the state treasury." 1 Proceedings of the Constitutional Convention of Hawaii of 1978, Standing Committee Rep. No. 59, at 645.Although it is apparent that OHA has a unique position under state law, it is just as apparent that it remains an arm of the State. The validity of the voting restriction is the only question before us. As the court of appeals did, we assume the validity of the underlying administrative structure and trusts, without intimating any opinion on that point. Nonetheless, the elections for OHA trustee are elections of the State, not of a separate quasi-sovereign, and they are elections to which the Fifteenth Amendment applies. To extend Mancari to this context would be to permit a State, by racial classification, to fence out whole classes of its citizens from decisionmaking in critical state affairs. The Fifteenth Amendment forbids this result.B Hawaii further contends that the limited voting franchise is sustainable under a series of cases holding that the rule of one person, one vote does not pertain to certain special purpose districts such as water or irrigation districts. See Ball v. James,451 U. S. 355 (1981); Salyer Land Co. v. Tulare Lake Basin Water Storage Dist.,410 U. S. 719 (1973). Just as the Mancari argument would have involved a significant extension or new application of that case, so too it is far from clear that the Salyer line of cases would be at all applicable to statewide elections for an agency with the powers and responsibilities of OHA. We would not find those cases dispositive in any event, however. The question before us is not the one-person, one-vote requirement of the Fourteenth Amendment, but the race neutrality command of the Fifteenth Amendment. Our special purpose district cases have not suggested that compliance with the one-person, one-vote rule of the Fourteenth Amendment somehow excuses compliance with the Fifteenth Amendment. We reject that argument here. We held four decades ago that state authority over the boundaries of political subdivisions, "extensive though it is, is met and overcome by the Fifteenth Amendment to the Constitution." Gomillion, 364 U. S., at 345. The Fifteenth Amendment has independent meaning and force. A State may not deny or abridge the right to vote on account of race, and this law does so.C Hawaii's final argument is that the voting restriction does no more than ensure an alignment of interests between the fiduciaries and the beneficiaries of a trust. Thus, the contention goes, the restriction is based on beneficiary status rather than race. As an initial matter, the contention founders on its own terms, for it is not clear that the voting classification is symmetric with the beneficiaries of the programs OHA administers. Although the bulk of the funds for which OHA is responsible appears to be earmarked for the benefit of "native Hawaiians," the State permits both "native Hawaiians" and "Hawaiians" to vote for the office of trustee. The classification thus appears to create, not eliminate, a differential alignment between the identity of OHA trustees and what the State calls beneficiaries. Hawaii's argument fails on more essential grounds. The State's position rests, in the end, on the demeaning premise that citizens of a particular race are somehow more qualified than others to vote on certain matters. That reasoning attacks the central meaning of the Fifteenth Amendment. The Amendment applies to "any election in which public issues are decided or public officials selected." Terry,345 U. S., at 468. There is no room under the Amendment for the concept that the right to vote in a particular election can be allocated based on race. Race cannot qualify some and disqualify others from full participation in our democracy. All citizens, regardless of race, have an interest in selecting officials who make policies on their behalf, even if those policies will affect some groups more than others. Under the Fifteenth Amendment voters are treated not as members of a distinct race but as members of the whole citizenry. Hawaii may not assume, based on race, that petitioner or any other of its citizens will not cast a principled vote. To accept the position advanced by the State would give rise to the same indignities, and the same resulting tensions and animosities, the Amendment was designed to eliminate. The voting restriction under review is prohibited by the Fifteenth Amendment.* * * When the culture and way of life of a people are all but engulfed by a history beyond their control, their sense of loss may extend down through generations; and their dismay may be shared by many members of the larger community. As the State of Hawaii attempts to address these realities, it must, as always, seek the political consensus that begins with a sense of shared purpose. One of the necessary beginning points is this principle: The Constitution of the United States, too, has become the heritage of all the citizens of Hawaii. In this case the Fifteenth Amendment invalidates the electoral qualification based on ancestry. The judgment of the Court of Appeals for the Ninth Circuit is reversed.It is so ordered. HAROLD F. RICE, PETITIONER v. BENJAMINJ. CAYETANO, GOVERNOR OF HAWAIIon writ of certiorari to the united states court ofappeals for the ninth circuit[February 23, 2000] Justice Breyer, with whom Justice Souter joins, concurring in the result. I agree with much of what the Court says and with its result, but I do not agree with the critical rationale that underlies that result. Hawaii seeks to justify its voting scheme by drawing an analogy between its Office of Hawaiian Affairs (OHA) and a trust for the benefit of an Indian Tribe. The majority does not directly deny the analogy. It instead at one point assumes, at least for argument's sake, that the "revenues and proceeds" at issue are from a " `public trust.' " Ante, at 24. It also assumes without deciding that the State could "treat Hawaiians or native Hawaiians as tribes." Ante, at 22. Leaving these issues undecided, it holds that the Fifteenth Amendment forbids Hawaii's voting scheme, because the "OHA is a state agency," and thus election to the OHA board is not "the internal affair of a quasi-sovereign," such as an Indian tribe. Ante, at 24. I see no need, however, to decide this case on the basis of so vague a concept as "quasi-sovereign," and I do not subscribe to the Court's consequently sweeping prohibition. Rather, in my view, we should reject Hawaii's effort to justify its rules through analogy to a trust for an Indian tribe because the record makes clear that (1) there is no "trust" for native Hawaiians here, and (2) OHA's electorate, as defined in the statute, does not sufficiently resemble an Indian tribe. The majority seems to agree, though it does not decide, that the OHA bears little resemblance to a trust for native Hawaiians. It notes that the Hawaii Constitution uses the word "trust" when referring to the 1.2 million acres of land granted in the Admission Act. Ante, at 10, 12. But the Admission Act itself makes clear that the 1.2 million acres is to benefit all the people of Hawaii. The Act specifies that the land is to be used for the education of, the developments of homes and farms for, the making of public improvements for, and public use by, all of Hawaii's citizens, as well as for the betterment of those who are "native." Admission Act §5(f). Moreover, OHA funding comes from several different sources. See, e.g., OHA Fiscal 1998 Annual Report 38 (hereinafter Annual Report) ($15 million from the 1.2 million acres of public lands; $11 million from "[d]ividend and interest income"; $3 million from legislative appropriations; $400,000 from federal and other grants). All of OHA's funding is authorized by ordinary state statutes. See, e.g., Haw. Rev. Stat. §§10-4, 10-6, 10-13.5 (1993); see also Annual Report 11 ("OHA's fiscal 1998-99 legislative budget was passed as Acts 240 and 115 by the 1997 legislature"). The amounts of funding and funding sources are thus subject to change by ordinary legislation. OHA spends most, but not all, of its money to benefit native Hawaiians in many different ways. See Annual Report (OHA projects support education, housing, health, culture, economic development, and nonprofit organizations). As the majority makes clear, OHA is simply a special purpose department of Hawaii's state government. Ante, at 24-25. As importantly, the statute defines the electorate in a way that is not analogous to membership in an Indian tribe. Native Hawaiians, considered as a group, may be analogous to tribes of other Native Americans. But the statute does not limit the electorate to native Hawaiians. Rather it adds to approximately 80,000 native Hawaiians about 130,000 additional "Hawaiians," defined as including anyone with one ancestor who lived in Hawaii prior to 1778, thereby including individuals who are less than one five-hundredth original Hawaiian (assuming nine generations between 1778 and the present). See Native Hawaiian Data Book 39 (1998). Approximately 10% to 15% of OHA's funds are spent specifically to benefit this latter group, see Annual Report 38, which now comprises about 60% of the OHA electorate. I have been unable to find any Native American tribal definition that is so broad. The Alaska Native Claims Settlement Act, for example, defines a "Native" as "a person of one-fourth degree or more Alaska Indian" or one "who is regarded as an Alaska Native by the Native village or Native group of which he claims to be a member and whose father or mother is ... regarded as Native by any village or group" (a classification perhaps more likely to reflect real group membership than any blood quantum requirement). 43 U. S. C. §1602(b). Many tribal constitutions define membership in terms of having had an ancestor whose name appeared on a tribal roll — but in the far less distant past. See, e.g., Constitution of the Choctaw Nation of Oklahoma, Art. II (membership consists of persons on final rolls approved in 1906 and their lineal descendants); Constitution of the Sac and Fox Tribe of Indians of Oklahoma, Art. II (membership consists of persons on official roll of 1937, children since born to two members of the Tribe, and children born to one member and a nonmember if admitted by the council); Revised Constitution of the Jicarilla Apache Tribe, Art. III (membership consists of persons on official roll of 1968 and children of one member of the Tribe who are at least three-eighths Jicarilla Apache Indian blood); Revised Constitution Mescalero Apache Tribe, Art. IV (membership consists of persons on the official roll of 1936 and children born to at least one enrolled member who are at least one-fourth degree Mescalero Apache blood). Of course, a Native American tribe has broad authority to define its membership. See Santa Clara Pueblo v. Martinez,436 U. S. 49, 72, n. 32 (1978). There must, however, be some limit on what is reasonable, at the least when a State (which is not itself a tribe) creates the definition. And to define that membership in terms of 1 possible ancestor out of 500, thereby creating a vast and unknowable body of potential members — leaving some combination of luck and interest to determine which potential members become actual voters — goes well beyond any reasonable limit. It was not a tribe, but rather the State of Hawaii, that created this definition; and, as I have pointed out, it is not like any actual membership classification created by any actual tribe. These circumstances are sufficient, in my view, to destroy the analogy on which Hawaii's justification must depend. This is not to say that Hawaii's definitions themselves independently violate the Constitution, cf. post at 9-10 (Justice Stevens, dissenting); it is only to say that the analogies they here offer are too distant to save a race-based voting definition that in their absence would clearly violate the Fifteenth Amendment. For that reason I agree with the majority's ultimate conclusion. HAROLD F. RICE, PETITIONER v. BENJAMINJ. CAYETANO, GOVERNOR OF HAWAIIon writ of certiorari to the united states court ofappeals for the ninth circuit[February 23, 2000] Justice Stevens, with whom Justice Ginsburg joins as to Part II, dissenting. The Court's holding today rests largely on the repetition of glittering generalities that have little, if any, application to the compelling history of the State of Hawaii. When that history is held up against the manifest purpose of the Fourteenth and Fifteenth Amendments, and against two centuries of this Court's federal Indian law, it is clear to me that Hawaii's election scheme should be upheld.I According to the terms of the federal Act by which Hawaii was admitted to the Union, and to the terms of that State's Constitution and laws, the Office of Hawaiian Affairs (OHA) is charged with managing vast acres of land held in trust for the descendants of the Polynesians who occupied the Hawaiian Islands before the 1778 arrival of Captain Cook. In addition to administering the proceeds from these assets, OHA is responsible for programs providing special benefits for native Hawaiians. Established in 1978 by an amendment to the State Constitution, OHA was intended to advance multiple goals: to carry out the duties of the trust relationship between the Islands' indigenous peoples and the Government of the United States; to compensate for past wrongs to the ancestors of these peoples; and to help preserve the distinct, indigenous culture that existed for centuries before Cook's arrival. As explained by the senior Senator from Hawaii, Senator Inouye, who is not himself a native Hawaiian but rather (like petitioner) is a member of the majority of Hawaiian voters who supported the 1978 amendments, the amendments reflect "an honest and sincere attempt on the part of the people of Hawai'i to rectify the wrongs of the past, and to put into being the mandate of our Federal government — the betterment of the conditions of Native Hawaiians."1 Today the Court concludes that Hawaii's method of electing the trustees of OHA violates the Fifteenth Amendment. In reaching that conclusion, the Court has assumed that the programs administered by OHA are valid. That assumption is surely correct. In my judgment, however, the reasons supporting the legitimacy of OHA and its programs in general undermine the basis for the Court's decision holding its trustee election provision invalid. The OHA election provision violates neither the Fourteenth Amendment nor the Fifteenth. That conclusion is in keeping with three overlapping principles. First, the Federal Government must be, and has been, afforded wide latitude in carrying out its obligations arising from the special relationship it has with the aboriginal peoples, a category that includes the native Hawaiians, whose lands are now a part of the territory of the United States. In addition, there exists in this case the State's own fiduciary responsibility — arising from its establishment of a public trust — for administering assets granted it by the Federal Government in part for the benefit of native Hawaiians. Finally, even if one were to ignore the more than two centuries of Indian law precedent and practice on which this case follows, there is simply no invidious discrimination present in this effort to see that indigenous peoples are compensated for past wrongs, and to preserve a distinct and vibrant culture that is as much a part of this Nation's heritage as any.II Throughout our Nation's history, this Court has recognized both the plenary power of Congress over the affairs of native Americans 2 and the fiduciary character of the special federal relationship with descendants of those once sovereign peoples.3 The source of the Federal Government's responsibility toward the Nation's native inhabitants, who were subject to European and then American military conquest, has been explained by this Court in the crudest terms, but they remain instructive nonetheless."These Indian tribes are the wards of the nation. They are communities dependent on the United States. Dependent largely for their daily food. Dependent for their political rights... . From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive, and by Congress, and by this court, whenever the question has arisen." UnitedStates v. Kagama, 118 U. S. 375, 383-384 (1886) (emphasis in original). As our cases have consistently recognized, Congress' plenary power over these peoples has been exercised time and again to implement a federal duty to provide native peoples with special "care and protection."4 With respect to the Pueblos in New Mexico, for example, "public moneys have been expended in presenting them with farming implements and utensils, and in their civilization and instruction." United States v. Sandoval,231 U. S. 28, 40-41 (1913). Today, the Federal Bureau of Indian Affairs (BIA) administers countless modern programs responding to comparably pragmatic concerns, including health, education, housing, and impoverishment. See Office of the Federal Register, United States Government Manual 1999/2000, pp. 311-312. Federal regulation in this area is not limited to the strictly practical but has encompassed as well the protection of cultural values; for example, the desecration of Native American graves and other sacred sites led to the passage of the Native American Graves Protection and Repatriation Act, 25 U. S. C. §3001 et seq. Critically, neither the extent of Congress' sweeping power nor the character of the trust relationship with indigenous peoples has depended on the ancient racial origins of the people, the allotment of tribal lands,5 the coherence or existence of tribal self-government,6 or the varying definitions of "Indian" Congress has chosen to adopt.7 Rather, when it comes to the exercise of Congress' plenary power in Indian affairs, this Court has taken account of the "numerous occasions" on which "legislation that singles out Indians for particular and special treatment" has been upheld, and has concluded that as "long as the special treatment can be tied rationally to the fulfillment of Congress' unique obligation towards the Indians, such legislative judgments will not be disturbed." Morton v. Mancari,417 U. S. 535, 554-555 (1974). As the history recited by the majority reveals, the grounds for recognizing the existence of federal trust power here are overwhelming. Shortly before its annexation in 1898, the Republic of Hawaii (installed by United States merchants in a revolution facilitated by the United States Government) expropriated some 1.8 million acres of land that it then ceded to the United States. In the Organic Act establishing the Territory of Hawaii, Congress provided that those lands should remain under the control of the territorial government "until otherwise provided for by Congress," Act of Apr. 30, 1900, ch. 339, §91, 31 Stat. 159. By 1921, Congress recognized that the influx of foreign infectious diseases, mass immigration coupled with poor housing and sanitation, hunger, and malnutrition had taken their toll. See ante, at 9. Confronted with the reality that the Hawaiian people had been "frozen out of their lands and driven into the cities," H. R. Rep. No. 839, 66th Cong., 2d Sess., 4 (1920), Congress decided that 27 specific tracts of the lands ceded in 1898, comprising about 203,500 acres, should be used to provide farms and residences for native Hawaiians. Act of July 9, 1921, ch. 42, 42 Stat. 108. Relying on the precedent of previous federal laws granting Indians special rights in public lands, Congress created the Hawaiian Homes Commission to implement its goal of rehabilitating the native people and culture.8 Hawaii was required to adopt this Act as a condition of statehood in the Hawaii Statehood Admissions Act (Admissions Act), §4, 73 Stat. 5. And in an effort to secure the Government's duty to the indigenous peoples, §5 of the Act conveyed 1.2 million acres of land to the State to be held in trust "for the betterment of the con-ditions of native Hawaiians" and certain other public purposes. §5(f), id., at 6. The nature of and motivation for the special relationship between the indigenous peoples and the United States Government was articulated in explicit detail in 1993, when Congress adopted a Joint Resolution containing a formal "apology to Native Hawaiians on behalf of the United States for the overthrow of the Kingdom of Hawaii." 107 Stat. 1510. Among other acknowledgments, the resolution stated that the 1.8 million acres of ceded lands had been obtained "without the consent of or compensation to the Native Hawaiian people of Hawaii or their sovereign government." Id., at 1512. In the end, however, one need not even rely on this official apology to discern a well-established federal trust relationship with the native Hawaiians. Among the many and varied laws passed by Congress in carrying out its duty to indigenous peoples, more than 150 today expressly include native Hawaiians as part of the class of Native Americans benefited.9 By classifying native Hawaiians as "Native Americans" for purposes of these statutes, Congress has made clear that native Hawaiians enjoy many of "the same rights and privileges accorded to American Indian, Alaska Native, Eskimo, and Aleut communities." 42 U. S. C. §11701(19). See also §11701(17) ("The authority of the Congress under the United States Constitution to legislate in matters affecting the aboriginal or indigenous peoples of the United States includes the authority to legislate in matters affecting the native peoples of ... Hawaii"). While splendidly acknowledging this history — specifically including the series of agreements and enactments the history reveals — the majority fails to recognize its import. The descendants of the native Hawaiians share with the descendants of the Native Americans on the mainland or in the Aleutian Islands not only a history of subjugation at the hands of colonial forces, but also a purposefully created and specialized "guardian-ward" relationship with the Government of the United States. It follows that legislation targeting the native Hawaiians must be evaluated according to the same understanding of equal protection that this Court has long applied to the Indians on the continental United States: that "special treatment ... be tied rationally to the fulfillment of Congress' unique obligation" toward the native peoples. Declining to confront the rather simple logic of the foregoing, the majority would seemingly reject the OHA voting scheme for a pair of different reasons. First, Congress' trust-based power is confined to dealings with tribes, not with individuals, and no tribe or indigenous sovereign entity is found among the native Hawaiians. Ante, at 23. Second, the elections are "the affair of the State," not of a tribe, and upholding this law would be "to permit a State, by racial classification, to fence out whole classes of citizens from decision making in critical state affairs." Ante, at 24-25. In my view, neither of these reasons overcomes the otherwise compelling similarity, fully supported by our precedent, between the once subjugated, indigenous peoples of the continental United States and the peoples of the Hawaiian Islands whose historical sufferings and status parallel those of the continental Native Americans. Membership in a tribe, the majority suggests, rather than membership in a race or class of descendants, has been the sine qua non of governmental power in the realm of Indian law; Mancari itself, the majority contends, makes this proposition clear. Ante, at 23. But as scholars have often pointed out, tribal membership cannot be seen as the decisive factor in this Court's opinion upholding the BIA preferences in Mancari; the hiring preference at issue in that case not only extended to non-tribal member Indians, it also required for eligibility that ethnic Native Americans possess a certain quantum of Indian blood.10 Indeed, the Federal Government simply has not been limited in its special dealings with the native peoples to laws affecting tribes or tribal Indians alone. See nn.6, 7, supra. In light of this precedent, it is a painful irony indeed to conclude that native Hawaiians are not entitled to special benefits designed to restore a measure of native self-governance because they currently lack any vestigial native government — a possibility of which history and the actions of this Nation have deprived them.11 Of greater concern to the majority is the fact that we are confronted here with a state constitution and legislative enactment — passed by a majority of the entire population of Hawaii — rather than a law passed by Congress or a tribe itself. See, e.g., ante, at 24-25. But as our own precedent makes clear, this reality does not alter our analysis. As I have explained, OHA and its trustee elections can hardly be characterized simply as an "affair of the State" alone; they are the instruments for implementing the Federal Government's trust relationship with a once sovereign indigenous people. This Court has held more than once that the federal power to pass laws fulfilling its trust relationship with the Indians may be delegated to the States. Most significant is our opinion in Washington v. Confederated Bands and Tribes of Yakima Nation, 439 U. S. 463, 500-501 (1979), in which we upheld against a Fourteenth Amendment challenge a state law assuming jurisdiction over Indian tribes within a State. While we recognized that States generally do not have the same special relationship with Indians that the Federal Government has, we concluded that because the state law was enacted "in response to a federal measure" intended to achieve the result accomplished by the challenged state law, the state law itself need only " `rationally further the purpose identified by the State.' " Id., at 500 (quoting Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307, 314 (1976) (per curiam)). The state statutory and constitutional scheme here was without question intended to implement the express desires of the Federal Government. The Admissions Act in §4 mandated that the provisions of the Hawaiian Homes Commission Act "shall be adopted," with its multiple provisions expressly benefiting native Hawaiians and not others. 