Datasets:

rzhang123

/

UScourt

like 0

By will probated in 1831, Stephen Girard left a fund to the City of Philadelphia in trust for the erection, maintenance and operation of a "college," providing that it was to admit "as many poor white male orphans, between the ages of six and ten years, as the said income shall be adequate to maintain." The college was established and is now being operated by a Board appointed under a Pennsylvania statute. Held: The Board is an agency of the State, and its refusal to admit Negro boys to the college solely because of their race violates the Fourteenth Amendment. Brown v. Board of Education, . Pp. 230-231. 386 Pa. 548, 127 A. 2d 287, reversed and remanded.Thomas D. McBride, Attorney General, and Lois G. Forer, Deputy Attorney General, for the Commonwealth of Pennsylvania, Abraham L. Freedman and David Berger for the City of Philadelphia et al., and William T. Coleman, Jr., Raymond Pace Alexander and Louis Pollak for Foust et al., appellants.Owen B. Rhoads for appellee.PER CURIAM.The motion to dismiss the appeal for want of jurisdiction is granted. 28 U.S.C. 1257 (2). Treating the papers whereon the appeal was taken as a petition for writ of certiorari, 28 U.S.C. 2103, the petition is granted. 28 U.S.C. 1257 (3).Stephen Girard, by a will probated in 1831, left a fund in trust for the erection, maintenance, and operation of a "college." The will provided that the college was to admit "as many poor white male orphans, between the ages of six and ten years, as the said income shall be adequate to maintain." The will named as trustee the City of Philadelphia. The provisions of the will were carried out by the State and City and the college was opened in 1848. Since 1869, by virtue of an act of the Pennsylvania Legislature, the trust has been administered and the college operated by the "Board of Directors of City Trusts of the City of Philadelphia." Pa. Laws 1869, No. 1258, p. 1276; Purdon's Pa. Stat. Ann., 1957, Tit. 53, 16365.In February 1954, the petitioners Foust and Felder applied for admission to the college. They met all qualifications except that they were Negroes. For this reason the Board refused to admit them. They petitioned the Orphans' Court of Philadelphia County for an order directing the Board to admit them, alleging that their exclusion because of race violated the Fourteenth Amendment to the Constitution. The State of Pennsylvania and the City of Philadelphia joined in the suit also contending the Board's action violated the Fourteenth Amendment. The Orphans' Court rejected the constitutional contention and refused to order the applicants' admission. 4 D. & C. 2d 671 (Orph. Ct. Philadelphia). This was affirmed by the Pennsylvania Supreme Court. 386 Pa. 548, 127 A. 2d 287.The Board which operates Girard College is an agency of the State of Pennsylvania. Therefore, even though the Board was acting as a trustee, its refusal to admit Foust and Felder to the college because they were Negroes was discrimination by the State. Such discrimination is forbidden by the Fourteenth Amendment. Brown v. Board of Education, . Accordingly, the judgment of the Supreme Court of Pennsylvania is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

[Footnote *] Together with No. 90-6588, Ayers et al. v. Fordice, Governor of Mississippi, et al., also on certiorari to the same court. Despite this Court's decisions in Brown v. Board of Education, (Brown I), and Brown v. Board of Education, (Brown II), Mississippi continued its policy of de jure segregation in its public university system, maintaining five almost completely white and three almost exclusively black universities. Private petitioners initiated this lawsuit in 1975, and the United States intervened, charging that state officials had failed to satisfy their obligation under, inter alia, the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964 to dismantle the dual system. In an attempt to reach a consensual resolution through voluntary dismantlement, the State Board of Trustees, in 1981, issued "Mission Statements" classifying the three flagship white institutions during the de jure period as "comprehensive" universities having the most varied programs and offering doctoral degrees, redesignating one of the black colleges as an "urban" university with limited research and degree functions geared toward its urban setting, and characterizing the rest of the colleges as "regional" institutions which functioned primarily in an undergraduate role. When, by the mid-1980's, the student bodies at the white universities were still predominantly white, and the racial composition at the black institutions remained largely black, the suit proceeded to trial. After voluminous evidence was presented on a full range of educational issues, the District Court entered extensive findings of fact on, among other things, admissions requirements, institutional classification and missions assignments, duplication of programs, and funding. Its conclusions of law included rulings that, based on its interpretation of Bazemore v. Friday, , and other cases, the affirmative duty to desegregate in the higher education context does not contemplate either restricting student choice or the achievement of any degree of racial balance; that current state policies and practices should be examined to ensure that they are racially neutral, developed and implemented in good faith, and do not substantially contribute to the racial identifiability of individual institutions; and that Mississippi's current actions demonstrate conclusively that the State is fulfilling its affirmative duty to disestablish the former de jure segregated system. In affirming, the Court of Appeals left largely undisturbed the lower court's findings and conclusions.Held: 1. The courts below did not apply the correct legal standard in ruling that Mississippi has brought itself into compliance with the Equal Protection Clause. If the State perpetuates policies and practices traceable to its prior de jure dual system that continue to have segregative effects - whether by influencing student enrollment decisions or by fostering segregation in other facets of the university system - and such policies are without sound educational justification and can be practicably eliminated, the policies violate the Clause, even though the State has abolished the legal requirement that the races be educated separately and has established racially neutral policies not animated by a discriminatory purpose. Bazemore v. Friday, supra, distinguished. The proper inquiry asks whether existing racial identifiability is attributable to the State, see, e.g., Freeman v. Pitt, , and examines a wide range of factors to determine whether the State has perpetuated its former segregation in any facet of its system, see, e.g. Board of Ed. of Oklahoma City Pub. Schools v. Dowell, . Because the District Court's standard did not ask the appropriate questions, the Court of Appeals erred in affirming the lower court's judgment. Pp. 727-732. 2. When the correct legal standard is applied, it becomes apparent from the District Court's undisturbed factual findings that there are several surviving aspects of Mississippi's prior dual system which are constitutionally suspect; for even though such policies may be race neutral on their face, they substantially restrict a person's choice of which institution to enter, and they contribute to the racial identifiability of the eight public universities. Mississippi must justify these policies, as well as any others that are susceptible to challenge by petitioners on remand under the proper standard, or eliminate them. Pp. 732-743. (a) Although the State's current admissions policy requiring higher minimum composite scores on the American College Testing Program (ACT) for the five historically white institutions than for the three historically black universities derived from policies enacted in the 1970's to redress the problem of student unpreparedness, the policy is constitutionally suspect, because it was originally enacted in 1963 by three of the white universities to discriminate against black students, who, at the time, had an average ACT score well below the required minimum. The policy also has present discriminatory effects, since a much higher percentage of white than of black high school seniors recently scored at or above the minimum necessary to enter a white university. The segregative effect of this standard is especially striking in light of the differences in minimum required entrance scores among the white and black regional universities and colleges with dissimilar programmatic missions, and yet the courts below made little effort to justify those disparities in educational terms or to inquire whether it was practicable to eliminate them. The State's refusal to consider high school grade performance along with ACT scores is also constitutionally problematic, since the ACT's administering organization discourages use of ACT scores alone, the disparity between black and white students' high school grade averages is much narrower than the gap between their average ACT scores, most States use high school grades and other indicators along with standardized test scores, and Mississippi's approach was not adequately justified or shown to be unsusceptible to elimination without eroding sound educational policy. Pp. 733-738. (b) The District Court's treatment of the widespread duplication of programs at the historically black and historically white Mississippi universities is problematic for several reasons. First, it can hardly be denied that such duplication represents a continuation of the "separate but equal" treatment required by the prior dual system, and yet the court's holding that petitioners could not establish a constitutional defect shifted the burden of proof away from the State, in violation of Brown II, supra, at 300, and its progeny. Second, implicit in the court's finding of "unnecessary" duplication is the absence of any educational justification, and the fact that some, if not all, duplication may be practically eliminated. Finally, by treating this issue in isolation, the court failed to consider the combined effects of unnecessary duplication with other policies in evaluating whether the State had met its constitutional duty. Pp. 738-739. (c) Mississippi's 1981 mission assignments scheme has as its antecedents the policies enacted to perpetuate racial separation during the de jure period. When combined with the differential admission practices and unnecessary program duplication, it is likely that the mission designations interfere with student choice, and tend to perpetuate the segregated system. On remand, the court should inquire whether it would be practicable and consistent with sound educational practices to eliminate any such discriminatory effects. Pp. 739-741. (d) Also on remand, the court should inquire and determine whether the State's retention and operation of all eight higher educational institutions in an attempt to bring itself into constitutional compliance actually affects student choice and perpetuates the de jure system, whether maintenance of each of the universities is educationally justifiable, and whether one or more of them can practicably be closed or merged with other existing institutions. Though certainly closure of one or more institutions would decrease the system's discriminatory effects, the present record is inadequate to demonstrate whether such action is constitutionally required. Pp. 741-742. (e) In addition to the foregoing policies and practices, the full range of the State's higher educational activities, including its funding of the three historically black schools, must be examined on remand under the proper standard to determine whether the State is taking the necessary steps to dismantle its prior system. Pp. 742-743. 914 F.2d 676, vacated and remanded.WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and BLACKMUN, STEVENS, O'CONNOR, KENNEDY, SOUTER, and THOMAS, JJ., joined. O'CONNOR, J., post, p. 743, and THOMAS, J., post, p. 745, filed concurring opinions. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 749.Solicitor General Starr argued the cause for the United States. With him on the briefs were Assistant Attorney General Dunne, Deputy Solicitor General Roberts, Roger Clegg and Barbara S. Drake, Deputy Assistant Attorneys General, and Jeffrey P. Minear. Alvin O. Chambliss, Jr., argued the cause for petitioners in No. 90-6588. with him on the briefs were Lawrence Young and Robert Pressman.William F. Goodman, Jr., argued the cause for respondents in both cases. With him on the brief were Mike Moore, Attorney General of Mississippi, and Paul H. Stephenson III and William F. Ray, Special Assistant Attorneys General.Fn Fn Briefs of amici curiae urging reversal were filed for the State of Tennessee by Charles W. Burson, Attorney General of Tennessee, John Knox Walkup, Solicitor General, and Christine Modisher, Assistant Attorney General; for Alcorn State University by Gilbert Kujovich; for Jackson State University by Deborah McDonald and Carrol Rhodes; for the NAACP Legal Defense and Educational Fund, Inc., et al. by Julius LeVonne Chambers, Charles Stephen Ralston, Norman J. Chachkin, John W. Garland, Janell M. Byrd, and John A. Powell; and for the National Bar Association et al. by J. Clay Smith, Jr., and Herbert O. Reid, Sr.Briefs of amici curiae urging affirmance were filed for the Board of Trustees of the University of Alabama by C. Glenn Powell and Stanley J. Murphy; and for Charles E. "Buddy" Roemer III, Governor of the State of Louisiana, et al. by John N. Kennedy, Joseph J. Levin, Jr., Margaret E. Woodward, and W. Shelby McKenzie.Joseph A. Califano, Jr., pro se, and David S. Tatel filed a brief of amicus curiae for Joseph A. Califano, Jr., et al.JUSTICE WHITE delivered the opinion of the Court.In 1954, this Court held that the concept of "`separate but equal'" has no place in the field of public education. Brown v. Board of Education, (Brown I). The following year, the Court ordered an end to segregated public education "with all deliberate speed." Brown v. Board of Education, (Brown II), (1955). Since these decisions, the Court has had many occasions to evaluate whether a public school district has met its affirmative obligation to dismantle its prior de jure segregated system in elementary and secondary schools. In these cases we decide what standards to apply in determining whether the State of Mississippi has met this obligation in the university context.IMississippi launched its public university system in 1848 by establishing the University of Mississippi, an institution dedicated to the higher education exclusively of white persons. In succeeding decades, the State erected additional postsecondary, single-race educational facilities. Alcorn State University opened its doors in 1871 as "an agricultural college for the education of Mississippi's black youth." Ayers v. Allain, 674 F.Supp. 1523, 1527 (ND Miss. 1987). Creation of four more exclusively white institutions followed: Mississippi State University (1880), Mississippi University for Women (1885), University of Southern Mississippi (1912), and Delta State University (1925). The State added two more solely black institutions in 1940 and 1950: in the former year, Jackson State University, which was charged with training "black teachers for the black public schools," id., at 1528; and in the latter year, Mississippi Valley State University, whose functions were to educate teachers primarily for rural and elementary schools and to provide vocational instruction to black students.Despite this Court's decisions in Brown I and Brown II, Mississippi's policy of de jure segregation continued. The first black student was not admitted to the University of Mississippi until 1962, and then only by court order. See Meredith v. Fair, 306 F.2d 374 (CA5), cert. denied, , enf'd, 313 F.2d 532 (1962) (en banc) (per curiam). For the next 12 years, the segregated public university system in the State remained largely intact. Mississippi State University, Mississippi University for Women, University of Southern Mississippi, and Delta State University each admitted at least one black student during these years, but the student composition of these institutions was still almost completely white. During this period, Jackson State and Mississippi Valley State were exclusively black; Alcorn State had admitted five white students by 1968.In 1969, the United States Department of Health, Education and Welfare (HEW) initiated efforts to enforce Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d.1 HEW requested that the State devise a plan to disestablish the formerly de jure segregated university system. In June, 1973, the Board of Trustees of State Institutions of Higher Learning submitted a plan of compliance, which expressed the aims of improving educational opportunities for all Mississippi citizens by setting numerical goals on the enrollment of other-race students at state universities, hiring other-race faculty members, and instituting remedial programs and special recruitment efforts to achieve those goals. App. 898-900. HEW rejected this Plan as failing to comply with Title VI because it did not go far enough in the areas of student recruitment and enrollment, faculty hiring, elimination of unnecessary program duplication, and institutional funding practices to ensure that "a student's choice of institution or campus, henceforth, will be based on other than racial criteria." Id., at 205. The Board reluctantly offered amendments, prefacing its reform pledge to HEW with this statement: With deference, it is the position of the Board of Trustees ... that the Mississippi system of higher education is in compliance with Title VI of the Civil Rights Act of 1964. Id., at 898. At this time, the racial composition of the State's universities had changed only marginally from the levels of 1968, which were almost exclusively single race.2 Though HEW refused to accept the modified Plan, the Board adopted it anyway. 674 F.Supp., at 1530. But even the limited effects of this Plan in disestablishing the prior de jure segregated system were substantially constricted by the state legislature, which refused to fund it until Fiscal Year 1978, and even then at well under half the amount sought by the Board. App. 896-897, 1444-1445, 1448-1449.3 Private petitioners initiated this lawsuit in 1975. They complained that Mississippi had maintained the racially segregative effects of its prior dual system of postsecondary education in violation of the Fifth, Ninth, Thirteenth, and Fourteenth Amendments, 42 U.S.C. 1981 and 1983, and Title VI of the Civil Rights Act of 1964, 42 U.S.C. 2000d. Shortly thereafter, the United States filed its complaint in intervention, charging that state officials had failed to satisfy their obligation under the Equal Protection Clause of the Fourteenth Amendment and Title VI to dismantle Mississippi's dual system of higher education.After this lawsuit was filed, the parties attempted for 12 years to achieve a consensual resolution of their differences through voluntary dismantlement by the State of its prior separated system. The board of trustees implemented reviews of existing curricula and program "mission" at each institution. In 1981, the Board issued "Mission Statements" that identified the extant purpose of each public university. These "missions" were clustered into three categories: comprehensive, urban, and regional. "Comprehensive" universities were classified as those with the greatest existing resources and program offerings. All three such institutions (University of Mississippi, Mississippi State, and Southern Mississippi) were exclusively white under the prior de jure segregated system. The Board authorized each to continue offering doctoral degrees and to assert leadership in certain disciplines. Jackson State, the sole urban university, was assigned a more limited research and degree mission, with both functions geared toward its urban setting. It was exclusively black at its inception. The "regional" designation was something of a misnomer, as the Board envisioned those institutions primarily in an undergraduate role, rather than a "regional" one in the geographical sense of serving just the localities in which they were based. Only the universities classified as "regional" included institutions that, prior to desegregation, had been either exclusively white - Delta State and Mississippi University for Women - or exclusively black - Alcorn State and Mississippi Valley.By the mid-1980's, 30 years after Brown, more than 99 percent of Mississippi's white students were enrolled at University of Mississippi, Mississippi State, Southern Mississippi, Delta State, and Mississippi University for Women. The student bodies at these universities remained predominantly white, averaging between 80 and 91 percent white students. Seventy-one percent of the State's black students attended Jackson State, Alcorn State, and Mississippi Valley State, where the racial composition ranged from 92 to 99 percent black. Ayers v. Allain, 893 F.2d 732, 734-736 (CA6 1990) (panel decision).IIBy 1987, the parties concluded that they could not agree on whether the State had taken the requisite affirmative steps to dismantle its prior de jure segregated system. They proceeded to trial. Both sides presented voluminous evidence on a full range of educational issues spanning admissions standards, faculty and administrative staff recruitment, program duplication, on-campus discrimination, institutional funding disparities, and satellite campuses. Petitioners argued that, in various ways, the State continued to reinforce historic, race-based distinctions among the universities. Respondents argued generally that the State had fulfilled its duty to disestablish its state-imposed segregative system by implementing and maintaining good faith, nondiscriminatory race-neutral policies and practices in student admission, faculty hiring, and operations. Moreover, they suggested, the State had attracted significant numbers of qualified black students to those universities composed mostly of white persons. Respondents averred that the mere continued existence of racially identifiable universities was not unlawful, given the freedom of students to choose which institution to attend and the varying objectives and features of the State's universities.At trial's end, based on the testimony of 71 witnesses and 56,700 pages of exhibits, the District Court entered extensive findings of fact. The court first offered a historical overview of the higher education institutions in Mississippi and the developments in the system between 1954 and the filing of this suit in 1975. 674 F.Supp., at 1526-1530. It then made specific findings recounting post-1975 developments, including a description at the time of trial, in those areas of the higher education system under attack by plaintiffs: admission requirements and recruitment; institutional classification and assignment of missions; duplication of programs; facilities and finance; the land grant institutions; faculty and staff; and governance. Id., at 1530-1550.The court's conclusions of law followed. As an overview, the court outlined the common ground in the section: "Where a state has previously maintained a racially dual system of public education established by law, it assumes an "affirmative duty" to reform those policies and practices which required or contributed to the separation of races. Id., at 1551. Noting that courts unanimously hold that the affirmative duty to dismantle a racially dual structure in elementary and secondary schools also governs in the higher education context, the court observed that there was disagreement whether Green v. School Bd. New Kent County , applied in all of its aspects to formerly dual systems of higher education, i.e., whether some level of racial mixture at previously segregated institutions of higher learning is not only desirable but necessary to "effectively" desegregate the system. 674 F.Supp., at 1552. Relying on a Fifth Circuit three-judge court decision, Alabama State Teachers Assn. (ASTA) v. Alabama Public School and College Authority, 289 F.Supp. 784 (MD Ala. 1968), our per curiam affirmance of that case, , and its understanding of our later decision in Bazemore v. Friday, , the court concluded that, in the higher education context, the affirmative duty to desegregate does not contemplate either restricting choice or the achievement of any degree of racial balance. 674 F.Supp., at 1553. Thus, the court stated: "While student enrollment and faculty and staff hiring patterns are to be examined, greater emphasis should instead be placed on current state higher education policies and practices in order to insure that such policies and practices are racially neutral, developed and implemented in good faith, and do not substantially contribute to the continued racial identifiability of individual institutions. Id., at 1554.When it addressed the same aspects of the university system covered by the findings of fact in light in light of the foregoing standard, the court found no violation of federal law in any of them. In summary, the court finds that current actions on the part of the defendants demonstrate conclusively that the defendants are fulfilling their affirmative duty to disestablish the former de jure segregated system of higher education. Id., at 1564.The Court of Appeals reheard the section en banc and affirmed the decision of the District Court. Ayers v. Allain, 914 F.2d 676 (CA5 1990). With a single exception, see infra, at 21, it did not disturb the District Court's findings of fact or conclusions of law. The en banc majority agreed that "Mississippi was ... constitutionally required to eliminate invidious racial distinctions and dismantle its dual system." Id., at 682. That duty, the court held, had been discharged, since the record makes clear that Mississippi has adopted and implemented race-neutral policies for operating its colleges and universities, and that all students have real freedom of choice to attend the college or university they wish... . Id., at 678.We granted the respective writs of certiorari filed by the United States and the private petitioners. .IIIThe District Court, the Court of Appeals, and respondents recognize and acknowledge that the State of Mississippi had the constitutional duty to dismantle the dual school system that its laws once mandated. Nor is there any dispute that this obligation applies to its higher education system. If the State has not discharged this duty, it remains in violation of the Fourteenth Amendment. Brown v. Board of Education and its progeny clearly mandate this observation. Thus, the primary issue in these cases is whether the State has met its affirmative duty to dismantle its prior dual university system.Our decisions establish that a State does not discharge its constitutional obligations until it eradicates policies and practices traceable to its prior de jure dual system that continue to foster segregation. Thus, we have consistently asked whether existing racial identifiability is attributable to the State, see, e.g., Freeman v. Pitts, ; Bazemore v. Friday, supra, at 407 (WHITE, J., concurring); Pasadena City Bd. of Ed. v. Spangler, ; Gilmore v. City of Montgomery, ; and examined a wide range of factors to determine whether the State has perpetuated its formerly de jure segregation in any facet of its institutional system. See, e.g., Board of Ed. of Oklahoma City Pub. Schools v. Dowell, ; Swann v. Charlotte-Mecklenburg Bd. of Ed., ; Green v. School Bd. of New Kent County, supra, at 435-438.The Court of Appeals concluded that the State had fulfilled its affirmative obligation to disestablish its prior de jure segregated system by adopting and implementing race-neutral policies governing its college and university system. Because students seeking higher education had "real freedom" to choose the institution of their choice, the State need do no more. Even though neutral policies and free choice were not enough to dismantle a dual system of primary or secondary schools, Green v. School Bd. of New Kent County, ; the Court of Appeals thought that universities "differ in character fundamentally" from lower levels of schools, 914 F.2d, at 686, sufficiently so that our decision in Bazemore v. Friday, supra, justified the conclusion that the State had dismantled its former dual system.Like the United States, we do not disagree with the Court of Appeals' observation that a state university system is quite different in very relevant respects from primary and secondary schools. Unlike attendance at the lower level schools, a student's decision to seek higher education has been a matter of choice. The State historically has not assigned university students to a particular institution. Moreover, like public universities throughout the country, Mississippi's institutions of higher learning are not fungible - they have been designated to perform certain missions. Students who qualify for admission enjoy a range of choices of which institution to attend. Thus, as the Court of Appeals stated, [i]t hardly needs mention that remedies common to public school desegregation, such as pupil assignments, busing, attendance quotas, and zoning, are unavailable when persons may freely choose whether to pursue an advanced education and, when the choice is made, which of several universities to attend. 914 F.2d, at 687.We do not agree with the Court of Appeals or the District Court, however, that the adoption and implementation of race-neutral policies alone suffice to demonstrate that the State has completely abandoned its prior dual system. That college attendance is by choice, and not by assignment, does not mean that a race-neutral admissions policy cures the constitutional violation of a dual system. In a system based on choice, student attendance is determined not simply by admissions policies, but also by many other factors. Although some of these factors clearly cannot be attributed to state policies, many can be. Thus, even after a State dismantles its segregative admissions policy, there may still be state action that is traceable to the State's prior de jure segregation and that continues to foster segregation. The Equal Protection Clause is offended by "sophisticated as well as simple-minded modes of discrimination." Lane v. Wilson, . If policies traceable to the de jure system are still in force and have discriminatory effects, those policies too must be reformed to the extent practicable and consistent with sound educational practices. Freeman, supra, at 494; Dowell, supra, at 250; Green, supra at 439; Florida ex rel. Hawkins v. Board of Control of Fla., (per curiam).4 We also disagree with respondents that the Court of Appeals and District Court properly relied on our decision in Bazemore v. Friday, . Bazemore neither requires nor justifies the conclusions reached by the two courts below.5 Bazemore raised the issue whether the financing and operational assistance provided by a state university's extension service to voluntary 4-H and Homemaker Clubs was inconsistent with the Equal Protection Clause because of the existence of numerous all-white and all-black clubs. Though, prior to 1965, the clubs were supported on a segregated basis, the District Court had found that the policy of segregation had been completely abandoned, and that no evidence existed of any lingering discrimination in either services or membership; any racial imbalance resulted from the wholly voluntary and unfettered choice of private individuals. Bazemore, supra, at 407 (WHITE, J., concurring). In this context, we held inapplicable the Green Court's judgment that a voluntary choice program was insufficient to dismantle a de jure dual system in public primary and secondary schools, but only after satisfying ourselves that the State had not fostered segregation by playing a part in the decision of which club an individual chose to join.Bazemore plainly does not excuse inquiry into whether Mississippi has left in place certain aspects of its prior dual system that perpetuate the racially segregated higher education system. If the State perpetuates policies and practices traceable to its prior system that continue to have segregative effects - whether by influencing student enrollment decisions or by fostering segregation in other facets of the university system - and such policies are without sound educational justification and can be practicably eliminated, the State has not satisfied its burden of proving that it has dismantled its prior system. Such policies run afoul of the Equal Protection Clause, even though the State has abolished the legal requirement that whites and blacks be educated separately and has established racially neutral policies not animated by a discriminatory purpose.6 Because the standard applied by the District Court did not make these inquiries, we hold that the Court of Appeals erred in affirming the District Court's ruling that the State had brought itself into compliance with the Equal Protection Clause in the operation of its higher education system.7 IVHad the Court of Appeals applied the correct legal standard, it would have been apparent from the undisturbed factual findings of the District Court that there are several surviving aspects of Mississippi's prior dual system which are constitutionally suspect; for even though such policies may be race neutral on their face, they substantially restrict a person's choice of which institution to enter, and they contribute to the racial identifiability of the eight public universities. Mississippi must justify these policies or eliminate them.It is important to state at the outset that we make no effort to identify an exclusive list of unconstitutional remnants of Mississippi's prior de jure system. In highlighting, as we do below, certain remnants of the prior system that are readily apparent from the findings of fact made by the District Court and affirmed by the Court of Appeals,8 we by no means suggest that the Court of Appeals need not examine, in light of the proper standard, each of the other policies now governing the State's university system that have been challenged or that are challenged on remand in light of the standard that we articulate today. With this caveat in mind, we address four policies of the present system: admissions standards, program duplication, institutional mission assignments, and continued operation of all eight public universities.We deal first with the current admissions policies of Mississippi's public universities. As the District Court found, the three flagship historically white universities in the system - University of Mississippi, Mississippi State University, and University of Southern Mississippi - enacted policies in 1963 requiring all entrants to achieve a minimum composite score of 15 on the test administered by the American College Testing Program (ACT). 674 F.Supp., at 1531. The court described the "discriminatory taint" of this policy, id., at 1557, an obvious reference to the fact that, at the time, the average ACT score for white students was 18 and the average score for blacks was 7. 893 F.2d, at 735. The District Court concluded, and the en banc Court of Appeals agreed, that present admissions standards derived from policies enacted in the 1970's to redress the problem of student unpreparedness. 914 F.2d, at 679; 674 F.Supp., at 1531. Obviously, this midpassage justification for perpetuating a policy enacted originally to discriminate against black students does not make the present admissions standards any less constitutionally suspect.The present admissions standards are not only traceable to the de jure system and were originally adopted for a discriminatory purpose, but they also have present discriminatory effects. Every Mississippi resident under 21 seeking admission to the university system must take the ACT. Any applicant who scores at least 15 qualifies for automatic admission to any of the five historically white institutions except Mississippi University for Women, which requires a score of 18 for automatic admission unless the student has a 3.0 high school grade average. Those scoring less than 15 but at least 13 automatically qualify to enter Jackson State University, Alcorn State University, and Mississippi Valley State University. Without doubt, these requirements restrict the range of choices of entering students as to which institution they may attend in a way that perpetuates segregation. Those scoring 13 or 14, with some exceptions, are excluded from the five historically white universities, and if they want a higher education, must go to one of the historically black institutions or attend junior college with the hope of transferring to a historically white institution.9 Proportionately more blacks than whites face this choice: In 1985, 72 percent of Mississippi's white high school seniors achieved an ACT composite score of 15 or better, while less than 30 percent of black high school seniors earned that score. App. 1524-1525. It is not surprising, then, that Mississippi's universities remain predominantly identifiable by race.The segregative effect of this automatic entrance standard is especially striking in light of the differences in minimum automatic entrance scores among the regional universities in Mississippi's system. The minimum score for automatic admission to Mississippi University for Women Mississippi University for Women) is 18; it is 13 for the historically black universities. Yet Mississippi UUniversity for Women is assigned the same institutional mission as two other regional universities, Alcorn State and Mississippi Valley - that of providing quality undergraduate education. The effects of the policy fall disproportionately on black students who might wish to attend Mississippi University for Women; and though the disparate impact is not as great, the same is true of the minimum standard ACT score of 15 at Delta State University - the other "regional" university - as compared to the historically black "regional" universities, where a score of 13 suffices for automatic admission. The courts below made little, if any, effort to justify in educational terms those particular disparities in entrance requirements, or to inquire whether it was practicable to eliminate them. We also find inadequately justified by the courts below or by the record before us the differential admissions requirements between universities with dissimilar programmatic missions. We do not suggest that, absent a discriminatory purpose, different programmatic missions accompanied by different admissions standards would be constitutionally suspect simply because one or more schools are racially identifiable. But here the differential admissions standards are remnants of the dual system, with a continuing discriminatory effect, and the mission assignments "to some degree follow the historical racial assignments," 914 F.2d, at 692. Moreover, the District Court did not justify the differing admissions standards based on the different mission assignments. It observed only that, in the 1970's, the board of trustees justified a minimum ACT score of 15 because too many students with lower scores were not prepared for the historically white institutions, and that imposing the 15 score requirement on admissions to the historically black institutions would decimate attendance at those universities. The District Court also stated that the mission of the regional universities had the more modest function of providing quality undergraduate education. Certainly the comprehensive universities are also, among other things, educating undergraduates. But we think the 15 ACT test score for automatic admission to the comprehensive universities, as compared with a score of 13 for the regionals, requires further justification in terms of sound educational policy.Another constitutionally problematic aspect of the State's use of the ACT test scores is its policy of denying automatic admission if an applicant fails to earn the minimum ACT score specified for the particular institution, without also resorting to the applicant's high school grades as an additional factor in predicting college performance. The United States produced evidence that the American College Testing Program (ACTP), the administering organization of the ACT, discourages use of ACT scores as the sole admissions criterion on the ground that it gives an incomplete "picture" of the student applicant's ability to perform adequately in college. App. 1209-1210. One ACTP report presented into evidence suggests that "it would be foolish" to substitute a 3- or 4-hour test in place of a student's high school grades as a means of predicting college performance. Id., at 193. The record also indicated that the disparity between black and white students' high school grade averages was much narrower than the gap between their average ACT scores, thereby suggesting that an admissions formula which included grades would increase the number of black students eligible for automatic admission to all of Mississippi's public universities.10 The United States insists that the State's refusal to consider information which would better predict college performance than ACT scores alone is irrational in light of most States' use of high school grades and other indicators along with standardized test scores. The District Court observed that the board of trustees was concerned with grade inflation and the lack of comparability in grading practices and course offerings among the State's diverse high schools. Both the District Court and the Court of Appeals found this concern ample justification for the failure to consider high school grade performance along with ACT scores. In our view, such justification is inadequate, because the ACT requirement was originally adopted for discriminatory purposes, the current requirement is traceable to that decision and seemingly continues to have segregative effects, and the State has so far failed to show that the "ACT-only" admissions standard is not susceptible to elimination without eroding sound educational policy.A second aspect of the present system that necessitates further inquiry is the widespread duplication of programs. "Unnecessary" duplication refers, under the District Court's definition, to those instances where two or more institutions offer the same nonessential or non-core program. Under this definition, all duplication at the bachelor's level of nonbasic liberal arts and sciences course work and all duplication at the master's level and above are considered to be unnecessary. 674 F.Supp., at 1540. The District Court found that 34.6 percent of the 29 undergraduate programs at historically black institutions are "unnecessarily duplicated" by the historically white universities, and that 90 percent of the graduate programs at the historically black institutions are unnecessarily duplicated at the historically white institutions. Id., at 1541. In its conclusions of law on this point, the District Court nevertheless determined that "there is no proof" that such duplication "is directly associated with the racial identifiability of institutions," and that there is no proof that the elimination of unnecessary program duplication would be justifiable from an educational standpoint, or that its elimination would have a substantial effect on student choice. Id., at 1561.The District Court's treatment of this issue is problematic from several different perspectives. First, the court appeared to impose the burden of proof on the plaintiffs to meet a legal standard the court itself acknowledged was not yet formulated. It can hardly be denied that such duplication was part and parcel of the prior dual system of higher education - the whole notion of "separate but equal" required duplicative programs in two sets of schools - and that the present unnecessary duplication is a continuation of that practice. Brown and its progeny, however, established that the burden of proof falls on the State, and not the aggrieved plaintiffs, to establish that it has dismantled its prior de jure segregated system. Brown II, 349 U.S., at 300. The court's holding that petitioners could not establish the constitutional defect of unnecessary duplication, therefore, improperly shifted the burden away from the State. Second, implicit in the District Court's finding of "unnecessary" duplication is the absence of any educational justification and the fact that some, if not all, duplication may be practicably eliminated. Indeed, the District Court observed that such duplication "cannot be justified economically or in terms of providing quality education." 674 F.Supp., at 1541. Yet by stating that "there is no proof" that elimination of unnecessary duplication would decrease institutional racial identifiability, affect student choice, and promote educationally sound policies, the court did not make clear whether it had directed the parties to develop evidence on these points, and if so, what that evidence revealed. See id., at 1561. Finally, by treating this issue in isolation, the court failed to consider the combined effects of unnecessary program duplication with other policies, such as differential admissions standards, in evaluating whether the State had met its duty to dismantle its prior de jure segregated system.We next address Mississippi's scheme of institutional mission classification, and whether it perpetuates the State's formerly de jure dual system. The District Court found that, throughout the period of de jure segregation, University of Mississippi, Mississippi State University, and University of Southern Mississippi were the flagship institutions in the state system. They received the most funds, initiated the most advanced and specialized programs, and developed the widest range of curricular functions. At their inception, each was restricted for the education solely of white persons. Id., at 1526-1528. The missions of Mississippi University for Women and Delta State University, by contrast, were more limited than their other all-white counterparts during the period of legalized segregation. Mississippi University for Women and Delta State University were each established to provide undergraduate education solely for white students in the liberal arts and such other fields as music, art, education, and home economics. Id., at 1527-1528. When they were founded, the three exclusively black universities were more limited in their assigned academic missions than the five all-white institutions. Alcorn State, for example, was designated to serve as "an agricultural college for the education of Mississippi's black youth." Id., at 1527. Jackson State and Mississippi Valley State were established to train black teachers. Id., at 1528. Though the District Court's findings do not make this point explicit, it is reasonable to infer that state funding and curriculum decisions throughout the period of de jure segregation were based on the purposes for which these institutions were established.In 1981, the State assigned certain missions to Mississippi's public universities as they then existed. It classified University of Mississippi, Mississippi State, and Southern Mississippi as "comprehensive" universities having the most varied programs and offering graduate degrees. Two of the historically white institutions, Delta State University and Mississippi University for Women, along with two of the historically black institutions, Alcorn State University and Mississippi Valley State University, were designated as "regional" universities with more limited programs and devoted primarily to undergraduate education. Jackson State University was classified as an "urban" university whose mission was defined by its urban location.The institutional mission designations adopted in 1981 have as their antecedents the policies enacted to perpetuate racial separation during the de jure segregated regime. The Court of Appeals expressly disagreed with the District Court by recognizing that the "inequalities among the institutions largely follow the mission designations, and the mission designations to some degree follow the historical racial assignments." 914 F.2d, at 692. It nevertheless upheld this facet of the system as constitutionally acceptable based on the existence of good faith racially neutral policies and procedures. That different missions are assigned to the universities surely limits to some extent an entering student's choice as to which university to seek admittance. While the courts below both agreed that the classification and mission assignments were made without discriminatory purpose, the Court of Appeals found that the record supports the plaintiffs' argument that the mission designations had the effect of maintaining the more limited program scope at the historically black universities. Id., at 690. We do not suggest that, absent discriminatory purpose, the assignment of different missions to various institutions in a State's higher education system would raise an equal protection issue where one or more of the institutions become or remain predominantly black or white. But here the issue is whether the State has sufficiently dismantled its prior dual system; and, when combined with the differential admission practices and unnecessary program duplication, it is likely that the mission designations interfere with student choice, and tend to perpetuate the segregated system. On remand, the court should inquire whether it would be practicable and consistent with sound educational practices to eliminate any such discriminatory effects of the State's present policy of mission assignments.Fourth, the State attempted to bring itself into compliance with the Constitution by continuing to maintain and operate all eight higher educational institutions. The existence of eight, instead of some lesser number, was undoubtedly occasioned by state laws forbidding the mingling of the races. And as the District Court recognized, continuing to maintain all eight universities in Mississippi is wasteful and irrational. The District Court pointed especially to the facts that Delta State and Mississippi Valley State are only 35 miles apart and that only 20 miles separate Mississippi State and Mississippi University for Women. 674 F.Supp., at 1563-1564. It was evident to the District Court that the defendants undertake to fund more institutions of higher learning than are justified by the amount of financial resources available to the state, id., at 1564, but the court concluded that such fiscal irresponsibility was a policy choice of the legislature, rather than a feature of a system subject to constitutional scrutiny.Unquestionably, a larger, rather than a smaller, number of institutions from which to choose, in itself, makes for different choices, particularly when examined in the light of other factors present in the operation of the system, such as admissions, program duplication, and institutional mission designations. Though certainly closure of one or more institutions would decrease the discriminatory effects of the present system, see, e.g., United States v. Louisiana, 718 F.Supp. 499, 514 (ED La. 1989), based on the present record, we are unable to say whether such action is constitutionally required.11 Elimination of program duplication and revision of admissions criteria may make institutional closure unnecessary. However, on remand, this issue should be carefully explored by inquiring and determining whether retention of all eight institutions itself affects student choice and perpetuates the segregated higher education system, whether maintenance of each of the universities is educationally justifiable, and whether one or more of them can be practicably closed or merged with other existing institutions.Because the former de jure segregated system of public universities in Mississippi impeded the free choice of prospective students, the State, in dismantling that system, must take the necessary steps to ensure that this choice now is truly free. The full range of policies and practices must be examined with this duty in mind. That an institution is predominantly white or black does not, in itself, make out a constitutional violation. But surely the State may not leave in place policies rooted in its prior officially segregated system that serve to maintain the racial identifiability of its universities if those policies can practicably be eliminated without eroding sound educational policies.If we understand private petitioners to press us to order the upgrading of Jackson State, Alcorn State, and Mississippi Valley State solely so that they may be publicly financed, exclusively black enclaves by private choice, we reject that request. The State provides these facilities for all its citizens, and it has not met its burden under Brown to take affirmative steps to dismantle its prior de jure system when it perpetuates a separate, but "more equal" one. Whether such an increase in funding is necessary to achieve a full dismantlement under the standards we have outlined, however, is a different question, and one that must be addressed on remand.Because the District Court and the Court of Appeals failed to consider the State's duties in their proper light, the cases must be remanded. To the extent that the State has not met its affirmative obligation to dismantle its prior dual system, it shall be adjudged in violation of the Constitution and Title VI, and remedial proceedings shall be conducted. The decision of the Court of Appeals is vacated, and the cases are remanded for further proceedings consistent with this opinion. It is so ordered.

Respondent McLaughlin brought a class action seeking injunctive and declaratory relief under 42 U.S.C. 1983, alleging that petitioner County of Riverside (County) violated the holding of Gerstein v. Pugh, , by failing to provide "prompt" judicial determinations of probable cause to persons who, like himself, were arrested without a warrant. The County combines such determinations with arraignment procedures which, under County policy, must be conducted within two days of arrest, excluding weekends and holidays. The County moved to dismiss the complaint, asserting that McLaughlin lacked standing to bring the suit because the time for providing him a "prompt" probable cause determination had already passed and he had failed to show, as required by Los Angeles v. Lyons, , that he would again be subject to the allegedly unconstitutional conduct. The District Court never explicitly ruled on the motion to dismiss, but accepted for filing a second amended complaint - the operative pleading here - which named respondents James, Simon, and Hyde as additional individual plaintiffs and class representatives, and alleged that each of them had been arrested without a warrant, had not received a prompt probable cause hearing, and was still in custody. The court granted class certification and subsequently issued a preliminary injunction requiring that all persons arrested by the County without a warrant be provided probable cause determinations within 36 hours of arrest, except in exigent circumstances. The Court of Appeals affirmed, rejecting the County's Lyons-based standing argument and ruling on the merits that the County's practice was not in accord with Gerstein's promptness requirement because no more than 36 hours were needed to complete the administrative steps incident to arrest.Held: 1. Plaintiffs have Article III standing. At the time the second amended complaint was filed, James, Simon, and Hyde satisfied the standing doctrine's core requirement that they allege personal injury fairly traceable to the County's allegedly unlawful conduct and likely to be redressed by the requested injunction. See, e.g., Allen v. Wright, . Lyons, supra, distinguished. Although the named plaintiffs' claims were subsequently rendered moot by their receipt of probable cause hearings or their release from custody, they preserved the merits of the controversy for this Court's review by obtaining class certification. See, e.g., Gersteinat 110-111, n. 11. This Court is not deprived of jurisdiction by the fact that the class was not certified until after the named plaintiffs' claims became moot. Such claims are so inherently transitory, see, e.g., id. at 110, n. 11, that the "relation back" doctrine is properly invoked to preserve the case's merits for judicial resolution, see, e.g., Swisher v. Brady, , n. 11. Pp. 50-52. 2. The County's current policy and practice do not comport fully with Gerstein's requirement of a "prompt" probable cause determination. Pp. 52-59. (a) Contrary to the Court of Appeals' construction, Gerstein implicitly recognized that the Fourth Amendment does not compel an immediate determination of probable cause upon completion of the administrative steps incident to arrest. In requiring that persons arrested without a warrant "promptly" be brought before a neutral magistrate for such a determination, 420 U.S., at 114, 125, Gerstein struck a balance between the rights of individuals and the realities of law enforcement. Id., at 113. Gerstein makes clear that the Constitution does not impose on individual jurisdictions a rigid procedural framework for making the required determination, but allows them to choose to comply in different ways. Id., at 123. In contrast, the Court of Appeals' approach permits no flexibility, and is in error. Pp. 52-55. (b) In order to satisfy Gerstein's promptness requirement, a jurisdiction that chooses to combine probable cause determinations with other pretrial proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours after arrest. Providing a probable cause determination within that time frame will, as a general matter, immunize such a jurisdiction from systemic challenges. Although a hearing within 48 hours may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably, courts evaluating the reasonableness of a delay must allow a substantial degree of flexibility, taking into account the practical realities of pretrial procedures. Where an arrested individual does not receive a probable cause determination within 48 hours, the burden of proof shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance, which cannot include intervening weekends or the fact that, in a particular case, it may take longer to consolidate pretrial proceedings. Pp. 55-58. (c) Although the County is entitled to combine probable cause determinations with arraignments, it is not immune from systemic challenges such as this class action. Its regular practice exceeds the constitutionally permissible 48-hour period because persons arrested on Thursdays may have to wait until the following Monday before receiving a probable cause determination, and the delay is even longer if there is an intervening holiday. Moreover, the lower courts, on remand, must determine whether the County's practice as to arrests that occur early in the week - whereby arraignments usually take place on the last day possible - is supported by legitimate reasons or constitutes delay for delay's sake. Pp. 58-59. 888 F.2d 1276, vacated and remanded.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE, KENNEDY, and SOUTER, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined, post, p. 59. SCALIA, J., filed a dissenting opinion, post, p. 59Timothy T. Coates argued the cause for petitioners. With him on the briefs were Peter J. Ferguson, Michael A. Bell, and Martin Stein.Dan Stormer argued the cause for respondents. With him on the brief were Richard P. Herman, Ben Margolis, and Elizabeth Spector.* [Footnote *] Briefs of amici curiae urging reversal were filed for the State of California by John K. Van de Kamp, Attorney General, Richard B. Iglehart, Chief Assistant Attorney General, Harley D. Mayfield, Senior Assistant Attorney General, and Robert M. Foster and Frederick R. Millar, Jr., Supervising Deputy Attorneys General; and for the District Attorney, County of Riverside, California, by Grover C. Trask II, pro se.Robert M. Rotstein, John A. Powell, Paul L. Hoffman, and Judith Resnik filed a brief for the American Civil Liberties Union as amicus curiae urging affirmance.Briefs of amici curiae were filed for the State of Hawaii et al. by Warren Price III, Attorney General of Hawaii, and Steven S. Michaels, Deputy Attorney General, Don Siegelman, Attorney General of Alabama, Ron Fields, Attorney General of Arkansas, John J. Kelly, Chief State's Attorney of Connecticut, Charles M. Oberly III, Attorney General of Delaware, James T. Jones, Attorney General of Idaho, Neil F. Hartigan, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, James E. Tierney, Attorney General of Maine, Frank J. Kelley, Attorney General of Michigan, Mike Moore, Attorney General of Mississippi, Marc Racicot, Attorney General of Montana, Robert M. Spire, Attorney General of Nebraska, Robert J. Del Tufo, Attorney General of New Jersey, John P. Arnold, Attorney General of New Hampshire, Hal Stratton, Attorney General of New Mexico, Brian McKay, Attorney General of Nevada, Lacy H. Thornburg, Attorney General of North Carolina, Robert H. Henry, Attorney General of Oklahoma, T. Travis Medlock, Attorney General of South Carolina, Roger A. Tellinghuisen, Attorney General of South Dakota, Jeffrey L. Amestoy, Attorney General of Vermont, and Joseph P. Meyer, Attorney General of Wyoming; for the County of Los Angeles et al. by De Witt W. Clinton and Dixon M. Holston; for the California District Attorneys Association by Michael R. Capizzi; and for the Youth Law Center by Mark I. Soler and Loren M. Warboys. JUSTICE O'CONNOR delivered the opinion of the Court.In Gerstein v. Pugh, , this Court held that the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest. This case requires us to define what is "prompt" under Gerstein.IThis is a class action brought under 42 U.S.C. 1983 challenging the manner in which the County of Riverside, California (County), provides probable cause determinations to persons arrested without a warrant. At issue is the County's policy of combining probable cause determinations with its arraignment procedures. Under County policy, which tracks closely the provisions of Cal. Penal Code Ann. 825 (West 1985), arraignments must be conducted without unnecessary delay and, in any event, within two days of arrest. This two-day requirement excludes from computation weekends and holidays. Thus, an individual arrested without a warrant late in the week may, in some cases, be held for as long as five days before receiving a probable cause determination. Over the Thanksgiving holiday, a 7-day delay is possible.The parties dispute whether the combined probable cause/arraignment procedure is available to all warrantless arrestees. Testimony by Riverside County District Attorney Grover Trask suggests that individuals arrested without warrants for felonies do not receive a probable cause determination until the preliminary hearing, which may not occur until 10 days after arraignment. 2 App. 298-299. Before this Court, however, the County represents that its policy is to provide probable cause determinations at arraignment for all persons arrested without a warrant, regardless of the nature of the charges against them. Ibid. See also Tr. of Oral Arg. 13. We need not resolve the factual inconsistency here. For present purposes, we accept the County's representation.In August, 1987, Donald Lee McLaughlin filed a complaint in the United States District Court for the Central District of California, seeking injunctive and declaratory relief on behalf of himself and "`all others similarly situated.'" The complaint alleged that McLaughlin was then currently incarcerated in the Riverside County Jail, and had not received a probable cause determination. He requested "an order and judgment requiring that the defendants and the County of Riverside provide in-custody arrestees, arrested without warrants, prompt probable cause, bail and arraignment hearings." Pet. for Cert. 6. Shortly thereafter, McLaughlin moved for class certification. The County moved to dismiss the complaint, asserting that McLaughlin lacked standing to bring the suit because he had failed to show, as required by Los Angeles v. Lyons, , that he would again be subject to the allegedly unconstitutional conduct - i.e., a warrantless detention without a probable cause determination.In light of the pending motion to dismiss, the District Court continued the hearing on the motion to certify the class. Various papers were submitted; then, in July, 1988, the District Court accepted for filing a second amended complaint, which is the operative pleading here. From the record it appears that the District Court never explicitly ruled on defendants' motion to dismiss, but rather took it off the court's calendar in August, 1988. The second amended complaint named three additional plaintiffs - Johnny E. James, Diana Ray Simon, and Michael Scott Hyde - individually and as class representatives. The amended complaint alleged that each of the named plaintiffs had been arrested without a warrant, had received neither prompt probable cause nor bail hearings, and was still in custody. 1 App. 3. In November, 1988, the District Court certified a class comprising "all present and future prisoners in the Riverside County Jail, including those pretrial detainees arrested without warrants and held in the Riverside County Jail from August 1, 1987 to the present, and all such future detainees who have been or may be denied prompt probable cause, bail or arraignment hearings." 1 App. 7.In March, 1989, plaintiffs asked the District Court to issue a preliminary injunction requiring the County to provide all persons arrested without a warrant a judicial determination of probable cause within 36 hours of arrest. 1 App. 21. The District Court issued the injunction, holding that the County's existing practice violated this Court's decision in Gerstein. Without discussion, the District Court adopted a rule that the County provide probable cause determinations within 36 hours of arrest, except in exigent circumstances. The court "retained jurisdiction indefinitely" to ensure that the County established new procedures that complied with the injunction. 2 App. 333-334.The United States Court of Appeals for the Ninth Circuit consolidated this case with another challenging an identical preliminary injunction issued against the County of San Bernardino. See McGregor v. County of San Bernardino, decided with McLaughlin v. County of Riverside, 888 F.2d 1276 (1989).On November 8, 1989, the Court of Appeals affirmed the order granting the preliminary injunction against Riverside County. One aspect of the injunction against San Bernardino County was reversed by the Court of Appeals; that determination is not before us. The Court of Appeals rejected Riverside County's Lyons-based standing argument, holding that the named plaintiffs had Article III standing to bring the class action for injunctive relief. 888 F.2d at 1277. It reasoned that, at the time plaintiffs filed their complaint, they were in custody and suffering injury as a result of the defendants' allegedly unconstitutional action. The court then proceeded to the merits and determined that the County's policy of providing probable cause determinations at arraignment within 48 hours was "not in accord with Gerstein's requirement of a determination `promptly after arrest,'" because no more than 36 hours were needed "to complete the administrative steps incident to arrest." Id., at 1278.The Ninth Circuit thus joined the Fourth and Seventh Circuits in interpreting Gerstein as requiring a probable cause determination immediately following completion of the administrative procedures incident to arrest. Llaguno v. Mingey, 763 F.2d 1560, 1567-1568 (CA7 1985) (en banc); Fisher v. Washington Metropolitan Area Transit Authority, 690 F.2d 1133, 1139-1141 (CA4 1982). By contrast, the Second Circuit understands Gerstein to "stres[s] the need for flexibility" and to permit States to combine probable cause determinations with other pretrial proceedings. Williams v. Ward, 845 F.2d 374, 386 (1988), cert. denied, . We granted certiorari to resolve this conflict among the Circuits as to what constitutes a "prompt" probable cause determination under Gerstein.IIAs an initial matter, the County renews its claim that plaintiffs lack standing. It explains that the main thrust of plaintiffs' suit is that they are entitled to "prompt" probable cause determinations, and insists that this is, by definition, a time-limited violation. Once sufficient time has passed, the County argues, the constitutional violation is complete, because a probable cause determination made after that point would no longer be "prompt." Thus, at least as to the named plaintiffs, there is no standing, because it is too late for them to receive a prompt hearing and, under Lyons, they cannot show that they are likely to be subjected again to the unconstitutional conduct.We reject the County's argument. At the core of the standing doctrine is the requirement that a plaintiff "allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen v. Wright, , citing Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., . The County does not dispute that, at the time the second amended complaint was filed, plaintiffs James, Simon, and Hyde had been arrested without warrants and were being held in custody without having received a probable cause determination, prompt or otherwise. Plaintiffs alleged in their complaint that they were suffering a direct and current injury as a result of this detention, and would continue to suffer that injury until they received the probable cause determination to which they were entitled. Plainly, plaintiffs' injury was at that moment capable of being redressed through injunctive relief. The County's argument that the constitutional violation had already been "completed" relies on a crabbed reading of the complaint. This case is easily distinguished from Lyons, in which the constitutionally objectionable practice ceased altogether before the plaintiff filed his complaint.It is true, of course, that the claims of the named plaintiffs have since been rendered moot; eventually, they either received probable cause determinations or were released. Our cases leave no doubt, however, that, by obtaining class certification, plaintiffs preserved the merits of the controversy for our review. In factually similar cases, we have held that "the termination of a class representative's claim does not moot the claims of the unnamed members of the class." See, e.g., Gerstein, 420 U.S., at 110-111, n. 11, citing Sosna v. Iowa, ; Schall v. Martin, , n. 3 (1984). That the class was not certified until after the named plaintiffs' claims had become moot does not deprive us of jurisdiction. We recognized in Gerstein that "[s]ome claims are so inherently transitory that the trial court will not have even enough time to rule on a motion for class certification before the proposed representative's individual interest expires." United States Parole Comm'n v. Geraghty, , citing Gerstein, supra, at 110, n. 11. In such cases, the "relation back" doctrine is properly invoked to preserve the merits of the case for judicial resolution. See Swisher v. Brady, , n. 11 (1978); Sosna, supra, at 402, n. 11. Accordingly, we proceed to the merits.IIIAIn Gerstein, this Court held unconstitutional Florida procedures under which persons arrested without a warrant could remain in police custody for 30 days or more without a judicial determination of probable cause. In reaching this conclusion, we attempted to reconcile important competing interests. On the one hand, States have a strong interest in protecting public safety by taking into custody those persons who are reasonably suspected of having engaged in criminal activity, even where there has been no opportunity for a prior judicial determination of probable cause. 420 U.S., at 112. On the other hand, prolonged detention based on incorrect or unfounded suspicion may unjustly "imperil [a] suspect's job, interrupt his source of income, and impair his family relationships." Id., at 114. We sought to balance these competing concerns by holding that States "must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest." Id., at 125 (emphasis added). The Court thus established a "practical compromise" between the rights of individuals and the realities of law enforcement. Id., at 113. Under Gerstein, warrantless arrests are permitted, but persons arrested without a warrant must promptly be brought before a neutral magistrate for a judicial determination of probable cause. Id., at 114. Significantly, the Court stopped short of holding that jurisdictions were constitutionally compelled to provide a probable cause hearing immediately upon taking a suspect into custody and completing booking procedures. We acknowledged the burden that proliferation of pretrial proceedings places on the criminal justice system, and recognized that the interests of everyone involved, including those persons who are arrested, might be disserved by introducing further procedural complexity into an already intricate system. Id., at 119-123. Accordingly, we left it to the individual States to integrate prompt probable cause determinations into their differing systems of pretrial procedures. Id., at 123-124.In so doing, we gave proper deference to the demands of federalism. We recognized that "state systems of criminal procedure vary widely" in the nature and number of pretrial procedures they provide, and we noted that there is no single "preferred" approach. Id., at 123. We explained further that "flexibility and experimentation by the States" with respect to integrating probable cause determinations was desirable, and that each State should settle upon an approach "to accord with [the] State's pretrial procedure viewed as a whole." Ibid. Our purpose in Gerstein was to make clear that the Fourth Amendment requires every State to provide prompt determinations of probable cause, but that the Constitution does not impose on the States a rigid procedural framework. Rather, individual States may choose to comply in different ways.Inherent in Gerstein's invitation to the States to experiment and adapt was the recognition that the Fourth Amendment does not compel an immediate determination of probable cause upon completing the administrative steps incident to arrest. Plainly, if a probable cause hearing is constitutionally compelled the moment a suspect is finished being "booked," there is no room whatsoever for "flexibility and experimentation by the States." Ibid. Incorporating probable cause determinations "into the procedure for setting bail or fixing other conditions of pretrial release" - which Gerstein explicitly contemplated, id. at 124 - would be impossible. Waiting even a few hours so that a bail hearing or arraignment could take place at the same time as the probable cause determination would amount to a constitutional violation. Clearly, Gerstein is not that inflexible.Notwithstanding Gerstein's discussion of flexibility, the Ninth Circuit Court of Appeals held that no flexibility was permitted. It construed Gerstein as "requir[ing] a probable cause determination to be made as soon as the administrative steps incident to arrest were completed, and that such steps should require only a brief period." 888 F.2d at 1278 (emphasis added) (internal quotation marks omitted). This same reading is advanced by the dissent. See post at 59 (opinion of MARSHALL, J.); post at 61-63, 65 (opinion of SCALIA, J.). The foregoing discussion readily demonstrates the error of this approach. Gerstein held that probable cause determinations must be prompt - not immediate. The Court explained that "flexibility and experimentation" were "desirab[le]"; that "[t]here is no single preferred pretrial procedure"; and that "the nature of the probable cause determination usually will be shaped to accord with a State's pretrial procedure viewed as a whole." 420 U.S., at 123. The Court of Appeals and the JUSTICE SCALIA disregard these statements, relying instead on selective quotations from the Court's opinion. As we have explained, Gerstein struck a balance between competing interests; a proper understanding of the decision is possible only if one takes into account both sides of the equation.JUSTICE SCALIA claims to find support for its approach in the common law. It points to several statements from the early 1800's to the effect that an arresting officer must bring a person arrested without a warrant before a judicial officer "`as soon as he reasonably can.'" Post at 61 (emphasis in original). This vague admonition offers no more support for the dissent's inflexible standard than does Gerstein's statement that a hearing follow "promptly after arrest." 420 U.S., at 125. As mentioned at the outset, the question before us today is what is "prompt" under Gerstein. We answer that question by recognizing that Gerstein struck a balance between competing interests.BGiven that Gerstein permits jurisdictions to incorporate probable cause determinations into other pretrial procedures, some delays are inevitable. For example, where, as in Riverside County, the probable cause determination is combined with arraignment, there will be delays caused by paperwork and logistical problems. Records will have to be reviewed, charging documents drafted, appearance of counsel arranged, and appropriate bail determined. On weekends, when the number of arrests is often higher and available resources tend to be limited, arraignments may get pushed back even further. In our view, the Fourth Amendment permits a reasonable postponement of a probable cause determination while the police cope with the everyday problems of processing suspects through an overly burdened criminal justice system.But flexibility has its limits; Gerstein is not a blank check. A State has no legitimate interest in detaining for extended periods individuals who have been arrested without probable cause. The Court recognized in Gerstein that a person arrested without a warrant is entitled to a fair and reliable determination of probable cause, and that this determination must be made promptly.Unfortunately, as lower court decisions applying Gerstein have demonstrated, it is not enough to say that probable cause determinations must be "prompt." This vague standard simply has not provided sufficient guidance. Instead, it has led to a flurry of systemic challenges to city and county practices, putting federal judges in the role of making legislative judgments and overseeing local jailhouse operations. See, e.g., McGregor v. County of San Bernardino, decided with McLaughlin v. County of Riverside, 888 F.2d 1276 (CA9 1989); Scott v. Gates, Civ. No. 84-8647 (CD Cal., Oct. 3, 1988); see also Bernard v. Palo Alto, 699 F.2d 1023 (CA9 1983); Sanders v. Houston, 543 F.Supp. 694 (SD Tex. 1982), aff'd, 741 F.2d 1379 (CA5 1984); Lively v. Cullinane, 451 F.Supp. 1000 (DC 1978).Our task in this case is to articulate more clearly the boundaries of what is permissible under the Fourth Amendment. Although we hesitate to announce that the Constitution compels a specific time limit, it is important to provide some degree of certainty so that States and counties may establish procedures with confidence that they fall within constitutional bounds. Taking into account the competing interests articulated in Gerstein, we believe that a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein. For this reason, such jurisdictions will be immune from systemic challenges.This is not to say that the probable cause determination in a particular case passes constitutional muster simply because it is provided within 48 hours. Such a hearing may nonetheless violate Gerstein if the arrested individual can prove that his or her probable cause determination was delayed unreasonably. Examples of unreasonable delay are delays for the purpose of gathering additional evidence to justify the arrest, a delay motivated by ill-will against the arrested individual, or delay for delay's sake. In evaluating whether the delay in a particular case is unreasonable, however, courts must allow a substantial degree of flexibility. Courts cannot ignore the often unavoidable delays in transporting arrested persons from one facility to another, handling late-night bookings where no magistrate is readily available, obtaining the presence of an arresting officer who may be busy processing other suspects or securing the premises of an arrest, and other practical realities.Where an arrested individual does not receive a probable cause determination within 48 hours, the calculus changes. In such a case, the arrested individual does not bear the burden of proving an unreasonable delay. Rather, the burden shifts to the government to demonstrate the existence of a bona fide emergency or other extraordinary circumstance. The fact that, in a particular case, it may take longer than 48 hours to consolidate pretrial proceedings does not qualify as an extraordinary circumstance. Nor, for that matter, do intervening weekends. A jurisdiction that chooses to offer combined proceedings must do so as soon as is reasonably feasible, but in no event later than 48 hours after arrest.JUSTICE SCALIA urges that 24 hours is a more appropriate outer boundary for providing probable cause determinations. See post at 68. In arguing that any delay in probable cause hearings beyond completing the administrative steps incident to arrest and arranging for a magistrate is unconstitutional, JUSTICE SCALIA, in effect, adopts the view of the Court of Appeals. Yet the dissent ignores entirely the Court of Appeals' determination of the time required to complete those procedures. That court, better situated than this one, concluded that it takes 36 hours to process arrested persons in Riverside County. 888 F.2d at 1278. In advocating a 24-hour rule, JUSTICE SCALIA would compel Riverside County - and countless others across the Nation - to speed up its criminal justice mechanisms substantially, presumably by allotting local tax dollars to hire additional police officers and magistrates. There may be times when the Constitution compels such direct interference with local control, but this is not one. As we have explained, Gerstein clearly contemplated a reasonable accommodation between legitimate competing concerns. We do no more than recognize that such accommodation can take place without running afoul of the Fourth Amendment.Everyone agrees that the police should make every attempt to minimize the time a presumptively innocent individual spends in jail. One way to do so is to provide a judicial determination of probable cause immediately upon completing the administrative steps incident to arrest - i.e., as soon as the suspect has been booked, photographed, and fingerprinted. As JUSTICE SCALIA explains, several States, laudably, have adopted this approach. The Constitution does not compel so rigid a schedule, however. Under Gerstein, jurisdictions may choose to combine probable cause determinations with other pretrial proceedings, so long as they do so promptly. This necessarily means that only certain proceedings are candidates for combination. Only those proceedings that arise very early in the pretrial process - such as bail hearings and arraignments - may be chosen. Even then, every effort must be made to expedite the combined proceedings. See at 124.IVFor the reasons we have articulated, we conclude that Riverside County is entitled to combine probable cause determinations with arraignments. The record indicates, however, that the County's current policy and practice do not comport fully with the principles we have outlined. The County's current policy is to offer combined proceedings within two days, exclusive of Saturdays, Sundays, or holidays. As a result, persons arrested on Thursdays may have to wait until the following Monday before they receive a probable cause determination. The delay is even longer if there is an intervening holiday. Thus, the County's regular practice exceeds the 48-hour period we deem constitutionally permissible, meaning that the County is not immune from systemic challenges, such as this class action.As to arrests that occur early in the week, the County's practice is that "arraignment[s] usually tak[e] place on the last day" possible. 1 App. 82. There may well be legitimate reasons for this practice; alternatively, this may constitute delay for delay's sake. We leave it to the Court of Appeals and the District Court, on remand, to make this determination.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.JUSTICE MARSHALL, with whom JUSTICE BLACKMUN and JUSTICE STEVENS join, dissenting.In Gerstein v. Pugh, , this Court held that an individual detained following a warrantless arrest is entitled to a "prompt" judicial determination of probable cause as a prerequisite to any further restraint on his liberty. See id. at 114-116, 125. I agree with JUSTICE SCALIA that a probable-cause hearing is sufficiently "prompt" under Gerstein only when provided immediately upon completion of the "administrative steps incident to arrest," id. at 114. See post at 62-63. Because the Court of Appeals correctly held that the County of Riverside must provide probable cause hearings as soon as it completes the administrative steps incident to arrest, see 888 F.2d 1276, 1278 (CA9 1989), I would affirm the judgment of the Court of Appeals. Accordingly, I dissent.JUSTICE SCALIA, dissenting.The story is told of the elderly judge who, looking back over a long career, observes with satisfaction that, "when I was young, I probably let stand some convictions that should have been overturned, and when I was old I probably set aside some that should have stood; so overall, justice was done. "I sometimes think that is an appropriate analog to this Court's constitutional jurisprudence, which alternately creates rights that the Constitution does not contain and denies rights that it does. Compare Roe v. Wade, (right to abortion does exist) with Maryland v. Craig, (right to be confronted with witnesses, U.S. Const., Amdt. 6, does not). Thinking that neither the one course nor the other is correct, nor the two combined, I dissent from today's decision, which eliminates a very old right indeed.IThe Court views the task before it as one of "balanc[ing] [the] competing concerns" of "protecting public safety," on the one hand, and avoiding "prolonged detention based on incorrect or unfounded suspicion," on the other hand, ante at 52. It purports to reaffirm the "practical compromise" between these concerns struck in Gerstein v. Pugh, , ante at 53. There is assuredly room for such an approach in resolving novel questions of search and seizure under the "reasonableness" standard that the Fourth Amendment sets forth. But not, I think, in resolving those questions on which a clear answer already existed in 1791, and has been generally adhered to by the traditions of our society ever since. As to those matters, the "balance" has already been struck, the "practical compromise" reached - and it is the function of the Bill of Rights to preserve that judgment, not only against the changing views of Presidents and Members of Congress, but also against the changing views of Justices whom Presidents appoint and Members of Congress confirm to this Court.The issue before us today is of precisely that sort. As we have recently had occasion to explain, the Fourth Amendment's prohibition of "unreasonable seizures," insofar as it applies to seizure of the person, preserves for our citizens the traditional protections against unlawful arrest afforded by the common law. See California v. Hodari D. 621 (1991). One of those - one of the most important of those - was that a person arresting a suspect without a warrant must deliver the arrestee to a magistrate "as soon as he reasonably can." 2 M. Hale, Pleas of the Crown 95, n. 13 (1st Am. ed. 1847). See also 4 W. Blackstone, Commentaries *289, *293; Wright v. Court, 107 Eng. Rep. 1182 (K.B. 1825) ("[I]t is the duty of a person arresting any one on suspicion of felony to take him before a justice as soon as he reasonably can"); 1 R. Burn, Justice of the Peace 276-277 (1837) ("When a constable arrests a party for treason or felony, he must take him before a magistrate to be examined as soon as he reasonably can") (emphasis omitted). The practice in the United States was the same. See e.g., 5 Am.Jur.2d 76, 77 (1962); Venable v. Huddy, 77 N.J.L. 351, 72 A. 10, 11 (1909); Atchison, T. & S.F.R. Co. v. Hinsdell, 76 Kan. 74, 76, 90 P. 800, 801 (1907); Ocean S.S. Co. v. Williams, 69 Ga. 251, 262 (1883); Johnson v. Mayor and City Council of Americus, 46 Ga. 80, 86-87 (1872); Low v. Evans, 16 Ind. 486, 489 (1861); Tubbs v. Tukey, 57 Mass. 438, 440 (1849) (warrant); Perkins, The Law of Arrest, 25 Iowa L.Rev. 201, 254 (1940). Cf. Pepper v. Mayes, 81 Ky. 673 (1884). It was clear, moreover, that the only element bearing upon the reasonableness of delay was not such circumstances as the pressing need to conduct further investigation, but the arresting officer's ability, once the prisoner had been secured, to reach a magistrate who could issue the needed warrant for further detention. 5 Am.Jur.2d 76, 77 (1962); 1 Restatement of Torts 134 Comment b (1934); Keefe v. Hart, 213 Mass. 476, 482, 100 N.E. 558, 559 (1913); Leger v. Warren, 57 N.E. 506, 508 (Ohio 1900); Burk v. Howley, 179 Pa. 539, 551, 36 A. 327, 329 (1897); Kirk & Son v. Garrett, 84 Md. 383, 405, 35 A. 1089, 1091 (1896); Simmons v. Vandyke, 138 Ind. 380, 384, 37 N.E. 973, 974 (1894) (dictum); Ocean S.S. Co. v. Williams, supra, at 263; Hayes v. Mitchell, 69 Ala. 452, 455 (1881); Kenerson v. Bacon, 41 Vt. 573, 577 (1869); Green v. Kennedy, 48 N.Y. 653, 654 (1871); Schneider v. McLane, 3 Keyes 568 (NY App. 1867); Annot., 51 L.R.A. 216 (1901). Cf. Wheeler v. Nesbitt, 24 How. 544, 552 (1860). Any detention beyond the period within which a warrant could have been obtained rendered the officer liable for false imprisonment. See, e.g., Twilley v. Perkins, 77 Md. 252, 265, 26 A. 286, 289 (1893); Wiggins v. Norton, 83 Ga. 148, 152, 9 S.E. 607, 608-609 (1889); Brock v. Stimson, 108 Mass. 520 (1871); Annot., 98 A.L.R.2d 966 (1964).1 We discussed and relied upon this common law understanding in Gerstein, see 420 U.S., at 114-116, holding that the period of warrantless detention must be limited to the time necessary to complete the arrest and obtain the magistrate's review."[A] policeman's on-the-scene assessment of probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest. Once the suspect is in custody, ... the reasons that justify dispensing with the magistrate's neutral judgment evaporate." Id., at 113-114 (emphasis added). We said that "the Fourth Amendment requires a judicial determination of probable cause as a prerequisite to extended restraint of liberty," id. at 114, "either before or promptly after arrest," id. at 125. Though how "promptly" we did not say, it was plain enough that the requirement left no room for intentional delay unrelated to the completion of "the administrative steps incident to arrest." Plain enough, at least, that all but one federal court considering the question understood Gerstein that way. See, e.g., Gramenos v. Jewel Companies, Inc., 797 F.2d 432, 437 (CA7 1986), cert. denied, ; Bernard v. Palo Alto, 699 F.2d 1023, 1025 (CA9 1983) (per curiam); Fisher v. Washington Metropolitan Area Transit Authority, 690 F.2d 1133, 1140 (CA4 1982); Mabry v. County of Kalamazoo, 626 F.Supp. 912, 914 (WD Mich. 1986); Sanders v. Houston, 543 F.Supp. 694, 699-701 (SD Tex. 1982), aff'd, 741 F.2d 1379 (CA5 1984); Lively v. Cullinane, 451 F.Supp. 1000, 1004 (DC 1978). See also People ex rel. Maxian v. Brown, 164 App. Div.2d 56, 62-64, 561 N.Y.S.2d 418, 421-422 (1990), aff'd, 77 N.Y.2d 422, (1991); Note, Williams v. Ward: Compromising the Constitutional Right to Prompt Determination of Probable Cause Upon Arrest, 74 Minn. L. Rev. 196, 204 (1989). But see Williams v. Ward, 845 F.2d 374 (CA2 1988), cert. denied, .Today, however, the Court discerns something quite different in Gerstein. It finds that the plain statements set forth above (not to mention the common law tradition of liberty upon which they were based) were trumped by the implication of a later dictum in the case which, according to the Court, manifest a "recognition that the Fourth Amendment does not compel an immediate determination of probable cause upon completing the administrative steps incident to arrest." Ante at 53-54 (emphasis added). Of course Gerstein did not say, nor do I contend, that an "immediate" determination is required. But what the Court today means by "not immediate" is that the delay can be attributable to something other than completing the administrative steps incident to arrest and arranging for the magistrate - namely, to the administrative convenience of combining the probable cause determination with other state proceedings. The result, we learn later in the opinion, is that what Gerstein meant by "a brief period of detention to take the administrative steps incident to arrest" is two full days. I think it is clear that the case neither said nor meant any such thing.Since the Court's opinion hangs so much upon Gerstein, it is worth quoting the allegedly relevant passage in its entirety. "Although we conclude that the Constitution does not require an adversary determination of probable cause, we recognize that state systems of criminal procedure vary widely. There is no single preferred pretrial procedure, and the nature of the probable cause determination usually will be shaped to accord with a State's pretrial procedure viewed as a whole. While we limit our holding to the precise requirement of the Fourth Amendment, we recognize the desirability of flexibility and experimentation by the States. It may be found desirable, for example, to make the probable cause determination at the suspect's first appearance before a judicial officer, ... or the determination may be incorporated into the procedure for setting bail or fixing other conditions of pretrial release. In some States, existing procedures may satisfy the requirement of the Fourth Amendment. Others may require only minor adjustment, such as acceleration of existing preliminary hearings. Current proposals for criminal procedure reform suggest other ways of testing probable cause for detention. Whatever procedure a State may adopt, it must provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest." 420 U.S., at 123-125 (footnotes omitted; emphasis added). The Court's holding today rests upon the statement that "we recognize the desirability of flexibility and experimentation." But, in its context, that statement plainly refers to the nature of the hearing and not to its timing. That the timing is a given and a constant is plain from the italicized phrases, especially that which concludes the relevant passage. The timing is specifically addressed in the previously quoted passage of the opinion, which makes clear that "promptly after arrest" means upon completion of the "administrative steps incident to arrest." It is not apparent to me, as it is to the Court, that, on these terms, "[i]ncorporating probable cause determinations into the "procedure for setting bail or fixing other conditions of pretrial release" ... would be impossible," ante at 54; but it is clear that, if and when it is impossible, Gerstein envisioned that the procedural "experimentation," rather than the Fourth Amendment's requirement of prompt presentation to a magistrate, would have to yield.Of course, even if the implication of the dictum in Gerstein were what the Court says, that would be poor reason for keeping a wrongfully arrested citizen in jail contrary to the clear dictates of the Fourth Amendment. What is most revealing of the frailty of today's opinion is that it relies upon nothing but that implication from a dictum, plus its own (quite irrefutable because entirely value-laden) "balancing" of the competing demands of the individual and the State. With respect to the point at issue here, different times and different places - even highly liberal times and places - have struck that balance in different ways. Some Western democracies currently permit the Executive a period of detention without impartially adjudicated cause. In England, for example, the Prevention of Terrorism Act 1989, 14(4), 5, permits suspects to be held without presentation and without charge for seven days. 12 Halsbury's Stat. 1294 (4th ed. 1989). It was the purpose of the Fourth Amendment to put this matter beyond time, place and judicial predilection, incorporating the traditional common law guarantees against unlawful arrest. The Court says not a word about these guarantees, and they are determinative. Gerstein's approval of a "brief period" of delay to accomplish "administrative steps incident to an arrest" is already a questionable extension of the traditional formulation, though it probably has little practical effect, and can perhaps be justified on de minimis grounds.2 To expand Gerstein, however, into an authorization for 48-hour detention related neither to the obtaining of a magistrate nor the administrative "completion" of the arrest seems to me utterly unjustified. Mr. McLaughlin was entitled to have a prompt impartial determination that there was reason to deprive him of his liberty - not according to a schedule that suits the State's convenience in piggybacking various proceedings, but as soon as his arrest was completed and the magistrate could be procured.III have finished discussing what I consider the principal question in this case, which is what factors determine whether the postarrest determination of probable cause has been (as the Fourth Amendment requires) "reasonably prompt." The Court and I both accept two of those factors, completion of the administrative steps incident to arrest and arranging for a magistrate's probable cause determination. Since we disagree, however, upon a third factor - the Court believing, as I do not, that "combining" the determination with other proceedings justifies a delay - we necessarily disagree as well on the subsequent question, which can be described as the question of the absolute time limit. Any determinant of "reasonable promptness" that is within the control of the State (as the availability of the magistrate, the personnel and facilities for completing administrative procedures incident to arrest, and the timing of "combined procedures" all are) must be restricted by some outer time limit, or else the promptness guarantee would be worthless. If, for example, it took a full year to obtain a probable cause determination in California because only a single magistrate had been authorized to perform that function throughout the State, the hearing would assuredly not qualify as "reasonably prompt." At some point, legitimate reasons for delay become illegitimate.I do not know how the Court calculated its outer limit of 48 hours. I must confess, however, that I do not know how I would do so either, if I thought that one justification for delay could be the State's "desire to combine." There are no standards for "combination," and as we acknowledged in Gerstein the various procedures that might be combined "vary widely" from State to State. 420 U.S., at 123. So as far as I can discern (though I cannot pretend to be able to do better), the Court simply decided that, given the administrative convenience of "combining," it is not so bad for an utterly innocent person to wait 48 hours in jail before being released.If one eliminates (as one should) that novel justification for delay, determining the outer boundary of reasonableness is a more objective and more manageable task. We were asked to undertake it in Gerstein, but declined - wisely, I think, since we had before us little data to support any figure we might choose. As the Court notes, however, Gerstein has engendered a number of cases addressing not only the scope of the procedures "incident to arrest," but also their duration. The conclusions reached by the judges in those cases, and by others who have addressed the question, are surprisingly similar. I frankly would prefer even more information, and, for that purpose, would have supported reargument on the single question of an outer time limit. The data available are enough to convince me, however, that certainly no more than 24 hours is needed.3 With one exception, no federal court considering the question has regarded 24 hours as an inadequate amount of time to complete arrest procedures, and, with the same exception, every court actually setting a limit for probable cause determination based on those procedures has selected 24 hours. (The exception would not count Sunday within the 24-hour limit.) See Bernard v. Palo Alto, 699 F.2d at 1025; McGill v. Parsons, 532 F.2d 484, 485 (CA5 1976); Sanders v. Houston, 543 F.Supp. at 701-703; Lively v. Cullinane, 451 F.Supp. at 1003-1004. Cf. Dommer v. Hatcher, 427 F.Supp. 1040, 1046 (ND Ind. 1975) (24-hour maximum; 48 if Sunday included), rev'd in part, 653 F.2d 289 (CA7 1981). See also Gramenos v. Jewel Companies, Inc., 797 F.2d at 437 (four hours "requires explanation"); Brandes, Post-Arrest Detention and the Fourth Amendment: Refining the Standard of Gerstein v. Pugh, 22 Colum.J.L. & Soc. Prob. 445, 474-475 (1989). Federal courts have reached a similar conclusion in applying Federal Rule of Criminal Procedure 5(a), which requires presentment before a federal magistrate "without unnecessary delay." See, e.g., Thomas, The Poisoned Fruit of Pretrial Detention, 61 N.Y.U.L.Rev. 413, 450, n. 238 (1986) (citing cases). And state courts have similarly applied a 24-hour limit under state statutes requiring presentment without "unreasonable delay." New York, for example, has concluded that no more than 24 hours is necessary from arrest to arraignment, People ex rel. Maxian v. Brown, 164 App. Div.2d at 62-64, 561 N.Y.S.2d at 421-422. Twenty-nine States have statutes similar to New York's, which require either presentment or arraignment "without unnecessary delay" or "forthwith"; eight States explicitly require presentment or arraignment within 24 hours; and only seven States have statutes explicitly permitting a period longer than 24 hours. Brandes, supra, at 478, n. 230. Since the States requiring a probable cause hearing within 24 hours include both New York and Alaska, it is unlikely that circumstances of population or geography demand a longer period. Twenty-four hours is consistent with the American Law Institute's Model Code. ALI, Model Code of Pre-Arraignment Procedure 310.1 (1975). And while the American Bar Association, in its proposed rules of criminal procedure, initially required that presentment simply be made "without unnecessary delay," it has recently concluded that no more than six hours should be required, except at night. Uniform Rules of Criminal Procedure, 10 U.L.A. App. Criminal Justice Standard 10-4.1 (Spec. Pamph. 1987). Finally, the conclusions of these commissions and judges, both state and federal, are supported by commentators who have examined the question. See, e.g., Brandes, supra, at 478-485 (discussing national 24-hour rule); Note, 74 Minn. L. Rev., at 207-209.In my view, absent extraordinary circumstances, it is an "unreasonable seizure" within the meaning of the Fourth Amendment for the police, having arrested a suspect without a warrant, to delay a determination of probable cause for the arrest either (1) for reasons unrelated to arrangement of the probable cause determination or completion of the steps incident to arrest, or (2) beyond 24 hours after the arrest. Like the Court, I would treat the time limit as a presumption; when the 24 hours are exceeded, the burden shifts to the police to adduce unforeseeable circumstances justifying the additional delay. * * * A few weeks before issuance of today's opinion, there appeared in the Washington Post the story of protracted litigation arising from the arrest of a student who entered a restaurant in Charlottesville, Virginia, one evening, to look for some friends. Failing to find them, he tried to leave - but refused to pay a $5 fee (required by the restaurant's posted rules) for failing to return a red tab he had been issued to keep track of his orders. According to the story, he "was taken by police to the Charlottesville jail" at the restaurant's request. "There, a magistrate refused to issue an arrest warrant," and he was released. Washington Post, Apr. 29, 1991, p. 1. That is how it used to be; but not, according to today's decision, how it must be in the future. If the Fourth Amendment meant then what the Court says it does now, the student could lawfully have been held for as long as it would have taken to arrange for his arraignment, up to a maximum of 48 hours.Justice Story wrote that the Fourth Amendment "is little more than the affirmance of a great constitutional doctrine of the common law." 3 J. Story, Commentaries on the Constitution 748 (1833). It should not become less than that. One hears the complaint, nowadays, that the Fourth Amendment has become constitutional law for the guilty; that it benefits the career criminal (through the exclusionary rule) often and directly, but the ordinary citizen remotely if at all. By failing to protect the innocent arrestee, today's opinion reinforces that view. The common law rule of prompt hearing had as its primary beneficiaries the innocent - not those whose fully justified convictions must be overturned to scold the police; nor those who avoid conviction because the evidence, while convincing, does not establish guilt beyond a reasonable doubt; but those so blameless that there was not even good reason to arrest them. While in recent years we have invented novel applications of the Fourth Amendment to release the unquestionably guilty, we today repudiate one of its core applications so that the presumptively innocent may be left in jail. Hereafter a law-abiding citizen wrongfully arrested may be compelled to await the grace of a Dickensian bureaucratic machine, as it churns its cycle for up to two days - never once given the opportunity to show a judge that there is absolutely no reason to hold him, that a mistake has been made. In my view, this is the image of a system of justice that has lost its ancient sense of priority, a system that few Americans would recognize as our own.I respectfully dissent.