73 Stat. 5. More, the Act required that the proceeds from the lands granted to the State "shall be held by said State as a public trust for ... the betterment of the conditions of native Hawaiians," and that those proceeds "shall be managed and disposed of ... in such manner as the constitution and laws of said State may provide, and their use for any other object shall constitute a breach of trust for which suit may be brought by the United States." §5, id., at 6. The terms of the trust were clear, as was the discretion granted to the State to administer the trust as the State's laws "may provide." And Congress continues to fund OHA on the understanding that it is thereby furthering the federal trust obligation. The sole remaining question under Mancari and Yakima is thus whether the State's scheme "rationally further[s] the purpose identified by the State." Under this standard, as with the BIA preferences in Mancari, the OHA voting requirement is certainly reasonably designed to promote "self-government" by the descendants of the indigenous Hawaiians, and to make OHA "more responsive to the needs of its constituent groups." Mancari, 417 U. S., at 554. The OHA statute provides that the agency is to be held "separate" and "independent of the [State] executive branch," Haw. Rev. Stat. §10-4 (1993); OHA executes a trust, which, by its very character, must be administered for the benefit of Hawaiians and native Hawaiians, §§10-2, 10-3(1), 10-13.5; and OHA is to be governed by a board of trustees that will reflect the interests of the trust's native Hawaiian beneficiaries, Haw. Const., Art. XII, §5 (1993); Haw. Rev. Stat. §13D-3(b) (1993). OHA is thus "directed to participation by the governed in the governing agency." Mancari, 417 U. S., at 554. In this respect among others, the requirement is "reasonably and directly related to a legitimate, nonracially based goal." Ibid. The foregoing reasons are to me more than sufficient to justify the OHA trust system and trustee election provision under the Fourteenth Amendment.III Although the Fifteenth Amendment tests the OHA scheme by a different measure, it is equally clear to me that the trustee election provision violates neither the letter nor the spirit of that Amendment.12 Section 1 of the Fifteenth Amendment provides: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude." U. S. Const., Amdt. 15.As the majority itself must tacitly admit, ante, at 17-18, the terms of the Amendment itself do not here apply. The OHA voter qualification speaks in terms of ancestry and current residence, not of race or color. OHA trustee voters must be "Hawaiian," meaning "any descendant of the aboriginal peoples inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples have continued to reside in Hawaii." Haw. Rev. Stat. §10-2. The ability to vote is a function of the lineal descent of a modern-day resident of Hawaii, not the blood-based characteristics of that resident, or of the blood-based proximity of that resident to the "peoples" from whom that descendant arises. The distinction between ancestry and race is more than simply one of plain language. The ability to trace one's ancestry to a particular progenitor at a single distant point in time may convey no information about one's own apparent or acknowledged race today. Neither does it of necessity imply one's own identification with a particular race, or the exclusion of any others "on account of race." The terms manifestly carry distinct meanings, and ancestry was not included by the framers in the Amendment's prohibitions. Presumably recognizing this distinction, the majority relies on the factthat "[a]ncestry can be a proxy for race." Ante, at 18. That is, of course, true, but it by no means follows that ancestry is always a proxy for race. Cases in which ancestry served as such a proxy are dramatically different from this one. For example, the literacy requirement at issue in Guinn v. United States, 238 U. S. 347 (1915), relied on such a proxy. As part of a series of blatant efforts to exclude blacks from voting, Oklahoma exempted from its literacy requirement people whose ancestors were entitled to vote prior to the enactment of the Fifteenth Amendment. The Guinn scheme patently "served only to perpetuate ... old [racially discriminatory voting] laws and to effect a transparent racial exclusion." Ante, at 17. As in Guinn, the voting laws held invalid under the Fifteenth Amendment in all of the cases cited by the majority were fairly and properly viewed through a specialized lens — a lens honed in specific detail to reveal the realities of time, place, and history behind the voting restrictions being tested. That lens not only fails to clarify, it fully obscures the realities of this case, virtually the polar opposite of the Fifteenth Amendment cases on which the Court relies. In Terry v. Adams,345 U. S. 461 (1953), for example, the Court held that the Amendment proscribed the Texas "Jaybird primaries" that used neutral voting qualifications "with a single proviso — Negroes are excluded," id., at 469. Similarly, in Smith v. Allwright,321 U. S. 649, 664 (1944), it was the blatant "discrimination against Negroes" practiced by a political party that was held to be state action within the meaning of the Amendment. Cases such as these that "strike down these voting systems ... designed to exclude one racial class (at least) from voting," ante, at 17, have no application to a system designed to empower politically the remaining members of a class of once sovereign, indigenous people. Ancestry surely can be a proxy for race, or a pretextfor invidious racial discrimination. But it is simply neither proxy nor pretexthere. All of the persons who are eligible to vote for the trustees of OHA share two qualifications that no other person old enough to vote possesses: They are beneficiaries of the public trust created by the State and administered by OHA, and they have at least one ancestor who was a resident of Hawaii in 1778. A trust whose terms provide that the trustees shall be elected by a class including beneficiaries is hardly a novel concept. See 2 A. Scott & W. Fratcher, Law of Trusts §108.3 (4th ed. 1987). The Committee that drafted the voting qualification explained that the trustees here should be elected by the beneficiaries because "people to whom assets belong should have control over them ... . The election of the board will enhance representative governance and decision-making accountability and, as a result, strengthen the fiduciary relationship between the board member, as trustee, and the native Hawaiian, as beneficiary."13 The described purpose of this aspect of the classification thus exists wholly apart from race. It is directly focused on promoting both the delegated federal mandate, and the terms of the State's own trustee responsibilities. The majority makes much of the fact that the OHA trust — which it assumes is legitimate — should be read as principally intended to benefit the smaller class of "native Hawaiians," who are defined as at least one-half descended from a native islander circa 1778, Haw. Rev. Stat. §10-2 (1993), not the larger class of "Hawaiians," which includes "any descendant" of those aboriginal people who lived in Hawaii in 1778 and "which peoples thereafter have continued to reside in Hawaii," ibid. See ante, at 26-27. It is, after all, the majority notes, the larger class of Hawaiians that enjoys the suffrage right in OHA elections. There is therefore a mismatch in interest alignment between the trust beneficiaries and the trustee electors, the majority contends, and it thus cannot be said that the class of qualified voters here is defined solely by beneficiary status. While that may or may not be true depending upon the construction of the terms of the trust, there is surely nothing racially invidious about a decision to enlarge the class of eligible voters to include "any descendant" of a 1778 resident of the Islands. The broader category of eligible voters serves quite practically to ensure that, regardless how "dilute" the race of native Hawaiians becomes — a phenomenon also described in the majority's lavish historical summary, ante, at 9 — there will remain a voting interest whose ancestors were a part of a political, cultural community, and who have inherited through participation and memory the set of traditions the trust seeks to protect. The putative mismatch only underscores the reality that it cannot be purely a racial interest that either the trust or the election provision seeks to secure; the political and cultural interests served are — unlike racial survival — shared by both native Hawaiians and Hawaiians.14 Even if one refuses to recognize the beneficiary status of OHA trustee voters entirely,15 it cannot be said that the ancestry-based voting qualification here simply stands in the shoes of a classification that would either privilege or penalize "on account of " race. The OHA voting qualification — part of a statutory scheme put in place by democratic vote of a multiracial majority of all state citizens, including those non-"Hawaiians" who are not entitled to vote in OHA trustee elections — appropriately includes every resident of Hawaii having at least one ancestor who lived in the Islands in 1778. That is, among other things, the audience to whom the congressional apology was addressed. Unlike a class including only full-blooded Polynesians — as one would imagine were the class strictly defined in terms of race — the OHA election provision excludes all full-blooded Polynesians currently residing in Hawaii who are not descended from a 1778 resident of Hawaii. Conversely, unlike many of the old southern voting schemes in which any potential voter with a `taint' of non-Hawaiian blood would be excluded, the OHA scheme excludes no descendant of a 1778 resident because he or she is also part European, Asian, or African as a matter of race. The classification here is thus both too inclusive and not inclusive enough to fall strictly along racial lines. At pains then to identify at work here a singularly "racial purpose," ante, at 18, 20 — whatever that might mean, although one might assume the phrase a `proxy' for "racial discrimination"--the majority next posits that "[o]ne of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities." Ante, at 20. That is, of course, true when ancestry is the basis for denying or abridging one's right to vote or to share the blessings of freedom. But it is quite wrong to ignore the relevance of ancestry to claims of an interest in trust property, or to a shared interest in a proud heritage. There would be nothing demeaning in a law that established a trust to manage Monticello and provided that the descendants of Thomas Jefferson should elect the trustees. Such a law would be equally benign, regardless of whether those descendants happened to be members of the same race.16 In this light, it is easy to understand why the classification here is not "demeaning" at all, ante, at 27, for it is simply not based on the "premise that citizens of a particular race are somehow more qualified than others to vote on certain matters," ibid. It is based on the permissible assumption in this context that families with "any" ancestor who lived in Hawaii in 1778, and whose ancestors thereafter continued to live in Hawaii, have a claim to compensation and self-determination that others do not. For the multiracial majority of the citizens of the State of Hawaii to recognize that deep reality is not to demean their own interests but to honor those of others. It thus becomes clear why the majority is likewise wrong to conclude that the OHA voting scheme is likely to "become the instrument for generating the prejudice and hostility all too often directed against persons whose particular ancestry is disclosed by their ethnic characteristics and cultural traditions." Ante, at 20. The political and cultural concerns that motivated the nonnative majority of Hawaiian voters to establish OHA reflected an interest in preserving through the self-determination of a particular people ancient traditions that they value. The fact that the voting qualification was established by the entire electorate in the State — the vast majority of which is not native Hawaiian — testifies to their judgment concerning the Court's fear of "prejudice and hostility" against the majority of state residents who are not "Hawaiian," such as petitioner. Our traditional understanding of democracy and voting preferences makes it difficult to conceive that the majority of the State's voting population would have enacted a measure that discriminates against, or in any way represents prejudice and hostility toward, that self-same majority. Indeed, the best insurance against that danger is that the electorate here retains the power to revise its laws.IV The Court today ignores the overwhelming differences between the Fifteenth Amendment case law on which it relies and the unique history of the State of Hawaii. The former recalls an age of abject discrimination against an insular minority in the old South; the latter at long last yielded the "political consensus" the majority claims it seeks, ante, at 27 — a consensus determined to recognize the special claim to self-determination of the indigenous peoples of Hawaii. This was the considered and correct view of the District Judge for the United States District Court for the District of Hawaii, as well as the three Circuit Judges on the Court of Appeals for the Ninth Circuit.17 As Judge Rymer explained:"The special election for trustees is not equivalent to a general election, and the vote is not for officials who will perform general governmental functions in either a representative or executive capacity... . Nor does the limitation in these circumstances suggest that voting eligibility was designed to exclude persons who would otherwise be interested in OHA's affairs... . Rather, it reflects the fact that the trustees' fiduciary responsibilities run only to native Hawaiians and Hawaiians and `a board of trustees chosen from among those who are interested parties would be the best way to insure proper management and adherence to the needed fiduciary principles.' 18 The challenged part of Hawaii law was not contrived to keep non-Hawaiians from voting in general, or in any respect pertinent to their legal interests. Therefore, wecannot say that [petitioner's] right to vote has been denied or abridged in violation of the Fifteenth Amendment. "18 1 Proceedings of the Constitutional Convention of Hawaii of 1978, Standing Comm. Rep. No. 59 at 644. The Committee reporting on Section 5, establishing OHA, further noted that trustees should be so elected because `people to whom assets belong should have control over them... . The election of the board will enhance representative governance and decision-making accountability and, as a result, strengthen the fiduciary relationship between the board member, as trustee, and the native Hawaiian, as beneficiary.' Id."146 F. 3d 1075, 1081-1082 (CA9 1998). In my judgment, her reasoning is far more persuasive than the wooden approach adopted by the Court today. Accordingly, I respectfully dissent. HAROLD F. RICE, PETITIONER v. BENJAMINJ. CAYETANO, GOVERNOR OF HAWAIIon writ of certiorari to the united states court ofappeals for the ninth circuit[February 23, 2000] Justice Ginsburg, dissenting. I dissent essentially for the reasons stated by Justice Stevens in Part II of his dissenting opinion. Ante, at 3-12 (relying on established federal authority over Native Americans). Congress' prerogative to enter into special trust relationships with indigenous peoples, Morton v. Mancari,417 U. S. 535 (1974), as Justice Stevens cogently explains, is not confined to tribal Indians. In particular, it encompasses native Hawaiians, whom Congress has in numerous statutes reasonably treated as qualifying for the special status long recognized for other once-sovereign indigenous peoples. See ante, at 7, and n. 9 (Stevens, J., dissenting). That federal trust responsibility, both the Court and Justice Stevens recognize, has been delegated by Congress to the State of Hawaii. Both the Office of Hawaiian Affairs and the voting scheme here at issue are "tied rationally to the fulfillment" of that obligation. See Mancari, 417 U. S., at 555. No more is needed to demonstrate the validity of the Office and the voting provision under the Fourteenth and Fifteenth Amendments.FOOTNOTESFootnote 1 App. E to Brief for Hawai`i Congressional Delegation as Amicus Curiae E-3. In a statement explaining the cultural motivation for the amendments, Senator Akaka pointed out that the "fact that the entire State of Hawai`i voted to amend the State Constitution in 1978 to establish the Office of Hawaiian Affairs is significant because it illustrates the recognition of the importance of Hawaiian culture and traditions as the foundation of the Aloha spirit." Id., at E-5.Footnote 2 See, e.g., Alaska v. Native Village of Venetie Tribal Government,522 U. S. 520, 531, n. 6 (1998); United States v. Wheeler,435 U. S. 313, 319 (1978); United States v. Antelope, 430 U. S. 641, 645 (1977); Morton v. Mancari,417 U. S. 535, 551 (1974); Lone Wolf v. Hitchcock, 187 U. S. 553, 564-565 (1903); United States v. Kagama, 118 U. S. 375 (1886).Footnote 3 See, e.g., United States v. Sandoval, 231 U. S. 28 (1913); Kagama, 118 U. S., at 384-385; Cherokee Nation v. Georgia, 5 Pet. 1 (1831).Footnote 4 Sandoval,231 U. S., at 45; Kagama,118 U. S., at 384-385.Footnote 5 See, e.g., United States v. Celestine, 215 U. S. 278, 286-287 (1909).Footnote 6 See United States v. John, ("Neither the fact that the Choctaws in Mississippi are merely a remnant of a larger group of Indians, long ago removed from Mississippi, nor the fact that federal supervision over them has not been continuous, destroys the federal power to deal with them"); Delaware Tribal Business Comm. v. Weeks, , n. 14, 84-85 (1977) (whether or not federal statute providing financial benefits to descendants of Delaware Tribe included nontribal Indian beneficiaries, Congress' choice need only be " `tied rationally to the fulfillment of Congress' unique obligation toward the Indians' " (quoting Morton v. Mancari, 417 U. S., at 555)).Footnote 7 See generally, Cohen's Handbook of Federal Indian Law 19-20 (1982). Compare 25 U. S. C. §479 ("The term `Indian' as used in [this Act] shall include all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood. For the purposes of this Act, Eskimos and other aboriginal peoples of Alaska shall be considered Indians"), with §1603(c)(3) (Indian is any person "considered by the Secretary of the Interior to be an Indian for any purpose").Footnote 8 See H. R. Rep. No. 839, 66th Cong., 2d Sess., 4, 11 (1920). Reflecting a compromise between the sponsor of the legislation, who supported special benefits for "all who have Hawaiian blood in their veins," and plantation owners who thought that only "Hawaiians of the pure blood" should qualify, Hawaiian Homes Commission Act: Hearings before the Senate Committee on the Territories, H. R. Rep. No. 13500, 66th Cong., 3d Sess., 14-17 (1920), the statute defined a "native Hawaiian" as "any descendant of not less than one-half part of the blood of the races inhabiting the Hawaiian Islands previous to 1778," 42 Stat. 108.Footnote 9 See Brief for Hawai`i Congressional Delegation as Amicus Curiae 7, and App. A; see also, e.g., American Indian Religious Freedom Act, 42 U. S. C. §1996 et seq.; Native American Programs Act of 1974, 42 U. S. C. §§2991-2992; Comprehensive Employment and Training Act, 29 U. S. C. §872; Drug Abuse Prevention, Treatment, and Rehabilitation Act, 21 U. S. C. §1177; Cranston-Gonzalez National Affordable Housing Act, §958, 104 Stat. 4422; Indian Health Care Amendments of 1988, 25 U. S. C. §1601 et seq.Footnote 10 See, e.g., Frickey, Adjudication and its Discontents: Coherence and Conciliation in Federal Indian Law, 110 Harv. L. Rev. 1754, 1761-1762 (1997). As is aptly explained, the BIA preference in that case was based on a statute that extended the preference to ethnic Indians — identified by blood quantum — who were not members of federally recognized tribes. 25 U. S. C. §479. Only the implementing regulation included a mention of tribal membership, but even that regulation required that the tribal member also " `be one-fourth or more degree Indian blood.' " Mancari, 417 U. S., at 553, n. 24.Footnote 11 Justice Breyer suggests that the OHA definition of native Hawaiians (i.e., Hawaiians who may vote under the OHA scheme) is too broad to be "reasonable." Ante, at 4 (opinion concurring in result). This suggestion does not identify a constitutional defect. The issue in this case is Congress' power to define who counts as an indigenous person, and Congress' power to delegate to States its special duty to persons so defined. (Justice Breyer's interest in tribal definitions of membership — and in this Court's holding that tribes' power to define membership is at the core of tribal sovereignty and thus "unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority," Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56 (1978)--is thus inapposite.) Nothing in federal law or in our Indian law jurisprudence suggests that the OHA definition of native is anything but perfectly within that power as delegated. See supra, at 7, and nn. 6-7. Indeed, the OHA voters match precisely the set of people to whom the congressional apology was targeted. Federal definitions of "Indian" often rely on the ability to trace one's ancestry to a particular group at a particular time. See, e.g., 25 C. F. R., ch. 1, §5.1 (1999) (extending BIA hiring preference to "persons of Indian descent who are ... (b) [d]escendants of such [tribal] members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation"); see also n. 7, supra. It can hardly be correct that once 1934 is two centuries past, rather than merely 66 years past, this classification will cease to be "reasonable." The singular federal statute defining "native" to which Justice Breyer points, 43 U. S. C. §1602(b) (including those defined by blood quantum without regard to membership in any group), serves to underscore the point that membership in a "tribal" structure per se, see ante, at 2, is not the acid test for the exercise of federal power in this arena. See R. Clinton, N. Newton, & M. Price, American Indian Law 1054-1058 (3d ed. 1991) (describing provisions of the Alaska Native Claims Settlement Act creating geographic regions of natives with common heritage and interest, 43 U. S. C. §1606, requiring those regions to organize a native corporation in order to qualify for settlement benefits, §1607, and establishing the Alaska Native Fund of federal monies to be distributed to "enrolled natives," §§1604-1605); see also supra, at 8-9, and n. 10. In the end, what matters is that the determination of indigenous status or "real group membership," ante, at 3, is one to be made by Congress — not by this Court.Footnote 12 Just as one cannot divorce the Indian law context of this case from an analysis of the OHA scheme under the Fourteenth Amendment, neither can one pretend that this law fits simply within our non-Indian cases under the Fifteenth Amendment. As the preceding discussion of Mancari and our other Indian law cases reveals, this Court has never understood laws relating to indigenous peoples simply as legal classifications defined by race. Even where, unlike here, blood quantum requirements are express, this Court has repeatedly acknowledged that an overlapping political interest predominates. It is only by refusing to face this Court's entire body of Indian law, see ante, at 15, that the majority is able to hold that the OHA qualification denies non-"Hawaiians" the right to vote "on account of race." Footnote 13 1 Proceedings of the Constitutional Convention of Hawaii of 1978, Standing Committee Rep. No. 59, p. 644.Footnote 14 Of course, the majority's concern about the absence of alignment becomes salient only if one assumes that something other than a Mancari-like political classification is at stake. As this Court has approached cases involving the relationship among the Federal Government, its delegates, and the indigenous peoples — including countless federal definitions of "classes" of Indians determined by blood quantum, see n. 7, supra--any `racial' aspect of the voting qualification here is eclipsed by the political significance of membership in a once-sovereign indigenous class. Beyond even this, the majority's own historical account makes clear that the inhabitants of the Hawaiian Islands whose descendants comprise the instant class are identified and remain significant as much because of culture as because of race. By the time of Cook's arrival, "the Hawaiian people had developed, over the preceding 1,000 years or so, a cultural and political structure, ... well-established traditions and customs and ... a polytheistic religion." Ante, at 3. Prior to 1778, although there "was no private ownership of land," Hawaii Housing Authority v. Midkiff,467 U. S. 229, 232 (1984), the native Hawaiians "lived in a highly organized, self-sufficient, subsistent social system based on communal land tenure with a sophisticated language, culture and religion," 42 U. S. C. §11701(4). According to Senator Akaka, their society "was steeped in science [and they] honored their 'aina (land) and environment, and therefore developed methods of irrigation, agriculture, aquaculture, navigation, medicine, fishing and other forms of subsistence whereby the land and sea were efficiently used without waste or damage. Respect for the environment and for others formed the basis of their culture and tradition." App. E to Brief for Hawai`i Congressional Delegation as Amicus Curiae E-4. Legends and oral histories passed from one generation to another are reflected in artifacts such as carved images, colorful feathered capes, songs, and dances that survive today. For some, Pele, the God of Fire, still inhabits the crater of Kilauea, and the word of the Kahuna is still law. It is this culture, rather than the Polynesian race, that is uniquely Hawaiian and in need of protection. Footnote 15 Justice Breyer's even broader contention that "there is no `trust' for native Hawaiians here," ante, at 1, appears to make the greater mistake of conflating the public trust established by Hawaii's Constitution and laws, see supra, at 11, with the "trust" relationship between the Federal Government and the indigenous peoples. According to Justice Breyer, the "analogy on which Hawaii's justification must depend," ante, at 4, is "destroy[ed]" in part by the fact that OHA is not a trust (in the former sense of a trust) for native Hawaiians alone. Rather than looking to the terms of the public trust itself for this proposition, Justice Breyer relies on the terms of the land conveyance to Hawaii in part of the Admissions Act. But the portion of the trust administered by OHA does not purport to contain in its corpus all 1.2 million acres of federal trust lands set aside for the benefit of all Hawaiians, including native Hawaiians. By its terms, only "[t]wenty per cent of all revenue derived from the public land trust shall be expended by the office for the betterment of the conditions of native Hawaiians." Haw. Rev. Stat. §10-13.5 (1993). This portion appears to coincide precisely with the one-fifth described purpose of the Admissions Act trust lands to better the conditions of native Hawaiians. Admissions Act §5(f), 73 Stat. 6. Neither the fact that native Hawaiians have a specific, beneficial interest in only 20% of trust revenues, nor the fact that the portion of the trust administered by OHA is supplemented to varying degrees by nontrust monies, negates the existence of the trust itself. Moreover, neither the particular terms of the State's public trustnor the particular source of OHA funding "destroys" the centrallyrelevant trust "analogy" on which Hawaii relies — that of the relationship between the Federal Government and indigenous Indians on this continent, as compared with the relationship between the Federal Government and indigenous Hawaiians in the now United States-owned Hawaiian Islands. That trust relationship — the only trust relevant to the Indian law analogy — includes the power to delegate authority to the States. As we have explained, supra, at pages 9-11, the OHA scheme surely satisfies the established standard for testing an exercise of that power.Footnote 16 Indeed, "[i]n one form or another, the right to pass on property — to one's family in particular -- has been part of the Anglo-American legal system since feudal times." Hodel v. Irving,481 U. S. 704, 716 (1987). Even the most minute fractional interests that can be identified after allotted lands are passed through several generations can receive legal recognition and protection. Thus, we held not long ago that inherited shares of parcels allotted to the Sioux in 1889 could not be taken without compensation even though their value was nominal and it was necessary to use a common denominator of 3,394,923,840,000 to identify the size of the smallest interest. Id., at 713-717. Whether it is wise to provide recompense for all of the descendants of an injured class after several generations have come and gone is a matter of policy, but the fact that their interests were acquired by inheritance rather than by assignment surely has no constitutional significance.Footnote 17 Indeed, the record indicates that none of the 20-plus judges on the Ninth Circuit to whom the petition for rehearing en banc was circulated even requested a vote on the petition. App. to Pet. for Cert. 442.