Appeal challenging the constitutionality of appellee Commission's promulgation of certain dump truck rate tariffs is dismissed without prejudice, where after appellants' filing of jurisdictional statement appellee reopened the proceedings and is conducting additional hearings that may remove the basis for, or significantly modify, appellants' challenge. Appeal dismissed.PER CURIAM.In this appeal from a judgment of the Supreme Court of California, appellants challenge the constitutionality of the promulgation by appellee of certain rate tariffs applicable to dump truck carriers operating in California. They contend essentially that the tariffs violate their rights to due process and equal protection guaranteed by the Fourteenth Amendment because appellee issued them on the basis of findings unsupported by any evidence in the record. We have been informed by the parties that subsequent to the filing of the jurisdictional statement with this Court appellee reopened its proceedings at appellants' request and is conducting additional evidentiary hearings concerning the contested regulations. These hearings may remove the basis for, or significantly alter the nature of, appellants' constitutional attack. Consequently, we dismiss the appeal without prejudice to appellants' raising of any appropriate federal claims following the completion of the additional proceedings. See Boston & M. R. Co. v. United States, . So ordered.MR. JUSTICE REHNQUIST, dissenting.Since this appeal is properly before us, prior practice indicates that we must either dispose of it on the merits or advance some principled reason for not doing so. The statutory distinction, drawn by Congress, between certiorari and appeal would seem to require no less. While this Court's dismissal of the appeal in Boston & M. R. Co. v. United States, , may be justified as an exercise of our supervisory power over the lower federal courts, a proper respect for the independence of the state systems requires that as a general rule we deal with appeals from their judgments on the merits.Since Art. III of the Constitution limits our jurisdiction to cases and controversies, we have occasionally dismissed a state appeal as moot, In re Sarner, ; Castellano v. Commission of Investigation, , and we may be compelled to do so even though a state court has found a justiciable controversy under its own law, see Richardson v. Ramirez, . But there has been no suggestion of mootness here.Indeed, all there is here is an apparent preference on the part of the Court not to decide the merits of this case just now. This is not, in my opinion, a defensible exception to the principle that we must treat appeals on their merits. I conclude that the federal constitutional claims rejected by the Supreme Court of California have no merit.* Accordingly, I would dismiss the appeal for want of a substantial federal question. If other constitutional claims arise out of the reopened proceedings, they should be presented in an appeal from a subsequent final judgment.[Footnote *] I am satisfied that, for purposes of our jurisdiction under 28 U.S.C. 1257, the judgment of the Supreme Court of California is final. That judgment, denying appellants' petition for review, has finally rejected their claim that the commission proceedings were constitutionally defective. That court has not exercised any "latent power ... to reopen or revise its judgment." Market St. R. Co. v. Railroad Comm'n, . I fail to see how the subsequent actions of the parties can disturb the finality of that judgment. Nor does the Court suggest otherwise.

Petitioner was convicted on four counts of a five-count indictment charging offenses under the narcotics laws. The Solicitor General suggested to this Court that the combination of circumstances in the case, beginning with one judge's clearly expressed intention to impose a five-year sentence and ending with another judge's imposition of a twenty-year sentence, was not consistent with the orderly administration of criminal justice in the federal courts. Held: A due regard for the fair administration of justice requires that the convictions under Counts 3, 4 and 5 be set aside; but the conviction under Count 2, to which petitioner originally pleaded guilty, is affirmed. Pp. 646-647. 274 F.2d 352, affirmed in part and reversed in part.Stephen R. Reinhardt, acting under appointment by the Court, , and Herbert A. Bernhard, by special leave of Court, pro hac vice, argued the cause and filed a brief for petitioner.Solicitor General Cox argued the cause for the United States. With him on the brief were Acting Assistant Attorney General Foley, Beatrice Rosenberg and Theodore George Gilinsky.John T. McTernan, A. L. Wirin and Fred Okrand filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal.PER CURIAM.The petitioner was convicted on four counts of a five-count indictment charging offenses under the narcotics laws. 21 U.S.C. 174. He complains of a number of alleged trial errors. In addition, he points to a series of events occurring during the course of the prosecution which, he says, operated to deprive him of constitutionally guaranteed rights. It is unnecessary to detail here the course of those proceedings, since we are advised that a change in the calendar system of the District Court for the Southern District of California insures that what occurred in this case will not occur again.During oral argument in this Court the Solicitor General suggested that the combination of circumstances in this case, beginning with one judge's clearly expressed intention to impose a five-year sentence, and ending with another judge's imposition of a twenty-year sentence under the indictment, was not consistent with that regularity and fairness which should characterize the administration of criminal justice in the federal courts. In the light of the Solicitor General's suggestion, and upon an independent examination of the record, we have concluded that a due regard for the fair administration of justice requires that the convictions under counts 3, 4, and 5 of the indictment be set aside. 28 U.S.C. 2106; see Communist Party v. Subversive Activities Control Board, ; Mesarosh v. United States, ; Marshall v. United States, . Cf. Petite v. United States, . The conviction under count 2, to which the petitioner originally pleaded guilty, is affirmed.Because of this disposition of the case, we do not reach for consideration the alleged trial errors with respect to limitation of cross-examination, sufficiency of the evidence of a "sale" under count 5, and instructions to the jury as to entrapment. So ordered.

[Footnote *] Together with No. 82-1350, United States v. United Scottish Insurance Co. et al., also on certiorari to the same court. The Federal Aviation Act of 1958 directs the Secretary of Transportation to promote safety in air transportation by promulgating reasonable rules and regulations governing the inspection, servicing, and overhaul of civil aircraft. The Secretary, in her discretion, may prescribe the manner in which such inspection, servicing, and overhaul shall be made. In the exercise of this discretion, the Federal Aviation Administration (FAA), as the Secretary's designee, has devised a system of compliance review that involves certification of aircraft design and manufacture. Under this certification process, the duty to ensure that an aircraft conforms to FAA safety regulations lies with the manufacturer and operator, while the FAA retains responsibility for policing compliance. Thus, the manufacturer is required to develop the plans and specifications and perform the inspections and tests necessary to establish that an aircraft design comports with the regulations; the FAA then reviews the data by conducting a "spot check" of the manufacturer's work. Part of the FAA compliance procedure involves certification, whereby the FAA, if it finds that a proposed new type of aircraft comports with minimum safety standards, signifies its approval by issuing a type certificate. If an already certificated aircraft's design undergoes a major change, the FAA, if it approves the change, issues a supplemental type certificate. In No. 82-1349, a Boeing 707 commercial jet aircraft owned by respondent airline was flying from Rio de Janeiro to Paris when a fire broke out in one of the aft lavatories producing thick black smoke throughout the cabin. Despite a successful effort to land the plane, most of the passengers on board died from asphyxiation or the effects of toxic gases produced by the fire, and most of the plane's fuselage was consumed by the postimpact fire. Respondent airline's action against the United States under the Federal Tort Claims Act (Act or FTCA) seeking damages for the destroyed aircraft and a wrongful-death action by respondent families and representatives of the deceased passengers under the Act were consolidated in the Federal District Court. Respondents alleged that the Civil Aeronautics Agency, the FAA's predecessor, was negligent in issuing a type certificate for the Boeing 707 because the lavatory trash receptacle did not satisfy applicable safety regulations. The District Court granted summary judgment for the United States on the ground, inter alia, that recovery against the United States was barred by 28 U.S.C. 2680(a), which provides that the Act shall not apply to claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused" (discretionary function exception). The Court of Appeals reversed, holding, inter alia, that the discretionary function exception did not apply. In No. 82-1350, an aircraft owned by respondent Dowdle and used in an air taxi service caught fire in midair in the forward baggage compartment, crashed, and burned, killing all the occupants. Respondent Dowdle filed an action under the FTCA for property damage and respondent insurance companies also filed an action under the Act seeking reimbursement for moneys paid for liability coverage on Dowdle's behalf. Respondents claimed that the Government was negligent in issuing a supplemental type certificate for the installation of a gasoline-burning cabin heater in the airplane that did not comply with the applicable FAA regulations. The District Court in California, upon finding that the crash resulted from defective installation of the heater, entered judgment for respondents under the California "Good Samaritan" rule, and the Court of Appeals affirmed.Held: The actions are barred by the discretionary function exception of the FTCA. Pp. 807-821. (a) It is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case. Moreover, the legislative history discloses that such exception was plainly intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals. Congress wished to prevent "second-guessing" of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort. Pp. 807-814. (b) Here, the discretionary function exception precludes a tort action based upon the FAA's conduct in certificating the aircraft in question for use in commercial aviation. The FAA's implementation of a mechanism for compliance review is plainly discretionary activity of the "nature and quality" protected by 2680(a). Judicial intervention, through private tort suits, in the FAA's decision to utilize a "spot-checking" program as the best way to accommodate the goal of air transportation safety and the reality of finite agency resources would require the courts to "second-guess" the political, social, and economic judgments of an agency exercising its regulatory function. It was precisely this sort of judicial intervention that the discretionary function exception was designed to prevent. It follows that the acts of FAA employees in exercising the "spot-check" program are also protected by that exception, because respondents alleged only that the FAA failed to check particular items in the course of its review. Moreover, the risks encountered by these inspectors were encountered for the advancement of a governmental purpose and pursuant to a specific grant of authority. Pp. 814-820. 692 F.2d 1205 and 692 F.2d 1209, reversed.BURGER, C. J., delivered the opinion for a unanimous Court.Deputy Solicitor General Geller argued the cause for the United States. With him on the briefs were Solicitor General Lee, Assistant Attorney General McGrath, Carter G. Phillips, Leonard Schaitman, and John C. Hoyle.Richard F. Gerry argued the cause for respondents in both cases and filed a brief for respondents in No. 82-1350. Phillip D. Bostwick and James B. Hamlin filed a brief for respondent Varig Airlines in No. 82-1349. Robert R. Smiley III filed a brief for respondents Mascher et al. in No. 82-1349.Fn Fn Marc S. Moller and Donald I. Marlin filed a brief for the Association of Trial Lawyers of America as amicus curiae urging affirmance.CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari in these two cases to determine whether the United States may be held liable under the Federal Tort Claims Act, 28 U.S.C. 2671 et seq., for the negligence of the Federal Aviation Administration in certificating certain aircraft for use in commercial aviation.I A. No. 82-1349 On July 11, 1973, a commercial jet aircraft owned by respondent S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines) was flying from Rio de Janeiro to Paris when a fire broke out in one of the aft lavatories. The fire produced a thick black smoke, which quickly filled the cabin and cockpit. Despite the pilots' successful effort to land the plane, 124 of the 135 persons on board died from asphyxiation or the effects of toxic gases produced by the fire. Most of the plane's fuselage was consumed by a postimpact fire.The aircraft involved in this accident was a Boeing 707, a product of the Boeing Co. In 1958 the Civil Aeronautics Agency, a predecessor of the FAA, had issued a type certificate1 for the Boeing 707, certifying that its designs, plans, specifications, and performance data had been shown to be in conformity with minimum safety standards. Seaboard Airlines originally purchased this particular plane for domestic use; in 1969 Seaboard sold the plane to respondent Varig Airlines, a Brazilian air carrier, which used the plane commercially from 1969 to 1973.After the accident respondent Varig Airlines brought an action against the United States under the Federal Tort Claims Act seeking damages for the destroyed aircraft. The families and personal representatives of many of the passengers, also respondents here, brought a separate suit under the Act pressing claims for wrongful death. The two actions were consolidated in the United States District Court for the Central District of California.Respondents asserted that the fire originated in the towel disposal area located below the sink unit in one of the lavatories and alleged that the towel disposal area was not capable of containing fire. In support of their argument, respondents pointed to an air safety regulation requiring that waste receptacles be made of fire-resistant materials and incorporate covers or other provisions for containing possible fires. 14 CFR 4b.381(d) (1956). Respondents claimed that the CAA had been negligent when it inspected the Boeing 707 and issued a type certificate to an aircraft that did not comply with CAA fire protection standards. The District Court granted summary judgment for the United States on the ground that California law does not recognize an actionable tort duty for inspection and certification activities. The District Court also found that, even if respondents had stated a cause of action in tort, recovery against the United States was barred by two exceptions to the Act: the discretionary function exception, 28 U.S.C. 2680(a),2 and the misrepresentation exception, 2680(h).3 The United States Court of Appeals for the Ninth Circuit reversed. 692 F.2d 1205 (1982). The Court of Appeals reasoned that a private person inspecting and certificating aircraft for airworthiness would be liable for negligent inspection under the California "Good Samaritan" rule, see Restatement (Second) of Torts 323 and 324A (1965), and concluded that the United States should be judged by the same rule. 692 F.2d, at 1207-1208. The Court of Appeals rejected the Government's argument that respondents' actions were barred by 28 U.S.C. 2680(h), which provides that the United States is not subject to liability for any claim arising out of misrepresentation. Interpreting respondents' claims as arising from the negligence of the CAA inspection rather than from any implicit misrepresentation in the resultant certificate, the Court of Appeals held that the misrepresentation exception did not apply. 692 F.2d, at 1208. Finally, the Court of Appeals addressed the Government's reliance upon the discretionary function exception to the Act, 28 U.S.C. 2680(a), which exempts the United States from liability for claims "based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty... ." The Court of Appeals viewed the inspection of aircraft for compliance with air safety regulations as a function not entailing the sort of policymaking discretion contemplated by the discretionary function exception. 692 F.2d, at 1208-1209. B. No. 82-1350 On October 8, 1968, a DeHavilland Dove aircraft owned by respondent John Dowdle and used in the operation of an air taxi service caught fire in midair, crashed, and burned near Las Vegas, Nev. The pilot, copilot, and two passengers were killed. The cause of the crash was an in-flight fire in the forward baggage compartment of the aircraft.The DeHavilland Dove airplane was manufactured in the United Kingdom in 1951 and then purchased by Air Wisconsin, another air taxi operator. In 1965 Air Wisconsin contracted with Aerodyne Engineering Corp. to install a gasoline-burning cabin heater in the airplane. Aerodyne applied for, and was granted, a supplemental type certificate4 from the FAA authorizing the installation of the heater. Aerodyne then installed the heater pursuant to its contract with Air Wisconsin. In 1966, relying in part upon the supplemental type certificate as an indication of the airplane's airworthiness, respondent Dowdle purchased the DeHavilland Dove from Air Wisconsin.In the aftermath of the crash, respondent Dowdle filed this action for property damage against the United States under the Federal Tort Claims Act. Respondent insurance companies also filed suit under the Act, seeking reimbursement for moneys paid for liability coverage on behalf of Dowdle. The United States District Court for the Southern District of California found that the crash resulted from defects in the installation of the gasoline line leading to the cabin heater. The District Court concluded that the installation did not comply with the applicable FAA regulations and held that the Government was negligent in certifying an installation that did not comply with those safety requirements. Accordingly, the District Court entered judgment for respondents.On appeal, the United States Court of Appeals for the Ninth Circuit reversed and remanded for the District Court to consider whether the California courts would impose a duty of due care upon the Government by applying the "Good Samaritan" doctrine of 323 and 324A of the Restatement (Second) of Torts. 614 F.2d 188 (1979). The Court of Appeals also requested the District Court to determine whether, under the facts of this case, the California courts would find such a duty breached if a private person had issued the supplemental type certificate in question here. On remand, the District Court again entered judgment for respondents, finding that the California "Good Samaritan" rule would apply in this case and would give rise to liability on these facts.On the Government's second appeal, the Ninth Circuit affirmed the judgment of the District Court. 692 F.2d 1209 (1982). In so holding, the Court of Appeals followed reasoning nearly identical to that employed in its decision in No. 82-1349, decided the same day. We granted certiorari, , and we now reverse.IIIn the Federal Aviation Act of 1958, 49 U.S.C. 1421(a) (1),5 Congress directed the Secretary of Transportation to promote the safety of flight of civil aircraft in air commerce by establishing minimum standards for aircraft design, materials, workmanship, construction, and performance. Congress also granted the Secretary the discretion to prescribe reasonable rules and regulations governing the inspection of aircraft, including the manner in which such inspections should be made. 1421(a)(3). Congress emphasized, however, that air carriers themselves retained certain responsibilities to promote the public interest in air safety: the duty to perform their services with the highest possible degree of safety, 1421(b), the duty to make or cause to be made every inspection required by the Secretary, 1425(a), and the duty to observe and comply with all other administrative requirements established by the Secretary, 1425(a).Congress also established a multistep certification process to monitor the aviation industry's compliance with the requirements developed by the Secretary. Acting as the Secretary's designee,6 the FAA has promulgated a comprehensive set of regulations delineating the minimum safety standards with which the designers and manufacturers of aircraft must comply before marketing their products. See 14 CFR pts. 23, 25, 27, 29, 31, 33, and 35 (1983). At each step in the certification process, FAA employees or their representatives evaluate materials submitted by aircraft manufacturers to determine whether the manufacturer has satisfied these regulatory requirements. Upon a showing by the manufacturer that the prescribed safety standards have been met, the FAA issues an appropriate certificate permitting the manufacturer to continue with production and marketing.The first stage of the FAA compliance review is type certification. A manufacturer wishing to introduce a new type of aircraft must first obtain FAA approval of the plane's basic design in the form of a type certificate. After receiving an application for a type certificate, the Secretary must "make, or require the applicant to make, such tests during manufacture and upon completion as the Secretary ... deems reasonably necessary in the interest of safety... ." 49 U.S.C. 1423(a) (2). By regulation, the FAA has made the applicant itself responsible for conducting all inspections and tests necessary to determine that the aircraft comports with FAA airworthiness requirements. 14 CFR 21.33, 21.35 (1983). The applicant submits to the FAA the designs, drawings, test reports, and computations necessary to show that the aircraft sought to be certificated satisfies FAA regulations. 21.17(a)(1), 21.21(a)(b).7 In the course of the type certification process, the manufacturer produces a prototype of the new aircraft and conducts both ground and flight tests. 21.35. FAA employees or their representatives then review the data submitted by the applicant and make such inspections or tests as they deem necessary to ascertain compliance with the regulations. 21.33(a). If the FAA finds that the proposed aircraft design comports with minimum safety standards, it signifies its approval by issuing a type certificate. 49 U.S.C. 1423(a)(2); 14 CFR 21.21(a)(1) (1983).Production may not begin, however, until a production certificate authorizing the manufacture of duplicates of the prototype is issued. 49 U.S.C. 1423(b). To obtain a production certificate, the manufacturer must prove to the FAA that it has established and can maintain a quality control system to assure that each aircraft will meet the design provisions of the type certificate. 14 CFR 21.139, 21.143 (1983). When it is satisfied that duplicate aircraft will conform to the approved type design, the FAA issues a production certificate, and the manufacturer may begin mass production of the approved aircraft.Before any aircraft may be placed into service, however, its owner must obtain from the FAA an airworthiness certificate, which denotes that the particular aircraft in question conforms to the type certificate and is in condition for safe operation. 49 U.S.C. 1423(c). It is unlawful for any person to operate an aircraft in air commerce without a valid airworthiness certificate. 1430(a).An additional certificate is required when an aircraft is altered by the introduction of a major change in its type design. 14 CFR 21.113 (1983). To obtain this supplemental type certificate, the applicant must show the FAA that the altered aircraft meets all applicable airworthiness requirements. 21.115(a). The applicant is responsible for conducting the inspections and tests necessary to demonstrate that each change in the type design complies with the regulations. 21.115(b), 21.33(b). The methods used by FAA employees or their representatives to determine an applicant's compliance with minimum safety standards are generally the same as those employed for basic type certification. FAA Order 8110.4, Type Certification 32 (1967) (hereinafter FAA Order 8110.4); CAA Manual of Procedure, Flight Operations and Airworthiness, Type Certification 5106(a) (1957) (hereinafter CAA Manual of Procedure).With fewer than 400 engineers, the FAA obviously cannot complete this elaborate compliance review process alone. Accordingly, 49 U.S.C. 1355 authorizes the Secretary to delegate certain inspection and certification responsibilities to properly qualified private persons. By regulation, the Secretary has provided for the appointment of private individuals to serve as designated engineering representatives to assist in the FAA certification process. 14 CFR 183.29 (1984). These representatives are typically employees of aircraft manufacturers who possess detailed knowledge of an aircraft's design based upon their day-to-day involvement in its development. See generally Improving Aircraft Safety 29-30. The representatives act as surrogates of the FAA in examining, inspecting, and testing aircraft for purposes of certification. 14 CFR 183.1 (1984). In determining whether an aircraft complies with FAA regulations, they are guided by the same requirements, instructions, and procedures as FAA employees. FAA Order 8110.4, p. 151; CAA Manual of Procedure . 70(b). FAA employees may briefly review the reports and other data submitted by representatives before certificating a subject aircraft. Improving Aircraft Safety 31-32; FAA Order 8110.4, p. 159; CAA Manual of Procedure .77.IIIThe Federal Tort Claims Act, 28 U.S.C. 1346(b), authorizes suits against the United States for 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." The Act further provides that the United States shall be liable with respect to tort claims "in the same manner and to the same extent as a private individual under like circumstances." 2674.The Act did not waive the sovereign immunity of the United States in all respects, however; Congress was careful to except from the Act's broad waiver of immunity several important classes of tort claims. Of particular relevance here, 28 U.S.C. 2680(a) provides that the Act shall not apply to"[a]ny claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." (Emphasis added.) The discretionary function exception, embodied in the second clause of 2680(a), marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals.Although the Court has previously analyzed the legislative history of 2680(a), see Dalehite v. United States, , we briefly review its highlights for a proper understanding of the application of the discretionary function exception to this case. During the years of debate and discussion preceding the passage of the Act, Congress considered a number of tort claims bills including exceptions from the waiver of sovereign immunity for claims based upon the activities of specific federal agencies, notably the Federal Trade Commission and the Securities and Exchange Commission. See, e. g., H. R. 5373, 77th Cong., 2d Sess. (1942); H. R. 7236, 76th Cong., 1st Sess. (1940); S. 2690, 76th Cong., 1st Sess. (1939).8 In 1942, however, the 77th Congress eliminated the references to these particular agencies and broadened the exception to cover all claims based upon the execution of a statute or regulation or the performance of a discretionary function. H. R. 6463, 77th Cong., 2d Sess. (1942); S. 2207, 77th Cong., 2d Sess. (1942). The language of the exception as drafted during the 77th Congress is identical to that of 2680(a) as ultimately adopted.The legislative materials of the 77th Congress illustrate most clearly Congress' purpose in fashioning the discretionary function exception. A Government spokesman appearing before the House Committee on the Judiciary described the discretionary function exception as a "highly important exception:""[It is] designed to preclude application of the act to a claim based upon an alleged abuse of discretionary authority by a regulatory or licensing agency - for example, the Federal Trade Commission, the Securities and Exchange Commission, the Foreign Funds Control Office of the Treasury, or others. It is neither desirable nor intended that the constitutionality of legislation, the legality of regulations, or the propriety of a discretionary administrative act should be tested through the medium of a damage suit for tort. The same holds true of other administrative action not of a regulatory nature, such as the expenditure of Federal funds, the execution of a Federal project, and the like. "On the other hand, the common law torts of employees of regulatory agencies, as well as of all other Federal agencies, would be included within the scope of the bill." Hearings on H. R. 5373 and H. R. 6463 before the House Committee on the Judiciary, 77th Cong., 2d Sess., 28, 33 (1942) (statement of Assistant Attorney General Francis M. Shea).9 It was believed that claims of the kind embraced by the discretionary function exception would have been exempted from the waiver of sovereign immunity by judicial construction; nevertheless, the specific exception was added to make clear that the Act was not to be extended into the realm of the validity of legislation or discretionary administrative action. Id., at 29; id., at 37, Memorandum, with Appendixes, Federal Tort Claims Act (explanatory of Comm. Print of H. R. 5373, 1942). It was considered unnecessary to except by name such agencies as the Federal Trade Commission and the Securities and Exchange Commission, as had earlier bills, because the language of the discretionary function exception would "exemp[t] from the act claims against Federal agencies growing out of their regulatory activities." Id., at 8 (emphasis added).The nature and scope of 2680(a) were carefully examined in Dalehite v. United States, supra. Dalehite involved vast claims for damages against the United States arising out of a disastrous explosion of ammonium nitrate fertilizer, which had been produced and distributed under the direction of the United States for export to devastated areas occupied by the Allied Armed Forces after World War II. Numerous acts of the Government were charged as negligent: the cabinet-level decision to institute the fertilizer export program, the failure to experiment with the fertilizer to determine the possibility of explosion, the drafting of the basic plan of manufacture, and the failure properly to police the storage and loading of the fertilizer.The Court concluded that these allegedly negligent acts were governmental duties protected by the discretionary function exception and held the action barred by 2680(a). Describing the discretion protected by 2680(a) as "the discretion of the executive or the administrator to act according to one's judgment of the best course," id., at 34, the Court stated: "It is unnecessary to define, apart from this case, precisely where discretion ends. It is enough to hold, as we do, that the `discretionary function or duty' that cannot form a basis for suit under the Tort Claims Act includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications or schedules of operations. Where there is room for policy judgment and decision there is discretion. It necessarily follows that acts of subordinates in carrying out the operations of government in accordance with official directions cannot be actionable." Id., at 35-36 (footnotes omitted). Respondents here insist that the view of 2680(a) expressed in Dalehite has been eroded, if not overruled, by subsequent cases construing the Act, particularly Indian Towing Co. v. United States, , and Eastern Air Lines, Inc. v. Union Trust Co.App. D.C. 189, 221 F.2d 62, summarily aff'd sub nom. United States v. Union Trust Co., . While the Court's reading of the Act admittedly has not followed a straight line, we do not accept the supposition that Dalehite no longer represents a valid interpretation of the discretionary function exception.Indian Towing Co. v. United States, supra, involved a claim under the Act for damages to cargo aboard a vessel that ran aground, allegedly owing to the failure of the light in a lighthouse operated by the Coast Guard. The plaintiffs contended that the Coast Guard had been negligent in inspecting, maintaining, and repairing the light. Significantly, the Government conceded that the discretionary function exception was not implicated in Indian Towing, arguing instead that the Act contained an implied exception from liability for "uniquely governmental functions." Id., at 64. The Court rejected the Government's assertion, reasoning that it would "push the courts into the `non-governmental'-`governmental' quagmire that has long plagued the law of municipal corporations." Id., at 65.In Eastern Air Lines, Inc. v. Union Trust Co., supra, two aircraft collided in midair while both were attempting to land at Washington National Airport. The survivors of the crash victims sued the United States under the Act, asserting the negligence of air traffic controllers as the cause of the collision. The United States Court of Appeals for the District of Columbia Circuit permitted the suit against the Government. In its petition for certiorari, the Government urged the adoption of a "governmental function exclusion" from liability under the Act and pointed to 2680(a) as textual support for such an exclusion. Pet. for Cert. in United States v. Union Trust Co., O. T. 1955, No. 296, p. 18. The Government stated further that 2680(a) was "but one aspect of the broader exclusion from the statute of claims based upon the performance of acts of a uniquely governmental nature." Id., at 37. This Court summarily affirmed, citing Indian Towing Co. v. United States, supra. . Given the thrust of the arguments presented in the petition for certiorari and the pointed citation to Indian Towing, the summary disposition in Union Trust Co. cannot be taken as a wholesale repudiation of the view of 2680(a) set forth in Dalehite.10 As in Dalehite, it is unnecessary - and indeed impossible - to define with precision every contour of the discretionary function exception. From the legislative and judicial materials, however, it is possible to isolate several factors useful in determining when the acts of a Government employee are protected from liability by 2680(a). First, it is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case. As the Court pointed out in Dalehite, the exception covers "[n]ot only agencies of government ... but all employees exercising discretion." 346 U.S., at 33. Thus, the basic inquiry concerning the application of the discretionary function exception is whether the challenged acts of a Government employee - whatever his or her rank - are of the nature and quality that Congress intended to shield from tort liability.Second, whatever else the discretionary function exception may include, it plainly was intended to encompass the discretionary acts of the Government acting in its role as a regulator of the conduct of private individuals.11 Time and again the legislative history refers to the acts of regulatory agencies as examples of those covered by the exception, and it is significant that the early tort claims bills considered by Congress specifically exempted two major regulatory agencies by name. See supra, at 808-810. This emphasis upon protection for regulatory activities suggests an underlying basis for the inclusion of an exception for discretionary functions in the Act: Congress wished to prevent judicial "second-guessing" of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort. By fashioning an exception for discretionary governmental functions, including regulatory activities, Congress took "steps to protect the Government from liability that would seriously handicap efficient government operations." United States v. Muniz, .IVWe now consider whether the discretionary function exception immunizes from tort liability the FAA certification process involved in these cases. Respondents in No. 82-1349 argue that the CAA was negligent in issuing a type certificate for the Boeing 707 aircraft in 1958 because the lavatory trash receptacle did not satisfy applicable safety regulations. Similarly, respondents in No. 82-1350 claim negligence in the FAA's issuance of a supplemental type certificate in 1965 for the DeHavilland Dove aircraft; they assert that the installation of the fuel line leading to the cabin heater violated FAA airworthiness standards. From the records in these cases there is no indication that either the Boeing 707 trash receptacle or the DeHavilland Dove cabin heater was actually inspected or reviewed by an FAA inspector or representative. Brief for Respondent Varig Airlines in No. 82-1349, pp. 8, 15; Brief for United States 10, n. 10, and 37. Respondents thus argue in effect that the negligent failure of the FAA to inspect certain aspects of aircraft type design in the process of certification gives rise to a cause of action against the United States under the Act.The Government, on the other hand, urges that the basic responsibility for satisfying FAA air safety standards rests with the manufacturer, not with the FAA. The role of the FAA, the Government says, is merely to police the conduct of private individuals by monitoring their compliance with FAA regulations. According to the Government, the FAA accomplishes its monitoring function by means of a "spot-check" program designed to encourage manufacturers and operators to comply fully with minimum safety requirements. Such regulatory activity, the Government argues, is the sort of governmental conduct protected by the discretionary function exception to the Act.12 We agree that the discretionary function exception precludes a tort action based upon the conduct of the FAA in certificating these aircraft for use in commercial aviation.As noted supra, at 804, the Secretary of Transportation has the duty to promote safety in air transportation by promulgating reasonable rules and regulations governing the inspection, servicing, and overhaul of civil aircraft. 49 U.S.C. 1421(a)(3)(A). In her discretion, the Secretary may also prescribe"the periods for, and the manner in, which such inspection, servicing, and overhaul shall be made, including provision for examinations and reports by properly qualified private persons whose examinations or reports the Secretary of Transportation may accept in lieu of those made by its officers and employees." 1421(a)(3)(C) (emphasis added). Thus, Congress specifically empowered the Secretary to establish and implement a mechanism for enforcing compliance with minimum safety standards according to her "judgment of the best course." Dalehite v. United States, 346 U.S., at 34.In the exercise of this discretion, the FAA, as the Secretary's designee, has devised a system of compliance review that involves certification of aircraft design and manufacture at several stages of production. See supra, at 804-806. The FAA certification process is founded upon a relatively simple notion: the duty to ensure that an aircraft conforms to FAA safety regulations lies with the manufacturer and operator, while the FAA retains the responsibility for policing compliance.13 Thus, the manufacturer is required to develop the plans and specifications and perform the inspections and tests necessary to establish that an aircraft design comports with the applicable regulations; the FAA then reviews the data for conformity purposes by conducting a "spot check" of the manufacturer's work.The operation of this "spot-check" system is outlined in detail in the handbooks and manuals developed by the CAA and FAA for the use of their employees. For example, the CAA Manual of Procedure for type certification in effect at the time of the certification of the Boeing 707 provided: "Conformity determination may be varied depending upon circumstances. A manufacturer's policies, quality control procedures, experience, inspection personnel, equipment, and facilities will dictate the extent of conformity inspection to be conducted or witnessed by [CAA employees]. Differences between manufacturers require that the conformity program be adjusted to fit existing conditions. In the case of an inexperienced manufacturer whose ability is unknown, it may be necessary to conduct a high percentage of conformity inspections until such time as the [CAA] inspector feels he can safely rely to a greater degree upon the company inspectors. He may then gradually reduce his own inspection or witnessing accordingly. "Experienced manufacturers having previously demonstrated the acceptability of their quality control and inspection competence ... should benefit by greater [CAA] confidence. In such cases, conformity determination may be made through a planned system of spot-checking critical parts and assemblies and by reviewing inspection records and materials review dispositions. ... It is not intended that the inspector personally conduct a complete conformity inspection of each part he records on a [CAA] form. He should, however, visually inspect and witness the manufacturer's inspection of the critical characteristics... . In a program of this type, increased confidence in the manufacturer, plus a planned program of spot-checking by [CAA employees], should result in obtaining increased knowledge of conformity of the end product... . "Regardless of the manufacturer's experience, it is the [CAA] inspector's responsibility to assure that a complete conformity inspection has been performed by the manufacturer and that the results of this inspection are properly recorded and reported." CAA Manual of Procedure .330 (emphasis added). See also FAA Order 8110.4, pp. 39-40.As to the engineering review of an application for a type certificate, the CAA materials note that only a "relatively small number of engineers" are available to evaluate for compliance with air safety regulations the data submitted by applicants. Accordingly, the Manual states:"It is obvious that complete detailed checking of data is not possible. Instead, an overriding check method should be used [which] is predicated on the fact that the applicant has completely checked all data presented for examination. These data are to be examined in turn by the [CAA] engineer for method and completeness, and with sufficient spot-checking to ascertain that the design complies with the minimum airworthiness requirements." CAA Manual of Procedure .41 (emphasis added). See also FAA Order 8110.4, p. 60.14 The procedure for supplemental type certification is much the same. According to the Manual of Procedure applicable to the supplemental type certification of the DeHavilland Dove, an applicant must submit to the FAA data describing the proposed change in type design, which may be accompanied by drawings or photographs of the suggested alteration. The methods for determining compliance with applicable safety regulations are generally the same as those used for basic type certification. Physical inspections of the proposed modification in type design are required when compliance with the applicable regulations "cannot be determined adequately from an evaluation of the technical data." CAA Manual of Procedure 5106(b). Moreover, FAA representatives are authorized to approve data covering major changes in type design and obtain supplemental type certifications without prior review by the FAA. Id. 764(a). See also FAA Order 8110.4, pp. 31-32, 158.Respondents' contention that the FAA was negligent in failing to inspect certain elements of aircraft design before certificating the Boeing 707 and DeHavilland Dove necessarily challenges two aspects of the certification procedure: the FAA's decision to implement the "spot-check" system of compliance review, and the application of that "spot-check" system to the particular aircraft involved in these cases. In our view, both components of respondents' claim are barred by the discretionary function exception to the Act.The FAA's implementation of a mechanism for compliance review is plainly discretionary activity of the "nature and quality" protected by 2680(a). When an agency determines the extent to which it will supervise the safety procedures of private individuals, it is exercising discretionary regulatory authority of the most basic kind. Decisions as to the manner of enforcing regulations directly affect the feasibility and practicality of the Government's regulatory program; such decisions require the agency to establish priorities for the accomplishment of its policy objectives by balancing the objectives sought to be obtained against such practical considerations as staffing and funding. Here, the FAA has determined that a program of "spot-checking" manufacturers' compliance with minimum safety standards best accommodates the goal of air transportation safety and the reality of finite agency resources. Judicial intervention in such decisionmaking through private tort suits would require the courts to "second-guess" the political, social, and economic judgments of an agency exercising its regulatory function. It was precisely this sort of judicial intervention in policy-making that the discretionary function exception was designed to prevent.It follows that the acts of FAA employees in executing the "spot-check" program in accordance with agency directives are protected by the discretionary function exception as well. See Dalehite v. United States, 346 U.S., at 36. The FAA employees who conducted compliance reviews of the aircraft involved in this case were specifically empowered to make policy judgments regarding the degree of confidence that might reasonably be placed in a given manufacturer, the need to maximize compliance with FAA regulations, and the efficient allocation of agency resources. In administering the "spot-check" program, these FAA engineers and inspectors necessarily took certain calculated risks, but those risks were encountered for the advancement of a governmental purpose and pursuant to the specific grant of authority in the regulations and operating manuals. Under such circumstances, the FAA's alleged negligence in failing to check certain specific items in the course of certificating a particular aircraft falls squarely within the discretionary function exception of 2680(a). VIn rendering the United States amenable to some suits in tort, Congress could not have intended to impose liability for the regulatory enforcement activities of the FAA challenged in this case. The FAA has a statutory duty to promote safety in air transportation, not to insure it. We hold that these actions against the FAA for its alleged negligence in certificating aircraft for use in commercial aviation are barred by the discretionary function exception of the Federal Tort Claims Act. Accordingly, the judgments of the United States Court of Appeals for the Ninth Circuit are reversed. It is so ordered.

In a trial in a State Court, in which they were represented by court-appointed counsel, petitioners were convicted of robbery and sentenced to imprisonment. Their motions for a new trial were denied. Being indigents and acting pro se, they filed notices of appeal and motions for a free transcript of the record. After a hearing before the trial judge, at which petitioners represented themselves and also had the benefit of court-directed argument by their trial counsel, the trial judge entered findings of fact and conclusions of law respecting each error claimed by petitioners. He then denied their request for a transcript, on the ground that their assignments of error were patently frivolous, their guilt had been established by overwhelming evidence, and the furnishing of a transcript would waste public funds. Solely on the basis of a record of the hearing on this motion, the State Supreme Court sustained the trial judge's ruling on the motion. Held: The rules of the State of Washington governing the provision of transcripts to indigent criminal defendants for purposes of appeal were applied in this case so as to deprive petitioners of rights guaranteed to them by the Fourteenth Amendment. Pp. 488-500. (a) A State need not purchase a stenographer's transcript in every case where a defendant cannot buy it. Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise. Pp. 495-496. (b) In this case, the materials before the State Supreme Court when it reviewed the trial judge's denial of a free transcript did not constitute a record of sufficient completeness for adequate consideration of the errors assigned by petitioners on their appeal. Pp. 496-497. (c) By allowing the trial judge to prevent petitioners from having stenographic support or its equivalent for presentation of each of their separate contentions to the appellate tribunal, the State denied them rights assured them under the Fourteenth Amendment. Pp. 497-499. (d) The conclusion of the trial judge that an indigent's appeal is frivolous is an inadequate substitute for the full appellate review available to nonindigents in Washington, when the effect of that finding is to prevent an appellate examination based upon a sufficiently complete record of the trial proceedings themselves. Pp. 499-500. 58 Wash. 2d 830, 365 P.2d 31, reversed and cause remanded.Charles F. Luce, by appointment of the Court, , argued the cause and filed briefs for petitioners.John J. Lally argued the cause for respondents. With him on the brief was Joseph J. Rekofke.MR. JUSTICE GOLDBERG delivered the opinion of the Court.Certiorari was granted in this case, , in order that the Court might consider whether the State of Washington's rules governing the provision of transcripts to indigent criminal defendants for purposes of appeal were applied in this case so as to deprive petitioners of rights guaranteed them by the Fourteenth Amendment.This Court has dealt recently with the constitutional rights of indigents to free transcripts on appeal in Griffin v. Illinois, , and Eskridge v. Washington State Board of Prison Terms and Paroles, . The principle of Griffin is that "[d]estitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts," 351 U.S., at 19, a holding restated in Eskridge to be "that a State denies a constitutional right guaranteed by the Fourteenth Amendment if it allows all convicted defendants to have appellate review except those who cannot afford to pay for the records of their trials," 357 U.S., at 216. In Eskridge the question was the validity of Washington's long-standing procedure whereby an indigent defendant would receive a stenographic transcript at public expense only if, in the opinion of the trial judge, "justice will thereby be promoted." Id., at 215. This Court held per curiam that, given Washington's guarantee of the right to appeal to the accused in all criminal prosecutions, Wash. Const., Art. I, 22 and Amend. 10, "[t]he conclusion of the trial judge that there was no reversible error in the trial cannot be an adequate substitute for the right to full appellate review available to all defendants in Washington who can afford the expense of a transcript," id., at 216, and remanded the cause for further proceedings not inconsistent with the opinion. In response, in Woods v. Rhay, 54 Wash. 2d 36, 338 P.2d 332 (1959), a case which was remanded by this Court for reconsideration in light of Eskridge two weeks after that case was decided, , the Supreme Court of Washington formulated a new set of rules to govern trial judges in passing upon indigents' requests for free stenographic transcripts: "1. An indigent defendant in his motion for a free statement of facts must set forth: "a. The fact of his indigency "b. The errors which he claims were committed; and if it is claimed that the evidence is insufficient to justify the verdict, he shall specify with particularity in what respect he believes the evidence is lacking. (The allegations of error need not be expressed in any technical form but must clearly indicate what is intended.) "2. If the state is of the opinion that the errors alleged can properly be presented on appeal without a transcript of all the testimony, "a. it may make a showing of what portion of the transcript will be adequate, or "b. if it believes that a narrative statement will be adequate, it must show that such a statement is or will be available to the defendant. "3. The trial court in disposing of an indigent's motion for a statement of facts at county expense shall enter findings of fact upon the following matters: "a. The defendant's indigency "b. Which of the errors, if any, are frivolous and the reasons why they are frivolous "c. Whether a narrative form of statement of facts will be adequate to present the claimed errors for review and will be available to the defendant; and, if not "d. What portion of the stenographic transcript will be necessary to effectuate the indigent's appeal. "4. The trial court's disposition of the motion shall be by definitive order." 54 Wash. 2d, at 44-45, 338 P.2d, at 337. It is the application of these rules which is asserted by petitioners in the present case to be inconsistent with their constitutional rights as declared in the Griffin and Eskridge cases. Petitioners, who are concededly indigent, were each convicted of two counts of robbery by a jury and sentenced to two consecutive 20-year terms after a three-day trial ending on September 14, 1960, during which they were represented by court-appointed counsel. Their motions for new trials were denied. On October 20, acting pro se, they filed timely notices of appeal from the judgments of conviction, and then filed identical motions requesting the trial judge to order preparation of a free transcript of the record and statement of facts.1 Drawn inartistically, these requests asserted petitioners' indigency and then set forth 12 allegations of error in the trial, relating to admission of testimony and exhibits, perjured and self-contradictory testimony, prejudice of the trial judge in the conduct of the trial, failure to enforce the rule as to exclusion of witnesses, and failure of the evidence to establish the elements of the crime charged. Each concluded that "[u]nless Defendant is provided with a transcript and statement of facts at the county expense, he will be unable to prosecute this appeal."Petitioners' motions were heard on November 28 by the judge who had presided at the jury trial. Petitioners were present at the hearing, having been brought from the State Penitentiary where they were and still are incarcerated. Although they no longer wished the aid of counsel, the judge, in accordance with a statement in Woods v. Rhay,2 directed trial counsel to speak in petitioners' behalf. Counsel attempted, as best he could from his recollection of a trial which had occurred two and one-half months earlier, to elaborate upon the specifications of error in petitioners' motions. The objections to exhibits, he stated, related to a gun introduced against petitioner Draper, and a jacket, claimed to have been found with money in it, introduced as belonging to petitioner Lorentzen. Counsel explained at length that he regarded the foundation laid for introducing these items to have been extremely weak, and that receipt of the evidence on such a slim foundation was prejudicial. He suggested that petitioner Draper had been identified only by an alleged accomplice, Jennings, whose testimony was also contradictory and perjurious. Counsel also argued that the prosecution had failed to prove both the existence of the corporation which the indictment described as owning one of the robbed motels, and the possessory right of its agent to the money taken. "In my opinion," he said, "those two omissions are very important, if not fatal in this case." Further, counsel referred to petitioners' contention that two witnesses were improperly allowed to sit in the courtroom prior to testifying, and said that he had no personal knowledge of the facts supporting the contention but that since defendants had invoked the exclusion-of-witnesses rule at trial there was perhaps something to the contention. Finally, counsel argued that petitioners' contention that the evidence was insufficient to sustain the conviction was, under Woods v. Rhay and analogous decisions of this Court governing the rights of federal prisoners, enough in itself to entitle them to a transcript.Since petitioners had not desired counsel's assistance, petitioner Draper was allowed to argue when counsel finished. He stated in a layman's way what he believed were the trial errors, but when interrogated by the trial judge for supporting details he asserted his inability to give any without a transcript.The prosecutor opposed the motion both by affidavit and by argument at the hearing. His affidavit summarized in several paragraphs his contrary interpretation of the evidence, which according to him plainly established the defendants' guilt. In his argument he undertook to refute each of petitioners' assignments of error. He contended, therefore, that petitioners' motions for free transcripts and statements of facts should be denied because "there is nothing here to support any substantial claim of error whatsoever."The trial judge, upon conclusion of the prosecutor's argument, reviewed petitioners' assignments of error and indicated orally that he would deny their motions. On December 12 he entered an order, coupled with formal findings of fact and conclusions of law, in which he concluded"That the assignments of error as set out by each defendant are patently frivolous; that the guilt of each defendant as to each count of Robbery was established by overwhelming evidence, and that accordingly the furnishing of a statement of facts would result in a waste of public funds." His findings summarized in six paragraphs the facts which he thought had been proven at the three-day trial. This summary constituted only the trial judge's conclusions about the operative facts, without any description whatsoever of the evidence upon which those conclusions were based. After stating these factual conclusions, the judge specifically rejected each of petitioners' 12 assignments of error with a summary statement - almost wholly conclusory - concerning each.Petitioners sought review by certiorari of the trial court's order in the Supreme Court of Washington. Department One of that court quashed the writ, holding that the trial court had properly applied the principles of Woods v. Rhay and had correctly found the appeal to be frivolous. 58 Wash. 2d 830, 365 P.2d 31. By the very nature of the procedure, the Supreme Court's ruling was made without benefit of reference to any portion of a stenographic transcript of the jury trial. Solely on the basis of the stenographic record of the hearing on the motion, the Supreme Court stated that "[i]t would serve no useful purpose to set forth ... [the] evidence in detail," 58 Wash. 2d, at 832, 365 P.2d, at 33, and instead purported to summarize the operative facts briefly, based entirely and uncritically on the trial judge's conclusions as to what had occurred. These conclusory statements, arrived at without any examination of the underlying evidence, were then (inevitably, given the nature of the trial judge's conclusions) characterized as sufficient to show that all of the elements of the crime of robbery were established by the evidence.3 The court concluded by briefly dealing with and rejecting petitioners' specific assignments of error, just as the trial judge had done.Petitioners contend that the present Washington procedure for indigent appeals has not cured the constitutional defects disapproved in Eskridge. They argue that a standard which conditions effective appeal on a trial judge's finding, even though it be one of nonfrivolity instead of promotion of justice, denies them adequate appellate review. Under the present standard, just as under the disapproved one, they must convince the trial judge that their contentions of error have merit before they can obtain the free transcript necessary to prosecute their appeal. Failing to convince the trial judge, they continue, they are denied adequate appellate review because the Supreme Court then passes upon their assignments of error without consideration of the record of the trial proceedings, whereas defendants with money to buy a transcript are allowed a direct appeal to the Supreme Court, which affords them full review of their contentions. The State argues that this difference in procedure is justifiable because it safeguards against frivolous appeals by indigents while guaranteeing them appellate review in cases where such review is even of potential utility.4 In considering whether petitioners here received an adequate appellate review, we reaffirm the principle, declared by the Court in Griffin, that a State need not purchase a stenographer's transcript in every case where a defendant cannot buy it. 351 U.S., at 20. Alternative methods of reporting trial proceedings are permissible if they place before the appellate court an equivalent report of the events at trial from which the appellant's contentions arise. A statement of facts agreed to by both sides, a full narrative statement based perhaps on the trial judge's minutes taken during trial or on the court reporter's untranscribed notes, or a bystander's bill of exceptions might all be adequate substitutes, equally as good as a transcript. Moreover, part or all of the stenographic transcript in certain cases will not be germane to consideration of the appeal, and a State will not be required to expend its funds unnecessarily in such circumstances. If, for instance, the points urged relate only to the validity of the statute or the sufficiency of the indictment upon which conviction was predicated, the transcript is irrelevant and need not be provided. If the assignments of error go only to rulings on evidence or to its sufficiency, the transcript provided might well be limited to the portions relevant to such issues. Even as to this kind of issue, however, it is unnecessary to afford a record of the proceedings pertaining to an alleged failure of proof on a point which is irrelevant as a matter of law to the elements of the crime for which the defendant has been convicted.5 In the examples given, the fact that an appellant with funds may choose to waste his money by unnecessarily including in the record all of the transcript does not mean that the State must waste its funds by providing what is unnecessary for adequate appellate review. In all cases the duty of the State is to provide the indigent as adequate and effective an appellate review as that given appellants with funds - the State must provide the indigent defendant with means of presenting his contentions to the appellate court which are as good as those available to a nonindigent defendant with similar contentions.Petitioners' contentions in the present case were such that they could not be adequately considered by the State Supreme Court on the limited record before it. The arguments about improper foundation for introduction of the gun and coat, for example, could not be determined on their merits - as they would have been on a nonindigent's appeal - without recourse, at a minimum, to the portions of the record of the trial proceedings relating to this point.6 Again, the asserted failure of proof with respect to identification of the defendants and the allegations of perjury and inconsistent testimony were similarly impossible to pass upon without direct study of the relevant portions of the trial record. Finally, the alleged failure of the evidence to sustain the conviction could not be determined on the inadequate information before the Washington Supreme Court.The materials before the State Supreme Court in this case did not constitute a "record of sufficient completeness," see Coppedge v. United States, , and p. 498, infra, for adequate consideration of the errors assigned. No relevant portions of the stenographic transcript were before it. The only available description of what occurred at the trial was the summary findings of the trial court and the counter-affidavit filed by the prosecutor. The former was not in any sense like a full narrative statement based upon the detailed minutes of a judge kept during trial. It was, so far as we know, premised upon recollections as of a time nearly three months after trial and, far from being a narrative or summary of the actual testimony at the trial, was merely a set of conclusions. The prosecutor's affidavit can by no stretch of the imagination be analogized to a bystander's bill of exceptions. The fact recitals in it were in most summary form, were prepared by an advocate seeking denial of a motion for free transcript, and were contested by petitioners and their counsel at the hearing on that motion.By allowing the trial court to prevent petitioners from having stenographic support or its equivalent for presentation of each of their separate contentions to the appellate tribunal, the State of Washington has denied them the rights assured them by this Court's decisions in Griffin and Eskridge. The rules set out in Woods v. Rhay contemplate a procedure which could have been followed here to afford the petitioners what the Constitution requires. Thus, in accordance with those rules, the State could have endeavored to show that a narrative statement or only a portion of the transcript would be adequate and available for appellate consideration of petitioners' contentions. The trial judge would have complied with both the constitutional mandate and the rules in limiting the grant accordingly on the basis of such a showing by the State. What was impermissible was the total denial to petitioners of any means of getting adequate review on the merits in the State Supreme Court, when no such clog on the process of getting contentions before the State Supreme Court attends the appeals of defendants with money.The Washington rules as applied here come to this: An indigent defendant wishing to appeal and needing a transcript to do so may only obtain it if the judge who has presided at his trial and has already overruled his motion for a new trial as well as his objections to evidence and to conduct of the trial finds that these contentions, upon which he has already ruled, are not frivolous. The predictable finding of frivolity is subject to review without any direct scrutiny of the relevant aspects of what actually occurred at the trial, but rather with examination only of what the parties argued at the hearing on the transcript motion and what the judge recalled and thereafter summarily found as to what went on at the trial.This Court, in Coppedge v. United States, , dealt with similar vices in the federal courts by requiring that when a defendant denied leave to appeal in forma pauperis by the District Court applies to the Court of Appeals for leave to appeal, that court, when the substance of the applicant's claims cannot be adequately ascertained from the face of his application (as in the present case), must provide a "record of sufficient completeness to enable him to attempt to make a showing that the District Court's certificate of lack of `good faith' is in error and that leave to proceed ... in forma pauperis should be allowed." Here, similarly, the Washington Supreme Court could not deny petitioners' request for review of the denial of the transcript motion without first granting them a "record of sufficient completeness" to permit proper consideration of their claims. Such a grant would have ensured petitioners a right to review of their convictions as adequate and effective as that which Washington guarantees to nonindigents. Moreover, since nothing we say today militates against a State's formulation and application of operatively nondiscriminatory rules to both indigents and nonindigents in order to guard against frivolous appeals, the affording of a "record of sufficient completeness" to indigents would ensure that, if the appeals of both indigents and nonindigents are to be tested for frivolity, they will be tested on the same basis by the reviewing court. Compare Ellis v. United States, ; Coppedge v. United States, supra, 369 U.S., at 447-448.In Eskridge this Court held that "[t]he conclusion of the trial judge that there was no reversible error in the trial cannot be an adequate substitute for the right to full appellate review available to all defendants in Washington who can afford the expense of a transcript." 357 U.S., at 216. We hold today that the conclusion of the trial judge that an indigent's appeal is frivolous is a similarly inadequate substitute for the full appellate review available to nonindigents in Washington, when the effect of that finding is to prevent an appellate examination based upon a sufficiently complete record of the trial proceedings themselves.The judgment of the Washington Supreme Court is reversed and the cause is remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.