Per Curiam. Petitioner Mark Christeson's first federal habeas petition was dismissed as untimely. Because his appointed attorneys — who had missed the filing deadline — could not be expected to argue that Christeson was entitled to the equitable tolling of the statute of limitations, Christeson requested substitute counsel who would not be laboring under a conflict of interest. The District Court denied the motion, and the Court of Appeals for the Eighth Circuit summarily affirmed. In so doing, these courts contravened our decision in Martel v. Clair, 565 U. S. ___ (2012). Christeson's petition for certiorari is therefore granted, the judgment of the Eighth Circuit is reversed, and the case is remanded for further proceedings.I In 1999, a jury convicted Christeson of three counts of capital murder. It returned verdicts of death on all three counts. The Missouri Supreme Court affirmed Christeson's conviction and sentence in 2001, see State v. Christeson, 50 S. W. 3d 251 (en banc), and affirmed the denial of his postconviction motion for relief in 2004, see Christeson v. State, 131 S. W. 3d 796 (en banc). Under the strict 1-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)C. §2244(d)(1), Christeson's federal habeas petition was due on April 10, 2005. Nine months before this critical deadline, the District Court appointed attorneys Phil Horwitz and Eric Butts to represent Christeson in his federal habeas proceedings. See 18 U. S. C. §3599(a)(2) (providing for appointment of counsel for state death row inmates). Horwitz and Butts, as they have subsequently acknowledged, failed to meet with Christeson until more than six weeks after his petition was due. See App. to Pet. for Cert. 93a. There is no evidence that they communicated with their client at all during this time. They finally filed the petition on August 5, 2005 — 117 days too late. They have since claimed that their failure to meet with their client and timely file his habeas petition resulted from a simple miscalculation of the AEDPA limitations period (and in defending themselves, they may have disclosed privileged client communications). See id., at 90a-92a, 135a. But a legal ethics expert, reviewing counsel's handling of Christeson's habeas petition, stated in a report submitted to the District Court: "[I]f this was not abandonment, I am not sure what would be." Id., at 132a. The District Court dismissed the petition as untimely, and the Court of Appeals denied Christeson's application for a certificate of appealability. Christeson, who appears to have severe cognitive disabilities that lead him to rely entirely on his attorneys, may not have been aware of this dismissal. See id., at 229a, 231a, 237a. Nearly seven years later, Horwitz and Butts contacted attorneys Jennifer Merrigan and Joseph Perkovich to discuss how to proceed in Christeson's case. Merrigan and Perkovich immediately noticed a glaring problem. Christeson's only hope for securing review of the merits of his habeas claims was to file a motion under Federal Rule of Civil Procedure 60(b) seeking to reopen final judgment on the ground that AEDPA's statute of limitations should have been equitably tolled. But Horwitz and Butts could not be expected to file such a motion on Christeson's behalf, as any argument for equitable tolling would be premised on their own malfeasance in failing to file timely the habeas petition. While initially receptive to Merrigan and Perkovich's assistance, Horwitz and Butts soon refused to allow outside counsel access to their files. See App. to Pet. for Cert. 345a. On May 23, 2014, Merrigan and Perkovich filed a motion for substitution of counsel. The District Court denied the motion, explaining only that it was "not in [Christeson's] best interest to be represented by attorneys located in New York and Pennsylvania," as Merrigan and Perkovich are. Id., at 169a. The District Court did not address Merrigan and Perkovich's offer to forgo all fees and expenses associated with travel to Missouri, nor did it address the possibility of appointing other attorneys for Christeson. Christeson appealed. The Eighth Circuit dismissed for lack of jurisdiction, apparently reasoning that Merrigan and Perkovich were not authorized to file an appeal on Christeson's behalf.1 On September 19, 2014, while this appeal was still pending before the Eighth Circuit, the Missouri Supreme Court issued a warrant of execution setting October 29, 2014, as Christeson's execution date. After further proceedings not relevant here, Merrigan and Perkovich again filed a motion for substitution of counsel on Christeson's behalf. The District Court again denied the motion. Explaining that substitution of "federally-appointed counsel is warranted only when it would serve the interests of justice," it offered four reasons for its decision. Order in No. 04-CV-08004 (WD Mo., Oct. 22, 2014), p. 1, App. to Pet. for Cert. 375a (quoting Lambrix v. Secretary, Florida Dept. of Corrections, 756 F. 3d 1246, 1259 (CA11 2014); internal quotation marks omitted). First, it deemed the motion to be untimely because it "was not filed until 2014, and shortly before [Christeson's] execution date." App. to Pet. for Cert. 375a. Second, it observed that Horwitz and Butts had not "abandoned" Christeson, as they had recently appeared on his behalf in a class-action lawsuit challenging Missouri's lethal injection protocol. Id., at 376a. Third, it noted that although Horwitz and Butts had represented Christeson before the Eighth Circuit, that court had not appointed substitute counsel. Ibid. Fourth and finally, the District Court expressed its belief that granting the motion would set "an untenable precedent" by allowing outside attorneys to seek " 'abusive' " delays in capital cases. Ibid. Christeson again appealed. This time, the Eighth Circuit summarily affirmed the District Court's order. We stayed Christeson's execution, see post, p. ____, and now reverse.II Title C. §3599 "entitles indigent defendants to the appointment of counsel in capital cases, including habeas corpus proceedings." Martel v. Clair, 565 U. S., at ___ (slip op., at 1). "By providing indigent capital defendants with a mandatory right to qualified legal counsel in these proceedings, Congress has recognized that federal habeas corpus has a particularly important role to play in promoting fundamental fairness in the imposition of the death penalty." McFarland v. Scott. Congress has not, however, conferred capital habeas petitioners with the right to counsel of their choice. Instead, the statute leaves it to the court to select a properly qualified attorney. See §§3599(a)-(d). But the statute contemplates that a court may "replace" appointed counsel with "similarly qualified counsel . . . upon motion" of the petitioner. §3599(e). We addressed the standard that a court should apply in considering such a motion in Clair. We rejected the argument that substitution of an appointed lawyer is warranted in only three situations: "when the lawyer lacks the qualifications necessary for appointment . . . ; when he has a disabling conflict of interest; or when he has completely abandoned the client." 565 U. S., at ___ (slip op., at 7) (internal quotation marks omitted). Instead, we adopted a broader standard, holding that a motion for substitution should be granted when it is in the " 'interests of justice.' " Id., at ___ (slip op., at 13). We further explained that the factors a court of appeals should consider in determining whether a district court abused its discretion in denying such a motion "include: the timeliness of the motion; the adequacy of the district court's inquiry into the defendant's complaint; and the asserted cause for that complaint, including the extent of the conflict or breakdown in communication between lawyer and client (and the client's responsibility, if any, for that conflict)." Ibid. The District Court here properly recognized that its consideration of Christeson's motion for substitution was governed by Clair's "interests of justice" standard. But its denial of his motion did not adequately account for all of the factors we set forth in Clair. The court's principal error was its failure to acknowledge Horwitz and Butts' conflict of interest. Tolling based on counsel's failure to satisfy AEDPA's statute of limitations is available only for "serious instances of attorney misconduct." Holland v. Florida. Advancing such a claim would have required Horwitz and Butts to denigrate their own performance. Counsel cannot reasonably be expected to make such an argument, which threatens their professional reputation and livelihood. See Restatement (Third) of Law Governing Lawyers §125 (1998). Thus, as we observed in a similar context in Maples v. Thomas, 565 U. S. ___, ___, n. 8 (2012) (slip op., at 17, n. 8), a "significant conflict of interest" arises when an attorney's "interest in avoiding damage to [his] own reputation" is at odds with his client's "strongest argument — i.e., that his attorneys had abandoned him." Indeed, to their credit, Horwitz and Butts acknowledged the nature of their conflict. Shortly before the first motion for substitution was filed, they provided an update to the Missouri Supreme Court on the status of Christeson's collateral proceedings. In it, they stated:"Because counsel herein would be essential witnesses to factual questions indispensable to a Holland inquiry, there may be ethical and legal conflicts that would arise that would prohibit counsel from litigating issues that would support a Holland claim. Unwaivable ethical and legal conflicts prohibit undersigned counsel from litigating these issues in any way. See Holloway v. Arkansas. Conflict free counsel must be appointed to present the equitable tolling question in federal district court." App. to Pet. for Cert. 48a-49a. Yet, in their response to the District Court's order to address the substitution motion, Horwitz and Butts characterized the potential arguments in favor of equitable tolling as "ludicrous," and asserted that they had "a legal basis and rationale for the [erroneous] calculation of the filing date." Id., at 86a, 90a. While not every case in which a counseled habeas petitioner has missed AEDPA's statute of limitations will necessarily involve a conflict of interest, Horwitz and Butts' contentions here were directly and concededly contrary to their client's interest, and manifestly served their own professional and reputational interests. Clair makes clear that a conflict of this sort is grounds for substitution. Even the narrower standard we rejected in that case would have allowed for substitution where an attorney has a " 'disabling conflict of interest.' " 565 U. S., at ___ (slip op., at 7). And that standard, we concluded, would "gu[t]" the specific substitution-of-counsel clause contained in §3559(e), which must contemplate the granting of such motions in circumstances beyond those where a petitioner effectively "has no counsel at all"--as is the case when counsel is conflicted. Id., at ___ (slip op., at 10). Indeed, we went so far as to say that given a capital defendant's "statutory right to counsel," even "in the absence" of §3599(e) a district court would be compelled "to appoint new counsel if the first lawyer developed a conflict." Ibid. Given the obvious conflict of interest here, the considerations relied upon by the District Court cannot justify its decision to deny petitioner new counsel. The second and third factors noted by the District Court — that appointed counsel continued to represent Christeson in litigation challenging the means of his execution, and that the Eighth Circuit had not previously substituted counsel — are not substantial. Whether Horwitz and Butts had currently "abandoned" Christeson is beside the point: Even if they were actively representing him in some matters, their conflict prevented them from representing him in this particular matter. Likewise, it is irrelevant that the Eighth Circuit had not previously sua sponte directed substitution of counsel in the course of denying Christeson's request for a certificate of appealabilty and adjudicating his challenge to Missouri's execution protocol, when the conflict was not evident. The first and fourth factors cited by the District Court — the delay in seeking substitution and the potential for abuse — might be valid considerations in many cases. See Clair, 565 U. S., at ___ (slip op., at 12) ("Protecting against abusive delay is an interest of justice"). But under the circumstances here, these factors alone cannot warrant denial of substitution. Christeson's first substitution motion, while undoubtedly delayed, was not abusive. It was filed approximately a month after outside counsel became aware of Christeson's plight and well before the State had set an execution date, and it requested only 90 days to investigate and file a Rule 60(b) motion. Nor is it plain that any subsequent motion that substitute counsel might file on Christeson's behalf would be futile. See id., at ___ - ___ (slip op., at 15-16) (affirming denial of substitution motion as untimely where any filing made by substitute counsel would have been futile). To be sure, Christeson faces a host of procedural obstacles to having a federal court consider his habeas petition. Although Christeson might properly raise a claim for relief pursuant to Rule 60(b), see Gonzalez v. Crosby, 545 U. S. 524, 535-536 (2005), to obtain such relief he must demonstrate both the motion's timeliness and, more significant here, that " 'extraordinary circumstances' justif[y] the reopening of a final judgment." Id., at 535 (quoting Ackermann v. United States). That, in turn, will require Christeson to show that he was entitled to the equitable tolling of AEDPA's statute of limitations. He should have that opportunity, and is entitled to the assistance of substitute counsel in doing so.* * * The petition for certiorari and the motion to proceed in forma pauperis are granted. The judgment of the Eighth Circuit Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.Alito, J., dissenting 574 U. S. ____ (2015)MARK A. CHRISTESON v. DON ROPER, WARDENon petition for writ of certiorari to the united states court of appeals for the eighth circuitNo. 14-6873. Decided January 20, 2015 Justice Alito, with whom Justice Thomas joins, dissenting. I would not reverse the decision of the Court of Appeals in this case without briefing and argument. As the Court acknowledges, petitioner cannot obtain review of the merits of his federal habeas claims without showing that the applicable statute of limitations should have been equitably tolled, ante, at 2, and the availability of equitable tolling in cases governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is a question of great importance. AEDPA sought to ameliorate the lengthy delay that had often characterized federal habeas proceedings in the past.* See Woodford v. Garceau ("Congress enacted AEDPA to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases"). AEDPA thus imposed a strict 1-year time limit for filing a federal habeas petition. C. §2244(d). If this 1-year period were equitably tolled whenever a habeas petitioner's attorney missed the deadline and thus rendered ineffective assistance, the 1-year period would be of little value, and the days of seemingly interminable federal habeas review would return. In Holland, the Court held that the AEDPA statute of limitations may be equitably tolled — but only under quite extraordinary circumstances. Holland v. Florida. Any expansion or further delineation of such circumstances should not be undertaken without the careful consideration that is possible only after the normal procedure of full briefing and argument. The Court believes that briefing and argument are not necessary in this case, and my understanding of the Court's decision is that it expresses no view whatsoever on the question whether petitioner may ultimately be entitled to equitable tolling. I understand the Court to hold only that conflict-free substitute counsel should have been appointed for the purposes of investigating the facts related to the issue of equitable tolling and presenting whatever argument can be mounted in support of a request for that relief. Based on the present record, it is not clear that this case involves anything other than an error, albeit a serious one, on the part of the attorneys who represented petitioner at the time when his federal habeas petition was due to be filed. According to those attorneys, they miscalculated the due date and as a result filed the petition after the time had run. They met with petitioner to discuss the habeas petition prior to the date on which they say they thought the petition was due but after the date on which it was actually due. These facts show nothing more than attorney error and thus fall short of establishing the kind of abandonment that is needed for equitable tolling under our precedent. See id., at 651-652. I do not understand the Court's opinion to hold otherwise. Because of the close relationship between the question that the Court decides (the propriety of the District Court's refusal to appoint substitute counsel) and the question of petitioner's entitlement to equitable tolling, I think that plenary review would have been more appropriate in this case. I write separately to emphasize that the Court's summary disposition does not address that issue.MARK A. CHRISTESON v. DON ROPER, WARDENon petition for writ of certiorari to the united states court of appeals for the eighth circuitNo. 14-6873. Decided January 20, 2015 Per Curiam. Petitioner Mark Christeson's first federal habeas petition was dismissed as untimely. Because his appointed attorneys — who had missed the filing deadline — could not be expected to argue that Christeson was entitled to the equitable tolling of the statute of limitations, Christeson requested substitute counsel who would not be laboring under a conflict of interest. The District Court denied the motion, and the Court of Appeals for the Eighth Circuit summarily affirmed. In so doing, these courts contravened our decision in Martel v. Clair, 565 U. S. ___ (2012). Christeson's petition for certiorari is therefore granted, the judgment of the Eighth Circuit is reversed, and the case is remanded for further proceedings.I In 1999, a jury convicted Christeson of three counts of capital murder. It returned verdicts of death on all three counts. The Missouri Supreme Court affirmed Christeson's conviction and sentence in 2001, see State v. Christeson, 50 S. W. 3d 251 (en banc), and affirmed the denial of his postconviction motion for relief in 2004, see Christeson v. State, 131 S. W. 3d 796 (en banc). Under the strict 1-year statute of limitations imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)C. §2244(d)(1), Christeson's federal habeas petition was due on April 10, 2005. Nine months before this critical deadline, the District Court appointed attorneys Phil Horwitz and Eric Butts to represent Christeson in his federal habeas proceedings. See 18 U. S. C. §3599(a)(2) (providing for appointment of counsel for state death row inmates). Horwitz and Butts, as they have subsequently acknowledged, failed to meet with Christeson until more than six weeks after his petition was due. See App. to Pet. for Cert. 93a. There is no evidence that they communicated with their client at all during this time. They finally filed the petition on August 5, 2005 — 117 days too late. They have since claimed that their failure to meet with their client and timely file his habeas petition resulted from a simple miscalculation of the AEDPA limitations period (and in defending themselves, they may have disclosed privileged client communications). See id., at 90a-92a, 135a. But a legal ethics expert, reviewing counsel's handling of Christeson's habeas petition, stated in a report submitted to the District Court: "[I]f this was not abandonment, I am not sure what would be." Id., at 132a. The District Court dismissed the petition as untimely, and the Court of Appeals denied Christeson's application for a certificate of appealability. Christeson, who appears to have severe cognitive disabilities that lead him to rely entirely on his attorneys, may not have been aware of this dismissal. See id., at 229a, 231a, 237a. Nearly seven years later, Horwitz and Butts contacted attorneys Jennifer Merrigan and Joseph Perkovich to discuss how to proceed in Christeson's case. Merrigan and Perkovich immediately noticed a glaring problem. Christeson's only hope for securing review of the merits of his habeas claims was to file a motion under Federal Rule of Civil Procedure 60(b) seeking to reopen final judgment on the ground that AEDPA's statute of limitations should have been equitably tolled. But Horwitz and Butts could not be expected to file such a motion on Christeson's behalf, as any argument for equitable tolling would be premised on their own malfeasance in failing to file timely the habeas petition. While initially receptive to Merrigan and Perkovich's assistance, Horwitz and Butts soon refused to allow outside counsel access to their files. See App. to Pet. for Cert. 345a. On May 23, 2014, Merrigan and Perkovich filed a motion for substitution of counsel. The District Court denied the motion, explaining only that it was "not in [Christeson's] best interest to be represented by attorneys located in New York and Pennsylvania," as Merrigan and Perkovich are. Id., at 169a. The District Court did not address Merrigan and Perkovich's offer to forgo all fees and expenses associated with travel to Missouri, nor did it address the possibility of appointing other attorneys for Christeson. Christeson appealed. The Eighth Circuit dismissed for lack of jurisdiction, apparently reasoning that Merrigan and Perkovich were not authorized to file an appeal on Christeson's behalf.1 On September 19, 2014, while this appeal was still pending before the Eighth Circuit, the Missouri Supreme Court issued a warrant of execution setting October 29, 2014, as Christeson's execution date. After further proceedings not relevant here, Merrigan and Perkovich again filed a motion for substitution of counsel on Christeson's behalf. The District Court again denied the motion. Explaining that substitution of "federally-appointed counsel is warranted only when it would serve the interests of justice," it offered four reasons for its decision. Order in No. 04-CV-08004 (WD Mo., Oct. 22, 2014), p. 1, App. to Pet. for Cert. 375a (quoting Lambrix v. Secretary, Florida Dept. of Corrections, 756 F. 3d 1246, 1259 (CA11 2014); internal quotation marks omitted). First, it deemed the motion to be untimely because it "was not filed until 2014, and shortly before [Christeson's] execution date." App. to Pet. for Cert. 375a. Second, it observed that Horwitz and Butts had not "abandoned" Christeson, as they had recently appeared on his behalf in a class-action lawsuit challenging Missouri's lethal injection protocol. Id., at 376a. Third, it noted that although Horwitz and Butts had represented Christeson before the Eighth Circuit, that court had not appointed substitute counsel. Ibid. Fourth and finally, the District Court expressed its belief that granting the motion would set "an untenable precedent" by allowing outside attorneys to seek " 'abusive' " delays in capital cases. Ibid. Christeson again appealed. This time, the Eighth Circuit summarily affirmed the District Court's order. We stayed Christeson's execution, see post, p. ____, and now reverse.II Title C. §3599 "entitles indigent defendants to the appointment of counsel in capital cases, including habeas corpus proceedings." Martel v. Clair, 565 U. S., at ___ (slip op., at 1). "By providing indigent capital defendants with a mandatory right to qualified legal counsel in these proceedings, Congress has recognized that federal habeas corpus has a particularly important role to play in promoting fundamental fairness in the imposition of the death penalty." McFarland v. Scott. Congress has not, however, conferred capital habeas petitioners with the right to counsel of their choice. Instead, the statute leaves it to the court to select a properly qualified attorney. See §§3599(a)-(d). But the statute contemplates that a court may "replace" appointed counsel with "similarly qualified counsel . . . upon motion" of the petitioner. §3599(e). We addressed the standard that a court should apply in considering such a motion in Clair. We rejected the argument that substitution of an appointed lawyer is warranted in only three situations: "when the lawyer lacks the qualifications necessary for appointment . . . ; when he has a disabling conflict of interest; or when he has completely abandoned the client." 565 U. S., at ___ (slip op., at 7) (internal quotation marks omitted). Instead, we adopted a broader standard, holding that a motion for substitution should be granted when it is in the " 'interests of justice.' " Id., at ___ (slip op., at 13). We further explained that the factors a court of appeals should consider in determining whether a district court abused its discretion in denying such a motion "include: the timeliness of the motion; the adequacy of the district court's inquiry into the defendant's complaint; and the asserted cause for that complaint, including the extent of the conflict or breakdown in communication between lawyer and client (and the client's responsibility, if any, for that conflict)." Ibid. The District Court here properly recognized that its consideration of Christeson's motion for substitution was governed by Clair's "interests of justice" standard. But its denial of his motion did not adequately account for all of the factors we set forth in Clair. The court's principal error was its failure to acknowledge Horwitz and Butts' conflict of interest. Tolling based on counsel's failure to satisfy AEDPA's statute of limitations is available only for "serious instances of attorney misconduct." Holland v. Florida. Advancing such a claim would have required Horwitz and Butts to denigrate their own performance. Counsel cannot reasonably be expected to make such an argument, which threatens their professional reputation and livelihood. See Restatement (Third) of Law Governing Lawyers §125 (1998). Thus, as we observed in a similar context in Maples v. Thomas, 565 U. S. ___, ___, n. 8 (2012) (slip op., at 17, n. 8), a "significant conflict of interest" arises when an attorney's "interest in avoiding damage to [his] own reputation" is at odds with his client's "strongest argument — i.e., that his attorneys had abandoned him." Indeed, to their credit, Horwitz and Butts acknowledged the nature of their conflict. Shortly before the first motion for substitution was filed, they provided an update to the Missouri Supreme Court on the status of Christeson's collateral proceedings. In it, they stated:"Because counsel herein would be essential witnesses to factual questions indispensable to a Holland inquiry, there may be ethical and legal conflicts that would arise that would prohibit counsel from litigating issues that would support a Holland claim. Unwaivable ethical and legal conflicts prohibit undersigned counsel from litigating these issues in any way. See Holloway v. Arkansas. Conflict free counsel must be appointed to present the equitable tolling question in federal district court." App. to Pet. for Cert. 48a-49a. Yet, in their response to the District Court's order to address the substitution motion, Horwitz and Butts characterized the potential arguments in favor of equitable tolling as "ludicrous," and asserted that they had "a legal basis and rationale for the [erroneous] calculation of the filing date." Id., at 86a, 90a. While not every case in which a counseled habeas petitioner has missed AEDPA's statute of limitations will necessarily involve a conflict of interest, Horwitz and Butts' contentions here were directly and concededly contrary to their client's interest, and manifestly served their own professional and reputational interests. Clair makes clear that a conflict of this sort is grounds for substitution. Even the narrower standard we rejected in that case would have allowed for substitution where an attorney has a " 'disabling conflict of interest.' " 565 U. S., at ___ (slip op., at 7). And that standard, we concluded, would "gu[t]" the specific substitution-of-counsel clause contained in §3559(e), which must contemplate the granting of such motions in circumstances beyond those where a petitioner effectively "has no counsel at all"--as is the case when counsel is conflicted. Id., at ___ (slip op., at 10). Indeed, we went so far as to say that given a capital defendant's "statutory right to counsel," even "in the absence" of §3599(e) a district court would be compelled "to appoint new counsel if the first lawyer developed a conflict." Ibid. Given the obvious conflict of interest here, the considerations relied upon by the District Court cannot justify its decision to deny petitioner new counsel. The second and third factors noted by the District Court — that appointed counsel continued to represent Christeson in litigation challenging the means of his execution, and that the Eighth Circuit had not previously substituted counsel — are not substantial. Whether Horwitz and Butts had currently "abandoned" Christeson is beside the point: Even if they were actively representing him in some matters, their conflict prevented them from representing him in this particular matter. Likewise, it is irrelevant that the Eighth Circuit had not previously sua sponte directed substitution of counsel in the course of denying Christeson's request for a certificate of appealabilty and adjudicating his challenge to Missouri's execution protocol, when the conflict was not evident. The first and fourth factors cited by the District Court — the delay in seeking substitution and the potential for abuse — might be valid considerations in many cases. See Clair, 565 U. S., at ___ (slip op., at 12) ("Protecting against abusive delay is an interest of justice"). But under the circumstances here, these factors alone cannot warrant denial of substitution. Christeson's first substitution motion, while undoubtedly delayed, was not abusive. It was filed approximately a month after outside counsel became aware of Christeson's plight and well before the State had set an execution date, and it requested only 90 days to investigate and file a Rule 60(b) motion. Nor is it plain that any subsequent motion that substitute counsel might file on Christeson's behalf would be futile. See id., at ___ - ___ (slip op., at 15-16) (affirming denial of substitution motion as untimely where any filing made by substitute counsel would have been futile). To be sure, Christeson faces a host of procedural obstacles to having a federal court consider his habeas petition. Although Christeson might properly raise a claim for relief pursuant to Rule 60(b), see Gonzalez v. Crosby, 545 U. S. 524, 535-536 (2005), to obtain such relief he must demonstrate both the motion's timeliness and, more significant here, that " 'extraordinary circumstances' justif[y] the reopening of a final judgment." Id., at 535 (quoting Ackermann v. United States). That, in turn, will require Christeson to show that he was entitled to the equitable tolling of AEDPA's statute of limitations. He should have that opportunity, and is entitled to the assistance of substitute counsel in doing so.* * * The petition for certiorari and the motion to proceed in forma pauperis are granted. The judgment of the Eighth Circuit Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.Alito, J., dissenting 574 U. S. ____ (2015)MARK A. CHRISTESON v. DON ROPER, WARDENon petition for writ of certiorari to the united states court of appeals for the eighth circuitNo. 14-6873. Decided January 20, 2015 Justice Alito, with whom Justice Thomas joins, dissenting. I would not reverse the decision of the Court of Appeals in this case without briefing and argument. As the Court acknowledges, petitioner cannot obtain review of the merits of his federal habeas claims without showing that the applicable statute of limitations should have been equitably tolled, ante, at 2, and the availability of equitable tolling in cases governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) is a question of great importance. AEDPA sought to ameliorate the lengthy delay that had often characterized federal habeas proceedings in the past.* See Woodford v. Garceau ("Congress enacted AEDPA to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases"). AEDPA thus imposed a strict 1-year time limit for filing a federal habeas petition. C. §2244(d). If this 1-year period were equitably tolled whenever a habeas petitioner's attorney missed the deadline and thus rendered ineffective assistance, the 1-year period would be of little value, and the days of seemingly interminable federal habeas review would return. In Holland, the Court held that the AEDPA statute of limitations may be equitably tolled — but only under quite extraordinary circumstances. Holland v. Florida. Any expansion or further delineation of such circumstances should not be undertaken without the careful consideration that is possible only after the normal procedure of full briefing and argument. The Court believes that briefing and argument are not necessary in this case, and my understanding of the Court's decision is that it expresses no view whatsoever on the question whether petitioner may ultimately be entitled to equitable tolling. I understand the Court to hold only that conflict-free substitute counsel should have been appointed for the purposes of investigating the facts related to the issue of equitable tolling and presenting whatever argument can be mounted in support of a request for that relief. Based on the present record, it is not clear that this case involves anything other than an error, albeit a serious one, on the part of the attorneys who represented petitioner at the time when his federal habeas petition was due to be filed. According to those attorneys, they miscalculated the due date and as a result filed the petition after the time had run. They met with petitioner to discuss the habeas petition prior to the date on which they say they thought the petition was due but after the date on which it was actually due. These facts show nothing more than attorney error and thus fall short of establishing the kind of abandonment that is needed for equitable tolling under our precedent. See id., at 651-652. I do not understand the Court's opinion to hold otherwise. Because of the close relationship between the question that the Court decides (the propriety of the District Court's refusal to appoint substitute counsel) and the question of petitioner's entitlement to equitable tolling, I think that plenary review would have been more appropriate in this case. I write separately to emphasize that the Court's summary disposition does not address that issue.FOOTNOTESFootnote 1 Christeson has since submitted a signed retainer agreement with Merrigan and Perkovich that removes any doubt on that score.FOOTNOTESFootnote 1* Members of this Court have lamented the delay that often occurs in capital cases. Johnson v. Bredesen (Stevens, J., statement respecting denial of certiorari), Elledge v. Florida (Breyer, J., dissenting from denial of certiorari).FOOTNOTESFootnote 1 Christeson has since submitted a signed retainer agreement with Merrigan and Perkovich that removes any doubt on that score.FOOTNOTESFootnote 1* Members of this Court have lamented the delay that often occurs in capital cases. Johnson v. Bredesen (Stevens, J., statement respecting denial of certiorari), Elledge v. Florida (Breyer, J., dissenting from denial of certiorari).

[ Clark v. Uebersee Finanz-Korporation ], 481] Mr. M. S. Isenbergh, of Washington, D.C., for petitioner. Mr. Richard J. Connor, of Washington, D.C., for respondent. Mr. William Harvey Reeves, of New York City, for National Foreign Trade Council, Inc., amicus curiae., 482] Mr. Justice DOUGLAS delivered the opinion of the Court. Respondent brought this suit to reclaim property which the Alien Property Custodian,1 acting under 5(b) of the Trading With the Enemy Act, 40 Stat. 411, 50 U.S.C.App. 1 et seq., 50 U.S.C.A.Appendix, 1 et seq., as amended by the First War Powers Act of 1941, 301, 55 Stat. 839, 50 U. S.C.App. Supp. V, 5(b), 50 U.S.C.A.Appendix, 5(b), had vested in himself. Respondent is a corporation organized under the laws of Switzerland and having its principal place of business in that country. The property seized consisted of shares of stock in corporations organized under the laws of various States of this nation and of an interest in a contract between two such corporations. The complaint alleges that respondent is not an enemy or ally of an enemy and that at no time at or since the vesting has the property in question been owned or controlled, directly or indirectly, in whole or in part, by an enemy, ally of an enemy, or a national of a designated enemy country. It also alleges that none of the property has been owing or belonging to or held on account of or for the benefit of any such person or interest. We construe these allegations to mean that the property is free of all enemy taint and particularly that the corporations whose shares have been seized, the corporations which have a contract in which respondent has an interest, and respondent itself, are companies in which no enemy, ally of an enemy, nor any national of either has any interest of any kind whatsoever, and that respondent has not done business in the territory of the enemy or any ally of an enemy. Those allegations, as so construed, are indeed taken as true for the purposes of the present ruling since petitioner's motion to dismiss is based solely on the fact that respondent is a national of a foreign country. , 483] The District Court granted petitioner's motion to dismiss. The Court of Appeals reversed, one justice dissenting. Uebersee Finanz-Korporation, A.G. v. Markham, 81 U.S.App.D.C. 284, 158 F.2d 313. The case is here on petition for a writ of certiorari which we granted because of the importance of the question in the administration of the Act. . Under the Act as it read prior to the 1941 amendment respondent would have been able to maintain this suit on a showing, without more, that it was a corporation organized under the laws of a friendly nation and not doing business in the territory of an enemy nation or any of its allies. That result would be reached as follows: Sec. 7(c) permitted seizure by the Custodian only of property in which an enemy or ally of an enemy had an interest. Sec. 9(a) permitted 'any person not an enemy or ally of enemy' claiming an interest in any seized property to sue to reclaim it. And the Court held in Behn, Meyer & Co. v. Miller, , that a corporation organized under the laws of a friendly nation and not doing business in the territory of an enemy nation or any of its allies. 2 , 484] could maintain such a suit even though the corporation was enemy owned or controlled. , the scheme of the Act as it was then drawn was 'to seize the shares of stock when enemy owned rather than to take over the corporate property.' Hamburg-American Line Terminal & Navigation Co. v. United States, , 471. That was at least one respect in which the Act had a 'rigidity and inflexibility' that was sought to be cured by the amendment to 5(b) in 1941. See H.R. Rep. No. 1507, 77th Cong., 1st Sess., p. 3. It was notorious that Germany and her allies had developed numerous techniques for concealing enemy ownership or control of property which was ostensibly friendly or neutral. They had through numerous devices, including the cor- , 485] poration, acquired indirect control or ownership in industries in this country for the purposes of economic warfare. 3 Sec. 5(b) was amended on the heels of the declaration of war to cope with that problem. Congress by that amendment granted the President the power to vest in an agency designated by him 'any property or interest of any foreign country or national thereof.'4 The property of all foreign interests was placed within reach of the vesting power not to appropriate friendly or neutral assets but to reach enemy interests which masqueraded under those innocent fronts. Thus the President acquired new 'flexible powers' (H.R. Rep. No. 1507, supra, p. 3) to deal effectively , 486] with property interests which had either an open or concealed enemy taint. While the scope of the President's power was broadened, there was no amendment restricting the scope of 9(a). As we have noted, 9(a) granted 'any person not an enemy or ally of e emy,' claiming an nterest in property seized, the right to reclaim it. So the provision reads today. Yet, as petitioner suggests, if Behn, Meyer & Co. v. Miller, supra, is applied despite the 1941 amendment, 9(a) will undo much of the good which the 1941 amendment to 5(b) was designed to accomplish. All a corporate claimant would need do to recover the property seized would be to show that it was organized in this country or in some friendly or neutral country and was not doing business within the territory of an enemy or any of its allies. 5 The fact that it was owned or controlled by enemy interests and might sap the strength of this nation through economic warfare would be immaterial. We agree that a construction so destructive of the objectives of the 1941 amendment to 5(b) must be rejected. Petitioner therefore suggests that once the seizure is shown to be permissible under 5(b), there is no remedy for the return of the property under 9(a). It is said that 9(a) was designed to provide an ultimate judicial determination of the question whether the property seized was within the vesting power defined in 5(b) Central Union Trust Co. of New York v. Garvan, , 568, 215. The argument accordingly is that since 5(b) allows seizure and vesting of 'any property or interest of any foreign country or national thereof,' a suit to reclaim it is defeated by a mere showing that the claimant is a corporation organized under the laws of another nation. That is to make the right to sue run not to 'any person not an enemy or ally of enemy' as 9(a) in terms pro- , 487] vides but to 'any person not an enemy or ally of enemy or national of any foreign country.' That would wipe out all suits to reclaim property brought by any foreign interest, no matter how friendly. We stated in Markham v. Cabeil, , 410, 411, 196, 'The right to sue, explicitly granted by 9(a), should not be read out of the law unless it is clear that Congress by what it later did withdrew its earlier permission.' Such a drastic contraction, if not complete sterilization, of 9(a) as petitioner suggests should therefore be made only if no other alternative is open. There are several reasons which make us hesitate to take that course. In the first place, as we have suggested, the phase of the problem with which we are presently concerned and with which Congress was wrestling when it amended the Act in 1941 started and ended with property having an enemy taint. We find not the slightest suggestion that Congress was concerned under this Act with property owned or controlled by friendly or neutral powers and in no way utilized by the Axis. Those interests were not waging economic warfare against us. Secondly, we are dealing here with the power 'to affirmatively compel the use and application of foreign property in a manner consistent with the interests of the United States.'6 Sen. Rep. No. 911, 77th Cong., 1st Sess., p. 2. It is hard for us to assume that Congress adopted that drastic course in the case of friendly or neutral fireign interests whose investments in our economy were in no way infected with enemy ownership or control. Our hesitation is, moreover, increased when we note that 7(c) makes the remedy under the Act the only one Congress has granted a claimant. It is not easy for us to assume that Congress treated all nonenemy nations, including , 488] our recent allies, in such a harsh manner, leaving them only with such remedy as they might have under the Fifth Amendment. The problem is not without its difficulties whichever way we turn. But we think that we adhere more closely to the policy of both 5(b) as amended and 9(a), if we do not carry over into the amended Act the consequences of Behn, Meyer & Co. v. Miller, supra. As we have observed, the scheme of the Act when Behn, meyer & Co. v. Miller was decided was to respect the corporate form, even though the enemy held all the stock of the corporate claimant. Hamburg-American Line Terminal & Navigation Co. v. United States, supra. The 1941 amendment to 5(b) reflected a complete reversal in that policy. The power of seizure and vesting was extended to all property of any foreign country or national so that no innocent appearing device could become a Trojan horse. Congress did not, however, alter the definitions of enemy or of ally of enemy contained in 2. They remain the same as they were at the time Behn, Meyer & Co. v. Miller was decided. 7 Yet if the question were presented for the first time under the amended Act, we could not confine the statutory definitions of enemy or ally of enemy to the narrow categories indicated by Behn, Meyer & Co. v. Miller. To do so would be to run counter to the policy of the Act and be disrupive of its purpose. We are dealing with hasty legislation which Congress did not stop to perfect as an integrated whole. Our task is to give all of it-1917 to 1941-the most harmonious, comprehensive meaning possible. Markham v. Cabell, supra. So if the definitions contained in 2 8 are to be harmonized with the policy underlying 5(b) and 9(a) of the amended Act, we would have to say that they are merely illus- , 489] trative, not exclusionary. To do otherwise would be to impute to Congress a purpose to paralyze with one hand what it sought to promote with the other. There is perhaps in logic some basis for saying that that should be the consequence since Congress did not amend 2 when it revised the Act by its amendment of 5(b). The argument is that the only change effected was in 5(b) and that 2 which stands unamended should be taken to mean what it meant before 1941. But the answer to our problem cannot be had by the use of logic alone. We are dealing here with conflict and confusion in the statute. Though neither 2 nor 9(a) was amended with 5(b) in 1941, one of them must be read differently after than before that event. We believe it is more consonant with the functions sought to be served by the Act to apply 2 differently than it was previously applied than to read 9(a) more restrictively. We believe a more harmonious reading of 2, 5( b) and 9(a) is had if the concept of enemy or ally of enemy is given a scope which helps the amendment of 1941 fulfill its mission and which does not make 9(a) for the first time in its history and contrary to the normal connotation of its terms stand as a barrier to the recovery of property by foreign interests which have no possible connection with the enemy. It is suggested, however, that this approach may produce results which are both absurd and uncertain. It is said that the entire property of a corporation would be jeopardized merely because a negligible stock interest, perhaps a single share, was directly or indirectly owned or controlled by an enemy or ally of an enemy. It is also pointed out that securities or interests other than stock might be held by an enemy or ally of an enemy and used effectively in economic warfare against this country. But what these interests are, the extent of holdings necessary to constitute an enemy taint, what part of a friendly alien , 490] corporation's property may be retained where only a fractional enemy ownership appears, are left undecided. Since we assume from the allegations of the complaint that respondent is free of enemy taint and therefore is not within the definition of enemy or ally of an enemy, those problems are not now before us. We recognize their importance; but they must await legislative9 or judicial clarification. Affirmed. The CHIEF JUSTICE took no part in the consideration or decision of this case.

1. A towboat owner may not validly contract against all liability for his own negligent towage. Pp. 85-95. (a) This Court now accepts as controlling a judicial rule, based on public policy, which invalidates contracts releasing towers from all liability for their negligence. P. 90. (b) The Steamer Syracuse, 12 Wall. 167, and The Wash Gray, , followed. Pp. 86-92. (c) Sun Oil Co. v. Dalzell Towing Co., , distinguished. Pp. 92-94.2. The rule against contractual exemption of a towboat owner from responsibility for his own negligence cannot be defeated by providing in a contract that all employees of a towboat shall be employees of the towed vessel, when the latter "employment" is purely a fiction. Pp. 94-95. 211 F.2d 401, reversed.Eberhard P. Deutsch argued the cause for petitioner. With him on the brief was Rene H. Himel, Jr.Ralph S. Spritzer argued the cause for respondent. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Burger and Samuel D. Slade.Selim B. Lemle filed a brief for the American Barge Line, Inc. et al., as amici curiae, urging affirmance.MR. JUSTICE BLACK delivered the opinion of the Court.The question presented is whether a towboat may validly contract against all liability for its own negligent towage. Since there is no controlling statute the question must be decided as a part of the judicially created admiralty law. Federal courts have disagreed as to whether there is or should be a judicial rule invalidating such contracts. Calling attention to this uncertainty, the District Court, sitting in admiralty, sustained a contractual provision exempting respondent towboat owner from liability for negligence and entered judgment accordingly. 114 F. Supp. 713. The Court of Appeals affirmed. 211 F.2d 401. We granted certiorari to settle the question. .The record including the findings of fact shows: Petitioner's oil barge Bisso while being towed up the Mississippi River by the respondent's steam towboat Cairo collided with a bridge pier and sank. At the time, the barge had no motive power, steering apparatus, officers or crew, its movements being completely controlled by the Cairo. Negligent towage by those operating the Cairo caused the collision. Consequently, respondent, owner of the Cairo, would have been required to pay petitioner damages unless relieved of liability by certain clauses in the towage contract. One provides that the towing movement should be at the "sole risk" of the barge, and a second provides that masters, crews and employees of the towboat Cairo should "in the performance of said service, become and be the servants" of the barge Bisso. The Court of Appeals construed both these clauses as relieving respondent from liability for its negligence and held both valid.A release-from-liability clause in a towage contract was first considered by this Court in 1871 in The Steamer Syracuse, 12 Wall. 167. There negligent towage by the Syracuse damaged a canal-boat being towed. To escape liability owners of the towboat relied on a contractual agreement that "the canal-boat was being towed at her own risk." Notwithstanding the agreement, this Court held that the towboat "must be visited with the consequences" of its negligence.1 For many years The Syracuse seems to have been generally accepted as either (1) construing a contract to "tow at own risk" as not including an exemption from negligence, or (2) holding invalid as against public policy a contract which exempts a tower from his negligence.2 In 1909 The Syracuse was repudiated by the Second Circuit in The Oceanica, 170 F. 893. That court construed a contract requiring a towed vessel to "assume all risks" as exempting the tower from responsibility for its negligence; it also held, over strong dissent, that the contract was not invalid as against public policy. And on rehearing the court conceded that "the decision of the majority of the court as to the right of a tug to contract against her own negligence is a departure from previous decisions." The court went on to express hope that the question would "be set at rest in this case by the Supreme Court." Certiorari was denied,3 however, and courts in the Second Circuit continued to follow the newly announced Oceanica doctrine.4 But other circuits continued to refuse to allow towboats by contract to escape liability for their negligent towage.5 It was in that state of intercircuit conflict that this Court again, in 1928, considered the effect of a contract claimed to exempt a towboat from its negligence. The Wash Gray, .6 The contract involved provided that the towboat should not be "responsible in any way for loss or damage" to the Wash Gray, the vessel being towed. This Court was urged to follow The Oceanica. But counsel for the Wash Gray, relying on The Syracuse, insisted that recovery for "actionable negligence is not barred by release in contract for towage."7 Without mention of The Oceanica this Court said: "We do not think that the towing contract has the effect claimed for it by the companies. It did not release the [towboat] ... from any loss or damage to the `Wash Gray' due to the negligence of the master or crew of the towing vessel ... . The rule laid down by this Court in The Steamer Syracuse ... covers the point." 277 U.S., at 73. The contracts in The Syracuse and The Wash Gray were worded quite differently, and there is little indication that the "rule" the Court had in mind was one of mere contractual interpretation. Rather a public policy objection to such contracts was indicated by the Court's quoting from that part of The Syracuse opinion which pointed out that despite the contract there the towboat had to bear the consequences of its negligence even though the law had not imposed on it the obligations resting on a common carrier.8 It is nevertheless argued that The Syracuse and The Wash Gray did not announce a rule of public policy against release-from-negligence contracts but decided no more than what the towage contracts in those cases meant. Strong arguments can be made in support of this contention but we think stronger arguments can be made against it. The Syracuse was decided in an era of manifest judicial hostility toward release-from-negligence contracts, particularly those made by businesses dealing widely with the public and having potential monopolistic powers.9 That hostility caused this Court two years later to declare that public policy forbade common carriers to make such contracts.10 The next year telegraph company contracts were brought under the same ban although the Court stated they were not common carriers.11 Largely because of this general judicial attitude and the influence of The Syracuse no towage release-from-negligence clause appears to have been enforced by any court for 38 years. During that period and later enforcement was refused in two ways - either by giving such contracts a very narrow construction or by holding them to be against public policy. One court even expressly declared it to be "contrary to public policy to so construe" a contract that a tower could be allowed to go clear of all liability for his own negligence.12 When the Second Circuit belatedly departed from The Syracuse other courts still refused to enforce towers' stipulations against their negligence. And when this Court was urged in The Wash Gray to repudiate The Syracuse by following The Oceanica the answer was an emphatic reiteration and approval of the language and holding of The Syracuse. Viewed in light of this history, we think The Syracuse, The Wash Gray and intervening lower court cases together strongly point to the existence of a judicial rule, based on public policy, invalidating contracts releasing towers from all liability for their negligence.13 Because of this judicial history and cogent reasons in support of a rule outlawing such contracts we now, despite past uncertainty and difference among the circuits, accept this as the controlling rule.This rule is merely a particular application to the towage business of a general rule long used by courts and legislatures to prevent enforcement of release-from-negligence contracts in many relationships such as bailors and bailees,14 employers and employees,15 public service companies and their customers.16 The two main reasons for the creation and application of the rule have been (1) to discourage negligence by making wrongdoers pay damages, and (2) to protect those in need of goods or services from being overreached by others who have power to drive hard bargains.17 These two reasons are no less applicable today than when The Syracuse and The Wash Gray were decided. And both reasons apply with equal force whether tugs operate as common carriers or contract carriers.18 The dangers of modern machines make it all the more necessary that negligence be discouraged. And increased maritime traffic of today makes it not less but more important that vessels in American ports be able to obtain towage free of monopolistic compulsions.The practical result of leaving towers wholly free to contract against all liability for their negligence is strikingly illustrated in an English case. The Port of London controlled and operated all tugs in the harbor and by law no ship could enter without the aid of Port Authority tugs. But no shipowner could get a Port tug unless he first signed a contract agreeing to be liable for all damages caused by the negligence of the tug's employees. Under such a contract the court allowed the Port Authority to recover damages from a ship towed for injuries to the Port's tug caused by negligence of the Port's employees running the tug.19 Such a result would be impossible under the rule we accept as controlling.It is contended that the towage contract rule we have accepted was rejected by this Court in Sun Oil Co. v. Dalzell Towing Co., .20 We disagree. Unlike The Syracuse, The Wash Gray and the instant case, Sun Oil did not involve a contract designed to relieve a towboat owner from liability for negligent towage. The contractual clause there involved related only to pilotage. The clause provided that a tug captain who piloted a vessel propelled on its own power should be considered the servant of that vessel and that the tug owners should not be liable for his negligent pilotage.21 Sun Oil construed this contract as relieving the tugboat owners from all liability for negligence of the tug captain while piloting Sun Oil's vessel and held the contract valid as thus construed. But both the Court of Appeals22 and this Court recognized that holding the pilotage contract valid did not conflict with The Syracuse or The Wash Gray. Indeed, this Court expressly stated that the Sun Oil decree was "not in conflict with the decisions" in The Syracuse and The Wash Gray. It is of course possible that the Court found an absence of conflict in the cases because of a different construction given the different contracts involved. We doubt this, but however this may be there are more basic differences upon which we prefer to rest this Court's statement that Sun Oil did not conflict with the two prior cases.There are distinctions between a pilotage and a towage exemption clause which make it entirely reasonable to hold one valid and the other invalid. A pilotage clause exempts for the negligence of pilots only; a towage clause exempts from all negligence of all towage employees. Pilots hold a unique position in the maritime world and have been regulated extensively both by the States and Federal Government.23 Some state laws make them public officers, chiefly responsible to the State, not to any private employer. Under law and custom they have an independence wholly incompatible with the general obligations of obedience normally owed by an employee to his employer.24 Their fees are fixed by law and their charges must not be discriminatory. As a rule no employer, no person, can tell them how to perform their pilotage duties. When the law does not prescribe their duties, pilots are usually free to act on their own best judgment while engaged in piloting a vessel. Because of these differences between pilots and towage employees generally, contracts stipulating against a pilot's negligence cannot be likened to contracts stipulating against towers' negligence. It is one thing to permit a company to exempt itself from liability for the negligence of a licensed pilot navigating another company's vessel on that vessel's own power. That was the Sun Oil case. It is quite a different thing, however, to permit a towing company to exempt itself by contract from all liability for its own employees' negligent towage of a vessel. Thus, holding the pilotage contract valid in the Sun Oil case in no way conflicts with the rule against permitting towers by contract wholly to escape liability for their own negligent towing. That rule renders invalid the first provision of the contract in this case that the towing had to be done at the sole risk of the towed vessel.The second clause in the contract - that the employees of the towboat Cairo should be servants of the barge Bisso - likewise cannot be enforced. For if valid, the only effect of that clause would be to shift all liability for negligent towage from the towboat to the vessel being towed, precisely what the first clause attempted to do. This is true because employees of a towboat do not become employees of a vessel being towed just because a contract says so, when as here the workers are in truth and in fact solely employees of the towboat.25 This towboat belonged to respondent. It was manned by workers hired and paid by respondent. They remained at all times subject to respondent's complete control. In contrast, the owners of the barge being towed never had any relationship of any kind or character with those who controlled and operated the towboat. The rule against contractual exemption of a towboat from responsibility for its own negligence cannot be defeated by the simple expedient of providing in a contract that all employees of a towboat shall be employees of the towed vessel when the latter "employment" is purely a fiction. Reversed.MR. JUSTICE HARLAN took no part in the consideration or decision of this case.