In 1974, after two years of unsatisfactory experience with conflicting federal and local technical standards governing the transmission of cable television broadcast signals, the Federal Communications Commission (FCC or Commission) promulgated regulations pre-empting the field of signal-quality regulation. In 1984, this Court broadly approved the preemptive authority that the FCC had asserted over cable system regulation. Capital Cities Cable, Inc. v. Crisp, . A few months later, Congress enacted the Cable Communications Policy Act of 1984 (Cable Act or Act), which empowers state or local authorities to enfranchise cable systems and to specify the facilities and equipment that franchisees could use, but which also authorizes the FCC to establish technical standards for such facilities and equipment. Pursuant to the latter provision, the FCC adopted regulations establishing technical standards governing the quality of cable signals and forbidding local authorities to impose more stringent technical standards. Petitioners sought review of the regulations in the Court of Appeals, contesting the scope of the FCC's claimed pre-emptive authority and asserting that franchising authorities could impose stricter technical standards than the Commission's. The court upheld the regulations.Held: The FCC did not exceed its statutory authority by forbidding local authorities to impose technical cable signal quality standards more stringent than those set forth in the Commission's regulations. Pp. 63-70. (a) Whether a federal agency has properly determined that its authority in a given area is exclusive and pre-empts any state regulatory efforts does not depend on the existence of express congressional authorization to displace state law. Rather, the correct focus is on the agency itself and on the proper bounds of its lawful authority to undertake such action. If the agency's decision to pre-empt represents a reasonable accommodation of conflicting policies committed to the agency's care by statute, the accommodation should not be disturbed unless it appears from the statute or its legislative history that the accommodation "is not one that Congress would have sanctioned." United States v. Shimer, . Pp. 63-64. (b) In adopting the regulations at issue, the FCC explicitly stated its intent to continue its prior policy of exercising exclusive authority and of pre-empting state and local regulation, in order to address the potentially serious adaptability and cost problems created for cable system operators and consumers by technical standards that vary from community to community. Thus, this case does not turn on whether there is an actual conflict between federal and state law, or whether compliance with both federal and state standards would be physically impossible. Pp. 65-66. (c) The FCC acted within its authority under the Cable Act when it pre-empted state and local regulation. In adopting the statute, Congress acted against a 10-year background of federal pre-emption on this particular issue and at a time shortly after Crisp approved FCC pre-emption in very similar respects. Nevertheless, Congress sanctioned in relevant respects the regulatory scheme that the Commission had already been following, without indicating explicit disapproval of the Commission's pre-emption of local technical standards. Given the difficulties the FCC had experienced with inconsistent local standards, it is doubtful that Congress would have meant to overturn pre-emption without discussion or even any suggestion that it was doing so. To the contrary, the legislative history makes clear that the Cable Act was not intended to work any significant change. Thus, nothing in the Act compels the conclusion that the decision to pre-empt "is not one that Congress would have sanctioned." Pp. 66-70. App. D.C. 191, 814 F.2d 720, affirmed.WHITE, J., delivered the opinion for a unanimous Court.Stephen J. McGrath argued the cause for petitioners. With him on the briefs were Doron Gopstein, Leonard J. Koerner, Paul S. Ryerson, Robert Alan Garrett, Patrick J. Grant, Cynthia Pols, Lucia A. Dougherty, and Edward J. Walsh, Jr.Deputy Solicitor General Wallace argued the cause for the federal respondents. With him on the brief were Solicitor General Fried and Diane S. Killory. H. Bartow Farr III argued the cause for respondent National Cable Television Association, Inc. With him on the brief were Brenda L. Fox, Michael S. Schooler, and Seth A. Davidson.* [Footnote *] Briefs of amici curiae urging reversal were filed for Montgomery County, Maryland, et al. by James J. Wilson, Nicholas P. Miller, W. Randolph Young, and Larrine S. Holbrooke; and for the U.S. Conference of Mayors et al. by Benna Ruth Solomon and Beate Bloch. JUSTICE WHITE delivered the opinion of the Court.The Federal Communications Commission has adopted regulations that establish technical standards to govern the quality of cable television signals and that prohibit local authorities from imposing more stringent technical standards. The issue is whether in doing so the Commission has exceeded its statutory authority.IThis case deals with yet another development in the ongoing efforts of federal, state, and local authorities to regulate different aspects of cable television over the past three decades. See Capital Cities Cable, Inc. v. Crisp, ; United States v. Southwestern Cable Co., . With the incipient development of cable television in the 1950's and 1960's from what had been more generally known as community antenna television systems, the Federal Communications Commission began to assert regulatory authority in this area. See CATV Second Report and Order, 2 F. C. C. 2d 725 (1966). In 1972, the Commission first asserted authority over technical aspects of cable television and devised technical standards to govern the transmission of broadcast signals by cable, though without pre-empting regulation of similar matters by state or local franchising authorities. Cable Television Report and Order, 36 F. C. C. 2d 143, on reconsideration, 36 F. C. C. 2d 326 (1972), aff'd sub nom. American Civil Liberties Union v. FCC, 523 F.2d 1344 (CA9 1975).1 Within two years, however, the Commission became convinced from its experience with conflicting federal and local technical standards that there is "a compelling need for national uniformity in cable television technical standards" which would require it to pre-empt the field of signal-quality regulation in order to meet the "necessity to rationalize, interrelate, and bring into uniformity the myriad standards now being developed by numerous jurisdictions." Cable Television Report and Order, 49 F. C. C. 2d 470, 477, 480 (1974). The Commission explained that a multiplicity of mandatory and nonuniform technical requirements undermined "the ultimate workability of the over-all system," could have "a deleterious effect on the development of new cable services," and could "seriously imped[e]" the "development and marketing of signal source, transmission, and terminal equipment." Id., at 478-479.2 In 1984, the Court approved the pre-emptive authority that the Commission had asserted over the regulation of cable television systems. We held that in the Communications Act of 1934, Congress authorized the Commission "to regulate all aspects of interstate communication by wire or radio," including the subsequently developed medium of cable television, and that the Commission's authority "extends to all regulatory actions `necessary to ensure the achievement of the Commission's statutory responsibilities.'" Crisp, supra, at 700, quoting FCC v. Midwest Video Corp., . Although the state law that was invalidated in Crisp regulated commercial advertising on cable television, rather than the technical quality of cable television signals, the Court recognized that for 10 years the Commission had "retained exclusive jurisdiction over all operational aspects of cable communication, including signal carriage and technical standards." Crisp, supra, at 702.A few months after the Court's decision in Crisp, Congress enacted the Cable Communications Policy Act of 1984 (Cable Act or Act), 98 Stat. 2780, 47 U.S.C. 521-559 (1982 ed., Supp. IV). Among its objectives in passing the Cable Act, Congress purported to "establish a national policy concerning cable communications" and to "minimize unnecessary regulation that would impose an undue economic burden on cable systems." 47 U.S.C. 521(1), (6) (1982 ed., Supp. IV). The Act was also intended to "establish guidelines for the exercise of Federal, State, and local authority with respect to the regulation of cable systems" through procedures and standards that "encourage the growth and development of cable systems and which assure that cable systems are responsive to the needs and interests of the local community." 521(3), (2) (1982 ed., Supp. IV).The Cable Act left franchising to state or local authorities; those authorities were also empowered to specify the facilities and equipment that franchisees were to use, provided such requirements were "consistent with this title." Cable Act, 624(a),(b), 47 U.S.C. 544(a),(b) (1982 ed., Supp. IV). Section 624(e) of the Cable Act provided that "[t]he Commission may establish technical standards relating to the facilities and equipment of cable systems which a franchising authority may require in the franchise." 47 U.S.C. 544(e) (1982 ed., Supp. IV).In 1985, the Commission promulgated regulations that would establish technical standards governing signal quality for one of four different classes of cable television channels and that would forbid local cable franchising authorities to impose their own standards on any of the four classes of channels. 50 Fed. Reg. 7801, 7802 (1985), 47 CFR pt. 76 (1986). The Commission eventually adopted a modified version of these regulations, which reaffirmed the Commission's established policy of pre-empting local regulation of technical signal quality standards for cable television. 50 Fed. Reg., at 52462, 52464-52465. The Commission found its statutory authority to adopt the regulations in 624(e) of the Cable Act, 47 U.S.C. 544(e) (1982 ed., Supp. IV), and in 47 U.S.C. 154(i) and 303(r). 50 Fed. Reg., at 52466. Petitioners (the cities of New York, Miami, and Wheaton, and the National League of Cities) sought review of the regulations in federal court, where they contested the scope of the pre-emptive authority claimed by the Commission and insisted that franchising authorities could impose stricter technical standards than those specified by the Commission.The Court of Appeals granted partial relief to petitioners. App. D.C. 191, 814 F.2d 720 (1987). It noted that the Commission had adopted technical standards applicable to one class of cable television channels, but had left the other three classes of channels completely unregulated. It agreed with petitioners that the Commission had acted arbitrarily and capriciously when it did not adopt technical standards for the latter three classes of channels, yet prohibited local authorities from adopting such standards and ignored the apparent conflict between these actions and the language of the Cable Act. It therefore vacated this part of the rule and remanded to the Commission for further proceedings. The court's holding was unanimous on this point, and that part of its decision is not at issue here.3 The Court of Appeals divided, however, over the propriety of the Commission's technical standards that apply to the first class of cable channels and that pre-empt more stringent local regulations. The majority of the panel upheld pre-emption, ruling that Congress intended federal regulations like these to supersede local law and that the Commission acted within the broad confines of the pre-emptive authority delegated to it by Congress when it adopted the regulations with respect to this one class of channels. One judge dissented, contending that the majority had sanctioned pre-emption without a clear manifestation of congressional intent, contrary to this Court's decisions. We granted certiorari, , and we now affirm.IIWhen the Federal Government acts within the authority it possesses under the Constitution, it is empowered to pre-empt state laws to the extent it is believed that such action is necessary to achieve its purposes. The Supremacy Clause of the Constitution gives force to federal action of this kind by stating that "the Laws of the United States which shall be made in Pursuance" of the Constitution "shall be the supreme Law of the Land." U.S. Const., Art. VI, cl. 2. The phrase "Laws of the United States" encompasses both federal statutes themselves and federal regulations that are properly adopted in accordance with statutory authorization. For this reason, at the same time that our decisions have established a number of ways in which Congress can be understood to have pre-empted state law, see Louisiana Public Service Comm'n v. FCC, , we have also recognized that "a federal agency acting within the scope of its congressionally delegated authority may pre-empt state regulation" and hence render unenforceable state or local laws that are otherwise not inconsistent with federal law. Id., at 369.This case involves the latter kind of pre-emption, and here the inquiry becomes whether the federal agency has properly exercised its own delegated authority rather than simply whether Congress has properly exercised the legislative power. Thus we have emphasized that in a situation where state law is claimed to be pre-empted by federal regulation, a "narrow focus on Congress' intent to supersede state law [is] misdirected," for "[a] pre-emptive regulation's force does not depend on express congressional authorization to displace state law." Fidelity Federal Savings & Loan Assn. v. De la Cuesta, . Instead, the correct focus is on the federal agency that seeks to displace state law and on the proper bounds of its lawful authority to undertake such action. The statutorily authorized regulations of an agency will pre-empt any state or local law that conflicts with such regulations or frustrates the purposes thereof. Beyond that, however, in proper circumstances the agency may determine that its authority is exclusive and pre-empts any state efforts to regulate in the forbidden area. Crisp, 467 U.S., at 700; De la Cuesta, supra, at 152-154. It has long been recognized that many of the responsibilities conferred on federal agencies involve a broad grant of authority to reconcile conflicting policies. Where this is true, the Court has cautioned that even in the area of pre-emption, if the agency's choice to pre-empt "represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned." United States v. Shimer, ; see also Crisp, supra, at 700. IIIAIn this case, there is no room for doubting that the Commission intended to pre-empt state technical standards governing the quality of cable television signals. In adopting the regulations at issue here, the Commission said:"Technical standards that vary from community to community create potentially serious negative consequences for cable system operators and cable consumers in terms of the cost of service and the ability of the industry to respond to technological changes. To address this problem, we proposed in the Notice to retain technical standards guidelines at the federal level which could be used, but could not be exceeded, in state and local technical quality regulations. ... . . "After a review of the record in this proceeding, we continue to believe that the policy adopted in 1974 was effective, should remain in force, and is entirely consistent with both the specific provisions and the general policy objectives underlying the 1984 Cable Act. This pre-emption policy has constrained state and local regulation of cable technical performance to Class I channels and has prohibited performance standards more restrictive than those contained in the Commission's rules. The reasons that caused the adoption of this policy appear to be as valid today as they were when the policy was first adopted." 50 Fed. Reg., at 52464. As noted above, the policy adopted by the Commission in 1974, which was continued in effect by the 1985 regulations, was a pre-emptive policy applying in the area of technical standards governing signal quality. 49 F. C. C. 2d, at 477-481. Since the Commission has explicitly stated its intent to exercise exclusive authority in this area and to pre-empt state and local regulation, this case does not turn on whether there is an actual conflict between federal and state law here, or whether compliance with both federal and state standards would be physically impossible. De la Cuesta, supra, at 153.BThe second part of the inquiry is whether the Commission is legally authorized to pre-empt state and local regulation that would establish complementary or additional technical standards, where it clearly is possible for a cable operator to comply with these standards in addition to the federal standards. We have identified at least two reasons why this part of the inquiry is crucial to our determination of the pre-emption issue. "First, an agency literally has no power to act, let alone pre-empt the validly enacted legislation of a sovereign State, unless and until Congress confers power upon it. Second, the best way of determining whether Congress intended the regulations of an administrative agency to displace state law is to examine the nature and scope of the authority granted by Congress to the agency." Louisiana Public Service Comm'n, 476 U.S., at 374. The second reason was particularly relevant in Louisiana Public Service Comm'n because there we were obliged to assess the import of a statutory section in which Congress appeared to have explicitly limited the Commission's jurisdiction, so as to prohibit it from pre-empting state laws concerning the manner in which telephone companies could depreciate certain plant and equipment. Id., at 369-376, 379, construing 47 U.S.C. 152(b).We conclude here that the Commission acted within the statutory authority conferred by Congress when it pre-empted state and local technical standards governing the quality of cable television signals. When Congress enacted the Cable Act in 1984, it acted against a background of federal pre-emption on this particular issue. For the preceding 10 years, the Commission had pre-empted such state and local technical standards under its broad delegation of authority to "[m]ake such rules and regulations and prescribe such restrictions and conditions, not inconsistent with law, as may be necessary to carry out the provisions of this chapter [the communications laws, Title 47 of the U.S. Code, Chapter 5]," as a means of implementing its legitimate discretionary power to determine what the "public convenience, interest, or necessity requires" in this field. 47 U.S.C. 303 and 303(r); see also 49 F. C. C. 2d, at 481; 47 U.S.C. 154(i). The Court's decision in Crisp, which was handed down during the time Congress was considering the legislation that within a few months became the Cable Act, broadly upheld the Commission's pre-emptive authority in very similar respects. 467 U.S., at 701-705.In the Cable Act, Congress sanctioned in relevant respects the regulatory scheme that the Commission had been following since 1974. In 624 of the Cable Act, Congress specified that the local franchising authority could regulate "services, facilities, and equipment" in certain respects, and could enforce those requirements, but 624(e) of the Act grants the Commission the power to "establish technical standards relating to the facilities and equipment of cable systems which a franchising authority may require in the franchise." 47 U.S.C. 544(a)-(e) (1982 ed., Supp. IV). This mirrors the state of the regulatory law before the Cable Act was passed, which permitted the local franchising authorities to regulate many aspects of cable services, facilities, and equipment but not to impose technical standards governing cable signal quality, since the Commission had explicitly reserved this power to the Federal Government.It is also quite significant that nothing in the Cable Act or its legislative history indicates that Congress explicitly disapproved of the Commission's pre-emption of local technical standards.4 Given the difficulties the Commission had experienced in this area, which had caused it to reverse its ground in 1974 after two years of unhappy experience with the practical consequences of inconsistent technical standards imposed by various localities, we doubt that Congress intended to overturn the Commission's decade-old policy without discussion or even any suggestion that it was doing so. To the contrary, the House Report which discusses this section of the Act portrays it as nothing more than a straightforward endorsement of current law:"Subsection (e) allows the Commission to set technical standards related to facilities and equipment required by a franchising authority pursuant to a franchising agreement. This provision does not affect the authority of a franchising authority to establish standards regarding facilities and equipment in the franchise pursuant to section 624(b) which are not inconsistent with standards established by the FCC under this subsection." H. R. Rep. No. 98-934, p. 70 (1984). This passage from the House Report makes clear that the Act was not intended to work any significant change in the law in the respects relevant to this case. By noting that 624(e) authorizes "the Commission to set technical standards related to facilities and equipment" and that it "does not affect the authority of a franchising authority to establish standards regarding facilities and equipment" that are not inconsistent with Commission standards, the House Report indicates both that Congress did not intend to remove from the Commission its longstanding power to establish pre-emptive technical standards, and that Congress did not intend to "affect the authority of a franchising authority" to set standards in these and similar matters regarding cable facilities and equipment. In particular, Congress did not manifest any intent to "affect the authority" of local franchising authorities by giving them the power to supplement the technical standards set by the Commission with respect to the quality of cable signals, a power which they generally had not been permitted to exercise for the last 10 years and which, according to the Commission's consistent view, disserves the public interest.5 Petitioners insist that under 624, as evidenced by the passage from the House Report quoted above, a franchising authority may specify any technical standards that do not conflict with Commission standards and hence may set stricter standards for signal quality. But this disregards the Commission's own power to pre-empt, an authority that we do not believe Congress intended to take away in the Cable Act. And it also disregards the Commission's explicit findings, based on considerable experience in this area, that complementary or additional technical standards set by state and local authorities do conflict with the basic objectives of federal policy with respect to cable television - findings that the Commission first articulated in 1974 and then reiterated in 1986. See 49 F. C. C. 2d, at 478-479; 50 Fed. Reg., at 52464-52465.In sum, we find nothing in the Cable Act which leads us to believe that the Commission's decision to pre-empt local technical standards governing the quality of cable signals "is not one that Congress would have sanctioned." Shimer, 367 U.S., at 383.6 We therefore affirm the judgment of the Court of Appeals. It is so ordered.

Per Curiam. In November 1998, Officer Joe Taylor of the Conway, Arkansas, Police Department stopped respondent Sullivan for speeding and for having an improperly tinted windshield. Taylor approached Sullivan's vehicle, explained the reason for the stop, and requested Sullivan's license, registration, and insurance documentation. Upon seeing Sullivan's license, Taylor realized that he was aware of "'intelligence on [Sullivan] regarding narcotics.'" 340 Ark. 318-A, 318-B, 16 S. W. 3d 551, 552 (2000). When Sullivan opened his car door in an (unsuccessful) attempt to locate his registration and insurance papers, Taylor noticed a rusted roofing hatchet on the car's floorboard. Taylor then arrested Sullivan for speeding, driving without his registration and insurance documentation, carrying a weapon (the roofing hatchet), and improper window tinting. After another officer arrived and placed Sullivan in his squad car, Officer Taylor conducted an inventory search of Sullivan's vehicle pursuant to the Conway Police Department's Vehicle Inventory Policy. Under the vehicle's armrest, Taylor discovered a bag containing a substance that appeared to him to be methamphetamine as well as numerous items of suspected drug paraphernalia. As a result of the detention and search, Sullivan was charged with various state-law drug offenses, unlawful possession of a weapon, and speeding. Sullivan moved to suppress the evidence seized from his vehicle on the basis that his arrest was merely a "pretext and sham to search" him and, therefore, violated the Fourth and Fourteenth Amendments to the United States Constitution. Pet. for Cert. 3. The trial court granted the suppression motion and, on the State's interlocutory appeal, the Arkansas Supreme Court affirmed. 340 Ark. 315, 11 S. W. 3d 526 (2000). The State petitioned for rehearing, contending that the court had erred by taking into account Officer Taylor's subjective motivation, in disregard of this Court's opinion in Whren v. United States, 517 U. S. 806 (1996). Over the dissent of three justices, the court rejected the State's argument that Whren makes "the ulterior motives of police officers ... irrelevant so long as there is probable cause for the traffic stop" and denied the State's rehearing petition. 340 Ark., at 318-B, 16 S. W. 3d, at 552. The Arkansas Supreme Court declined to follow Whren on the ground that "much of it is dicta." 340 Ark., at 318-A, 16 S. W. 3d, at 552. The court reiterated the trial judge's conclusion that "the arrest was pretextual and made for the purpose of searching Sullivan's vehicle for evidence of a crime," and observed that "we do not believe that Whren disallows" suppression on such a basis. 340 Ark., at 318-C, 16 S. W. 3d, at 552. Finally, the court asserted that, even if it were to conclude that Whren precludes inquiry into an arresting officer's subjective motivation, "there is nothing that prevents this court from interpreting the U. S. Constitution more broadly than the United States Supreme Court, which has the effect of providing more rights." 340 Ark., at 318-C, 16 S. W. 3d, at 552. Because the Arkansas Supreme Court's decision on rehearing is flatly contrary to this Court's controlling precedent, we grant the State's petition for a writ of certiorari and reverse.* As an initial matter, we note that the Arkansas Supreme Court never questioned Officer Tay-lor's authority to arrest Sullivan for a fine-only traffic violation (speeding), and rightly so. See Atwater v. Lago Vista, 532 U. S. ___ (2001). Rather, the court affirmed the trial judge's suppression of the drug-related evidence on the theory that Officer Taylor's arrest of Sullivan, although supported by probable cause, nonetheless violated the Fourth Amendment because Taylor had an improper subjective motivation for making the stop. The Arkansas Supreme Court's holding to that effect cannot be squared with our decision in Whren, in which we noted our "unwilling[ness] to entertain Fourth Amendment challenges based on the actual motivations of individual officers," and held unanimously that "[s]ubjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." 414 U. S. 218 (1973), for the proposition that "a traffic-violation arrest ... [will] not be rendered invalid by the fact that it was 'a mere pretext for a narcotics search.'" 517 U. S., at 812-813. The Arkansas Supreme Court's alternative holding, that it may interpret the United States Constitution to provide greater protection than this Court's own federal constitutional precedents provide, is foreclosed by Oregon v. Hass, 420 U. S. 714 (1975). There, we observed that the Oregon Supreme Court's statement that it could "'interpret the Fourth Amendment more restrictively than interpreted by the United States Supreme Court'" was "not the law and surely must be inadvertent error." Id., at 719, n. 4. We reiterated in Hass that while "a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards," it "may not impose such greater restrictions as a matter of federal constitutional law when this Court specifically refrains from imposing them." Id., at 719. The judgment of the Arkansas Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered.ARKANSAS v. KENNETH ANDREW SULLIVANon petition for writ of certiorari to the supreme court of arkansasNo. 00-262. Decided May 29, 2001 Justice Ginsburg, with whom Justice Stevens, Justice O'Connor, and Justice Breyer join, concurring. The Arkansas Supreme Court was moved by a concern rooted in the Fourth Amendment. Validating Kenneth Sullivan's arrest, the Arkansas court feared, would accord police officers disturbing discretion to intrude on individuals' liberty and privacy. See 340 Ark. 318-A, 318-B, 16 S. W. 3d 551, 552 (2000) (expressing unwillingness "to sanction conduct where a police officer can trail a targeted vehicle with a driver merely suspected of criminal activity, wait for the driver to exceed the speed limit by one mile per hour, arrest the driver for speeding, and conduct a full-blown inventory search of the vehicle with impunity"). But this Court has held that such exercises of official discretion are unlimited by the Fourth Amendment. See Atwater v. Lago Vista, 532 U. S. ___ (2001); Whren v. United States, 517 U. S. 806 (1996). Given the Court's current case law, I join the Court's opinion. In Atwater, which recognized no constitutional limitation on arrest for a fine-only misdemeanor offense, this Court relied in part on a perceived "dearth of horribles demanding redress." 532 U. S., at ___ (slip op., at 32). Although I joined a dissenting opinion questioning the relevance of the Court's conclusion on that score, see id., at __ (slip op., at 13-14) (O'Connor, J., dissenting), I hope the Court's perception proves correct. But if it does not, if experience demonstrates "anything like an epidemic of unnecessary minor-offense arrests," id., at __ (slip op., at 33) (opinion of the Court), I hope the Court will reconsider its recent precedent. See Vasquez v. Hillery, 474 U. S. 254, 266 (1986) (observing that Court has departed from stare decisis when necessary "to bring its opinions into agreement with experience and with facts newly ascertained") (quoting Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 412 (1932) (Brandeis, J., dissenting)). FOOTNOTESFootnote *Sullivan's motion for leave to proceed in forma pauperis is granted. We have jurisdiction under 28 U. S. C. §1257 notwithstanding the absence of final judgment in the underlying prosecution. See New York v. Quarles, 467 U. S. 649, 651, n. 1 (1984) ("[S]hould the State convict respondent at trial, its claim that certain evidence was wrongfully suppressed will be moot. Should respondent be acquitted at trial,the State will be precluded from pressing its federal claim again on appeal").

Petitioner produces electric energy and sells it to a 60-mile by 30-mile service area in the vicinity of Tampa, Fla. In 1954, it had two generating plants which consumed only oil in their burners, as did all electric generating plants in peninsular Florida. It decided to construct a new generating plant and to try burning coal in at least two, and possibly all, units of that plant; and it contracted to purchase from respondents all coal it would require as boiler fuel at the new plant over a 20-year period. Petitioner's estimated maximum requirements exceeded the total consumption of coal in peninsular Florida; but it did not amount to more than 1% of the total amount of coal of the same type produced and marketed by the 700 coal suppliers in respondents' producing area. Respondents repudiated the contract on the ground that it was illegal under the antitrust laws, and petitioner sued for a declaratory judgment that it was valid and for its enforcement. The District Court declared the contract violative of 3 of the Clayton Act and denied enforcement. The Court of Appeals affirmed. Held: The judgment is reversed. Pp. 321-335. 1. The contract here involved did not violate 3 of the Clayton Act. Pp. 325-335. (a) Even though a contract is an exclusive-dealing arrangement, it does not violate 3 unless its performance probably would foreclose competition in a substantial share of the line of commerce affected. Pp. 325-328. (b) In order for a contract to violate 3 the competition foreclosed by it must constitute a substantial share of the relevant market. Pp. 328-329. (c) On the record in this case, the relevant market is not peninsular Florida, the entire State of Florida or Florida and Georgia combined; it is the area in which respondents and the other 700 producers of the kind of coal here involved effectively compete. Pp. 330-333. (d) In the competitive bituminous coal marketing area here involved, the contract sued upon does not tend to foreclose a substantial volume of competition. Pp. 333-335. 2. Since the contract does not fall within the broader proscription of 3 of the Clayton Act, it is not forbidden by 1 or 2 of the Sherman Act. P. 335. 276 F.2d 766, reversed.William C. Chanler argued the cause and filed a brief for petitioner.Abe Fortas argued the cause for respondents. With him on the brief was Norman Diamond.MR. JUSTICE CLARK delivered the opinion of the Court.We granted certiorari to review a declaratory judgment holding illegal under 3 of the Clayton Act1 a requirements contract between the parties providing for the purchase by petitioner of all the coal it would require as boiler fuel at its Gannon Station in Tampa, Florida, over a 20-year period. . Both the District Court, 168 F. Supp. 456, and the Court of Appeals, 276 F.2d 766, Judge Weick dissenting, agreed with respondents that the contract fell within the proscription of 3 and therefore was illegal and unenforceable. We cannot agree that the contract suffers the claimed antitrust illegality2 and, therefore, do not find it necessary to consider respondents' additional argument that such illegality is a defense to the action and a bar to enforceability. The Facts.Petitioner Tampa Electric Company is a public utility located in Tampa, Florida. It produces and sells electric energy to a service area, including the city, extending from Tampa Bay eastward 60 miles to the center of the State, and some 30 miles in width. As of 1954 petitioner operated two electrical generating plants comprising a total of 11 individual generating units, all of which consumed oil in their burners. In 1955 Tampa Electric decided to expand its facilities by the construction of an additional generating plant to be comprised ultimately of six generating units, and to be known as the "Francis J. Gannon Station." Although every electrical generating plant in peninsular Florida burned oil at that time, Tampa Electric decided to try coal as boiler fuel in the first two units constructed at the Gannon Station. Accordingly, it contracted with the respondents3 to furnish the expected coal requirements for the units. The agreement, dated May 23, 1955, embraced Tampa Electric's "total requirements of fuel ... for the operation of its first two units to be installed at the Gannon Station ... not less than 225,000 tons of coal per unit per year," for a period of 20 years. The contract further provided that "if during the first 10 years of the term ... the Buyer constructs additional units [at Gannon] in which coal is used as the fuel, it shall give the Seller notice thereof two years prior to the completion of such unit or units and upon completion of same the fuel requirements thereof shall be added to this contract." It was understood and agreed, however, that "the Buyer has the option to be exercised two years prior to completion of said unit or units of determining whether coal or some other fuel shall be used in same." Tampa Electric had the further option of reducing, up to 15%, the amount of its coal purchases covered by the contract after giving six months' notice of an intention to use as fuel a by-product of any of its local customers. The minimum price was set at $6.40 per ton delivered, subject to an escalation clause based on labor cost and other factors. Deliveries were originally expected to begin in March 1957, for the first unit, and for the second unit at the completion of its construction.In April 1957, soon before the first coal was actually to be delivered and after Tampa Electric, in order to equip its first two Gannon units for the use of coal, had expended some $3,000,000 more than the cost of constructing oil-burning units, and after respondents had expended approximately $7,500,000 readying themselves to perform the contract, the latter advised petitioner that the contract was illegal under the antitrust laws, would therefore not be performed, and no coal would be delivered. This turn of events required Tampa Electric to look elsewhere for its coal requirements. The first unit at Gannon began operating August 1, 1957, using coal purchased on a temporary basis, but on December 23, 1957, a purchase order contract for the total coal requirements of the Gannon Station was made with Love and Amos Coal Company. It was for an indefinite period cancelable on 12 months' notice by either party, or immediately upon tender of performance by respondents under the contract sued upon here. The maximum price was $8.80 per ton, depending upon the freight rate. In its purchase order to the Love and Amos Company, Tampa estimated that its requirements at the Gannon Station would be 350,000 tons in 1958; 700,000 tons in 1959 and 1960; 1,000,000 tons in 1961; and would increase thereafter, as required, to "about 2,250,000 tons per year." The second unit at Gannon Station commenced operation 14 months after the first, i. e., October 1958. Construction of a third unit, the coal for which was to have been provided under the original contract, was also begun.The record indicates that the total consumption of coal in peninsular Florida, as of 1958, aside from Gannon Station, was approximately 700,000 tons annually. It further shows that there were some 700 coal suppliers in the producing area where respondents operated, and that Tampa Electric's anticipated maximum requirements at Gannon Station, i. e., 2,250,000 tons annually, would approximate 1% of the total coal of the same type produced and marketed from respondents' producing area.Petitioner brought this suit in the District Court pursuant to 28 U.S.C. 2201, for a declaration that its contract with respondents was valid, and for enforcement according to its terms. In addition to its Clayton Act defense, respondents contended that the contract violated both 1 and 2 of the Sherman Act which, it claimed, likewise precluded its enforcement. The District Court, however, granted respondent's motion for summary judgment on the sole ground that the undisputed facts, recited above, showed the contract to be a violation of 3 of the Clayton Act. The Court of Appeals agreed. Neither court found it necessary to consider the applicability of the Sherman Act. Decisions of District Court and Court of Appeals.Both courts admitted that the contract "does not expressly contain the `condition'" that Tampa Electric would not use or deal in the coal of respondent's competitors. Nonetheless, they reasoned, the "total requirements" provision had the same practical effect, for it prevented Tampa Electric for a period of 20 years from buying coal from any other source for use at that station. Each court cast aside as "irrelevant" arguments citing the use of oil as boiler fuel by Tampa Electric at its other stations, and by other utilities in peninsular Florida, because oil was not in fact used at Gannon Station, and the possibility of exercise by Tampa Electric of the option reserved to it to build oil-burning units at Gannon was too remote. Found to be equally remote was the possibility of Tampa's conversion of existing oil-burning units at its other stations to the use of coal which would not be covered by the contract with respondents. It followed, both courts found, that the "line of commerce" on which the restraint was to be tested was coal - not boiler fuels. Both courts compared the estimated coal tonnage as to which the contract pre-empted competition for 20 years, namely, 1,000,000 tons a year by 1961, with the previous annual consumption of peninsular Florida, 700,000 tons. Emphasizing that fact as well as the contract value of the coal covered by the 20-year term, i. e., $128,000,000, they held that such volume was not "insignificant or insubstantial" and that the effect of the contract would "be to substantially lessen competition," in violation of the Act. Both courts were of the opinion that in view of the executory nature of the contract, judicial enforcement of any portion of it could not be granted without directing a violation of the Act itself, and enforcement was, therefore, denied.4 Application of 3 of the Clayton Act.In the almost half century since Congress adopted the Clayton Act, this Court has been called upon 10 times,5 including the present, to pass upon questions arising under 3. Standard Fashion Co. v. Magrane-Houston Co., , the first of the cases, held that the Act "sought to reach the agreements embraced within its sphere in their incipiency, and in the section under consideration to determine their legality by specific tests of its own... ." At p. 356. In sum, it was declared, 3 condemned sales or agreements "where the effect of such sale or contract ... would under the circumstances disclosed probably lessen competition, or create an actual tendency to monopoly." At pp. 356-357. This was not to say, the Court emphasized, that the Act was intended to reach every "remote lessening" of competition - only those which were substantial - but the Court did not draw the line where "remote" ended and "substantial" began. There in evidence, however, was the fact that the activities of two-fifths of the Nation's 52,000 pattern agencies were affected by the challenged device. Then, one week later, followed United Shoe Machinery Corp. v. United States, , which held that even though a contract does "not contain specific agreements not to use the [goods] of a competitor," if "the practical effect ... is to prevent such use," it comes within the condition of the section as to exclusivity. At p. 457. The Court also held, as it had in Standard Fashion, supra, that a finding of domination of the relevant market by the lessor or seller was sufficient to support the inference that competition had or would be substantially lessened by the contracts involved there. As of that time it seemed clear that if "the practical effect" of the contract was to prevent a lessee or buyer from using the products of a competitor of the lessor or seller and the contract would thereby probably substantially lessen competition in a line of commerce, it was proscribed. A quarter of a century later, in International Salt Co. v. United States, , the Court held, at least in tying cases, that the necessity of direct proof of the economic impact of such a contract was not necessary where it was established that "the volume of business affected" was not "insignificant or insubstantial" and that the effect was "to foreclose competitors from any substantial market." At p. 396. It was only two years later, in Standard Oil Co. v. United States, , that the Court again considered 3 and its application to exclusive supply or, as they are commonly known, requirements contracts. It held that such contracts are proscribed by 3 if their practical effect is to prevent lessees or purchasers from using or dealing in the goods, etc., of a competitor or competitors of the lessor or seller and thereby "competition has been foreclosed in a substantial share of the line of commerce affected." At p. 314.In practical application, even though a contract is found to be an exclusive-dealing arrangement, it does not violate the section unless the court believes it probable that performance of the contract will foreclose competition in a substantial share of the line of commerce affected. Following the guidelines of earlier decisions, certain considerations must be taken. First, the line of commerce, i. e., the type of goods, wares, or merchandise, etc., involved must be determined, where it is in controversy, on the basis of the facts peculiar to the case.6 Second, the area of effective competition in the known line of commerce must be charted by careful selection of the market area in which the seller operates, and to which the purchaser can practicably turn for supplies. In short, the threatened foreclosure of competition must be in relation to the market affected. As was said in Standard Oil Co. v. United States, supra: "It is clear, of course, that the `line of commerce' affected need not be nationwide, at least where the purchasers cannot, as a practical matter, turn to suppliers outside their own area. Although the effect on competition will be quantitatively the same if a given volume of the industry's business is assumed to be covered, whether or not the affected sources of supply are those of the industry as a whole or only those of a particular region, a purely quantitative measure of this effect is inadequate because the narrower the area of competition, the greater the comparative effect on the area's competitors. Since it is the preservation of competition which is at stake, the significant proportion of coverage is that within the area of effective competition." At p. 299, note 5. In the Standard Oil case, the area of effective competition - the relevant market - was found to be where the seller and some 75 of its competitors sold petroleum products. Conveniently identified as the Western Area, it included Arizona, California, Idaho, Nevada, Oregon, Utah and Washington. Similarly, in United States v. Columbia Steel Co., , a 1 Sherman Act case, this Court decided the relevant market to be the competitive area in which Consolidated marketed its products, i. e., 11 Western States. The Court found Consolidated's share of the nationwide market for the relevant line of commerce, rolled steel products, to be less than 1/2 of 1%, an "insignificant fraction of the total market," at p. 508; and its share of the more narrow but only relevant market, 3%, was described as "a small part," at p. 511, not sufficient to injure any competitor of United States Steel in that area or elsewhere.Third, and last, the competition foreclosed by the contract must be found to constitute a substantial share of the relevant market. That is to say, the opportunities for other traders to enter into or remain in that market must be significantly limited as was pointed out in Standard Oil Co. v. United States, supra. There the impact of the requirements contracts was studied in the setting of the large number of gasoline stations - 5,937 or 16% of the retail outlets in the relevant market - and the large number of contracts, over 8,000, together with the great volume of products involved. This combination dictated a finding that "Standard's use of the contracts [created] just such a potential clog on competition as it was the purpose of 3 to remove" where, as there, the affected proportion of retail sales was substantial. At p. 314. As we noted above, in United States v. Columbia Steel Co., supra, substantiality was judged on a comparative basis, i. e., Consolidated's use of rolled steel was "a small part" when weighed against the total volume of that product in the relevant market.To determine substantiality in a given case, it is necessary to weigh the probable effect of the contract on the relevant area of effective competition, taking into account the relative strength of the parties, the proportionate volume of commerce involved in relation to the total volume of commerce in the relevant market area, and the probable immediate and future effects which pre-emption of that share of the market might have on effective competition therein. It follows that a mere showing that the contract itself involves a substantial number of dollars is ordinarily of little consequence. The Application of 3 Here.In applying these considerations to the facts of the case before us, it appears clear that both the Court of Appeals and the District Court have not given the required effect to a controlling factor in the case - the relevant competitive market area. This omission, by itself, requires reversal, for, as we have pointed out, the relevant market is the prime factor in relation to which the ultimate question, whether the contract forecloses competition in a substantial share of the line of commerce involved, must be decided. For the purposes of this case, therefore, we need not decide two threshold questions pressed by Tampa Electric. They are whether the contract in fact satisfies the initial requirement of 3, i. e., whether it is truly an exclusive-dealing one, and, secondly, whether the line of commerce is boiler fuels, including coal, oil and gas, rather than coal alone.7 We, therefore, for the purposes of this case, assume, but do not decide, that the contract is an exclusive-dealing arrangement within the compass of 3, and that the line of commerce is bituminous coal. Relevant Market of Effective Competition.Neither the Court of Appeals nor the District Court considered in detail the question of the relevant market. They do seem, however, to have been satisfied with inquiring only as to competition within "Peninsular Florida." It was noted that the total consumption of peninsular Florida was 700,000 tons of coal per year, about equal to the estimated 1959 requirements of Tampa Electric. It was also pointed out that coal accounted for less than 6% of the fuel consumed in the entire State.8 The District Court concluded that though the respondents were only one of 700 coal producers who could serve the same market, peninsular Florida, the contract for a period of 20 years excluded competitors from a substantial amount of trade. Respondents contend that the coal tonnage covered by the contract must be weighed against either the total consumption of coal in peninsular Florida, or all of Florida, or the Bituminous Coal Act area comprising peninsular Florida and the Georgia "finger," or, at most, all of Florida and Georgia. If the latter area were considered the relevant market, Tampa Electric's proposed requirements would be 18% of the tonnage sold therein. Tampa Electric says that both courts and respondents are in error, because the "700 coal producers who could serve" it, as recognized by the trial court and admitted by respondents, operated in the Appalachian coal area and that its contract requirements were less than 1% of the total marketed production of these producers; that the relevant effective area of competition was the area in which these producers operated, and in which they were willing to compete for the consumer potential.We are persuaded that on the record in this case, neither peninsular Florida, nor the entire State of Florida, nor Florida and Georgia combined constituted the relevant market of effective competition. We do not believe that the pie will slice so thinly. By far the bulk of the overwhelming tonnage marketed from the same producing area as serves Tampa is sold outside of Georgia and Florida, and the producers were "eager" to sell more coal in those States.9 While the relevant competitive market is not ordinarily susceptible to a "metes and bounds" definition, cf. Times-Picayune Pub. Co. v. United States, , it is of course the area in which respondents and the other 700 producers effectively compete. Standard Oil Co. v. United States, supra. The record shows that, like the respondents, they sold bituminous coal "suitable for [Tampa's] requirements," mined in parts of Pennsylvania, Virginia, West Virginia, Kentucky, Tennessee, Alabama, Ohio and Illinois. We take notice of the fact that the approximate total bituminous coal (and lignite) product in the year 1954 from the districts in which these 700 producers are located was 359,289,000 tons, of which some 290,567,000 tons were sold on the open market.10 Of the latter amount some 78,716,000 tons were sold to electric utilities.11 We also note that in 1954 Florida and Georgia combined consumed at least 2,304,000 tons, 1,100,000 of which were used by electric utilities, and the sources of which were mines located in no less than seven States.12 We take further notice that the production and marketing of bituminous coal (and lignite) from the same districts, and assumedly equally available to Tampa on a commercially feasible basis, is currently on a par with prior years.13 In point of statistical fact, coal consumption in the combined Florida-Georgia area has increased significantly since 1954. In 1959 more than 3,775,000 tons were there consumed, 2,913,000 being used by electric utilities including, presumably, the coal used by the petitioner.14 The coal continued to come from at least seven States.15 From these statistics it clearly appears that the proportionate volume of the total relevant coal product as to which the challenged contract pre-empted competition, less than 1% is, conservatively speaking, quite insubstantial. A more accurate figure, even assuming pre-emption to the extent of the maximum anticipated total requirements, 2,250,000 tons a year, would be .77%. Effect on Competition in the Relevant Market.It may well be that in the context of antitrust legislation protracted requirements contracts are suspect, but they have not been declared illegal per se. Even though a single contract between single traders may fall within the initial broad proscription of the section, it must also suffer the qualifying disability, tendency to work a substantial - not remote - lessening of competition in the relevant competitive market. It is urged that the present contract pre-empts competition to the extent of purchases worth perhaps $128,000,000,16 and that this "is, of course, not insignificant or insubstantial." While $128,000,000 is a considerable sum of money, even in these days, the dollar volume, by itself, is not the test, as we have already pointed out.The remaining determination, therefore, is whether the pre-emption of competition to the extent of the tonnage involved tends to substantially foreclose competition in the relevant coal market. We think not. That market sees an annual trade in excess of 250,000,000 tons of coal and over a billion dollars - multiplied by 20 years it runs into astronomical figures. There is here neither a seller with a dominant position in the market as in Standard Fashions, supra; nor myriad outlets with substantial sales volume, coupled with an industry-wide practice of relying upon exclusive contracts, as in Standard Oil, supra; nor a plainly restrictive tying arrangement as in International Salt, supra. On the contrary, we seem to have only that type of contract which "may well be of economic advantage to buyers as well as to sellers." Standard Oil Co. v. United States, supra, at p. 306. In the case of the buyer it "may assure supply," while on the part of the seller it "may make possible the substantial reduction of selling expenses, give protection against price fluctuations, and ... offer the possibility of a predictable market." Id., at 306-307. The 20-year period of the contract is singled out as the principal vice, but at least in the case of public utilities the assurance of a steady and ample supply of fuel is necessary in the public interest. Otherwise consumers are left unprotected against service failures owing to shutdowns; and increasingly unjustified costs might result in more burdensome rate structures eventually to be reflected in the consumer's bill. The compelling validity of such considerations has been recognized fully in the natural gas public utility field. This is not to say that utilities are immunized from Clayton Act proscriptions, but merely that, in judging the term of a requirements contract in relation to the substantiality of the foreclosure of competition, particularized considerations of the parties' operations are not irrelevant. In weighing the various factors, we have decided that in the competitive bituminous coal marketing area involved here the contract sued upon does not tend to foreclose a substantial volume of competition.We need not discuss the respondents' further contention that the contract also violates 1 and 2 of the Sherman Act, for if it does not fall within the broader proscription of 3 of the Clayton Act it follows that it is not forbidden by those of the former. Times-Picayune Pub. Co. v. United States, supra, at pp. 608-609.The judgment is reversed and the case remanded to the District Court for further proceedings not inconsistent with this opinion. It is so ordered.MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS are of the opinion that the District Court and the Court of Appeals correctly decided this case and would therefore affirm their judgments.

Petitioner instituted proceedings under Chapter XI of the Bankruptcy Act, alleging inability to pay its debts as they matured. It had been converted from an operating company to a holding company with the shares of the subsidiaries pledged to creditors; and it had heavy short-term loans. It had no publicity held debts, but had over 2,000,000 shares of common stock listed on the American Stock Exchange and held by over 7,000 shareholders. A shareholder owning 3,000 shares, and the Securities and Exchange Commission, moved that the proceedings be dismissed unless the petition be amended to comply with Chapter X of the Bankruptcy Act. Held: In deciding that proceedings under Chapter X rather than Chapter XI were appropriate, the discretion exercised by the District Court and the Court of Appeals did not transcend allowable bounds, and their judgment is affirmed. Pp. 463-468. (a) In determining whether Chapter X or Chapter XI affords the appropriate remedy, the question is whether, on the facts of the case, the formulation of a plan under the auspices of disinterested trustees, as assured by Chapter X and the other protective provisions of that Chapter, would better serve the public and private interests concerned, including those of the debtor, than the simpler arrangement under Chapter XI. Pp. 465-466. (b) The essential difference in the choice between Chapter X and Chapter XI is not between the small company and the large company nor in the nature of the capital structure but between the needs to be served. Pp. 466-467. (c) The record in this case supports the view of the two lower courts that petitioner may need a more pervasive reorganization than is possible under Chapter XI. Pp. 467-468. 222 F.2d 234, affirmed.Aaron Rosen and Frederic P. Houston argued the cause for petitioner. With them on the brief was Marks F. Paskes. William H. Timbers argued the cause for the Securities and Exchange Commission, respondent. With him on the brief were Solicitor General Sobeloff, Thomas G. Meeker, David Ferber and Aaron Levy.A. Alan Reich argued the cause for Shlensky, respondent. With him on the brief was Michael Gesas.Max Goldweber argued the cause for the Wage Claimants, respondents. With him on the brief was Louis J. Weinshenker.Leon Singer argued the cause for the Creditors Committee, respondent. With him on the brief was Samuel Blumberg.MR. JUSTICE DOUGLAS delivered the opinion of the Court.Petitioner instituted proceedings under c. XI of the Bankruptcy Act (52 Stat. 905, as amended, 11 U.S.C. 701 et seq.) alleging it was unable to pay its debts as they matured. It proposed an arrangement of its general unsecured trade and commercial debts, none of which is evidenced by any publicly held security. Petitioner has indeed no debts of any nature by way of bonds, mortgage certificates, notes, debentures, or obligations of like character, publicly held. It does, however, have over 2,000,000 shares of $1 par value common stock listed on the American Stock Exchange and held by over 7,000 shareholders. One of these - an owner of 3,000 shares - and the Securities and Exchange Commission moved that the proceedings be dismissed unless, within a time fixed by the court, the petition be amended to comply with the requirements of c. X of the Bankruptcy Act (52 Stat. 883, as amended, 11 U.S.C. 501 et seq.) for a corporate reorganization. The District Court granted the motions. 129 F. Supp. 801. The Court of Appeals affirmed by a divided vote. 222 F.2d 234. The case is here on certiorari. .Petitioner, formerly known as D. A. Schulte, Inc., has operated for some years a chain of stores for the sale of tobacco and accessory products. Petitioner has also had a chain of difficulties. Its financial problems go back at least to 1936 when it filed a petition for reorganization under former 77B of the Bankruptcy Act. After its reorganization was completed in 1940, it had a few years of prosperity followed by a postwar decline in volume of business, a rise in costs, and substantial losses. During these years $600,000 cash was raised by the sale of stock and a new management installed with a view to converting some existing stores into candy, food, and drink establishments. That idea was abandoned and the proceeds of the stock sale were used for general corporate purposes. It was then decided to liquidate the existing specialty stores and to have petitioner acquire the stock of two existing retail drugstore chains - Stineway Drug Company and Ford Hopkins Company. The Stineway stock was acquired for $1,220,320, petitioner borrowing $870,000 from Stineway for the purpose. Later petitioner borrowed an additional $440,000 from Stineway to help make the down payment on the Ford Hopkins stock, making a total indebtedness to Stineway of $1,310,000, represented by two non-interest-bearing notes. The Ford Hopkins stock was acquired for $2,800,000, the down payment being $735,000, the balance being payable in a yearly amount of $200,000 with 4 per cent interest and secured by the Stineway and Ford Hopkins stock.While the two drug chains were being acquired, petitioner started the liquidation of its own stores, a process that was completed under c. XI of the Bankruptcy Act. The disposition of those stores involved the rejection of numerous leases and the creation of claims of landlords against petitioner. The arrangement proposed by petitioner under c. XI would extend its unsecured obligations and provide for a 20 per cent payment on confirmation of the plan and 20 per cent annually for 4 years thereafter. The claims listed were the $1,310,000 debt to Stineway and $525,000 unsecured claims, exclusive of claims by landlords. We were advised on oral argument that during the course of the c. XI proceedings it was decided that this offer was not feasible and that the unsecured creditors are now offered the equivalent of 40 per cent of their claims in full satisfaction.Much of the argument has been devoted to the meaning of Securities and Exchange Commission v. United States Realty Co., . In that case we held that relief was not properly sought under c. XI but that c. X offered the appropriate relief. That was a case of a debtor with publicly owned debentures, publicly owned mortgage certificates, and publicly owned stock. An arrangement was proposed that would leave the debentures and stock unaffected and extend the certificates and reduce the interest. It was argued in that case, as it has been in the instant one, that c. X affords the relief for corporations whose securities are publicly owned, while c. XI is available to debtors whose stock is closely held; that c. X is designed for the large corporations, c. XI for the smaller ones; that it is the character of the debtor that determines whether c. X or c. XI affords the appropriate remedy. We did not adopt that distinction in the United States Realty case. Rather we emphasized the need to determine on the facts of the case whether the formulation of a plan under the control of the debtor, as provided by c. XI, or the formulation of a plan under the auspices of disinterested trustees, as assured by c. X and the other protective provisions of that chapter, would better serve "the public and private interests concerned including those of the debtor." 310 U.S., at 455. The United States Realty case presented a rather simple problem. There one class of creditors was being asked to make sacrifices, while the position of the stockholders remained unimpaired (id., 453-454, 456), contrary to the teachings of Case v. Los Angeles Lumber Products Co., . Moreover, the history of the company raised a serious question "whether any fair and equitable arrangement in the best interest of creditors" could be effected "without some re-arrangement of its capital structure." Id., 456. For those reasons c. X was held to offer the appropriate relief.The character of the debtor is not the controlling consideration in a choice between c. X and c. XI. Nor is the nature of the capital structure. It may well be that in most cases where the debtor's securities are publicly held c. X will afford the more appropriate remedy. But that is not necessarily so. A large company with publicly held securities may have as much need for a simple composition of unsecured debts as a smaller company. And there is no reason we can see why c. XI may not serve that end. The essential difference is not between the small company and the large company but between the needs to be served.Readjustment of all or a part of the debts of an insolvent company without sacrifice by the stockholders may violate the fundamental principle of a fair and equitable plan (see Case v. Los Angeles Lumber Products Co., supra), as the United States Realty Co. case emphasizes.Readjustment of the debts structure of a company, without more, may be inadequate unless there is also an accounting by the management for misdeeds which caused the debacle.Readjustment of the debts may be a minor problem compared with the need for new management. Without a new management today's readjustment may be a temporary moratorium before a major collapse. These are typical instances where c. X affords a more adequate remedy than c. XI. The appointment of a disinterested trustee ( 156), his broad powers of investigation ( 167), the role of the trustee in preparing a plan ( 169), the duty of the Securities and Exchange Commission to render an advisory report on the plan ( 172), the requirement that the plan be "fair and equitable, and feasible" ( 174, 221), the power to include the subsidiaries, Stineway and Ford Hopkins, in the reorganization of petitioner ( 129) - these are controls which c. X gives to the entire community of interests in the company being reorganized and which are lacking under c. XI. These controls are essential both where a complicated debt structure must be readjusted and where a sound discretion indicates either that there must be an accounting from the management or that a new management is necessary. Those conditions only illustrate the need for c. X. There may be others equally compelling.The history of this debtor indicates not fraud but either an improvident over extension or a business that has been out of step with modern trends. One corporate reorganization has already been suffered. Heavy short-term loans hang ominously over the company; and it has been converted from an operating company to a holding company with the shares of the subsidiaries pledged to creditors. It is argued that only a short moratorium is needed. There are, however, fears that a short moratorium may be merely a prelude to new disasters, that what the company needs is a fundamental reorganization of its capital structure, so that its limited cash resources will not be dissipated in an effort to meet the demands for debt reduction. A question as to what is "fair and equitable" between creditors and stockholders may eventually be reached in the reorganization. But the paramount issue at present concerns what is "feasible." A "feasible" plan within the meaning of c. X, 174, 221, might mean, first, a merger of the subsidiaries with the holding company, and, second, a funding of the unsecured debt and a realignment of debt and stock so as to give a balanced capital structure. The old business has been liquidated and the new one launched with heavy borrowings on a short-term basis. If the new one is to succeed, it may well need a more thoroughgoing capital readjustment than is possible under c. XI. That was the view of two lower courts. We could reverse them only if their exercise of discretion transcended the allowable bounds. We cannot say that it does. Rather we think that the lower courts took a fair reading of c. X and the functions it serves and reasonably concluded that this business needed a more pervasive reorganization than is available under c. XI. Affirmed.MR. JUSTICE HARLAN took no part in the consideration or decision of this case.MR. JUSTICE FRANKFURTER, whom MR. JUSTICE BURTON joins, dissenting.This is a proceeding for confirmation of an arrangement under Chapter XI of the Bankruptcy Act, 11 U.S.C. 701 et seq. The controlling facts are these. Petitioner is a corporation with a simple capital structure, with its common stock, which is traded on the American Stock Exchange, held in the hands of 7,000 stockholders. The proposed arrangement exclusively affects the unsecured creditors, including wage earners whom the Bankruptcy Act accords priority of payment. All these creditors strongly support confirmation of the arrangement. The Securities and Exchange Commission, in its capacity of protector of public investors, opposed the resort to Chapter XI and insisted on the reorganization procedure defined by Chapter X. The stockholders themselves have not opposed the arrangement, barring only a single stockholder representing two-tenths of one percent of the common stock of the debtor. There is no suggestion of fraud or other improper behavior on the part of the management of the debtor, which has suffered business misadventure apparently attributable to changes in consumer response to the type of business conducted by the original Schulte tobacco stores. The District Court dismissed the petition under Chapter XI, with leave to the debtor to meet the requirements of reorganization under Chapter X.* 129 F. Supp. 801. A divided Court of Appeals sustained the District Court, 222 F.2d 234, and its judgment is here affirmed.The essence of this Court's decision is that the District Court acted as it did in the exercise of allowable discretion. But if the exercise of discretion by the District Court was guided by inappropriate standards, its exercise of discretion is left without a supporting basis and cannot stand. Such, I believe, is the situation here.The District Court was set on its course by what it deemed the guiding ruling of this Court in Securities and Exchange Commission v. United States Realty & Improvement Co., . But the usually careful district judge misconceived the demands of that case upon him by relying on some general observation without the qualifying illumination of the literary and factual context of what he quoted from the opinion in that case. The District Court found guidance in the statement that "the two chapters [X and XI] were specifically devised to afford different procedures, the one adapted to the reorganization of corporations with complicated debt structures and many stockholders, the other to composition of debts of small individual business and corporations with few stockholders ... ." .In the first place, his quotation breaks into a sentence, which plainly enough indicated that what the district judge quoted was not the ratio decidendi of the Realty case but a loose generality. The district judge left unquoted the qualifying introduction, "While we do not doubt that in general," with the further cautionary phrase, "as will presently appear more in detail ... ." The later details derive significance from the wholly different set of facts in the Realty case. In that case the arrangement for which shelter was sought under Chapter XI involved changes affecting security holders, and those changes, the Court found, easily might adversely affect the creditors. This precluded a finding that the arrangement was "for the best interests of the creditors," which is an essential requisite for confirmation. The Court was very careful to say that the application it gave to Chapter XI in the Realty case "does not mean that there is no scope for application of that chapter in many cases where the debtor's financial business and corporate structure differ from respondent's." 310 U.S., at 454.Again, while what was quoted from the Realty case by the district judge seemed to indicate a sharp line between corporations "with many stockholders" and corporations "with few stockholders," assigning Chapter X to the former and restricting Chapter XI to the latter, the opinion in the Realty case went on to say (what was not quoted below), "we find in neither chapter any definition or classification which would enable us to say that a corporation is small or large, its security holders few or many, or that its securities are `held by the public,' so as to place the corporation exclusively within the jurisdiction of the court under one chapter rather than the other." 310 U.S., at 447.The upshot of the matter is that a critical reading of the extended opinion in the Realty case requires the conclusion that all its general observations must be limited to the particular situation which elicited them. And yet, the controlling consideration in the District Court's dismissal of the Chapter XI proceeding is fairly attributable to the fact that the plan of arrangement concerned "a corporation with 7,000 holders of two and a quarter million shares of stock listed on the American Stock Exchange and recently selling at under two dollars a share." 129 F. Supp. 801, 805. Such a basis for judgment disregards the informal, efficient, and economical procedure for financial readjustments of a corporation with its creditors where no change in the capital structure is involved, where no charge of impropriety in corporate management is intimated, where all the creditors urge that the proposed arrangement is for their "best interests" ( 366 of the Chandler Act, 52 Stat. 840, 911), and where a refusal to entertain the arrangement would work real hardship to 174 wage claimants.Not only was the District Court's exercise of discretion against entertainment of the Chapter XI proceeding based on a misconception of the holding in the Realty case. It was also in disregard of the amendment to Chapter XI by 35 of the Act of July 7, 1952, 66 Stat. 420, 433. By that amendment Congress eliminated the requirement that a plan of arrangement had to be "fair and equitable." That requirement was in Chapter XI, as it stood at the time of the Realty decision, and by it Congress had written into Chapter XI the absolute rule for equity reorganizations laid down by this Court in Northern Pacific R. Co. v. Boyd, , and Case v. Los Angeles Lumber Products Co., . (H. R. Rep. No. 2320, 82d Cong., 2d Sess. 21.) Even if the "fair and equitable" rule were still in Chapter XI, there is nothing in the facts of this case to show that the arrangement would not satisfy that requirement, for we have noted that the plan of arrangement here, unlike the situation in Realty, leaves untouched the position of the security holders. Since the Realty decision to no small degree turned on the enforcement of the "fair and equitable" rule, it is noteworthy that no consideration was given by the lower courts, and none is given by this Court, to the significance of this amendment by Congress. One would suppose that the elimination, in 1952, of this drastic requirement is the clearest possible indication that Chapter XI should be given a more generous scope than even the narrowest reading of Realty might suggest. Chapter XI should not be shriveled in its availability.I would reverse the Court of Appeals.[Footnote *] At the time of the Realty decision, if a proceeding was found to have been improperly brought under Chapter XI, it had to be dismissed and a proceeding started anew under Chapter X. Section 30 of the Act of July 7, 1952, amended the law so as to allow a transfer of a Chapter XI proceeding, if improperly filed thereunder, to Chapter X. 66 Stat. 420, 432, and see H. R. Rep. No. 2320, 82d Cong., 2d Sess. 19.

Under the Oklahoma Unfair Sales Act, a State Court enjoined appellant from selling at retail any items of merchandise at prices less than statutory cost, even though some of appellant's competitors were selling below cost at prices appellant either knew or had reason to know were illegal. The Oklahoma Court also refused to enjoin certain of appellant's competitors from giving away trading stamps with goods sold at or near statutory cost, and enjoined appellant from reducing its prices below cost to meet that competition. Held: The Oklahoma Unfair Sales Act, as construed and applied in this case, does not transgress the Equal Protection or Due Process Clause of the Fourteenth Amendment. Pp. 334-342. 322 P.2d 178, affirmed.Ramsey Clark argued the cause for appellant. With him on the brief were V. P. Crowe, Robert L. Clark and William L. Keller.Samuel M. Lane argued the cause for appellees. With him on the brief were W. J. Holloway, Sr., M. A. Ned Looney and Robert P. Beshar.Mac Q. Williamson, Attorney General of Oklahoma, filed a brief, as amicus curiae, urging affirmance.Chester Inwald filed a brief for the National Association of Tobacco Distributors, Inc., as amicus curiae, urging affirmance.MR. JUSTICE FRANKFURTER delivered the opinion of the Court.This is a suit for an injunction, brought in a state court in Oklahoma by appellee, Oklahoma Retail Grocers Association, against appellant, Safeway Stores, for selling several specified items of retail grocery merchandise below "cost" in violation of the Oklahoma Unfair Sales Act. Okla. Stat. tit. 15, 598.1-598.11 (1951). Section 598.3 of the Act provides: "It is hereby declared that any advertising, offer to sell, or sale of any merchandise, either by retailers or wholesalers, at less than cost as defined in this Act with the intent and purpose of inducing the purchase of other merchandise or of unfairly diverting trade from a competitor or otherwise injuring a competitor, impair and prevent fair competition, injure public welfare, are unfair competition and contrary to public policy and the policy of this Act, where the result of such advertising, offer or sale is to tend to deceive any purchaser or prospective purchaser, or to substantially lessen competition, or to unreasonably restrain trade, or to tend to create a monopoly in any line of commerce." The elements of "cost" are enumerated in other sections of the statute. Safeway defended on the ground, inter alia, that its reductions were permitted by 598.7 of the Unfair Sales Act which allows "any retailer or wholesaler" to"... advertise, offer to sell, or sell merchandise at a price made in good faith to meet the price of a competitor who is selling the same article or products of comparable quality at cost to him as a wholesaler or retailer." Safeway by cross-petition sought to enjoin several named members of appellee Association, including Speed, alleging that they were selling below cost in violation of the Act. The trial court, with some qualification, granted the injunction against Safeway and denied relief against appellees. On appeal, the Supreme Court of Oklahoma affirmed, 322 P.2d 179, and since the constitutionality of the state statute was challenged under the Fourteenth Amendment, we noted probable jurisdiction, , and brought the case here under 28 U.S.C. 1257 (2).Safeway makes two main claims.1. Safeway justified cutting prices below cost in some cities by claiming it was to meet the prices of some of its competitors who were also selling below cost. The statute allows a reduction below cost only when it is a good faith meeting of the competition of a seller who is selling at his own cost. The trial court found that Safeway's reductions violated the Act, and that Safeway could not avail itself of the statutory defense of meeting competition since its reductions were not in good faith but were made to meet prices Safeway "either knew or had reason to know were illegal ... ." The court enjoined Safeway from"... selling, at retail, any items of merchandise ... at prices which are less than cost to the retailer as defined in the Oklahoma `Unfair Sales Act' and in violation of the provisions of said `Unfair Sales Act', except to meet in good faith the prices of competitors who are selling the same articles or products of comparable quality at cost to them as retailers as defined in the Oklahoma `Unfair Sales Act', and except in instances of other exempted sales as provided in Section 598.6 of said Oklahoma `Unfair Sales Act.'" The injunction, phrased substantially in the terms of the statute, allows Safeway to meet the prices of competitors who are selling "at cost to them" if the other requisites of the good faith defense are met. Appellant claims that this injunction deprives it of a constitutional right to compete since it forbids meeting the prices of competitors who are selling below cost. There is no constitutional right to employ retaliation against action outlawed by a State. Safeway, the Oklahoma court held, had ample means, under the state statute, to enjoin the illegal methods of its competitors. It had no constitutional right to embark on the very kind of destructive price war the Act was designed to prevent.Appellant also claims that there are situations in which a competitor might reduce his prices below cost without violating the Act, and hence, under the injunction, Safeway would have no remedy whatsoever since it could not retaliate in kind and judicial relief would not be available. The conclusive answer to this claim is that it is not before us for adjudication. The court below found that Safeway was meeting prices it "knew or had reason to know" were illegal. It then phrased its injunction in the terms of a statute which has yet to be construed in the abstract circumstances presented by appellant. The Oklahoma Supreme Court carefully noted that it was interpreting the Unfair Sales Act as applied to the particular facts of this case, pointing out that "until a proper factual case is presented which requires a clear determination and offers a practical situation in which all the conflicting problems and considerations of the area involved are apparent, this court will refrain from theorizing." 322 P.2d, at 181. If this is a rule of wise restraint for the courts of Oklahoma in this situation, it clearly bars constitutional adjudication here.1 2. Appellant's second contention involves its competitors' use of trading stamps. Trading stamps, it hardly needs to be stated, are, generally speaking, coupons given by dealers to retail purchasers on the basis of the dollar value of the items purchased, e. g., one stamp for each ten cents' worth of goods, and are collected by the purchaser until he has enough to redeem for various items of merchandise. Trading stamps have had a checkered career in the United States, but since World War II their popularity has grown until now it is a reasonable estimate that these multi-colored scraps of paper may be found in almost half of America's homes.2 When this suit was brought Safeway did not use trading stamps. In the Oklahoma City-Midwest City area several of its competitors did. These stamps were deemed to be worth approximately 2.5 percent of the price of the goods with which they were given. Safeway contended in the Oklahoma courts that giving a trading stamp with goods sold at or near the statutory minimum resulted in an unlawful reduction below "cost" to the extent of the value of the trading stamp. To be specific, if an item sold for $1, and that price was statutory cost, the trading stamps given with it would be worth approximately 2.5 cents and the net price was therefore $.975, or 2.5 cents below cost. Safeway sought to restrain its competitors from selling below cost in this manner and also claimed that it was justified, in order to meet competition, in reducing its prices to the net of its competitors' prices, taking into account the value of trading stamps. The Oklahoma court found that the giving of trading stamps with items sold at or near statutory cost was not a violation of the statute and denied Safeway's request for an injunction. The court also decided that Safeway could not reduce its prices to meet the trading stamp competition. It did, however, provide that Safeway could do what appellees did, it might issue "trading stamps, cash register receipts, or other evidence of credit issued as a discount for prompt payment of cash ...," as long as the value of the discount did not exceed three percent.3 Safeway contends that such a construction of the Unfair Sales Act violates the Fourteenth Amendment. Appellant claims that even though the State may prohibit sales below "cost," it is barred from allowing a merchant to give trading stamps with goods sold at or near "cost," unless it allows competing merchants to make an equivalent price reduction. For the State to differentiate between the use of trading stamps and price-cutting is, so the argument runs, a constitutionally inadmissible discrimination.4 "It would be an idle parade of familiar learning to review the multitudinous cases in which the constitutional assurance of the equal protection of the laws has been applied. The generalities on this subject are not in dispute; their application turns peculiarly on the particular circumstances of a case." Goesaert v. Cleary, . The Oklahoma court decided that, although price cuts below cost were prohibited by the statute, the use of trading stamps was not a price reduction but constituted a cash discount, i. e., a reduction given to customers for prompt payment of cash. Opposing expert accountants sustained and rejected the validity of such a difference. In matters of this sort we might content ourselves in resting on the clash of expert opinion to show that the Oklahoma decision was not wanting in a foundation that may not unjustifiably have commended itself as a state policy. However, we may note some readily apparent differences between the practices which support the State's differentiation and thereby the power asserted by the State.Trading stamps are given to cash customers "across the board," namely, the number of stamps varies directly with the total cost of goods purchased. Safeway's price-cutting, however, was selective. This difference is vital in the context of this Act. One of the chief aims of state laws prohibiting sales below cost was to put an end to "loss-leader" selling. The selling of selected goods at a loss in order to lure customers into the store is deemed not only a destructive means of competition; it also plays on the gullibility of customers by leading them to expect what generally is not true, namely, that a store which offers such an amazing bargain is full of other such bargains.5 Clearly there is a reasonable basis for a conclusion that selective price cuts tend to perpetuate this abuse whereas the use of trading stamps does not. This difference alone would be enough to require affirmance. It is reinforced by other tenable grounds for distinction. There was a basis in evidence for the view that the use of trading stamps has an entirely different impact on the consuming market than do price cuts. When prices are the same customers tend to go to the store offering trading stamps. But when prices are cut to the extent of the value of the trading stamp the stamps lose their lure and lower prices prove a more potent attraction. On the basis of this not unreasonable belief as to the economics of the highly competitive, low-profit-margin retail-grocery business, Oklahoma could well have concluded that its choice was to provide that all use a cash discount system or none could do so.6 Such a view of the economic aspects of the problem affords an ample basis for the legislative judgment enforced by the court below.Certainly this Court will not interpose its own economic views or guesses when the State has made its choice."The Fourteenth Amendment enjoins the `equal protection of the laws,' and laws are not abstract propositions. They do not relate to abstract units A, B, and C, but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies. The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same." Tigner v. Texas, . We are not concerned with the soundness of the distinctions drawn. It is enough that it is open to Oklahoma to believe them to be valid as the basis of a policy for its people.7 Affirmed.MR. JUSTICE CLARK took no part in the consideration or decision of this case.