Certiorari granted. In view of representations of the Solicitor General concerning testimony given before a congressional investigating committee after the decision of the Court of Appeals, judgment vacated and cause remanded to that Court for such action as it may deem appropriate. Reported below: App. D.C. 195, 257 F.2d 199.Eliot C. Lovett for petitioner.Solicitor General Rankin, Assistant Attorney General Hansen, Charles H. Weston, John L. Fitzgerald and Richard A. Solomon for the Federal Communications Commission. respondent.PER CURIAM.The petition for writ of certiorari is granted. In view of the representations in the Solicitor General's brief on pages 4 and 5. concerning testimony given before the Subcommittee on Legislative Oversight of the House Committee on Interstate and Foreign Commerce subsequent to the decision by the Court of Appeals in this case, the judgment of the Court of Appeals is vacated and the case is remanded to the Court of Appeals for such action as it may deem appropriate.MR. JUSTICE CLARK and MR. JUSTICE HARLAN dissent. The matters referred to by the Court were not presented in the Court of Appeals and are not presented by this petition. Agreeing with the Solicitor General that denial of the petition for writ of certiorari would not foreclose appropriate consideration thereof by the Court of Appeals, we see no reason for vacating the Court of Appeals' judgment and, therefore, dissent from this disposition of the matter by the Court.

This class action was brought in 1973 by students in the Columbus, Ohio, school system, charging that the Columbus Board of Education (Board) and its officials had pursued and were pursuing a course of conduct having the purpose and effect of causing and perpetuating racial segregation in the public schools, contrary to the Fourteenth Amendment. The case was ultimately tried in April-June 1976, final arguments were heard in September 1976, and in March 1977 the District Court filed an opinion and order containing its findings of fact and conclusions of law. It found (1) that in 1954, when Brown v. Board of Education, (Brown I), was decided, the Board was not operating a racially neutral unitary school system, but was conducting "an enclave of separate, black schools on the near east side of Columbus" and that this was "the direct result of cognitive acts or omissions of those school board members and administrators who had originally intentionally caused and later perpetuated the racial isolation"; (2) that since the decision in Brown v. Board of Education, (Brown II), the Board had been under a continuous constitutional obligation to disestablish its dual system and that it has failed to discharge this duty; and (3) that in the intervening years since 1954 there had been a series of Board actions and practices that could not "reasonably be explained without reference to racial concerns" and that "intentionally aggravated, rather than alleviated," racial separation in the schools. Ultimately concluding that at the time of trial the racial segregation in the Columbus school system "directly resulted from [the Board's] intentional segregative acts and omissions," in violation of the Equal Protection Clause of the Fourteenth Amendment, the court, accordingly, enjoined the defendants from continuing to discriminate on the basis of race in operating the public schools and ordered the submission of a systemwide desegregation plan. Subsequently, following the decision in Dayton Board of Education v. Brinkman, (Dayton I), the District Court rejected the Board's argument that that decision required or permitted modification of the court's finding or judgment. Based on its examination of the record, the Court of Appeals affirmed the judgments against the defendants. Held: 1. On the record, there is no apparent reason to disturb the findings and conclusions of the District Court, affirmed by the Court of Appeals, that the Board's conduct at the time of trial and before not only was animated by an unconstitutional, segregative purpose, but also had current segregative impact that was sufficiently systemwide to warrant the remedy ordered by the District Court. Pp. 454-463. (a) Proof of purposeful and effective maintenance of a body of separate black schools in a substantial part of the system is itself prima facie proof of a dual system and supports a finding to this effect absent sufficient contrary proof by the Board, which was not forthcoming in this case. Pp. 455-458. (b) The Board's continuing affirmative duty to disestablish the dual school system, mandated by Brown II, is beyond question, and there is nothing in the record to show that at the time of trial the dual school system in Columbus and its effects had been disestablished. Pp. 458-461. 2. There is no indication that the judgments below rested on any misapprehension of the controlling law. Pp. 463-468. (a) Where it appears that the District Court, while recognizing that disparate impact and foreseeable consequences, without more, do not establish a constitutional violation, correctly noted that actions having foreseeable and anticipated disparate impact are relevant evidence to prove the ultimate fact of a forbidden purpose, the court stayed well within the requirements of Washington v. Davis, , and Arlington Heights v. Metropolitan Housing Dev. Corp., , that a plaintiff seeking to make out an equal protection violation on the basis of racial discrimination must show purpose. Pp. 464-465. (b) Where the District Court repeatedly emphasized that it had found purposefully segregative practices with current, systemwide impact, there was no failure to observe the requirements of Dayton I, that the remedy imposed by a court of equity should be commensurate with the violation ascertained. Pp. 465-467. (c) Nor was there any misuse of Keyes v. School Dist. No. 1, Denver, Colo., , where it was held that purposeful discrimination in a substantial part of a school system furnishes a sufficient basis for an inferential finding of a systemwide discriminatory intent unless otherwise rebutted and that given the purpose to operate a dual school system one could infer a connection between such purpose and racial separation in other parts of the school system. Pp. 467-468. 583 F.2d 787, affirmed. WHITE, J., delivered the opinion of the Court, in which BRENNAN, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. BURGER, C. J., filed an opinion concurring in the judgment, post, p. 468. STEWART, J., filed an opinion concurring in the judgment, in which BURGER, C. J., joined, post, p. 469. POWELL, J., filed a dissenting opinion, post, p. 479. REHNQUIST, J., filed a dissenting opinion, in which POWELL, J., joined, post, p. 489.Samuel H. Porter argued the cause for petitioners. With him on the briefs were Earl F. Morris and Curtis A. Loveland.Thomas I. Atkins argued the cause for respondents. With him on the brief were Richard M. Stein, William L. Taylor, Nathaniel R. Jones, Louis R. Lucas, William E. Caldwell, Paul R. Dimond, Robert A. Murphy, Richard S. Kohn, and Norman J. Chachkin. Mark O'Neill filed a brief for the Ohio State Board of Education et al. as respondents under this Court's Rule 21 (4).Assistant Attorney General Days argued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Acting Solicitor General Wallace, Sara Sun Beale, Brian K. Landsberg, and Robert J. Reinstein.* [Footnote *] Briefs of amici curiae urging reversal were filed by Richard S. Gebelein, Attorney General of Delaware, Regina M. Small, Deputy Attorney General, Mason E. Turner, Jr., James T. McKinstry, and Philip B. Kurland for the Delaware State Board of Education et al.; and by Charles E. Brown and Ira Owen Kane for the Neighborhood School Coordinating Committee et al. Briefs of amici curiae urging affirmance were filed by Burt Neuborne, E. Richard Larson, Robert Allen Sedler, Winn Newman, and Carole W. Wilson for the American Civil Liberties Union et al.; by Arthur J. Lesemann for the Fair Housing Council of Bergen County, N. J.; by Jack Greenberg, James M. Nabrit III, Bill Lann Lee, Joseph L. Rauh, Jr., John Silard, Elliott C. Lichtman, and John Fillion for the NAACP Legal Defense and Educational Fund, Inc., et al.; and by Stephen J. Pollak, Richard M. Sharp, Wendy S. White, and David Rubin for the National Education Association et al. Briefs of amici curiae were filed by Harriet F. Pilpel, Nathan Z. Dershowitz, and Joseph B. Robinson for the American Jewish Congress; and by Duane W. Krohnke for Special School District No. 1, Minneapolis, Minn. MR. JUSTICE WHITE delivered the opinion of the Court.The public schools of Columbus, Ohio, are highly segregated by race. In 1976, over 32% of the 96,000 students in the system were black. About 70% of all students attended schools that were at least 80% black or 80% white. 429 F. Supp. 229, 240 (SD Ohio 1977). Half of the 172 schools were 90% black or 90% white. 583 F.2d 787, 800 (CA6 1978). Fourteen named students in the Columbus school system brought this case on June 21, 1973, against the Columbus Board of Education, the State Board of Education, and the appropriate local and state officials.1 The second amended complaint, filed on October 22, 1974, charged that the Columbus defendants had pursued and were pursuing a course of conduct having the purpose and effect of causing and perpetuating segregation in the public schools, contrary to the Fourteenth Amendment. A declaratory judgment to this effect and appropriate injunctive relief were prayed. Trial of the case began more than a year later, consumed 36 trial days, produced a record containing over 600 exhibits and a transcript in excess of 6,600 pages, and was completed in June 1976. Final arguments were heard in September, and in March 1977 the District Court filed an opinion and order containing its findings of fact and conclusions of law. 429 F. Supp. 229.The trial court summarized its findings: "From the evidence adduced at trial, the Court has found earlier in this opinion that the Columbus Public Schools were openly and intentionally segregated on the basis of race when Brown [v. Board of Education, (Brown I)] was decided in 1954. The Court has found that the Columbus Board of Education never actively set out to dismantle this dual system. The Court has found that until legal action was initiated by the Columbus Area Civil Rights Council, the Columbus Board did not assign teachers and administrators to Columbus schools at random, without regard for the racial composition of the student enrollment at those schools. The Columbus Board even in very recent times ... has approved optional attendance zones, discontiguous attendance areas and boundary changes which have maintained and enhanced racial imbalance in the Columbus Public Schools. The Board, even in very recent times and after promising to do otherwise, has adjured [sic] workable suggestions for improving the racial balance of city schools. "Viewed in the context of segregative optional attendance zones, segregative faculty and administrative hiring and assignments, and the other such actions and decisions of the Columbus Board of Education in recent and remote history, it is fair and reasonable to draw an inference of segregative intent from the Board's actions and omissions discussed in this opinion." Id., at 260-261. The District Court's ultimate conclusion was that at the time of trial the racial segregation in the Columbus school system "directly resulted from [the Board's] intentional segregative acts and omissions," id., at 259, in violation of the Equal Protection Clause of the Fourteenth Amendment. Accordingly, judgment was entered against the local and state defendants enjoining them from continuing to discriminate on the basis of race in operating the Columbus public schools and ordering the submission of a systemwide desegregation plan.Following decision by this Court in Dayton Board of Education v. Brinkman, (Dayton I), in June 1977, and in response to a motion by the Columbus Board, the District Court rejected the argument that Dayton I required or permitted any modification of its findings or judgment. It reiterated its conclusion that the Board's "`liability in this case concerns the Columbus School District as a whole,'" App. to Pet. for Cert. 94, quoting 429 F. Supp., at 266, asserting that, although it had "no real interest in any remedy plan which is more sweeping than necessary to correct the constitutional wrongs plaintiffs have suffered," neither would it accept any plan "which fails to take into account the systemwide nature of the liability of the defendants." App. to Pet. for Cert. 95. The Board subsequently presented a plan that complied with the District Court's guidelines and that was embodied in a judgment entered on October 7. The plan was stayed pending appeal to the Court of Appeals.Based on its own examination of the extensive record, the Court of Appeals affirmed the judgments entered against the local defendants.2 583 F.2d 787. The Court of Appeals could not find the District Court's findings of fact clearly erroneous. Id., at 789. Indeed, the Court of Appeals examined in detail each set of findings by the District Court and found strong support for them in the record. Id., at 798, 804, 805, 814. The Court of Appeals also discussed in detail and found unexceptionable the District Court's understanding and application of the Fourteenth Amendment and the cases construing it.Implementation of the desegregation plan was stayed pending our disposition of the case. (REHNQUIST, J., in chambers). We granted the Board's petition for certiorari, , and we now affirm the judgment of the Court of Appeals.IThe Board earnestly contends that when this case was brought and at the time of trial its operation of a segregated school system was not done with any general or specific racially discriminatory purpose, and that whatever unconstitutional conduct it may have been guilty of in the past such conduct at no time had systemwide segregative impact and surely no remaining systemwide impact at the time of trial. A systemwide remedy was therefore contrary to the teachings of the cases, such as Dayton I, that the scope of the constitutional violation measures the scope of the remedy.3 We have discovered no reason, however, to disturb the judgment of the Court of Appeals, based on the findings and conclusions of the District Court, that the Board's conduct at the time of trial and before not only was animated by an unconstitutional, segregative purpose, but also had current, segregative impact that was sufficiently systemwide to warrant the remedy ordered by the District Court.These ultimate conclusions were rooted in a series of constitutional violations that the District Court found the Board to have committed and that together dictated its judgment and decree. In each instance, the Court of Appeals found the District Court's conclusions to be factually and legally sound.AFirst, although at least since 1888 there had been no statutory requirement or authorization to operate segregated schools,4 the District Court found that in 1954, when Brown v. Board of Education, (Brown I), was decided, the Columbus Board was not operating a racially neutral, unitary school system, but was conducting "an enclave of separate, black schools on the near east side of Columbus," and that "[t]he then-existing racial separation was the direct result of cognitive acts or omissions of those school board members and administrators who had originally intentionally caused and later perpetuated the racial isolation ... ." 429 F. Supp., at 236. Such separateness could not "be said to have been the result of racially neutral official acts." Ibid.Based on its own examination of the record, the Court of Appeals agreed with the District Court in this respect, observing that, "[w]hile the Columbus school system's dual black-white character was not mandated by state law as of 1954, the record certainly shows intentional segregation by the Columbus Board. As of 1954 the Columbus School Board had `carried out a systematic program of segregation affecting a substantial portion of the students, schools, teachers and facilities within the school system.'" 583 F.2d, at 798-799, quoting Keyes v. School Dist. No. 1, Denver, Colo., .The Board insists that, since segregated schooling was not commanded by state law and since not all schools were wholly black or wholly white in 1954, the District Court was not warranted in finding a dual system.5 But the District Court found that the "Columbus Public Schools were officially segregated by race in 1954," App. to Pet. for Cert. 94 (emphasis added);6 and in any event, there is no reason to question the finding that as the "direct result of cognitive acts or omissions" the Board maintained "an enclave of separate, black schools on the near east side of Columbus." 429 F. Supp., at 236. Proof of purposeful and effective maintenance of a body of separate black schools in a substantial part of the system itself is prima facie proof of a dual school system and supports a finding to this effect absent sufficient contrary proof by the Board, which was not forthcoming in this case. Keyes, supra, at 203.7 BSecond, both courts below declared that since the decision in Brown v. Board of Education, (Brown II), the Columbus Board has been under a continuous constitutional obligation to disestablish its dual school system and that it has failed to discharge this duty. App. to Pet. for Cert. 94; 583 F.2d, at 799. Under the Fourteenth Amendment and the cases that have construed it, the Board's duty to dismantle its dual system cannot be gainsaid.Where a racially discriminatory school system has been found to exist, Brown II imposes the duty on local school boards to "effectuate a transition to a racially nondiscriminatory school system." 349 U.S., at 301. "Brown II was a call for the dismantling of well-entrenched dual systems," and school boards operating such systems were "clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." Green v. County School Board, . Each instance of a failure or refusal to fulfill this affirmative duty continues the violation of the Fourteenth Amendment. Dayton I, 433 U.S., at 413-414; Wright v. Council of City of Emporia, ; United States v. Scotland Neck Board of Education, (creation of a new school district in a city that had operated a dual school system but was not yet the subject of court-ordered desegregation).The Green case itself was decided 13 years after Brown II. The core of the holding was that the school board involved had not done enough to eradicate the lingering consequences of the dual school system that it had been operating at the time Brown I was decided. Even though a freedom-of-choice plan had been adopted, the school system remained essentially a segregated system, with many all-black and many all-white schools. The board's continuing obligation, which had not been satisfied, was "`to come forward with a plan that promises realistically to work ... now ... until it is clear that state-imposed segregation has been completely removed.'" Swann v. Charlotte-Mecklenburg Board of Education, , quoting Green, supra, at 439 (emphasis in original).AS THE CHIEF JUSTICE'S opinion for a unanimous Court in Swann recognized, Brown and Green imposed an affirmative duty to desegregate. "If school authorities fail in their affirmative obligations under these holdings, judicial authority may be invoked... . In default by the school authorities of their obligation to proffer acceptable remedies, a district court has broad power to fashion a remedy that will assure a unitary school system." 402 U.S., at 15-16. In Swann, it should be recalled, an initial desegregation plan had been entered in 1965 and had been affirmed on appeal. But the case was reopened, and in 1969 the school board was required to come forth with a more effective plan. The judgment adopting the ultimate plan was affirmed here in 1971, 16 years after Brown II.In determining whether a dual school system has been dis-established, Swann also mandates that matters aside from student assignments must be considered:"[W]here it is possible to identify a `white school' or a `Negro school' simply by reference to the racial composition of teachers and staff, the quality of school buildings and equipment, or the organization of sports activities, a prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown." 402 U.S., at 18. Further, Swann stated that in devising remedies for legally imposed segregation the responsibility of the local authorities and district courts is to ensure that future school construction and abandonment are not used and do not serve to perpetuate or re-establish the dual school system. Id., at 20-21. As for student assignments, the Court said:"No per se rule can adequately embrace all the difficulties of reconciling the competing interests involved; but in a system with a history of segregation the need for remedial criteria of sufficient specificity to assure a school authority's compliance with its constitutional duty warrants a presumption against schools that are substantially disproportionate in their racial composition. Where the school authority's proposed plan for conversion from a dual to a unitary system contemplates the continued existence of some schools that are all or predominantly of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory." Id., at 26. The Board's continuing "affirmative duty to disestablish the dual school system" is therefore beyond question. McDaniel v. Barresi, , and it has pointed to nothing in the record persuading us that at the time of trial the dual school system and its effects had been disestablished. The Board does not appear to challenge the finding of the District Court that at the time of trial most blacks were still going to black schools and most whites to white schools. Whatever the Board's current purpose with respect to racially separate education might be, it knowingly continued its failure to eliminate the consequences of its past intentionally segregative policies. The Board "never actively set out to dismantle this dual system." 429 F. Supp., at 260.CThird, the District Court not only found that the Board had breached its constitutional duty by failing effectively to eliminate the continuing consequences of its intentional systemwide segregation in 1954, but also found that in the intervening years there had been a series of Board actions and practices that could not "reasonably be explained without reference to racial concerns," id., at 241, and that "intentionally aggravated, rather than alleviated," racial separation in the schools. App. to Pet. for Cert. 94. These matters included the general practice of assigning black teachers only to those schools with substantial black student populations, a practice that was terminated only in 1974 as the result of a conciliation agreement with the Ohio Civil Rights Commission; the intentionally segregative use of optional attendance zones,8 discontiguous attendance areas,9 and boundary changes;10 and the selection of sites for new school construction that had the foreseeable and anticipated effect of maintaining the racial separation of the schools.11 The court generally noted that "[s]ince the 1954 Brown decision, the Columbus defendants or their predecessors were adequately put on notice of the fact that action was required to correct and to prevent the increase in" segregation, yet failed to heed their duty to alleviate racial separation in the schools. 429 F. Supp., at 255.12 IIAgainst this background, we cannot fault the conclusion of the District Court and the Court of Appeals that at the time of trial there was systemwide segregation in the Columbus schools that was the result of recent and remote intentionally segregative actions of the Columbus Board. While appearing not to challenge most of the subsidiary findings of historical fact, Tr. of Oral Arg. 7, petitioners dispute many of the factual inferences drawn from these facts by the two courts below. On this record, however, there is no apparent reason to disturb the factual findings and conclusions entered by the District Court and strongly affirmed by the Court of Appeals after its own examination of the record.Nor do we discern that the judgments entered below rested on any misapprehension of the controlling law. It is urged that the courts below failed to heed the requirements of Keyes, Washington v. Davis, , and Arlington Heights v. Metropolitan Housing Dev. Corp., , that a plaintiff seeking to make out an equal protection violation on the basis of racial discrimination must show purpose. Both courts, it is argued, considered the requirement satisfied if it were shown that disparate impact would be the natural and foreseeable consequence of the practices and policies of the Board, which, it is said, is nothing more than equating impact with intent, contrary to the controlling precedent.The District Court, however, was amply cognizant of the controlling cases. It is understood that to prevail the plaintiffs were required to "`prove not only that segregated schooling exists but also that it was brought about or maintained by intentional state action,'" 429 F. Supp., at 251, quoting Keyes, 413 U.S., at 198 - that is, that the school officials had "intended to segregate." 429 F. Supp., at 254. See also 583 F.2d, at 801. The District Court also recognized that under those cases disparate impact and foreseeable consequences, without more, do not establish a constitutional violation. See, e. g., 429 F. Supp., at 251. Nevertheless, the District Court correctly noted that actions having foreseeable and anticipated disparate impact are relevant evidence to prove the ultimate fact, forbidden purpose. Those cases do not forbid "the foreseeable effects standard from being utilized as one of the several kinds of proofs from which an inference of segregative intent may be properly drawn." Id., at 255. Adherence to a particular policy or practice, "with full knowledge of the predictable effects of such adherence upon racial imbalance in a school system is one factor among many others which may be considered by a court in determining whether an inference of segregative intent should be drawn." Ibid. The District Court thus stayed well within the requirements of Washington v. Davis and Arlington Heights. See Personnel Administrator of Massachusetts v. Feeney, n. 25 (1979).It is also urged that the District Court and the Court of Appeals failed to observe the requirements of our recent decision in Dayton I, which reiterated the accepted rule that the remedy imposed by a court of equity should be commensurate with the violation ascertained, and held that the remedy for the violations that had then been established in that case should be aimed at rectifying the "incremental segregative effect" of the discriminatory acts identified.13 In Dayton I, only a few apparently isolated discriminatory practices had been found;14 yet a systemwide remedy had been imposed without proof of a systemwide impact. Here, however, the District Court repeatedly emphasized that it had found purposefully segregative practices with current, systemwide impact.15 429 F. Supp., at 252, 259-260, 264, 266; App. to Pet. for Cert. 95; 583 F.2d, at 799.16 And the Court of Appeals, responding to similar arguments, said:"School board policies of systemwide application necessarily have systemwide impact. 1) The pre-1954 policy of creating an enclave of five schools intentionally designed for black students and known as `black' schools, as found by the District Judge, clearly had a `substantial' - indeed, a systemwide - impact. 2) The post-1954 failure of the Columbus Board to desegregate the school system in spite of many requests and demands to do so, of course, had systemwide impact. 3) So, too, did the Columbus Board's segregative school construction and siting policy as we have detailed it above. 4) So too did its student assignment policy which, as shown above, produced the large majority of racially identifiable schools as of the school year 1975-76. 5) The practice of assigning black teachers and administrators only or in large majority to black schools likewise represented a systemwide policy of segregation. This policy served until July 1974 to deprive black students of opportunities for contact with and learning from white teachers, and conversely to deprive white students of similar opportunities to meet, know and learn from black teachers. It also served as discriminatory, systemwide racial identification of schools." 583 F.2d, at 814. Nor do we perceive any misuse of Keyes, where we held that purposeful discrimination in a substantial part of a school system furnishes a sufficient basis for an inferential finding of a systemwide discriminatory intent unless otherwise rebutted, and that given the purpose to operate a dual school system one could infer a connection between such a purpose and racial separation in other parts of the school system. There was no undue reliance here on the inferences permitted by Keyes, or upon those recognized by Swann. Furthermore, the Board was given ample opportunity to counter the evidence of segregative purpose and current, systemwide impact, and the findings of the courts below were against it in both respects. 429 F. Supp., at 260; App. to Pet. for Cert. 95, 102, 105.Because the District Court and the Court of Appeals committed no prejudicial errors of fact or law, the judgment appealed from must be affirmed. So ordered.

Appellee, a farmer and carpenter, is a member of the Old Order Amish, who believe that there is a religiously based obligation to provide for their fellow members the kind of assistance contemplated by the social security system. During certain years when he employed other Amish to work on his farm and in his carpentry shop, appellee failed to withhold social security taxes from his employees or to pay the employer's share of such taxes because he believed that payment of the taxes and receipt of benefits would violate the Amish faith. After the Internal Revenue Service assessed him for the unpaid taxes, appellee paid a certain amount and then sued in Federal District Court for a refund, claiming that imposition of the taxes violated his First Amendment free exercise of religion rights and those of his employees. The District Court held the statutes requiring appellee to pay social security taxes unconstitutional as applied, basing its holding on both 26 U.S.C. 1402(g), which exempts from social security taxes, on religious grounds, self-employed Amish and others, and the First Amendment.Held: 1. The exemption provided by 1402(g), being available only to self-employed individuals, does not apply to employers or employees, and hence appellee and his employees are not within its provisions. P. 256. 2. The imposition of social security taxes is not unconstitutional as applied to such persons as appellee who object on religious grounds to receipt of public insurance benefits and to payment of taxes to support public insurance funds. Pp. 256-261. (a) While there is a conflict between the Amish faith and the obligations imposed by the social security system, not all burdens on religion are unconstitutional. The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest. Pp. 256-258. (b) Widespread individual voluntary coverage under social security would undermine the soundness of the social security system, and would make such system almost a contradiction in terms and difficult, if not impossible, to administer. Pp. 258-259. (c) It would be difficult to accommodate the social security system with myriad exceptions flowing from a wide variety of religious beliefs such as the Amish. Wisconsin v. Yoder, , distinguished. There is no principled way for purposes of this case to distinguish between general taxes and those imposed under the Social Security Act. The tax system could not function if denominations were allowed to challenge it because tax payments were spent in a manner that violates their religious belief. Because the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax. Pp. 259-260. (d) Congress in 1402(g) has accommodated, to the extent compatible with a comprehensive national program, the practices of those who believe it a violation of their faith to participate in the social security system. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. The tax imposed on employers to support the social security system must be uniformly applicable to all, except as Congress explicitly provides otherwise. Pp. 260-261. 497 F. Supp. 180, reversed and remanded.BURGER, C. J., delivered the opinion of the Court, in which BRENNAN, WHITE, MARSHALL, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, post, p. 261.Deputy Solicitor General Wallace argued the cause for the United States. With him on the briefs were Solicitor General Lee, former Solicitor General McCree, Acting Assistant Attorney General Murray, Stuart A. Smith, and Gary R. Allen.Francis X. Caiazza argued the cause and filed a brief for appellee.* [Footnote *] William Bentley Ball and Phillip J. Murren filed a brief for the National Committee for Amish Religious Freedom as amicus curiae urging affirmance. CHIEF JUSTICE BURGER delivered the opinion of the Court.We noted probable jurisdiction to determine whether imposition of social security taxes is unconstitutional as applied to persons who object on religious grounds to receipt of public insurance benefits and to payment of taxes to support public insurance funds. . The District Court concluded that the Free Exercise Clause prohibits forced payment of social security taxes when payment of taxes and receipt of benefits violate the taxpayer's religion. We reverse.IAppellee, a member of the Old Order Amish, is a farmer and carpenter. From 1970 to 1977, appellee employed several other Amish to work on his farm and in his carpentry shop. He failed to file the quarterly social security tax returns required of employers, withhold social security tax from his employees, or pay the employer's share of social security taxes.1 In 1978, the Internal Revenue Service assessed appellee in excess of $27,000 for unpaid employment taxes; he paid $91 - the amount owed for the first quarter of 1973 - and then sued in the United States District Court for the Western District of Pennsylvania for a refund, claiming that imposition of the social security taxes violated his First Amendment free exercise rights and those of his Amish employees.2 The District Court held the statutes requiring appellee to pay social security and unemployment insurance taxes unconstitutional as applied. 497 F. Supp. 180 (1980). The court noted that the Amish believe it sinful not to provide for their own elderly and needy and therefore are religiously opposed to the national social security system.3 The court also accepted appellee's contention that the Amish religion not only prohibits the acceptance of social security benefits, but also bars all contributions by Amish to the social security system. The District Court observed that in light of their beliefs, Congress has accommodated self-employed Amish and self-employed members of other religious groups with similar beliefs by providing exemptions from social security taxes. 26 U.S.C. 1402(g).4 The Court's holding was based on both the exemption statute for the self-employed and the First Amendment; appellee and others "who fall within the carefully circumscribed definition provided in 1402(g) are relieved from paying the employer's share of [social security taxes] as it is an unconstitutional infringement upon the free exercise of their religion."5 497 F. Supp., at 184.Direct appeal from the judgment of the District Court was taken pursuant to 28 U.S.C. 1252.IIThe exemption provided by 1402(g) is available only to self-employed individuals and does not apply to employers or employees. Consequently, appellee and his employees are not within the express provisions of 1402(g). Thus any exemption from payment of the employer's share of social security taxes must come from a constitutionally required exemption.AThe preliminary inquiry in determining the existence of a constitutionally required exemption is whether the payment of social security taxes and the receipt of benefits interferes with the free exercise rights of the Amish. The Amish believe that there is a religiously based obligation to provide for their fellow members the kind of assistance contemplated by the social security system. Although the Government does not challenge the sincerity of this belief, the Government does contend that payment of social security taxes will not threaten the integrity of the Amish religious belief or observance. It is not within "the judicial function and judicial competence," however, to determine whether appellee or the Government has the proper interpretation of the Amish faith; "[c]ourts are not arbiters of scriptural interpretation." Thomas v. Review Bd. of Indiana Employment Security Div., .6 We therefore accept appellee's contention that both payment and receipt of social security benefits is forbidden by the Amish faith. Because the payment of the taxes or receipt of benefits violates Amish religious beliefs, compulsory participation in the social security system interferes with their free exercise rights.The conclusion that there is a conflict between the Amish faith and the obligations imposed by the social security system is only the beginning, however, and not the end of the inquiry. Not all burdens on religion are unconstitutional. See, e. g., Prince v. Massachusetts, ; Reynolds v. United States, . The state may justify a limitation on religious liberty by showing that it is essential to accomplish an overriding governmental interest. Thomas, supra; Wisconsin v. Yoder, ; Gillette v. United States, ; Sherbert v. Verner, .BBecause the social security system is nationwide, the governmental interest is apparent. The social security system in the United States serves the public interest by providing a comprehensive insurance system with a variety of benefits available to all participants, with costs shared by employers and employees.7 The social security system is by far the largest domestic governmental program in the United States today, distributing approximately $11 billion monthly to 36 million Americans.8 The design of the system requires support by mandatory contributions from covered employers and employees. This mandatory participation is indispensable to the fiscal vitality of the social security system. "[W]idespread individual voluntary coverage under social security ... would undermine the soundness of the social security program." S. Rep. No. 404, 89th Cong., 1st Sess., pt. 1, p. 116 (1965). Moreover, a comprehensive national social security system providing for voluntary participation would be almost a contradiction in terms and difficult, if not impossible, to administer. Thus, the Government's interest in assuring mandatory and continuous participation in and contribution to the social security system is very high.9 CThe remaining inquiry is whether accommodating the Amish belief will unduly interfere with fulfillment of the governmental interest. In Braunfeld v. Brown, , this Court noted that "to make accommodation between the religious action and an exercise of state authority is a particularly delicate task ... because resolution in favor of the State results in the choice to the individual of either abandoning his religious principle or facing ... prosecution." The difficulty in attempting to accommodate religious beliefs in the area of taxation is that "we are a cosmopolitan nation made up of people of almost every conceivable religious preference." Braunfeld, supra, at 606. The Court has long recognized that balance must be struck between the values of the comprehensive social security system, which rests on a complex of actuarial factors, and the consequences of allowing religiously based exemptions. To maintain an organized society that guarantees religious freedom to a great variety of faiths requires that some religious practices yield to the common good. Religious beliefs can be accommodated, see, e. g., Thomas, supra; Sherbert, supra, but there is a point at which accommodation would "radically restrict the operating latitude of the legislature." Braunfeld, supra, at 606.10 Unlike the situation presented in Wisconsin v. Yoder, supra, it would be difficult to accommodate the comprehensive social security system with myriad exceptions flowing from a wide variety of religious beliefs. The obligation to pay the social security tax initially is not fundamentally different from the obligation to pay income taxes; the difference - in theory at least - is that the social security tax revenues are segregated for use only in furtherance of the statutory program. There is no principled way, however, for purposes of this case, to distinguish between general taxes and those imposed under the Social Security Act. If, for example, a religious adherent believes war is a sin, and if a certain percentage of the federal budget can be identified as devoted to war-related activities, such individuals would have a similarly valid claim to be exempt from paying that percentage of the income tax. The tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief. See, e. g., Lull v. Commissioner, 602 F.2d 1166 (CA4 1979), cert. denied, ; Autenrieth v. Cullen, 418 F.2d 586 (CA9 1969), cert. denied, . Because the broad public interest in maintaining a sound tax system is of such a high order, religious belief in conflict with the payment of taxes affords no basis for resisting the tax.IIICongress has accommodated, to the extent compatible with a comprehensive national program, the practices of those who believe it a violation of their faith to participate in the social security system. In 1402(g) Congress granted an exemption, on religious grounds, to self-employed Amish and others.11 Confining the 1402(g) exemption to the self-employed provided for a narrow category which was readily identifiable. Self-employed persons in a religious community having its own "welfare" system are distinguishable from the generality of wage earners employed by others.Congress and the courts have been sensitive to the needs flowing from the Free Exercise Clause, but every person cannot be shielded from all the burdens incident to exercising every aspect of the right to practice religious beliefs. When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees. Congress drew a line in 1402(g), exempting the self-employed Amish but not all persons working for an Amish employer. The tax imposed on employers to support the social security system must be uniformly applicable to all, except as Congress provides explicitly otherwise.12 Accordingly, the judgment of the District Court is reversed, and the case is remanded for proceedings consistent with this opinion. Reversed and remanded.

To supplement state unemployment insurance benefits, the Trade Act of 1974 (Act) provides federally funded trade readjustment allowance (TRA) benefits to workers laid off because of competition from imports. As authorized by the Act, the Secretary of Labor (Secretary) has contracted out to state unemployment insurance agencies the job of making individual eligibility determinations for the benefits. To qualify for benefits, a worker must have at least 26 weeks of employment in the 52 weeks immediately preceding his layoff. In a 1975 policy handbook, the Secretary advised the state agencies that they should not count toward these 26 weeks leaves of absence, sick leaves, vacations, and military leaves. These guidelines were superseded by a 1981 amendment to the Act that permits inclusion of such periods of nonservice in determining a worker's period of employment, but the amendment was limited to benefits payable for weeks of unemployment beginning after September 30, 1981. Petitioner union and petitioner union members (some of whom had been denied benefits before October 1, 1981, because of the 1975 guidelines and some of whom were defending the award of benefits against appeals by their respective state agencies) filed an action in Federal District Court against the Secretary, claiming that his interpretation of the Act in the 1975 guidelines was incorrect, and seeking declaratory and injunctive relief. On cross-motions for summary judgment, the District Court first rejected the Secretary's argument that the provision of the Act, 19 U.S.C. 2311(d), that makes entitlement determinations reviewable only "in the same manner and to the same extent as determinations under the applicable State law," precluded federal jurisdiction over the action. On the merits, the Court held that the 1975 guidelines were inconsistent with the Act, and granted the requested relief. Without reaching the merits, the Court of Appeals reversed, holding that the union had no standing to bring the action. As to the individual union member plaintiffs, who claim to have been denied benefits because of an improper construction of the Act, the court, relying on 2311(d)'s requirement, held that no relief could properly be awarded because the plaintiffs had failed to join as party-defendants the state agencies that had denied their claims.Held: 1. Petitioner union has standing to litigate this action. Pp. 281-290. (a) An association has standing to bring suit on behalf of its members when (1) "its members would otherwise have standing to sue in their own right"; (2) "the interests it seeks to protect are germane to the organization's purpose"; and (3) "neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington Apple Advertising Comm'n, . All three of these conditions have been met in this case. As to the first condition, 2311(d) does not preclude a union member or any other aggrieved claimant from challenging the 1975 guidelines. The question is not whether there are any union members who might have circumvented any state administrative and judicial process in order to bring the claims that the union now seeks to litigate, but rather whether there are union members who have yet to receive either benefits they believe are due or a final state judgment that will preclude further consideration of their claims. Such individuals would have the live interest in challenging the guidelines that would support standing in this case. As to the second condition for associational standing, there is little question that the interests the union seeks to protect in this action are "germane" to its purpose of obtaining benefits, including unemployment benefits, for its members. As to the third condition, although the unique facts of each union member's claim will have to be considered by the state authorities before the member can receive the claimed benefits, the union can litigate this action without those individual members' participation and still ensure that the remedy, if granted, will benefit those members actually injured. Pp. 282-288. (b) The principles of associational standing set out in Hunt, supra, are reaffirmed. The Secretary's suggestion that members of an association who wish to litigate common questions of law or fact against the same defendant should be permitted to proceed only pursuant to the class-action provisions of Federal Rule of Civil Procedure 23, fails to recognize the special features distinguishing suits by associations on behalf of their members from class actions. While a class action creates an ad hoc union of injured plaintiffs who may be linked only by their common claims, an association suing to vindicate its members' interests can draw upon a pre-existing reservoir of expertise and capital that can assist both courts and plaintiffs. In addition, the doctrine of associational standing recognizes that the primary reason people join an organization is often to create an effective vehicle for vindicating interests that they share with others. Here, the Secretary has given no reason to doubt the union's ability to proceed on behalf of its aggrieved members. Pp. 288-290. 2. The action can be maintained without the joinder as defendants of the state agencies administering the TRA benefit program. The action is not an appeal from an adverse benefit determination, removed to federal court, but is a challenge to federal guidelines that required that determination. Just as 2311(d) cannot be read to bar federal jurisdiction over a challenge to the guidelines, that section does not demand that the state rules governing review of the entitlement decisions bind the federal court entertaining that challenge. Under circumstances where the state agencies would be bound to comply with the relief ordered here and are reimbursed by the Federal Government for TRA benefits they pay, the state agencies are not "indispensable parties" within the meaning of Federal Rule of Civil Procedure 19(b) whose absence from the action rendered the District Court unable to grant the relief sought. Pp. 290-293. App. D.C. 106, 746 F.2d 839, reversed and remanded.MARSHALL, J., delivered the opinion of the Court, in which BRENNAN, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. WHITE, J., filed a dissenting opinion, in which BURGER, C. J., and REHNQUIST, J., joined, post, p. 293. POWELL, J., filed a dissenting opinion, post, p. 296.Marsha S. Berzon argued the cause for petitioners. With her on the briefs were Jordan Rossen, Leonard Page, and Stephen P. Berzon.Deputy Solicitor General Kuhl argued the cause for respondent. With her on the brief were Solicitor General Fried, Assistant Attorney General Willard, Mark I. Levy, Leonard Schaitman, and William G. Cole.* [Footnote *] Benjamin W. Heineman, Jr., and Carter G. Phillips filed a brief for the Chamber of Commerce of the United States et al. as amici curiae urging reversal.JUSTICE MARSHALL delivered the opinion of the Court.This suit was brought by the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW), and several of its members challenging the Secretary of Labor's interpretation of the eligibility provisions of the Trade Act of 1974, 88 Stat. 1978, 19 U.S.C. 2101, which provides benefits to workers laid off because of competition from imports. The issues presented here are whether the Union has standing to sue in federal court on behalf of its affected members and whether such a suit can be maintained without the joinder as defendants of the state agencies that administer the benefit program in question.ITo aid workers who have lost their jobs because of import competition, the Trade Act of 1974 established a program of trade readjustment allowance (TRA) benefits as a supplement to state unemployment insurance benefits. 19 U.S.C. 2291. Under the Act's scheme, a group of workers, their union, or some other authorized representative may petition the Secretary of Labor to certify that their firm has been adversely affected by imports. 2271-2273. If the Secretary issues a certificate of eligibility for such a group, workers within that group who meet certain standards of individual eligibility may then apply for and receive TRA benefits. These benefits are funded entirely by the Federal Government, as is the cost of administering the program.While the Secretary of Labor cannot delegate his certification duties, the Act does permit him to contract out the job of making individual eligibility determinations to the state agencies that administer state unemployment insurance programs. The Secretary has in fact entered into such agreements with unemployment insurance agencies in each State and in the District of Columbia and Puerto Rico. Pursuant to the agreements, each of these "cooperating Stat[e] agencies," 2311(a), becomes an "agent of the United States," 2313(a), charged with processing applications and using federal funds to pay TRA benefits to individuals eligible under the Act. Review of eligibility decisions by these agencies is to be "in the same manner and to the same extent as determinations under the applicable State law and only in that manner and to that extent." 2311(d). In making these eligibility determinations, however, state authorities are bound to apply the relevant regulations promulgated by the Secretary of Labor and the substantive provisions of the Act. 29 CFR 91.51(c) (1985).To qualify for TRA benefits under the Act, a worker must have "had, in the 52 weeks immediately preceding ... separation, at least 26 weeks of employment at wages of $30 or more a week in adversely affected employment with a single firm or subdivision of a firm." 19 U.S.C. 2291(2) (1976 ed.). In a 1975 policy handbook, the Secretary advised the state agencies that they should not count toward these 26 weeks"[p]eriods in which service is not being performed, such as leave of absence, sick or annual leave or vacation leave, and periods in which service is being performed for other than the adversely affected employer, such as military service, temporary loan or detail to another employer, or work for another employer while attached to the adversely affected employer ... ." App. 85. These guidelines were superseded in August 1981 by the Omnibus Budget Reconciliation Act of 1981 (OBRA), Pub. L. 97-35, 95 Stat. 357, which amended the Trade Act to provide that "leave for purposes of vacation, sickness, injury, maternity, or inactive duty or active duty military service for training" is to be included in determining an individual's period of employment with an adversely affected firm. 19 U.S.C. 2291(a)(2)(A). The effect of this amendment, however, was limited to TRA benefits "payable for weeks of unemployment which begin after September 30, 1981." OBRA, 2514(a)(2)(B), 95 Stat. 889, note following 19 U.S.C. 2291.Shortly after the passage of the OBRA, petitioners, the UAW and 11 of its members - some of whom had been denied benefits for weeks of employment before October 1, 1981, because of the interpretation of 2291 in the 1975 handbook and some of whom were defending the award of benefits against appeals by their respective state agencies - filed this suit in District Court against the Secretary of Labor. Claiming that the Secretary's interpretation had been incorrect and, to the extent that it related to military leave, in violation of the Veterans' Employment and Readjustment Act of 1972, 38 U.S.C. 2013, and the Vietnam Era Veterans' Readjustment Assistance Act of 1974, 38 U.S.C. 2014, 2024, petitioners sought a declaration that the interpretation was improper and an injunction requiring the Secretary both to notify all cooperating state agencies of the invalidity of the handbook and to direct those agencies to review and reprocess all cases in which TRA benefits had been denied.On cross-motions for summary judgment, the District Court first rejected the Secretary's argument that 2311(d), which makes entitlement determinations reviewable only "in the same manner and to the same extent as determinations under the applicable State law," precluded federal jurisdiction over the action. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America v. Donovan, 568 F. Supp. 1047, 1050-1052 (DC 1983). It noted: "In the typical case the Act envisions that a disappointed applicant for TRA benefits appeals to the state court the administering agency's application of the pertinent guidelines or regulations to the facts of his case. The instant case, however, is atypical. Here, plaintiffs allege that the guidelines themselves are invalid; they do not contest the particulars of the application of the guidelines to the facts of individual cases." Id., at 1050. On the merits of the complaint, the court held that the 1975 guidelines were indeed inconsistent with the Trade Act and the Veterans' Readjustment Assistance Act of 1972. It therefore ordered the Secretary to notify all cooperating state agencies of the Act's proper construction and to direct those agencies to process anew, applying the proper eligibility standards, any TRA claims wrongfully denied as a result of the 1975 guidelines.Without reaching the merits, a divided panel of the Court of Appeals reversed. App. D.C. 106, 746 F.2d 839 (1984). The court first noted that the UAW "is not an appropriate representative of those TRA claimants who were not its members," id., at 109, 746 F.2d, at 842, and that, at this stage of the proceedings, it would be "impressible" to treat the suit as a class action on behalf of all disappointed claimants, id., at 108, 746 F.2d, at 841. The court then held that the UAW could not even represent the interests of those claimants who were union members. It reasoned:"In this case ..., the Union has alleged no injury to itself; nor are the members' associational rights affected... . It seeks standing solely because some of the claimants, but far from all, were members of the Automobile Workers Union. Many of the members of the Union, however, have not had their employment terminated because of increasing imports. They have no interest in this case and no standing to seek any judicial relief. Those members of the Union who were disappointed claimants of the benefits have been injured, or denied advantages, in various amounts. The controversy could draw to a conclusion in these proceedings only if each individual claimant was a party plaintiff." Id., at 109, 746 F.2d, at 842. Turning to the six named plaintiffs who claimed to have been denied administrative awards of benefits because of an improper construction of 2291, the court held that, even assuming that 2311(d) did not preclude federal jurisdiction, "no relief could properly be awarded in this action" because plaintiffs had failed to join as party-defendants the cooperating state agencies that had denied their claims. Id., at 111, 746 F.2d, at 844. Relying on the requirement of 2311(d) "that review of determinations with respect to TRA benefits must be `in the same manner' as a determination under the state's unemployment insurance law," the court concluded:"Judicial review of a state agency's determination of benefits under its own unemployment insurance law may not be had without the presence of the state agency, [and] since the state agencies are outside the district court's jurisdiction, it may not be had here." Id., at 110, 746 F.2d, at 843. We granted certiorari to consider the procedural issues raised by the Court of Appeals' decision, . We now reverse.IIThe first question raised by the Court of Appeals' decision is a simple one: Does the UAW have standing to challenge the 1975 policy directive that allegedly resulted in the denial of TRA benefits to thousands of the Union's members? See Complaint § 69. As the Court of Appeals properly noted, "the Union has alleged no injury to itself; nor are the members' associational rights affected," App. D.C., at 109, 746 F.2d, at 842. The inquiry here is thus whether the UAW may proceed solely as a representative of those of its members injured by the Secretary's policy.It has long been settled that "[e]ven in the absence of injury to itself, an association may have standing solely as the representative of its members. E. g., National Motor Freight Assn. v. United States, ." Warth v. Seldin, . While the "possibility of such representational standing ... does not eliminate or attenuate the constitutional requirement of a case or controversy," ibid.; see Sierra Club v. Morton, , we have found that, under certain circumstances, injury to an organization's members will satisfy Article III and allow that organization to litigate in federal court on their behalf. See Simon v. Eastern Kentucky Welfare Rights Organization, . In Warth, supra, we set out the nature of these circumstances:"The association must allege that its members, or any one of them, are suffering immediate or threatened injury as a result of the challenged action of the sort that would make out a justiciable case had the members themselves brought suit... . So long as this can be established, and so long as the nature of the claim and of the relief sought does not make the individual participation of each injured party indispensable to proper resolution of the cause, the association may be an appropriate representative of its members, entitled to invoke the court's jurisdiction." Id., at 511. Subsequently, this doctrine was stated as a three-part test:"[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organizations purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Washington State Apple Advertising Comm'n, . The Court of Appeals here held that the UAW could not litigate its challenge to the Secretary's policy directive on behalf of its members because it found that the third of these conditions was not present in this case. Defending the court's decision, however, the Secretary argues that none of the three has been satisfied. We will consider each in turn.AAddressing the first part of the analysis in Hunt, the Secretary does not dispute petitioner's claim that a large number of UAW members were denied TRA benefits by their respective state agencies as a result of his Department's interpretation of 2291(2) between 1975 and 1981. His argument is not that all members whom the UAW purports to represent have suffered no injury. Rather, he relies on 19 U.S.C. 2311(d), which makes TRA entitlement determinations by state agencies "subject to review in the same manner and to the same extent as determinations under the applicable State law and only in that manner and to that extent," and maintains that not a single member of the UAW - or any other aggrieved TRA claimant - can challenge the 1975 policy directive without running afoul of settled principles of administrative finality and judicial comity, as well as statutory intent.The reasons the Secretary gives for the preclusion of various UAW members differ, but the end result is the same. TRA claimants who were awarded benefits and whose cases were finally resolved in their favor on judicial review cannot challenge the Secretary's interpretation of the Trade Act because they were not injured by it. At the same time, claimants denied benefits in final state judicial decisions are barred by res judicata from raising any eligibility claim in federal court. As for workers, who, at the time the suit was brought, had claims pending in state court after either favorable or unfavorable administrative determinations, the Secretary argues that it would "be contrary to Congress's incorporation of the state system into the administration of the Trade Act, and an affront to the integrity and authority of the state courts, to allow claimants whose cases were under state judicial review to pretermit that process by proceeding in federal court." Brief for Respondent 16. Workers with claims still pending in state administrative proceedings cannot complain, according to the Secretary, because they have yet to suffer any cognizable injury and may not circumvent state processes. And workers who failed to seek judicial review of adverse administrative determinations should also be barred from coming to federal court because their inaction has allowed those determinations to become final. The Secretary's arguments simply miss the point of petitioner's claims. The statutory challenges raised here will no doubt affect the outcome of individual entitlement determinations if petitioners are successful on the merits of their suit. However, this action does not directly seek TRA benefits. In accordance with 2231(d), decisions as to the eligibility of individual claimants for benefits will remain the province of state authorities. The question is thus not whether there are any individual members of the UAW who might have circumvented state administrative and judicial processes in order to bring the claims that the UAW now seeks to litigate. Rather, it is whether there are members of the UAW who have yet to receive either the TRA benefits they believe they are due or a final state judgment that would preclude further consideration of their eligibility claims. Such individuals would have the live interest in challenging the Labor Department guidelines that would support standing in this case. And there is no question here that among the UAW's members are many such individuals.At bottom, the Secretary's invocation of administrative exhaustion principles is merely a variant of his argument that 2311(d) irrevocably commits to state processes all claims relating to TRA entitlements. Citing this Court's recent decision in Green v. Mansour, , he argues that "this suit, like Green, is an impermissible attempt to gain a federal judicial ruling to serve as the predicate for a state claim that could not be brought directly in federal court." Brief for Respondent 21. In Green, this Court held that when the Eleventh Amendment bars a federal court from directly ordering a State to pay damages for a past constitutional violation, the court cannot enter a declaratory judgment that plaintiffs might use as res judicata in state-court damages actions. The Eleventh Amendment bar that precluded equitable relief in Green, however, has little in common with 19 U.S.C. 2311(d). The Trade Act provision does not foreclose review in federal court of every claim relating to the Act's application by federal and state officials. While the Act vested state courts with exclusive jurisdiction over claims challenging a state agency's application of federal guidelines to the benefit claims of individual employees, there is no indication that Congress intended 2311(d) to deprive federal district courts of subject-matter jurisdiction under 28 U.S.C. 1331(a) (1976 ed.) to hear statutory or constitutional challenges to the federal guidelines themselves. Indeed, we have frequently upheld a contrary principle: that although review of individual eligibility determinations in certain benefit programs may be confined by state and federal law to state administrative and judicial processes, claims that a program is being operated in contravention of a federal statute or the Constitution can nonetheless be brought in federal court. See Ohio Bureau of Employment Services v. Hodory, ; Fusari v. Steinberg, ; Christian v. New York State Dept. of Labor, ; California Dept. of Human Resources Development v. Java, ; cf. Bowen v. Michigan Academy of Family Physicians, (judicial review available for challenge to Secretary's regulations even where statute bars review of determinations of specific benefit amounts). In Christian, supra, for example, former employees denied unemployment compensation benefits in state proceedings brought an action in District Court alleging that the Secretary of Labor and the state agency acting as his agent had not adhered to the procedural guarantees of the Unemployment Compensation for Federal Employees Program. Even though the provision governing review of benefit determinations in that program, 5 U.S.C. 8502(d), is nearly identical to 19 U.S.C. 2311(d), we noted that the court had jurisdiction over plaintiffs' claims against both state and federal defendants. 414 U.S., at 617, n. 3.As we find 2311(d) to pose no bar to petitioners' claims, we see no jurisdictional impediment to this suit in federal court challenging a federal official's interpretation of a federal statute. In view of the extent to which state agencies are bound to adhere to the Secretary's directives with respect to the administration and interpretation of the Trade Act, see infra, at 292, such a direct challenge is not only proper, but appropriate.BHaving found that at least some members of the UAW would have had standing to bring this suit in their own right, we need pause only briefly to consider whether the second of Hunt's preconditions for associational standing has been satisfied here. For there is little question that the interests that the UAW seeks to protect in this suit are "germane to the organization's purpose," Hunt, 432 U.S., at 343. The UAW's Constitution announces that one of the Union's goals is "to work for legislation on a national scale, having as its object the establishment of real social and unemployment insurance, the expense of which is to be borne by the employer and the Government." Constitution of the International Union, UAW, Art. 2, 4 (quoted in Brief for Petitioners 14-15). In pursuit of that goal, the leadership of the UAW, along with other representatives of organized labor, lobbied hard for the establishment of the TRA benefit program. See, e. g., Trade Reform Act of 1973: Hearings on H. R. 6767 before the House Committee on Ways and Means, 93d Cong., 1st Sess., pt. 3, pp. 849-914 (1973) (testimony of Leonard Woodcock, President of the UAW).Recognizing the interest of organized labor in obtaining benefits for its workers, Congress gave unions a role in the administration of the TRA program, allowing them to petition the Secretary to certify that particular firms have been adversely affected by imports. 19 U.S.C. 2271-2273. Once the issuance of such a certification permits individual union members to file for TRA benefits, a union like the UAW - whose members, we are told, have constituted over 40% of the workers certified as eligible to apply for TRA benefits between April 1975 and January 1984, Brief for Petitioners 15 - surely maintains an interest in ensuring that its members receive all the benefits available under the Act.CRelying on our decision in Warth v. Seldin, , the Court of Appeals concluded that the UAW had failed to satisfy the last of the preconditions for associational standing set out in Hunt. In Warth, we noted that even where the members of an association have suffered the sort of injury that might otherwise support a suit by the association, "whether an association has standing to invoke the court's remedial powers on behalf of its members depends in substantial measure on the nature of the relief sought." 422 U.S., at 515. An organization of construction firms, we held, could not seek damages for the profits and business lost by its members because "whatever injury might have been suffered is peculiar to the individual member concerned, and both the fact and extent of injury would require individualized proof." Id., at 515-516. Each member therefore had to be a party to the suit, and the association lacked standing to proceed on his behalf. Likening the instant case to Warth, the Court of Appeals noted that because those UAW members "who had suffered an alleged injury had done so in varying amounts requiring individualized proof," the relief sought here could not be obtained unless "each individual claimant was a party plaintiff." App. D.C., at 109, 746 F.2d, at 842.Like the Secretary in his arguments before this Court, the Court of Appeals misconstrued the nature of petitioners' claims. Neither these claims nor the relief sought required the District Court to consider the individual circumstances of any aggrieved UAW member. The suit raises a pure question of law: whether the Secretary properly interpreted the Trade Act's TRA eligibility provisions. Cf. Schweiker v. Gray Panthers, , n. 8 (1981). And the relief requested, and granted by the District Court, leaves any questions regarding the eligibility of individual TRA claimants to the state authorities given jurisdiction over such questions by 19 U.S.C. 2311(d). See Bowen v. City of New York, ("[B]y ordering simply that the claims be reopened at the administrative level, the District Court showed proper respect for the administrative process"). Thus, though the unique facts of each UAW member's claim will have to be considered by the proper state authorities before any member will be able to receive the benefits allegedly due him, the UAW can litigate this case without the participation of those individual claimants and still ensure that "the remedy, if granted, will inure to the benefit of those members of the association actually injured," Warth, supra, at 515.IIIAs an alternative basis for affirming the Court of Appeals, the Secretary asks that we reconsider and reject the principles of associational standing set out in Hunt. He suggests that "at least absent a showing of particularized need," members of an association who wish to litigate common questions of law or fact against the same defendant be permitted to proceed only pursuant to the class-action provisions of Federal Rule of Civil Procedure 23. Brief for Respondent 34.* Both associational standing and Rule 23 are "designed to serve precisely the same purpose," according to the Secretary: "to facilitate, in a fair and efficient manner, the collective adjudication of the common rights of an association's members." Id., at 37. Rule 23, however, contains special safeguards to ensure that the diverse interests of class members are properly represented by the named plaintiff seeking to bring a case on their behalf. No such adequacy of representation, the Secretary argues, is guaranteed by the approach this Court has taken to associational standing in Warth, Hunt, and other cases. Yet an association might prove an inadequate representative of its members' legal interests for a number of reasons. It might lack resources or experience or might bring lawsuits without authorization from its membership. In addition, the litigation strategy selected by the association might reflect the views of only a bare majority - or even an influential minority - of the full membership.The Secretary's presentation, however, fails to recognize the special features, advantageous both to the individuals represented and to the judicial system as a whole, that distinguish suits by associations on behalf of their members from class actions. While a class action creates an ad hoc union of injured plaintiffs who may be linked only by their common claims, an association suing to vindicate the interests of its members can draw upon a pre-existing reservoir of expertise and capital. "Besides financial resources, organizations often have specialized expertise and research resources relating to the subject matter of the lawsuit that individual plaintiffs lack." Note, From Net to Sword: Organizational Representatives Litigating Their Members' Claims, 1974 U. Ill. L. Forum 663, 669. These resources can assist both courts and plaintiffs. As one court observed of an association's role in pending litigation: "[T]he interest and expertise of this plaintiff, when exerted on behalf of its directly affected members, assure `that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult ... questions.'" Harlem Valley Transportation Assn. v. Stafford, 360 F. Supp. 1057, 1065 (SDNY 1973), quoting Baker v. Carr, . In addition, the doctrine of associational standing recognizes that the primary reason people join an organization is often to create an effective vehicle for vindicating interests that they share with others. "The only practical judicial policy when people pool their capital, their interests, or their activities under a name and form that will identify collective interests, often is to permit the association or corporation in a single case to vindicate the interests of all." Joint Anti-Fascist Refugee Committee v. McGrath, (Jackson, J., concurring); see NAACP v. Alabama ex rel. Patterson, (association "is but the medium through which its individual members seek to make more effective the expression of their views"). The very forces that cause individuals to band together in an association will thus provide some guarantee that the association will work to promote their interests.We are not prepared to dismiss out of hand the Secretary's concern that associations allowed to proceed under Hunt will not always be able to represent adequately the interest of all their injured members. Should an association be deficient in this regard, a judgment won against it might not preclude subsequent claims by the association's members without offending due process principles. And were we presented with evidence that such a problem existed either here or in cases of this type, we would have to consider how it might be alleviated. However, the Secretary has given us absolutely no reason to doubt the ability of the UAW to proceed here on behalf of its aggrieved members, and his presentation has fallen far short of meeting the heavy burden of persuading us to abandon settled principles of associational standing. See Vasquez v. Hillery, . We therefore reaffirm the principles we set out in Hunt, and hold that the UAW has standing to litigate this action.IVOur conclusion that the UAW has standing would be of little consequence if we agreed with the Court of Appeals that "the complaint should be dismissed because it was filed without the joinder of necessary parties," namely, the cooperating state agencies whose adverse benefit determinations gave rise to the injuries complained of here. App. D.C., at 110, 746 F.2d, at 843. Because petitioners appear to have conceded that the state agencies are outside the jurisdiction of the District Court, Brief for Petitioners 44, n. 44, a demand that all the agencies involved be named as defendants would bar the UAW from proceeding any further with this action. However, we believe that the Court of Appeals' resolution of the joinder issue was erroneous.In part, the Court of Appeals' decision was based upon its reading 19 U.S.C. 2311(d) to require that the state procedural rules applicable to the review of individual entitlement determinations be applied in this case. Since, under state law, review of an individual TRA claimant's eligibility determination cannot be had without the joinder of the state agency that made that determination, the Court of Appeals reasoned that a plaintiff could not pursue the claims raised here unless he joined as defendant the state agency whose reliance on the 1975 handbook had allegedly denied him TRA benefits. As should be clear from the foregoing discussion of the standing issue, however, the court's application of 2311(d) was founded on a mischaracterization of this lawsuit. This action is not an appeal from an adverse benefit determination, removed to federal court. It is a challenge to the federal guidelines that required those determinations. And just as 2311(d) cannot be read to bar federal jurisdiction over a challenge to the Secretary's statutory interpretation, so 2311(d) does not demand that the state rules governing review of agency entitlement decisions bind the federal court entertaining that challenge.The second basis of the Court of Appeals' decision was its concern that without the joinder of every state agency whose cooperation was needed to effect the relief granted by the District Court against the Secretary, such relief might "be a futile thing except to the extent that voluntary compliance [by those agencies] with the request of the Secretary may be expected." App. D.C., at 111, 746 F.2d, at 844. We do not share this fear. If upon reaching the merits of this case, the Court of Appeals upholds the relief ordered by the District Court, we have little doubt that the state agencies, which have agreed to administer TRA benefits as "agent[s] of the United States," 19 U.S.C. 2311(a), 2313(a), would obey the Secretary's directive to process anew any TRA claims wrongfully denied as a result of the 1975 handbook's interpretation of the Trade Act.Regulations promulgated by the Secretary provide that "[i]n making determinations, redeterminations, and in connection with proceedings for review thereof," a cooperating state agency "shall be an agent of the United States and shall carry out fully the purpose stated in 91.2." 29 CFR 91.51(d) (1985). Among the goals set out in 91.2 of those regulations is "to implement the provisions of the Act uniformly and effectively throughout the United States." State agencies that have entered into agreements with the Secretary would thus be bound to comply with the relief ordered here. Were a state agency to balk at engaging in the reprocessing the Secretary would order pursuant to the court's injunction, it could be found in breach of its agreement. 29 CFR 91.63(e) (1985). Such a finding would cause employers in that agency's State to lose certain tax credits against their liability for the Federal Unemployment Tax. 26 U.S.C. 3302(c)(3). In any event, since state agencies are fully reimbursed by the Federal Government for the TRA benefits they pay and for the administrative costs of processing those payments, it seems unlikely that a directive from the Secretary would meet any resistance from his agents.Under these circumstances, we do not believe that the state agencies should be considered "indispensable parties" within the meaning of Federal Rule of Civil Procedure 19(b), whose absence from this action rendered the District Court unable to grant in full the relief sought by petitioners. Furthermore, given that the only prejudice to absent third parties suggested here is administrative work for which the agencies will be fully reimbursed, it would be indeed odd were we to prevent this suit from going forward simply because there is a slight chance that petitioners will not be able to obtain the full extent of the relief they seek.VWe hold that the UAW has standing to proceed in this case, and that petitioners' failure to join the various cooperating state agencies poses no obstacle to the suit. It remains for the Court of Appeals to consider the merits of the District Court's decision and any procedural issues properly preserved and raised.The judgment of the Court of Appeals is reversed, and the case is remanded to that court for proceedings consistent with this opinion. It is so ordered.[Footnote *] Even while contending that UAW members should have brought their claims in the form of a class action, the Secretary argues that, at this stage of the litigation, certification of the members as a class would be inappropriate. Because we find that the UAW has standing to maintain this action on behalf of its affected members, we need not consider whether it would have been proper to treat this suit as a class action once the District Court had entered judgment.JUSTICE WHITE, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, dissenting.I disagree with the Court's conclusion that the District Court properly exercised jurisdiction over this case.Section 239(d) of the Trade Act of 1974, 19 U.S.C. 2311(d), provides that "[a] determination by a cooperating State agency with respect to entitlement to program benefits ... is subject to review in the same manner and to the same extent as determinations under the applicable State law [regarding unemployment compensation benefits] and only in that manner and to that extent." The legislative history explains that "[t]he bill would have the effect of channeling all questions arising from determinations by State agencies through the normal State review procedure." S. Rep. No. 93-1298, p. 139 (1974). Congress thus expressed the intent that once a claim for trade readjustment allowance (TRA) benefits is submitted to a cooperating state agency, the agency and state courts shall have exclusive jurisdiction to determine all questions, legal as well as factual, regarding the claim.The Court treats 239(d) as inapplicable to the present case on the ground that petitioners have not requested federal-court review of any particular benefit determination under the relevant federal guideline, but instead challenge the guideline itself. Ante, at 285. The distinction between a challenge to the guideline and a challenge to benefit determinations might be meaningful if petitioners had only challenged the application of the guideline to as-yet-unsubmitted claims, but that is not this case. At the time the District Court entered its judgment, the guideline at issue had been superseded for nearly 22 months, and the only live controversy related to the cooperating state agencies' applications of the guideline to already-submitted claims.1 Thus, this suit is precluded by Congress' clearly expressed intent to commit to the state review process the adjudication of all questions regarding TRA benefit claims under submission to a state agency.In explaining its holding that 239(d) does not apply to this case, the Court states that "although review of individual eligibility determinations in certain benefit programs may be confined by state and federal law to state administrative and judicial processes, claims that a program is being operated in contravention of a federal statute or the Constitution can nonetheless be brought in federal court." Ibid. If the Court means that this case could have been brought even if the underlying benefit claims were state unemployment compensation claims, I disagree. In such a case, petitioners' suit, which seeks declaratory and injunctive relief for the sole purpose of providing a predicate for the recovery of already-accrued benefit claims in state court, would have been barred by the Eleventh Amendment. Green v. Mansour, .2 Of course, the Eleventh Amendment does not directly apply in the present case, since TRA benefits are paid entirely from federal funds, but what 239(d) commands a federal court to do is treat questions arising from TRA benefit determinations as if they were questions arising from benefit determinations under state unemployment compensation law. Under that standard, this is not a case that should be adjudicated by the federal courts.3 Accordingly, I dissent from the Court's decision to address petitioners' claims on the merits.