During jury selection at his state-court trial on various felony charges, petitioner, who is white, objected to the State's peremptory challenges that struck the two black venire members from the petit jury, on the ground that he had a Sixth Amendment right to "be tried by a representative cross section of the community." The trial judge overruled the objection, and petitioner was convicted of all but one of the charges. On appeal, the Illinois Supreme Court upheld the convictions and rejected petitioner's Sixth Amendment challenge to the exclusion of black jurors.Held: 1. Petitioner has standing to raise a Sixth Amendment challenge to the exclusion of blacks from his jury. Although a defendant, in order to establish a prima facie Equal Protection Clause violation, "must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race," Batson v. Kentucky, , this Court has never suggested that such correlation between the group identification of the defendant and the group identification of the excluded venire member is necessary for Sixth Amendment standing. To the contrary, the Sixth Amendment entitles every defendant to object to a venire that is not designed to represent a fair cross section of the community. That petitioner seeks an extension of the fair-cross-section requirement from the venire to the petit jury does not affect his standing to assert it. Pp. 476-477. 2. Petitioner's Sixth Amendment claim is without merit because a prohibition upon the exclusion of cognizable groups through peremptory challenges has no basis in the Amendment's text, is without support in this Court's decisions, and would undermine rather than further the Amendment's guarantee of the right to trial by "an impartial jury." The Amendment's requirement that the venire from which the jury is chosen represent a fair cross section of the community constitutes a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial one (which it does). Without such a requirement, the State would have, in effect, unlimited peremptory challenges to compose the pool from which the jury is drawn in its favor. This Court's decisions make clear that in no way can the fair-cross-section requirement be interpreted to prohibit peremptory challenges. See, e. g., Lockhart v. McCree, . Such challenges have been considered "a necessary part of trial by jury," Swain v. Alabama, , and serve the Sixth Amendment's goal of impartiality by permitting both the defendant and the State to eliminate prospective jurors belonging to groups they believe would unduly favor the other side, thereby removing extremes of partiality on both sides. Thus, the constitutional goal of "an impartial jury" would positively be obstructed by a petit jury fair-cross-section requirement, which would cripple the peremptory challenge device. The rule of Batson, supra, cannot be incorporated into the Sixth Amendment. Although that case extended the Equal Protection Clause's prohibition of race-based exclusion from the venire stage to the individual petit jury stage, it did so not because the two stages are inseparably linked, but because the Fourteenth Amendment's intransigent prohibition of racial discrimination applies to both. This case does not present an equal protection issue, and race as such has nothing to do with the question before the Court. Petitioner is not a black man and his Sixth Amendment claim would be just as strong if the object of the State's exclusion of jurors had been, not blacks, but any other identifiable group. Pp. 477-488. 121 Ill. 2d 136, 520 N. E. 2d 270, affirmed.SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, O'CONNOR, and KENNEDY, JJ., joined. KENNEDY, J., filed a concurring opinion, post, at p. 488. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, at p. 490. STEVENS, J., filed a dissenting opinion, post, at p. 504.Donald S. Honchell argued the cause for petitioner. With him on the briefs were Randolph N. Stone, Alison Edwards, and Ronald P. Alwin.Inge Fryklund argued the cause for respondent. With her on the brief were Neil F. Hartigan, Attorney General of Illinois, Robert J. Ruiz, Solicitor General, Terence M. Madsen, Assistant Attorney General, and Cecil A. Partee.* [Footnote *] Steven R. Shapiro, Julius LeVonne Chambers, and Charles Stephen Ralston filed a brief for the American Civil Liberties Union et al. as amici curiae urging reversal.JUSTICE SCALIA delivered the opinion of the Court.The questions presented by this case are (1) whether a white defendant has standing to raise a Sixth Amendment challenge to the prosecutor's exercise of peremptory challenges to exclude all black potential jurors from his petit jury, and (2) whether such exclusion violates his Sixth Amendment right to trial by an impartial jury.IPetitioner Daniel Holland was charged in the Circuit Court of Cook County, Illinois, with aggravated kidnaping, rape, deviate sexual assault, armed robbery, and aggravated battery. According to his allegations, a venire of 30 potential jurors was assembled, 2 of whom were black. Petitioner's counsel objected to those of the State's peremptory challenges that struck the two black venire members from the petit jury, on the ground that petitioner had a Sixth Amendment right to "be tried by a representative cross section of the community." App. 7-8. The trial judge overruled the objection, and petitioner was subsequently convicted of all except the aggravated battery charge. The convictions were reversed by the Illinois Appellate Court, First District, 147 Ill. App. 3d 323, 497 N. E. 2d 1230 (1986), on grounds that are irrelevant here, but on further appeal by the State were reinstated by the Illinois Supreme Court, which rejected petitioner's Equal Protection Clause and Sixth Amendment challenges to the exclusion of the black jurors. 121 Ill. 2d 136, 520 N. E. 2d 270 (1987). We granted Holland's petition for certiorari asserting that the Sixth Amendment holding was error. .IIThe threshold question is whether petitioner, who is white, has standing to raise a Sixth Amendment challenge to the exclusion of blacks from his jury. We hold that he does.In Batson v. Kentucky, , we said that to establish a prima facie Equal Protection Clause violation in the discriminatory exclusion of petit jurors, the defendant "must show that he is a member of a cognizable racial group ... and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race." (Emphasis added.) We have never suggested, however, that such a requirement of correlation between the group identification of the defendant and the group identification of excluded venire members is necessary for Sixth Amendment standing. To the contrary, our cases hold that the Sixth Amendment entitles every defendant to object to a venire that is not designed to represent a fair cross section of the community, whether or not the systematically excluded groups are groups to which he himself belongs. See, e. g., Duren v. Missouri, ; Taylor v. Louisiana, . Thus, in Taylor, we found standing in circumstances analogous to petitioner's: "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." Id., at 526. Of course, in this case petitioner seeks an extension of the fair-cross-section requirement from the venire to the petit jury - but that variation calls into question the scope of the Sixth Amendment guarantee, not his standing to assert it. We proceed, then, to the merits of the claim.IIIPetitioner asserts that the prosecutor intentionally used his peremptory challenges to strike all black prospective jurors solely on the basis of their race, thereby preventing a distinctive group in the community from being represented on his jury. This, he contends, violated the Sixth Amendment by denying him a "fair possibility" of a petit jury representing a cross section of the community. Petitioner invites us to remedy the perceived violation by incorporating into the Sixth Amendment the test we devised in Batson to permit black defendants to establish a prima facie violation of the Equal Protection Clause. Under petitioner's approach, a defendant of any race could establish a prima facie violation of the Sixth Amendment by objecting to the use of peremptory challenges to exclude all blacks from the jury. The burden would then shift to the prosecutor to show that the exercise of his peremptory challenges was not based on intentional discrimination against the black potential jurors solely because of their race. Only if the prosecutor could then show nonracial grounds for the strikes would no Sixth Amendment violation be found.We reject petitioner's fundamental thesis that a prosecutor's use of peremptory challenges to eliminate a distinctive group in the community deprives the defendant of a Sixth Amendment right to the "fair possibility" of a representative jury. While statements in our prior cases have alluded to such a "fair possibility" requirement, satisfying it has not been held to require anything beyond the inclusion of all cognizable groups in the venire, see Lockhart v. McCree, ; Duren, supra; Taylor, supra, and the use of a jury numbering at least six persons, see Ballew v. Georgia, ; Williams v. Florida, . A prohibition upon the exclusion of cognizable groups through peremptory challenges has no conceivable basis in the text of the Sixth Amendment, is without support in our prior decisions, and would undermine rather than further the constitutional guarantee of an impartial jury.It has long been established that racial groups cannot be excluded from the venire from which a jury is selected. That constitutional principle was first set forth not under the Sixth Amendment but under the Equal Protection Clause. Strauder v. West Virginia, . In that context, the object of the principle and the reach of its logic are not established by our common-law traditions of jury trial, but by the Fourteenth Amendment's prohibition of unequal treatment in general and racial discrimination in particular. That prohibition therefore has equal application at the petit jury and the venire stages, as our cases have long recognized. Thus, in a decision rendered only 12 years after the Fourteenth Amendment was enacted, striking down a West Virginia law that excluded blacks from jury service, we said:"[I]t is hard to see why the statute of West Virginia should not be regarded as discriminating against a colored man when he is put upon trial for an alleged criminal offense against the State. It is not easy to comprehend how it can be said that while every white man is entitled to a trial by a jury selected from persons of his own race or color, or, rather, selected without discrimination against his color, and a negro is not, the latter is equally protected by the law with the former. Is not protection of life and liberty against race or color prejudice, a right, a legal right, under the constitutional amendment? And how can it be maintained that compelling a colored man to submit to a trial for his life by a jury drawn from a panel from which the State has expressly excluded every man of his race, because of color alone, however well qualified in other respects, is not a denial to him of equal legal protection?" Strauder, supra, at 309. Four Terms ago, in Batson, we squarely held that race-based exclusion is no more permissible at the individual petit jury stage than at the venire stage - not because the two stages are inseparably linked, but because the intransigent prohibition of racial discrimination contained in the Fourteenth Amendment applies to both of them. Our relatively recent cases, beginning with Taylor v. Louisiana, hold that a fair-cross-section venire requirement is imposed by the Sixth Amendment, which provides in pertinent part: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed ... ." The fair-cross-section venire requirement is obviously not explicit in this text, but is derived from the traditional understanding of how an "impartial jury" is assembled. That traditional understanding includes a representative venire, so that the jury will be, as we have said, "drawn from a fair cross section of the community," Taylor, 419 U.S., at 527 (emphasis added). But it has never included the notion that, in the process of drawing the jury, that initial representativeness cannot be diminished by allowing both the accused and the State to eliminate persons thought to be inclined against their interests - which is precisely how the traditional peremptory-challenge system operates. As we described that system in Swain v. Alabama, :"[The peremptory challenge] is often exercised ... on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty. For the question a prosecutor or defense counsel must decide is not whether a juror of a particular race or nationality is in fact partial, but whether one from a different group is less likely to be." Id., at 220-221 (citation and footnote omitted). The Sixth Amendment requirement of a fair cross section on the venire is a means of assuring, not a representative jury (which the Constitution does not demand), but an impartial one (which it does). Without that requirement, the State could draw up jury lists in such manner as to produce a pool of prospective jurors disproportionately ill disposed towards one or all classes of defendants, and thus more likely to yield petit juries with similar disposition. The State would have, in effect, unlimited peremptory challenges to compose the pool in its favor. The fair-cross-section venire requirement assures, in other words, that in the process of selecting the petit jury the prosecution and defense will compete on an equal basis.But to say that the Sixth Amendment deprives the State of the ability to "stack the deck" in its favor is not to say that each side may not, once a fair hand is dealt, use peremptory challenges to eliminate prospective jurors belonging to groups it believes would unduly favor the other side. Any theory of the Sixth Amendment leading to that result is implausible. The tradition of peremptory challenges for both the prosecution and the accused was already venerable at the time of Blackstone, see 4 W. Blackstone, Commentaries 346-348 (1769), was reflected in a federal statute enacted by the same Congress that proposed the Bill of Rights, see Act of Apr. 30, 1790, ch. 9, 30, 1 Stat. 119, was recognized in an opinion by Justice Story to be part of the common law of the United States, see United States v. Marchant, 12 Wheat. 480, 483-484 (1827), and has endured through two centuries in all the States, see Swain, supra, at 215-217. The constitutional phrase "impartial jury" must surely take its content from this unbroken tradition.1 One could plausibly argue (though we have said the contrary, see Stilson v. United States, that the requirement of an "impartial jury" impliedly compels peremptory challenges, but in no way could it be interpreted directly or indirectly to prohibit them. We have gone out of our way to make this clear in our opinions. In Lockhart, we said: "We have never invoked the fair-cross-section principle to invalidate the use of either for-cause or peremptory challenges to prospective jurors, or to require petit juries, as opposed to jury panels or venires, to reflect the composition of the community at large." 476 U.S., at 173. In Taylor, we "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." 419 U.S., at 538. Accord, Duren v. Missouri, 439 U.S., at 363-364, and n. 20.The fundamental principle underlying today's decision is the same principle that underlay Lockhart, which rejected the claim that allowing challenge for cause, in the guilt phase of a capital trial, to jurors unalterably opposed to the death penalty (so-called "Witherspoon-excludables") violates the fair-cross-section requirement. It does not violate that requirement, we said, to disqualify a group for a reason that is related "to the ability of members of the group to serve as jurors in a particular case." 476 U.S., at 175 (emphasis added). The "representativeness" constitutionally required at the venire stage can be disrupted at the jury-panel stage to serve a State's "legitimate interest." Ibid. In Lockhart the legitimate interest was "obtaining a single jury that can properly and impartially apply the law to the facts of the case at both the guilt and sentencing phases of a capital trial." Id., at 175-176. Here the legitimate interest is the assurance of impartiality that the system of peremptory challenges has traditionally provided.The rule we announce today is not only the only plausible reading of the text of the Sixth Amendment, but we think it best furthers the Amendment's central purpose as well. Although the constitutional guarantee runs only to the individual and not to the State, the goal it expresses is jury impartiality with respect to both contestants: neither the defendant nor the State should be favored. This goal, it seems to us, would positively be obstructed by a petit jury cross-section requirement which, as we have described, would cripple the device of peremptory challenge. We have acknowledged that that device occupies "an important position in our trial procedures," Batson, 476 U.S., at 98, and has indeed been considered "a necessary part of trial by jury," Swain v. Alabama, 380 U.S., at 219. Peremptory challenges, by enabling each side to exclude those jurors it believes will be most partial toward the other side, are a means of "eliminat[ing] extremes of partiality on both sides," ibid., thereby "assuring the selection of a qualified and unbiased jury," Batson, supra, at 91 (emphasis added).2 Petitioner seeks to minimize the harm that recognition of his claim would cause to the peremptory challenge system by assuring us that the striking of identifiable community groups other than blacks need not be accorded similar treatment. That is a comforting assurance, but the theory of petitioner's case is not compatible with it. If the goal of the Sixth Amendment is representation of a fair cross section of the community on the petit jury, then intentionally using peremptory challenges to exclude any identifiable group should be impermissible - which would, as we said in Lockhart, "likely require the elimination of peremptory challenges." 476 U.S., at 178.JUSTICE MARSHALL argues that prohibiting purposeful peremptory challenge of members of distinctive groups "would leave the peremptory challenge system almost entirely untouched" because the Court is unlikely to recognize many groups as "distinctive." Post, at 502. Misplaced optimism on this subject is cost free to those who in any event "would ... eliminat[e] peremptory challenges entirely in criminal cases," Batson, supra at 107 (MARSHALL, J., concurring), but we see no justification for indulging it. To support his prediction, JUSTICE MARSHALL states that the only groups the Court has recognized as distinctive thus far have been women and certain racial groups, post, at 502 (citing Lockhart, 476 U.S., at 175). That is true enough, but inasmuch as those groups happen to constitute all the groups we have considered in the venire context, what it demonstrates is not how difficult it is to meet our standards for distinctiveness, but how few groups are systematically excluded from the venire. As we have discussed, however, many groups are regularly excluded from the petit jury through peremptory challenge. Lockhart itself suggests, quite rightly, that even so exotic a group as "Witherspoon-excludables" would be a distinctive group whose rejection at the venire stage would violate the Sixth Amendment. 476 U.S., at 176. If, as JUSTICE MARSHALL would have it, rejection at the venire stage and rejection at the panel stage are one and the same, there is every reason to believe that many commonly exercised bases for peremptory challenge would be rendered unavailable.Dispassionate analysis does not bear out JUSTICE MARSHALL's contentions that we have "ignor[ed] precedent after precedent," post, at 503, "reject[ed] ... the principles underlying a whole line of cases," ibid., and suffer from "selective amnesia with respect to our cases in this area," post, at 500. His dissent acknowledges that the fair-cross-section decisions it discusses - Taylor, Duren, and Lockhart - "referr[ed] to exclusion of prospective jurors from venires, not their exclusion from petit juries by means of peremptory challenges," post, at 496. It nonetheless counts those cases as "well-grounded precedents," post, at 490, because "the particular context does not affect the analysis," post, at 496. That may be the dissent's view, but it was assuredly not the view expressed in the cases themselves. As noted earlier, all three of those opinions specifically disclaimed application of their analysis to the petit jury. See supra, at 482-483. Last Term, in Teague v. Lane, , we were asked to decide the very same question we decide today - "whether," as JUSTICE O'CONNOR's plurality opinion put it, "the Sixth Amendment's fair cross section requirement should now be extended to the petit jury." Id., at 292. We did not reach that question because the four-Justice plurality, with JUSTICE WHITE agreeing as to the result, held that "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced," id., at 310, and found that in asserting a fair-cross-section requirement at the petit jury stage petitioner was urging adoption of such a "new rule," id., at 301 - that is, a rule producing a result "not dictated by [prior] precedent," ibid. (emphasis in original). Though there were four Justices in dissent, only two of them expressed the view that a petit jury fair-cross-section requirement was compelled by prior precedent. See id., at 340-344 (BRENNAN, J., dissenting). In short, there is no substance to the contention that what we hold today "ignor[es] precedent after precedent."JUSTICE MARSHALL's dissent rolls out the ultimate weapon, the accusation of insensitivity to racial discrimination - which will lose its intimidating effect if it continues to be fired so randomly. It is not remotely true that our opinion today "lightly ... set[s] aside" the constitutional goal of "eliminat[ing] racial discrimination in our system of criminal justice." Post, at 503-504. The defendant in this case is not a black man, but a convicted white rapist who seeks to use the striking of blacks from his jury to overturn his conviction. His Sixth Amendment claim would be just as strong if the object of the exclusion had been, not blacks, but postmen, or lawyers, or clergymen, or any number of other identifiable groups. Race as such has nothing to do with the legal issue in this case. We do not hold that the systematic exclusion of blacks from the jury system through peremptory challenges is lawful; it obviously is not, see Batson, supra. We do not even hold that the exclusion of blacks through peremptory challenges in this particular trial was lawful. Nor do we even hold that this particular (white) defendant does not have a valid constitutional challenge to such racial exclusion.3 All we hold is that he does not have a valid constitutional challenge based on the Sixth Amendment - which no more forbids the prosecutor to strike jurors on the basis of race than it forbids him to strike them on the basis of innumerable other generalized characteristics.To be sure, as JUSTICE MARSHALL says, the Sixth Amendment sometimes operates "as a weapon to combat racial discrimination," post, at 504, n. 2 - just as statutes against murder sometimes operate that way. But it is no more reasonable to portray this as a civil rights case than it is to characterize a proposal for increased murder penalties as an antidiscrimination law. Since only the Sixth Amendment claim, and not the equal protection claim, is at issue, the question before us is not whether the defendant has been unlawfully discriminated against because he was white, or whether the excluded jurors have been unlawfully discriminated against because they were black, but whether the defendant has been denied the right to "trial ... by an impartial jury." The earnestness of this Court's commitment to racial justice is not to be measured by its willingness to expand constitutional provisions designed for other purposes beyond their proper bounds.The judgment of the Illinois Supreme Court is Affirmed.

The Commonwealth of Pennsylvania is authorized to provide directly to all children enrolled in nonpublic elementary and secondary schools meeting Pennsylvania's compulsory-attendance requirements "auxiliary services" (Act 194) and loans of textbooks "acceptable for use in" the public schools (Act 195). Act 195 also provides for loans directly to the nonpublic schools of "instructional materials and equipment, useful to the education" of nonpublic school children. The auxiliary services include counseling, testing, psychological services, speech and hearing therapy, and related services for exceptional, remedial, or educationally disadvantaged students, "and such other secular, neutral, non-ideological services as are of benefit to nonpublic school children" and are provided for those in public schools. The instructional materials include periodicals, photographs, maps, charts, recordings, and films. The instructional equipment includes projectors, recorders, and laboratory paraphernalia. Appellants brought this suit in the District Court challenging the constitutionality of both Acts. The court upheld the constitutionality of the textbook and instructional materials loan programs and the auxiliary services program but invalidated the instructional equipment loan program to the extent that it sanctioned the loan of equipment "which from its nature can be diverted to religious purposes." Held: Act 194 and all but the textbook loan provisions of Act 195 violate the Establishment Clause of the First Amendment as made applicable to the States by the Fourteenth. Pp. 359-372; 388. 374 F. Supp. 639, affirmed in part, reversed in part. MR. JUSTICE STEWART delivered the opinion of the Court with respect to Parts I, II, IV, and V, finding: 1. The direct loan of instructional materials and equipment to nonpublic schools authorized by Act 195 has the unconstitutional primary effect of establishing religion because of the predominantly religious character of the schools benefiting from the Act since 75% of Pennsylvania's nonpublic schools that comply with the compulsory-attendance law and thus qualify for aid under Act 195 are church related or religiously affiliated. The massive aid that nonpublic schools thus receive is neither indirect nor incidental, and even though such aid is ostensibly limited to secular instructional material and equipment the inescapable result is the direct and substantial advancement of religious activity. Pp. 362-366. 2. Act 194 also violates the Establishment Clause because the auxiliary services are provided at predominantly church-related schools. The District Court erred in holding that such services are permissible because they are only secular, neutral, and non-ideological, since excessive entanglement would be required for Pennsylvania to be assured that the public school professional staff members who provide the services do not advance the religious mission of the church-related schools in which they serve. Cf. Lemon v. Kurtzman, . Pp. 367-372. MR. JUSTICE STEWART, joined by MR. JUSTICE BLACKMUN and MR. JUSTICE POWELL, concluded in Part III that Act 195's textbook loan provisions, which are limited to textbooks acceptable for use in the public schools, are constitutional, since they "merely [make] available to all children the benefits of a general program to lend schools books free of charge," and the "financial benefit is to parents and children, not to schools," Board of Education v. Allen, . Pp. 359-362. MR. JUSTICE REHNQUIST, joined by MR. JUSTICE WHITE, concluded that the textbook loan program of Act 195 is constitutionally indistinguishable from the program upheld in Board of Education v. Allen, supra. P. 388. STEWART, J., announced the judgment of the Court and delivered an opinion of the Court, in which BLACKMUN and POWELL, JJ., joined, and in all but Part III of which DOUGLAS, BRENNAN, and MARSHALL, JJ., joined. BRENNAN, J., filed an opinion concurring in part and dissenting in part, in which DOUGLAS and MARSHALL, JJ., joined, post, p. 373. BURGER, C. J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 385. REHNQUIST, J., filed an opinion concurring in the judgment in part and dissenting in part, in which WHITE, J., joined, post, p. 387. Leo Pfeffer and William P. Thorn argued the cause and filed briefs for appellants.J. Justin Blewitt, Jr., Deputy Attorney General of Pennsylvania, argued the cause for appellees Pittenger et al. With him on the brief was Israel Packel, Attorney General. William Bentley Ball argued the cause for appellees Diaz et al. With him on the brief were Joseph G. Skelly, James E. Gallagher, Jr., C. Clark Hodgson, Jr., and William D. Valente. Henry T. Reath argued the cause and filed a brief for appellees Chesik et al.* [Footnote *] Theodore R. Mann, Paul S. Berger, Arnold Forster, Samuel Rabinove, Henry N. Rapaport, David Rubin, and Joseph B. Robison filed a brief for the American Association of School Administrators et al. as amici curiae urging reversal. Briefs of amici curiae urging affirmance were filed by Stuart D. Hubbell for the Council for American Private Education, and by Howard Gould for the National Audio-Visual Association, Inc.MR. JUSTICE STEWART announced the judgment of the Court and delivered the opinion of the Court (Parts I, II, IV, and V), together with an opinion (Part III), in which MR. JUSTICE BLACKMUN and MR. JUSTICE POWELL, joined.This case requires us to determine once again whether a state law providing assistance to nonpublic, church-related, elementary and secondary schools is constitutional under the Establishment Clause of the First Amendment, made applicable to the States by the Fourteenth Amendment. Murdock v. Pennsylvania, ; Cantwell v. Connecticut, .IWith the stated purpose of assuring that every schoolchild in the Commonwealth will equitably share in the benefits of auxiliary services, textbooks, and instructional material provided free of charge to children attending public schools,1 the Pennsylvania General Assembly in 1972 added Acts 194 and 195, July 12, 1972, Pa. Stat. Ann., Tit. 24, 9-972, to the Pennsylvania Public School Code of 1949, Pa. Stat. Ann., Tit. 24, 1-101 to 27-2702.Act 194 authorizes the Commonwealth to provide "auxiliary services" to all children enrolled in nonpublic elementary and secondary schools meeting Pennsylvania's compulsory-attendance requirements.2 "Auxiliary services" include counseling, testing, and psychological services, speech and hearing therapy, teaching and related services for exceptional children, for remedial students, and for the educationally disadvantaged, "and such other secular, neutral, non-ideological services as are of benefit to nonpublic school children and are presently or hereafter provided for public school children of the Commonwealth." Act 194 specifies that the teaching and services are to be provided in the nonpublic schools themselves by personnel drawn from the appropriate "intermediate unit," part of the public school system of the Commonwealth established to provide special services to local school districts. See Pa. Stat. Ann., Tit. 24, 9-951 to 9-971.Act 195 authorizes the State Secretary of Education, either directly or through the intermediate units, to lend textbooks without charge to children attending nonpublic elementary and secondary schools that meet the Commonwealth's compulsory-attendance requirements.3 The books that may be lent are limited to those "which are acceptable for use in any public, elementary, or secondary school of the Commonwealth."Act 195 also authorizes the Secretary of Education, pursuant to requests from the appropriate nonpublic school officials, to lend directly to the nonpublic schools "instructional materials and equipment, useful to the education" of nonpublic school children.4 "Instructional materials" are defined to include periodicals, photographs, maps, charts, sound recordings, films, "or any other printed and published materials of a similar nature." "Instructional equipment," as defined by the Act, includes projection equipment, recording equipment, and laboratory equipment.On February 7, 1973, three individuals and four organizations5 filed a complaint in the District Court for the Eastern District of Pennsylvania challenging the constitutionality of Acts 194 and 195, and requesting an injunction prohibiting the expenditure of any funds under either statute. The complaint alleged that each Act "is a law respecting an establishment of religion in violation of the First Amendment" because each Act "authorizes and directs payments to or use of books, materials and equipment in schools which (1) are controlled by churches or religious organizations, (2) have as their purpose the teaching, propagation and promotion of a particular religious faith, (3) conduct their operations, curriculums and programs to fulfill that purpose, (4) impose religious restrictions on admissions, (5) require attendance at instruction in theology and religious doctrine, (6) require attendance at or participation in religious worship, (7) are an integral part of the religious mission of the sponsoring church, (8) have as a substantial or dominant purpose the inculcation of religious values, (9) impose religious restrictions on faculty appointments, and (10) impose religious restrictions on what the faculty may teach." The Secretary of Education and the Treasurer of the Commonwealth were named as the defendants.6 A three-judge court was convened pursuant to 28 U.S.C. 2281, 2284. After an evidentiary hearing, the court entered its final judgment. 374 F. Supp. 639. In that judgment the court unanimously upheld the constitutionality of the textbook loan program authorized by Act 195. 374 F. Supp., at 657-658. By a divided vote the court also upheld the constitutionality of Act 194's provision of auxiliary services to children in nonpublic elementary and secondary schools and Act 195's authorization of loans of instructional materials directly to nonpublic elementary and secondary schools. 374 F. Supp., at 653-659. The court unanimously invalidated that portion of Act 195 authorizing the expenditure of commonwealth funds for the purchase of instructional equipment for loan to nonpublic schools, but only to the extent that the provision allowed the loan of equipment "which from its nature can be diverted to religious purposes." 374 F. Supp., at 662. The court gave as examples projection and recording equipment. Id., at 660-661. By a vote of 2-1, the court upheld this provision of Act 195 insofar as it authorizes the loan of instructional equipment that cannot be readily diverted to religious uses. 374 F. Supp., at 660-661.Except with respect to that provision of Act 195 which permits loan of instructional equipment capable of diversion, therefore, the plaintiffs' request for preliminary and final injunctive relief was denied. The plaintiffs (hereinafter the appellants) appealed directly to this Court, pursuant to 28 U.S.C. 1253.7 We noted probable jurisdiction. . IIIn judging the constitutionality of the various forms of assistance authorized by Acts 194 and 195, the District Court applied the three-part test that has been clearly stated, if not easily applied, by this Court in recent Establishment Clause cases. See, e. g., Committee for Public Education & Religious Liberty v. Nyquist, ; Lemon v. Kurtzman, . First, the statute must have a secular legislative purpose. E. g., Epperson v. Arkansas, . Second, it must have a "primary effect" that neither advances nor inhibits religion. E. g., School District of Abington Township v. Schempp, . Third, the statute and its administration must avoid excessive government entanglement with religion. E. g., Walz v. Tax Comm'n, .These tests constitute a convenient, accurate distillation of this Court's efforts over the past decades to evaluate a wide range of governmental action challenged as violative of the constitutional prohibition against laws "respecting an establishment of religion," and thus provide the proper framework of analysis for the issues presented in the case before us. It is well to emphasize, however, that the tests must not be viewed as setting the precise limits to the necessary constitutional inquiry, but serve only as guidelines with which to identify instances in which the objectives of the Establishment Clause have been impaired. See Tilton v. Richardson, (plurality opinion of BURGER, C. J.).Primary among the evils against which the Establishment Clause protects "have been `sponsorship, financial support, and active involvement of the sovereign in religious activity.' Walz v. Tax Comm'n, supra, at 668; Lemon v. Kurtzman, supra, at 612." Committee for Public Education & Religious Liberty v. Nyquist, supra, at 772. The Court has broadly stated that "[n]o tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion." Everson v. Board of Education, . But it is clear that not all legislative programs that provide indirect or incidental benefit to a religious institution are prohibited by the Constitution. See Zorach v. Clauson, ; Lemon v. Kurtzman, supra, at 614. "The problem, like many problems in constitutional law, is one of degree." Zorach v. Clauson, supra, at 314.IIIThe District Court held that the textbook loan provisions of Act 195 are constitutionally indistinguishable from the New York textbook loan program upheld in Board of Education v. Allen, . We agree.Approval of New York's textbook loan program in the Allen case was based primarily on this Court's earlier decision in Everson v. Board of Education, supra, holding that the constitutional prohibition against laws "respecting an establishment of religion" did not prevent "New Jersey from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it pays the fares of pupils attending public and other schools." 330 U.S., at 17. Similarly, the Court in Allen found that the New York textbook law "merely makes available to all children the benefits of a general program to lend school books free of charge. Books are furnished at the request of the pupil and ownership remains, at least technically, in the State. Thus no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools." 392 U.S., at 243-244. The Court conceded that provision of free textbooks might make it "more likely that some children choose to attend a sectarian school, but that was true of the state-paid bus fares in Everson and does not alone demonstrate an unconstitutional degree of support for a religious institution." Id., at 244.Like the New York program, the textbook provisions of Act 195 extend to all schoolchildren the benefits of Pennsylvania's well-established policy of lending textbooks free of charge to elementary and secondary school students.8 As in Allen, Act 195 provides that the textbooks are to be lent directly to the student, not to the nonpublic school itself, although, again as in Allen, the administrative practice is to have student requests for the books filed initially with the nonpublic school and to have the school authorities prepare collective summaries of these requests which they forward to the appropriate public officials. See Board of Education v. Allen, supra, at 244 n. 6.9 Thus, the financial benefit of Pennsylvania's textbook program, like New York's, is to parents and children, not to the nonpublic schools.10 Under New York law the books that could be lent were limited to textbooks "which are designated for use in any public, elementary or secondary schools of the state or are approved by any boards of education, trustees or other school authorities." N. Y. Educ. Law 701 (3). The law was construed by the New York Court of Appeals to apply solely to secular textbooks. Board of Education v. Allen, 20 N. Y. 2d 109, 117, 228 N. E. 2d 791, 794. Act 195 similarly limits the books that may be lent to "textbooks which are acceptable for use in any public, elementary, or secondary school of the Commonwealth."11 Moreover, the record in the case before us, like the record in Allen, see, e. g., 392 U.S., at 244-245, 248, contains no suggestion that religious textbooks will be lent or that the books provided will be used for anything other than purely secular purposes.In sum, the textbook loan provisions of Act 195 are in every material respect identical to the loan program approved in Allen. Pennsylvania, like New York, "merely makes available to all children the benefits of a general program to lend school books free of charge." As such, those provisions of Act 195 do not offend the constitutional prohibition against laws "respecting an establishment of religion."12 IVAlthough textbooks are lent only to students, Act 195 authorizes the loan of instructional material and equipment directly to qualifying nonpublic elementary and secondary schools in the Commonwealth. The appellants assert that such direct aid to Pennsylvania's nonpublic schools, including church-related institutions, constitutes an impermissible establishment of religion.Act 195 is accompanied by legislative findings that the welfare of the Commonwealth requires that present and future generations of schoolchildren be assured ample opportunity to develop their intellectual capacities. Act 195 is intended to further that objective by extending the benefits of free educational aids to every schoolchild in the Commonwealth, including nonpublic school students who constitute approximately one quarter of the schoolchildren in Pennsylvania. Act 195, 1 (a), Pa. Stat. Ann., Tit. 24, 9-972 (a). We accept the legitimacy of this secular legislative purpose. Cf. Lemon v. Kurtzman, 403 U.S., at 609, 613; Sloan v. Lemon, . But we agree with the appellants that the direct loan of instructional material and equipment has the unconstitutional primary effect of advancing religion because of the predominantly religious character of the schools benefiting from the Act.13 The only requirement imposed on nonpublic schools to qualify for loans of instructional material and equipment is that they satisfy the Commonwealth's compulsory-attendance law by providing, in the English language, the subjects and activities prescribed by the standards of the State Board of Education. Pa. Stat. Ann., Tit. 24, 13-1327. Commonwealth officials, as a matter of state policy, do not inquire into the religious characteristics, if any, of the nonpublic schools requesting aid pursuant to Act 195. The Coordinator of Nonpublic School Services, the chief administrator of Acts 194 and 195, testified that a school would not be barred from receiving loans of instructional material and equipment even though its dominant purpose was the inculcation of religious values, even if it imposed religious restrictions on admissions or on faculty appointments, and even if it required attendance at classes in theology or at religious services. In fact, of the 1,320 nonpublic schools in Pennsylvania that comply with the requirements of the compulsory-attendance law and thus qualify for aid under Act 195, more than 75% are church-related or religiously affiliated educational institutions. Thus, the primary beneficiaries of Act 195's instructional material and equipment loan provisions, like the beneficiaries of the "secular educational services" reimbursement program considered in Lemon v. Kurtzman, and the parent tuition-reimbursement plan considered in Sloan v. Lemon, are nonpublic schools with a predominant sectarian character.14 It is, of course, true that as part of general legislation made available to all students, a State may include church-related schools in programs providing bus transportation, school lunches, and public health facilities - secular and nonideological services unrelated to the primary, religion-oriented educational function of the sectarian school. The indirect and incidental benefits to church-related schools from those programs do not offend the constitutional prohibition against establishment of religion. See, e. g., Everson v. Board of Education, ; Lemon v. Kurtzman, supra, at 616-617; Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S., at 775. But the massive aid provided the church-related nonpublic schools of Pennsylvania by Act 195 is neither indirect nor incidental.For the 1972-1973 school year the Commonwealth authorized just under $12 million of direct aid to the predominantly church-related nonpublic schools of Pennsylvania through the loan of instructional material and equipment pursuant to Act 195.15 To be sure, the material and equipment that are the subjects of the loan - maps, charts, and laboratory equipment, for example - are "self-polic[ing], in that starting as secular, nonideological and neutral, they will not change in use." 374 F. Supp., at 660. But faced with the substantial amounts of direct support authorized by Act 195, it would simply ignore reality to attempt to separate secular educational functions from the predominantly religious role performed by many of Pennsylvania's church-related elementary and secondary schools and to then characterize Act 195 as channeling aid to the secular without providing direct aid to the sectarian. Even though earmarked for secular purposes, "when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission," state aid has the impermissible primary effect of advancing religion. Hunt v. McNair, .The church-related elementary and secondary schools that are the primary beneficiaries of Act 195's instructional material and equipment loans typify such religion-pervasive institutions. The very purpose of many of those schools is to provide an integrated secular and religious education; the teaching process is, to a large extent, devoted to the inculcation of religious values and belief. See Lemon v. Kurtzman, 403 U.S., at 616-617. Substantial aid to the educational function of such schools, accordingly, necessarily results in aid to the sectarian school enterprise as a whole. "[T]he secular education those schools provide goes hand in hand with the religious mission that is the only reason for the schools' existence. Within the institution, the two are inextricably intertwined." Id., at 657 (opinion of BRENNAN, J.). See generally Freund, Public Aid to Parochial Schools, 82 Harv. L. Rev. 1680, 1688-1689. For this reason, Act 195's direct aid to Pennsylvania's predominantly church-related, nonpublic elementary and secondary schools, even though ostensibly limited to wholly neutral, secular instructional material and equipment, inescapably results in the direct and substantial advancement of religious activity, cf. Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S., at 781-783, and n. 39, and thus constitutes an impermissible establishment of religion.16 VUnlike Act 195, which provides only for the loan of teaching material and equipment, Act 194 authorizes the Secretary of Education, through the intermediate units, to supply professional staff, as well as supportive materials, equipment, and personnel, to the nonpublic schools of the Commonwealth. The "auxiliary services" authorized by Act 194 - remedial and accelerated instruction, guidance counseling and testing, speech and hearing services - are provided directly to nonpublic school children with the appropriate special need. But the services are provided only on the nonpublic school premises, and only when "requested by nonpublic school representatives." Department of Education, Commonwealth of Pennsylvania, Guidelines for the Administration of Acts 194 and 195, 1.3.The legislative findings accompanying Act 194 are virtually identical to those in Act 195: Act 194 is intended to assure full development of the intellectual capacities of the children of Pennsylvania by extending the benefits of free auxiliary services to all students in the Commonwealth. Act 194, 1 (a), Pa. Stat. Ann., Tit. 24, 9-972 (a). The appellants concede the validity of this secular legislative purpose. Nonetheless, they argue that Act 194 constitutes an impermissible establishment of religion because the auxiliary services are provided on the premises of predominantly church-related schools.17 In rejecting the appellants' argument, the District Court emphasized that "auxiliary services" are provided directly to the children involved and are expressly limited to those services which are secular, neutral, and nonideological. The court also noted that the instruction and counseling in question served only to supplement the basic, normal educational offerings of the qualifying nonpublic schools. Any benefits to church-related schools that may result from the provision of such services, the District Court concluded, are merely incidental and indirect, and thus not impermissible. See 374 F. Supp., at 656-657. The court also held that no continuing supervision of the personnel providing auxiliary services would be necessary to establish that Act 194's secular limitations were observed or to guarantee that a member of the auxiliary services staff had not "succumb[ed] to sectarianization of his or her professional work." 374 F. Supp., at 657. We need not decide whether substantial state expenditures to enrich the curricula of church-related elementary and secondary schools,18 like the expenditure of state funds to support the basic educational program of those schools, necessarily result in the direct and substantial advancement of religious activity.19 For decisions of this Court make clear that the District Court erred in relying entirely on the good faith and professionalism of the secular teachers and counselors functioning in church-related schools to ensure that a strictly nonideological posture is maintained.In Earley v. DiCenso, a companion case to Lemon v. Kurtzman, supra, the Court invalidated a Rhode Island statute authorizing salary supplements for teachers of secular subjects in nonpublic schools. The Court expressly rejected the proposition, relied upon by the District Court in the case before us, that it was sufficient for the State to assume that teachers in church-related schools would succeed in segregating their religious beliefs from their secular educational duties. "We need not and do not assume that teachers in parochial schools will be guilty of bad faith or any conscious design to evade the limitations imposed by the statute and the First Amendment... . "... But the potential for impermissible fostering of religion is present... . The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion ... . "A comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed and the First Amendment otherwise respected... ." 403 U.S., at 618-619. The prophylactic contacts required to ensure that teachers play a strictly nonideological role, the Court held, necessarily give rise to a constitutionally intolerable degree of entanglement between church and state. Id., at 619. The same excessive entanglement would be required for Pennsylvania to be "certain," as it must be, that Act 194 personnel do not advance the religious mission of the church-related schools in which they serve. Public Funds for Public Schools v. Marburger, 358 F. Supp. 29, 40-41, aff'd, .20 That Act 194 authorizes state funding of teachers only for remedial and exceptional students, and not for normal students participating in the core curriculum, does not distinguish this case from Earley v. DiCenso and Lemon v. Kurtzman, supra. Whether the subject is "remedial reading," "advanced reading," or simply "reading," a teacher remains a teacher, and the danger that religious doctrine will become intertwined with secular instruction persists. The likelihood of inadvertent fostering of religion may be less in a remedial arithmetic class than in a medieval history seminar, but a diminished probability of impermissible conduct is not sufficient: "The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion." 403 U.S., at 619. And a state-subsidized guidance counselor is surely as likely as a state-subsidized chemistry teacher to fail on occasion to separate religious instruction and the advancement of religious beliefs from his secular educational responsibilities.21 The fact that the teachers and counselors providing auxiliary services are employees of the public intermediate unit, rather than of the church-related schools in which they work, does not substantially eliminate the need for continuing surveillance. To be sure, auxiliary-services personnel, because not employed by the nonpublic schools, are not directly subject to the discipline of a religious authority. Cf. Lemon v. Kurtzman, 403 U.S., at 618. But they are performing important educational services in schools in which education is an integral part of the dominant sectarian mission and in which an atmosphere dedicated to the advancement of religious belief is constantly maintained. See id., at 618-619. The potential for impermissible fostering of religion under these circumstances, although somewhat reduced, is nonetheless present. To be certain that auxiliary teachers remain religiously neutral, as the Constitution demands, the State would have to impose limitations on the activities of auxiliary personnel and then engage in some form of continuing surveillance to ensure that those restrictions were being followed.22 In addition, Act 194, like the statutes considered in Lemon v. Kurtzman, supra, and Committee for Public Education & Religious Liberty v. Nyquist, supra, creates a serious potential for divisive conflict over the issue of aid to religion - "entanglement in the broader sense of continuing political strife." Committee for Public Education & Religious Liberty v. Nyquist, 413 U.S., at 794. The recurrent nature of the appropriation process guarantees annual reconsideration of Act 194 and the prospect of repeated confrontation between proponents and opponents of the auxiliary-services program. The Act thus provides successive opportunities for political fragmentation and division along religious lines, one of the principal evils against which the Establishment Clause was intended to protect. See Lemon v. Kurtzman, 403 U.S., at 622-623. This potential for political entanglement, together with the administrative entanglement which would be necessary to ensure that auxiliary-services personnel remain strictly neutral and nonideological when functioning in church-related schools, compels the conclusion that Act 194 violates the constitutional prohibition against laws "respecting an establishment of religion." The judgment of the District Court as to Act 194 is reversed; its judgment as to the textbook provisions of Act 195 is affirmed, but as to that Act's other provisions now before us its judgment is reversed. It is so ordered.

After petitioner had been subjected to many hours of day-and-night questioning by police officers as a murder suspect, a state-employed psychiatrist with considerable knowledge of hypnosis was introduced to him as a "doctor" brought to give him medical relief from a painful sinus. By skillful and suggestive questioning, threats and promises, the psychiatrist obtained a confession. At petitioner's first trial in a New York state court, that confession was admitted in evidence and he was convicted; but the State Court of Appeals reversed on the ground that the confession was coerced. At petitioner's second trial, that confession was not used to convict him; but other confessions made the same evening were used. The issue as to the "voluntariness" of these later confessions was submitted to the jury and petitioner was again convicted. Held: The use of confessions extracted in such a manner from a lone defendant unprotected by counsel is not consistent with the due process of law required by the Constitution, and a Federal District Court's denial of a writ of habeas corpus is reversed. Pp. 556-562. 208 F.2d 605, reversed.Osmond K. Fraenkel argued the cause for petitioner. With him on the brief was Frederick W. Scholem.William I. Siegel argued the cause for respondent. With him on the brief were Nathaniel L. Goldstein, Attorney General of New York, Wendell P. Brown, Solicitor General, Samuel A. Hirshowitz, Assistant Attorney General, and Edward S. Silver.MR. JUSTICE BLACK delivered the opinion of the Court.Camilo Leyra, age 75, and his wife, age 80, were found dead in their Brooklyn apartment. Several days later petitioner, their son, age 50, was indicted in a state court charged with having murdered them with a hammer. He was convicted and sentenced to death, chiefly on several alleged confessions of guilt. The New York Court of Appeals reversed on the ground that one of the confessions, made to a state-employed psychiatrist, had been extorted from petitioner by coercion and promises of leniency in violation of the Due Process Clause of the Fourteenth Amendment.1 302 N. Y. 353, 98 N. E. 2d 553. Petitioner was then tried again. This time the invalidated confession was not used to convict him but several other confessions that followed it the same day were used. Petitioner objected to the admission of these other confessions on the ground that they were also coerced, but the trial court submitted to the jury the question of their "voluntariness." The jury convicted and the death sentence now before us was imposed.2 The New York Court of Appeals, holding that there was evidence to support a finding that the confessions used were free from the coercive influences of the one previously given the psychiatrist, affirmed, Judge Fuld and the late Chief Judge Loughran dissenting. 304 N. Y. 468, 108 N. E. 2d 673. We denied certiorari. . Petitioner then filed this habeas corpus proceeding in a United States District Court, charging that the confessions used against him had been coerced, depriving him of due process of law. The District Court properly gave consideration to the petition, Brown v. Allen, , but denied it. 113 F. Supp. 556. The Court of Appeals for the Second Circuit affirmed, Judge Frank dissenting. 208 F.2d 605. Petitioner then sought review in this Court, again urging that he was denied due process on the ground that his confessions to a police captain and to two assistant state prosecutors were forced. We granted certiorari because the constitutional question appeared substantial. .The use in a state criminal trial of a defendant's confession obtained by coercion - whether physical or mental - is forbidden by the Fourteenth Amendment.3 The question for our decision is therefore whether the present confessions were so coerced. This question can only be answered by reviewing the circumstances surrounding the confessions. We therefore examine the circumstances as shown by the undisputed facts of this case.When the father failed to appear at his place of business on Tuesday, January 10, 1950, petitioner, his business partner, and others went to the father's apartment about 3 p. m. and found the bodies of the aged parents. Police were called. Although they first suspected a prowling intruder, the presence on the couple's disarranged breakfast table of a third teacup led them to think that the killer was a welcome guest. This and other circumstances drew suspicion toward petitioner. He and others were questioned by the police until about 11 p. m. on the evening of the day the bodies were discovered. On Wednesday, police again questioned petitioner from about 10 in the morning to midnight. Once more, beginning about 9 Thursday morning petitioner was subjected to almost constant police questioning throughout the day and much of the night until about 8:30 Friday morning. At that time petitioner was taken by police to his parents' funeral. While petitioner was at the funeral and until he returned in the late afternoon, Captain Meenahan, his chief police questioner, went home to get some "rest." After the funeral petitioner himself was permitted to go to a hotel and sleep an hour and a half. He was returned to the police station about 5 p. m. on this Friday afternoon. During his absence a concealed microphone had been installed with wire connections to another room in which the state prosecutor, the police, and possibly some others were stationed to overhear what petitioner might say. Up to this time he had not confessed to the crime.The petitioner had been suffering from an acutely painful attack of sinus and Captain Meenahan had promised to get a physician to help him. When petitioner returned to the questioning room after the funeral, Captain Meenahan introduced him to "Dr. Helfand," supposedly to give petitioner medical relief. Dr. Helfand, however, was not a general practitioner but a psychiatrist with considerable knowledge of hypnosis. Petitioner was left with Dr. Helfand while Captain Meenahan joined the state District Attorney in the nearby listening room. Instead of giving petitioner the medical advice and treatment he expected, the psychiatrist by subtle and suggestive questions simply continued the police effort of the past days and nights to induce petitioner to admit his guilt. For an hour and a half or more the techniques of a highly trained psychiatrist were used to break petitioner's will in order to get him to say he had murdered his parents. Time and time and time again the psychiatrist told petitioner how much he wanted to and could help him, how bad it would be for petitioner if he did not confess, and how much better he would feel, and how much lighter and easier it would be on him if he would just unbosom himself to the doctor. Yet the doctor was at that very time the paid representative of the state whose prosecuting officials were listening in on every threat made and every promise of leniency given.A tape recording of the psychiatric examination was made and a transcription of the tape was read into the record of this case. To show exactly what transpired we attach rather lengthy excerpts from that transcription as an appendix, post, p. 562. The petitioner's answers indicate a mind dazed and bewildered. Time after time the petitioner complained about how tired and how sleepy he was and how he could not think. On occasion after occasion the doctor told petitioner either to open his eyes or to shut his eyes. Apparently many of petitioner's answers were barely audible. On occasions the doctor informed petitioner that his lips were moving but no sound could be heard. Many times petitioner was asked to speak louder. As time went on, the record indicates that petitioner began to accept suggestions of the psychiatrist. For instance, Dr. Helfand suggested that petitioner had hit his parents with a hammer and after some minutes petitioner agreed that must have been the weapon.Finally, after an hour and a half or longer, petitioner, encouraged by the doctor's assurances that he had done no moral wrong and would be let off easily, called for Captain Meenahan. The captain immediately appeared. It was then that the confession was given to him which was admitted against petitioner in this trial. Immediately following this confession to Captain Meenahan, petitioner's business partner was called from an adjoining room. The police had apparently brought the business partner there to have him talk to petitioner at an opportune moment. Petitioner repeated to his partner in a very brief way some of the things he had told the psychiatrist and the captain. Following this, petitioner was questioned by the two assistant state prosecutors. What purports to be his formal confession was taken down by their stenographer, with a notation that it was given at 10 p. m., several hours after the psychiatrist took petitioner in charge.On the first appeal the New York Court of Appeals held that the admissions petitioner made to the psychiatrist were so clearly the product of "mental coercion" that their use as evidence was inconsistent with due process of law. On the second appeal, however, that court held that the subsequent confessions here challenged were properly admitted. The Court of Appeals for the Second Circuit held the same thing. With this holding we cannot agree. Unlike the circumstances in Lyons v. Oklahoma, , 603, the undisputed facts in this case are irreconcilable with petitioner's mental freedom "to confess to or deny a suspected participation in a crime," and the relation of the confessions made to the psychiatrist, the police captain and the state prosecutors is "so close that one must say the facts of one control the character of the other ... ." All were simply parts of one continuous process. All were extracted in the same place within a period of about five hours as the climax of days and nights of intermittent, intensive police questioning. First, an already physically and emotionally exhausted suspect's ability to resist interrogation was broken to almost trance-like submission by use of the arts of a highly skilled psychiatrist. Then the confession petitioner began making to the psychiatrist was filled in and perfected by additional statements given in rapid succession to a police officer, a trusted friend, and two state prosecutors. We hold that use of confessions extracted in such a manner from a lone defendant unprotected by counsel is not consistent with due process of law as required by our Constitution. It was error for the court below to affirm the District Court's denial of petitioner's application for habeas corpus. Reversed.MR. JUSTICE JACKSON took no part in the consideration or decision of this case.[For dissenting opinion, see post, p. 584.] APPENDIX TO OPINION OF THE COURT. Excerpts from the transcript of the questioning of petitioner by Dr. Max Helfand, a psychiatrist, at the 88th precinct on January 13, 1950."Q. What do they call you for short? A. Buddy.""Q. How old are you about? A. Fifty.""Q. Are you married? A. Yes, sir.""Q. Buddy, will you tell me something about yourself. I'll tell you what the purpose of my talk to you is. I want to see if I can help you. A. Yes, Doctor.""Q. I know you are in a little trouble. We do sometimes things that are not right, but in a fit of temper or anger we sometimes do things that we aren't really responsible for. I want to see whether or not you did something but which you've done in a fit of temper or anger. Do you understand me? A. Yes.""Q. Will you tell me something about yourself. What kind of a boy are you? Do you have a lot of friends? A. Yes, I have.""Q. I can't hear you. A. Yes, I have; and I am very tired. I had two hours sleep. Just now they woke me up. That's since Tuesday. Well, there were questions, after questions, after questions, by the thousands.""Q. Aren't you rested now after two hours sleep. You feel pretty good and you look good. A. Well I went to the barber and I feel clean and everything else. The only thing is I am very tired. I didn't feel as tired before I went to bed as I do now. You know - (interruption)"Q. Do you know we sometimes feel tired if we have something on our mind. It's what we call mental tension.""Q. Do you know we sometimes feel tired if we have something on our mind. It's what we call mental tension. If you talk to me and open up, you're going to feel relieved. Speak up and tell me. Do you have a lot of friends? A. Yes, I have a lot of friends.""Q. Do you sometimes get into arguments with them? A. No, not as a rule. The first time I was surprised. I always considered myself an even tempered fellow - sociable. It's my sinus. It's bothering me something terrible. It got so in the last year or so. It got worse and worse and worse.""Q. That made you nervous, didn't it? A. I didn't particularly notice it. For the past two years, my average of work has been about over a hundred hours each week of work for two years. No vacation or anything like that. The first time was anybody noticed it was about - let's see - it's about two weeks ago I went to the doctor with my father.""Q. I see. A. My sinus was bothering me so bad I use to have to stop work during the day.""Q. What was the matter with you father? A. Dad had a heart attack a couple of years ago, but I went for myself.""Q. Your father was a nervous man too, wasn't he? A. Yes, but I went for myself. I didn't think I ever was high strung. I thought I was the opposite. I thought I was pretty calm.""Q. Your father was high strung? A. Yes.""Q. Fly off the handle quickly? A. Yes. So I went to the doctor and he examined my sinus. He took the blood pressure. So he said to me, "When did you go to your doctor?" That was - today is Friday - one week back. The Tuesday of that week. It's ten or 11 days.""Q. You went with your father? A. With my father.""Q. Did he give you any treatments? A. Yeah, he examined my sinus.""Q. Did he tell you to come back? A. No, he sent me down to have X-rays taken. When he examined me, he put the lights up here.""Q. You didn't have any appointment with the doctor after your visit? Did he tell you to come back? A. Oh, yes. He sent me down to have a set of X-rays made. We had the X-rays made. Then I called the doctor and he said it was a very bad case of sinus. It wasn't something new. It was for many years back, and he said there was a lot of scar tissue there, and he asked me could I come right out. That was last Saturday. So Saturday night, I worked. That was my busiest night of the week. So I told him I wouldn't like to come on Saturday, so he said he doesn't have any patients on Sunday, could I come Monday. Monday, unfortunately, I had to work all alone, so I told him I'd make it Tuesday night. So he said, "You come over Tuesday. I'll be able to do something to stop those pains." So we made the appointment for Tuesday night at six o'clock.""Q. For you? A. Yes, and he was going to open those - ""Q. Not for your father? A. No, for myself. My father was with me. He was to go with me on this Tuesday also.""Q. Why? Did your doctor tell you to bring your father? A. No, he didn't tell me to bring him.""Q. Why was your father going with you? A. He wanted to go with me. He wanted to see if something couldn't be done to stop those pains. He said, "Lie down and close my eyes and see if I could stop the beating up there.""Q. When the pain got so bad, didn't you get nervous?""A. Yes, I guess I did. That was the first time anyone ever told me that I was ill. When the doctor took my blood pressure, he said, "You're very irritable." And I said, "I didn't think so." He told me, he said, "You're going to have to - you can't work day and night. It's too much." He said, "You got to slow down.""Q. I want you to recollect and tell me everything. I am - ""Q. - (continued) - going to make you remember and recollect back and bring back thoughts - thoughts which you think you might have forgotten. I can make you recollect them. It's entirely to your benefit to recollect them because, you see, you're a nervous boy. You got irritable and you might have got in a fit of temper. Tell me, I am here to help you. A. I wish you could, Doctor.""Q. I am going to put my hand on your forehead, and as I put my hand on your forehead, you are going to bring back all these thoughts that are coming to your mind. I am going to keep my hand on your forehead and I am going to ask you questions, and now you will be able to tell me. What happened Monday night? Where did you sleep? A. Last Monday night?""Q. That's right. A. I worked Monday night.""Q. After you worked, where did you sleep? Where did you go to sleep? A. To the apartment of 10th Street.""Q. What time did you sleep to, or get up in the morning? A. She got up about 6:30.""Q. Well, after she left the house, then you couldn't sleep. Then you got dressed? Your thoughts are coming back to you. Answer me. Come on, you can answer me. You couldn't go back to bed. You didn't go back to bed. After she left, you got dressed, didn't you? A. Yes, I got dressed.""Q. What did you do after you got dressed? Come on, now. Your thoughts are coming back to you. Come on. Come on, answer me. A. I went to Brooklyn.""Q. You went to Brooklyn. Where did you go to Brooklyn? A. To my mother's house.""Q. To your mother's house. When you came to your mother - now, all your thoughts are beginning to clear up. Now, everything is clear in your mind. You came to your mother. Who opened the door? A. My mother.""Q. What did you say? A. I said, "Hello, Teddy."... . ."Q. All right. Now, you are in your house. Your thoughts are coming back to you right away. A. Doctor, can I have a drink of water, my mouth is very dry.""Q. A drink of water? I'll get you a drink of water. A. (Pause).""Q. All right. O.K. now? A. My mouth is dry. I'm not thirsty. Just my mouth is dry. I'm not thirsty.""Q. Concentrate and look at me. Now you came home. Your mother met you at the door. You said, `Hello, Teddy,' right? A. That's right.""Q. What did she say to you? A. She said take off my coat, it's all wet.""Q. What did you do? A. I took the coat off.""Q. Now, you are back in your apartment, see. Your thoughts are clear now. What did you do after you took off your raincoat? A. She told me, "Come and have some tea.""Q. She told you what? A. `Come and have a cup of tea. It will warm you up.'""Q. What did you do? A. Dad was having breakfast." "Q. Where was Dad sitting? A. At the end of the table.""Q. Where did you sit down? A. Between them.""Q. Between whom? A. Mom and Pop.""Q. Between Mom and Pop? A. That's right.""Q. Where was Mom sitting? A. Next to the kitchen sink.""Q. You were sitting between Mom and Pop, right? A. That's right.""Q. What did you do then? A. I sat down.""Q. Yeah, what did you do? What did you do when you sat down. Come on, speak up. Don't be afraid now. We're with you? We're going to help you. You're going to feel lots better after you talk to me. A. Gee, I hope so.""Q. I can't hear you? A. The argument started all over again.""Q. The argument with your father? A. Yes.""Q. Did your mother argue with you, too? A. No.""Q. What was the argument about? A. The business - his business.""Q. Whose business? A. Our business.""Q. What did you father tell you - speak up. A. He told me both of us didn't care whether his business was good or bad. I told him our business was getting prosperous.""Q. What did you say about that? A. He told me it wasn't so.""Q. Was it a violent argument? Did your father lose his temper? A. Yes, it got more heated.""Q. As it got more heated, what happened then? Don't be afraid, speak up. Come on, we'll help you. A. He argued more and more.""Q. You argued more and more. Then what? A. I told him, `Pop, why don't you stay home? Be satisfied. Our business is getting good. You don't have to work this way.'""Q. Yes. A. He says, `I'm going to work. I'm going to have my own business.' He says, "I'd rather make a stinking dollar than make it from somebody else.' So my mother started to get into the argument.""Q. What did she say? A. She told him, `Why don't you stay home. Why don't you do what your son says.'""Q. Go ahead, speak up. A. I'm trying to think, Doctor.""Q. It's coming all clear to you now. I've got my hand on you. I'll make you think back. All your thoughts are coming back to you. Did your father hit you? A. No.""Q. What happened next? Speak up. It's coming clear now. You will feel lots better after you tell me. It's all in a fit of argument. Speak up. Speak up. It's coming clear to you. I have my hand on your head. What did you do? Come on. A. I told him that we weren't going to let him work anymore." ... . ."Q. Then? A. That he would be so much better off letting us take care of it. Twenty-five per cent we would give him from our business would be better than his own.""Q. That's right. Go ahead. Come on, you're going to feel lots better. We're with you one hundred per cent. Then what happened? A. He said he wouldn't take it.""Q. That's right. A. That we were traitors to him. He said my partner was a louse; that he took his hundred dollars a week and he didn't do anything for it.""Q. Yes. A. It was like robbing him of a hundred a week.""Q. That's right, speak up. A. My mother interfered and said, `Bill was a nice fellow and a hard working fellow.' He said, `I'm the boss.' He told my mother, `You shut up.' He told my mother, `Go sit down.' He pushed her in the chair.""Q. He pushed her in the chair? A. Yes.""Q. That's the time you lost your temper? A. No.""Q. Go ahead, what happened? A. I told him `Pop, think it over. We're silly to argue. It will do us no good.' He said, `Finish your damn tea. I'm going out and get my paper.'""Q. Yes. A. He says, `We'll go to the bank,' and he says, `I'll go to Broadway and pick up the box tops and you'll go back and you'll all get out of this place;' and he says, `If your mother agrees with you, she can go with you.'""Q. Yes. A. So he went out.""Q. Did he put his coat on? A. Yes.""Q. He went out? A. Yes.""Q. So then what happened? A. Mom said, `Don't get excited.'""Q. You were very excited? A. Yes.""Q. Go ahead. Come on. Tell me what happened then. Come on, now, speak up. You're going to feel lots better. We're with you a hundred per cent. Come on. Come on, we'll help you. A. I can't Doc.""Q. Yes, you can. All these thoughts are coming back to you. I have my hand on your head. When your father went out, your mother talked to you. Then what happened? What did you do to your mother. Come on. Speak up. Come on. All these thoughts are coming to you now. A. I can't think.""Q. Sure you can. Look at me. Open your eyes. Now you know what happened. Look at me. I know you know what happened. A. I can't think.""Q. Sure you can. Come on now. Don't be afraid. Your conscience will be clear. God will be with you, and everybody will help you if you tell the truth. Everybody will help you, but nobody likes a liar, not even God. Come on now. Tell the truth. A. I can't think.""Q. Your father went for the paper; then you hit your mother, didn't you? With what did you hit - with a hammer? Your thoughts are coming back to you. What did you use to hit your mother with? A. I loved my mother.""Q. I know you did. You lost your temper. Don't be afraid. A lot of people do things that they are not responsible for while in a fit of temper. You see? A. My mother was the only thing in the world.""Q. That's right. What did you hit her with? Come on, now. Speak up. A. I was so mad.""Q. You were very mad. A. I said he's not going to treat my mother this way. He killed my brother.""Q. Yes. He killed - A. My brother would have lived many years. The way my father made him work - ""Q. That's right. A. I said he's not going to kill my mother and he's not going to kill me. The only way we can stop him. He's got to be stopped. He can't be the boss.""Q. Go ahead. He's got to be stopped, you said. So? A. My mother always said she wanted to be with him.""Q. Yes. A. Doc, I can't take it.""Q. Come on, yes, you can. Speak up. So you thought it would be the right thing to do what? Come on. You started - ""Q. (continued) now. Speak up. Everybody will help you. You're a nice fellow. You're a man now. You don't want to be a coward. Everybody will help you. You were excited. You did it in a fit of anger. A. I was never a coward.""Q. I can't hear you. A. I was never a coward.""Q. Come on, speak up. Your mother said she wanted to be with your father. So what did you do? A. I can't remember." "Q. Sure you can. Speak up now. A. I can't.""Q. Look at me. Look at me. A. Yes, Doc.""Q. Your thoughts are coming into you. Don't be afraid Buddy. We're all with you one hundred per cent. We'll help you. We'll help you every way possible. I'm your doctor. I'm going to help you. A. I hope you can.""Q. I know I can. If you will be honest with me, I'll help you. Everybody thinks a lot of you. You're a nice man. A. Doctor, can I have some water, please.""Q. Sure have some water. A. Yes, sir.""Q. Come on, take some more water. A. I'm not thirsty. It's just my mouth is dry.""Q. That's because you're nervous, you see. Your conscience is bothering you. After you tell me and tell me the truth, then you will feel relieved. We're all with you one hundred per cent. Then you will be fine. Now, let me put my hand on your forehead again. A. It hurts so." ... . ."Q. Sure you can think. Only cowards can't think. You aren't a coward. You can speak up. You know - you know what you did. Come on now. Come on. I have my hand on your forehead and your thoughts are coming back to you. Come on now. Now, your thoughts are coming back to you? A. No, Doc, they don't."Q. They're coming back to you. Concentrate on what I say. They're coming right in again. Your mother said - you said he had to be stopped. What did you do? A. I don't know, Doc.""Q. You know you hit your mother first. You hit your mother on the head. Speak up. What did you do? A. I don't know, Doctor.""Q. Yes, you do. Speak up, now. Speak up. See, I can make you talk very truly. I can give you an injection now. It's much better if you tell it to me this way. Come on, now, speak up. A. I can't think, Doctor.""Q. Just relax and concentrate and listen to me. Speak up. What did you say? You had his what? You had his what? What about your hand back? A. It's all confused.""Q. Sure it's confused because you don't want to think. You are fighting. You have a conscience. As soon as you talk to me your conscience will be relieved. See, you show tension now. You're pale; your mouth is dry. You have a conflict. As soon as you talk to me everything will be relieved. You are going to feel lots better. Come on. A. Doc, I'm trying to think.""Q. I'm trying to help you if you tell me the truth. I am on your side. I am going to help you all I can. Come on, now, Buddy. Be a nice fellow. Put your hand here. All right. Tell me what happened. Come on. Tell me what happened. Your father went away, and you said he had to be stopped. What did you take. What did you take in your hand? Speak up, Buddy. I can't hear you. Don't be afraid now. A. I'm not afraid, Doc.""Q. Don't be afraid. We're all with you. We want to help you. A. I'm not afraid.""Q. I can't hear you. Speak up. A. I'm not afraid, Doc. I'm not afraid, Doc. I want you to help me.""Q. Did you finish your tea? A. I finished the tea.""Q. You finished the tea. So what happened then? What did you do to your mother? Concentrate - just close your eyes and concentrate. A. I can't."Q. All right, Buddy, you can think now. Your head is all clear now. Try and get it clear. A. It's not clear.""Q. Just relax now and everything will come back to you. You know what happened. Everybody - I mean, these people know what happened. It's much better for you to come clean and play ball. Everybody thinks you are trying to hide something." "A. I don't want to hide anything.""Q. Then speak up and tell me. You told me so far - you know you did it - you were in there. Did your mother start a fight with you? A. No.""Q. Did she continue the argument? A. No, my mother was in agreement with me.""Q. But you had a little argument about going with your father, is that what you said? A. No.""Q. What then? A. I said, "Mom, if he don't stop, I'll kill him.""Q. I didn't hear that. What did you say? A. I told her, I said, "Mom, if he don't stop the arguments with me, I'll kill him.""Q. What did she say? A. So she said, "Calm down. Here, take a drink of water." So I said, "Just wait until he comes back. We'll finish this once and for all.""Q. So. A. So she said, "Here, take a drink of water.""Q. Go ahead. I'm with you. Don't be afraid. So. Speak up. So, what did you do then. Now, you know what you did. You've got a story on your mind. Come on. You can speak now. Come on, Buddy, speak." "A. Doc, I'm trying so hard.""Q. I know you're trying. I'm trying with you because you're a nice fellow. A. I just can't think.""Q. All right, get to the part where you said, "I'll kill him." So then what happened. You waited until he came back. Come on. A. Doc, I can't.""Q. Speak up, I can't hear you. All right, what did your mother say when you said, "When he comes back, I'll kill him." What did your mother say? Did you take a drink of water? I can't hear you. A. I don't remember.""Q. I see. So what did you do then? A. I don't know." "Q. Now, you think. All your thoughts will come back to you. Just think. Just relax. All your thoughts will come back to you. I have my hand on your head. Your thoughts are coming back to you. It's much better for you. You will get along much better and you will feel better. I can't hear you. What did you say? A. Will I ever feel better.""Q. You will if you tell me the truth. You won't if you don't. You may as well tell us and we'll work with you. We'll play ball with you. We'll help you if we can. It will make you feel better. Come on, now, speak up. You told your mother, "Wait until he comes back. I'll kill him." "A. She said, `Here take a drink of water.' Doc, I can't remember.""Q. Sure you can. Open your eyes. Don't say you can't. Just look at me. A. I just don't remember.""Q. Sure you can. A. No, I can't think, Doctor.""Q. Buddy, it doesn't help you if you say you can't think when you know you did it, so you may as well tell us and get our help. If you don't tell us and get our help, I'll wash my hands of you. All right, close your eyes and think hard. Just close your eyes now and your thoughts will come back to you. All your thoughts are coming back to you. You're a nice fellow and you're excited; and in a fit of temper you said you were going to kill him when he comes back. What did your mother do? Did she try to hold you? A. No.""Q. I can't hear you. Did she hold you? A. No.""Q. What did she do? A. She wanted to give me a drink of water. She took the cup and started to run the water.""Q. She started what? A. She started to run the water.""Q. Yes. She was facing the sink? A. She was facing the sink. "Q. I can't hear you? A. She was facing the sink.""Q. So what did you do. Speak up. I'll positively help you if I can. I'm with you one hundred per cent. I'm going to help you. You're going to feel fine. Your conscience will be clear and everything will be fine. Don't hide anything. You did it in a fit of temper. Your mother went to the sink to give you some water. So you did what? You went up to her? A. I was standing there waiting for him to come back. I picked up the hammer.""Q. You picked up the hammer? A. Yeah.""Q. I didn't hear that. What did you say? A. I picked up the hammer.""Q. Yes ... say it. Say it. A. I said, `He killed my brother, he'll kill my mother, and he'll kill me'.""Q. Yes. You picked up the hammer. Where was the hammer? A. It was on the dish closet.""Q. On the dish closet? A. Yeah.""Q. In what room? A. In the kitchen.""Q. What kind of hammer was it? A. A big hammer.""Q. Was it a carpenter's hammer? A. It was a big hammer.""Q. A big hammer. You picked it up and then what? Don't be afraid. Say it. A. I can't, Doc.""Q. I know you can't. I know it's hard, but say it. We're working with you. You're pale and dry. You're nervous. Just let me put my hand on your head and your thoughts will come in. You picked up the hammer and your mother was standing near the sink - facing the sink - letting the water run; and you picked up the hammer and you said - you said, your father, he killed my son. You said he is going to kill us all. You remember that, don't you? Come on, say it. Speak up, come on. You move your lips. You know you want to say it. Say it a little louder. Come on, Buddy. We'll help you. Don't be afraid now. A. I can't help you." "Q I'll help you, Buddy. I am with you one hundred per cent, but you got to play ball with me. You know she was standing by the sink. You got to tell me the truth. A. No, she wasn't standing.""Q. What was she doing? A. She was sitting."... . ."Q. Your mother was sitting at the end of the table; Joe you will have to speak loudly, I can't hear you? A. I got up from the table.""Q. And you took a drink of water and you held the hammer in your hand. What did you do then? A. I can't think any more what I did.""Q. It will come back to you? A. Doc. can I see the results?""Q. I can't tell you how you think you killed her? A. I must have; who else could have.""Q. I want you to recollect your thoughts; tell me all the details. I can make you talk? A. I tried for two days; this thing came last night. Everybody was asking me questions. It didn't do any good to ask me; I couldn't answer them.""Q. That's right? A. Everybody was nice to me.""Q. Everybody was nice to you? A. Yes.""Q. Nobody hurt you, did they? A. No.""Q. Nobody forced you to answer anything? A. No, I just can't remember."... . ."Q. Come I am holding my hand on your forehead; I am making your thoughts clear. You know exactly what happened? A. Doc. I can't think. I must have done it but how."Q. What did you say? A. I said I must have done it but how."Q. You just told me, you had your hand on your head? A. I don't remember. From then on, I can't think of anything. "Q. Alright relax and think. You stay here until your thoughts come back to you. Did you start any argument with your Mother? When your Father went down for the paper, did you start an argument with your Mother, after she gave you the water? A. No, I always babied my mother. (Noise)"Q. Did you have it in mind that your Mother would die with your Father because you always wanted it? A. She always said that."Q. She always said what? A. That she wanted to die with him."Q. You had it on your mind, didn't you? A. I don't know Doc."Q. Think and tell me; just think and tell me. A. She was just like a baby to me."Q. Just relax and your thoughts will come back to you because I have my hand on your forehead. Everything will be fine. If you tell us all the details we will know the whole story of what happened. You picked up the hammer and your Mother was sitting on the chair, you said, and you were standing at the sink? A. I was standing by the stove."Q. You were standing by the stove, excuse me I made a mistake. What did you do with the hammer, you swung it? A. I must have Doc. Nobody else could have done it."Q. Nobody else could have you say you must have swung it? A. I must have."Q. And your Mother fell down. How many times did you swing it. You must tell me that. How many times did you swing the hammer? A. I don't know Doctor."Q. Was it once or twice or three times? A. I don't know."Q. How many times? A. I was never angry with my Mother. "Q. Were you angry with you Father? A. I was very angry with him."Q. And you felt that your Mother should die at the same time with your Father? A. I don't know."Q. What did you do then, when your Father came in. You heard him come up. What floor do you live on? A. Street floor; I was in the back."Q. And your Father opened the door to the apartment, when he came back with the paper? A. I don't know, Doctor."Q. Think, think. A. I don't know why, I can't think."Q. I am helping you to think, if you want to you can. There is only a question of wanting. A. I want to so bad."Q. If you want to you can because you know everything that happened. We know that you are a nice man and I am trying to help you. When your Father came back with the paper; now here you are, you are in the apartment and your Father came back with the paper? A. I can't remember, Doctor."Q. Sure you can. A. I don't remember, Doctor."Q. Sure you can; try hard. A. I thought sometimes last night. I told the Captain last night I can't remember. That I would have to remember."Q. Why do you have to remember? A. Because if I can't remember these things here, my own children may not be safe. I can't remember what happened; I don't know what happened. I can't think."Q. What do you think will happen to the children? A. I don't know; it worries me."Q. What do you think might happen to the children? A. I was there with a hammer in my hand I know it. I remember having a hammer in my hand."Q. Take your time and relax. Now open your eyes and look at me, just open your eyes - look at me your thoughts will come back, look at me and concentrate. You said you were at the stove with the hammer in your right hand. You were very, very angry you said, right? A. I was never angry at my mother but my Father accused me."Q. Accuses you of what? A. That I was trying to put him out of business. The first day we went into the new business we gave him an equal share with us. (Noise) I knew for years that he killed my brother. My brother did the work of six men; he gave him a measly ten dollars a week. He'd sooner lose his son and stay in business so he could save the money and live with my mother."Q. Everybody is with you one hundred per cent. You were angry with your Father; you were never so angry like that in all your life? A. I can see what happened Doc but I can't remember."Q. Just concentrate and your memory will come back to you. You want to say something because I can see your lips moving. You are a nice fellow. Everybody likes you, everybody can make a mistake. Now speak up and tell us what happened. Alright, speak up; you know some things. What happened next? Your Father came back with the paper, what did you do? A. I can't think Doc. It doesn't come to me. (Noise)"Q. I've got my hand on your forehead, your thoughts will come back to you, everything will be clear? A. Hold my temples Doc."Q. You say you want me to hold your temples. Now your thoughts are coming back, that's right. The pain was only a tension; it's nervousness. I'm trying to make you speak. I want you to speak up and I want you to tell me everything, now speak up. A. Do I have to?"Q. Sure you have to; it will be much better for you, now speak up. A. I don't remember much. I promised the Captain I would speak up. "Q. Was the Captain good to you? A. He was wonderful."Q. Was I good to you? A. Everybody was good to me."Q. We are all trying to help you, we are all trying to help you. Your thoughts are coming into you. Now what happened next. You think and you tell me; where were you standing? ... . ."Q. Just close your eyes and it will all come back to you. Just close your eyes and relax. A. I'm trying to Doc. I came back from the cemetery today. All the way down from the cemetery I tried to force myself to remember. I can't. (Noise) I'm trying to remember, how could I do this to my mother. I'm trying to remember."Q. I can understand that you loved your mother? A. My mother yes. I can't think. It's awful."Q. I can understand how you feel about your mother. A. They told me to rest. I took a good shower and I slept. I was very tired; I was tired, when I got up."Q. I can understand how you feel about your Mother. (Noise) You were never so angry in all your life as you were at that time. You told your Mother that you were waiting to kill him. You were waiting for him to come back with the paper. That is what you told me. I can understand that the anger was sufficient to kill your Father? A. Why my mother?"Q. I don't know about your Mother but as far as your Father was concerned your thoughts were pretty clear, right? A. When he came back I said I was going to settle it once and for all."Q. When he came back you said to him you were going to settle this thing once and for all? A. I said I was going to settle this thing once and for all. I stood there standing with the Hammer waiting for him to come back. "Q. Just take your time now. You were standing there with the hammer. Now your Father came back again? A. I don't remember."Q. Close your eyes and your thoughts will come back, relax. I am going to make your mind recollect everything. Your mind is getting clearer and clearer; all your thoughts are coming back now. Now they're coming back. Now your Father went for the paper; your Father came back. Now talk to me. Now your mind is clear. (Noise) Speak up and tell me. A. I can't remember him coming back."Q. Yes you can concentrate, just concentrate and you can see your Father come back now. How long did it take for him to get the paper? A. Oh, just a few minutes.... . ."Q. And in a few minutes, you heard him come in? A. I don't remember him coming in."Q. What did you do to your mother in the meantime? A. I don't know. If I could only think."Q. What do you think? Come, think, think. I want to tell you something. You are a smart fellow. I may as well be very frank with you. Everything does not alter the case for you. They are not going to work with you and I am not going to work with you if you don't help yourself. A. I want to help myself."Q. Now, you see all the details are there. You say yourself, you were the only one there. You say you must have done it? A. We talked this over for twelve hours."Q. But you didn't remember all the facts that you told me. Now your mind is clear. A. I can't remember how that happened."Q. The fact that you remember or don't remember don't help you, you know. If you remember and come across like a good man - A. Doc, I want to help myself. I can't remember. "Q. If you tell us the details and come across like a good man, then we can help you. We know that morally you were just in anger. Morally, you are not to be condemned. Right? A. Right."Q. But you have to tell us the details, then we will know that you are above board and on the level. Otherwise, we just don't do nothing to you and you will get the worst of it. A. I can't remember. I must have done it. I don't deny that I did it."Q. You don't deny what? A. I don't deny that I did it. I must have done it."Q. You don't deny that you didn't do it, you mean?A. No, I don't say I didn't do it. I know I did it."Q. You know you did it? A. Here is the proof of it."Q. Do you know you did it? A. I can't remember doing it. I know it happened. Look at my mother, the woman that I love most in the world. Look. How did it happen? I can't even remember. I can't remember him. I can't remember him coming back. Doctor, can anybody be this crazy?"Q. That is not crazy, my friend. That is not crazy. When you don't remember anything, that is not crazy. If I forget that I owe somebody ten dollars, that doesn't mean that I am crazy. If you forget the incidents of this thing, that does not mean you are crazy. A. I didn't say it that way."Q. You said, `Can anybody be that crazy?' You are not crazy. A. I want to remember this thing. I have got to remember it."Q. This is what we call amnesia and in other words, a wish to forget because it is not pleasant. It does not mean that you are crazy. A. I didn't say that doctor. You misunderstood me."Q. I must have misunderstood you. A. I didn't say I was crazy. "Q. You don't think you are crazy, do you? A. No, I hope not."Q. Do you think you might be crazy? A. No, I don't think so."Q. Of course not. You are not crazy. You are a nice fellow. I am willing to stay here with you and help you but you have got to help yourself. A. I have tried today for hours to recall from here on, from the time that my mother - I can recall everything. I did it last night. Here, it took hours to piece together things. I sat here. I was so confused that I didn't know whether I owned this suit. I didn't know whether I had a pair of shoes."Q. Everything is clear up to the point where you held the hammer in your hand? A. That's right but why can't I remember from there on?"Q. If you will just stop for a minute, you will remember. And your thoughts will come into you. A. Doctor, I am exhausted, so please be patient."Q. I am patient. A. I appreciate that."Q. I will stay here with you all night, if you want to? A. The Captain and I last night, he was so patient. He waited for hours until these things came home."Q. For hours? A. I appreciate it."Q. Do you want me to wait? A. I told him that the last time. It's got to come back. I have been trying to remember all day."Q. Take your time. Just take your time. A. I am trying to remember."Q. You got a much better chance to play ball, (Then noise) than if you say you don't remember."Q. If you tell me that you were in a fit of anger, that you were angry, that you just swung the hammer, but if you tell me that you don't remember, then you will be working against yourself. Where will it get you? A. At that point there, I was so mad. I was like white hot metal. I was so mad. I was never mad at anyone in my life. (Then noise)"Q. Do you feel better? (Then noise) Do you want coffee? A. I drank coffee all night long. (Then noise)"Q. These people are going to throw the book at you unless you can show that in a fit of temper, you got so angry that you did it. Otherwise they toss premeditation in and it's premeditation. See?"Q. Drink your coffee. Take your time. I got time. You got time. Just relax. Want some more coffee? A. I would like some hot coffee, doc. I would like to speak to the Captain."Q. To whom? A. To Captain Meenahan."Q. You would like to speak to him? You want me to call him? A. I wish you would."Q. Do you want me to come back? A. I don't know. He was awful good hunk last night."Q. Well, we were getting along very nicely. I am trying to straighten him out with his troubles. He seemed a little mixed-up. His mind is clear now. I made him concentrate. His mind is much clearer. You can take my seat, Captain. "Q. Can I speak to the Captain?"