The United States and North Dakota exercise concurrent jurisdiction over two military bases on which the Department of Defense (DoD) operates clubs and package stores. In 1986, in order to reduce the price the military pays for alcoholic beverages sold on such bases, Congress passed a statute directing that distilled spirits be "procured from the most competitive source, price and other factors considered." A DoD regulation also requires that alcohol purchases be made in such a manner as to obtain "the most advantageous contract, price and other considered factors." Although the regulation promises cooperation with state officials, it denies any obligation to submit to state control or to make purchases from in-state or state-prescribed suppliers. Since long before 1986, North Dakota has maintained a liquor importation and distribution system, under which, inter alia, out-of-state distillers/suppliers may sell only to state-licensed wholesalers or federal enclaves, while licensed wholesalers may sell to licensed retailers, other licensed wholesalers, and federal enclaves. One state regulation requires that all persons bringing liquor into the State file monthly reports, and another requires that out-of-state distillers selling directly to a federal enclave affix a label to each individual item indicating that the liquor is for consumption only within the enclave. After a number of out-of-state distillers and importers informed military officials that they would not deal with, or would increase prices to, the North Dakota bases because of the burden of complying with the two state regulations, the Government filed suit in the District Court seeking declaratory and injunctive relief against the regulations' application to liquor destined for federal enclaves. The court granted the State's motion for summary judgment, reasoning that there was no conflict between the state and federal regulations because the state regulations did not prevent the Government from obtaining beverages at the "lowest cost." The Court of Appeals reversed, holding that the state regulations impermissibly made out-of-state distillers less competitive with local wholesalers.Held: The judgment is reversed. 856 F.2d 1107, reversed. JUSTICE STEVENS, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE O'CONNOR, concluded that the state regulations are not invalid under the Supremacy Clause. Pp. 430-444. (a) Under 2 of the Twenty-first Amendment - which prohibits the transportation or importation of intoxicating liquor into a State for delivery or use therein in violation of state law - a State has no power to pass regulations that burden the Federal Government in an area or over a transaction that falls outside the State's jurisdiction, see, e. g., Collins v. Yosemite Park & Curry Co., , but has "virtually complete control" over the importation and sale of liquor and the structure of the liquor distribution system within the State's jurisdiction, see California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., . Since North Dakota's labeling and reporting regulations fall within the core of the State's power to regulate distribution under the Twenty-first Amendment and unquestionably serve a valid state interest in prohibiting the diversion of liquor from military bases into the civilian market, they are supported by a strong presumption of validity and should not be lightly set aside, see, e. g., Capital Cities Cable, Inc. v. Crisp, . Pp. 430-433. (b) The regulations do not violate the intergovernmental immunity doctrine. Although they may indirectly affect the Federal Government's liquor costs, they do not regulate the Government directly, since they operate only against suppliers. See, e. g., Helvering v. Gerhardt, . Nor do they discriminate against the Government or those with whom it deals, since the regulatory regime of which they are a part actually favors the Government. All other liquor retailers in the State are required to purchase from state-licensed wholesalers, whereas the Government alone has the option either to do so or to purchase from out-of-state wholesalers who have complied with the labeling and reporting requirements. Thus, the regulatory system does not discriminate with regard to the economic burdens that result from it. See Washington v. United States, . Pp. 434-439. (c) Congress has not here spoken with sufficient clarity to pre-empt North Dakota's attempt to protect its liquor distribution system. The language of the federal procurement statutes does not expressly pre-empt the state reporting and labeling regulations or address the problem of unlawful diversion. The state regulations do not directly prevent the Government from obtaining covered liquor "from the most competitive source, price and other factors considered," but merely raise the price charged by the most competitive source, out-of-state shippers. Pp. 439-441. (d) The state reporting and labeling requirements are not pre-empted by the DoD regulation. That regulation does not purport to carry a greater pre-emptive power than the federal statutes. Nor does the regulation's text purport to pre-empt any such laws. Its command to the military to consider various factors in determining "the most advantageous contract, price and other considered factors" cannot be understood to pre-empt state laws that merely have the incidental effect of raising costs for the military. Although the regulation does admonish that military cooperation with local authorities should not be construed as admitting an obligation to submit to state control or to buy from in-state or state-prescribed suppliers, the North Dakota regulations do not require such actions. Pp. 442-443. (e) The present record does not establish the precise burdens the reporting and labeling laws will impose on the Government, but there is no evidence that they will be substantial. It is for Congress, not this Court, to decide whether the federal interest in procuring the most inexpensive liquor outweighs the State's legitimate interest in preventing diversion. It would be an unwise and unwarranted extension of the inter-governmental immunity doctrine for the Court to hold that the burdens associated with the regulations - no matter how trivial - are sufficient to make them unconstitutional. Pp. 443-444. JUSTICE SCALIA, although agreeing that the availability to the Government of the option of buying liquor from in-state distributors saves the labeling regulation from invalidity, concluded that it does so not because the Government is thereby relieved of the burden of having to pay higher prices than anyone else, but only because that option is not a course of action that the Government has a constitutional right to avoid. The Twenty-first Amendment is binding on the Government like everyone else, and empowers North Dakota to require that all liquor sold for use in the State be purchased from a licensed in-state wholesaler. Since letting the Government choose between purchasing label-free bottles from such wholesalers and purchasing labeled bottles from out-of-state distillers provides the Government with greater rather than lesser prerogatives than those enjoyed by other liquor retailers, the labeling requirement does not discriminate against the United States and thus does not violate any federal immunity. Pp. 444-448. JUSTICE BRENNAN, joined by JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE KENNEDY, agreed that North Dakota's reporting regulation is lawful. Pp. 448, 465, n. 10. STEVENS, J., announced the judgment of the Court and delivered an opinion, in which REHNQUIST, C. J., and WHITE and O'CONNOR, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment, post, p. 444. BRENNAN, J., filed an opinion concurring in the judgment in part and dissenting in part, in which MARSHALL, BLACKMUN, and KENNEDY, JJ., joined, post, p. 448. Nicholas J. Spaeth, Attorney General of North Dakota, argued the cause for appellants. With him on the brief were Steven E. Noack and Laurie J. Loveland, Assistant Attorneys General.Michael R. Lazerwitz argued the cause for the United States. With him on the brief were Solicitor General Starr, Assistant Attorney General Peterson, Deputy Solicitor General Wallace, and Richard Farber.* [Footnote *] Briefs of amici curiae urging reversal were filed for the National Alcoholic Beverage Control Association et al. by James M. Goldberg; for the National Beer Wholesalers' Association, Inc., by Ernest Gellhorn and Erwin N. Griswold; and for the National Conference of State Legislatures et al. by Benna Ruth Solomon, Beate Bloch, and Barry Friedman.JUSTICE STEVENS announced the judgment of the Court and delivered an opinion, in which THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE O'CONNOR join.The United States and the State of North Dakota exercise concurrent jurisdiction over the Grand Forks Air Force Base and the Minot Air Force Base. Each sovereign has its own separate regulatory objectives with respect to the area over which it has authority. The Department of Defense (DoD), which operates clubs and package stores located on those bases, has sought to reduce the price that it pays for alcoholic beverages sold on the bases by instituting a system of competitive bidding. The State, which has established a liquor distribution system in order to promote temperance and ensure orderly market conditions, wishes to protect the integrity of that system by requiring out-of-state shippers to file monthly reports and to affix a label to each bottle of liquor sold to a federal enclave for domestic consumption. The clash between the State's interest in preventing the diversion of liquor and the federal interest in obtaining the lowest possible price forms the basis for the Federal Government's Supremacy Clause and pre-emption challenges to the North Dakota regulations. IThe United States sells alcoholic beverages to military personnel and their families at clubs and package stores on its military bases. The military uses revenue from these sales to support a morale, welfare, and recreation program for personnel and their families. See 32 CFR 261.3 (1989); DoD Directive 1015.1 (Aug. 19, 1981). Before December 1985, no federal statute governed the purchase of liquor for these establishments. From December 19, 1985, to October 19, 1986, federal law required military bases to purchase alcoholic beverages only within their home State. See Pub. L. 99-190, 8099, 99 Stat. 1219. Effective October 30, 1986, Congress eliminated the requirement that the military purchase liquor from within the State and directed that distilled spirits be "procured from the most competitive source, price and other factors considered." Pub. L. 99-661, 313, 100 Stat. 3853, 10 U.S.C. 2488(a).1 In accordance with this statute, the DoD has developed a joint-military purchasing program to buy liquor in bulk directly from the Nation's primary distributors who offer the lowest possible prices. Purchases are made pursuant to a DoD regulation which provides:"`The Department of Defense shall cooperate with local, state, and federal officials to the degree that their duties relate to the provisions of this chapter. However, the purchase of all alcoholic beverages for resale at any camp, post, station, base, or other DoD installation within the United States shall be in such a manner and under such conditions as shall obtain for the government the most advantageous contract, price and other considered factors. These other factors shall not be construed as meaning any submission to state control, nor shall cooperation be construed or represented as an admission of any legal obligation to submit to state control, pay state or local taxes, or purchase alcoholic beverages within geographical boundaries or at prices or from suppliers prescribed by any state.'" 32 CFR 261.4 (1989). Since long before the enactment of the most recent procurement statute, the State of North Dakota has regulated the importation and distribution of alcoholic beverages within its borders. See N. D. Cent. Code ch. 5 (1987 and Supp. 1989). Under the State's regulatory system, there are three levels of liquor distributors: out-of-state distillers/suppliers, state-licensed wholesalers, and state-licensed retailers. Distillers/suppliers may sell to only licensed wholesalers or federal enclaves. N. D. Admin. Code 84-02-01-05(2) (1986). Licensed wholesalers, in turn, may sell to licensed retailers, other licensed wholesalers, and federal enclaves. N. D. Cent. Code 5-03-01 (1987). Taxes are imposed at both levels of distribution. N. D. Cent. Code 5-03-07 (1987); N. D. Cent. Code ch. 57-39.2 (Supp. 1989). In order to monitor the importation of liquor, the State since 1978 has required all persons bringing liquor into the State to file monthly reports documenting the volume of liquor they have imported. The reporting regulation provides:"All persons sending or bringing liquor into North Dakota shall file a North Dakota Schedule A Report of all shipments and returns for each calender month with the state treasurer. The report must be postmarked on or before the fifteenth day of the following month." N. D. Admin. Code 84-02-01-05(1) (1986). Since 1986, the State has also required out-of-state distillers who sell liquor directly to a federal enclave to affix labels to each individual item, indicating that the liquor is for domestic consumption only within the federal enclave. The labels may be purchased from the state treasurer for a small sum or printed by the distillers/suppliers themselves according to a state-approved format. App. 34. The labeling regulation provides:"All liquor destined for delivery to a federal enclave in North Dakota for domestic consumption and not transported through a licensed North Dakota wholesaler for delivery to such bona fide federal enclave in North Dakota shall have clearly identified on each individual item that such shall be for consumption within the federal enclave exclusively. Such identification must be in a form and manner prescribed by the state treasurer." N. D. Admin. Code 84-02-01-05(7) (1986). Within the State of North Dakota, the United States operates two military bases: Grand Forks Air Force Base and Minot Air Force Base. The State and Federal Government exercise concurrent jurisdiction over both.2 Shortly after the effective date of the procurement statute permitting the military to make purchases from out of state, the state treasurer conducted a meeting with out-of-state suppliers to explain the labeling and reporting requirements. App. 34. Five out-of-state distillers and importers thereupon informed federal military procurement officials that they would not ship liquor to the North Dakota bases because of the burden of complying with the North Dakota regulations.3 A sixth supplier, Kobrand Importers, Inc., increased its prices from between $0.85 and $20.50 per case to reflect the cost of labeling and reporting. The United States instituted this action in the United States District Court for the District of North Dakota seeking declaratory and injunctive relief against the application of the State's regulations to liquor destined for federal enclaves. The District Court denied the United States' cross-motion for summary judgment and granted the States' motion. The court reasoned that there was no conflict between the state and federal regulations because the state regulations did not prevent the Government from obtaining beverages at the "lowest cost." 675 F. Supp. 555, 557 (1987). A divided United States Court of Appeals for the Eighth Circuit reversed. 856 F.2d 1107 (1988). While recognizing that "nothing in the record compels us to believe that the regulations are a pretext to require in-state purchases," id., at 1113, the majority held that the regulations impermissibly made out-of-state distillers less competitive with local wholesalers. Ibid. Chief Judge Lay argued in dissent that the effect on the Federal Government was a permissible incident of regulations passed pursuant to the State's powers under the Twenty-first Amendment. Id., at 1115-1116. We noted probable jurisdiction, , and now reverse.IIThe Court has considered the power of the States to pass liquor control regulations that burden the Federal Government in four cases since the ratification of the Twenty-first Amendment.4 See Collins v. Yosemite Park & Curry Co., ; Hostetter v. Idlewild Bon Voyage Liquor Corp., ; United States v. Mississippi Tax Comm'n, (Mississippi Tax Comm'n I); United States v. Mississippi Tax Comm'n, (Mississippi Tax Comm'n II); see also Johnson v. Yellow Cab Transit Co., . In each of those cases, we concluded that the State has no authority to regulate in an area or over a transaction that fell outside of its jurisdiction. In Collins, we held that the Twenty-first Amendment did not give the States the power to regulate the use of alcohol within a national park over which the Federal Government had exclusive jurisdiction. In Hostetter, we held that the Twenty-first Amendment conferred no authority to license the sale of tax-free liquors at an airport for delivery to foreign destinations made under the supervision of the United States Bureau of Customs. Mississippi Tax Comm'n I held that the State had no authority to regulate a transaction between an out-of-state liquor supplier and a federal military base within the exclusive federal jurisdiction. And, in Mississippi Tax Comm'n II, we held that the State has no authority to tax directly a federal instrumentality on an enclave over which the United States exercised concurrent jurisdiction.At the same time, however, within the area of its jurisdiction, the State has "virtually complete control" over the importation and sale of liquor and the structure of the liquor distribution system. See California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., ; see also Capital Cities Cable, Inc. v. Crisp, ; California Board of Equalization v. Young's Market Co., . The Court has made clear that the States have the power to control shipments of liquor during their passage through their territory and to take appropriate steps to prevent the unlawful diversion of liquor into their regulated intrastate markets. In Hostetter, we stated that our decision in Collins, striking down the California Alcoholic Beverage Control Act as applied to an exclusive federal reservation, might have been otherwise if "California had sought to regulate or control the transportation of the liquor there involved from the time of its entry into the State until its delivery at the national park, in the interest of preventing unlawful diversion into her territory." 377 U.S., at 333. We found that the state licensing law there under attack was unlawful because New York "ha[d] not sought to regulate or control the passage of intoxicants through her territory in the interest of preventing their unlawful diversion into the internal commerce of the State. As the District Court emphasized, this case does not involve `measures aimed at preventing unlawful diversion or use of alcoholic beverages within New York.' 212 F. Supp., at 386." Id., at 333-334.In Mississippi Tax Comm'n I, supra, after holding that the State could not impose its normal markup on sales to the military bases, we added that "a State may, in the absence of conflicting federal regulation, properly exercise its police powers to regulate and control such shipments during their passage through its territory insofar as necessary to prevent the `unlawful diversion' of liquor `into the internal commerce of the State.'" 412 U.S., at 377-378 (citations omitted).The two North Dakota regulations fall within the core of the State's power under the Twenty-first Amendment. In the interest of promoting temperance, ensuring orderly market conditions, and raising revenue, the State has established a comprehensive system for the distribution of liquor within its borders. That system is unquestionably legitimate. See Carter v. Virginia, ; California Board of Equalization v. Young's Market Co., . The requirements that an out-of-state supplier which transports liquor into the State affix a label to each bottle of liquor destined for delivery to a federal enclave and that it report the volume of liquor it has transported are necessary components of the regulatory regime. Because liquor sold at Grand Forks and Minot Air Force Bases has been purchased directly from out-of-state suppliers, neither the markup nor the state taxes paid by liquor wholesalers and retailers in North Dakota is reflected in the military purchase price. Moreover, the federal enclaves are not governed by state laws with respect to the sale of intoxicants; the military establishes the type of liquor it sells, the minimum age of buyers, and the days and times its package stores will be open. The risk of diversion into the retail market and disruption of the liquor distribution system is thus both substantial and real.5 It is necessary for the State to record the volume of liquor shipped into the State and to identify those products which have not been distributed through the State's liquor distribution system. The labeling and reporting requirements unquestionably serve valid state interests.6 Given the special protection afforded to state liquor control policies by the Twenty-first Amendment, they are supported by a strong presumption of validity and should not be set aside lightly. See, e. g., Capital Cities Cable, Inc. v. Crisp, 467 U.S., at 714. IIIState law may run afoul of the Supremacy Clause in two distinct ways: The law may regulate the Government directly or discriminate against it, see McCulloch v. Maryland, 4 Wheat. 316, 425-437 (1819), or it may conflict with an affirmative command of Congress. See Gibbons v. Ogden, 9 Wheat. 1, 211 (1824); see also Hillsborough County v. Automated Medical Laboratories, Inc., . The Federal Government's attack on the regulations is based on both grounds of invalidity.The Government argues that the state provisions governing the distribution of liquor by out-of-state shippers "regulate" governmental actions and are therefore invalid directly under the Supremacy Clause. The argument is unavailing. State tax laws, licensing provisions, contract laws, or even "a statute or ordinance regulating the mode of turning at the corner of streets," Johnson v. Maryland, , no less than the reporting and labeling regulations at issue in this case, regulate federal activity in the sense that they make it more costly for the Government to do its business. At one time, the Court struck down many of these state regulations, see Panhandle Oil Co. v. Mississippi ex rel. Knox, (state tax on military contractor); Dobbins v. Commissioners of Erie County, 16 Pet. 435 (1842) (tax on federal employee); Gillespie v. Oklahoma, (tax on lease of federal property); Weston v. City Council of Charleston, 2 Pet. 449 (1829) (tax on federal bond), on the theory that they interfered with "the constitutional means which have been legislated by the government of the United States to carry into effect its powers." Dobbins, 16 Pet., at 449. Over 50 years ago, however, the Court decisively rejected the argument that any state regulation which indirectly regulates the Federal Government's activity is unconstitutional, see James v. Dravo Contracting Co., , and that view has now been "thoroughly repudiated." South Carolina v. Baker, ; see also California Board of Equalization v. Sierra Summit, Inc., ; Cotton Petroleum Corp. v. New Mexico, .The Court has more recently adopted a functional approach to claims of governmental immunity, accommodating of the full range of each sovereign's legislative authority and respectful of the primary role of Congress in resolving conflicts between the National and State Governments. See United States v. County of Fresno, ; cf. Garcia v. San Antonio Metropolitan Transit Auth., . Whatever burdens are imposed on the Federal Government by a neutral state law regulating its suppliers "are but normal incidents of the organization within the same territory of two governments." Helvering v. Gerhardt, ; see also South Carolina v. Baker, 485 U.S., at 520-521; Penn Dairies, Inc. v. Milk Control Comm'n of Pennsylvania, ; Graves v. New York ex rel. O'Keefe, . A state regulation is invalid only if it regulates the United States directly or discriminates against the Federal Government or those with whom it deals. South Carolina v. Baker, 485 U.S., at 523; County of Fresno, 429 U.S., at 460. In addition, the question whether a state regulation discriminates against the Federal Government cannot be viewed in isolation. Rather, the entire regulatory system should be analyzed to determine whether it is discriminatory "with regard to the economic burdens that result." Washington v. United States, . Claims to any further degree of immunity must be resolved under principles of congressional pre-emption. See, e. g., Penn Dairies, Inc. v. Milk Control Comm'n, 318 U.S., at 271; James v. Dravo Contracting Co., 302 U.S., at 161.7 Application of these principles to the North Dakota regulations demonstrates that they do not violate the intergovernmental immunity doctrine. There is no claim in this case, nor could there be, that North Dakota regulates the Federal Government directly. See United States v. New Mexico, ; Hancock v. Train, ; Mississippi Tax Comm'n II, 421 U.S., at 608-610; Mayo v. United States, . Both the reporting requirement and the labeling regulation operate against suppliers, not the Government, and concerns about direct interference with the Federal Government, see City of Detroit v. Murray Corp. of America, (opinion of Frankfurter, J.), therefore are not implicated. In this respect, the regulations cannot be distinguished from the price control regulations and taxes imposed on Government contractors that we have repeatedly upheld against constitutional challenge. See United States v. City of Detroit, ; Penn Dairies, Inc., 318 U.S., at 279-280; Alabama v. King & Boozer, .8 Nor can it be said that the regulations discriminate against the Federal Government or those with whom it deals. The nondiscrimination rule finds its reason in the principle that the States may not directly obstruct the activities of the Federal Government. McCulloch v. Maryland, 4 Wheat., at 425-437.9 Since a regulation imposed on one who deals with the Government has as much potential to obstruct governmental functions as a regulation imposed on the Government itself, the Court has required that the regulation be one that is imposed on some basis unrelated to the object's status as a Government contractor or supplier, that is, that it be imposed equally on other similarly situated constituents of the State. See, e. g., United States v. County of Fresno, 429 U.S., at 462-464. Moreover, in analyzing the constitutionality of a state law, it is not appropriate to look to the most narrow provision addressing the Government or those with whom it deals. A state provision that appears to treat the Government differently on the most specific level of analysis may, in its broader regulatory context, not be discriminatory. We have held that "[t]he State does not discriminate against the Federal Government and those with whom it deals unless it treats someone else better than it treats them." Washington v. United States, 460 U.S., at 544-545.10 The North Dakota liquor control regulations, the regulatory regime of which the Government complains, do not disfavor the Federal Government but actually favor it. The labeling and reporting regulations are components of an extensive system of statewide regulation that furthers legitimate interests in promoting temperance and controlling the distribution of liquor, in addition to raising revenue. The system applies to all liquor retailers in the State. In this system, the Federal Government is favored over all those who sell liquor in the State. All other liquor retailers are required to purchase from state-licensed wholesalers, who are legally bound to comply with the State's liquor distribution system. N. D. Cent. Code 5-03-01.1 (1987). The Government has the option, like the civilian retailers in the State, to purchase liquor from licensed wholesalers. However, alone among retailers in the State, the Government also has the option to purchase liquor from out-of-state wholesalers if those wholesalers comply with the labeling and reporting regulations. The system does not discriminate "with regard to the economic burdens that result." Washington, 460 U.S., at 544. A regulatory regime which so favors the Federal Government cannot be considered to discriminate against it.IVThe conclusion that the labeling regulation does not violate the intergovernmental immunity doctrine does not end the inquiry into whether the regulation impermissibly interferes with federal activities. Congress has the power to confer immunity from state regulation on Government suppliers beyond that conferred by the Constitution alone, see, e. g., United States v. New Mexico, 455 U.S., at 737-738; Penn Dairies, Inc., 318 U.S., at 275, even when the state regulation is enacted pursuant to the State's powers under the Twenty-first Amendment. Capital Cities Cable, Inc. v. Crisp, 467 U.S., at 713. But when the Court is asked to set aside a regulation at the core of the State's powers under the Twenty-first Amendment, as when it is asked to recognize an implied exemption from state taxation, see Rockford Life Ins. Co. v. Illinois Dept. of Revenue, , it must proceed with particular care. Capital Cities Cable, 467 U.S., at 714. Congress has not here spoken with sufficient clarity to pre-empt North Dakota's attempt to protect its liquor distribution system.The Government's claim that the regulations are pre-empted rests upon a federal statute and federal regulation. The federal statute is 10 U.S.C. 2488, which governs the procurement of alcoholic beverages by nonappropriated fund instrumentalities. It provides simply that purchases of alcoholic beverages for resale on military installations "shall be made from the most competitive source, price and other factors considered," 2488(a)(1), but that malt beverages and wine shall be purchased from sources within the State in which the installation is located. It may be inferred from the latter provision as well as from the provision, elsewhere in the Code, that alcoholic beverages purchased for resale in Alaska and Hawaii must be purchased in state, Act of Oct. 30, 1986, Pub. L. 99-591, 9090, 100 Stat. 3341-116, that Congress intended for the military to be free in the other 48 States to purchase liquor from out-of-state wholesalers. It follows that the States may not directly restrict the military from purchasing liquor out of state. That is the central lesson of our decisions in Paul v. United States, ; United States v. Georgia Public Service Comm'n, ; Public Utilities Comm'n of California v. United States, ; and Leslie Miller, Inc. v. Arkansas, , in which we invalidated state regulations that prohibited what federal law required. We stated in Paul that there was a "collision ... clear and acute," between the federal law which required competitive bidding among suppliers and the state law which directly limited the extent to which suppliers could compete. 371 U.S., at 253.It is one thing, however, to say that the State may not pass regulations which directly obstruct federal law; it is quite another to say that they cannot pass regulations which incidentally raise the costs to the military. Any number of state laws may make it more costly for the military to purchase liquor. As Chief Judge Lay observed in dissent, "[c]ompliance with regulations regarding the importation of raw materials, general operations of the distillery or brewery, treatment of employees, bottling, and shipping necessarily increase the cost of liquor." 856 F.2d, at 1116. Highway tax laws and safety laws may make it more costly for the military to purchase from out-of-state shippers.The language used in the 1986 procurement statute does not expressly pre-empt any of these state regulations or address the problem of unlawful diversion of liquor from military bases into the civilian market. It simply states that covered alcoholic beverages shall be obtained from the most competitive source, price and other factors considered. As the District Court observed, however, "`[l]owest cost' is a relative term." 675 F. Supp., at 557. The fact that the reporting and labeling regulations, like safety laws or minimum wage laws, increase the costs for out-of-state shippers does not prevent the Government from obtaining liquor at the most competitive price, but simply raises that price. The procurement statute does not cut such a wide swath through state law as to invalidate the reporting and labeling regulations.In this case the most competitive source for alcoholic beverages are out-of-state distributors whose prices are lower than those charged by North Dakota wholesalers regardless of whether the labeling and reporting requirements are enforced. The North Dakota regulations, which do not restrict the parties from whom the Government may purchase liquor or its ability to engage in competitive bidding, but at worst raise the costs of selling to the military for certain shippers, do not directly conflict with the federal statute. VThe DoD regulation restates, in slightly different language,11 the statutory requirement that distilled spirits be "procured from the most competitive source, price and other factors considered," but it does not purport to carry a greater pre-emptive power than the statutory command itself. It is Congress - not the DoD - that has the power to pre-empt otherwise valid state laws, and there is no language in the relevant statute that either pre-empts state liquor distribution laws or delegates to the DoD the power to pre-empt such state laws.12 Nor does the text of the DoD regulation itself purport to pre-empt any state laws. See California Coastal Comm'n v. Granite Rock Co., ; Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S., at 717-718. It directs the military to consider various factors in determining "the most advantageous contract, price and other considered factors," but that command cannot be understood to pre-empt state laws that have the incidental effect of raising costs for the military. Indeed, the regulation specifically envisions some regulation by state law, for it provides that the Department "shall cooperate with local [and] state ... officials ... to the degree that their duties relate to the provisions of this chapter." The regulation does admonish that such cooperation should not be construed as an admission that the military is obligated to submit to state control or required to buy from suppliers located within the State or prescribed by the State. The North Dakota regulations, however, do not require the military to submit to state control or to purchase alcoholic beverage from suppliers within the State or prescribed by the State. The DoD regulation has nothing to say about labeling or reporting by out-of-state suppliers.When the Court is confronted with questions relating to military discipline and military operations, we properly defer to the judgment of those who must lead our Armed Forces in battle. But in questions relating to the allocation of power between the Federal and State Governments on civilian commercial issues, we heed the command of Congress without any special deference to the military's interpretation of that command.The present record does not establish the precise burdens the reporting and labeling regulations will impose on the Government, but there is no evidence that they will be substantial. The reporting requirement has been in effect since 1978 and there is no evidence that it has caused any supplier to raise its costs or stop supplying the military. Although the labeling regulation has caused a few suppliers either to adjust their prices or to cease direct shipments to the bases, there has been no showing that there are not other suppliers willing to enter the market and there is no indication that the Government has made any attempt to secure other out-of-state suppliers. The cost of the labels is approximately three to five cents if purchased from the state treasurer, and the distillers have the right to print their own labels if they prefer. App. 34. Even in the initial stage of enforcing the requirement for the two bases in North Dakota, various distillers and suppliers have already notified the state treasurer that they intend to comply with the new regulations. Ibid. And, even if its worst predictions are fulfilled, the military will still be the most favored customer in the State.It is Congress, not this Court, which is best situated to evaluate whether the federal interest in procuring the most inexpensive liquor outweighs the State's legitimate interest in preventing diversion. Congress has already effected a compromise by excluding beer and wine and the States of Hawaii and Alaska from the 1986 statute. It may also decide to prohibit labels entirely or prescribe their use on a nationwide basis. It would be both an unwise and an unwarranted extension of the intergovernmental immunity doctrine for this Court to hold that the burdens associated with the labeling and reporting requirements - no matter how trivial they may prove to be - are sufficient to make them unconstitutional. The judgment of the Court of Appeals is reversed. It is so ordered.