In enacting the federal labor relations statutes, Congress did not include a statute of limitations expressly applicable to claims against unions for breach of their duty of fair representation. Thus, in DelCostello v. Teamsters, , this Court "borrowed" from 10(b) of the National Labor Relations Act its 6-month statute of limitations period for use in "hybrid" suits that combine unfair labor practice claims with duty of fair representation claims. Section 10(b) provides that no complaint may issue based on an unfair labor practice that occurred more than six months prior to the filing of a charge and the service of a copy thereof on the person against whom the charge is made. Although petitioner's complaint in his hybrid suit against respondents - his employer, his union, and his union representative - was filed less than six months after the 10(b) statute of limitations began to run, the District Court granted summary judgment to respondents because the summonses and complaints were not mailed nor service acknowledgments made until after the 6-month period. The Court of Appeals affirmed, holding that, under DelCostello, 10(b) requires in hybrid suits that both the filing and service of the complaint be made within the 6-month period.Held: The action was timely commenced because the complaint was filed within the 6-month period. When the underlying cause of action is based on federal law and the absence of an express federal statute of limitations makes it necessary for a federal court to borrow a limitations period from another statute, the action is not barred if it has been "commenced" within the borrowed time period by the filing of a complaint with the court in compliance with Rule 3 of the Federal Rules of Civil Procedure. The mere act of borrowing a statute of limitations to apply to a federal cause of action does not require that that statute's service provisions also be adopted, since Rules 4(a) and (j) of the Federal Rules of Civil Procedure normally require the plaintiff to serve the summons and a copy of the complaint within 120 days. When borrowing a statute of limitations for a federal cause of action, this Court borrows no more than is necessary to fill a gap left by Congress. DelCostello simply borrowed 10(b)'s limitations period, and did not substitute 10(b) for the Federal Rules. Pp. 38-40. 780 F.2d 361, reversed and remanded.STEVENS, J., delivered the opinion for a unanimous Court. Paul Alan Levy argued the cause for petitioner. With him on the briefs were Alan B. Morrison and Arthur L. Fox II.Laurence Gold argued the cause for respondents. With him on the brief for respondents Brotherhood of Maintenance of Way Employes, Local 2906, et al. were William J. Birney, William G. Mahoney, and David Silberman. W. Cary Edwards, Attorney General of New Jersey, James J. Ciancia, Assistant Attorney General, and Jeffrey Burstein, Deputy Attorney General, filed a brief for respondent New Jersey Transit Corp. Lucy S. L. Amerman, John B. Rossi, Jr., and Bruce B. Wilson filed a brief for respondent Consolidated Rail Corporation.JUSTICE STEVENS delivered the opinion of the Court.Petitioner Thomas West brought a "hybrid" suit against his employer, his union, and his union representative under the Railway Labor Act. He alleged that the employer had breached the collective-bargaining agreement and that the union and its representative had breached their duty of fair representation. The parties agree, for the purpose of our review of the Court of Appeals' judgment, that petitioner's cause of action accrued on March 25, 1984, the date petitioner learned of the alleged breach of the union's duty of fair representation. His complaint was filed on September 24, 1984, less than six months after the statute of limitations began to run. The summonses and complaints were mailed to respondents on October 10, 1984. Respondents acknowledged service of the complaint on dates ranging from October 12, 1984, through November 1, 1984. Thus, both the date on which the complaints were mailed and the date when the first acknowledgment of service was made were more than six months after the statute began to run.Because service was not effected within the 6-month period prescribed in 10(b) of the National Labor Relations Act,1 the District Court granted respondents' motion for summary judgment. App. to Pet. for Cert. 15a. The Court of Appeals for the Third Circuit affirmed. 780 F.2d 361 (1986). We granted certiorari, , because the Third Circuit's decision is at odds with a decision of the Court of Appeals for the Sixth Circuit, Macon v. ITT Continental Baking Co., 779 F.2d 1166 (1985), cert. pending, No. 85-1400.Congress did not enact a federal statute of limitations that is expressly applicable to federal duty of fair representation claims. In DelCostello v. Teamsters, , we filled that gap in federal law by deciding that the 6-month period prescribed in 10(b) should be applied to hybrid claims under 301 of the Labor Management Relations Act, 1947, 29 U.S.C. 185.2 Section 10(b) authorizes the National Labor Relations Board (NLRB) to issue a complaint when a charging party asserts that an employer or a union has engaged in an unfair labor practice. The statute does not impose any time limit on the issuance of such a complaint, but it does provide that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made ... ." See n. 1, supra.3 Given our holding in DelCostello, the Court of Appeals read this statutory language to require in hybrid suits of this kind that both the filing and the service of the complaint be made within the 6-month period of limitations. We did not, however, intend that result.The only gap in federal law that we intended to fill in DelCostello was the appropriate limitations period. We did not intend to replace any part of the Federal Rules of Civil Procedure with any part of 10(b) of the National Labor Relations Act. Rule 3 of the Federal Rules of Civil Procedure provides that a civil action is commenced by filing a complaint with the court, and Rule 4 governs the procedure for effecting service and the period within which service must be made. The clerk of the district court must "forthwith issue a summons and deliver the summons to the plaintiff or the plaintiff's attorney, who shall be responsible for prompt service of the summons and a copy of the complaint." Fed. Rule Civ. Proc. 4(a). Service must normally be made within 120 days. See Rule 4(j). Although we have not expressly so held before, we now hold that when the underlying cause of action is based on federal law and the absence of an express federal statute of limitations makes it necessary to borrow a limitations period from another statute, the action is not barred if it has been "commenced" in compliance with Rule 3 within the borrowed period.4 See 4 C. Wright & A. Miller, Federal Practice and Procedure 1056 (1969). We decline respondents' invitation to require that when a federal court borrows a statute of limitations to apply to a federal cause of action, the statute of limitation's provisions for service must necessarily also be followed, even when the borrowed statute is to be applied in a context somewhat different from the one in which those procedural rules originated.5 Inevitably our resolution of cases or controversies requires us to close interstices in federal law from time to time, but when it is necessary for us to borrow a statute of limitations for a federal cause of action, we borrow no more than necessary.6 Here, because of the availability of Rule 3, there is no lacuna as to whether the action was brought within the borrowed limitations period.7 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 pipeline company purchases for resale in the interstate market natural gas produced from a Louisiana field by respondent oil companies (Producers), whose prices are subject to regulation by petitioner Commission. Under their lease agreements with the field's owner, the Producers pay royalties pegged to the "market value" or "market price" of the gas. Following a dispute over the lessor's contention that those terms related to the unregulated price of natural gas in the intrastate market rather than to the lower interstate Commission-regulated rates, the parties ultimately agreed to increased royalty payments based on intrastate market values of natural gas. Alternatively, the Producers would abandon delivery to the pipeline company of the royalty portion of the gas and deliver it instead as payment in kind to the lessor. The settlement agreement was to be binding only if the rate increase or the alternative abandonment was approved by the Commission, which the Producers then petitioned for special relief. The Commission denied price relief, holding that it would be contrary to its mandate to permit royalty costs to be passed on to the Producers' customers if the royalties were calculated on any basis other than the just and reasonable rate for the gas involved, and, relying in part on FPC v. Texaco Inc., , the Commission concluded that it was "not free" to allow royalty costs based on the value of the gas in an unregulated market. The Commission also denied the alternative abandonment request. The Court of Appeals reversed and remanded, concluding that the Commission had "authority to consider the reasonableness of any costs incurred," which "necessarily requires consideration of market price"; had failed to explain why royalty costs in an unregulated market differ from other production costs; and should determine the merits of the Producers' requests. The court, following its opinion in Southland Royalty Co. v. FPC, 543 F.2d 1134, disagreed with the Commission on the abandonment issue. Held: 1. The Natural Gas Act does not deny the Commission authority to give special rate relief to individual producers where escalating royalty costs are a function of, or are otherwise based upon, an unregulated market price for the product whose sale in the interstate market is regulated by the Commission, and the Commission misconstrued Texaco in holding to the contrary. Pp. 514-517. 2. The Court of Appeals encroached upon the Commission's rate-making authority when it strongly suggested that the Commission is required to grant relief to the Producers as long as the increase in royalty costs is not imprudent and the relief when granted will merely sustain rather than increase the Producers' profits, since the Commission is not obliged automatically to relieve the bind on producers facing increased royalty costs based on unregulated prices. "All that is protected against, in a constitutional sense, is that the rates fixed by the Commission be higher than a confiscatory level." FPC v. Texaco Inc., supra, at 392. Pp. 517-519. 3. In view of the record, a remand to the Commission is proper so that in the first instance it may clearly enunciate whether and to what extent individual relief from area rates will be granted due to the increased royalty costs, and, if relief is to be denied, that it may adequately explain its judgment. Pp. 519-520. 4. On the abandonment issue, the Court of Appeals erred to the extent that it relied upon its judgment that was later reversed in California v. Southland Royalty Co., . Moreover, the questions of individual rate relief and abandonment are not unrelated and may be considered by the Commission on remand. Pp. 520-521. 553 F.2d 485, vacated and remanded.WHITE, J., delivered the opinion of the Court, in which all other Members joined except STEWART and POWELL, JJ., who took no part in the consideration or decision of the case.Deputy Solicitor General Barnett argued the cause for petitioner. With him on the briefs were Solicitor General McCree, Richard A. Allen, and Howard E. Shapiro.Jeron Stevens argued the cause for respondent Pennzoil Producing Co. With him on the briefs were Stephen M. Hackerman and John M. Young. Thomas G. Johnson argued the cause and filed a brief for respondent Shell Oil Co. Edwin W. Edwards, Governor of Louisiana, William J. Guste, Jr., Attorney General, James R. Patton, Jr., David B. Robinson, and Harry E. Barsh, Jr., filed a brief for respondent State of Louisiana. Lee M. Huber and Donald R. Arnett filed a brief for respondent United Gas Pipe Line Co. Tom P. Hamill, Carroll L. Gilliam, and Philip R. Ehrenkranz filed a memorandum for respondent Mobil Oil Corp.* [Footnote *] Anthony M. DiLeo filed a brief for Williams, Inc., et al. as amici curiae urging affirmance.Dale M. Stucky and Gerrit H. Wormhoudt filed a brief for Lawrence Lightcap et al. as amici curiae.MR. JUSTICE WHITE delivered the opinion of the Court.The major issue in this case involves the authority of the Federal Energy Regulatory Commission, petitioner herein, to grant or refuse to grant individual producers special relief from applicable area and nationwide rates set by the Commission for the sale of natural gas. The Court of Appeals for the Fifth Circuit set aside what it considered to have been the decision of the Commission that under the Natural Gas Act, 52 Stat. 821, as amended, 15 U.S.C. 717 et seq., it did not have authority to grant exceptional relief which would allow producers to pass through to interstate customers increased royalty costs based upon the intrastate price of natural gas. A secondary issue involves a question of abandonment under 7 (b) of the Act, 15 U.S.C. 717f (b), and an application of our decision last Term in California v. Southland Royalty Co., , rev'g Southland Royalty Co. v. FPC, 543 F.2d 1134 (CA5 1976).IRespondent United Gas Pipe Line Co. (United) purchases for resale in the interstate market natural gas produced by respondents Pennzoil Oil Producing Co. and Shell Oil Co. (Producers) from the Gibson field in southern Louisiana. Producers' prices are subject to Commission regulation and may not exceed the just and reasonable rates established by the Commission in its relevant area and nationwide rate proceedings.1 Under their lease agreements with the owner of the Gibson field, Producers pay royalties pegged to the "market value" or "market price" of the gas. After commencement of state-court litigation involving the lessor's contention that these references are to the unregulated price of natural gas in the intrastate market,2 rather than to the applicable interstate rates set by the Commission,3 the lessor and Producers reached a settlement agreement whereby royalty payments would be pegged to the higher of 78 per 1,000 cubic feet of gas (increasing 1.5 per year beginning in 1976) or 150% of the highest applicable interstate rate. In the alternative, Producers would abandon delivery to United of the royalty portion of the gas and deliver it instead as payment in kind to the lessor. However, this settlement would be binding only if the Commission allowed Producers to charge United a rate higher than applicable area and nationwide rates by the amount of the resulting increase in royalty costs, or in the alternative, permitted the desired abandonment.4 The Commission referred Producers' subsequent petition for special relief, supported by intervenor United, to an Administrative Law Judge who, after a hearing, denied the petition. Under his view of applicable cases, special relief from the relevant ceiling rates, while not absolutely prohibited, would be available only if Producers demonstrated "that [their] overall costs incurred in the operation of the particular well or group of wells are higher than the applicable Commission-established area or nationwide ceiling rates, or, even more stringently, that [their] out-of-pocket expenses will exceed revenues." App. 171. The Administrative Law Judge concluded that neither Producer had satisfied its burden of proof in this respect. Nor had it made a case for abandonment of the royalty portion of the gas.The Commission affirmed but took a somewhat different approach.5 Acknowledging for the purposes of this case that it had no jurisdiction over royalty rates,6 the Commission nevertheless noted its authority to regulate the prices charged by Producers for gas sold in interstate commerce and asserted that it would be "inconsistent" with and "contrary" to its mandate to permit royalty costs to be passed on to Producers' customers if royalties were calculated on any basis other than the just and reasonable rate for the gas involved. Relying in part on our decision in FPC v. Texaco Inc., , the Commission concluded that it was "not free" to allow royalty costs based on the value of the gas in an unregulated market. 55 F. P. C. 400, 404-405 (1976).7 In an opinion and order denying rehearing, the Commission said that it "does not have the power to base a part of the regulated price on the unregulated market value of intrastate gas."8 Price relief was thus denied without accepting or rejecting the findings of the Administrative Law Judge with respect to the relationship between the Producers' costs and revenues. The Commission also denied the alternative request for abandonment of the royalty portion of the gas.The Court of Appeals rejected the Commission's determination that it was without authority to allow producers of natural gas to increase their rates above applicable area and nationwide rates in order "to reflect the increased cost of `market value' or `market price' royalty obligations." Pennzoil Producing Co. v. FPC, 553 F.2d 485, 487 (CA5 1977). Asserting that the Commission "has taken a cost plus profit approach to gas rate regulation," the Court of Appeals believed that in seeking to pass through their increased royalty expense, Producers "do not seek to increase their profits but merely to maintain those margins already determined by the Commission to be just and reasonable." Id., at 488. The Commission had "authority to consider the reasonableness of any costs incurred," but doing so "necessarily requires consideration of market price," and the Commission had failed to explain why royalty costs in an unregulated market are different from any other cost of production. Ibid. The court concluded that these considerations and our decision in Mobil Oil Corp. v. FPC, , entitled the Producers to a "determination of the merits" of their request for special relief for the applicable area and nationwide rates. 553 F.2d, at 488.Based on its opinion and judgment in Southland Royalty Co. v. FPC, 543 F.2d 1134 (CA5 1976), the Court of Appeals also disagreed with the Commission on the abandonment issue.IIIf the Commission's opinion is to be read as holding that granting an individual producer a rate increase at variance with the established area or national rate in order to accommodate an increase in royalty costs is forbidden by the Act under any circumstance, the Court of Appeals was surely correct in disagreeing with the Commission. In Permian Basin Area Rate Cases, , the Commission urged that "nothing in the Constitution or in the Natural Gas Act require[s] the Commission to provide exceptions to the area rates," at least so long as the Commission permitted abandonment when costs exceed revenues, but it nevertheless pointed out that it had established a procedure whereby individual producers may seek relief from the applicable area rate. Brief for the FPC, O. T. 1967, Nos. 90 et al., p. 64. Similarly, in Mobil Oil Corp. v. FPC, supra, the Commission, responding to the possibility of certain producers facing higher royalty payments than the fixed percentage of total costs used by the Commission in setting the area rates, stated - in agreement with the Court of Appeals - that "the issue is hypothetical at this stage and that if it becomes a reality producers may seek special relief from the Commission" Brief for Respondent FPC, O. T. 1973, Nos. 73-437 et al., p. 62. This Court proceeded on a similar assumption, saying that "in any event an affected producer is entitled to seek individualized relief." 417 U.S., at 328.None of the foregoing is consistent with the proposition that the Commission is totally without power to give special relief to individual producers whose escalating royalty costs place them in an untenable position. In view of the scope of the discretion vested in the Commission to establish just and reasonable rates consistent with the public interest, we could not hold that the Act forbids special relief from area rates to accommodate increased royalty costs regardless of the circumstances.Nor do we understand the Commission in this Court to deny its jurisdiction to extend such relief in proper situations. Indeed, in its brief before this Court the Commission states that "with the approval of the courts, [it] has established the policy that it will not authorize departures from area rates unless a producer can show that its costs exceed its revenues at the area rate. See, e. g., Op. No. 699, 51 F. P. C. 2212, 2279, aff'd, Shell Oil Co. v. Federal Power Commission, 520 F.2d 1061 (C. A. 5), certiorari denied, ." Brief for Petitioner 34. The Commission does not suggest that this policy is generally inapplicable to cases seeking relief because of escalating royalty costs.Nevertheless, the Commission's initial opinion and its opinion denying rehearing indicated that it is "not free" and that "it does not have the power" to give individualized relief where escalating royalty costs are a function of, or are otherwise based upon,9 an unregulated market price for the product the sale of which in the interstate market is regulated by the Commission. Erroneously, we think, the Commission sought support for these conclusions in Texaco, 417 U.S., at 399, where we reminded the Commission that "[i]n subjecting producers to regulation because of anticompetitive conditions in the industry, Congress could not have assumed that `just and reasonable' rates could conclusively be determined by reference to market price." We did not, however, hold, as suggested by the Commission, that it "has no authority to permit rate increases based on royalty costs tied to the unregulated market for natural gas." Brief for Petitioner 13; see also id., at 16, 19, 21. Our concern in Texaco was that rates of small producers might be totally exempted from the Act, and we did not indicate that producer or pipeline rates would be per se unjust and unreasonable because related to the unregulated price of natural gas. Texaco did not purport to circumscribe so severely the Commission's discretion to decide what formulas and methods it will employ to ensure just and reasonable rates. Indeed, the decision underscored the wide discretion vested in the Commission. See 417 U.S., at 387-393.IIIWe are also convinced, however, that the Court of Appeals trenched upon the ratemaking authority vested in the Commission when it strongly suggested that the Commission is required to grant the relief Producers request in this case so long as the increase in royalty costs is not imprudent and the relief, when granted, will merely sustain rather than increase Producers' profits.Sections 4 and 5 of the Natural Gas Act, 15 U.S.C. 717c and 717d, mandate the Commission to set just and reasonable rates for the sale of interstate natural gas. In sustaining the Commission's authority to establish maximum rates on an areawide basis, we noted that "courts are without authority to set aside any rate adopted by the Commission which is within a `zone of reasonableness,'" Permian Basin Area Rate Cases, supra, at 797. Moreover, in arriving at just and reasonable rates "no single method need be followed." Wisconsin v. FPC, . Specifically, the Commission is not required to adhere "rigidly to a cost-based determination of rates, much less to one that base[s] each producer's rates on his own costs." Mobil Oil, 417 U.S., at 308. While recognizing that under an areawide approach, "`high cost operators may be more seriously affected ... than others.'" Permian Basin, supra, at 769, quoting Bowles v. Willingham, , we refused to invalidate as inadequate the Commission's proposal to provide special relief when a producer's "`out of pocket expenses in connection with the operation of a particular well' exceed[s] its revenue from the well under the applicable area price," 390 U.S., at 770-771.The Court of Appeals proceeded from the proposition that "[a] cost-based methodology was approved" in Permian Basin, to the implicit conclusion that the Commission is required to allow producers to maintain whatever profit margins they enjoyed under area or national rates, and that therefore it must grant special relief from these rates for all reasonable cost increases, emphasizing that a cost is not unreasonable simply because it is based on an unregulated market price. It must be noted, however, that the methodology employed by the Commission in arriving at the area rates approved in Permian Basin was not a purely cost-plus approach. To the contrary, the Court recognized "deviation[s] from cost-based pricing" which it "found not to be unreasonable and to be consistent with the Commission's responsibility to consider not merely the interests of the producers ... but also `the relevant public interests'... ." Mobil Oil, supra, at 308-309, quoting Permian Basin, 390 U.S., at 792. Furthermore, the notion that the Commission is required to maintain, or even allowed to maintain to the exclusion of other considerations, the profit margin of any particular producer is incompatible not only with the specific area approach to natural gas regulation approved in Permian Basin and Mobil Oil but also with a basic precept of rate regulation. "The fixing of prices, like other applications of the police power, may reduce the value of the property which is being regulated. But the fact that the value is reduced does not mean that the regulation is invalid." FPC v. Hope Natural Gas Co., . The Commission is not required by the Act to grant special relief from area or nationwide rates simply because the costs of an individual producer increase and his profits decline.Given the wide discretion of the Commission to refuse exceptional relief, we are somewhat unsure of the meaning of the Court of Appeals' statement that respondents in this case "were entitled to a determination of the merits of their requests." 553 F.2d, at 488. We think that the Court of Appeals read too much into our statement in Mobil Oil that a producer with rising royalty costs "is entitled to seek individualized relief." 417 U.S., at 328. We did not there suggest that the Commission must be prepared to grant such relief in order to forestall declining profits. Indeed, we rejected the claim that the Commission must "provide automatic adjustments in area rates to compensate for anticipated higher royalty costs." Ibid. Moreover, in Texaco, decided the same day as Mobil, we faced the issue whether the Commission had acted arbitrarily in failing to provide relief from the bind that pipelines and large producers might be put in if direct regulation of small producers were eliminated, a bind similar to that in which respondent Producers may find themselves if their royalty costs increase. We concluded in Texaco: "[R]equiring pipelines and the large producers to assume the risk in bargaining for reasonable prices from small producers is within the Commission's discretion in working out the balance of the interests ... involved." 417 U.S., at 392. Likewise, the Commission is under no obligation automatically to relieve the bind on producers facing increased royalty costs based on unregulated prices. "All that is protected against, in a constitutional sense, is that the rates fixed by the Commission be higher than a confiscatory level." Id., at 391-392. The Commission would not exceed its statutory authority if, in its view of the public interest, it determines to reject requests for special relief presenting no colorable claim that the applicable area or nationwide rate is confiscatory or, what may amount to the same thing,10 outside the "zone of reasonableness," Permian Basin, supra, at 797; FPC v. Natural Gas Pipeline Co., .IVAlthough we hold that the Court of Appeals too narrowly confined the Commission's functions and judgment on remand, we agree that the case should be returned to the Commission. As we have said, despite the indications to the contrary in its opinions below and despite its failure to address the Administrative Law Judge's findings with respect to Producers' proof as to their costs and revenues, the Commission does not seem to take the position here that it is totally without power to grant individual relief from area rates in recognition of increased royalty costs and that the relationship between the individual producer's costs and revenues in such a proceeding is totally irrelevant. Expressing its adherence to the policy approved in Shell Oil Co. v. FPC, 520 F.2d 1061 (CA5 1975), cert. denied, , the Commission points to the findings of the Administrative Law Judge that Producers in this case failed to make any showing that their costs exceed revenues. See Brief for Petitioner 34-35. At the same time, however, the Commission disaffirms any suggestion that its order be sustained on a ground that it did not itself rely upon. Id., at 34. The agency's reluctance is understandable, see Texaco, 417 U.S., at 395-397; Burlington Truck Lines v. United States, ; SEC v. Chenery Corp., . The upshot is that, given this state of the record, a remand to the Commission is the proper course in order that the Commission in the first instance may clearly enunciate whether and to what extent individual relief from area rates will be granted due to the increased royalty costs that are or may be involved in this case, and, if relief is to be denied, that it may make an adequate explanation of its judgment. Cf. Burlington Truck Lines, supra, at 167-168. If, as the Commission perhaps now suggests, the policy set forth in Shell Oil is the policy to be followed in cases such as this, the Commission should proceed to complete its task of reviewing and sustaining or rejecting the findings of the Administrative Law Judge.VWith respect to the issue of abandonment, it is apparent that to the extent that the Court of Appeals relied upon its judgment in the Southland case, it was in error since that judgment was reversed here. It also appears to us, however, that the question of individual rate relief and that of abandonment are not unrelated. If the Commission were to take the position that relief from area rates to accommodate royalty costs tied to intrastate rates is unavailable regardless of the relationship between costs and revenues, it may be that the issue of abandonment would appear in a different light. Cf. Permian Basin, 390 U.S., at 770-771. In any event, it is the better part of wisdom to vacate the judgment of the Court of Appeals and to remand the case to that court with directions to return the entire case to the Commission for further appropriate proceedings. So Ordered.MR. JUSTICE STEWART and MR. JUSTICE POWELL took no part in the consideration or decision of this case.

[Footnote *] Together with No. 90-1004, Rapone, Commissioner of Correction of Massachusetts v. Inmates of Suffolk County Jail et al., also on certiorari to the same court. Years after the District Court held that conditions at the Suffolk County, Massachusetts, jail were constitutionally deficient, petitioner officials and respondent inmates entered into a consent decree providing for construction of a new jail that, among other things, would provide single occupancy cells for pretrial detainees. Work on the jail was delayed and, in the interim, the inmate population outpaced projections. While construction was still underway, petitioner sheriff moved to modify the decree to allow double-bunking in a certain number of cells, thereby raising the jail's capacity. Relying on Federal Rule of Civil Procedure 60(b) - which provides, inter alia, that "upon such terms as are just, the court may relieve a party ... from a ... judgment ... for the following reasons: ... (5) ... it is no longer equitable that the judgment should have prospective operation" - the sheriff argued that modification was required by a change in law, this Court's post-decree decision in Bell v. Wolfish, , and a change in fact, the increase in pretrial detainees. The District Court denied relief, holding that Rule 60(b)(5) codified the standard of United States v. Swift & Co., - "Nothing less than a clear showing of grievous wrong evoked by a new and unforeseen conditions should lead ... to [a] change [in] what was decreed after years of litigation with the consent of all concerned" - and that a case for modification under this standard had not been made. The court also rejected the argument that Bell required modification of the decree; found that the increased pretrial detainee population was "neither new nor unforeseen"; declared that relief would be inappropriate, even under a more flexible modification standard, because separate cells for detainees were "perhaps the most important" element of the relief sought; and held that, even if the sheriff's double-celling proposal met constitutional standards, allowing modification on that basis would undermine and discourage settlement of institutional cases. The Court of Appeals affirmed. Held:1. The Swift "grievous wrong" standard does not apply to requests to modify consent decrees stemming from institutional reform litigation. That standard was formulated in the context of facts demonstrating that no genuine changes had occurred requiring modification of the decree in question, see id., at 115-116, and the Swift Court recognized that decrees involving the supervision of changing conduct or conditions may be revised if necessary to adapt to future events, id., at 114-115. Moreover, subsequent decisions have emphasized the need for flexibility to modify a decree if the circumstances, whether of law or fact, have changed or new ones have arisen. Thus, it cannot be concluded that Rule 60(b)(5) misread Swift and intended that decree modifications were in all cases to be governed by the "grievous wrong" standard. A less stringent standard is made all the more important by the recent upsurge in institutional reform litigation, where the extended life of decrees increases the likelihood that significant changes will occur. Furthermore, the experience of federal courts in implementing and modifying such decrees demonstrates that a flexible approach is often essential to achieving the goals of reform litigation, particularly the public's interest in the sound and efficient operations of its institutions. The contention that any rule other than the Swift standard would deter parties to such litigation from negotiating settlements, and hence destroy the utility of consent decrees, is unpersuasive. Obviously that would not be the case with respect to government officials. Moreover, plaintiffs will still wish to settle such cases, since, even if they litigate to conclusion and win, the resulting judgment may give them less than they hoped for, whereas settlement will avoid further litigation, will perhaps obtain more than would have been ordered without the local government's consent, and will eliminate the possibility of losing; and since the prospective effect of a judgment obtained after litigation will still be open to modification where deemed equitable under Rule 60(b). Pp. 378-383.2. Under the flexible standard adopted today, a party seeking modification of an institutional reform consent decree bears the burden of establishing that a significant change in facts or law warrants revision of the decree, and that the proposed modification is suitably tailored to the changed circumstances. Pp. 383-393. (a) Modification may be warranted when changed factual conditions make compliance with the decree substantially more onerous, when the decree proves to be unworkable because of unforeseen obstacles, or when enforcement of the decree without modification would be detrimental to the public interest. Where a party relies upon events that actually were anticipated at the time it entered into a decree, modification should be granted only if the party satisfies the heavy burden of convincing the court that it agreed to the decree in good faith, made a reasonable effort to comply, and should be relieved of the undertaking under Rule 60(b). Accordingly, on remand, the District Court should consider whether the upsurge in inmate population was foreseen by petitioners. Despite that court's statement that it was, the decree itself and aspects of the record indicate that the increase may have been unanticipated. To relieve petitioners from the promise to provide single cells for pretrial detainees based on the increased jail population does not necessarily violate the decree's basic purpose of providing a remedy for what had been found - based on a variety of factors, including double-celling - to be unconstitutional conditions in the old jail. The rule cannot be that modifications of one of a decree's terms defeats its purpose, since modification would then be all but impossible. Thus, the District Court erred in holding that, even under a standard more flexible than Swift's, modification of the single-cell requirement was necessarily forbidden. Pp. 383-387. (b) A decree must be modified if one or more of the obligations placed upon the parties later becomes impermissible under federal law, and may be modified when the statutory or decisional law has changed to make legal what the decree was designed to prevent. The Bell holding, which made clear that double-celling is not in all cases unconstitutional, was not, in and of itself, a change in law requiring modification of the decree at issue. Since that holding did not cast doubt on the legality of single-celling, the possibility that such a holding would be issued must be viewed as having been immaterial to petitioners when they signed the decree; i.e., they preferred, even in the event of such a holding, to agree to a decree which called for providing single cells in the new jail. To hold that a clarification in the law automatically opens the door for relitigation of the merits of every affected decree would undermine the finality of such agreements, and could serve as a disincentive to settle institutional reform litigation. Nevertheless, a decision that merely clarifies the law could constitute a change supporting modification if the parties had based their agreement on a misunderstanding of the governing law. The decree at issue declares that it "sets forth a program which is both constitutionally adequate and constitutionally required" (emphasis added), and if petitioners can establish on remand that the parties believed that single-celling was constitutionally mandated, this misunderstanding could form a basis for modification. Pp. 387-390. (c) Once a moving party has established a change in fact or in law warranting modification of a consent decree, the district court should determine whether a proposed modification is suitably tailored to the changed circumstances. A modification must not perpetuate or create a constitutional violation. Thus, if respondents are correct that Bell is factually distinguishable and that double-celling at the new jail would violate pretrial detainees' constitutional rights, modification should not be granted. Because a consent decree is a final judgment that may be reopened only to the extent that equity requires, a proposed modification should not strive to rewrite the decree so that it conforms to the constitutional floor, but should merely resolve the problems created by the change. Within these constraints, the public interest and considerations of comity require that the district court defer to local government administrators to resolve the intricacies of implementing a modification. Although financial constraints may not be used to justify constitutional violations, they are a legitimate concern of government defendants in institutional reform litigation, and therefore are appropriately considered in tailoring a modification. Pp. 390-393. 915 F.2d 1557, vacated and remanded.WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and SCALIA, KENNEDY, and SOUTER, JJ., joined. O'CONNOR, J., filed an opinion concurring in the judgment. STEVENS, J., filed a dissenting opinion, in which BLACKMUN, J., joined. THOMAS, J., took no part in the consideration or decision of the cases.Chester A. Janiak argued the cause for petitioners in No. 90-954. With him on the briefs were Thomas D. Burns, Peter J. Schneider, Ann E. Merryfield, and Robert C. Rufo, pro se. John T. Montgomery, First Assistant Attorney General of Massachusetts, argued the cause for petitioner in No. 90-1004. With him on the briefs were Scott Harshbarger, Attorney General, and Jon Laramore, Thomas A. Barnico, and Douglas H. Wilkins, Assistant Attorneys General.Max D. Stern argued the cause for respondents in both cases. With him on the brief were Lynn Weissberg and Alan B. Morrison.Fn Fn Briefs of amici curiae urging reversal were filed for the State of New York by Robert Abrams, Attorney General, O. Peter Sherwood, Solicitor General, Lawrence S. Kahn, Deputy Solicitor General, and Barbara B. Butler, Assistant Attorney General; for the State of Tennessee et al. by Charles W. Burson, Attorney General of Tennessee, Michael W. Catalano, Deputy Attorney General; Joel I. Klein, Paul M. Smith, and Richard G. Taranto, Charles Cole, Attorney General of Alaska, Grant Woods, Attorney General of Arizona, Winston Bryant, Attorney General of Arkansas, Dan Lungren, Attorney General of California, Gal Norton, Attorney General of Colorado, Charles M. Oberly III, Attorney General of Delaware, Robert A. Butterworth, Attorney General of Florida, Michael J. Bowers, Attorney General of Georgia, Elizabeth Barrett-Anderson, Attorney General of Guam, Warren Price III, Attorney General of Hawaii, Larry EchoHawk, Attorney General of Idaho, Roland W. Burris, Attorney General of Illinois, Linley E. Pearson, Attorney General of Indiana, Bonnie Campbell, Attorney General of Iowa, Robert T. Stephan, Attorney General of Kansas, Fred Cowan, Attorney General of Kentucky, William J. Guste, Jr., Attorney General of Louisiana, Michael E. Carpenter, Attorney General of Maine, J. Joseph Curran, Jr., Attorney General of Maryland, frank J. Kelley, Attorney General of Michigan, Hubert H. Humphrey III, Attorney General of Minnesota, Mike Moore, Attorney General of Mississippi, William L. Webster, Attorney General of Missouri, Frankie Sue Del Papa, Attorney General of Nevada, John P. Arnold, Attorney General of New Hampshire, Robert J. Del Tufo, Attorney General of New Jersey, Tom Udall, Attorney General of New Mexico, Lacy H. Thornburg, Attorney General of North Carolina, Nicholas Spaeth, Attorney General of North Dakota, Lee Fisher, Attorney General of Ohio, Robert H. Henry, Attorney General of Oklahoma, Dave Frohnmayer, Attorney General of Oregon, Ernest D. Preate, Jr., Attorney General of Pennsylvania, Hector Rivera-Cruz, Attorney General of Puerto Rico, James E. O'Neil, Attorney General of Rhode Island, T. Travis Medlock, Attorney General of South Carolina, Mark "Barney" Barnett, Attorney General of South Dakota, Paul Van Dam, Attorney General of Utah, Jeffery L. Amestoy, Attorney General of Vermont, Rosalie Ballentine, Acting Attorney General of the Virgin Islands, Mary Sue Terry, Attorney General of Virginia, Ken Eikenberry, Attorney General of Washington, Mario Palumbo, Attorney General of West Virginia, and Joseph B. Meyer, Attorney General of Wyoming; for the City of New York by Victor A. Kovner, Leonard J. Koerner, Fay Leoussis, and Timothy J. O'Shaughnessy; for the International City Management Association et al by Richard Ruda, Zachary D. Fasman, and Mark L. Gerchick; and for Michael J. Ashe, Jr., Sheriff of Hampden County, et al. by Edward J. McDonough, Jr.Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by John A. Powell, Steven R. Shapiro, Reinstein, Elizabeth Alexander, Alexa P. Freeman, and Alvin J. Bronstein; for the Center for Dispute Settlement by C. Lani Guinier; for the Inmates of the Lorton Central Facility by Peter J. Nickles, Bruce N. Kuhlik, and Alan A. Pemberton; for the Lawyers' Committee for Civil Rights Under Law of the Boston Bar Association by John C. Englander; and for Allen F. Breed et al. by Sheldon Krantz.Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Shapiro, Harriet S. Shapiro, Robert E. Kopp, and Thomas M. Bondy filed a brief for the United States as amicus curiae. JUSTICE WHITE delivered the opinion of the Court. In these cases, the District Court denied a motion of the Sheriff of Suffolk County, Massachusetts, to modify a consent decree entered to correct unconstitutional conditions at the Suffolk County Jail. The Court of Appeals affirmed. The issue before us is whether the courts below applied the correct standard in denying the motion. We hold that they did not, and remand the case for further proceedings.IThis litigation began in 1971, when inmates sued the Suffolk County sheriff, the Commissioner of Correction for the State of Massachusetts, the Mayor of Boston, and nine city councilors, claiming that inmates not yet convicted of the crimes charged against them were being held under unconstitutional conditions at what was then the Suffolk County Jail. The facility, known as the Charles Street Jail, had been constructed in 1848 with large tiers of barred cells. The numerous deficiencies of the jail, which had been treated with what a state court described as "malignant neglect," Attorney General v. Sheriff of Suffolk County, 394 Mass. 624, 625, 477 N.E.2d 361, 362 (1985), are documented in the decision of the District Court. See Inmates of Suffolk County Jail v. Eisentadt, 360 F.Supp. 676, 679-684 (Mass. 1973). The court held that conditions at the jail were constitutionally deficient: "As a facility for the pretrial detention of presumptively innocent citizens, Charles Street Jail unnecessarily and unreasonably infringes upon their most basic liberties, among them the rights to reasonable freedom of motion, personal cleanliness, and personal privacy. The court finds and rules that the quality of incarceration at Charles Street is "punishment" of such a nature and degree that it cannot be justified by the state's interest in holding defendants for trial, and therefore it violates the due process clause of the Fourteenth Amendment." Id., at 686.1 The Court permanently enjoined the government defendants: "(a) from housing at the Charles Street Jail after November 30, 1973 in a cell with another inmate, any inmate who is awaiting trial and (b) from housing at the Charles Street Jail after June 30, 1976 any inmate who is awaiting trial." Id., at 691. The defendants did not appeal.2 In 1977, with the problems of the Charles Street Jail still unresolved, the District Court ordered defendants, including the Boston City Council, to take such steps and expend the funds reasonably necessary to renovate another existing facility as a substitute detention center. Inmate of Suffolk County Jail v. Kearney, Civ. Action No. 71-162-G (Mass., June 30, 1977), App. 22. The Court of Appeals agreed that immediate action was required: "It is now just short of five years since the district court's opinion was issued. For all that time, the plaintiff class has been confined under the conditions repugnant to the constitution. For all of that time, defendants have been aware of that fact. ... . . "Given the present state of the record and the unconscionable delay that plaintiffs have already endured in securing their constitutional rights, we have no alternative but to affirm the district court's order to prohibit the incarceration of pretrial detainees at the Charles St. Jail." Inmates of Suffolk County Jail v. Kearney, 573 F.2d 98, 99-100 (CA1 1978). The Court of Appeals ordered that the Charles Street Jail be closed on October 2, 1978, unless a plan was presented to create a constitutionally adequate facility for pretrial detainees in Suffolk County.Four days before the deadline, the plan that formed the basis for the consent decree now before this Court was submitted to the District Court. Although plans for the new jail were not complete, the District Court observed that "the critical features of confinement, such as single cells of 80 sq. ft. for inmates, are fixed, and safety, security, medical, recreational, kitchen, laundry, educational, religious and visiting provisions are included. There are unequivocal commitments to conditions of confinement which will meet constitutional standards." Inmates of Suffolk County Jail v. Kearney, Civ. Action No. 71-162-G (Mass., Oct. 2, 1978), App. 51, 55. The Court therefore allowed Suffolk County to continue housing its pretrial detainees at the Charles Street Jail.Seven months later, the Court entered a formal consent decree in which the government defendants expressed their "desire ... to provide, maintain and operate as applicable a suitable and constitutional jail for Suffolk County pretrial detainees." Inmates of Suffolk County Jail v. Kearney, Civ. Action No. 71-162-G (Mass., May 7, 1979), App. to Pet. for Cert. 15a. The decree specifically incorporated the provisions of the Suffolk County Detention Center, Charles Street Facility, Architectural Program, which - in the words of the consent decree - "sets forth a program which is both constitutionally adequate and constitutionally required." Id., at 16a.Under the terms of the Architectural Program, the new jail was designed to include a total of 309 "[s]ingle occupancy rooms" of 70 square feet, App. 73, 76,3 arranged in modular units that included a kitchenette and recreation area, inmate laundry room, education units, and indoor and outdoor exercise areas. See, e.g., id., at 249. The size of the jail was based on a projected decline in inmate population from 245 male prisoners in 1979 to 226 at present. Id., at 69.Although the Architectural Program projected that construction of the new jail would be completed by 1983, ibid., work on the new facility had not been started by 1984. During the intervening years, the inmate population outpaced population projections. Litigation in the state courts ensued, and defendants were ordered to build a larger jail. Attorney General v. Sheriff of Suffolk County, 394 Mass. 624, 477 N.E.2d 361 (1985). Thereupon, plaintiff prisoners, with the support of the sheriff, moved the District Court to modify the decree to provide a facility with 435 cells. Citing "the unanticipated increase in jail population and the delay in completing the jail," the District Court modified the decree to permit the capacity of the new jail to be increased in any amount, provided that: "(a) single-cell occupancy is maintained under the design for the facility; "(b) under the standards and specifications of the Architectural Program, as modified, the relative proportion of cell space to support services will remain the same as it was in the Architectural Program; "(c) any modifications are incorporated into new architectural plans; "(d) defendants act without delay and take all steps reasonably necessary to carry out the provisions of the Consent Decree according to the authorized schedule. Inmates of Suffolk County Jail v. Kearney, Civ. Action No. 71-162G (Mass., April 11, 1985), App. 110, 111. The number of cells was later increased to 453. Construction started in 1987.In July, 1989, while the new jail was still under construction, the sheriff moved to modify the consent decree to allow the double-bunking of male detainees in 197 cells, thereby raising the capacity of the new jail to 610 male detainees. The sheriff argued that changes in law and in fact required the modification. The asserted change in law was this Court's 1979 decision in Bell v. Wolfish, , handed down one week after the consent decree was approved by the District Court. The asserted change in fact was the increase in the population of pretrial detainees.The District Court refused to grant the requested modification, holding that the sheriff had failed to meet the standard of United States v. Swift & Co., : (1932): "Nothing less than a clear showing of grievous wrong evoked by new and unforeseen conditions should lead us to change what was decreed after years of litigation with the consent of all concerned." The court rejected the argument that Bell required modification of the decree because the decision did not directly overrule any legal interpretation on which the 1979 consent decree was based, and, in these circumstances, it is inappropriate to invoke Rule 60(b)(5) to modify a consent decree. Inmates of Suffolk County Jail v. Kearney, 734 F.Supp. 561, 564 (Mass. 1990). The court refused to order modification because of the increased pretrial detainee population, finding that the problem was "neither new nor unforeseen." Ibid.The District Court briefly stated that, even under the flexible modification standard adopted by other Courts of Appeals,4 the sheriff would not be entitled to relief because "[a] separate cell for each detainee has always been an important element of the relief sought in this litigation - perhaps even the most important element." Id., at 565. Finally, the court rejected the argument that the decree should be modified because the proposal complied with constitutional standards, reasoning that such a rule "would undermine and discourage settlement efforts in institutional cases." Ibid. The District Court never decided whether the sheriff's proposal for double-celling at the new jail would be constitutionally permissible.The new Suffolk County Jail opened shortly thereafter.The Court of Appeals affirmed, stating "[W]e are in agreement with the well-reasoned opinion of the district court, and see no reason to elaborate further." Inmates of Suffolk County Jail v. Kearney, 915 F.2d 1557 (CA1, 1990), judgt. order reported at 915 F.2d 1557, App. to Pet. for Cert. 2a.5 We granted certiorari. .IIIn moving for modification of the decree, the sheriff relied on Federal Rule of Civil Procedure 60(b), which in relevant part provides:"On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: ... (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment... . There is no suggestion in these cases that a consent decree is not subject to Rule 60(b). A consent decree no doubt embodies an agreement of the parties, and thus in some respects is contractual in nature. But it is an agreement that the parties desire and expect will be reflected in and be enforceable as a judicial decree that is subject to the rules generally applicable to other judgments and decrees. Railway Employes v. Wright, . The District Court recognized as much, but held that Rule 60(b)(5) codified the "grievous wrong" standard of United States v. Swift & Co., supra, that a case for modification under this standard had not been made, and that resort to Rule 60(b)(6) was also unavailing. This construction of Rule 60(b) was error.Swift was the product of a prolonged antitrust battle between the Government and the meat-packing industry. In 1920, the defendants agreed to a consent decree that enjoined them from manipulating the meat-packing industry and banned them from engaging in the manufacture, sale, or transportation of other foodstuffs. 286 U.S., at 111. In 1930, several meatpackers petitioned for modification of the decree, arguing that conditions in the meatpacking and grocery industries had changed. Id., at 113. The Court rejected their claim, finding that the meatpackers were positioned to manipulate transportation costs and fix grocery prices in 1930, just as they had been in 1920. Id., at 115-116. It was in this context that Justice Cardozo, for the Court, set forth the much-quoted Swift standard, requiring "[n]othing less than a clear showing of grievous wrong evoked by new and unforeseen conditions" as a predicate to modification of the meatpackers' consent decree. Id., at 119.Read out of context, this language suggests a "hardening" of the traditional flexible standard for modification of consent decrees. New York State Assn. for Retarded Children, Inc. v. Carey, 706 F.2d 956, 968 (CA2), cert. denied, . But that conclusion does not follow when the standard is read in context. See United States v. United Shoe Machinery Corp., . The Swift opinion pointedly distinguished the facts of that case from one in which genuine changes required modification of a consent decree, stating that:"The distinction is between restraints that give protection to rights fully accrued upon facts so nearly permanent as to be substantially impervious to change, and those that involve the supervision of changing conduct or conditions and are thus provisional and tentative... . The consent is to be read as directed toward events as they then were. It was not an abandonment of the right to exact revision in the future, if revision should become necessary in adaptation to events to be." 286 U.S., at 114-115. Our decisions since Swift reinforce the conclusion that the "grievous wrong" language of Swift was not intended to take on a talismanic quality, warding off virtually all efforts to modify consent decrees. Railway Employes emphasized the need for flexibility in administering consent decrees, stating: "There is ... no dispute but that a sound judicial discretion may call for the modification of the terms of an injunctive decree if the circumstances, whether of law or fact, obtaining at the time of its issuance have changed, or new ones have since arisen. 364 U.S., at 647.The same theme was repeated in our decision last term in Board of Education of Oklahoma City Public School v. Dowell, , in which we rejected the rigid use of the Swift "grievous wrong" language as a barrier to a motion to dissolve a desegregation decree.There is thus little basis for concluding that Rule 60(b) misread the Swift opinion and intended that modifications of consent decrees in all cases were to be governed by the standard actually applied in Swift. That Rule, in providing that, on such terms as are just, a party may be relieved from a final judgement or decree where it is no longer equitable that the judgment have prospective application, permits a less stringent, more flexible standard.The upsurge in institutional reform litigation since Brown v. Board of Education, , has made the ability of a district court to modify a decree in response to changed circumstances all the more important. Because such decrees often remain in place for extended periods of time, the likelihood of significant changes occurring during the life of the decree is increased. See, e.g., Philadelphia Welfare Rights Organization v. Shapp, 602 F.2d 1114, 1119-1121 (CA3 1979), cert. denied, , in which modification of a consent decree was allowed in light of changes in circumstances that were beyond the defendants' control and were not contemplated by the court or the parties when the decree was entered.The experience of the District and Courts of Appeals in implementing and modifying such decrees has demonstrated that a flexible approach is often essential to achieving the goals of reform litigation. See, e.g., New York State Assn. for Retarded Children, Inc. v. Carey, supra.6 The Courts of Appeals have also observed that the public interest is a particularly significant reason for applying a flexible modification standard in institutional reform litigation because such decrees "reach beyond the parties involved directly in the suit and impact on the public's right to the sound and efficient operation of its institutions." Heath v. De Courcy, 888 F.2d 1105, 1109 (CA6 1989). Accord, New York State Assn. for Retarded Children, Inc. v. Carey, supra, at 969. Petitioner Rufo urges that these factors are present in the cases before us, and support modification of the decree. They assert that modification would actually improve conditions for some pretrial detainees, who now cannot be housed in the Suffolk County Jail and therefore are transferred to other facilities, farther from family members and legal counsel. In these transfer facilities, the petitioners assert that detainees may be double-celled under less desirable conditions than those that would exist if double-celling were allowed at the new Suffolk County Jail. The government petitioners also contend that the public interest is implicated here, because crowding at the new facility has necessitated the release of some pretrial detainees and the transfer of others to halfway houses, from which many escape.For the District Court, these points were insufficient reason to modify under Rule 60(b)(5) because its "authority [was] limited by the established legal requirements for modification... ." 734 F.Supp., at 566. The District Court, as noted above, also held that the suggested modification would not be proper even under the more flexible standard that is followed in some other Circuits. None of the changed circumstances warranted modification, because it would violate one of the primary purposes of the decree, which was to provide for "[a] separate cell for each detainee, [which] has always been an important element of the relief sought in this litigation - perhaps even the most important element." Id., at 565. For reasons appearing later in this opinion, this was not an adequate basis for denying the requested modification. The District Court also held that Rule 60(b)(6) provided no more basis for relief. The District Court, and the Court of Appeals as well, failed to recognize that such rigidity is neither required by Swift nor appropriate in the context of institutional reform litigation.It is urged that any rule other than the Swift "grievous wrong" standard would deter parties to litigation such as this from negotiating settlements, and hence destroy the utility of consent decrees. Obviously that would not be the case insofar as the state or local government officials are concerned. As for the plaintiffs in such cases, they know that, if they litigate to conclusion and win, the resulting judgment or decree will give them what is constitutionally adequate at that time, but perhaps less than they hoped for. They also know that the prospective effect of such a judgment or decree will be open to modification where deemed equitable under Rule 60(b). Whether or not they bargain for more than what they might get after trial, they will be in no worse position if they settle and have the consent decree entered. At least they will avoid further litigation, and perhaps will negotiate a decree providing more than what would have been ordered without the local government's consent. And, of course, if they litigate, they may lose.IIIAlthough we hold that a district court should exercise flexibility in considering requests for modification of an institutional reform consent decree, it does not follow that a modification will be warranted in all circumstances. Rule 60(b)(5) provides that a party may obtain relief from a court order when "it is no longer equitable that the judgment should have prospective application," not when it is no longer convenient to live with the terms of a consent decree. Accordingly, a party seeking modification of a consent decree bears the burden of establishing that a significant change in circumstances warrants revision of the decree. If the moving party meets this standard, the court should consider whether the proposed modification is suitably tailored to the changed circumstance.7 AA party seeking modification of a consent decree may meet its initial burden by showing either a significant change in factual conditions or in law.1Modification of a consent decree may be warranted when changed factual conditions make compliance with the decree substantially more onerous. Such a modification was approved by the District Court in this litigation in 1985 when it became apparent that plans for the new jail did not provide sufficient cell space. Inmates of Suffolk County Jail v. Kearney, Civ. Action No. 71-162-G (Mass., Apr. 11, 1985), App. 110.8 Modification is also appropriate when a decree proves to be unworkable because of unforeseen obstacles, New York State Assn. for Retarded Children, Inc. v. Carey, 706 F.2d, at 969 (modification allowed where State could not find appropriate housing facilities for transfer patients); Philadelphia Welfare Rights Organization v. Shapp, 602 F.2d, at 1120-1121 (modification allowed where State could not find sufficient clients to meet decree targets); or when enforcement of the decree without modification would be detrimental to the public interest, Duran v. Elrod, 760 F.2d 756, 759-761 (CA7 1985) (modification allowed to avoid pretrial release of accused violent felons).Respondents urge that modification should be allowed only when a change in facts is both "unforeseen and unforeseeable." Brief for Respondents 35. Such a standard would provide even less flexibility than the exacting Swift test; we decline to adopt it. Litigants are not required to anticipate every exigency that could conceivably arise during the life of a consent decree.Ordinarily, however, modification should not be granted where a party relies upon events that actually were anticipated at the time it entered into a decree. See Twelve John Does v. District of ColumbiaApp. D.C. 62, 65-66, 861 F.2d 295, 298-299 (1988); Ruiz v. Lynaugh, 811 F.2d 856, 862-863 (CA5 1987). If it is clear that a party anticipated changing conditions that would make performance of the decree more onerous, but nevertheless agreed to the decree, that party would have to satisfy a heavy burden to convince a court that it agreed to the decree in good faith, made a reasonable effort to comply with the decree, and should be relieved of the undertaking under Rule 60(b).Accordingly, on remand, the District Court should consider whether the upsurge in the Suffolk County inmate population was foreseen by a petitioners. The District Court touched on this issue in April, 1990, when, in the course of denying the modification requested in this litigation, the court stated that "the overcrowding problem faced by the Sheriff is neither new nor unforeseen. It has been an ongoing problem during the course of this litigation, before and after entry of the consent decree. 734 F.Supp., at 564. However, the Architectural Program incorporated in the decree in 1979 specifically set forth projections that the jail population would decrease in subsequent years.9 Significantly, when the District Court modified the consent decree in 1985, the Court found that the "modifications are necessary to meet the unanticipated increase in jail population and the delay in completing the jail." Inmates of Suffolk County Jail v. Kearney, Civ. Action No. 71-162-G (Mass., Apr. 11, 1986), App. 110 (emphasis added). Petitioners assert that it was only in July, 1988, 10 months after construction began, that the number of pretrial detainees exceeded 400 and began to approach the number of cells in the new jail. Brief for Petitioner in No. 90-954, p. 9.It strikes us as somewhat strange, if a rapidly increasing jail population had been contemplated, that respondents would have settled for a new jail that would not have been adequate to house pretrial detainees.10 There is no doubt that the original and modified decree called for a facility with single cells. Inmates of Suffolk County Jail v. Kearney, Civ. Action No. 71-162-G (Mass., Apr. 11, 1985), App. 110.11 It is apparent, however, that the decree itself nowhere expressly orders or reflects an agreement by petitioners to provide jail facilities having single cells sufficient to accommodate all future pretrial detainees, however large the number of such detainees might be. Petitioners' agreement and the decree appear to have bound them only to provide the specified number of single cells. If petitioners were to build a second new facility providing double cells that would meet constitutional standards, it is doubtful that they would have violated the consent decree.Even if the decree is construed as an undertaking by petitioners to provide single cells for pretrial detainees, to relieve petitioners from that promise based on changed conditions does not necessarily violate the basic purpose of the decree. That purpose was to provide a remedy for what had been found, based on a variety of factors, including double-celling, to be unconstitutional conditions obtaining in the Charles Street Jail. If modification of one term of a consent decree defeats the purpose of the decree, obviously modification would be all but impossible. That cannot be the rule. The District Court was thus in error in holding that, even under a more flexible standard than its version of Swift required, modification of the single-cell requirement was necessarily forbidden. 2A consent decree must, of course be modified if, as it later turns out, one or more of the obligations placed upon the parties has become impermissible under federal law. But modification of a consent decree may be warranted when the statutory or decisional law has changed to make legal what the decree was designed to prevent.This was the case in Railway Employes v. Wright, . A railroad and its unions were sued for violating the Railway Labor Act, 45 U.S.C. 151 et seq., which banned discrimination against nonunion employees, and the parties entered a consent decree that prohibited such discrimination. Later, the Railway Labor Act was amended to allow union shops, and the union sought a modification of the decree. Although the amendment did not require, but purposely permitted, union shops, this Court held that the union was entitled to the modification because the parties had recognized correctly that what the consent decree prohibited was illegal under the Railway Act as it then read and because a "court must be free to continue to further the objectives of th[e] Act when its provisions are amended." Railway Employes, supra, at 651. See also Firefighters v. Stotts, , and n. 9, 583, n. 17 (1984).Petitioner Rapone urges that, without more, our 1979 decision in Bell v. Wolfish, , was a change in law requiring modification of the decree governing construction of the Suffolk County Jail. We disagree. Bell made clear what the Court had not before announced: that double-celling is not in all cases unconstitutional. But it surely did not cast doubt on the legality of single-celling, and petitioners were undoubtedly aware that Bell was pending when they signed the decree. Thus, the case must be judged on the basis that it was immaterial to petitioners that double-celling might be ruled constitutional, i.e., they preferred even in that event to agree to a decree which called for providing only single-cells in the jail to be built. Neither Bell nor the Federal Constitution forbade this course of conduct. Federal courts may not order States or local governments, over their objection, to undertake a course of conduct not tailored to curing a constitutional violation that has been adjudicated. See Milliken v. Bradley (Milliken II), . But we have no doubt that, to "save themselves the time, expense, and inevitable risk of litigation," United States v. Armour & Co., , petitioners could settle the dispute over the proper remedy for the constitutional violations that had been found by undertaking to do more than the Constitution itself requires (almost any affirmative decree beyond a directive to obey the Constitution necessarily does that), but also more than what a court would have ordered absent the settlement. Accordingly, the District Court did not abuse its discretion in entering the agreed-upon decree, which clearly was related to the conditions found to offend the Constitution. Milliken v. Bradley (Milliken I), . See also Dowell, 498 U.S., at 246-248. Cf. Firefighters v. Cleveland, .12 To hold that a clarification in the law automatically opens the door for relitigation of the merits of every affected consent decree would undermine the finality of such agreements, and could serve as a disincentive to negotiation of settlements in institutional reform litigation. The position urged by petitioners "would necessarily imply that the only legally enforceable obligation assumed by the state under the consent decree was that of ultimately achieving minimal constitutional prison standards... . Substantively, this would do violence to the obvious intention of the parties that the decretal obligations assumed by the state were not confined to meeting minimal constitutional requirements. Procedurally, it would make necessary, as this case illustrates, a constitutional decision every time an effort was made either to enforce or modify the decree by judicial action." Plyler v. Evatt, 924 F.2d 1321, 1327 (CA4 1991). While a decision that clarifies the law will not, in and of itself, provide a basis for modifying a decree, it could constitute a change in circumstances that would support modification if the parties had based their agreement on a misunderstanding of the governing law. For instance, in Pasadena City Board of Education v. Spangler, , we held that a modification should have been ordered when the parties had interpreted an ambiguous equitable decree in a manner contrary to the District Court's ultimate interpretation and the District Court's interpretation was contrary to intervening decisional law. And in Nelson v. Collins, 659 F.2d 420, 428-429 (CA4 1981) (en banc), the Fourth Circuit vacated an equitable order that was based on the assumption that double-bunking of prisoners was per se unconstitutional.Thus, if the Sheriff and Commissioner could establish on remand that the parties to the consent decree believed that single-celling of pretrial detainees was mandated by the Constitution, this misunderstanding of the law could form a basis for modification. In this connection, we note again, see supra, at 375, that the decree itself recited that it "sets forth a program which is both constitutionally adequate and constitutionally required." (Emphasis added). BOnce a moving party has met its burden of establishing either a change in fact or in law warranting modification of a consent decree, the District Court should determine whether the proposed modification is suitably tailored to the changed circumstance. In evaluating a proposed modification, three matters should be clear.Of course, a modification must not create or perpetuate a constitutional violation. Petitioners contend that double-celling inmates at the Suffolk County Jail would be constitutional under Bell. Respondents counter that Bell is factually distinguishable, and that double-celling at the new jail would violate the constitutional rights of pretrial detainees.13 If this is the case - the District Court did not decide this issue, 734 F.Supp., at 565-566 - modification should not be granted.A proposed modification should not strive to rewrite a consent decree so that it conforms to the constitutional floor. Once a court has determined that changed circumstances warrant a modification in a consent decree, the focus should be on whether the proposed modification is tailored to resolve the problems created by the change in circumstances. A court should do no more, for a consent decree is a final judgment that may be reopened only to the extent that equity requires. The court should not "turn aside to inquire whether some of [the provisions of the decree] upon separate as distinguished from joint action could have been opposed with success if the defendants had offered opposition." Swift, 286 U.S., at 111-17.Within these constraints, the public interest and "[c]onsiderations based on the allocation of powers within our federal system," Dowell, supra, at 248, require that the district court defer to local government administrators, who have the "primary responsibility for elucidating, assessing, and solving" the problems of institutional reform, to resolve the intricacies of implementing a decree modification. Brown v. Board of Education, . See also Missouri v. Jenkins, ; Milliken II, 433 U.S., at 281.14 Although state and local officers in charge of institutional litigation may agree to do more than that which is minimally required by the Constitution to settle a case and avoid further litigation, a court should surely keep the public interest in mind in ruling on a request to modify based on a change in conditions making it substantially more onerous to abide by the decree. To refuse modification of a decree is to bind all future officers of the State, regardless of their view of the necessity of relief from one or more provisions of a decree that might not have been entered had the matter been litigated to its conclusion. The District Court seemed to be of the view that the problems of the fiscal officers of the State were only marginally relevant to the request for modification in this case. 734 F.Supp., at 566. Financial constraints may not be used to justify the creation or perpetuation of constitutional violations, but they are a legitimate concern of government defendants in institutional reform litigation, and therefore are appropriately considered in tailoring a consent decree modification.IVTo conclude, we hold that the Swift "grievous wrong" standard does not apply to requests to modify consent decrees stemming from institutional reform litigation. Under the flexible standard we adopt today, a party seeking modification of a consent decree must establish that a significant change in facts or law warrants revision of the decree, and that the proposed modification is suitably tailored to the changed circumstance. We vacate the decision below and remand for further proceedings consistent with this opinion. It is so ordered. JUSTICE THOMAS took no part in the consideration or decision of this case.

In United States v. El Paso Natural Gas Co., , this Court ordered that appellee El Paso Natural Gas Co. divest itself of Pacific Northwest Pipeline Co., which El Paso was held to have acquired in violation of 7 of the Clayton Act. On remand the Government and El Paso entered into a consent decree that would have transferred the illegally acquired assets to a New Company. In Cascade Natural Gas Corp. v. El Paso Natural Gas Co., , the Court set the consent decree aside as being contrary to the divestiture mandate, which was designed to restore competition in the California market, and suggested guidelines for an appropriate decree. The District Court on the second remand then chose Colorado Interstate Gas Co. as the applicant "best qualified to make New Company a serious competitor" in the California market. El Paso was to receive 5,000,000 shares of New Company nonvoting preferred stock convertible into common stock after five years. New Company was to assume Northwest Division's pro-rata share (about $170,000,000) of El Paso's system-wide bond and debenture indebtedness. The District Court awarded the New Company 21.8% of the San Juan Basin gas reserves which it said was "no less in relation to present existing reserves" than Northwest had when it was independent, and also gave the New Company more than 50% of the net additions to the reserves developed since the merger, though concededly the New Company's total reserves will not meet the old Northwest's existing requirements and those of a California project. Appellant filed a jurisdictional statement in this Court presenting the question whether the District Court's decree comported with this Court's mandate, but later moved to dismiss its appeal under Rule 60. The motion to dismiss was supported by a number of appellees and opposed by an amicus curiae and a "consumer spokesman," and the Court ordered oral argument as to whether there had been compliance with its mandate. Held: 1. The filing of a motion under Rule 60 to dismiss the appeal does not deprive this Court of jurisdiction to determine whether the mandate it issued in this case has been complied with. P. 466. 2. The District Court's decree does not comply with this Court's mandate. Pp. 469-472. (a) The allocation of gas reserves (particularly those in the San Juan Basin) must place the New Company in the same relative competitive position in the California market vis-a-vis El Paso as Pacific Northwest occupied before the illegal merger. The District Court's decree fails to meet that objective; and that court must therefore reconsider the question of which applicant in light of the reallocation should acquire the New Company. Pp. 470-471. (b) In order to accomplish the complete divestiture which this Court mandated all managerial and financial connections between El Paso and the New Company must be severed and there must be a cash sale of Northwest Division. Pp. 471-472. 291 F. Supp. 3, vacated and remanded.Vernon B. Romney, Attorney General of Utah, argued the cause and filed a brief for appellant.Leon M. Payne argued the cause and filed a brief for appellee El Paso Natural Gas Co. Richard B. Hooper argued the cause for appellees Cascade Natural Gas Corp. et al. With him on the brief were Robert L. Simpson, John W. Chapman, Robert M. Robson, Attorney General of Idaho, Larry D. Ripley, Robert Y. Thornton, Attorney General of Oregon, Richard W. Sabin, Slade Gorton, Attorney General of Washington, and Robert E. Simpson. John F. Sonnett argued the cause for appellee Colorado Interstate Corp. With him on the brief were Raymond L. Falls, Jr., and H. Richard Schumacher. Iver E. Skjeie, Deputy Attorney General, argued the cause for appellee the State of California. With him on the brief was Thomas C. Lynch, Attorney General. Solicitor General Griswold argued the cause and filed a memorandum for the United States, at the invitation of the Court. William M. Bennett argued the cause and filed a brief pro se.Briefs of amici curiae were filed by David K. Watkiss and James D. McKinney, Jr., for the Colonial Group, and by John J. Flynn and I. Daniel Stewart, pro se.MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.This is before us on appellant's motion to dismiss its appeal under Rule 60. Ordinarily parties may by consensus agree to dismissal of any appeal pending before this Court.1 However, there is an exception where the dismissal implicates a mandate we have entered in a cause.2 Our mandate is involved here. We therefore ordered oral argument at which all parties concerned were afforded an opportunity to be heard on the question whether there had been compliance with the mandate. . At the oral argument a number of appellees supported appellant's motion. They included the United States, the State of California, El Paso Natural Gas Company, Cascade Natural Gas Corporation, Intermountain Gas Company, Northwest Natural Gas Company, the Washington Water Power Company, Washington Natural Gas Company, Idaho Public Utilities Commission, Public Utility Commissioner of Oregon, Washington Utilities and Transportation Commission, Colorado Interstate Corporation, Southern California Gas Company, and Southern Counties Gas Company of California. The motion was opposed by John J. Flynn and I. Daniel Stewart, by brief amicus curiae, and by William M. Bennett, who appeared for the State of California when the case was last here, Cascade Natural Gas Corp. v. El Paso Natural Gas Co., , and now presents himself, and argued orally, as "consumer spokesman."This is a Clayton Act 7 case, 38 Stat. 731, 15 U.S.C. 18, in which the acquisition of the stock and assets of Pacific Northwest Pipeline Corporation by El Paso Natural Gas Company raised the "ultimate issue" whether "the acquisition substantially lessened competition in the sale of natural gas in California." United States v. El Paso Natural Gas Co., . We ordered divestiture "without delay." Id., at 662. That was in 1964. The United States later agreed to settle the case. As to that we said:"We do not question the authority of the Attorney General to settle suits after, as well as before, they reach here. The Department of Justice, however, by stipulation or otherwise has no authority to circumscribe the power of the courts to see that our mandate is carried out. No one, except this Court, has authority to alter or modify our mandate. United States v. du Pont & Co., . Our direction was that the District Court provide for `divestiture without delay.' That mandate in the context of the opinion plainly meant that Pacific Northwest or a new company be at once restored to a position where it could compete with El Paso in the California market." 386 U.S., at 136. We set aside that consent decree and remanded for additional findings and a new solution, saying:"In the present case protection of California interests in a competitive system was at the heart of our mandate directing divestiture. For it was the absorption of Pacific Northwest by El Paso that stifled that competition and disadvantaged the California interests. It was indeed their interests, as part of the public interest in a competitive system, that our mandate was designed to protect." Id., at 135. On remand the District Court decided it should choose from among the various applicants the one that is "best qualified to make New Company a serious competitor" in the California market. That court chose Colorado Interstate Corp., the only gas pipeline operator among the various applicants.Under the plan approved by the District Court, El Paso receives 5,000,000 shares of New Company nonvoting preferred stock, convertible into common stock at the end of five years. What the conversion ratio will be is not known; but, it is said, there will be provisions to restrict El Paso control over the New Company. The New Company also assumes approximately $170,000,000 of El Paso's system-wide bond and debenture indebtedness, an amount designated the Northwest Division's pro-rata share of that indebtedness.Utah's jurisdictional statement, which she now moves to dismiss, was filed here November 25, 1968. That jurisdictional statement presents the question whether the decree entered below satisfies our mandate. It is the filing of that jurisdictional statement that brings the question here. See United States v. du Pont & Co., . In fact, in its jurisdictional statement, Utah urged that the decree does not meet the requirements of du Pont. We thus need not decide whether the papers filed by amicus curiae or Mr. Bennett properly presented the question of compliance. We find that the decree of the District Court does not comply with our mandate: it does not apportion the gas reserves between El Paso and New Company in a manner consistent with the purpose of the mandate, and it does not provide for complete divestiture. We therefore vacate the judgment and remand the case for further proceedings. I. When the case was last here we said, "The gas reserves granted the New Company must be no less in relation to present existing reserves than Pacific Northwest had when it was independent; and the new gas reserves developed since the merger must be equitably divided between El Paso and the New Company. We are told by the intervenors that El Paso gets the new reserves in the San Juan Basin - which due to their geographical propinquity to California are critical to competition in that market. But the merged company, which discovered them, represented the interests both of El Paso and of Pacific Northwest. We do not know what an equitable division would require. Hearings are necessary, followed by meticulous findings made in light of the competitive requirements to which we have adverted." 386 U.S., at 136-137.The District Court awarded 21.8% of the San Juan Basin reserves to the New Company saying that was "no less in relation to present existing reserves" than Northwest had when it was independent. The District Court also gave the New Company more than 50% of the net additions to the reserves developed since the merger. Concededly the total reserves of the New Company will not be sufficient to meet the old Northwest's existing requirements and those of a California project. This attempt to paralyze competition in the California market started years ago; the Clayton Act suit was filed in 1957. The record up to the entry of the present decree shows, as the District Court found, that delay has strengthened El Paso's position. First, the delay has strengthened El Paso's hold on the California market, making it more and more difficult for a new out-of-state supplier to enter. Second, an additional out-of-state supplier has entered the California market during this 12-year period, taking what well might have been the place of the old Northwest Company had not its competition been stifled. Third, permits for new pipelines from Texas to California are now pending before the Federal Power Commission.The purpose of our mandate was to restore competition in the California market. An allocation of gas reserves should be made which is "equitable" with that purpose in mind. The position of the New Company must be strengthened and the leverage of El Paso not increased. That is to say an allocation of gas reserves - particularly those in the San Juan Basin - must be made to rectify, if possible, the manner in which El Paso has used the illegal merger to strengthen its position in the California market. The object of the allocation of gas reserves must be to place New Company in the same relative competitive position vis-a-vis El Paso in the California market as that which Pacific Northwest enjoyed immediately prior to the illegal merger.A reallocation of gas reserves under this standard may permit an applicant other than Colorado Interstate Corporation to acquire New Company and make it a competitive force in California. Thus, the District Court is directed to effect this reallocation of gas reserves, and, in light of the reallocation, to reopen consideration of which applicant should acquire New Company. Such consideration should, of course, include whether an award to a particular applicant will have any anti-competitive effects either in the California market or in other markets. II. Our mandate directed complete divestiture. The District Court did not, however, direct complete divestiture. Neither appellant nor any party supporting the dismissal argues that the District Court did so. Rather they argue that the disposition made by the District Court was the best that might be made without complete divestiture. Clearly this does not comply with our mandate. United States v. du Pont & Co., , was another 7 case in which we ordered "complete divestiture." Id., at 328. One plan proposed was a distribution of General Motors shares held by du Pont, most of them to be distributed pro rata over a 10-year period to du Pont stockholders; the rest were to be sold gradually over the same 10-year period. Id., at 319-320. Du Pont's alternate plan was to retain all attributes of ownership, passing through to its shareholders the voting rights proportional to their holdings of du Pont shares. We did not approve that plan but directed "complete divestiture." Id., at 334. We said: "The very words of 7 suggest that an undoing of the acquisition is a natural remedy. Divestiture or dissolution has traditionally been the remedy for Sherman Act violations whose heart is intercorporate combination and control." 366 U.S., at 329. We said that divestiture only of voting rights was not an adequate remedy. What was necessary was dissolution "of the intercorporate community of interest which we found to violate the law." Id., at 331.The reason advanced for allowing El Paso to take a stock interest in the New Company rather than cash is to reduce its income tax burden. We have emphasized that the pinch on private interests is not relevant to fashioning an antitrust decree, as the public interest is our sole concern. United States v. du Pont & Co., supra, at 326.The same reasoning is applicable to the present case. Retention by El Paso and its stockholders of the preferred stock is perpetuation to a degree of the illegal intercorporate community. Assumption of $170,000,000 of El Paso's indebtedness helps keep the two companies in league. The severance of all managerial and all financial connections between El Paso and the New Company must be complete for the decree to satisfy our mandate. Only a cash sale will satisfy the rudiments of complete divestiture.We vacate the judgment of the District Court and remand the cause for proceedings in conformity with this opinion. It is so ordered.MR. JUSTICE WHITE and MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.

Petitioner had been indicted by a Texas county grand jury for swindling. Massive pretrial publicity had given the case national notoriety. On the trial date, following a change of venue, a hearing commenced on petitioner's motion to prevent telecasting, radio broadcasting, and news photography. The bearing, conducted in the presence of some trial witnesses and veniremen later released, was carried live on television and radio, and news photography was permitted. The original jury panel, petitioner, counsel, and the trial judge were highly publicized during the two days the pretrial hearing lasted, emphasizing throughout the community the notorious character that the trial would take. Four of the jurors selected later at the trial had seen or heard all or part of the broadcasts. The profusion of cameramen with their equipment in various parts of the crowded courtroom caused considerable disruption. The trial court denied petitioner's motion but granted a continuance of almost a month. During the interim a booth was erected in the rear of the courtroom to which television cameramen and equipment were restricted. Live telecasting was prohibited during most of the actual trial. The State's opening and closing arguments were carried live with sound (though because of mechanical difficulty there was no picture of the former), as were the return of the jury's verdict and its receipt by the judge. The court's order allowed videotapes without sound of the whole proceeding and the cameras operated intermittently during the three day trial, which ended with petitioner's conviction. Film clips of the trial were shown largely on regularly scheduled news programs. Both the trial court and the appellate court rejected petitioner's claim of denial of due process in violation of the Fourteenth Amendment by the televising and broadcasting of the trial. Held: The televising over petitioner's objections of the courtroom proceedings of petitioner's criminal trial, in which there was widespread public interest, was inherently invalid as infringing the fundamental right to a fair trial guaranteed by the Due Process Clause of the Fourteenth Amendment. Pp. 536-552. (a) The high degree of publicity given to the two-day hearing, which could only have impressed those present and the community at large with the notorious character of the petitioner and the proceeding, made what occurred at the pretrial relevant to determining whether petitioner was accorded due process at his trial. Pp. 536-537. (b) The constitutional guarantee of a public trial is to ensure that the accused is fairly dealt with and not unjustly condemned. Pp. 538-539. (c) The freedom granted to the press under the First Amendment must be subject to the maintenance of absolute fairness in the judicial process; and in the present state of television techniques such freedom does not confer the right to use equipment in the courtroom which might jeopardize a fair trial, the atmosphere for which must be preserved at all costs. Pp. 539-540. (d) The public's right to be informed about court proceedings is satisfied if reporters are free to attend and to report on the proceedings through their respective media. Pp. 541-542. (e) Where, as here, the procedure employed by the State involves the probability that prejudice to the accused will result, that procedure, in line with the principle established in such cases as Rideau v. Louisiana, , will be deemed lacking in due process whether or not isolatable prejudice can be demonstrated. Pp. 542-544. (f) There are numerous respects in which televising court proceedings may alone, and in combination almost certainly will, cause unfairness, such as: (1) improperly influencing jurors by emphasizing the notoriety of the trial and affecting their impartial judgment, distracting their attention, facilitating (in States which do not sequester jurors) their viewing of selected parts of the proceedings, and improperly influencing potential jurors and thus jeopardizing the fairness of new trials; (2) impairing the testimony of witnesses, as by causing some to be frightened and others to overstate their testimony, and generally influencing the testimony of witnesses, thus frustrating invocation of the "rule" against witnesses; (3) distracting judges generally and exercising an adverse psychological effect particularly upon those who are elected; and (4) imposing pressures upon the defendant and intruding into the confidential attorney-client relationship. Pp. 544-550. (g) The foregoing factors are not merely "hypothetical," as is evidenced by the bar on television in federal criminal trials imposed by the Federal Rules of Criminal Procedure and by such a bar in all but two States. P. 550. (h) Application of the rule of the Rideau case supra, is clearly warranted by the facts of this case. Pp. 550-552. Reversed.John D. Cofer and Hume Cofer argued the cause and filed a brief for petitioner.Waggoner Carr, Attorney General of Texas, and Leon Jaworski, Special Assistant Attorney General, argued the cause for respondent. With them on the brief were Hawthorne Phillips, Stanton Stone. Howard M. Fender and Gilbert J. Pena, Assistant Attorneys General, and Alton F. Curry, Special Assistant Attorney General.Briefs of amici curiae, urging reversal, were filed by Whitney North Seymour, Richmond C. Coburn and John H. Yauch for the American Bar Association, and by Norman Dorsen and Melvin L. Wulf for the American Civil Liberties Union et al.Briefs of amici curiae, urging affirmance, were filed by Davis Grant for the State Bar of Texas, joined by Duke W. Dunbar, Attorney General of Colorado; and by Douglas A. Anello, W. Theodore Pierson and Harold David Cohen for the National Association of Broadcasters et al.MR. JUSTICE CLARK delivered the opinion of the Court.* The question presented here is whether the petitioner, who stands convicted in the District Court for the Seventh Judicial District of Texas at Tyler for swindling,1 was deprived of his right under the Fourteenth Amendment to due process by the televising and broadcasting of his trial. Both the trial court and the Texas Court of Criminal Appeals found against the petitioner. We hold to the contrary and reverse his conviction.I.While petitioner recites his claim in the framework of Canon 35 of the Judicial Canons of the American Bar Association he does not contend that we should enshrine Canon 35 in the Fourteenth Amendment, but only that the time-honored principles of a fair trial were not followed in his case and that he was thus convicted without due process of law. Canon 35, of course, has of itself no binding effect on the courts but merely expresses the view of the Association in opposition to the broadcasting, televising and photographing of court proceedings. Likewise, Judicial Canon 28 of the Integrated State Bar of Texas, 27 Tex. B. J. 102 (1964), which leaves to the trial judge's sound discretion the telecasting and photographing of court proceedings, is of itself not law. In short, the question here is not the validity of either Canon 35 of the American Bar Association or Canon 28 of the State Bar of Texas, but only whether petitioner was tried in a manner which comports with the due process requirement of the Fourteenth Amendment.Petitioner's case was originally called for trial on September 24, 1962, in Smith County after a change of venue from Reeves County, some 500 miles west. Massive pretrial publicity totaling 11 volumes of press clippings, which are on file with the Clerk, had given it national notoriety. All available seats in the courtroom were taken and some 30 persons stood in the aisles. However, at that time a defense motion to prevent telecasting, broadcasting by radio and news photography and a defense motion for continuance were presented, and after a two-day hearing the former was denied and the latter granted. These initial hearings were carried live by both radio and television, and news photography was permitted throughout. The videotapes of these hearings clearly illustrate that the picture presented was not one of that judicial serenity and calm to which petitioner was entitled. Cf. Wood v. Georgia, ; Turner v. Louisiana, ; Cox v. Louisiana, . Indeed, at least 12 cameramen were engaged in the courtroom throughout the hearing taking motion and still pictures and televising the proceedings. Cables and wires were snaked across the courtroom floor, three microphones were on the judge's bench and others were beamed at the jury box and the counsel table. It is conceded that the activities of the television crews and news photographers led to considerable disruption of the hearings. Moreover, venire men had been summoned and were present in the courtroom during the entire hearing but were later released after petitioner's motion for continuance had been granted. The court also had the names of the witnesses called; some answered but the absence of others led to a continuance of the case until October 22, 1962. It is contended that this two-day pretrial hearing cannot be considered in determining the question before us. We cannot agree. Pretrial can create a major problem for the defendant in a criminal case. Indeed, it may be more harmful than publicity during the trial for it may well set the community opinion as to guilt or innocence. Though the September hearings dealt with motions to prohibit television coverage and to postpone the trial, they are unquestionably relevant to the issue before us. All of this two-day affair was highly publicized and could only have impressed those present, and also the community at large, with the notorious character of the petitioner as well as the proceeding. The trial witnesses present at the hearing, as well as the original jury panel, were undoubtedly made aware of the peculiar public importance of the case by the press and television coverage being provided, and by the fact that they themselves were televised live and their pictures rebroadcast on the evening show.When the case was called for trial on October 22 the scene had been altered. A booth had been constructed at the back of the courtroom which was painted to blend with the permanent structure of the room. It had an aperture to allow the lens of the cameras an unrestricted view of the courtroom. All television cameras and newsreel photographers were restricted to the area of the booth when shooting film or telecasting.Because of continual objection, the rules governing live telecasting, as well as radio and still photos, were changed as the exigencies of the situation seemed to require. As a result, live telecasting was prohibited during a great portion of the actual trial. Only the opening2 and closing arguments of the State, the return of the jury's verdict and its receipt by the trial judge were carried live with sound. Although the order allowed videotapes of the entire proceeding without sound, the cameras operated only intermittently. recording various portions of the trial for broadcast on regularly scheduled newscasts later in the day and evening. At the request of the petitioner. the trial judge prohibited coverage of any kind, still or television, of the defense counsel during their summations to the jury.Because of the varying restrictions placed on sound and live telecasting the telecasts of the trial were confined largely to film clips shown on the stations' regularly scheduled news programs. The news commentators would use the film of a particular part of the day's trial activities as a backdrop for their reports. Their commentary included excerpts from testimony and the usual reportorial remarks. On one occasion the videotapes of the September hearings were rebroadcast in place of the "late movie."II.In Rideau v. Louisiana, , this Court constructed a rule that the televising of a defendant in the act of confessing to a crime was inherently invalid under the Due Process Clause of the Fourteenth Amendment even without a showing of prejudice or a demonstration of the nexus between the televised confession and the trial. See id., at 729 (dissenting opinion of CLARK, J.). Here, although there was nothing so dramatic as a home-viewed confession, there had been a bombardment of the community with the sights and sounds of a two-day hearing during which the original jury panel, the petitioner, the lawyers and the judge were highly publicized. The petitioner was subjected to characterization and minute electronic scrutiny to such an extent that at one point the photographers were found attempting to picture the page of the paper from which he was reading while sitting at the counsel table. The two-day hearing and the order permitting television at the actual trial were widely known throughout the community. This emphasized the notorious character that the trial would take and, therefore, set it apart in the public mind as an extraordinary case or, as Shaw would say, something "not conventionally unconventional." When the new jury was empaneled at the trial four of the jurors selected had seen and heard all or part of the broadcasts of the earlier proceedings.III.We start with the proposition that it is a "public trial" that the Sixth Amendment guarantees to the "accused." The purpose of the requirement of a public trial was to guarantee that the accused would be fairly dealt with and not unjustly condemned. History had proven that secret tribunals were effective instruments of oppression. As our Brother BLACK so well said in In re Oliver, : "The traditional Anglo-American distrust for secret trials has been variously ascribed to the notorious use of this practice by the Spanish Inquisition, to the excesses of the English Court of Star Chamber, and to the French monarchy's abuse of the lettre de cachet... . Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution." At 268-270. (

A husband and his wife executed to respondent a mortgage on real property in New Jersey which was thereafter recorded. Over a year later the Government filed and recorded in accordance with 26 U.S.C. 6323 a tax lien against the husband. Almost a year later the mortgagors defaulted and respondent brought this foreclosure action for the principal and interest under the mortgage and an attorney's fee under a New Jersey court rule allowing for attorneys' fees in foreclosure proceedings determined as a percentage of the amount adjudged to be paid the mortgagee and taxed as costs in the action. Petitioner conceded the mortgage priority but contended that the attorney's fee was inferior to the federal lien. The trial court, relying on United States v. Pioneer American Insurance Co., , held the attorney's fee claim subordinate to the federal tax lien. The State Supreme Court reversed. Held: A federal tax lien recorded before the mortgagor's default has priority over a mortgagee's claim for an attorney's fee in the subsequent foreclosure proceeding. Pp. 327-332. (a) As against a recorded federal tax lien, the relative priority of a state lien, which is determined by federal law, depends upon whether the state lien was "specific and perfected" on the date the federal lien was recorded. Pp. 327-328. (b) A mortgagee's claim for attorneys' fees which is inchoate at least until all federal liens have been filed is therefore subordinate to such liens. United States v. Pioneer American Insurance Co., supra, followed. P. 328. (c) At the time the federal lien in this case was recorded there had been no adjudication of the money due on the mortgage, which was not then in default, and therefore the percentage determination of the attorney's fee under the New Jersey court rule could not be made. Security Mortgage Co. v. Powers, , distinguished. Pp. 328-329. (d) According priority to the federal tax lien cannot be defeated by labeling attorneys' fees as "costs." P. 330. (e) To allow the priority of federal tax liens to be determined by the different rules of the various States would contravene the policy of uniformity in the federal tax laws. P. 331. 45 N. J. 206, 212 A. 2d 25, reversed and remanded.Robert S. Rifkind argued the cause for the United States. With him on the brief were Solicitor General Marshall, Acting Assistant Attorney General Roberts, Joseph Kovner and Richard J. Heiman.Frank W. Hoak argued the cause for respondent. With him on the brief was Donald B. Jones.MR. JUSTICE CLARK delivered the opinion of the Court.This writ involves the recurring problem of priority contests between a state lien and a federal tax lien under 6321 and 6322 of the Internal Revenue Code of 1954, 26 U.S.C. 6321, 6322 (1964 ed.). Since 1950 - United States v. Security Trust & Savings Bank, - we have passed upon more than a dozen cases involving some facet of the problem. In the present case the law of New Jersey provides for the allowance in a foreclosure action of an attorney's fee fixed by statute as a certain percentage of the amount adjudged to be paid the mortgagee and taxed as costs in the action. The question presented is whether a federal tax lien is entitled to priority over the mortgagee's claim for such an attorney's fee, where notice of the tax lien is recorded prior to default by the mortgagor. The state trial court held that the federal tax lien was superior, New Jersey's highest court reversed, 45 N. J. 206, 212 A. 2d 25, and we granted certiorari, . Only three Terms ago, MR. JUSTICE WHITE writing for the Court, disposed of an almost identical question, i. e., whether "a reasonable attorney's fee" provided for in a mortgage note "in the event of default ... and of the placing of this note in the hands of an attorney for collection, or this note is collected through any court proceedings" created a lien superior to that of a federal tax lien recorded after suit on the note was filed but prior to the actual fixing of the amount of the attorney's fees. United States v. Pioneer American Insurance Co., . We there held the federal lien superior. We hold similarly here, and reverse.I.Albert Bagin and his wife executed to Equitable Life a first mortgage on certain real property in New Jersey. This mortgage, which secured an indebtedness of $30,000, was recorded on December 19, 1960. The Bagins executed two other mortgages covering the property - a second mortgage which was also recorded on December 19, 1960, and a third, recorded on May 18, 1961. On March 21, 1962, the United States filed a tax lien for $7,748.91 against Mr. Bagin. This lien, which was for unpaid withholding taxes, arose under 26 U.S.C. 6321, 6322, and was recorded in accordance with 26 U.S.C. 6323 (1964 ed.).1 Somewhat less than a year later, the Bagins defaulted on the first mortgage and Equitable Life brought this foreclosure action. Equitable claimed the principal and interest due under the mortgage, as well as an attorney's fee as authorized by New Jersey statute.2 The second mortgage admitted the superiority of Equitable Life's priority and demanded that the second mortgage be reported upon. Both the Bagins and the third mortgagees suffered default and their interests are not before us. The United States conceded the priority of the claims under the first two mortgages exclusive, however, of the attorney's fee, which it contended was inferior to the federal lien. The trial court rendered summary judgment fixing the sums due the respective parties and, viewing the priority question controlled by United States v. Pioneer American Insurance Co., supra, subordinated the claim for attorney's fee to the federal tax lien. Without awaiting a sale of the property, respondent appealed to the Superior Court, Appellate Division, which certified the appeal to the Supreme Court of New Jersey. The Supreme Court ordered the property sold, and, after the sale, held that the statutory attorney's fee was superior to the federal lien.II.In United States v. New Britain, , a leading case in this field, we held that where a debtor is insolvent the "Congress has protected the federal revenues by imposing an absolute priority" of the federal lien by virtue of 3466 of the Revised Statutes (1874), now 31 U.S.C. 191 (1964 ed.), and that where the debtor is solvent the "United States is free to pursue the whole of the debtor's property wherever situated" under 26 U.S.C. 6321, 6322. Id., at 85. The record here is silent on the solvency of the debtors, but as the priority issue below centered on 6321-6323 we may safely assume they are solvent. As against a recorded federal tax lien, the relative priority of a state lien is determined by the rule "first in time is first in right," which in turn hinges upon whether, on the date the federal lien was recorded, the state lien was "specific and perfected." A state lien is specific and perfected when "there is nothing more to be done ... - when the identity of the lienor, the property subject to the lien, and the amount of the lien are established." Thus, the priority of each statutory lien ... must depend on the time it attached to the property in question and became choate." United States v. New Britain, supra. These determinations are of course federal questions. United States v. Waddill Co., .Pioneer American, supra, dealt with these identical problems and we therefore turn to its teachings. There, "the claim for the attorney's fee ... became enforceable under Arkansas law as a contract of indemnity at the time of default ... before the filing of the first federal tax liens." The suit in which the attorney's fee was earned was filed prior to the recording of the federal liens. "Nevertheless, because this fee had not been incurred and paid and could not be finally fixed in amount until ... after all the federal liens had been filed," we held that the fees were "inchoate at least until that date and that the federal tax liens are entitled to priority." 374 U.S., at 87. As we said there, the attorney's fee was "undetermined and indefinite" at the time the federal lien was recorded; nor had the fee been "reduced to a liquidated amount." Moreover, there was no "showing in this record that the mortgagee had become obligated to pay and had paid any sum of money for services performed prior to the filing of the federal tax lien." Thus, the mortgagee's claim was not only "uncertain in amount" but "yet to be incurred and paid." Id., at 90-91.Equitable's lien is even more clearly inchoate. At the time the federal lien was recorded Equitable's mortgage was not even in default - no reference whatever had been made to attorneys, no suit had been filed, nor had any sums been "adjudged to be paid." New Jersey's Rule 4:55-7 (c), supra, n. 2, which fixes the lien had not even been invoked much less applied to establish the amount of the lien. The claim was wholly contingent at the time the federal lien matured. Cast against the setting of Pioneer American, the inchoate character of the state-created lien here stands out even more starkly.New Jersey's Supreme Court relied on the preciseness - the fixed percentages - of Rule 4:55-7 (c), and applied the principle of Security Mortgage Co. v. Powers, . It found Pioneer American inapposite. We cannot agree. Security did not involve a federal tax lien but raised "federal questions peculiar to the law of bankruptcy." 278 U.S., at 154. Our opinion in Pioneer American specifically pointed out that Security had no application to federal tax lien cases because the issue there was the status of an attorney's fee clause in a bankruptcy proceeding "where the rigorous federal lien choateness test was not necessarily applicable." 374 U.S., at 90, n. 8. We likewise find that Security has not bearing on the issue presently before us. As we noted earlier, at the time the federal lien matured here no sum of money due on the mortgage had been "adjudged." Adjudication alone triggers the mathematical machinery of Rule 4:55-7 (c) whereby liability for the attorney's fee is fixed. No liability having been incurred there could of course be no lien in existence at the time the federal lien matured. In short, the fixed fee of the statute had not been brought into play.III.Equitable Life's remaining contentions are also untenable. It argues that, since the United States concedes the priority of the mortgages here, the attorney's fee is likewise superior, for it must stand on no less equal footing as principal and interest under a mortgage - neither of which is ascertainable until foreclosure. This identical contention was raised and implicitly rejected in Pioneer American. There is nothing in the legislative history of 6323 indicating that in protecting mortgagees from secret, government tax liens, Congress intended to include all ancillary interests which a State may afford its mortgagees. See H. R. Rep. No. 1018, 62d Cong., 2d Sess. (1912). See also H. R. Rep. No. 1337, 83d Cong., 2d Sess. (1954); S. Rep. No. 1622, 83d Cong., 2d Sess. (1954).Nor does the fact that New Jersey's statutory scheme taxes the attorney's fee as costs in the foreclosure proceeding affect the standing of a competing federal lien. To repeat, the relative priority of a United States lien for unpaid taxes is a federal question. United States v. Acri, . The label given the attorney's fee by the State does not bind this Court. As we said in United States v. Buffalo Savings Bank, , "the state may not avoid the priority rules of the federal tax lien by the formalistic device of characterizing subsequently accruing local liens as expenses of sale." Likewise in Pioneer American, the State was not permitted to upgrade its lien by the formalistic device of "indemnity." Even where authorized by state statute3 the distinction between costs and allowances for attorneys' fees is well recognized. In Sioux County v. National Surety Co., , the Court specifically noted this distinction in highly cogent terms: "That the statute directs the allowance [for an attorney's fee] ... to be added to the judgment as costs are added does not make it costs in the ordinary sense of the traditional, arbitrary and small fees of court officers, attorneys' docket fees and the like ... ." At 243-244.4 Moreover, the mortgagee by foreclosing does not produce a fund from which the United States benefits, without expenditure on its part. A foreclosure is more akin to a liquidation of assets than to the creation, enhancement or protection of a common fund from which equity permits reimbursement of costs of litigation.5 Finally, it would be contrary to the federal policy of uniformity in the federal tax laws to permit the relative priority of federal tax liens to "be determined by the diverse rules of the various States." United States v. Speers, . See also United States v. Gilbert Associates, . While we believe that the established practice of awarding costs in the ordinary sense fairly renders those items an incident of the rights of those protected under 6323, we see no warrant either in the intent of 6323 or the practices prevailing among the States at the time of its enactment to treat attorneys' fees as a right entitled to priority over a federal tax lien. We hold that the federal tax lien is entitled to priority over the claim for the attorney's fee under Rule 4:55-7 (c). We intimate no view as to the disposition the state court may wish to make of the fund set aside for the principal, interest, and costs, exclusive of attorney's fee. That is a matter of state law. United States v. New Britain, supra, at 88. Reversed and remanded.MR. JUSTICE DOUGLAS dissents.

In the course of holding that respondent company committed "unfair labor practices" when it refused to interview or retain 11 job applicants because of their union membership, the National Labor Relations Board determined that all of the applicants were protected "employee[s]" as that word is defined in the National Labor Relations Act, 29 U.S.C. 152(3), even though they intended to try to organize the company if they were hired and would have been paid by the union while they set about their organizing. The Eighth Circuit reversed, holding that the statutory word "employee" does not cover (and therefore the Act does not protect from antiunion discrimination) those who work for a company while a union simultaneously pays them to organize that company.Held: A worker may be a company's "employee," within the terms of the National Labor Relations Act, even if, at the same time, a union pays that worker to help the union organize the company. Pp. 3-13. (a) The Board may lawfully interpret 152(3)'s language - i.e., "[t]he term `employee' shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise" - to include company workers who are also paid union organizers. The Board's broad, literal reading of "employee" is entitled to considerable deference as the interpretation of the agency created by Congress to administer the Act. See, e.g., Sure-Tan, Inc. v. NLRB, . Moreover, several strong general arguments favor the Board's position. First, the Board's decision is consistent with the Act's language, particularly the "any employee" phrase, which is broad enough to Page II include, under the ordinary dictionary definitions of "employee," those company workers whom a union also pays for organizing. Second, the Board's interpretation is consistent with several of the Act's purposes - such as protecting employees' right to organize for mutual aid without employer interference and encouraging and protecting the collective-bargaining process - and with the legislative history. Third, the Board's reading is consistent with this Court's decisions. See, e.g., ibid. Finally, 186(c)(1) also seems specifically to contemplate the possibility that a company's employee might also work for a union. Pp. 3-7. (b) Respondent company's agency law argument - that a paid union organizer is controlled by the union and therefore must be considered the servant (i.e. the "employee") of the union alone - fails because the Board's interpretation of "employee" is consistent with the common law of agency, which recognizes that a person may be the servant of two masters at one time as to one act. The company's practical argument - that Congress could not have meant to include paid union organizers as "employees" under the Act in light of the potential for harm to an employer that such workers might pose - suffers from several serious problems and is thus unconvincing. Pp. 7-13. 34 F.3d 625, vacated and remanded.BREYER, J., delivered the opinion for a unanimous Court. [ NLRB v. TOWN & COUNTRY ELECTRIC, INC., ___ U.S. ___ (1995), 1] JUSTICE BREYER delivered the opinion of the Court.Can a worker be a company's "employee," within the terms of the National Labor Relations Act, 29 U.S.C. 151 et seq., if, at the same time, a union pays that worker to help the union organize the company? We agree with the National Labor Relations Board that the answer is "yes."IThe relevant background is the following: Town & Country Electric, Inc., a nonunion electrical contractor, wanted to hire several licensed Minnesota electricians for construction work in Minnesota. Town & Country (through an employment agency) advertised for job applicants, but, it refused to interview 10 of 11 union applicants (including two professional union staff) who responded to the advertisement. Its employment agency hired the one union applicant whom Town & Country interviewed, but he was dismissed after only a few days on the job.The members of the Union (the International Brotherhood of Electrical Workers, Locals 292 and 343) filed a complaint with the National Labor Relations Board [ NLRB v. TOWN & COUNTRY ELECTRIC, INC., ___ U.S. ___ (1995), 2] claiming that Town & Country and the employment agency had refused to interview (or retain) them because of their union membership. See National Labor Relations Act (Act) 8(a)(1) and (3), 49 Stat. 452, as amended, 29 U.S.C. 158(a)(1) and (3) (1988 ed.). An administrative law judge ruled in favor of the Union members, and the Board affirmed that ruling. Town & Country Elec., Inc., 309 N. L. R. B. 1250, 1258 (1992).In the course of its decision, the Board determined that all 11 job applicants (including the two Union officials and the one member briefly hired) were "employees" as the Act defines that word. Ibid. The Board recognized that under well-established law, it made no difference that the 10 members who were simply applicants were never hired. See Phelps Dodge Corp. v. NLRB, (statutory word "employee" includes job applicants, for otherwise the Act's prohibition of "`discrimination in regard to hire'" would "serve no function"). Neither, in the Board's view, did it matter (with respect to the meaning of the word "employee") that the Union members intended to try to organize the company if they secured the advertised jobs, nor that the Union would pay them while they set about their organizing. The Board then rejected the company's fact-based explanations for its refusals to interview or to retain these 11 "employees" and held that the company had committed "unfair labor practices" by discriminating on the basis of union membership. Town & Country Elec., supra, at 1250, n. 3, 1256, 1258.The United States Court of Appeals for the Eighth Circuit reversed the Board. It held that the Board had incorrectly interpreted the statutory word "employee." In the court's view, that key word does not cover (and therefore the Act does not protect from antiunion discrimination) those who work for a company while a union simultaneously pays them to organize that [ NLRB v. TOWN & COUNTRY ELECTRIC, INC., ___ U.S. ___ (1995), 3] company. 34 F.3d 625, 629 (1994). See also H.B. Zachry Co. v. NLRB, 886 F.2d 70, 75 (CA4 1989). For this threshold reason the court refused to enforce the Board's order.Because other Circuits have interpreted the word "employee" differently, see, e.g., Willmar Elec. Service, Inc. v. NLRB, 968 F.2d 1327, 1330-1331 (CADC 1992), cert. denied, (paid union organizers can be "employees" protected by the Act); NLRB v. Henlopen Mfg. Co., 599 F.2d 26, 30 (CA2 1979) (same), we granted certiorari. We now resolve the conflict in the Board's favor.IIThe National Labor Relations Act seeks to improve labor relations ("eliminate the causes of certain substantial obstructions to the free flow of commerce," 29 U.S.C. 151 (1988 ed.)) in large part by granting specific sets of rights to employers and to employees. This case grows out of a controversy about rights that the Act grants to "employees," namely, rights "to self-organization, to form, join, or assist labor organizations, to bargain collectively ... and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 157. We granted certiorari to decide only that part of the controversy that focuses upon the meaning of the word "employee," a key term in the statute, since these rights belong only to those workers who qualify as "employees" as that term is defined in the Act. See, e.g., 158(a)(1) ("unfair labor practice" to "interfere with ... employees in the exercise of the rights guaranteed in section 157 of this title") (emphasis added).The relevant statutory language is the following:"The term `employee' shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states [ NLRB v. TOWN & COUNTRY ELECTRIC, INC., ___ U.S. ___ (1995), 4] otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual having the status of an independent contractor, or any individual employed as a supervisor, or any individual employed by an employer subject to the Railway Labor Act, as amended from time to time, or by any other person who is not an employer as herein defined." 152(3) (emphasis added). We must specifically decide whether the Board may lawfully interpret this language to include company workers who are also paid union organizers.We put the question in terms of the Board's lawful authority because this Court's decisions recognize that the Board often possesses a degree of legal leeway when it interprets its governing statute, particularly where Congress likely intended an understanding of labor relations to guide the Act's application. See, e.g., Sure-Tan, Inc. v. NLRB, (interpretations of the Board, the agency that Congress "`created ... to administer the Act,'" will be upheld if "reasonably defensible") (internal citation omitted); NLRB v. Curtin Matheson Scientific, Inc., (Congress delegated to the Board "primary responsibility for developing and applying national labor policy"); ABF Freight System, Inc. v. NLRB___, ___ (1994) (slip op., at 7) (the Board's views are entitled to "the greatest deference"). See also Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., . We add, however, that [ NLRB v. TOWN & COUNTRY ELECTRIC, INC., ___ U.S. ___ (1995), 5] the Board needs very little legal leeway here to convince us of the correctness of its decision.Several strong general arguments favor the Board's position. For one thing, the Board's decision is consistent with the broad language of the Act itself - language that is broad enough to include those company workers whom a union also pays for organizing. The ordinary dictionary definition of "employee" includes any "person who works for another in return for financial or other compensation." American Heritage Dictionary 604 (3d ed. 1992). See also Black's Law Dictionary 525 (6th ed. 1990) (an employee is a "person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed"). The phrasing of the Act seems to reiterate the breadth of the ordinary dictionary definition, for it says "[t]he term `employee' shall include any employee." 29 U.S.C. 152(3) (1988 ed.) (emphasis added). Of course, the Act's definition also contains a list of exceptions, for example, for independent contractors, agricultural laborers, domestic workers, and employees subject to the Railway Labor Act, 45 U.S.C. 151 et seq; but no exception applies here.For another thing, the Board's broad, literal interpretation of the word "employee" is consistent with several of the Act's purposes, such as protecting "the right of employees to organize for mutual aid without employer interference," Republic Aviation Corp. v. NLRB, ; see also 29 U.S.C. 157 (1988 ed.); and "encouraging and protecting the collective-bargaining process." Sure-Tan, Inc. v. NLRB, supra, at 892. And, insofar as one can infer purpose from congressional Reports and floor statements, those sources too are consistent with the Board's broad interpretation of the word. It is fairly easy to find statements to the [ NLRB v. TOWN & COUNTRY ELECTRIC, INC., ___ U.S. ___ (1995), 6] effect that an "employee" simply "means someone who works for another for hire," H. R. Rep. No. 245, 80th Cong., 1st Sess., 18 (1947), and includes "every man on a payroll." 79 Cong. Rec. 9686 (1935) (colloquy between Reps. Taylor and Connery). See also S. Rep. No. 573, 74th Cong., 1st Sess., 6 (1935) (referring to an employee as a "worker"); H. R. Rep. No. 969, 74th Cong., 1st Sess., 8 (1935) (same); H. R. Rep. No. 972, 74th Cong., 1st Sess., 8 (1935) (same); H. R. Rep. No. 1147, 74th Cong., 1st Sess., 10 (1935) (same). At the same time, contrary statements, suggesting a narrow or qualified view of the word, are scarce, or nonexistent - except, of course, those made in respect to the specific (here inapplicable) exclusions written into the statute.Further, a broad, literal reading of the statute is consistent with cases in this Court such as, say, Sure-Tan, Inc. v. NLRB, supra (the Act covers undocumented aliens), where the Court wrote that the "breadth of 2(3)'s definition is striking: the Act squarely applies to `any employee.'" 467 U.S., at 891. See NLRB v. Hendricks County Rural Elec. Membership Corp., (certain "confidential employees" fall within the definition of "employees"); Phelps Dodge Corp. v. NLRB, 313 U.S., at 185-186 (job applicants are "employees"). Cf. Chemical Workers v. Pittsburgh Plate Glass Co., (retired persons are not "employees" because they do not "work for another for hire"). See also NLRB v. Hearst Publications, Inc., (independent contractor-like newsboys are "employees"); Packard Motor Car Co. v. NLRB, (company foremen are "employees"). But see 61 Stat. 137-138, 29 U.S.C. 152(3) (1988 ed.) (amending Act to overrule Hearst and Packard by explicitly excluding independent contractors and supervisory employees). [ NLRB v. TOWN & COUNTRY ELECTRIC, INC., ___ U.S. ___ (1995), 7] Finally, at least one other provision of the 1947 Labor Management Relations Act seems specifically to contemplate the possibility that a company's employee might also work for a union. This provision forbids an employer (say, the company) from making payments to a person employed by a union, but simultaneously exempts from that ban wages paid by the company to "any ... employee of a labor organization, who is also an employee" of the company. 29 U.S.C. 186(c)(1) (1988 ed., Supp. V) (emphasis added). If Town & Country is right, there would not seem to be many (or any) human beings to which this last phrase could apply.IITown & Country believes that it can overcome these general considerations, favoring a broad, literal interpretation of the Act, through an argument that rests primarily upon the common law of agency. It first argues that our prior decisions resort to common-law principles in defining the term "employee." See Nationwide Mut. Ins. Co. v. Darden, (using common-law test to distinguish between "employee" and "independent contractor" under Employee Retirement Income Security Act of 1974, 29 U.S.C. 1001 et seq.); Community for Creative Non-Violence v. Reid, (using common-law test to distinguish between "employee" and "independent contractor" under Copyright Act of 1976, 17 U.S.C. 101 et seq.); NLRB v. United Ins. Co. of America, (using common-law test to distinguish between "employee" and "independent contractor" under NLRA). And it also points out that the Board itself, in its decision, found "no bar to applying common law agency principles to the determination whether a paid union organizer is an `employee,'" Town & Country Elec., Inc., 309 N. L. R. B., at 1254. [ NLRB v. TOWN & COUNTRY ELECTRIC, INC., ___ U.S. ___ (1995), 8] Town & Country goes on to argue that application of common-law agency principles requires an interpretation of "employee" that excludes paid union organizers. It points to a section of the Restatement (Second) of Agency (dealing with respondeat superior liability for torts), which says:"Since ... the relation of master and servant is dependent upon the right of the master to control the conduct of the servant in the performance of the service, giving service to two masters at the same time normally involves a breach of duty by the servant to one or both of them ... . [A person] cannot be a servant of two masters in doing an act as to which an intent to serve one necessarily excludes an intent to serve the other." Restatement (Second) of Agency 226, Comment a, p. 499 (1957). It argues that, when the paid union organizer serves the union - at least at certain times in certain ways - the organizer is acting adversely to the company. Indeed, it says, the organizer may stand ready to desert the company upon request by the union, in which case, the union, not the company, would have "the right ... to control the conduct of the servant." Ibid. Thus, it concludes, the worker must be the servant (i.e., the "employee") of the union alone. See id., 1, and Comment a, p. 8 ("agent" is one who agrees to act "subject to [a principal's] control").As Town & Country correctly notes, in the context of reviewing lower courts' interpretations of statutory terms, we have said on several occasions that when Congress uses the term "employee" in a statute that does not define the term, courts interpreting the statute "`must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of th[at] ter[m] ... . In the past, when Congress has used the term "employee" without defining it, we have [ NLRB v. TOWN & COUNTRY ELECTRIC, INC., ___ U.S. ___ (1995), 9] concluded that Congress intended to describe the conventional master-servant relationship as understood by common-law agency doctrine.'" Nationwide Mutual Ins. Co. v. Darden, supra, at 322-323 (quoting Community for Creative Non-Violence v. Reid, supra, at 739-740). At the same time, when reviewing the Board's interpretation of the term "employee" as it is used in the NLRA, we have repeatedly said that "[s]ince the task of defining the term `employee' is one that `has been assigned primarily to the agency created by Congress to administer the Act,' ... the Board's construction of that term is entitled to considerable deference... ." Sure-Tan, Inc. v. NLRB, 467 U.S., at 891 (quoting NLRB v. Hearst Publications, Inc., 322 U.S., at 130); NLRB v. Hendricks County Rural Elec. Membership Corp., 454 U.S., at 177-190. In some cases, there may be a question about whether the Board's departure from the common law of agency with respect to particular questions and in a particular statutory context, renders its interpretation unreasonable. See NLRB v. United Ins. Co., supra, at 256 ("independent contractor" exclusion). But no such question is presented here since the Board's interpretation of the term "employee" is consistent with the common law.Town & Country's common-law argument fails, quite simply, because, in our view, the Board correctly found that it lacks sufficient support in common law. The Restatement's hornbook rule (to which the quoted commentary is appended) says that a"person may be the servant of two masters ... at one time as to one act, if the service to one does not involve abandonment of the service to the other." Restatement (Second) of Agency 226, at 498 (emphasis added). [ NLRB v. TOWN & COUNTRY ELECTRIC, INC., ___ U.S. ___ (1995), 10] The Board, in quoting this rule, concluded that service to the union for pay does not "involve abandonment of ... service" to the company. 309 N. L. R. B., at 1254.And, that conclusion seems correct. Common sense suggests that as a worker goes about his ordinary tasks during a working day, say, wiring sockets or laying cable, he or she is subject to the control of the company employer, whether or not the union also pays the worker. The company, the worker, the union, all would expect that to be so. And, that being so, that union and company interests or control might sometimes differ should make no difference. As Prof. Seavey pointed out many years ago, "[o]ne can be a servant of one person for some acts and the servant of another person for other acts, even when done at the same time," for example, where "a city detective, in search of clues, finds employment as a waiter and, while serving the meals, searches the customer's pockets." W. Seavey, Handbook of the Law of Agency 85, p. 146 (1964). The detective is the servant both "of the restaurateur" (as to the table waiting) and "of the city" (as to the pocket searching). Ibid. How does it differ from Prof. Seavey's example for the company to pay the worker for electrical work, and the union to pay him for organizing? Moreover, union organizers may limit their organizing to nonwork hours. See, e.g., Republic Aviation Corp. v. NLRB, supra; Beth Israel Hospital v. NLRB, . If so, union organizing, when done for pay but during nonwork hours, would seem equivalent to simple moonlighting, a practice wholly consistent with a company's control over its workers as to their assigned duties.Town & Country's "abandonment" argument is yet weaker insofar as the activity that constitutes an "abandonment," i.e., ordinary union organizing activity, is itself specifically protected by the Act. See, e.g., Beth Israel Hospital v. NLRB, supra, at 492-493 (employer restrictions on union solicitation during nonworking time [ NLRB v. TOWN & COUNTRY ELECTRIC, INC., ___ U.S. ___ (1995), 11] in nonworking areas are presumptively invalid under the Act). This is true even if a company perceives those protected activities as disloyal. After all, the employer has no legal right to require that, as part of his or her service to the company, a worker refrain from engaging in protected activity.Neither are we convinced by the practical considerations that Town & Country adds to its agency law argument. The company refers to a Union resolution permitting members to work for nonunion firms, which, the company says, reflects a union effort to "salt" nonunion companies with union members seeking to organize them. Supported by amici curiae, it argues that "salts" might try to harm the company, perhaps quitting when the company needs them, perhaps disparaging the company to others, perhaps even sabotaging the firm or its products. Therefore, the company concludes, Congress could not have meant paid union organizers to have been included as "employees" under the Act.This practical argument suffers from several serious problems. For one thing, nothing in this record suggests that such acts of disloyalty were present, in kind or degree, to the point where the company might lose control over the worker's normal workplace tasks. Certainly the Union's resolution contains nothing that suggests, requires, encourages, or condones impermissible or unlawful activity. App. 256-258. For another thing, the argument proves too much. If a paid union organizer might quit, leaving a company employer in the lurch, so too might an unpaid organizer, or a worker who has found a better job, or one whose family wants to move elsewhere. And if an overly zealous union organizer might hurt the company through unlawful acts, so might another unpaid zealot (who may know less about the law), or a dissatisfied worker (who may lack an outlet [ NLRB v. TOWN & COUNTRY ELECTRIC, INC., ___ U.S. ___ (1995), 12] for his grievances). This does not mean they are not "employees."Further, the law offers alternative remedies for Town & Country's concerns, short of excluding paid or unpaid union organizers from all protection under the Act. For example, a company disturbed by legal but undesirable activity, such as quitting without notice, can offer its employees fixed-term contracts, rather than hiring them "at will" as in the case before us; or it can negotiate with its workers for a notice period. A company faced with unlawful (or possibly unlawful) activity can discipline or dismiss the worker, file a complaint with the Board, or notify law enforcement authorities. See, e.g., NLRB v. Electrical Workers, ; Willmar Elec. Service v. NLRB, 968 F.2d, at 1330 (arsonist who is also union member is still an "employee," but may be discharged). See also Budd Mfg. Co. v. NLRB, 138 F.2d 86, 89-90 (CA3 1943) (worker who was intoxicated while on duty, "came to work when he chose and ... left the plant and his shift as he pleased," and utterly failed to perform his assigned duties, is still an "employee" protected under the Act), cert. denied, . And, of course, an employer may as a rule limit the access of nonemployee union organizers to company property. Lechmere, Inc. v. NLRB, ; NLRB v. Babcock & Wilcox Co., .This is not to say that the law treats paid union organizers like other company employees in every labor law context. For instance, the Board states that, at least sometimes, a paid organizer may not share a sufficient "community of interest" with other employees (as to wages, hours, and working conditions) to warrant inclusion in the same bargaining unit. Brief for National Labor Relations Board 33, n. 14. See, e.g., NLRB v. Hendricks County Rural Elec. Membership Corp., 454 U.S., at 190 (some confidential workers, although [ NLRB v. TOWN & COUNTRY ELECTRIC, INC., ___ U.S. ___ (1995), 13] "employees," may be excluded from bargaining unit). We need not decide this matter. Nor do we express any view about any of the other matters Town & Country raised before the Court of Appeals, such as whether or not Town & Country's conduct (in refusing to interview, or to retain, "employees" who were on the union's payroll) amounted to an unfair labor practice. See 34 F.3d, at 629. We hold only that the Board's construction of the word "employee" is lawful; that term does not exclude paid union organizers.IVFor these reasons 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. Page I

Appellants, two incorporated common carriers by motor vehicle and their stockholders, applied to the Interstate Commerce Commission under 5 (2) of the Interstate Commerce Act for approval of a merger of the two corporations. Acting under 5 (7), the Commission initiated an investigation into the possibility of a violation of 5 (4), and the two proceedings were consolidated. After hearings and further proceedings, the Commission found that informal de facto management and control of the two corporations in a common interest had been unlawfully effectuated in violation of 5 (4); it denied approval of the merger; ordered the violation terminated; and ordered one of the individual appellants to divest himself of his stock in one of the corporations. A suit by appellants to enjoin and set aside the Commission's orders was dismissed by the District Court, on the ground that the orders were reasonable and supported by substantial evidence. Held: The order denying approval of the merger is affirmed; but the judgment is reversed in part, and the case is remanded for further proceedings. Pp. 116-131. (a) On the record in this case, the Commission was justified in concluding that the two appellant common carriers by motor vehicle were in fact being managed and controlled in a common interest. Pp. 117-122. (b) Section 5 (4) is not limited to the proscription of holding companies and other corporate devices; it applies to the accomplishment or effectuation of control or management in a common interest of two or more carriers, "however such result is attained"; and the Commission's conclusion that the informal de facto relationships found to exist in this case resulted in control or management of the two corporations in a common interest which violated 5 (4) is sustained. Pp. 122-126. (c) The Commission did not act arbitrarily in denying approval of the proposed merger because of the violation of 5 (4), and its order denying such approval is affirmed. Pp. 127-129. (d) Since the record contains no evidence that the parties were heard on the issue of divestiture or that proper standards were applied in determining that it was the appropriate remedy for the violation of 5 (4) found to exist in this case, the judgment of the District Court is reversed in part, and the case is remanded for further proceedings. Pp. 129-131. 196 F. Supp. 351, affirmed in part and reversed in part.Loyd M. Starrett, by special leave of Court, pro hac vice, argued the cause for appellants. With him on the briefs was Henry E. Foley.Lionel Kestenbaum argued the cause for the United States et al. With him on the briefs were Solicitor General Cox, Assistant Attorney General Loevinger, Robert W. Ginnane and James Y. Piper.MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.This case concerns disapproval by the Interstate Commerce Commission of a proposed merger on the ground that "control and management in a common interest" over the two applicant-carriers had been unlawfully effectuated prior to the merger application in violation of 5 (4) of the Interstate Commerce Act, as amended, 54 Stat. 907, 49 U.S.C. 5 (4).1 The applicant-carriers are L. Nelson & Sons Transportation Co. and Gilbertville Trucking Co., both of whom are certificated by the Commission as common carrier motor carriers. The principal stockholders of Nelson Co. are two half brothers, Charles Chilberg and Clifford Nelson; Gilbertville Co. is wholly owned by a third brother, Kenneth Nelson.The merger application was filed October 6, 1955, by the two carriers and their stockholders pursuant to 5 (2) of the Act. Two and a half months later the Commission initiated an investigation into the possibility of a 5 (4) violation pursuant to authority granted by 5 (7) of the Act. The two proceedings were consolidated for hearing. The trial examiner determined that 5 (4) was being violated, but recommended that the merger be approved on the ground that the violation was neither intentional nor flagrant. Division 4 affirmed the finding of a violation, but disapproved the merger, and ordered the violation terminated. 75 M. C. C. 45. On reconsideration, the full Commission affirmed the Division, but further ordered that Kenneth Nelson divest himself of Gilbertville Co. 80 M. C. C. 257. A suit before a three-judge United States District Court for the District of Massachusetts to enjoin and set aside the Commission's orders was dismissed on the ground that the orders were reasonable and supported by substantial evidence. 196 F. Supp. 351. An appeal was taken to this Court contesting (1) the finding of a 5 (4) violation, (2) the denial of the merger, and (3) the order of divestiture. We noted probable jurisdiction. .The factual issue in this case turns upon the development of family, management, and operational relationships between Nelson, Gilbertville, and a third carrier, R. A. Byrnes, Inc., which is owned by the principal stockholders of Nelson.The Nelson transportation business was first organized in 1930 as a partnership. In 1947 it was incorporated as L. Nelson & Sons Transportation Co. and stock issued to Mrs. Nelson (formerly Mrs. Chilberg) and four of her seven children (including Kenneth Nelson, Clifford Nelson, and Charles Chilberg). Upon Mrs. Nelson's death in 1950, equal numbers of shares of her stock in Nelson Co. were devised to her seven children. In 1951, Kenneth Nelson sold his original shares received in 1947 to Charles Chilberg and Clifford Nelson, and agreed to sell to them the remainder to which he was entitled on distribution of the estate. The distribution and transfer were made on January 23, 1953. Since that date, Charles and Clifford have been the principal stockholders in Nelson Co. Charles is now president and treasurer; Clifford is secretary and assistant treasurer.Upon the sale of his stock in 1951, Kenneth Nelson resigned as an officer and director of Nelson Co. However, he kept his office at Nelson Co. headquarters in Ellington, Connecticut, and was retained by the company as a "free-lance tariff consultant." In such capacity he was paid approximately $15,000 in 1952 and $13,000 in 1953. While he claims to have been an independent contractor, his only client was Nelson Co. In the third week of January 1953, Kenneth Nelson wrote to Nelson Co.'s accountant, Mr. Sanol Solomon, requesting advice on the acquisition of Gilbertville Trucking Co. Soon thereafter Kenneth began negotiations with Gilbertville's owner, and on March 3, 1953, took over control. Since July 1953, all the stock in Gilbertville has been controlled by Kenneth.In April of 1954 Charles Chilberg and Clifford Nelson obtained temporary authority from the Commission to take over the operations of R. A. Byrnes, Inc.; their acquisition of Byrnes stock was approved in August 1956.The routes of these three carriers form a cohesive network along the eastern seaboard from Massachusetts to the District of Columbia. Gilbertville is presently certificated by the Commission as a common carrier for general commodities over regular and irregular routes between points in Massachusetts, Connecticut, Rhode Island, and New York City. Byrnes is certificated as a common carrier for general commodities over irregular routes between New York City, Philadelphia, the District of Columbia, and points adjacent to these cities. It is also certificated as a contract carrier of canned goods in Massachusetts, Connecticut, and Rhode Island. Nelson is certificated as a common carrier for textile commodities over irregular routes between points in Massachusetts, New Hampshire, Rhode Island, Connecticut, and areas adjacent to New York and Philadelphia. It is also certificated for general commodities in intrastate traffic in Connecticut and Massachusetts. Thus, the Gilbertville and Byrnes general-commodity routes complement each other perfectly and overlap to a considerable degree the textile routes of Nelson.Soon after his acquisition of Gilbertville, Kenneth Nelson instituted a number of permanent changes in the carrier's operations tending to integrate the terminal facilities of Nelson and Gilbertville; he received where necessary the cooperation of Nelson Co. Kenneth obtained permission from the Commission to move the business records and head offices of the acquired company from Gilbertville, Massachusetts, the place of incorporation, to Ellington, Connecticut, and took over the second floor of the Nelson Co. office building. Where possible Gilbertville used the Nelson terminals, subletting from Nelson in Ellington, Connecticut; New York City; Newton, Massachusetts; and Woonsocket, Rhode Island. Its only other terminal was at Gilbertville, Massachusetts. In seven cities, Gilbertville and Nelson were listed under the same telephone number, and they shared interterminal telephone lines. Almost identical changes took place in 1954 upon Commission approval of Charles Chilberg and Clifford Nelson's acquisition of Byrnes. Byrnes' offices were moved from Mullica Hill, New Jersey, to the Nelson Co. headquarters in Ellington, Connecticut; Byrnes shared the Nelson terminal in New York; it listed under the Nelson telephone number; it shared interterminal telephone lines. Since the Byrnes changes were the direct result of control and management in a common interest of Byrnes and Nelson in the hands of Charles and Clifford, it might be inferred that the Gilbertville changes were similarly indicative of control and management in a common interest of Nelson and Gilbertville.Further substantiation of this terminal integration is provided by a fourth corporation, Bergson Company, a real estate corporation formed to receive the residual properties of Mrs. Linnea Nelson's estate. Bergson owns the terminals leased to Nelson Co. at Philadelphia, Ellington, Woonsocket, and Newton, three of which are sublet to Gilbertville. Since Bergson is owned in equal shares by all seven children, all of whom are directors, it provides a direct corporate tie-in between Kenneth Nelson and his brothers.While it is not unusual for independent carriers to share terminal facilities, as indeed Gilbertville and Nelson do with unrelated carriers in New York and Woonsocket, the repetition of such practices throughout their respective systems makes their alleged independence suspect. When these practices are then supplemented by further day-to-day practices integrating business, equipment, and managerial policies, the Commission is justified in concluding the carriers are in fact being managed and controlled in a common interest. Such additional practices are readily found in the record of this case.Most significant is the equipment interdependence between Nelson and Gilbertville. When acquired for $35,000 in 1953, Gilbertville had a deficit about equal to the purchase price, assets of only $69,000, and a 1953 operating revenue of only $75,000. By 1956 Kenneth Nelson had increased the operating revenue to a seven month figure of $444,777. This impressive growth was made in the face of a continual short-term credit squeeze and lack of working capital and equipment. Nelson Co., however, was operating in a declining textile market in the Northeast with highly periodic demands for carriage. As a result, Nelson had a fluctuating overcapacity in equipment which was leased only to Gilbertville and occasionally Byrnes. Kenneth Nelson estimated that Gilbertville had from one to six tractor-trailer units on trip-lease from Nelson Co. every day and up to five other pieces of equipment on permanent lease, an amount equal at times to over one-half of Gilbertville's own carriage capacity. Added to this equipment interdependence between Nelson and Gilbertville were certain interlining practices.2 Gilbertville interlined between 25% and 30% of its business. Over one-third of this interline business was with Nelson Co. and Byrnes, the majority being in truckload quantities. Owing to its equipment shortage, Gilbertville interlined with Nelson pursuant to a practice whereby a trip-lease was made out at the start of a run to take effect at the point of transfer to Gilbertville routes so that the Nelson tractor-trailer operated throughout the trip; moreover, the same driver might stay with the unit, changing employers at the point of transfer.3 Finally, the record includes evidence that on four occasions Commission employees discovered on highway spot checks that one of the carriers carried small shipments belonging to the other; that Nelson did about one-quarter of the Gilbertville repairs; and that Charles Chilberg and Kenneth Nelson each exercised managerial control over employees of both Nelson and Gilbertville.4 This evidence is sufficient to show that Nelson and Gilbertville were in fact being controlled and managed in a common interest to a considerable degree. If 5 (4) was intended by Congress to reach such de facto relationships, the Commission was warranted in concluding the section was being violated.I.Section 5 (4) is part of a comprehensive legislative scheme designed to place ownership, management, and operational control over common carriers within the regulatory jurisdiction of the Commission. Simply, 5 (2) (a) gives the Commission power to authorize and approve the joint operation of properties belonging to two or more common carriers or the merger of such carriers; 5 (4) then declares, "It shall be unlawful for any person, except as provided in paragraph (2), to enter into any transaction within the scope of subparagraph (a) thereof, or to accomplish or effectuate, or to participate in accomplishing or effectuating, the control or management in a common interest of any two or more carriers, however such result is attained, whether directly or indirectly, by use of common directors, officers, or stockholders, a holding or investment company or companies, a voting trust or trusts, or in any other manner whatsoever... . As used in this paragraph ... the words `control or management' shall be construed to include the power to exercise control or management." The complementary character of these two sections was discussed at some length in United States v. Marshall Transport Co., . As originally enacted in the Emergency Railroad Transportation Act of 1933, 48 Stat. 217, 5 (4) was applicable only to railroads; it was extended to cover motor carriers in the Transportation Act of 1940, 54 Stat. 905, 907-908. As the appellants correctly state, Congress, in passing 5 (4) and the supplementary 5 (5) and (6),5 was primarily concerned with reaching the elaborate corporate devices used to centralize control over the railroads "without commission supervision and in defiance of the will of Congress."6 Although Congress had intended the Transportation Act of 1920 to provide complete supervision, the Act proved inadequate to reach the holding company system.7 On the basis of this history, the appellants argue that 5 (4) is limited to proscription of corporate devices and will not reach the informal relationships shown on this record.Such a narrow interpretation of the statute, however, confuses the particular manifestation of the problem with which Congress was faced in 1933 with the ultimate congressional intention of effectuating the Commission's jurisdiction under 5 (2). On its face, 5 (4) proscribes not just corporate and legal devices, but control effectuated "in any other manner whatsoever." Any doubt as to the scope of this phrase was removed when Congress added the definition of "control" to 1 (3) (b) of the Act in the Transportation Act of 1940, 54 Stat. 899-900. This section states that for purposes of 5 and other sections, "control" "shall be construed to include actual as well as legal control, whether maintained or exercised through or by reason of the method of or circumstances surrounding organization or operation ... ." We have construed this language to encompass every type of control in fact and have left to the agency charged with enforcement the determination from the facts whether "control" exists, subject to normal standards of review. Marshall Transport Co., supra, p. 38; Alleghany Corp. v. Breswick & Co., ; Rochester Telephone Corp. v. United States, . In this manner, the Commission may adapt 5 (4) to the actualities and current practices of the industry involved and apply it to the extent it feels necessary to protect its jurisdiction under 5 (2) without having to return to Congress for additional authority every time industry practices change.A cursory glance at Commission experience shows the type of informal practices in the motor carrier industry which the Commission has decided are covered by 5 (4) and must first be approved under 5 (2). Typical of these practices have been attempts by active carriers to effectively lease the routes of a dormant carrier by interlining and trip-leasing their equipment continuously over the dormant carrier's routes, e. g., Nigro Freight Lines, Inc. - Purchase - Coady Trucking Co., 90 M. C. C. 113; attempts by carriers to acquire other carriers by supplying funds to allegedly independent third-party purchasers, e. g., Black - Investigation of Control - Colony Motor Transportation, 75 M. C. C. 275; Coldway Food Express, Inc. - Control and Merger - Foodway Express, Inc., 87 M. C. C. 123; attempts by inactive owners to allow an employee of another carrier to manage and merge operations of the two carriers, e. g., Gate City Transport Co. - Control - Square Deal Cartage Co., 87 M. C. C. 591. In the present case, the trial examiner held that the facts in this record "require a finding" of control and management in a common interest in violation of 5 (4). Division 4, after a similar review of the facts, concurred. On reconsideration, the full Commission affirmed the finding and conclusion of the examiner and Division 4. Judicial review of this conclusion is limited to consideration of whether it has a rational basis and is supported by substantial evidence. United States v. Pierce Auto Lines, Inc., ; Mississippi Barge Line Co. v. United States, .8 After our review of the facts and statutory sections involved, we detect no reason to disturb this finding.9 II.However, even admitting a 5 (4) violation, the appellants protest as arbitrary the denial of their application for approval of the proposed merger of Nelson and Gilbertville. Section 5 (2) provides that a transaction within its scope is to be approved if found to be "consistent with the public interest." The statute entrusts the Commission with the duty to decide what considerations other than those specifically mentioned in 5 (2) (c) shall be given weight. Cf. McLean Trucking Co. v. United States, ; Schwabacher v. United States, . As in the case of an original application for a certificate, the Commission has chosen to give weight to an applicant's fitness. E. g., Transamerican Freight Lines, Inc. - Control and Merger - The Cumberland Motor Express Corp., 75 M. C. C. 423, 428; cf. Interstate Commerce Act, 207, 49 Stat. 551, 49 U.S.C. 307. Integral to a determination of fitness is the applicant's willingness and ability to fulfill its obligations to the Commission, considerations which may be demonstrated in part by past or continuing violations of Commission regulations. E. g., Powell - Purchase - Rampy, 57 M. C. C. 597. This has not been contested by the appellants, and its relevance to a finding of consistency with the public interest is self-evident. Nor do they dispute the principle recently stated by the Commission in Central of Georgia R. Co. Control, 307 I. C. C. 39, 43, that a 5 (4) violation may alone bar approval of a merger unless, "upon consideration of all the facts, it clearly appears that the public interest will be served best by such approval." Rather, they contend that in this case the Commission refused to consider all the facts presented and, in effect, made a 5 (4) violation an automatic bar to approval of a subsequent merger. To support this allegation, the appellants point to the undisputed findings of the trial examiner that the violation in this case was neither willful, flagrant, nor the result of persistent disregard for regulation. They compare these findings with past Commission holdings that violations will be overlooked in the absence of willfulness, e. g., Gate City Transport Co. - Control - Square Deal Cartage Co., supra, and conclude that the rule applied in the present case must have been automatic.However, even an automatic rule is not necessarily arbitrary. As already noted, 5 (4) is integral to the success of the regulatory scheme. To approve a merger in the face of a 5 (4) violation may encourage others whose merger may or may not be consistent with the public interest to either present the Commission with a fait accompli or avoid its jurisdiction altogether. As the Commission pointed out in Central of Georgia, if such practices were encouraged, "our administration of the statute in the public interest would be seriously hindered, if not defeated." 307 I. C. C., at 44. This additional interest in the proper administration of the statute places upon the applicant a heavier burden than may be the case for other regulatory violations, and mere lack of willfulness or alleged innocence need not suffice.In fact, the Commission's rule is not automatic and will give way to a clear showing of public interest in approval. However, the appellants cannot attack the Commission's order under even this less stringent rule since they made no clear showing of a public interest in approval such as a public need for the merged service or for larger consolidated carriers. The order denying the merger is therefore affirmed.III.The Commission's final order requires Kenneth Nelson to divest himself of his stock in Gilbertville Co. in order to terminate the 5 (4) violation. No other reference to divestiture can be found. In view of his recommendation that the merger be approved, the trial examiner made no findings or recommendations on a remedy for the violation. Division 4, upon denial of the merger, simply ordered that each of the applicants is hereby "required to terminate the violation." On reconsideration, the full Commission reinstated Division 4's order, but added, without explanation in its report, the order to divest. The District Court attempted to provide the rationale by suggesting that divestiture was so perfectly suited to the nature of the violation, an unlawful acquisition, that no explanation was necessary.There is little question that divestiture is within the scope of the Commission's power since, with respect to a 5 (4) violation, it may order any party to "take such action as may be necessary, in the opinion of the Commission, to prevent continuance of such violation." 5 (7). Where the unlawful control is the result of an acquisition, divestiture may be the only effective remedy. However, as 5 (7) itself implies, the Commission's power is corrective, not punitive. The justification for the remedy is the removal of the violation.The use of equitable powers to expunge a statutory violation has been fully developed in the context of the antitrust laws and is, in many respects, applicable to 5 (7). The "most drastic, but most effective" of these remedies is divestiture. And "[i]f the Court concludes that other measures will not be effective to redress a violation, and that complete divestiture is a necessary element of effective relief, the Government cannot be denied the latter remedy because economic hardship, however severe, may result." United States v. E. I. du Pont de Nemours & Co., . Our duty is to give "complete and efficacious effect to the prohibitions of the statute" with as little injury as possible to the interests of private parties or the general public. United States v. American Tobacco Co., . As these cases indicate, the choice of remedy is as important a decision as the initial construction of the statute and finding of a violation. The court or agency charged with this choice has a heavy responsibility to tailor the remedy to the particular facts of each case so as to best effectuate the remedial objectives just described. Cf. Hecht Co. v. Bowles, .As 5 (7) expressly states, the Commission is charged with choosing the proper remedy in this case. Judicial review is accordingly limited. "It extends no further than to ascertain whether the Commission made an allowable judgment in its choice of the remedy." Jacob Siegel Co. v. Federal Trade Comm'n, . But prerequisite to such review is evidence that a judgment was in fact made, that the parties were heard on the issue, that the proper standards were applied. We find no such evidence in this record. Rather we are faced with evidence that the statutory violation occurred not just from Kenneth Nelson's act of acquiring Gilbertville, but from the acquisition plus subsequent practices integrating the management and operations of Nelson and Gilbertville, practices that could conceivably be discontinued without divestiture. In addition the trial examiner found that the violation was not willful and that the parties' experience in this proceeding would make them more responsive to regulation in the future.By referring to these mitigating considerations, we have no intention of prejudging the Commission or implying that divestiture would be unwarranted after proper treatment of the issue. These considerations merely indicate that a doubt can be raised and that a remand to the Commission is not purely academic for the sake of procedural regularity. When the Commission has exercised its judgment and issued its considered opinion, the propriety of the remedy chosen will be ripe for review. Jacob Siegel Co. v. Federal Trade Comm'n, supra; Administrative Procedure Act. 8 (b), 60 Stat. 242, 5 U.S.C. 1007 (b).The judgment of the District Court is reversed in part and the case remanded for further proceedings in conformity with this opinion. It is so ordered.

Petitioner railroad brought this suit (after formal procedures of the Railway Labor Act had been exhausted) to enjoin a threatened strike by respondent Union, charging that the Union had failed to perform its obligations under 2 First of the Railway Labor Act "to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions." The Union answered that the Norris-LaGuardia Act deprived the District Court of jurisdiction to enjoin the strike and that in any event the complaint failed to state a claim on which relief could be granted. The District Court, declining to pass on whether either party had violated 2 First, concluded that the matter was one for administrative determination by the National Mediation Board and was not justiciable, and that 4 and 7 of the Norris-LaGuardia Act deprived the court of jurisdiction to enjoin the threatened strike. The Court of Appeals affirmed, construing 2 First as hortatory and not enforceable by the courts but only by the National Mediation Board. Held: 1. Sec. 2 First was intended to be, not just a mere exhortation, but an enforceable legal obligation on carriers and employees alike. Pp. 574-578. 2. The obligation imposed by 2 First, which is central to the effective working of the Railway Labor Act, is enforceable in the courts rather than by the Mediation Board, as is clear from the Act's legislative history. Pp. 578-581. 3. Sec. 4 of the Norris-LaGuardia Act does not prohibit the use of a strike injunction where that remedy is the only practical, effective means of enforcing the duty imposed by 2 First. Pp. 581-584. 422 F.2d 979, reversed and remanded.HARLAN, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, MARSHALL, and BLACKMUN, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which BLACK, DOUGLAS, and WHITE, JJ., joined, post, p. 584.William H. Dempsey, Jr., argued the cause for petitioner. With him on the briefs were David Booth Beers and Richard M. Freeman.John H. Haley, Jr., argued the cause for respondent. With him on the brief was John J. Naughton.J. Albert Woll, Laurence Gold, and Thomas E. Harris filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging affirmance.MR. JUSTICE HARLAN delivered the opinion of the Court.The Chicago and North Western Railway Co., petitioner in this action, brought suit in the United States District Court for the Northern District of Illinois to enjoin a threatened strike by the respondent, the United Transportation Union. The substance of the complaint was that in the negotiations between the parties over work rules, the Union had failed to perform its obligation under 2 First of the Railway Labor Act, as amended, 44 Stat. 577, 45 U.S.C. 152 First, "to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions."1 Jurisdiction was said to rest on 28 U.S.C. 1331 and 1337. The Union in its answer contended that 4, 7, and 8 of the Norris-LaGuardia Act, 47 Stat. 70, 71, 72, 29 U.S.C. 104, 107, 108,2 deprived the District Court of jurisdiction to issue a strike injunction and that in any event the complaint failed to state a claim upon which relief could be granted.3 The District Judge, having heard evidence and argument, declined to pass on whether either party had violated 2 First. In an unreported opinion, he concluded that the question was a matter for administrative determination by the National Mediation Board and was nonjusticiable; he further ruled that 4 and 7 of the Norris-LaGuardia Act deprived the court of jurisdiction to issue an injunction against the Union's threatened strike. The Court of Appeals for the Seventh Circuit affirmed, 422 F.2d 979, construing 2 First as a statement of the purpose and policy of the subsequent provisions of the Act, and not as a specific requirement anticipating judicial enforcement. Rather, in that court's view, the enforcement of 2 First was solely a matter for the National Mediation Board. Id., at 985-988. We granted certiorari to consider this important question under the Railway Labor Act, on which the lower courts had expressed divergent views.4 For reasons that follow we reverse.IFor at least the past decade, the Nation's railroads and the respondent Union or its predecessors have been engaged in an off-and-on struggle over the number of brakemen to be employed on each train. We find it unnecessary to describe this history in any great detail, either generally or with particular reference to petitioner. Accounts at earlier stages may be found in Brotherhood of Locomotive Engineers v. Baltimore & Ohio R. Co., ; Brotherhood of Locomotive Firemen & Enginemen v. Chicago, Burlington & Quincy R. Co., 225 F. Supp. 11, 14-17 (DC), aff'dApp. D.C. 100, 331 F.2d 1020 (1964); Brotherhood of Railroad Trainmen v. Akron & Barberton Belt R. Co.App. D.C. 59, 66-70, 385 F.2d 581, 588-592 (1967); Brotherhood of Railroad Trainmen v. Atlantic Coast Line R. Co.App. D.C. 298, 383 F.2d 225 (1967); and see the opinion of the court below, 422 F.2d, at 980-982, and n. 4. For present purposes it is sufficient to observe that the parties have exhausted the formal procedures of the Railway Labor Act: notices, conferences, unsuccessful mediation, refusal by the Union to accept the National Mediation Board's proffer of arbitration, termination of mediation, and expiration of the 30-day cooling-off period of 5 First, 45 U.S.C. 155 First. The Railroad's charge that the Union had violated 2 First was based principally on its contention that the Union had consistently refused to handle the dispute on a nationwide basis while maintaining an adamant determination that no agreement should be reached with the Chicago & North Western more favorable to the carrier than agreements which the Union had already reached with other railroads. The complaint also alleged that the Union had refused to bargain on the proposals in the Railroad's counternotices.The narrow questions presented to us are whether 2 First imposes a legal obligation on carriers and employees or is a mere exhortation; whether the obligation is enforceable by the judiciary; and whether the Norris-LaGuardia Act strips the federal courts of jurisdiction to enforce the obligation by a strike injunction. The parties have not requested us to decide whether the allegations of the complaint or the evidence presented at the hearing was sufficient to show a violation of 2 First, and the lower courts, by their resolution of the threshold questions, did not reach the issue. Accordingly, we intimate no view on this matter.IIThis Court has previously observed that "[t]he heart of the Railway Labor Act is the duty, imposed by 2 First upon management and labor, `to exert every reasonable effort to make and maintain agreements concerning rates of pay, rules, and working conditions, and to settle all disputes ... in order to avoid any interruption to commerce or to the operation of any carrier growing out of any dispute between the carrier and the employees thereof.'" Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., . It is not surprising that such is the case. As one leading commentator has said, in connection with the duty under the National Labor Relations Act to bargain in good faith, "[i]t was not enough for the law to compel the parties to meet and treat without passing judgment upon the quality of the negotiations. The bargaining status of a union can be destroyed by going through the motions of negotiating almost as easily as by bluntly withholding recognition." Cox, The Duty to Bargain in Good Faith, 71 Harv. L. Rev. 1401, 1412-1413 (1958). We recognized this to be true when we said in NLRB v. Insurance Agents' International, , that "the duty of management to bargain in good faith is essentially a corollary of its duty to recognize the union."Virginian R. Co. v. System Federation No. 40, , furnishes an early illustration of this principle in connection with the duty to "exert every reasonable effort" under the Railway Labor Act. In that case, the railroad refused to recognize a union certified by the National Mediation Board as the duly authorized representative of its shop workers, and instead sought to coerce these employees to join a company union. The employees sought and obtained an injunction requiring the railroad to perform its duty under 2 Ninth to "treat with" their certified representative; the injunction also compelled the railroad "to exert every reasonable effort" to make and maintain agreements with the union. This Court affirmed that decree, explicitly rejecting the argument that the duty to exert every reasonable effort was only a moral obligation. This conclusion has been repeatedly referred to without criticism in subsequent decisions.5 The conclusion that 2 First is more than merely hortatory finds support in the legislative history of the Railway Labor Act as well. As this Court has often noted, the Railway Labor Act of 1926 was, and was acknowledged to be, an agreement worked out between management and labor, and ratified by the Congress and the President.6 Accordingly, the statements of the spokesmen for the two parties made in the hearings on the proposed Act are entitled to great weight in the construction of the Act.7 In the House hearings, Donald R. Richberg, counsel for the organized railway employees supporting the bill, was unequivocal on whether 2 First imposed a legal obligation on the parties. He stated, "it is [the parties'] duty to exert every reasonable effort ... to settle all disputes, whether arising out of the abrogation of agreements or otherwise, in order to avoid any interruption to commerce. In other words, the legal obligation is imposed, and as I have previously stated, and I want to emphasize it, I believe that the deliberate violation of that legal obligation could be prevented by court compulsion."8 Mr. Richberg went on to describe why the bill had been drafted in general language applicable equally to both parties, rather than in terms of specific requirements or prohibitions accompanied by explicit sanctions: "We believe, and this law has been written upon the theory, that in the development of the obligations in industrial relations and the law in regard thereto, there is more danger in attempting to write specific provisions and penalties into the law than there is in writing the general duties and obligations into the law and letting the enforcement of those duties and obligations develop through the courts in the way in which the common law has developed in England and America."9 Accordingly, we think it plain that 2 First was intended to be more than a mere statement of policy or exhortation to the parties; rather, it was designed to be a legal obligation, enforceable by whatever appropriate means might be developed on a case-by-case basis.The Court of Appeals, in seemingly coming to the contrary conclusion, relied on this Court's decision in General Committee of Adjustment v. Missouri-Kansas-Texas R. Co., . In that case, the Court held that jurisdictional disputes between unions were not justiciable, but were left by the Act either to resolution by the National Mediation Board under 2 Ninth or to the economic muscle of the parties. Reliance had been placed on 2 Second, which requires that all disputes should be considered and if possible decided in conference of the authorized representatives of the parties. The Court held that this reliance was misplaced: "Nor does 2, Second make justiciable what otherwise is not... . 2, Second, like 2, First, merely states the policy which those other provisions buttress with more particularized commands." Id., at 334 (footnote omitted). In light of the place of 2 First in the scheme of the Railway Labor Act, the legislative history of that section, and the decisions interpreting it, the passing reference to it in the M-K-T case cannot bear the weight which the Court of Appeals sought to place upon it.IIIGiven that 2 First imposes a legal obligation on the parties, the question remains whether it is an obligation enforceable by the judiciary. We have often been confronted with similar questions in connection with other duties under the Railway Labor Act.10 Our cases reveal that where the statutory language and legislative history are unclear, the propriety of judicial enforcement turns on the importance of the duty in the scheme of the Act, the capacity of the courts to enforce it effectively, and the necessity for judicial enforcement if the right of the aggrieved party is not to prove illusory.We have already observed that the obligation under 2 First is central to the effective working of the Railway Labor Act. The strictest compliance with the formal procedures of the Act is meaningless if one party goes through the motions with "a desire not to reach an agreement." NLRB v. Reed & Prince Mfg. Co., 205 F.2d 131, 134 (CA1 1953). While cases in which the union is the party with this attitude are perhaps rare, they are not unknown. See Chicago Typographical Union No. 16, 86 N. L. R. B. 1041 (1949), enforced sub nom. American Newspaper Publishers Assn. v. NLRB, 193 F.2d 782 (CA7 1951), aff'd as to another issue, (1953). We think that at least to this extent the duty to exert every reasonable effort is of the essence.11 The capacity of the courts to enforce this duty was considered and affirmed in the Virginian case. Mr. Justice Stone, speaking for the Court, noted that "whether action taken or omitted is in good faith or reasonable, are everyday subjects of inquiry by courts in framing and enforcing their decrees." 300 U.S., at 550. Section 8 of the Norris-LaGuardia Act explicitly requires district courts to determine whether plaintiffs have "failed to make every reasonable effort" to settle the dispute out of which the request for the injunction grows.12 We have no reason to believe that the district courts are less capable of making the inquiry in the one situation than in the other.Finally, we must consider the Court of Appeals' position that the question whether a party had exerted every reasonable effort was committed by the Railway Labor Act to the National Mediation Board rather than to the courts. We believe that the legislative history of the Railway Labor Act rather plainly disproves this contention. It is commonplace that the 1926 Railway Labor Act was enacted because of dissatisfaction with the 1920 Transportation Act, and particularly with the performance of the Railroad Labor Board. While there were many causes of this dissatisfaction, one of the most prominent was that because of its adjudicatory functions, the Board effectively lost any influence in attempting to settle disputes. Throughout the hearings on the bill which became the 1926 Act there are repeated expressions of concern that the National Mediation Board should retain no adjudicatory function, so that it might maintain the confidence of both parties.13 And as the Court noted in Switchmen's Union v. National Mediation Board, , when Congress in 1934 gave the Board power to resolve certain jurisdictional disputes, it authorized the Board to appoint a committee of neutrals to decide the dispute "so that the Board's `own usefulness of settling disputes that might arise thereafter might not be impaired.' S. Rep. No. 1065, 73d Cong., 2d Sess., p. 3." Only last Term we referred to the fact that "the Mediation Board has no adjudicatory authority with regard to major disputes." Detroit & T. S. L. R. Co. v. United Transportation Union, . In light of these considerations, we think the conclusion inescapable that Congress intended the enforcement of 2 First to be overseen by appropriate judicial means rather than by the Mediation Board's retaining jurisdiction over the dispute or prematurely releasing the parties for resort to self-help if it feels such action called for.14 IVWe turn finally to the question whether 4 of the Norris-LaGuardia Act15 prohibits the use of a strike injunction in all cases of violation of 2 First. The fundamental principles in this area were epitomized in International Association of Machinists v. Street, :"The Norris-LaGuardia Act, 47 Stat. 70, 29 U.S.C. 101-115, expresses a basic policy against the injunction of activities of labor unions. We have held that the Act does not deprive the federal courts of jurisdiction to enjoin compliance with various mandates of the Railway Labor Act. Virginian R. Co. v. System Federation, ; Graham v. Brotherhood of Locomotive Firemen & Enginemen, . However, the policy of the Act suggests that the courts should hesitate to fix upon the injunctive remedy for breaches of duty owing under the labor laws unless that remedy alone can effectively guard the plaintiff's right." Similar statements may be found in many of our opinions.16 We consider that these statements properly accommodate the conflicting policies of our labor laws, and we adhere to them. We find it quite impossible to say that no set of circumstances could arise where a strike injunction is the only practical, effective means of enforcing the command of 2 First. Accordingly, our prior decisions lead us to hold that the Norris-LaGuardia Act did not forbid the District Court from even considering whether this is such a case.17 If we have misinterpreted the congressional purpose, Congress can remedy the situation by speaking more clearly. In the meantime we have no choice but to trace out as best we may the uncertain line of appropriate accommodation of two statutes with purposes that lead in opposing directions.18 We recognize, of course, that our holding that strike injunctions may issue when such a remedy is the only practical, effective means of enforcing the duty to exert every reasonable effort to make and maintain agreements falls far short of that definiteness and clarity which businessmen and labor leaders undoubtedly desire. It creates a not insignificant danger that parties will structure their negotiating positions and tactics with an eye on the courts, rather than restricting their attention to the business at hand. Moreover, the party seeking to maintain the status quo may be less willing to compromise during the determinate processes of the Railway Labor Act if he believes that there is a chance of indefinitely postponing the other party's resort to self-help after those procedures have been exhausted. See Brotherhood of Railroad Trainmen v. Jacksonville Terminal Co., 394 U.S., at 380-381; cf. Hearings, supra, n. 8, at 17, 50, 100 (Mr. Richberg); id., at 190 (Mr. Robertson). Finally, the vagueness of the obligation under 2 First could provide a cover for freewheeling judicial interference in labor relations of the sort that called forth the Norris-LaGuardia Act in the first place.19 These weighty considerations indeed counsel restraint in the issuance of strike injunctions based on violations of 2 First. See n. 11, supra. Nevertheless, the result reached today is unavoidable if we are to give effect to all our labor laws - enacted as they were by Congresses of differing political makeup and differing views on labor relations - rather than restrict our examination to those pieces of legislation which are in accord with our personal views of sound labor policy. See Boys Markets v. Retail Clerks Local 770, .VAs we noted at the outset, we have not been requested to rule on whether the record shows a violation of 2 First in circumstances justifying a strike injunction, and we do not do so. Such a question should be examined by this Court, if at all, only after the facts have been marshaled and the issues clarified through the decisions of lower courts.In view of the uncertainty heretofore existing on what constituted a violation of 2 First and what showing was necessary to make out a case for a strike injunction, we believe the appropriate course is to remand the case to the Court of Appeals with instructions to return the case to the District Court for the taking of such further evidence as the parties may deem necessary and that court may find helpful in passing on the issues which the case presents in light of our opinion today. Reversed and remanded.

Under the Employee Retirement Income Security Act of 1974 (ERISA), the Pension Benefit Guaranty Corporation (PBGC) guarantees certain nonforfeitable benefits provided by qualified defined benefit pension plans. When an employer voluntarily terminates a single-employer defined benefit plan, all accrued benefits automatically vest, notwithstanding the plan's particular vesting provisions. Plan assets are then distributed to participants in accordance with a six-category allocation scheme set forth in 4044(a), which requires that plan administrators first distribute nonforfeitable benefits guaranteed by the PBGC, 4044 (a)(1-4); then "all other nonforfeitable benefits under the plan," 4044 (a)(5); and finally "all other benefits under the plan." 4044(a)(6). Any remaining funds may be recouped by the employer. 4044(d)(1)(A). Respondents, five employees of the Lynchburg Foundry Company (Foundry), formerly a wholly owned subsidiary of petitioner Mead Corp. (Mead), were covered by the Mead Industrial Salaried Retirement Plan (Plan), a single-employer defined benefit plan funded entirely by the employer. Plan benefits included normal retirement benefits payable at age 65, early retirement benefits payable at age 55 but reduced for each year by which retirement preceded normal retirement age, and unreduced early retirement benefits available to participants who had 30 or more years of service and elected to retire after age 62. When Mead sold Foundry and terminated the Plan, it paid unreduced early retirement benefits only to those who had met both the age and years of service requirements for such benefits. Respondents - all under age 62 - received pay equal to the present value of the normal retirement benefit to which they would have been entitled had they retired at age 65, a sum less than the present value of unreduced early retirement payments. After distribution, Mead recouped nearly $11 million in plan assets. Respondents filed a suit in Virginia state court, which was later removed to the Federal District Court, alleging, inter alia, that the failure to pay the present value of the unreduced early retirement benefits violated ERISA. The District Court granted Mead summary judgment, concluding that since early retirement benefits are not "accrued benefits" under ERISA, respondents were not entitled to any additional sums under the Plan, and that the remaining fund assets could revert to Mead. The Court of Appeals reversed, holding that before plan assets may revert to an employer, 4044(a)(6) requires payments of early retirement benefits to plan participants even if those benefits were not accrued at the time of termination.Held: 1. Upon termination of a defined benefit plan, 4044(a) does not require a plan administrator to pay plan participants unreduced early retirement benefits provided under the plan before residual assets may revert to an employer. Section 4044(a)(6) does not create benefit entitlements but simply provides for the orderly distribution of plan assets required by ERISA's provisions. Pp. 721-725. (a) Neither 4044(a)'s plain language nor its legislative history in any way indicates an intent to confer a right upon plan participants to recover benefits not provided for elsewhere. Contrary to respondents' argument - that contingent unreduced early retirement benefits, even if unaccrued, are benefits "under the plan" under category 6 and must be distributed before an employer can recoup residual assets - the "under the plan" language refers only to allocation of benefits provided by the terms of the terminated plan. That 4044(a) is a distribution mechanism is also illustrated by ERISA's structure, since it is inconceivable that Title IV - which simply provides for insurance for benefits generated elsewhere - was designed to modify the carefully crafted provisions of Title I, which determine the employee's right to benefits. The PBGC, whose views are accepted in light of ERISA's language and legislative history, as well as the IRS and the Labor Department, agrees that category 6 is limited to benefits created elsewhere. Pp. 721-724. (b) Respondents are also mistaken in their alternative statutory argument that because all accrued benefits vest upon plan termination, they are nonforfeitable benefits falling within category 5, and, thus, category 6 would serve no purpose if it did not cover forfeitable benefits such as those at issue. The PBGC has consistently maintained that, for the purposes of 4044(a) allocation, the characterization of benefits as forfeitable or nonforfeitable depends upon their status before plan termination. Respondents' contrary interpretation cannot be squared with the plain meaning of the statute, since including both forfeitable and nonforfeitable benefits in category 5 would contravene the clear directive of the allocation scheme to give priority to nonforfeitable benefits. Pp. 724-725. 2. On remand for a determination whether respondents are entitled to damages based on either of their two alternative grounds for concluding that ERISA requires payment of unreduced early retirement benefits before surplus assets revert to the employer - that unreduced early retirement benefits may qualify as "accrued benefits" under ERISA, and that such benefits may be "liabilities" within the meaning of 4044(d)(1)(A) - the Court of Appeals should consider the views of the PBGC and the IRS. Pp. 725-726. 815 F.2d 989, reversed and remanded.MARSHALL, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and BRENNAN, WHITE, BLACKMUN, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 727.Patrick F. McCartan argued the cause for petitioner. With him on the briefs were Charles J. Faruki, Richard H. Sayler, Judith Boyers Gee, Keith Edward Hope, Leon E. Irish, and Glen D. Nager.Clifford L. Harrision argued the cause for respondents. With him on the brief were Daniel D. Hamrick, James C. Turk, Jr., R. Louis Harrison, Jr., Robert T. Wandrei, and Edwin C. Stone.* [Footnote *] Briefs of amici curiae urging reversal were filed for the Pension Benefit Guaranty Corporation by Gary M. Fard and Carol Connor Flowe; for the American Academy of Actuaries by Gary D. Simms; for the American Paper Institute, Inc., by Mark E. Brossman; for the American Society of Pension Actuaries by Chester J. Salkind; for the Chamber of Commerce of the United States by Robin S. Conrad; and for the National Employee Benefits Institute by Daniel B. Stone. Briefs of amici curiae urging affirmance were filed for the American Association of Retired Persons by Christopher G. Mackaronis and Robert L. Liebross; and for the American Federation of Labor and Congress of Industrial Organizations by George B. Driesen and Laurence Gold.JUSTICE MARSHALL delivered the opinion of the Court.Today we decide whether, upon termination of a defined benefit plan, 4044(a) of the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 1025, as amended, 29 U.S.C. 1344(a) (1982 ed. and Supp. V), requires a plan administrator to pay plan participants unreduced early retirement benefits provided under the plan before residual assets may revert to an employer. IACongress enacted ERISA in 1974 in part to prevent plan terminations from depriving employees and their beneficiaries of anticipated benefits. 29 U.S.C. 1001(a). Titles I and II provide requirements for plan participation, benefit accrual and vesting, and plan funding. Title III contains general administrative provisions. Title IV covers the termination of private pension plans, establishes a system of insurance for benefits provided by such plans, and creates a "body corporate" within the Department of Labor, the Pension Benefit Guaranty Corporation (PBGC), to administer that system. 1302. The PBGC guarantees certain nonforfeitable benefits provided by qualified defined benefit pension plans. 1322.1 A defined benefit plan is one which sets forth a fixed level of benefits. See 1002(35). Contributions to a defined benefit plan are calculated on the basis of a number of actuarial assumptions about such things as employee turnover, mortality rates, compensation increases, and the rate of return on invested plan assets. See Stein, Raiders of the Corporate Pension Plan: The Reversion of Excess Plan Assets to the Employer, 5 Am. J. Tax Policy 117, 121-122, and n. 19 (1986).When an employer voluntarily terminates a single-employer defined benefit plan, all accrued benefits automatically vest, notwithstanding the plan's particular vesting provisions. 26 U.S.C. 411(d)(3). Title IV of ERISA requires that plan assets be distributed to participants in accordance with the six-tier allocation scheme set forth in 4044(a), 29 U.S.C. 1344(a). Section 4044(a) provides that plan administrators first distribute nonforfeitable benefits guaranteed by the PBGC, 29 U.S.C. 1344(a)(1)-(4) (1982 ed. and Supp. V);2 then "all other nonforfeitable benefits under the plan," 1344(a)(5); and finally "all other benefits under the plan," 1344(a)(6).3 If the plan assets are not sufficient to cover the benefits in categories 1-4, the PBGC will make up the difference. 1361. The employer must then reimburse the PBGC for the unfunded benefit liabilities. 1362. If funds remain after "all liabilities of the plan to participants and their beneficiaries have been satisfied," they may be recouped by the employer. 1344(d)(1)(A). Similarly, the Internal Revenue Code (Code) conditions favorable tax treatment of the plan on satisfaction of "all liabilities with respect to employees and their beneficiaries under the [plan]" before plan assets may be diverted to others. 26 U.S.C. 401(a)(2).BRespondents B. E. Tilley, William L. Crotts, Chrisley H. Reed, J. C. Weddle, and William D. Goode were employees of the Lynchburg Foundry Company (Foundry), formerly a wholly owned subsidiary of petitioner Mead Corporation (Mead).4 The five were covered by the Mead Industrial Products Salaried Retirement Plan (Plan). The Plan was funded entirely by Mead's contributions.As a single-employer defined benefit plan, the Plan set forth a fixed level of benefits for employees. Plan participants who completed 10 years of service attained a vested right to accrued benefits, that is, those benefits earned under the Plan. App. 30 (Plan, Art. I, 13). These benefits included normal retirement benefits, payable at age 65 and calculated with reference to a participant's earnings and years of service. Id., at 37-41 (Plan, Arts. IV, 1(b), V). At age 55, participants were eligible for early retirement benefits, calculated in the same manner as normal retirement benefits, but reduced by five percent for each year by which a participant's retirement preceded the normal retirement age. Id., at 37, 38-39 (Plan, Arts. IV, 2, V, 2(a)). A subsidized or unreduced early retirement benefit, i. e., a benefit equal to that payable at age 65, was available to participants who had 30 or more years of service and elected to retire after age 62. Id., at 39 (Plan, Art. V, 2(b)). The Plan did not provide for any benefits payable solely upon plan termination.In 1983, Mead sold Foundry and terminated the Plan.5 Mead paid unreduced early retirement benefits only to those employees who had met both the age and years of service requirements. At the time Mead terminated the Plan, four respondents had over 30 years of credited service and a fifth had 28. None had reached age 62. Thus, each respondent received payment equal to the present value, determined as of the date of distribution, of the normal retirement benefit to which he would have been entitled had he retired at age 65.6 Had Mead paid the present value of the unreduced early retirement benefits, each respondent would have received on average $9,000 more. App. to Brief for Respondents 1. After Mead finished distributing plan assets to plan participants, nearly $11 million remained in the Plan's fund. Mead recouped this money pursuant to Article XIII, 4(f), of the Plan. App. 63.7 In 1984, respondents filed suit in the Circuit Court of the city of Radford, Virginia, alleging, inter alia, that the failure to pay the present value of the unreduced early retirement benefits violated ERISA, 29 U.S.C. 1103(c), 1104(a)(1)(A), 1106(b), and 1344. Mead removed the case to the United States District Court for the Western District of Virginia. The District Court granted summary judgment in favor of Mead, concluding that "[t]he Plan's language, the legislative history, and the case law in the fourth circuit ... clearly demonstrate that early retirement benefits are not `accrued benefits' under ERISA." Civ. Action No. 84-0751 (WD Va., Apr. 18, 1986). It therefore held that respondents were not entitled to additional sums under the Plan and that the assets remaining in the fund could revert to Mead pursuant to 29 U.S.C. 1344(d)(1) and Article XIII, 4(f), of the Plan.The Court of Appeals for the Fourth Circuit reversed. 815 F.2d 989 (1987). Adopting the reasoning of the Court of Appeals for the Second Circuit in Amato v. Western Union Int'l, Inc., 773 F.2d 1402 (1985), cert. dism'd, , the court concluded that before plan assets may revert to an employer, 4044(a)(6) requires payment of early retirement benefits to plan participants "even if those benefits were not accrued at the time of termination." 815 F.2d, at 991. That conclusion, the court stated, was dictated by the language of the statute, its legislative history, and agency interpretation. Id., at 992. Finally, the court provided a formula for determining respondents' damages and specified that the money should be paid in a lump sum.Because the question decided by the Court of Appeals for the Fourth Circuit is an important one over which the Courts of Appeals have differed,8 we granted certiorari. . We now reverse.IIRespondents concede that, at the time the Plan was terminated, they had not satisfied both the age and service requirements for unreduced early retirement benefits. Nevertheless, they claim that they are entitled to such benefits because, in their view, contingent early retirement benefits, even if unaccrued, are "benefits under the plan" under category 6, 4044(a)(6), and therefore must be distributed before the employer can recoup any residual plan assets. Brief for Respondents 4.We note preliminarily that the PBGC has flatly rejected respondents' argument. In the PBGC's view, 4044(a) "does not create additional benefit entitlements. It merely provides for the orderly distribution of benefits already earned under the terms of a defined benefit plan or otherwise required at termination by other provisions of ERISA." Brief for PBGC as Amicus Curiae 9. The PBGC consistently has expressed this view in Opinion Letters addressing proposed plan terminations. See, e. g., PBGC Opinion Letters Nos. 87-11 (Oct. 22, 1987); 86-5 (Mar. 6, 1986); 86-1 (Jan. 15, 1986). The Department of Labor and the IRS, the other agencies responsible for administering ERISA, agree that category 6 is limited to benefits created elsewhere. See PBGC, IRS, and Labor Department Guidelines on Asset Reversions, 11 BPR 724 (1984).When we interpret a statute construed by the administering agency, we ask first "whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; ... [but] if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency's answer is based on a permissible construction of the statute." Chevron U.S. A. Inc. v. Natural Resources Defense Council, ; see also INS v. Cardoza-Fonseca, . Thus, we turn first to the language of the statute. See, e. g., Blum v. Stenson, ; Consumer Product Safety Comm'n v. GTE Sylvania, Inc., ; Nachman Corp. v. Pension Benefit Guaranty Corporation, . Section 4044(a) in no way indicates an intent to confer a right upon plan participants to recover unaccrued benefits. On the contrary, the language of 4044(a)(6) - "benefits under the plan" - can refer only to the allocation of benefits provided by the terms of the terminated plan. The limited function of 4044(a) as an allocation mechanism is made clear by its introductory language, which reads: "In the case of the termination of a single-employer plan, the plan administrator shall allocate the assets of the plan (available to provide benefits) among the participants and beneficiaries of the plan in the following order." Finally, any possible ambiguity is resolved against respondents by the title of 4044(a) - "[a]llocation of assets." FTC v. Mandel Bros., Inc., .That 4044(a) is a distribution mechanism and not a source for new entitlements also is illustrated by the structure of the statute. Title I of ERISA sets forth elaborate provisions to determine an employee's right to benefits. Those provisions describe in detail the accrual of benefits and the vesting of accrued benefits after service of a fixed number of years. Title IV, which contains 4044(a), simply provides for insurance for benefits created elsewhere. It is inconceivable that this section was designed to modify the carefully crafted provisions of Title I.To counter the plain language and clear structure of the statute, respondents rely heavily on legislative history. They contend that Congress' failure to include in category 6 the word "accrued," which appeared in a House version of the statute but did not survive the Conference Committee amendments, evinces an intent to require the provision of unaccrued as well as accrued benefits. We disagree. We do not attach decisive significance to the unexplained disappearance of one word from an unenacted bill because "mute intermediate legislative maneuvers" are not reliable indicators of congressional intent. Trailmobile Co. v. Whirls, ; see also Drummond Coal Co. v. Watt, 735 F.2d 469, 474 (CA11 1984). There is simply nothing in the legislative history suggesting that Congress intended 4044(a) to be a source of benefit entitlements rather than an allocation scheme. Neither the House nor the Senate bill provided for allocation of assets on plan termination to benefits that were not created elsewhere.9 Because the Conference Committee discussed fully the areas where ERISA altered prior law or where the final version of the statute differed from the predecessor bills,10 it is reasonable to assume that had the Conference Committee intended to make 4044(a) a source of benefit entitlements, it would have discussed the change in the Conference Report.Respondents offer an alternative statutory argument. They suggest that because all accrued benefits vest upon plan termination pursuant to 26 U.S.C. 411(d)(3), they are nonforfeitable benefits which fall within category 5 of the allocation scheme. Thus, they argue, if category 6 did not cover forfeitable benefits such as the contingent early retirement benefits at issue here, it would serve no purpose.Respondents are mistaken. The PBGC has consistently maintained that, for purposes of its guarantee and of asset allocation under 4044(a), the characterization of benefits as forfeitable or nonforfeitable depends upon their status before plan termination. See 29 CFR 2613.6(b) and 2618.2 (1987) ("[B]enefits that become nonforfeitable solely as a result of the termination of a plan [are] considered forfeitable"). Soon after the enactment of ERISA, the PBGC stated that "priority category 6 will contain the value of accrued forfeitable benefits of a participant." 40 Fed. Reg. 51370 (1975). Thus, according to the PBGC, category 6 provides for the allocation of benefits that are forfeitable before plan termination as well as benefits provided under the plan for payment solely upon plan termination. See 29 CFR 2618.16 (1987). Respondents have failed to persuade us that the PBGC's views are unreasonable. On the contrary, it is respondents' interpretation which cannot be squared with the statute. For if category 5 included benefits that were forfeitable before plan termination as well as those that were nonforfeitable, there would be no guarantee that nonforfeitable benefits would be paid before forfeitable benefits in cases where plan assets are insufficient to cover both. This result would contravene the clear directive of the allocation scheme to give priority to nonforfeitable benefits.IIIWe hold that 4044(a)(6) does not create benefit entitlements but simply provides for the orderly distribution of plan assets required by the terms of a defined benefit plan or other provisions of ERISA. Because the Court of Appeals relied exclusively on 4044(a)(6) as the grounds for respondents' entitlement to unreduced retirement benefits upon plan termination, we reverse that judgment. Respondents, however, offer two alternative grounds for concluding that ERISA requires payment of unreduced early retirement benefits before surplus assets revert to the employer: first, unreduced early retirement benefits may qualify as "accrued benefits" under ERISA; and, second, unreduced early retirement benefits may be "liabilities" within the meaning of 4044(d)(1)(A), 29 U.S.C. 1344(d)(1)(A). Because the Court of Appeals concluded that 4044(a)(6) was a source of entitlement for unaccrued benefits, it did not reach these questions. We therefore remand for a determination whether respondents are entitled to damages on the basis of either of these alternative theories. In deciding these issues, the Court of Appeals should consider the views of the PBGC and the IRS. For a court to attempt to answer these questions without the views of the agencies responsible for enforcing ERISA, would be to "embar[k] upon a voyage without a compass." Ford Motor Credit Co. v. Milhollin, .11 Because 4044(a)(6) is solely an allocation provision, 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.

While petitioner's application to renew its franchise to operate taxicabs in respondent city of Los Angeles was pending, petitioner's drivers went on strike. The City Council then conditioned renewal of the franchise on settlement of the labor dispute by a certain date. When the dispute was not settled by that date, the franchise expired. Petitioner filed suit in Federal District Court, alleging, inter alia, that the city's action was pre-empted by the National Labor Relations Act (NLRA). The District Court granted summary judgment for the city, and the Court of Appeals affirmed.Held: The city's action in conditioning petitioner's franchise renewal on the settlement of the labor dispute is pre-empted by the NLRA. Pp. 613-620. (a) The NLRA pre-emption principle precluding state and municipal regulation concerning conduct that Congress intended to be unregulated, Machinists v. Wisconsin Employment Relations Comm'n, , is applicable here. Under this principle, States and municipalities are prohibited from imposing restrictions on economic weapons of self-help, unless such restrictions were contemplated by Congress. Pp. 613-615. (b) Both the language of the NLRA and its legislative history demonstrate that the city's action contravened congressional intent. Pp. 615-619. (c) The settlement condition imposed by the City Council destroyed the balance of power designed by Congress in the NLRA, and frustrated Congress' decision to leave open the use of economic weapons. Pp. 619-620. 754 F.2d 830, reversed and remanded.BLACKMUN, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, WHITE, MARSHALL, POWELL, STEVENS, and O'CONNOR, JJ., joined. REHNQUIST, J., filed a dissenting opinion, post, p. 620.Zachary D. Fasman argued the cause for petitioner. With him on the briefs was Clifton S. Elgarten. John F. Haggerty argued the cause and filed a brief for respondent.* [Footnote *] Peter G. Nash, Dixie L. Atwater, and Stephen A. Bokat filed a brief for the Chamber of Commerce of the United States as amicus curiae urging reversal.Briefs of amici curiae urging affirmance were filed for the National League of Cities et al. by Rex E. Lee, Benjamin W. Heineman, Jr., Carter G. Phillips, Benna Ruth Solomon, and Joyce Holmes Benjamin; and for the National Institute of Municipal Law Officers by George Agnost, Roy D. Bates, Benjamin L. Brown, J. Lamar Shelley, John W. Witt, and Roger F. Cutler.Briefs of amici curiae were filed for the National Labor Relations Board by Acting Solicitor General Fried, Deputy Solicitor General Wallace, Bruce N. Kuhlik, Norton J. Come, Linda Sher, and Robert C. Bell, Jr.; and for the American Federation of Labor and Congress of Industrial Organizations by David Silberman and Laurence Gold.JUSTICE BLACKMUN delivered the opinion of the Court.The city of Los Angeles, Cal., refused to renew Golden State Transit Corporation's taxicab franchise after the company's drivers went on strike. We are asked to decide whether, under Machinists v. Wisconsin Employment Relations Comm'n, , the city's action is pre-empted by the National Labor Relations Act (NLRA), 29 U.S.C. 151 et seq.IIn 1980, Golden State, which operated taxicabs under the Yellow Cab name, applied to the city for a renewal of its operating franchise eventually scheduled to lapse on March 31, 1981. That franchise had first been acquired in 1977. On September 4, 1980, the city's Board of Transportation Commissioners recommended the renewal of Golden State's franchise - the largest, with approximately 400 cabs, of companies operating in Los Angeles - along with the franchises of 12 other taxi companies.In October, while the franchise renewal application was pending, Golden State's labor contract with its drivers expired. The company and the drivers, represented by Local 572 of the International Brotherhood of Teamsters, signed a short-term contract in order that operations would continue while negotiation and mediation proceeded. This interim contract was to expire at midnight February 10, 1981, the day before the City Council was scheduled to consider action on the franchise renewals.On February 2, the Council's Transportation and Traffic Committee endorsed franchise renewals recommended by the Board of Transportation Commissioners. The Committee's report stated that Golden State and other companies were "in compliance with all terms and conditions of their franchise[s]." App. 39.On February 11, the drivers struck Golden State, halting its operations. At the Council meeting that day, Teamster representatives argued against renewal of Golden State's franchise because of the pendency of the labor dispute. The Council postponed decision on Golden State's application until February 17, but, with possibly one exception, approved all other franchise renewal applications. At the February 17 meeting, when the union again opposed the renewal, the Council voted to extend Golden State's franchise from March 31 to April 30, but only if the Council expressly found, on or before March 27, that the extension was in the best interests of the city.At its March 23 meeting, the Council held a short public hearing on whether it should grant the limited extension. By this time, the labor dispute and the franchise renewal issue had become clearly intertwined. The Teamsters opposed any extension of the Yellow Cab franchise, stating that such action would simply lengthen the strike and keep the drivers out of work. It preferred to see the franchise terminated, and to have the drivers seek jobs from Golden State's successor or from other franchise holders. As other spoke, the discussion turned to whether there was even a need for Yellow Cab, in light of the services performed by the other 12 franchised taxi companies. There were comments regarding an excess of cabs; the city's policy at the time, however, was not to limit the number of taxi companies or the number of taxis in each fleet. Id., at 81-82.The strike was central to the discussion. One Council member charged Golden State with negotiating unreasonably, id., at 71, while another accused the company of trying to "brea[k] the back of the union." Id., at 66. The sympathies of the Council members who spoke lay with the union. But rather than defeat the renewal outright, the council reached a consensus for rejection of the extension with a possibility for reopening the issue if the parties settled their labor dispute before the franchise expired the following week. Four Council members endorsed this approach, and the Assistant City Attorney said that he clearly had informed the parties that this was the city's position. Id., at 68. The Council President said: "I find that it will be very difficult to get this ordinance past (sic) to extend this franchise if the labor dispute is not settled by the end of this week." Id., at 75. He added: "I just think that this kind of information should be put out in the open, so everybody understands it." Ibid. The Council, by a vote of 11 to 1, defeated the motion to extend the franchise and it expired by its terms on March 31.IIGolden State filed this action in the United States District Court for the Central District of California, alleging that the city's action was pre-empted by the NLRA and violated the company's rights to due process and equal protection. It sought declaratory and injunctive relief and damages. The District Court found that it was "undisputed that the sole basis for refusing to extend [Golden State's] franchise was its labor dispute with its Teamster drivers," 520 F. Supp. 191, 193 (1981); that the Council had "threaten[ed] to allow Yellow Cab's franchise to terminate unless it entered into a collective bargaining agreement with the Teamsters," id., at 194; and that the Council had denied the company an essential weapon of economic strength - the ability to wait out a strike. On the basis of the pre-emption claim, the District Court granted Golden State's motion for a preliminary injunction to preserve the franchise. Ibid. The Court of Appeals for the Ninth Circuit found "ample evidence" in the record to support the District Court's finding, but nevertheless vacated the injunction. 686 F.2d 758, 759, 762 (1982). The court reasoned that Golden State had little chance of prevailing on its pre-emption claim or on the other grounds it asserted. This Court denied Golden State's petition for certiorari. .Following litigation on unrelated issues,1 and with the company having abandoned its equal protection claim, the District Court granted summary judgment for the city. App. to Pet. for Cert. 11a. Golden State had not moved for summary judgment in its favor. The Court of Appeals affirmed, holding that the city's action was not pre-empted. 754 F.2d 830 (1985). The court felt that, when the activity regulated is only a peripheral or incidental concern of labor policy, traditional municipal regulation is not pre-empted. The court found nothing in the record to suggest that the city's nonrenewal decision "was not concerned with transportation." Id., at 833. Moreover, to avoid undue restriction of local regulation, "only actions seeking to directly alter the substantive outcome of a labor dispute should be pre-empted." Here, the city had not attempted to dictate the terms of the agreement, but had "merely insisted upon resolution of the dispute as a condition to franchise renewal." Ibid. The Court of Appeals also rejected Golden State's due process claim. Id., at 833-834.2 Because of our concern about the propriety of the grant of summary judgment for the city in this factual and labor context, we granted certiorari. .3 IIIALast Term, in Metropolitan Life Ins. Co. v. Massachusetts, , we again noted: "The Court has articulated two distinct NLRA pre-emption principles." Id., at 748. See also Belknap, Inc. v. Hale, . The first, the so-called Garmon pre-emption, see San Diego Building Trades Council v. Garmon, , prohibits States from regulating "activity that the NLRA protects, prohibits, or arguably protects or prohibits." Wisconsin Dept. of Industry v. Gould Inc., ante, at 286. The Garmon rule is intended to preclude state interference with the National Labor Relations Board's interpretation and active enforcement of the "integrated scheme of regulation" established by the NLRA. Ante, at 289. See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S., at 748, and n. 26.This case, however, concerns the second pre-emption principle, the so-called Machinists pre-emption.4 See Machinists v. Wisconsin Employment Relations Comm'n, . This precludes state and municipal regulation "concerning conduct that Congress intended to be unregulated." Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S., at 749.5 Although the labor-management relationship is structured by the NLRA, certain areas intentionally have been left "`to be controlled by the free play of economic forces.'" Machinists, 427 U.S., at 140, quoting NLRB v. Nash-Finch Co., . The Court recognized in Machinists that "`Congress has been rather specific when it has come to outlaw particular economic weapons,'" 427 U.S., at 143, quoting NLRB v. Insurance Agents, , and that Congress' decision to prohibit certain forms of economic pressure while leaving others unregulated represents an intentional balance "`between the uncontrolled power of management and labor to further their respective interests.'" Machinists, 427 U.S., at 146, quoting Teamsters v. Morton, . States are therefore prohibited from imposing additional restrictions on economic weapons of self-help, such as strikes or lockouts, see 427 U.S., at 147, unless such restrictions presumably were contemplated by Congress. "Whether self-help economic activities are employed by employer or union, the crucial inquiry regarding pre-emption is the same: whether `the exercise of plenary state authority to curtail or entirely prohibit self-help would frustrate effective implementation of the Act's processes.'" Id., at 147-148, quoting Railroad Trainmen v. Jacksonville Terminal Co., .BThere is no question that the Teamsters and Golden State employed permissible economic tactics. The drivers were entitled to strike - and to time the strike to coincide with the Council's decision - in an attempt to apply pressure on Golden State. See NLRB v. Insurance Agents, 361 U.S., at 491, 496. And Golden State was entirely justified in using its economic power to withstand the strike in an attempt to obtain bargaining concessions from the union. See Belknap, Inc. v. Hale, 463 U.S., at 493, 500 (employer has power to hire replacements during an economic strike); American Ship Building Co. v. NLRB, (at bargaining impasse employer may use lockout solely to bring economic pressure on union).The parties' resort to economic pressure was a legitimate part of their collective-bargaining process. Machinists, 427 U.S., at 144. But the bargaining process was thwarted when the city in effect imposed a positive durational limit on the exercise of economic self-help. The District Court found that the Council had conditioned the franchise on a settlement of the labor dispute by March 31. We agree with the Court of Appeals that this finding is amply supported by the record.6 The city's insistence on a settlement is pre-empted if the city "`[entered] into the substantive aspects of the bargaining process to an extent Congress has not countenanced.'" Machinists, 427 U.S., at 149, quoting NLRB v. Insurance Agents, 361 U.S., at 498.That such a condition - by a city or the National Labor Relations Board - contravenes congressional intent is demonstrated by the language of the NLRA and its legislative history. The NLRA requires an employer and a union to bargain in good faith, but it does not require them to reach agreement. 8(d), as amended, 29 U.S.C. 158(d) (duty to bargain in good faith "does not compel either party to agree to a proposal or require the making of a concession"); NLRB v. Jones & Laughlin Steel Corp., ("The theory of the Act is that free opportunity for negotiation ... may bring about the adjustments and agreements which the Act in itself does not attempt to compel").The Act leaves the bargaining process largely to the parties. See H. K. Porter Co. v. NLRB, . It does not purport to set any time limits on negotiations or economic struggle. Instead, the Act provides a framework for the negotiations; it "is concerned primarily with establishing an equitable process for determining terms and conditions of employment." Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S., at 753. See also 1, as amended, of the NLRA, 29 U.S.C. 151 (Act achieves national policy "by encouraging the practice and procedure of collective bargaining").The legislative history, too, makes clear that the Act and the National Labor Relations Board were intended to facilitate bargaining between the parties. The Senate Report states: "Disputes about wages, hours of work, and other working conditions should continue to be resolved by the play of competitive forces ... . This bill in no respect regulates or even provides for supervision of wages or hours, nor does it establish any form of compulsory arbitration." S. Rep. No. 573, 74th Cong., 1st Sess., 2 (1935). Senator Wagner, sponsor of the NLRA, said that the Board would not usurp the role of free collective action. See 79 Cong. Rec. 6184 (1935). See also id., at 7574 (Sen. Wagner affirming that the Act encourages "voluntary settlement of industrial disputes").Protecting the free use of economic weapons during the course of negotiations was the rationale for this Court's findings of pre-emption in Machinists and in its predecessor, Teamsters v. Morton, . In some areas of labor relations that the NLRA left unregulated, we have concluded that Congress contemplated state regulation. See Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S., at 754-758; New York Tel. Co. v. New York Labor Dept., (plurality opinion); id., at 547 and 549 (opinions concurring in result and concurring in judgment). Los Angeles, however, has pointed to no evidence of such congressional intent with respect to the conduct at issue in this case.7 Instead, the city argues that it is somehow immune from labor pre-emption solely because of the nature of its conduct.8 The city contends it was not regulating labor, but simply exercising a traditional municipal function in issuing taxicab franchises. We recently rejected a similar argument to the effect that a State's spending decisions are not subject to pre-emption. See Wisconsin Dept. of Industry v. Gould Inc., ante, at 287-288. Cf. Metropolitan Life Ins. Co. v. Massachusetts, 471 U.S., at 754-758. Similarly, in the transportation area, a State may not ensure uninterrupted service to the public by prohibiting a strike by the unionized employees of a privately owned local transit company. See Bus Employees v. Missouri, ; cf. Bus Employees v. Wisconsin Employment Relations Board, . Nor in this case may a city restrict a transportation employer's ability to resist a strike. Although in each Bus Employees case the employees' right to strike was protected by 7, as amended, of the NLRA, 29 U.S.C. 157, "`[r]esort to economic weapons should more peaceful measures not avail' is the right of the employer as well as the employee," and "the State may not prohibit the use of such weapons ... any more than in the case of employees." Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S., at 147, quoting American Ship Building Co. v. NLRB, 380 U.S., at 317. "[F]ederal law intended to leave the employer and the union free to use their economic weapons against one another." Belknap, Inc. v. Hale, 463 U.S., at 500. We hold, therefore, that the city was pre-empted from conditioning Golden State's franchise renewal on the settlement of the labor dispute. The city, however, contends that it was in a no-win situation: having not renewed the franchise and thus permitting it to lapse, it stands accused of favoring the union; had it granted the renewal, it would have been accused of favoring the employer. But the question is not whether the city's action favors one side or the other. Our holding does not require a city to renew or to refuse to renew any particular franchise. We hold only that a city cannot condition a franchise renewal in a way that intrudes into the collective-bargaining process.C"Free collective bargaining is the cornerstone of the structure of labor-management relations carefully designed by Congress when it enacted the NLRA." New York Tel. Co. v. New York Labor Dept., 440 U.S., at 551 (POWELL, J., dissenting). Even though agreement is sometimes impossible, government may not step in and become a party to the negotiations. See H. K. Porter Co. v. NLRB, 397 U.S., at 103-104. A local government, as well as the National Labor Relations Board, lacks the authority to "`introduce some standard of properly "balanced" bargaining power' ... or to define `what economic sanctions might be permitted negotiating parties in an "ideal" or "balanced" state of collective bargaining.'" Machinists v. Wisconsin Employment Relations Comm'n, 427 U.S., at 149-150, quoting NLRB v. Insurance Agents, . The settlement condition imposed by the Los Angeles City Council, as we read the summary-judgment record before us, destroyed the balance of power designed by Congress, and frustrated Congress' decision to leave open the use of economic weapons. In this case, the District Court and the Court of Appeals found that the city had conditioned the renewal of Golden State's franchise on the company's reaching a labor agreement with the Teamsters, but held that the city's action was not pre-empted by Machinists. This was error as a matter of law. Whether summary judgment should have been entered for Golden State is a matter we do not decide, for petitioner made no motion for summary judgment on the issue of pre-emption.The Court of Appeals' judgment affirming the summary judgment entered for the city is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Mr.David W. Louisell, of Washington, D.C., for petitioner. Mr. Edmund E. Shepherd, of Detroit, Mich., for respondent. PER CURIAM. In conformity with Michigan procedure, petitioner moved for leave to file a delayed motion for new trial in the court in which he had been convicted of first degree murder. Serious impairment of his constitutional rights at the arraignment and trial were asserted as grounds for the motion. The trial court denied the motion, and the Supreme Court of Michigan on appeal affirmed that ruling. 313 Mich. 548, 21 N.E.2d 849. We granted certiorari because of the importance of the constitutional issues presented. . The facts are not in dispute. On May 16, 1932, an information was filed in the Circuit Court of Lenawee County, Michigan, charging petitioner, then seventeen years of age, and one Virgil Scott with the crime of murder. On the same day, petitioner was arraigned, tried, convicted of first degree murder and sentenced to life imprisonment. The record indicates that petitioner was without legal assistance throughout all these proceedings and was never advised of his right to counsel. The court did not explain the consequences of the plea of guilty, and the record indicates considerable confusion in petitioner's mind at the time of the arraignment as to the effect of such a plea. No. evidence in petitioner's behalf was introduced at the trial and none of the State's witnesses were subjected to cross examination. After reviewing the foregoing facts, the Supreme Court of Michigan determined that the record revealed no deprivation of petitioner's constitutional rights. The court indicated that it had given consideration to the case of Hawk v. Olson, 1945, and the authorities cited therein, but concluded that the rule of the Michigan cases was determinative. See People v. Williams, 1923, 225 Mich. 133, 195 N.W. 818. In this there was error. Here a seventeen year old defendant confronted by a serious and complicated criminal charge, was hurried through unfamiliar legal proceedings without a word being said in his defense. At no time was assistance of counsel offered or mentioned to him, nor was he apprised of the consequences of his plea. Under the holdings of this Court, petitioner was deprived of rights essential to a fair hearing under the Federal Constitution. Amend. 14. Powell v. State of Alabama, 1932, A.L.R. 527; Williams v. Kaiser, 1945, ; Tompkins v. State of Missouri, ; White v. Ragen, 1945, , 65 S. Ct. 978; Hawk v. Olson, supra. See Betts v. Brady, 1942, Reversed.

Petitioners, claiming individually and on behalf of a certain class of real estate purchasers and sellers, instituted this private antitrust action in Federal District Court against respondents, certain real estate firms and trade associations and a class consisting of real estate brokers who had transacted realty brokerage business in the Greater New Orleans area during the four years preceding the filing of the complaint. Petitioners alleged, inter alia, that respondents had engaged in a price-fixing conspiracy in violation of 1 of the Sherman Act through an agreement to conform to a fixed rate of brokerage commissions on sales of residential property. The complaint also included allegations that respondents' activities were "within the flow of interstate commerce and have an effect upon that commerce," and that respondents assisted their clients in securing financing and title insurance which came from sources outside the State. Respondents moved to dismiss the complaint for failure to state a claim under the Sherman Act, contending that their activities were purely local in nature and did not substantially affect interstate commerce. The District Court granted the motion to dismiss the complaint, holding that under Goldfarb v. Virginia State Bar, , there must be a substantial volume of interstate commerce involved in the overall real estate transaction and the challenged activity must be an essential, integral part of the transaction, inseparable from its interstate aspects; and that here a broker's participation in the presumably interstate aspects of securing title insurance and financing was only incidental rather than indispensable. The Court of Appeals affirmed, holding that under Goldfarb v. Virginia State Bar, supra, Sherman Act jurisdiction did not exist because petitioners had failed to demonstrate that real estate brokers are either necessary or integral participants in the interstate aspects of residential real estate financing and title insurance.Held: The complaint should not have been dismissed at this stage of the proceedings. Pp. 241-247. (a) To establish jurisdiction under the Sherman Act, a plaintiff must allege the relationship between the activity involved and some aspect of interstate commerce and, if these allegations are controverted, must submit evidence to demonstrate either that the defendants' activity is itself in interstate commerce or, if it is local in nature, that it has an effect on some other appreciable activity demonstrably in interstate commerce. Here, petitioners may establish the jurisdictional element of a Sherman Act violation by demonstrating a substantial effect on interstate commerce generated by respondents' brokerage activity, and petitioners need not make the more particularized showing of an effect on interstate commerce caused by the alleged conspiracy to fix commission rates, or by those other aspects of respondents' activity that are alleged to be unlawful. Pp. 241-243. (b) The courts below misinterpreted Goldfarb v. Virginia State Bar, supra, as requiring that petitioners demonstrate that real estate brokers are either necessary or integral participants in the interstate aspects of residential real estate financing and title insurance. The Goldfarb holding was not addressed to the "effect on commerce" test of jurisdiction and in no way restricted it to those challenged activities that have an integral relationship to an activity in interstate commerce. Pp. 243-245. (c) Here, what was submitted to the District Court shows a sufficient basis for satisfying the Act's jurisdictional requirements under the "effect on commerce" theory so as to entitle petitioners to go forward. The record makes it clear that there is a basis for petitioners to proceed to trial where there will be opportunity to establish that an appreciable amount of commerce is involved in the financing of residential property in the Greater New Orleans area and in the insuring of titles to such property, that this appreciable commercial activity has occurred in interstate commerce, and that respondents' activities which allegedly have been infected by a price-fixing conspiracy have, as a matter of practical economics, a not insubstantial effect on the interstate commerce involved. Pp. 245-247. 583 F.2d 1315, vacated and remanded.BURGER, C. J., delivered the opinion of the Court, in which all other Members joined, except MARSHALL, J., who took no part in the consideration or decision of the case.Richard G. Vinet argued the cause for petitioners. With him on the brief was John P. Nelson, Jr.Harry McCall, Jr., argued the cause for respondents. With him on the brief for respondents Real Estate Board of New Orleans et al. were Arthur L. Ballin, Frank C. Dudenhefer, Edward F. Wegmann, Harry S. Redmon, Jr., Rutledge Clement, Jr., Charles F. Barbera, Moise S. Steeg, Jr., and William D. North. Edward F. Schiff, Paul B. Hewitt, and Moise W. Dennery filed a brief for respondent Latter & Blum, Inc.Deputy Solicitor General Easterbrook argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General McCree, Assistant Attorney General Shenefield, John J. Powers III, and Margaret G. Halpern.* [Footnote *] William D. North and Valentine A. Weber, Jr., filed a brief for the National Association of Realtors as amicus curiae urging affirmance.Ellen Broadman and Alan Mark Silbergeld filed a brief for Consumers Union of United States, Inc., as amicus curiae.MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.The question in this case is whether the Sherman Act extends to an agreement among real estate brokers in a market area to conform to a fixed rate of brokerage commissions on sales of residential property.IThe complaint in this private antitrust action, filed in the Eastern District of Louisiana in 1975, alleges that real estate brokers in the Greater New Orleans area have engaged in a price-fixing conspiracy in violation of 1 of the Sherman Act, ch. 647, 26 Stat. 209, as amended, 15 U.S.C. 1. No trial has as yet been had on the merits of the claims since the complaint was dismissed for failure to establish the interstate commerce component of Sherman Act jurisdiction.The complaint asserts a claim individually and on behalf of that class of persons who employed the services of a respondent real estate broker in the purchase or sale of residential property in the Louisiana parishes of Jefferson or Orleans (the Greater New Orleans area) during the four years preceding the filing of the complaint. The respondents are two real estate trade associations, six named real estate firms, and that class of real estate brokers who at some time during the period covered by the complaint transacted realty brokerage business in the Greater New Orleans area and charged a brokerage fee for their services. The unlawful conduct alleged is a continuing combination and conspiracy among the respondents to fix, control, raise, and stabilize prices for the purchase and sale of residential real estate by the systematic use of fixed commission rates, widespread fee splitting, suppression of market information useful to buyers and sellers, and other allegedly anticompetitive practices. The complaint asserts that respondents' conduct has injured petitioners in their business or property because the fees and commissions charged for brokerage services have been maintained at an artificially high and noncompetitive level, with the effect that the prices of residential properties have been artificially raised. The complaint seeks treble damages and injunctive relief as authorized by 4 and 16 of the Clayton Act, 38 Stat. 731, 737, as amended, 15 U.S.C. 15, 26.The allegations of the complaint pertinent to establishing federal jurisdiction are:(1) that the activities of the respondents are "within the flow of interstate commerce and have an effect upon that commerce";(2) that the services of respondents were employed in connection with the purchase and sale of real estate by "persons moving into and out of the Greater New Orleans area";(3) that respondents "assist their clients in securing financing and insurance involved with the purchase of real estate in the Greater New Orleans area," which "financing and insurance are obtained from sources outside the State of Louisiana and move in interstate commerce into the State of Louisiana through the activities of the [respondents]"; and (4) that respondents have engaged in an unlawful restraint of "interstate trade and commerce in the offering for sale and sale of real estate brokering services."Respondents moved in the District Court to dismiss the complaint for failure to state a claim within the ambit of the Sherman Act. This motion was supported by a memorandum and by the affidavits of two officers of respondent Real Estate Board of New Orleans. The affiants testified that real estate brokers in Louisiana were licensed to perform their function in that State only, that there was no legal or other requirement that real estate brokers be employed in connection with the purchase or sale of real estate within Louisiana, and that the affiants had personal knowledge of such transactions occurring without the assistance of brokers. The function of real estate brokers was described as essentially completed when buyer and seller had been brought together on agreeable terms. The affiants also stated that real estate brokers did not obtain and were not instrumental in obtaining financing of credit sales, save in a few special cases, nor were they involved with examination of titles in connection with the sale of real estate or the financing of such sales.The memorandum in support of the motion to dismiss sought to distinguish this case from Goldfarb v. Virginia State Bar, , in which we held that 1 of the Sherman Act had been violated by conformance with a bar association's minimum-fee schedule that established fees for title examination services performed by attorneys in connection with the financing of real estate purchases. The respondents construed the applicability of Goldfarb as limited by certain language in the opinion that described the activities of lawyers in the examination of titles as an inseparable and integral part of the interstate commerce in real estate financing. 421 U.S., at 784-785. In contrast, with respect to this case, respondents asserted on the basis of the affidavits that "the role of ... real estate brokers in financing such purchases is neither integral nor inseparable." Respondents contended (1) that the activities of respondent real estate brokers were purely local in nature; (2) that the allegation that respondents assisted in securing financing or insurance in connection with the purchase of real estate had been controverted by the affidavits; and (3) that the conclusory assertion in the complaint that respondents' activities "are within the flow of interstate commerce and have an effect upon that commerce" was insufficient by itself to establish federal jurisdiction.Petitioners' response to the motion to dismiss asserted that since adequate pretrial discovery up to that time had been precluded pursuant to a pretrial order, petitioners had not had a full opportunity to substantiate the jurisdictional allegations of their complaint. Petitioners advanced two independent theories to support federal jurisdiction: (1) that respondents' activities occurred within the stream of interstate commerce; and (2) that even if respondents' activities were wholly local in character they depended upon and affected the interstate flow of both services and people.Accompanying the response was an affidavit stating that one of the named petitioners had employed the services of a respondent real estate broker to assist in an interstate relocation. There was also an affidavit from a loan guarantee officer of the Veterans' Administration disclosing that VA-insured loans for residential purchases in the Greater New Orleans area for the years 1973-1975 amounted to $46.3 million, $45.9 million, and $53.5 million, respectively.After briefing on the jurisdictional issue, the District Court heard oral argument and received postargument briefs. The court then held a conference with counsel, the substance of which was carefully recorded in the minute entries by the District Judge: "The Court advised counsel that it appears plaintiffs may satisfy said jurisdictional requirement only by bringing the facts of this case within the parameters of the Supreme Court's holding in Goldfarb v. Virginia State Bar... . It is recognized, however, that further discovery is needed on the issue of Goldfarb's applicability sub judice. More specifically, such discovery should determine whether, in the first place, there is the requisite interdependence between the brokerage activity of defendants and the financing and/or insuring of real estate transactions in the New Orleans area and, secondly, whether there is a substantial involvement of interstate commerce in such real estate transactions via the financing and/or insurance aspects thereof." Following this conference, petitioners deposed nine witnesses, who produced various documents. The deponents included government officials, real estate brokers, mortgage lenders, and real estate title insurers. This evidence was directed to establishing that an appreciable amount of interstate commerce was involved in various aspects of the purchase and sale of residential property in the Greater New Orleans area.The deposition testimony of the president of Security Homestead Association, one of nearly 40 savings and loan institutions in the Greater New Orleans area, revealed that during the period covered by the complaint the Association lent in excess of $100 million for local purchases of residential property. The Association obtained loan capital from deposits by investors, some of whom lived out of state, and from borrowings from the Federal Home Loan Bank of Little Rock, Ark. Toward the close of the relevant period, the Association entered the interstate secondary mortgage market, in which existing mortgages were sold to raise new capital for future loans.Another deponent was the president of Carruth Mortgage Corp., an Arkansas corporation doing business in Louisiana, Mississippi, and Texas. Its business was to originate home loans, then to sell the financial paper in the secondary mortgage market. The testimony showed that during the relevant period Carruth made in excess of $100 million in loans on residential real estate in the Greater New Orleans area. The overwhelming proportion of these home loans was guaranteed by either the Federal Housing Administration or the Veterans' Administration. With respect to the FHA-guaranteed loans, Carruth collected and remitted premiums for the guarantee to the FHA in Washington, D.C., on a periodic basis for each account.Both deponents testified that real estate brokers often play a role in securing financing information on behalf of a borrower and in bringing borrower and lender together, but that after the introductory phases the substance of the mortgage transaction progressed without the involvement of a real estate broker. The president of Carruth testified that his company required title insurance on all the home loans it made. This testimony was accompanied by the deposition of the president of Lawyers Title Insurance Co. of Louisiana, which revealed that each of the nearly 30 title insurance companies then writing coverage in the Greater New Orleans area was a subsidiary or branch of a corporation in another state.Following the close of the discovery period and the filing of additional briefs the District Court took the matter under submission and, having considered the memoranda of counsel and the relevant documents of record, issued a memorandum opinion and order granting the motion to dismiss the complaint. 432 F. Supp. 982 (1977). The court stated that the ground upon which respondents had challenged jurisdiction was that "brokerage activities are wholly intrastate in nature and, since they neither occur in nor substantially affect interstate commerce, are beyond the ambit of federal anti-trust prohibition." Id., at 983. In line with the view expressed at the earlier conference, see supra, at 237-238, the District Court viewed the jurisdictional inquiry as narrowly confined: the question was whether the facts of this case could be brought within the Goldfarb holding. In the District Court's view, "any inquiry based upon [Goldfarb] must be twofold: 1) whether a `substantial' volume of interstate commerce is involved in the overall real estate transaction, and 2) whether the challenged activity is an essential, integral part of the transaction and inseparable from its interstate aspects." 432 F. Supp., at 984. The District Court assumed, arguendo, that the title insurance and financing aspects of the New Orleans residential real estate market were interstate in character, but ruled that federal jurisdiction was not established because in its view "the inescapable conclusion to be drawn from the evidence is that the participation of the broker in these (presumably interstate) phases of the real estate transaction is an incidental rather than indispensable occurrence in the transactional chain of events." Id., at 985.The United States Court of Appeals for the Fifth Circuit affirmed the dismissal of the complaint. 583 F.2d 1315 (1978). Examining first the specific acts complained of in this case, the Court of Appeals concluded that they failed to satisfy the "in commerce" test. Realty was viewed as a quintessentially local product, and the brokerage activity described in the pleadings was found to occur wholly intrastate. Id., at 1319. Second, that court rejected petitioners' "effect on commerce" argument. The interpretation of Goldfarb that had guided the District Court's analysis was adopted by the Court of Appeals, which ruled that "unlike the attorneys in Goldfarb whose participation in title insurance was statutorily mandated, real estate brokers are neither necessary nor integral participants in the `interstate aspects' of realty financing and insurance." 583 F.2d, at 1321-1323.The Court of Appeals noted that the District Court had styled its judgment as a dismissal under Federal Rule of Civil Procedure 12 (b) (6) for failure to state a claim upon which relief could be granted, to be treated as a summary judgment insofar as matters outside of the pleadings were considered. The Court of Appeals concluded that the appropriate designation of the dismissal was for lack of subject-matter jurisdiction under Rule 12 (b) (1), and affirmed the dismissal on that basis.We granted certiorari. .IIAThe broad authority of Congress under the Commerce Clause has, of course, long been interpreted to extend beyond activities actually in interstate commerce to reach other activities that, while wholly local in nature, nevertheless substantially affect interstate commerce. Wickard v. Filburn, ; United States v. Darby, . This Court has often noted the correspondingly broad reach of the Sherman Act. Hospital Building Co. v. Rex Hospital Trustees, ; United States v. Employing Plasterers Assn., ; United States v. South-Eastern Underwriters Assn., ; Atlantic Cleaners & Dyers, Inc. v. United States, . During the near century of Sherman Act experience, forms and modes of business and commerce have changed along with changes in communication and travel, and innovations in methods of conducting particular businesses have altered relationships in commerce. Application of the Act reflects an adaptation to these changing circumstances. Compare United States v. E. C. Knight Co., , and Hopkins v. United States, , with Mandeville Island Farms, Inc. v. American Crystal Sugar Co., , and United States v. Employing Plasterers Assn., supra, at 189.The conceptual distinction between activities "in" interstate commerce and those which "affect" interstate commerce has been preserved in the cases, for Congress has seen fit to preserve that distinction in the antitrust and related laws by limiting the applicability of certain provisions to activities demonstrably "in commerce." United States v. American Building Maintenance Industries, ; Gulf Oil Corp. v. Copp Paving Co., ; FTC v. Bunte Bros., Inc., . It can no longer be doubted, however, that the jurisdictional requirement of the Sherman Act may be satisfied under either the "in commerce" or the "effect on commerce" theory. Hospital Building Co. v. Rex Hospital Trustees, supra, at 743; Gulf Oil Corp. v. Copp Paving Co., supra, at 194-195; United States v. Women's Sportswear Manufacturers Assn., ; Mandeville Island Farms, Inc. v. American Crystal Sugar Co., supra, at 235-237.Although the cases demonstrate the breadth of Sherman Act prohibitions, jurisdiction may not be invoked under that statute unless the relevant aspect of interstate commerce is identified; it is not sufficient merely to rely on identification of a relevant local activity and to presume an interrelationship with some unspecified aspect of interstate commerce. To establish jurisdiction a plaintiff must allege the critical relationship in the pleadings and if these allegations are controverted must proceed to demonstrate by submission of evidence beyond the pleadings either that the defendants' activity is itself in interstate commerce or, if it is local in nature, that it has an effect on some other appreciable activity demonstrably in interstate commerce. Gulf Oil Corp. v. Copp Paving Co., supra, at 202.To establish the jurisdictional element of a Sherman Act violation it would be sufficient for petitioners to demonstrate a substantial effect on interstate commerce generated by respondents' brokerage activity. Petitioners need not make the more particularized showing of an effect on interstate commerce caused by the alleged conspiracy to fix commission rates, or by those other aspects of respondents' activity that are alleged to be unlawful. The validity of this approach is confirmed by an examination of the case law. If establishing jurisdiction required a showing that the unlawful conduct itself had an effect on interstate commerce, jurisdiction would be defeated by a demonstration that the alleged restraint failed to have its intended anticompetitive effect. This is not the rule of our cases. See American Tobacco Co. v. United States, ; United States v. Socony-Vacuum Oil Co., , n. 59 (1940). A violation may still be found in such circumstances because in a civil action under the Sherman Act, liability may be established by proof of either an unlawful purpose or an anti-competitive effect. United States v. United States Gypsum Co., , n. 13 (1978); see United States v. Container Corp., ; United States v. National Assn. of Real Estate Boards, ; United States v. Socony-Vacuum Oil Co., supra, at 224-225, n. 59.Nor is jurisdiction defeated in a case relying on anticompetitive effects by plaintiff's failure to quantify the adverse impact of defendant's conduct. See Zenith Radio Corp. v. Hazeltine Research, Inc., ; Bigelow v. RKO Radio Pictures, Inc., . Even where there is an inability to prove that concerted activity has resulted in legally cognizable damages, jurisdiction need not be impaired, though such a failure may confine the available remedies to injunctive relief. See Georgia v. Pennsylvania R. Co., ; Keogh v. Chicago & N. W. R. Co., .BThe interpretation and application of our holding in Goldfarb v. Virginia State Bar, , has figured prominently in this case. The District Court held that petitioners could establish federal jurisdiction only if the facts of this case could be brought within Goldfarb. As previously noted, as interpreted by that court, "any inquiry based upon [Goldfarb] must be twofold: 1) whether a `substantial' volume of interstate commerce is involved in the overall real estate transaction, and 2) whether the challenged activity is an essential, integral part of the transaction and inseparable from its interstate aspects." 432 F. Supp., at 984. The Court of Appeals took a similar view of Goldfarb, holding that Sherman Act jurisdiction did not exist because petitioners had failed to demonstrate that real estate brokers are either necessary or integral participants in the interstate aspects of residential real estate financing and title insurance. 583 F.2d, at 1322.It is with the second phase of the analysis of the District Court and of the Court of Appeals that we disagree. The facts of Goldfarb revealed an application of the state bar association's minimum-fee schedule to fix fees for attorneys' title examination services. Since the financing depended on a valid and insured title we concluded that title examination was "an integral part" of the interstate transaction of obtaining financing for the purchase of residential property and, because of the "inseparability" of the attorneys' services from the title examination process, we held that the legal services were in turn an "integral part of an interstate transaction." 421 U.S., at 784-785. By placing the Goldfarb holding on the available ground that the activities of the attorneys were within the stream of interstate commerce, Sherman Act jurisdiction was established. The Goldfarb holding was not addressed to the "effect on commerce" test of jurisdiction and in no way restricted it to those challenged activities that have an integral relationship to an activity in interstate commerce. To adopt the restrictive interpretation urged upon us by respondents would return to a jurisdictional analysis under the Sherman Act of an era long past. It has been more than 30 years since this Court stated: "At this late day we are not willing to take that long backward step." Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S., at 235.COn the record thus far made, it cannot be said that there is an insufficient basis for petitioners to proceed at trial to establish Sherman Act jurisdiction. It is clear that an appreciable amount of commerce is involved in the financing of residential property in the Greater New Orleans area and in the insuring of titles to such property. The presidents of two of the many lending institutions in the area stated in their deposition testimony that those institutions committed hundreds of millions of dollars to residential financing during the period covered by the complaint. The testimony further demonstrates that this appreciable commercial activity has occurred in interstate commerce. Funds were raised from out-of-state investors and from interbank loans obtained from interstate financial institutions. Multistate lending institutions took mortgages insured under federal programs which entailed interstate transfers of premiums and settlements. Mortgage obligations physically and constructively were traded as financial instruments in the interstate secondary mortgage market. Before making a mortgage loan in the Greater New Orleans area, lending institutions usually, if not always, required title insurance, which was furnished by interstate corporations. Reading the pleadings, as supplemented, most favorably to petitioners, for present purposes we take these facts as established.At trial, respondents will have the opportunity, if they so choose, to make their own case contradicting this factual showing. On the other hand, it may be possible for petitioners to establish that, apart from the commerce in title insurance and real estate financing, an appreciable amount of interstate commerce is involved with the local residential real estate market arising out of the interstate movement of people, or otherwise. To establish federal jurisdiction in this case, there remains only the requirement that respondents' activities which allegedly have been infected by a price-fixing conspiracy be shown "as a matter of practical economics" to have a not insubstantial effect on the interstate commerce involved. Hospital Building Co. v. Rex Hospital Trustees, 425 U.S., at 745; see Goldfarb v. Virginia State Bar, supra, at 784, n. 11; Burke v. Ford, . It is clear, as the record shows, that the function of respondent real estate brokers is to bring the buyer and seller together on agreeable terms. For this service the broker charges a fee generally calculated as a percentage of the sale price. Brokerage activities necessarily affect both the frequency and the terms of residential sales transactions. Ultimately, whatever stimulates or retards the volume of residential sales, or has an impact on the purchase price, affects the demand for financing and title insurance, those two commercial activities that on this record are shown to have occurred in interstate commerce. Where, as here, the services of respondent real estate brokers are often employed in transactions in the relevant market, petitioners at trial may be able to show that respondents' activities have a not insubstantial effect on interstate commerce.It is axiomatic that a complaint should not be dismissed unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, ; see 5 C. Wright & A. Miller, Federal Practice and Procedure 1202, 1205-1207, 1215-1224, 1228 (1969). This rule applies with no less force to a Sherman Act claim, where one of the requisites of a cause of action is the existence of a demonstrable nexus between the defendants' activity and interstate commerce. Here, what was submitted to the District Court shows a sufficient basis for satisfying the Act's jurisdictional requirements under the effect-on-commerce theory so as to entitle the petitioners to go forward. We therefore conclude that it was error to dismiss the complaint at this stage of the proceedings. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. Vacated and remanded.MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.

Respondent's husband died of injuries suffered when a motorcycle on which he was a passenger was struck by an automobile. The accident occurred in Wisconsin near the Minnesota border. The operators of both vehicles were Wisconsin residents, as was the decedent, who, however, had been employed in Minnesota and had commuted daily to work from Wisconsin. Neither vehicle operator carried valid insurance, but the decedent held a policy issued by petitioner covering three automobiles owned by him and containing an uninsured motorist clause insuring him against loss incurred from accidents with uninsured motorists, but limiting such coverage to $15,000 for each automobile. After the accident, respondent moved to and became a resident of Minnesota, and was subsequently appointed in that State as personal representative of her husband's estate. She then brought an action in a Minnesota court seeking a declaration under Minnesota law that the $15,000 uninsured motorist coverage on each of her late husband's three automobiles could be "stacked" to provide total coverage of $45,000. Petitioner defended on the ground that whether the three uninsured motorist coverages could be stacked should be determined by Wisconsin law, since the insurance policy was delivered in Wisconsin, the accident occurred there, and all persons involved were Wisconsin residents at the time of the accident. The trial court, interpreting Wisconsin law to disallow stacking, concluded that Minnesota's choice-of-law rules required the application of Minnesota law permitting stacking, and granted summary judgment for respondent. The Minnesota Supreme Court affirmed.Held: The judgment is affirmed. Pp. 307-320; 322-331. 289 N. W. 2d 43, affirmed. JUSTICE BRENNAN, joined by JUSTICE WHITE, JUSTICE MARSHALL, and JUSTICE BLACKMUN, concluded that Minnesota has a significant aggregation of contacts with the parties and the occurrence, creating state interests, such that application of its law is neither arbitrary nor fundamentally unfair, and, accordingly, the choice of law by the Minnesota Supreme Court does not violate the Due Process Clause of the Fourteenth Amendment or the Full Faith and Credit Clause. Pp. 307-320. (a) Respondent's decedent was a member of Minnesota's work force. The State of employment has police power responsibilities towards nonresident employees that are analogous to those it has towards residents, as such employees use state services and amenities and may call upon state facilities in appropriate circumstances. Also, the State's interest in its commuting nonresident employees, such as respondent's decedent, reflects a state concern for the safety and well-being of its work force and the concomitant effect on Minnesota employers. That the decedent was not killed while commuting to work or while in Minnesota does not dictate a different result, since vindication of the rights of the estate of a Minnesota employee is an important state concern. Nor does the decedent's residence in Wisconsin constitutionally mandate application of Wisconsin law to the exclusion of forum law. Employment status is not a sufficiently less important status than residence, when combined with the decedent's daily commute across state lines and the other Minnesota contacts present, to prohibit the choice-of-law result in this case on constitutional grounds. Pp. 313-317. (b) Petitioner was at all times present and doing business in Minnesota. By virtue of such presence, petitioner can hardly claim unfamiliarity with the laws of the host jurisdiction and surprise that the state courts might apply forum law to litigation in which the company is involved. Moreover, such presence gave Minnesota an interest in regulating the company's insurance obligations insofar as they affected both a Minnesota resident and court-appointed representative (respondent) and a longstanding member of Minnesota's work force (respondent's decedent). Pp. 317-318. (c) Respondent became a Minnesota resident prior to institution of the instant litigation. Such residence and subsequent appointment in Minnesota as personal representative of her late husband's estate constitute a Minnesota contact which gives Minnesota an interest in respondent's recovery. Pp. 318-319. JUSTICE STEVENS concluded: 1. The Full Faith and Credit Clause did not require Minnesota, the forum State, to apply Wisconsin law to the contract-interpretation question presented. Although the Minnesota courts' decision to apply Minnesota law was unsound as a matter of conflicts law, no threat to Wisconsin's sovereignty ensued from allowing the substantive question as to the meaning of the insurance contract to be determined by the law of another State. Pp. 322-326. 2. The Due Process Clause of the Fourteenth Amendment did not prevent Minnesota from applying its own law. Neither the "stacking" rule itself nor Minnesota's application of it to these litigants raised any serious question of fairness. Nor did the Minnesota courts' decision to apply this rule violate due process because that decision frustrated the contracting parties' reasonable expectations. The decision was consistent with due process because it did not result in unfairness to either litigant, not because Minnesota had an interest in the plaintiff as resident or the decedent as employee. Pp. 326-331. BRENNAN, J., announced the judgment of the Court and delivered an opinion, in which WHITE, MARSHALL, and BLACKMUN, JJ., joined. STEVENS, J., filed an opinion concurring in the judgment, post, p. 320. POWELL, J., filed a dissenting opinion, in which BURGER, C. J., and REHNQUIST, J., joined, post, p. 332. STEWART, J., took no part in the consideration or decision of the case.Mark M. Nolan argued the cause and filed a brief for petitioner.Andreas F. Lowenfeld argued the cause for respondent. With him on the brief were Samuel H. Hertogs and Bruce J. Douglas.JUSTICE BRENNAN announced the judgment of the Court and delivered an opinion, in which JUSTICE WHITE, JUSTICE MARSHALL, and JUSTICE BLACKMUN joined.This Court granted certiorari to determine whether the Due Process Clause of the Fourteenth Amendment1 or the Full Faith and Credit Clause of Art. IV, 1,2 of the United States Constitution bars the Minnesota Supreme Court's choice of substantive Minnesota law to govern the effect of a provision in an insurance policy issued to respondent's decedent. . IRespondent's late husband, Ralph Hague, died of injuries suffered when a motorcycle on which he was a passenger was struck from behind by an automobile. The accident occurred in Pierce County, Wis., which is immediately across the Minnesota border from Red Wing, Minn. The operators of both vehicles were Wisconsin residents, as was the decedent, who, at the time of the accident, resided with respondent in Hager City, Wis., which is one and one-half miles from Red Wing. Mr. Hague had been employed in Red Wing for the 15 years immediately preceding his death and had commuted daily from Wisconsin to his place of employment.Neither the operator of the motorcycle nor the operator of the automobile carried valid insurance. However, the decedent held a policy issued by petitioner Allstate Insurance Co. covering three automobiles owned by him and containing an uninsured motorist clause insuring him against loss incurred from accidents with uninsured motorists. The uninsured motorist coverage was limited to $15,000 for each automobile.3 After the accident, but prior to the initiation of this lawsuit, respondent moved to Red Wing. Subsequently, she married a Minnesota resident and established residence with her new husband in Savage, Minn. At approximately the same time, a Minnesota Registrar of Probate appointed respondent personal representative of her deceased husband's estate. Following her appointment, she brought this action in Minnesota District Court seeking a declaration under Minnesota law that the $15,000 uninsured motorist coverage on each of her late husband's three automobiles could be "stacked" to provide total coverage of $45,000. Petitioner defended on the ground that whether the three uninsured motorist coverages could be stacked should be determined by Wisconsin law, since the insurance policy was delivered in Wisconsin, the accident occurred in Wisconsin, and all persons involved were Wisconsin residents at the time of the accident.The Minnesota District Court disagreed. Interpreting Wisconsin law to disallow stacking, the court concluded that Minnesota's choice-of-law rules required the application of Minnesota law permitting stacking. The court refused to apply Wisconsin law as "inimical to the public policy of Minnesota" and granted summary judgment for respondent.4 The Minnesota Supreme Court, sitting en banc, affirmed the District Court.5 The court, also interpreting Wisconsin law to prohibit stacking,6 applied Minnesota law after analyzing the relevant Minnesota contacts and interests within the analytical framework developed by Professor Leflar.7 See Leflar, Choice-Influencing Considerations in Conflicts Law, 41 N. Y. U. L. Rev. 267 (1966). The state court, therefore, examined the conflict-of-laws issue in terms of (1) predictability of result, (2) maintenance of interstate order, (3) simplification of the judicial task, (4) advancement of the forum's governmental interests, and (5) application of the better rule of law. Although stating that the Minnesota contacts might not be, "in themselves, sufficient to mandate application of [Minnesota] law,"8 289 N. W. 2d 43, 49 (1978), under the first four factors, the court concluded that the fifth factor - application of the better rule of law - favored selection of Minnesota law. The court emphasized that a majority of States allow stacking and that legal decisions allowing stacking "are fairly recent and well considered in light of current uses of automobiles." Ibid. In addition, the court found the Minnesota rule superior to Wisconsin's "because it requires the cost of accidents with uninsured motorists to be spread more broadly through insurance premiums than does the Wisconsin rule." Ibid. Finally, after rehearing en banc,9 the court buttressed its initial opinion by indicating "that contracts of insurance on motor vehicles are in a class by themselves" since an insurance company "knows the automobile is a movable item which will be driven from state to state." 289 N. W. 2d, at 50 (1979). From this premise the court concluded that application of Minnesota law was "not so arbitrary and unreasonable as to violate due process." Ibid.IIIt is not for this Court to say whether the choice-of-law analysis suggested by Professor Leflar is to be preferred or whether we would make the same choice-of-law decision if sitting as the Minnesota Supreme Court. Our sole function is to determine whether the Minnesota Supreme Court's choice of its own substantive law in this case exceeded federal constitutional limitations. Implicit in this inquiry is the recognition, long accepted by this Court, that a set of facts giving rise to a lawsuit, or a particular issue within a lawsuit, may justify, in constitutional terms, application of the law of more than one jurisdiction. See, e. g., Watson v. Employers Liability Assurance Corp., ; n. 11, infra. See generally Clay v. Sun Insurance Office, Ltd., , 181-182 (1964) (hereinafter cited as Clay II). As a result, the forum State may have to select one law from among the laws of several jurisdictions having some contact with the controversy.In deciding constitutional choice-of-law questions, whether under the Due Process Clause or the Full Faith and Credit Clause,10 this Court has traditionally examined the contacts of the State, whose law was applied, with the parties and with the occurrence or transaction giving rise to the litigation. See Clay II, supra, at 183. In order to ensure that the choice of law is neither arbitrary nor fundamentally unfair, see Alaska Packers Assn. v. Industrial Accident Comm'n, , the Court has invalidated the choice of law of a State which has had no significant contact or significant aggregation of contacts, creating state interests, with the parties and the occurrence or transaction.11 Two instructive examples of such invalidation are Home Ins. Co. v. Dick, , and John Hancock Mutual Life Ins. Co. v. Yates, . In both cases, the selection of forum law rested exclusively on the presence of one nonsignificant forum contact.Home Ins. Co. v. Dick involved interpretation of an insurance policy which had been issued in Mexico, by a Mexican insurer, to a Mexican citizen, covering a Mexican risk. The policy was subsequently assigned to Mr. Dick, who was domiciled in Mexico and "physically present and acting in Mexico," 281 U.S., at 408, although he remained a nominal, permanent resident of Texas. The policy restricted coverage to losses occurring in certain Mexican waters and, indeed, the loss occurred in those waters. Dick brought suit in Texas against a New York reinsurer. Neither the Mexican insurer nor the New York reinsurer had any connection to Texas.12 The Court held that application of Texas law to void the insurance contract's limitation-of-actions clause violated due process.13 The relationship of the forum State to the parties and the transaction was similarly attenuated in John Hancock Mutual Life Ins. Co. v. Yates. There, the insurer, a Massachusetts corporation, issued a contract of insurance on the life of a New York resident. The contract was applied for, issued, and delivered in New York where the insured and his spouse resided. After the insured died in New York, his spouse moved to Georgia and brought suit on the policy in Georgia. Under Georgia law, the jury was permitted to take into account oral modifications when deciding whether an insurance policy application contained material misrepresentations. Under New York law, however, such misrepresentations were to be evaluated solely on the basis of the written application. The Georgia court applied Georgia law. This Court reversed, finding application of Georgia law to be unconstitutional.Dick and Yates stand for the proposition that if a State has only an insignificant contact with the parties and the occurrence or transaction, application of its law is unconstitutional.14 Dick concluded that nominal residence - standing alone - was inadequate; Yates held that a postoccurrence change of residence to the forum State - standing alone - was insufficient to justify application of forum law. Although instructive as extreme examples of selection of forum law, neither Dick nor Yates governs this case. For in contrast to those decisions, here the Minnesota contacts with the parties and the occurrence are obviously significant. Thus, this case is like Alaska Packers, Cardillo v. Liberty Mutual Ins. Co., , and Clay II - cases where this Court sustained choice-of-law decisions based on the contacts of the State, whose law was applied, with the parties and occurrence.In Alaska Packers, the Court upheld California's application of its Workmen's Compensation Act, where the most significant contact of the worker with California was his execution of an employment contract in California. The worker, a nonresident alien from Mexico, was hired in California for seasonal work in a salmon canning factory in Alaska. As part of the employment contract, the employer, who was doing business in California, agreed to transport the worker to Alaska and to return him to California when the work was completed. Even though the employee contracted to be bound by the Alaska Workmen's Compensation Law and was injured in Alaska, he sought an award under the California Workmen's Compensation Act. The Court held that the choice of California law was not "so arbitrary or unreasonable as to amount to a denial of due process," 294 U.S., at 542, because "[w]ithout a remedy in California, [he] would be remediless," ibid., and because of California's interest that the worker not become a public charge, ibid.15 In Cardillo v. Liberty Mutual Ins. Co., supra, a District of Columbia resident, employed by a District of Columbia employer and assigned by the employer for the three years prior to his death to work in Virginia, was killed in an automobile crash in Virginia in the course of his daily commute home from work. The Court found the District's contacts with the parties and the occurrence sufficient to satisfy constitutional requirements, based on the employee's residence in the District, his commute between home and the Virginia workplace, and his status as an employee of a company "engaged in electrical construction work in the District of Columbia and surrounding areas." Id., at 471.16 Similarly, Clay II upheld the constitutionality of the application of forum law. There, a policy of insurance had issued in Illinois to an Illinois resident. Subsequently the insured moved to Florida and suffered a property loss in Florida. Relying explicitly on the nationwide coverage of the policy and the presence of the insurance company in Florida and implicitly on the plaintiff's Florida residence and the occurrence of the property loss in Florida, the Court sustained the Florida court's choice of Florida law.The lesson from Dick and Yates, which found insufficient forum contacts to apply forum law, and from Alaska Packers, Cardillo, and Clay II, which found adequate contacts to sustain the choice of forum law,17 is that for a State's substantive law to be selected in a constitutionally permissible manner, that State must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair. Application of this principle to the facts of this case persuades us that the Minnesota Supreme Court's choice of its own law did not offend the Federal Constitution.IIIMinnesota has three contacts with the parties and the occurrence giving rise to the litigation. In the aggregate, these contacts permit selection by the Minnesota Supreme Court of Minnesota law allowing the stacking of Mr. Hague's uninsured motorist coverages.First, and for our purposes a very important contact, Mr. Hague was a member of Minnesota's work force, having been employed by a Red Wing, Minn., enterprise for the 15 years preceding his death. While employment status may implicate a state interest less substantial than does resident status, that interest is nevertheless important. The State of employment has police power responsibilities towards the nonresident employee that are analogous, if somewhat less profound, than towards residents. Thus, such employees use state services and amenities and may call upon state facilities in appropriate circumstances.In addition, Mr. Hague commuted to work in Minnesota, a contact which was important in Cardillo v. Liberty Mutual Ins. Co., 330 U.S., at 475-476 (daily commute between residence in District of Columbia and workplace in Virginia), and was presumably covered by his uninsured motorist coverage during the commute.18 The State's interest in its commuting nonresident employees reflects a state concern for the safety and well-being of its work force and the concomitant effect on Minnesota employers.That Mr. Hague was not killed while commuting to work or while in Minnesota does not dictate a different result. To hold that the Minnesota Supreme Court's choice of Minnesota law violated the Constitution for that reason would require too narrow a view of Minnesota's relationship with the parties and the occurrence giving rise to the litigation. An automobile accident need not occur within a particular jurisdiction for that jurisdiction to be connected to the occurrence.19 Similarly, the occurrence of a crash fatal to a Minnesota employee in another State is a Minnesota contact.20 If Mr. Hague had only been injured and missed work for a few weeks, the effect on the Minnesota employer would have been palpable and Minnesota's interest in having its employee made whole would be evident. Mr. Hague's death affects Minnesota's interest still more acutely, even though Mr. Hague will not return to the Minnesota work force. Minnesota's work force is surely affected by the level of protection the State extends to it, either directly or indirectly. Vindication of the rights of the estate of a Minnesota employee, therefore, is an important state concern.Mr. Hague's residence in Wisconsin does not - as Allstate seems to argue - constitutionally mandate application of Wisconsin law to the exclusion of forum law.21 If, in the instant case, the accident had occurred in Minnesota between Mr. Hague and an uninsured Minnesota motorist, if the insurance contract had been executed in Minnesota covering a Minnesota registered company automobile which Mr. Hague was permitted to drive, and if a Wisconsin court sought to apply Wisconsin law, certainly Mr. Hague's residence in Wisconsin, his commute between Wisconsin and Minnesota, and the insurer's presence in Wisconsin should be adequate to apply Wisconsin's law.22 See generally Cardillo v. Liberty Mutual Ins. Co., supra; Alaska Packers Assn. v. Industrial Accident Comm'n, ; Home Ins. Co. v. Dick, 281 U.S., at 408, n. 5. Employment status is not a sufficiently less important status than residence, see generally Carroll v. Lanza, ; Alaska Packers Assn. v. Industrial Accident Comm'n, supra, when combined with Mr. Hague's daily commute across state lines and the other Minnesota contacts present, to prohibit the choice-of-law result in this case on constitutional grounds.Second, Allstate was at all times present and doing business in Minnesota.23 By virtue of its presence, Allstate can hardly claim unfamiliarity with the laws of the host jurisdiction and surprise that the state courts might apply forum law to litigation in which the company is involved. "Particularly since the company was licensed to do business in [the forum], it must have known it might be sued there, and that [the forum] courts would feel bound by [forum] law."24 Clay v. Sun Insurance Office Ltd., (Black, J., dissenting).25 Moreover, Allstate's presence in Minnesota gave Minnesota an interest in regulating the company's insurance obligations insofar as they affected both a Minnesota resident and court-appointed representative - respondent - and a longstanding member of Minnesota's work force - Mr. Hague. See Hoopeston Canning Co. v. Cullen, .Third, respondent became a Minnesota resident prior to institution of this litigation. The stipulated facts reveal that she first settled in Red Wing, Minn., the town in which her late husband had worked.26 She subsequently moved to Savage, Minn., after marrying a Minnesota resident who operated an automobile service station in Bloomington, Minn. Her move to Savage occurred "almost concurrently," 289 N. W. 2d, at 45, with the initiation of the instant case.27 There is no suggestion that Mrs. Hague moved to Minnesota in anticipation of this litigation or for the purpose of finding a legal climate especially hospitable to her claim.28 The stipulated facts, sparse as they are, negate any such inference.While John Hancock Mutual Life Ins. Co. v. Yates, , held that a postoccurrence change of residence to the forum State was insufficient in and of itself to confer power on the forum State to choose its law, that case did not hold that such a change of residence was irrelevant. Here, of course, respondent's bona fide residence in Minnesota was not the sole contact Minnesota had with this litigation. And in connection with her residence in Minnesota, respondent was appointed personal representative of Mr. Hague's estate by the Registrar of Probate for the County of Goodhue, Minn. Respondent's residence and subsequent appointment in Minnesota as personal representative of her late husband's estate constitute a Minnesota contact which gives Minnesota an interest in respondent's recovery, an interest which the court below identified as full compensation for "resident accident victims" to keep them "off welfare rolls" and able "to meet financial obligations." 289 N. W. 2d, at 49. In sum, Minnesota had a significant aggregation29 of contacts with the parties and the occurrence, creating state interests, such that application of its law was neither arbitrary nor fundamentally unfair. Accordingly, the choice of Minnesota law by the Minnesota Supreme Court did not violate the Due Process Clause or the Full Faith and Credit Clause. Affirmed. JUSTICE STEWART took no part in the consideration or decision of this case.

A two-count indictment charged petitioner with (1) the purchase of 224 grains of heroin from an unstamped package, in violation of 26 U.S.C. 4704 (a); and (2) receiving and concealing this same drug, knowing it to have been unlawfully imported, in violation of 21 U.S.C. 174. At the trial, the Government introduced into evidence the heroin itself and testimony that petitioner had been in possession of it; and petitioner offered no explanation of his possession of the same. Held: In view of the separate statutory presumptions, proof of possession of unstamped heroin, in the absence of explanation, was sufficient to support a conviction by the jury on each of the counts as covering entirely separate offenses; and consecutive sentences of five years' imprisonment on each count were valid where based upon such separate offenses under different sections of the narcotics laws. Pp. 19-24. 248 F.2d 196, affirmed.Sidney M. Glazer argued the cause for petitioner. With him on the brief were Morris A. Shenker and Bernard J. Mellman.John L. Murphy argued the cause for the United States. On the brief were Solicitor General Rankin, Assistant Attorney General Anderson, Beatrice Rosenberg and Jerome M. Feit.MR. JUSTICE CLARK delivered the opinion of the Court.In this narcotics case a two-count indictment charged petitioner with (1) the purchase of 224 grains of heroin from an unstamped package, in violation of 26 U.S.C. 4704 (a);1 and (2) receiving and concealing this same drug knowing it to have been unlawfully imported, in violation of 21 U.S.C. 174.2 The Government introduced into evidence the heroin itself, and testimony that petitioner had been in possession of it. On each count it relied, for proof of the elements of the offense, on the statutory presumptions provided by Congress. While petitioner took the stand, his defense was an alibi and there was therefore a total absence of any explanation by him of his possession of the prohibited drug. Upon being found guilty on each count by a jury, on an instruction that proof of possession of unstamped heroin, in the absence of explanation, might support a conviction on each of the charges in view of the separate statutory presumptions, petitioner was sentenced to consecutive sentences of five years' imprisonment and a $1 fine on each count. Attack is made not only on the validity of the instructions but also on the consecutive sentences. The Court of Appeals affirmed, 248 F.2d 196 (C. A. 8th Cir., 1957). In view of the importance of the question in the enforcement of the narcotic laws, we granted certiorari. . We agree with the Court of Appeals. This disposition requires neither a detail of the facts which may be found in the opinion of the Court of Appeals, supra, nor of the court's instructions, of which petitioner now complains.3 Congress provided in 1919 that buying narcotics, except in or from the original stamped package, was an offense4 punishable by fine of not more than $2,000 and imprisonment for not more than five years.5 The 1919 Act specifically provided that "the absence of appropriate tax-paid stamps ... shall be prima facie evidence of a violation of this section by the person in whose possession same may be found."6 Long before, on February 9, 1909, Congress had provided that receiving and concealing unlawfully imported narcotics should likewise be an offense. The Act provided that once the defendant on trial "is shown to have, or to have had, possession of [the narcotic drug] such possession shall be deemed sufficient evidence to authorize conviction unless the defendant shall explain the possession to the satisfaction of the jury."7 Petitioner does not challenge the power of the Congress to adopt these statutes, nor does he attack the separateness of the offenses created, the distinct punishments provided, nor the presumptions therein authorized. But he says that where the presumptions are coupled with a single act of possession of unstamped narcotics cumulative sentences are not permissible and the ones here imposed must fall under the doctrine of Blockburger v. United States, . We think not.As we see it, Gore v. United States, , controls the question here. There, consecutive sentences were upheld on three counts of an indictment charging (1) sale of narcotics not pursuant to a written order form; (2) purchase, sale and distribution not in or from a stamped package; and (3) transportation and concealment of illegally imported narcotics. The three offenses derived from one transaction, a sale of narcotics. It will be noted that two of the offenses there charged are present here where the one fact proved by direct evidence is possession, rather than a sale. The Court reasoned that "three violations of three separate offenses created by Congress at three different times," indicated a clear and continuing purpose on its part "of dealing more and more strictly with, and seeking to throttle more and more by different legal devices, the traffic in narcotics. Both in the unfolding of the substantive provisions of law and in the scale of punishments, Congress has manifested an attitude not of lenity but of severity toward violation of the narcotics laws." Supra, at 391.8 We see no significant differences between the two cases. The direct proof in Gore was of a sale of heroin without a written order charged in one of the three counts upon which the consecutive sentences were based. Resort to the statutory presumptions was made to establish the other two counts on which those sentences were assessed. Here the direct evidence proved possession of the unstamped drug, and resort was made to the statutory presumptions for support of the two offenses charged. Petitioner insists that each offense here requires proof of only the single fact of possession, which brings it within the rule in Blockburger, supra. However, petitioner completely overlooks the fact that the "acts or transactions" prohibited by the respective statutes cannot be equated to possession alone. Let us analyze the offenses. Under the first count of the indictment, the prosecution must prove a purchase of narcotics, other than in or from the original stamped package. In order to establish these ultimate facts, the prosecutor may put on direct evidence of possession of the unstamped heroin and the statutory presumption of 4704 (a) then has the effect of establishing, prima facie, that there was in fact a purchase and that the purchase was other than in or from the original stamped package. In this case, the heroin itself was introduced in evidence, thus the jury could determine whether or not it was stamped. Similarly, under the second count, the prosecution was obligated to prove three ultimate facts: (1) that the heroin was received and concealed; (2) that it had been imported contrary to law; and (3) that petitioner knew of the unlawful importation. After putting on direct evidence of the possession, the prosecution was aided by the statutory presumption of 174 that the ultimate facts of the violation - entirely different, it must be noted, from those of the first count - were also present.Thus, the violation, as distinguished from the direct evidence offered to prove that violation, was distinctly different under each of the respective statutes. Instead of limiting his proof to an alibi, petitioner could, by offering evidence tending to controvert one presumption or the other as to the ultimate facts, have earned an acquittal on either count and still have been found guilty on the other. Furthermore, to take advantage of the presumption of 174 it is necessary only to prove possession by direct evidence; whereas to take advantage of the presumption of 4704 (a) it is necessary to prove by direct evidence that the narcotic was unstamped as well as that it was in the defendant's possession. It follows, even if the Blockburger test were applicable, that the offenses were separate and that consecutive sentences could be imposed on each count.We have considered the other contentions raised by petitioner and found them to be without merit. The judgment of the Court of Appeals is Affirmed.MR. CHIEF JUSTICE WARREN concurs in the result.MR. JUSTICE BLACK and MR. JUSTICE DOUGLAS dissent.

In 1994, deputies called to drug dealer Johnson's California home found Johnson wounded and Klein fatally wounded. Johnson claimed that he was shot in his bedroom by respondent Richter's codefendant, Branscombe; that he found Klein on the living room couch; and that his gun safe, a pistol, and cash were missing. His account was corroborated by evidence at the scene, including, relevant here, spent shell casings, blood spatters, and blood pooled in the bedroom doorway. Investigators took a blood sample from a wall near the bedroom door, but not from the blood pool. A search of Richter's home turned up the safe and ammunition matching evidence at the scene. After his arrest on murder and other charges, Richter initially denied his involvement, but later admitted disposing of Johnson's and Branscombe's guns. The prosecution initially built its case on Johnson's testimony and the circumstantial evidence, but it adjusted its approach after Richter's counsel, in his opening statement, outlined the theory that Branscombe shot Johnson in self-defense and that Klein was killed in the crossfire in the bedroom doorway, and stressed the lack of forensic support for the prosecution's case. The prosecution then decided to call an expert in blood pattern evidence, who testified that it was unlikely that Klein had been shot outside the living room and then moved to the couch, and a serologist, who testified that the blood sample taken near the blood pool could be Johnson's but not Klein's. Under cross-examination, she conceded that she had not tested the sample for cross-contamination and that a degraded sample would make it difficult to tell if it had blood of Klein's type. Defense counsel called Richter to tell his conflicting version of events and called other witnesses to corroborate Richter's version. Richter was convicted and sentenced to life without parole. He later sought habeas relief from the California Supreme Court, asserting, inter alia, that his counsel provided ineffective assistance, see Strickland v. Washington, 466 U. S. 668, when he failed to present expert testimony on blood evidence, because it could have disclosed the blood pool's source and bolstered Richter's theory. He also offered affidavits from forensics experts to support his claim. The court denied the petition in a one-sentence summary order. Subsequently, he reasserted his state claims in a federal habeas petition. The District Court denied his petition. A Ninth Circuit panel affirmed, but the en banc court reversed. Initially it questioned whether 28 U. S. C. §2254(d)--which, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), limits the availability of federal habeas relief for claims previously "adjudicated on the merits" in state court — applied to Richter's petition, since the State Supreme Court issued only a summary denial. But it found the state-court decision unreasonable anyway. In its view, trial counsel was deficient in failing to consult blood evidence experts in planning a trial strategy and in preparing to rebut expert evidence the prosecution might — and later did — offer. Held: 1. Section 2254(d) applies to Richter's petition, even though the state court's order was unaccompanied by an opinion explaining the court's reasoning. Pp. 7-10. (a) By its terms, §2254(d) bars relitigation of a claim "adjudicated on the merits" in state court unless, among other exceptions, the earlier state-court "decision" involved "an unreasonable application" of "clearly established Federal law, as determined by" this Court, §2254(d)(1). Nothing in its text — which refers only to a "decision" resulting "from an adjudication"--requires a statement of reasons. Where the state-court decision has no explanation, the habeas petitioner must still show there was no reasonable basis for the state court to deny relief. There is no merit to the assertion that applying §2254(d) when state courts issue summary rulings will encourage those courts to withhold explanations. The issuance of summary dispositions can enable state judiciaries to concentrate resources where most needed. Pp. 7-9. (b) Nor is there merit to Richter's argument that §2254(d) does not apply because the California Supreme Court did not say it was adjudicating his claim "on the merits." When a state court has denied relief, adjudication on the merits can be presumed absent any contrary indication or state-law procedural principles. The presumption may be overcome by a more likely explanation for the state court's decision, but Richter does not make that showing here. Pp. 9-10. 2. Richter was not entitled to the habeas relief ordered by the Ninth Circuit. Pp. 10-24. (a) That court failed to accord the required deference to the decision of a state court adjudicating the same claims later presented in the federal habeas petition. Its opinion shows an improper understanding of §2254(d)'s unreasonableness standard and operation in the context of a Strickland claim. Asking whether the state court's application of Strickland's standard was unreasonable is different from asking whether defense counsel's performance fell below that standard. Under AEDPA, a state court must be granted a deference and latitude that are not in operation in a case involving direct review under Strickland. A state court's determination that a claim lacks merit precludes federal habeas relief so long as "fair-minded jurists could disagree" on the correctness of that decision. Yarborough v. Alvarado, 541 U. S. 652, 664. And the more general the rule being considered, "the more leeway courts have in reaching outcomes in case-by-case determinations." Ibid. The Ninth Circuit explicitly conducted a de novo review and found a Strickland violation; it then declared without further explanation that the state court's contrary decision was unreasonable. But §2254(d) requires a habeas court to determine what arguments or theories supported, or could have supported, the state-court decision; and then to ask whether it is possible fair-minded jurists could disagree that those arguments or theories are inconsistent with a prior decision of this Court. AEDPA's unreasonableness standard is not a test of the confidence of a federal habeas court in the conclusion it would reach as a de novo matter. Even a strong case for relief does not make the state court's contrary conclusion unreasonable. Section 2254(d) is designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions. Pp. 10-14. (b) The Ninth Circuit erred in concluding that Richter demonstrated an unreasonable application of Strickland by the state court. Pp. 14-23. (1) Richter could have secured relief in state court only by showing both that his counsel provided deficient assistance and that prejudice resulted. To be deficient, counsel's representation must have fallen "below an objective standard of reasonableness," Strickland, 466 U. S., at 688; and there is a "strong presumption" that counsel's representation is within the "wide range" of reasonable professional assistance, id., at 689. The question is whether counsel made errors so fundamental that counsel was not functioning as the counsel guaranteed by the Sixth Amendment. Prejudice requires demonstrating "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., at 694. "Surmounting Strickland's high bar is never ... easy." Padilla v. Kentucky, 559 U. S.___, ___. Strickland can function as a way to escape rules of waiver and forfeiture. The question is whether an attorney's representation amounted to incompetence under prevailing professional norms, not whether it deviated from best practices or most common custom. Establishing that a state court's application of Strickland was unreasonable under §2254(d) is even more difficult, since both standards are "highly deferential," 466 U. S, at 689, and since Strickland's general standard has a substantial range of reasonable applications. The question under §2254(d) is not whether counsel's actions were reasonable, but whether there is any reasonable argument that counsel satisfied Strickland's deferential standard. Pp. 14-16. (2) The Ninth Circuit erred in holding that because Richter's attorney had not consulted forensic blood experts or introduced expert evidence, the State Supreme Court could not reasonably have concluded counsel provided adequate representation. A state court could reasonably conclude that a competent attorney could elect a strategy that did not require using blood evidence experts. Rare are the situations in which the latitude counsel enjoys will be limited to any one technique or approach. There were any number of experts whose insight might have been useful to the defense. Counsel is entitled to balance limited resources in accord with effective trial tactics and strategies. In finding otherwise the Ninth Circuit failed to "reconstruct the circumstances of counsel's challenged conduct" and "evaluate the conduct from counsel's perspective at the time." Strickland, supra, at 689. Given the many factual differences between the prosecution and defense versions of events, it was far from evident at the time of trial that the blood source was central to Richter's case. And relying on "the harsh light of hindsight" to cast doubt on a trial that took place over 15 years ago is precisely what Strickland and AEDPA seek to prevent. See Bell v. Cone, 535 U. S. 685, 702. Even had the value of expert testimony been apparent, it would be reasonable to conclude that a competent attorney might elect not to use it here, where counsel had reason to question the truth of his client's account. Making blood evidence a central issue could also have led the prosecution to produce its own expert analysis, possibly destroying Richter's case, or distracted the jury with esoteric questions of forensic science. Defense counsel's opening statement may have inspired the prosecution to present forensic evidence, but that shows only that the defense strategy did not work out as well as hoped. In light of the record here there was no basis to rule that the state court's determination was unreasonable. The Court of Appeals erred in dismissing such concern as an inaccurate account of counsel's actual thinking, since Strickland examined only the objective reasonableness of counsel's actions. As to whether counsel was constitutionally deficient for not preparing expert testimony as a response to the prosecution's, an attorney may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for remote possibilities. Here, even if counsel was mistaken, the prosecution itself did not expect to present forensic testimony until the eve of trial. Thus, it is at least debatable whether counsel's error was so fundamental as to call the trial's fairness into doubt. Even if counsel should have foreseen the prosecution's tactic, Richter would still need to show it was indisputable that Strickland required his attorney to rely on a rebuttal witness rather than on cross-examination to discredit the witnesses, but Strickland imposes no such requirement. And while it is possible an isolated error can constitute ineffective assistance if it is sufficiently egregious, it is difficult to establish ineffective assistance where counsel's overall performance reflects active and capable advocacy. Pp. 16-22. (3) The Ninth Circuit also erred in concluding that Richter had established prejudice under Strickland, which asks whether it is "reasonably likely" the verdict would have been different, 466 U. S., at 696, not whether a court can be certain counsel's performance had no effect on the outcome or that reasonable doubt might have been established had counsel acted differently. There must be a substantial likelihood of a different result. The State Supreme Court could have reasonably concluded that Richter's prejudice evidence fell short of this standard. His expert serology evidence established only a theoretical possibility of Klein's blood being in the blood pool; and at trial, defense counsel extracted a similar concession from the prosecution's expert. It was also reasonable to find Richter had not established prejudice given that he offered no evidence challenging other conclusions of the prosecution's experts, e.g., that the blood sample matched Johnson's blood type. There was, furthermore, sufficient conventional circumstantial evidence pointing to Richter's guilt, including, e.g., the items found at his home. Pp. 22-23. 578 F. 3d 944, reversed and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Thomas, Breyer, Alito, and Sotomayor, JJ., joined. Ginsburg, J., filed an opinion concurring in the judgment. Kagan, J., took no part in the consideration or decision of the case.KELLY HARRINGTON, WARDEN, PETITIONER v.JOSHUA RICHTERon writ of certiorari to the united states court of appeals for the ninth circuit[January 19, 2011] Justice Kennedy delivered the opinion of the Court. The writ of habeas corpus stands as a safeguard against imprisonment of those held in violation of the law. Judges must be vigilant and independent in reviewing petitions for the writ, a commitment that entails substantial judicial resources. Those resources are diminished and misspent, however, and confidence in the writ and the law it vindicates undermined, if there is judicial disregard for the sound and established principles that inform its proper issuance. That judicial disregard is inherent in the opinion of the Court of Appeals for the Ninth Circuit here under review. The Court of Appeals, in disagreement with the contrary conclusions of the Supreme Court of the State of California and of a United States District Court, ordered habeas corpus relief granted to set aside the conviction of Joshua Richter, respondent here. This was clear error. Under C. §2254(d), the availability of federal habeas relief is limited with respect to claims previously "adjudicated on the merits" in state-court proceedings. The first inquiry this case presents is whether that pro-vision applies when state-court relief is denied without an accompanying statement of reasons. If it does, the question is whether the Court of Appeals adhered to the statute's terms, in this case as it relates to ineffective-assistance claims judged by the standard set forth in Strickland v. Washington, 466 U. S. 668 (1984). A second case decided today, Premo v. Moore, post, p. ___, presents similar issues. Here, as in that case, it is necessary to reverse the Court of Appeals for failing to accord required deference to the decision of a state court.I It is necessary to begin by discussing the details of a crime committed more than a decade and a half ago.A Sometime after midnight on December 20, 1994, sheriff's deputies in Sacramento County, California, arrived at the home of a drug dealer named Joshua Johnson. Hours before, Johnson had been smoking marijuana in the company of Richter and two other men, Christian Branscombe and Patrick Klein. When the deputies arrived, however, they found only Johnson and Klein. Johnson was hysterical and covered in blood. Klein was lying on a couch in Johnson's living room, unconscious and bleeding. Klein and Johnson each had been shot twice. Johnson recovered; Klein died of his wounds. Johnson gave investigators this account: After falling asleep, he awoke to find Richter and Branscombe in his bedroom, at which point Branscombe shot him. Johnson heard more gunfire in the living room and the sound of his assailants leaving. He got up, found Klein bleeding on the living room couch, and called 911. A gun safe, a pistol, and $6,000 cash, all of which had been in the bedroom, were missing. Evidence at the scene corroborated Johnson's account. Investigators found spent shell casings in the bedroom (where Johnson said he had been shot) and in the living room (where Johnson indicated Klein had been shot). In the living room there were two casings, a .32 caliber and a .22 caliber. One of the bullets recovered from Klein's body was a .32 and the other was a .22. In the bedroom there were two more casings, both .32 caliber. In addition detectives found blood spatter near the living room couch and bloodstains in the bedroom. Pools of blood had collected in the kitchen and the doorway to Johnson's bedroom. Investigators took only a few blood samples from the crime scene. One was from a blood splash on the wall near the bedroom doorway, but no sample was taken from the doorway blood pool itself. Investigators searched Richter's residence and found Johnson's gun safe, two boxes of .22-caliber ammunition, and a gun magazine loaded with cartridges of the same brand and type as the boxes. A ballistics expert later concluded the .22-caliber bullet that struck Klein and the .22-caliber shell found in the living room matched the ammunition found in Richter's home and bore markings consistent with the model of gun for which the magazine was designed. Richter and Branscombe were arrested. At first Richter denied involvement. He would later admit taking Johnson's pistol and disposing of it and of the .32-caliber weapon Branscombe used to shoot Johnson and Klein. Richter's counsel produced Johnson's missing pistol, but neither of the guns used to shoot Johnson and Klein was found.B Branscombe and Richter were tried together on charges of murder, attempted murder, burglary, and robbery. Only Richter's case is presented here. The prosecution built its case on Johnson's testimony and on circumstantial evidence. Its opening statement took note of the shell casings found at the crime scene and the ammunition and gun safe found at Richter's residence. Defense counsel offered explanations for the circumstantial evidence and derided Johnson as a drug dealer, a paranoid, and a trigger-happy gun fanatic who had drawn a pistol on Branscombe and Richter the last time he had seen them. And there were inconsistencies in Johnson's story. In his 911 call, for instance, Johnson first said there were four or five men who had broken into his house, not two; and in the call he did not identify Richter and Branscombe among the intruders. Blood evidence does not appear to have been part of the prosecution's planned case prior to trial, and investigators had not analyzed the few blood samples taken from the crime scene. But the opening statement from the defense led the prosecution to alter its approach. Richter's attorney outlined the theory that Branscombe had fired on Johnson in self-defense and that Klein had been killed not on the living room couch but in the crossfire in the bedroom doorway. Defense counsel stressed deficiencies in the investigation, including the absence of forensic support for the prosecution's version of events. The prosecution took steps to adjust to the counterattack now disclosed. Without advance notice and over the objection of Richter's attorney, one of the detectives who investigated the shootings testified for the prosecution as an expert in blood pattern evidence. He concluded it was unlikely Klein had been shot outside the living room and then moved to the couch, given the patterns of blood on Klein's face, as well as other evidence including "high velocity" blood spatter near the couch consistent with the location of a shooting. The prosecution also offered testimony from a serologist. She testified the blood sample taken near the pool by the bedroom door could be Johnson's but not Klein's. Defense counsel's cross-examination probed weaknesses in the testimony of these two witnesses. The detective who testified on blood patterns acknowledged that his inferences were imprecise, that it was unlikely Klein had been lying down on the couch when shot, and that he could not say the blood in the living room was from either of Klein's wounds. Defense counsel elicited from the serologist a concession that she had not tested the bedroom blood sample for cross-contamination. She said that if the year-old sample had degraded, it would be difficult to tell whether blood of Klein's type was also present in the sample. For the defense, Richter's attorney called seven witnesses. Prominent among these was Richter himself. Richter testified he and Branscombe returned to Johnson's house just before the shootings in order to deliver something to one of Johnson's roommates. By Richter's account, Branscombe entered the house alone while Richter waited in the driveway; but after hearing screams and gunshots, Richter followed inside. There he saw Klein lying not on the couch but in the bedroom doorway, with Johnson on the bed and Branscombe standing in the middle of the room. According to Richter, Branscombe said he shot at Johnson and Klein after they attacked him. Other defense witnesses provided some corroboration for Richter's story. His former girlfriend, for instance, said she saw the gun safe at Richter's house shortly before the shootings. The jury returned a verdict of guilty on all charges. Richter was sentenced to life without parole. On appeal, his conviction was affirmed. People v. Branscombe, 72 Cal. Rptr. 2d 773 (Cal. App. 1998) (officially depublished). The California Supreme Court denied a petition for review, People v. Branscombe, No. S069751, 1998 Cal. LEXIS 4252 (June 24, 1998), and Richter did not file a petition for certiorari with this Court. His conviction became final.C Richter later petitioned the California Supreme Court for a writ of habeas corpus. He asserted a number of grounds for relief, including ineffective assistance of counsel. As relevant here, he claimed his counsel was deficient for failing to present expert testimony on serology, pathology, and blood spatter patterns, testimony that, he argued, would disclose the source of the blood pool in the bedroom doorway. This, he contended, would bolster his theory that Johnson had moved Klein to the couch. He offered affidavits from three types of forensic experts. First, he provided statements from two blood serologists who said there was a possibility Klein's blood was intermixed with blood of Johnson's type in the sample taken from near the pool in the bedroom doorway. Second, he provided a statement from a pathologist who said the blood pool was too large to have come from Johnson given the nature of his wounds and his own account of his actions while waiting for the police. Third, he provided a statement from an expert in bloodstain analysis who said the absence of "a large number of satellite droplets" in photographs of the area around the blood in the bedroom doorway was inconsistent with the blood pool coming from Johnson as he stood in the doorway. App. 118. Richter argued this evidence established the possibility that the blood in the bedroom doorway came from Klein, not Johnson. If that were true, he argued, it would confirm his account, not Johnson's. The California Supreme Court denied Richter's petition in a one-sentence summary order. See In re Richter, No. S082167 (Mar. 28, 2001), App. to Pet. for Cert. 22a. Richter did not seek certiorari from this Court. After the California Supreme Court issued its summary order denying relief, Richter filed a petition for habeas corpus in United States District Court for the Eastern District of California. He reasserted the claims in his state petition. The District Court denied his petition, and a three-judge panel of the Court of Appeals for the Ninth Circuit affirmed. See Richter v. Hickman, 521 F. 3d 1222 (2008). The Court of Appeals granted rehearing en banc and reversed the District Court's decision. See Richter v. Hickman, 578 F. 3d 944 (2009). As a preliminary matter, the Court of Appeals questioned whether 28 U. S. C. §2254(d) was applicable to Richter's petition, since the California Supreme Court issued only a summary denial when it rejected his Strickland claims; but it determined the California decision was unreasonable in any event and that Richter was entitled to relief. The court held Richter's trial counsel was deficient for failing to consult experts on blood evidence in determining and pursuing a trial strategy and in preparing to rebut expert evidence the prosecution might — and later did — offer. Four judges dissented from the en banc decision. We granted certiorari. ___ (2010).II The statutory authority of federal courts to issue habeas corpus relief for persons in state custody is provided by 28 U. S. C. §2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of §2254(d) states: "An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-- "(1) 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; or "(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."As an initial matter, it is necessary to decide whether §2254(d) applies when a state court's order is unaccompanied by an opinion explaining the reasons relief has been denied. By its terms §2254(d) bars relitigation of any claim "adjudicated on the merits" in state court, subject only to the exceptions in §§2254(d)(1) and (d)(2). There is no text in the statute requiring a statement of reasons. The statute refers only to a "decision," which resulted from an "adjudication." As every Court of Appeals to consider the issue has recognized, determining whether a state court's decision resulted from an unreasonable legal or factual conclusion does not require that there be an opinion from the state court explaining the state court's reasoning. See Chadwick v. Janecka, 312 F. 3d 597, 605-606 (CA3 2002); Wright v. Secretary for Dept. of Corrections, 278 F. 3d 1245, 1253-1254 (CA11 2002); Sellan v. Kuhlman, 261 F. 3d 303, 311-312 (CA2 2001); Bell v. Jarvis, 236 F. 3d 149, 158-162 (CA4 2000) (en banc); Harris v. Stovall, 212 F. 3d 940, 943, n. 1 (CA6 2000); Aycox v. Lytle, 196 F. 3d 1174, 1177-1178 (CA10 1999); James v. Bowersox, 187 F. 3d 866, 869 (CA8 1999). And as this Court has observed, a state court need not cite or even be aware of our cases under §2254(d). Early v. Packer (per curiam). Where a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief. This is so whether or not the state court reveals which of the elements in a multipart claim it found insufficient, for §2254(d) applies when a "claim," not a component of one, has been adjudicated. There is no merit to the assertion that compliance with §2254(d) should be excused when state courts issue summary rulings because applying §2254(d) in those cases will encourage state courts to withhold explanations for their decisions. Opinion-writing practices in state courts are influenced by considerations other than avoiding scrutiny by collateral attack in federal court. Cf. In re Robbins, 18 Cal. 4th 770, 778, n. 1, 959 P. 2d 311, 316, n. 1 (1998) (state procedures limiting habeas are "a means of protecting the integrity of our own appeal and habeas corpus process," rather than a device for "insulating our judgments from federal court review" (emphasis deleted)). At the same time, requiring a statement of reasons could undercut state practices designed to preserve the integrity of the case-law tradition. The issuance of summary dispositions in many collateral attack cases can enable a state judiciary to concentrate its resources on the cases where opinions are most needed. See Brief for California Attorneys for Criminal Justice et al. as Amici Curiae 8 (noting that the California Supreme Court disposes of close to 10,000 cases a year, including more than 3,400 original habeas corpus petitions). There is no merit either in Richter's argument that §2254(d) is inapplicable because the California Supreme Court did not say it was adjudicating his claim "on the merits." The state court did not say it was denying the claim for any other reason. When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary. Cf. Harris v. Reed, 489 U. S. 255, 265 (1989) (presumption of a merits determination when it is unclear whether a decision appearing to rest on federal grounds was decided on another basis). The presumption may be overcome when there is reason to think some other explanation for the state court's decision is more likely. See, e.g., Ylst v. Nunnemaker, 501 U. S. 797, 803 (1991). Richter, however, does not make that showing. He mentions the theoretical possibility that the members of the California Supreme Court may not have agreed on the reasons for denying his petition. It is pure speculation, however, to suppose that happened in this case. And Richter's assertion that the mere possibility of a lack of agreement prevents any attribution of reasons to the state court's decision is foreclosed by precedent. See ibid. As has been noted before, the California courts or Legislature can alter the State's practices or elaborate more fully on their import. See Evans v. Chavis. But that has not occurred here. This Court now holds and reconfirms that §2254(d) does not require a state court to give reasons before its decision can be deemed to have been "adjudicated on the merits." Richter has failed to show that the California Supreme Court's decision did not involve a determination of the merits of his claim. Section 2254(d) applies to his petition.III Federal habeas relief may not be granted for claims subject to §2254(d) unless it is shown that the earlier state court's decision "was contrary to" federal law then clearly established in the holdings of this Court, §2254(d)(1); Williams v. Taylor, 529 U. S. 362, 412 (2000); or that it "involved an unreasonable application of" such law, §2254(d)(1); or that it "was based on an unreasonable determination of the facts" in light of the record before the state court, §2254(d)(2). The Court of Appeals relied on the second of these exceptions to §2254(d)'s relitigation bar, the exception in §2254(d)(1) permitting relitigation where the earlier state decision resulted from an "unreasonable application of" clearly established federal law. In the view of the Court of Appeals, the California Supreme Court's decision on Richter's ineffective-assistance claim unreasonably applied the holding in Strickland. The Court of Appeals' lengthy opinion, however, discloses an improper understanding of §2254(d)'s unreasonableness standard and of its operation in the context of a Strickland claim. The pivotal question is whether the state court's application of the Strickland standard was unreasonable. This is different from asking whether defense counsel's performance fell below Strickland's standard. Were that the inquiry, the analysis would be no different than if, for example, this Court were adjudicating a Strickland claim on direct review of a criminal conviction in a United States district court. Under AEDPA, though, it is a necessary premise that the two questions are different. For purposes of §2254(d)(1), "an unreasonable application of federal law is different from an incorrect application of federal law." Williams, supra, at 410. A state court must be granted a deference and latitude that are not in operation when the case involves review under the Strickland standard itself. A state court's determination that a claim lacks merit precludes federal habeas relief so long as "fairminded jurists could disagree" on the correctness of the state court's decision. Yarborough v. Alvarado, 541 U. S. 652, 664 (2004). And as this Court has explained, "[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." Ibid. "[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court." Knowles v. Mirzayance, 556 U. S. ___, ___ (2009) (slip op., at 9-10) (internal quotation marks omitted). Here it is not apparent how the Court of Appeals' analysis would have been any different without AEDPA. The court explicitly conducted a de novo review, 578 F. 3d, at 952; and after finding a Strickland violation, it declared, without further explanation, that the "state court's decision to the contrary constituted an unreasonable application of Strickland." 578 F. 3d, at 969. AEDPA demands more. Under §2254(d), a habeas court must determine what arguments or theories supported or, as here, could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court. The opinion of the Court of Appeals all but ignored "the only question that matters under §2254(d)(1)." Lockyer v. Andrade, 538 U. S. 63, 71 (2003). The Court of Appeals appears to have treated the unreasonableness question as a test of its confidence in the result it would reach under de novo review: Because the Court of Appeals had little doubt that Richter's Strickland claim had merit, the Court of Appeals concluded the state court must have been unreasonable in rejecting it. This analysis overlooks arguments that would otherwise justify the state court's result and ignores further limitations of §2254(d), including its requirement that the state court's decision be evaluated according to the precedents of this Court. See Renico v. Lett, 559 U. S. ___, ___ (2010) (slip op., at 11-12). It bears repeating that even a strong case for relief does not mean the state court's contrary conclusion was unreasonable. See Lockyer, supra, at 75. If this standard is difficult to meet, that is because it was meant to be. As amended by AEDPA, §2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U. S. 651, 664 (1996) (discussing AEDPA's "modified res judicata rule" under §2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther. Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U. S. 307, 332, n. 5 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement. The reasons for this approach are familiar. "Federal habeas review of state convictions frustrates both the States' sovereign power to punish offenders and their good-faith attempts to honor constitutional rights." Calderon v. Thompson, 523 U. S. 538, 555-556 (1998) (internal quotation marks omitted). It "disturbs the State's significant interest in repose for concluded litigation, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority." Reed, 489 U. S., at 282 (Kennedy, J., dissenting). Section 2254(d) is part of the basic structure of federal habeas jurisdiction, designed to confirm that state courts are the principal forum for asserting constitutional challenges to state convictions. Under the exhaustion requirement, a habeas petitioner challenging a state conviction must first attempt to present his claim in state court. 28 U. S. C. §2254(b). If the state court rejects the claim on procedural grounds, the claim is barred in federal court unless one of the exceptions to the doctrine of Wainwright v. Sykes, 433 U. S. 72, 82-84 (1977), applies. And if the state court denies the claim on the merits, the claim is barred in federal court unless one of the exceptions to §2254(d) set out in §§2254(d)(1) and (2) applies. Section 2254(d) thus complements the exhaustion requirement and the doctrine of procedural bar to ensure that state proceedings are the central process, not just a preliminary step for a later federal habeas proceeding, see id., at 90. Here, however, the Court of Appeals gave §2254(d) no operation or function in its reasoning. Its analysis illustrates a lack of deference to the state court's determination and an improper intervention in state criminal processes, contrary to the purpose and mandate of AEDPA and to the now well-settled meaning and function of habeas corpus in the federal system.IV The conclusion of the Court of Appeals that Richter demonstrated an unreasonable application by the state court of the Strickland standard now must be discussed. To have been entitled to relief from the California Supreme Court, Richter had to show both that his counsel provided deficient assistance and that there was prejudice as a result. To establish deficient performance, a person challenging a conviction must show that "counsel's representation fell below an objective standard of reasonableness." 466 U. S., at 688. A court considering a claim of ineffective assistance must apply a "strong presumption" that counsel's representation was within the "wide range" of reasonable professional assistance. Id., at 689. The challenger's burden is to show "that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id., at 687. With respect to prejudice, a challenger must demonstrate "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id., at 694. It is not enough "to show that the errors had some conceivable effect on the outcome of the proceeding." Id., at 693. Counsel's errors must be "so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." Id., at 687. "Surmounting Strickland's high bar is never an easy task." Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (slip op., at 14). An ineffective-assistance claim can function as a way to escape rules of waiver and forfeiture and raise issues not presented at trial, and so the Strickland standard must be applied with scrupulous care, lest "intrusive post-trial inquiry" threaten the integrity of the very adversary process the right to counsel is meant to serve. Strickland, 466 U. S., at 689-690. Even under de novo review, the standard for judging counsel's representation is a most deferential one. Unlike a later reviewing court, the attorney observed the relevant proceedings, knew of materials outside the record, and interacted with the client, with opposing counsel, and with the judge. It is "all too tempting" to "second-guess counsel's assistance after conviction or adverse sentence." Id., at 689; see also Bell v. Cone, 535 U. S. 685, 702 (2002); Lockhart v. Fretwell, 506 U. S. 364, 372 (1993). The question is whether an attorney's representation amounted to incompetence under "prevailing professional norms," not whether it deviated from best practices or most common custom. Strickland, 466 U. S., at 690. Establishing that a state court's application of Strickland was unreasonable under §2254(d) is all the more difficult. The standards created by Strickland and §2254(d) are both "highly deferential," id., at 689; Lindh v. Murphy, 521 U. S. 320, 333, n. 7 (1997), and when the two apply in tandem, review is "doubly" so, Knowles, 556 U. S., at ___ (slip op., at 11). The Strickland standard is a general one, so the range of reasonable applications is substantial. 556 U. S., at ___ (slip op., at 11). Federal habeas courts must guard against the danger of equating unreasonableness under Strickland with unreasonableness under §2254(d). When §2254(d) applies, the question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard.A With respect to defense counsel's performance, the Court of Appeals held that because Richter's attorney had not consulted forensic blood experts or introduced expert evidence, the California Supreme Court could not reasonably have concluded counsel provided adequate representation. This conclusion was erroneous.1 The Court of Appeals first held that Richter's attorney rendered constitutionally deficient service because he did not consult blood evidence experts in developing the basic strategy for Richter's defense or offer their testimony as part of the principal case for the defense. Strickland, however, permits counsel to "make a reasonable decision that makes particular investigations unnecessary." 466 U. S., at 691. It was at least arguable that a reasonable attorney could decide to forgo inquiry into the blood evidence in the circumstances here. Criminal cases will arise where the only reasonable and available defense strategy requires consultation with experts or introduction of expert evidence, whether pretrial, at trial, or both. There are, however, "countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way." Id., at 689. Rare are the situations in which the "wide latitude counsel must have in making tactical decisions" will be limited to any one technique or approach. Ibid. It can be assumed that in some cases counsel would be deemed ineffective for failing to consult or rely on experts, but even that formulation is sufficiently general that state courts would have wide latitude in applying it. Here it would be well within the bounds of a reasonable judicial determination for the state court to conclude that defense counsel could follow a strategy that did not require the use of experts regarding the pool in the doorway to Johnson's bedroom. From the perspective of Richter's defense counsel when he was preparing Richter's defense, there were any number of hypothetical experts — specialists in psychiatry, psychology, ballistics, fingerprints, tire treads, physiology, or numerous other disciplines and subdisciplines — whose insight might possibly have been useful. An attorney can avoid activities that appear "distractive from more important duties." Bobby v. Van Hook, 558 U. S. ___, ___ (2009) (per curiam) (slip op., at 8). Counsel was entitled to formulate a strategy that was reasonable at the time and to balance limited resources in accord with effective trial tactics and strategies. See Knowles, supra, at ___ (slip op., at 14-15); Rompilla v. Beard, 545 U. S. 374, 383 (2005); Wiggins v. Smith; Strickland, 466 U. S., at 699. In concluding otherwise the Court of Appeals failed to "reconstruct the circumstances of counsel's challenged conduct" and "evaluate the conduct from counsel's perspective at the time." Id., at 689. In its view Klein's location was "the single most critical issue in the case" given the differing theories of the prosecution and the defense, and the source of the blood in the doorway was therefore of central concern. 578 F. 3d, at 953-954. But it was far from a necessary conclusion that this was evident at the time of the trial. There were many factual differences between prosecution and defense versions of the events on the night of the shootings. It is only because forensic evidence has emerged concerning the source of the blood pool that the issue could with any plausibility be said to stand apart. Reliance on "the harsh light of hindsight" to cast doubt on a trial that took place now more than 15 years ago is precisely what Strickland and AEDPA seek to prevent. Cone, 535 U. S., at 702; see also Lockhart, 506 U. S., at 372. Even if it had been apparent that expert blood testimony could support Richter's defense, it would be reasonable to conclude that a competent attorney might elect not to use it. The Court of Appeals opinion for the en banc majority rests in large part on a hypothesis that reasonably could have been rejected. The hypothesis is that without jeopardizing Richter's defense, an expert could have testified that the blood in Johnson's doorway could not have come from Johnson and could have come from Klein, thus suggesting that Richter's version of the shooting was correct and Johnson's a fabrication. This theory overlooks the fact that concentrating on the blood pool carried its own serious risks. If serological analysis or other forensic evidence demonstrated that the blood came from Johnson alone, Richter's story would be exposed as an invention. An attorney need not pursue an investigation that would be fruitless, much less one that might be harmful to the defense. Strickland, supra, at 691. Here Richter's attorney had reason to question the truth of his client's account, given, for instance, Richter's initial denial of involvement and the subsequent production of Johnson's missing pistol. It would have been altogether reasonable to conclude that this concern justified the course Richter's counsel pursued. Indeed, the Court of Appeals recognized this risk insofar as it pertained to the suggestion that counsel should have had the blood evidence tested. 578 F. 3d, at 956, n. 9. But the court failed to recognize that making a central issue out of blood evidence would have increased the likelihood of the prosecution's producing its own evidence on the blood pool's origins and composition; and once matters proceeded on this course, there was a serious risk that expert evidence could destroy Richter's case. Even apart from this danger, there was the possibility that expert testimony could shift attention to esoteric matters of forensic science, distract the jury from whether Johnson was telling the truth, or transform the case into a battle of the experts. Accord, Bonin v. Calderon, 59 F. 3d 815, 836 (CA9 1995). True, it appears that defense counsel's opening statement itself inspired the prosecution to introduce expert forensic evidence. But the prosecution's evidence may well have been weakened by the fact that it was assembled late in the process; and in any event the prosecution's response shows merely that the defense strategy did not work out as well as counsel had hoped, not that counsel was incompetent. To support a defense argument that the prosecution has not proved its case it sometimes is better to try to cast pervasive suspicion of doubt than to strive to prove a certainty that exonerates. All that happened here is that counsel pursued a course that conformed to the first option. If this case presented a de novo review of Strickland, the foregoing might well suffice to reject the claim of inadequate counsel, but that is an unnecessary step. The Court of Appeals must be reversed if there was a reasonable justification for the state court's decision. In light of the record here there was no basis to rule that the state court's determination was unreasonable. The Court of Appeals erred in dismissing strategic considerations like these as an inaccurate account of counsel's actual thinking. Although courts may not indulge "post hoc rationalization" for counsel's decisionmaking that contradicts the available evidence of counsel's actions, Wiggins, 539 U. S., at 526-527, neither may they insist counsel confirm every aspect of the strategic basis for his or her actions. There is a "strong presumption" that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than "sheer neglect." Yarborough v. Gentry, 540 U. S. 1, 8 (2003) (per curiam). After an adverse verdict at trial even the most experienced counsel may find it difficult to resist asking whether a different strategy might have been better, and, in the course of that reflection, to magnify their own responsibility for an unfavorable outcome. Strickland, however, calls for an inquiry into the objective reasonableness of counsel's performance, not counsel's subjective state of mind. 466 U. S., at 688.2 The Court of Appeals also found that Richter's attorney was constitutionally deficient because he had not expected the prosecution to offer expert testimony and therefore was unable to offer expert testimony of his own in response. The Court of Appeals erred in suggesting counsel had to be prepared for "any contingency," 578 F. 3d, at 946 (internal quotation marks omitted). Strickland does not guarantee perfect representation, only a " 'reasonably competent attorney.' " 466 U. S., at 687 (quoting McMann v. Richardson); see also Gentry, supra, at 7. Representation is constitutionally ineffective only if it "so undermined the proper functioning of the adversarial process" that the defendant was denied a fair trial. Strickland, supra, at 686. Just as there is no expectation that competent counsel will be a flawless strategist or tactician, an attorney may not be faulted for a reasonable miscalculation or lack of foresight or for failing to prepare for what appear to be remote possibilities. Here, Richter's attorney was mistaken in thinking the prosecution would not present forensic testimony. But the prosecution itself did not expect to make that presentation and had made no preparations for doing so on the eve of trial. For this reason alone, it is at least debatable whether counsel's error was so fundamental as to call the fairness of the trial into doubt. Even if counsel should have foreseen that the prosecution would offer expert evidence, Richter would still need to show it was indisputable that Strickland required his attorney to act upon that knowledge. Attempting to establish this, the Court of Appeals held that defense counsel should have offered expert testimony to rebut the evidence from the prosecution. But Strickland does not enact Newton's third law for the presentation of evidence, requiring for every prosecution expert an equal and opposite expert from the defense. In many instances cross-examination will be sufficient to expose defects in an expert's presentation. When defense counsel does not have a solid case, the best strategy can be to say that there is too much doubt about the State's theory for a jury to convict. And while in some instances "even an isolated error" can support an ineffective-assistance claim if it is "sufficiently egregious and prejudicial," Murray v. Carrier, 477 U. S. 478, 496 (1986), it is difficult to establish ineffective assistance when counsel's overall performance indicates active and capable advocacy. Here Richter's attorney represented him with vigor and conducted a skillful cross-examination. As noted, defense counsel elicited concessions from the State's experts and was able to draw attention to weaknesses in their conclusions stemming from the fact that their analyses were conducted long after investigators had left the crime scene. For all of these reasons, it would have been reasonable to find that Richter had not shown his attorney was deficient under Strickland.B The Court of Appeals further concluded that Richter had established prejudice under Strickland given the expert evidence his attorney could have introduced. It held that the California Supreme Court would have been unreasonable in concluding otherwise. This too was error. In assessing prejudice under Strickland, the question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently. See Wong v. Belmontes, 558 U. S. ___, ___ (2009) (per curiam) (slip op., at 13); Strickland, 466 U. S., at 693. Instead, Strickland asks whether it is "reasonably likely" the result would have been different. Id., at 696. This does not require a showing that counsel's actions "more likely than not altered the outcome," but the difference between Strickland's prejudice standard and a more-probable-than-not standard is slight and matters "only in the rarest case." Id., at 693, 697. The likelihood of a different result must be substantial, not just conceivable. Id., at 693. It would not have been unreasonable for the California Supreme Court to conclude Richter's evidence of prejudice fell short of this standard. His expert serology evidence established nothing more than a theoretical possibility that, in addition to blood of Johnson's type, Klein's blood may also have been present in a blood sample taken near the bedroom doorway pool. At trial, defense counsel extracted a concession along these lines from the prosecution's expert. The pathology expert's claim about the size of the blood pool could be taken to suggest only that the wounded and hysterical Johnson erred in his assessment of time or that he bled more profusely than estimated. And the analysis of the purported blood pattern expert indicated no more than that Johnson was not standing up when the blood pool formed. It was also reasonable to find Richter had not established prejudice given that he offered no evidence directly challenging other conclusions reached by the prosecution's experts. For example, there was no dispute that the blood sample taken near the doorway pool matched Johnson's blood type. The California Supreme Court reasonably could have concluded that testimony about patterns that form when blood drips to the floor or about the rate at which Johnson was bleeding did not undermine the results of chemical tests indicating blood type. Nor did Richter provide any direct refutation of the State's expert testimony describing how blood spatter near the couch suggested a shooting in the living room and how the blood patterns on Klein's face were inconsistent with Richter's theory that Klein had been killed in the bedroom doorway and moved to the couch. There was, furthermore, sufficient conventional circumstantial evidence pointing to Richter's guilt. It included the gun safe and ammunition found at his home; his flight from the crime scene; his disposal of the .32-caliber gun and of Johnson's pistol; his shifting story concerning his involvement; the disappearance prior to the arrival of the law enforcement officers of the .22-caliber weapon that killed Klein; the improbability of Branscombe's not being wounded in the shootout that resulted in a combined four bullet wounds to Johnson and Klein; and the difficulties the intoxicated and twice-shot Johnson would have had in carrying the body of a dying man from bedroom doorway to living room couch, not to mention the lack of any obvious reason for him to do so. There was ample basis for the California Supreme Court to think any real possibility of Richter's being acquitted was eclipsed by the remaining evidence pointing to guilt.* * * The California Supreme Court's decision on the merits of Richter's Strickland claim required more deference than it received. Richter was not entitled to the relief ordered by the Court of Appeals. The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered. Justice Kagan took no part in the consideration or decision of this case.KELLY HARRINGTON, WARDEN, PETITIONER v. JOSHUA RICHTERon writ of certiorari to the united states court of appeals for the ninth circuit[January 19, 2011] Justice Ginsburg, concurring in the judgment. In failing even to consult blood experts in preparation for the murder trial, Richter's counsel, I agree with the Court of Appeals, "was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Strickland v. Washington, 466 U. S. 668, 687 (1984). The strong force of the prosecution's case, however, was not significantly reduced by the affidavits offered in support of Richter's habeas petition. I would therefore not rank counsel's lapse "so serious as to deprive [Richter] of a fair trial, a trial whose result is reliable." Ibid. For that reason, I concur in the Court's judgment.

The Pole Attachments Act (Act) empowers the Federal Communications Commission (FCC), in the absence of parallel state regulation, to determine "just and reasonable" rates that utility companies may charge cable television systems for using utility poles as the physical medium for stringing television cable (47 U.S.C. 224(b)(1)). The Act, in effect, also provides a range of reasonableness within which the FCC may set rates when it indicates that a minimum reasonable rate is equivalent to the marginal cost of providing pole attachments, while the maximum reasonable rate is determined by computing the fully allocated cost of the construction and operation of each pole to which cable is attached (47 U.S.C. 224(d)(1)). Upon the complaints of three cable operators alleging that the yearly per-pole attachment rentals charged them by appellee Florida Power Corporation - $7.15, $6.24, and $5.50, respectively - were unreasonable, the FCC's Common Carrier Bureau issued orders reforming each of the pole attachment agreements to provide for yearly rents of $1.79 per pole. These orders were upheld by the FCC, which rejected appellee's constitutional arguments under the Takings and Due Process Clauses. However, on review, the Court of Appeals held that the Act violated the Fifth Amendment. The court first concluded that the Act authorized a permanent physical occupation of property constituting a per se taking for which compensation must be paid under Loretto v. Teleprompter Manhattan CATV Corp., . The court then struck down the Act under the Fifth Amendment on the ground that its authorization to the FCC to make initial rate determinations under prescribed standards usurped an exclusively judicial function.Held: 1. The Act does not authorize a taking of property within the meaning of the Fifth Amendment. Pp. 250-254. (a) The Court of Appeals erred in applying Loretto's narrow per se rule, since the element of required acquiescence is at the heart of the concept of occupation under Loretto, whereas nothing in the Act, as interpreted by the FCC, requires utility companies to give cable companies space on utility poles or prohibits utility companies from refusing to enter into attachment agreements. Since the Act clearly contemplates voluntary commercial leases rather than forced governmental licensing, it merely regulates the economic relations of utility company landlords and cable company tenants, which regulation is not a per se taking under Loretto. Pp. 250-253. (b) The FCC order did not effect a taking under traditional Fifth Amendment standards, which permit governmental regulation of rates chargeable on the use of private property devoted to public purposes so long as the rates set are not confiscatory. Here, the rate imposed was calculated according to the Act's maximum rate formula, which is not confiscatory since it provides for the recovery of fully allocated costs, including the actual cost of capital. Pp. 253-254. 2. Because the Act does not authorize a taking under the Fifth Amendment, it is unnecessary to review the Court of Appeals' holding that the Act is unconstitutional. P. 254. 772 F.2d 1537, reversed.MARSHALL, J., delivered the opinion for a unanimous Court. POWELL, J., filed a concurring opinion, in which O'CONNOR, J., joined, post, p. 254.[Footnote *] Together with No. 85-1660, Group W Cable, Inc., et al. v. Florida Power Corp. et al., also on appeal from the same court.Deputy Solicitor General Wallace argued the cause for appellants in No. 85-1658. With him on the brief were Solicitor General Fried, Harriet S. Shapiro, and Jack D. Smith. Jay E. Ricks argued the cause for appellants in No. 85-1660. With him on the briefs were Brenda L. Fox, E. Barrett Prettyman, Jr., and J. Christopher Redding.Allan J. Topols argued the cause for appellees in both cases and filed a brief for appellee Florida Power Corp. With him on the brief was Harry A. Evertz III. Peyton G. Bowman III and Daniel J. Wright filed a brief for appellees Alabama Power Co. et al. Shirley S. Fujimoto and Ralph A. Simmons filed a brief for appellee Tampa Electric Co.Fn Fn Paul Glist filed a brief for the Texas Cable TV Association, Inc., et al. as amici curiae urging reversal in No. 85-1658.Briefs of amici curiae urging affirmance were filed for the Edison Electric Institute by Robert L. Baum and Jan J. Sagett; for the Mountain States Telephone and Telegraph Co. et al. by L. Andrew Tollin; and for the Pacific Legal Foundation by Ronald A. Zumbrun and John H. Findley.Briefs of amici curiae were filed for the Association of American Railroads by Paul A. Cunningham and Kenneth P. Kolson; and for Nor-West Cable Communications et al. by Harold R. Farrow, Sol Schildhause, and Siegfried Hesse. JUSTICE MARSHALL delivered the opinion of the Court.These cases present consolidated appeals from a single decision of the United States Court of Appeals for the Eleventh Circuit holding that 47 U.S.C. 224 (the Pole Attachments Act) effects an unconstitutional taking of property without just compensation.IThe Pole Attachments Act, 92 Stat. 35, as amended, 47 U.S.C. 224, was enacted by Congress as a solution to a perceived danger of anticompetitive practices by utilities in connection with cable television service. Cable television operators, in order to deliver television signals to their subscribers, must have a physical carrier for the cable; in most instances underground installation of the necessary cables is impossible or impracticable. Utility company poles provide, under such circumstances, virtually the only practical physical medium for the installation of television cables. Over the past 30 years, utility companies throughout the country have entered into arrangements for the leasing of space on poles to operators of cable television systems. These contracts have generally provided for the payment by the cable companies of a yearly rent for space on each pole to which cables were attached, the fixed costs of making modifications to the poles and of physical installation of cables being borne by the cable operators. In many States the rates charged by the utility companies for these attachments have not been subject to regulation.In response to arguments by cable operators that utility companies were exploiting their monopoly position by engaging in widespread overcharging, Congress in the Pole Attachments Act authorized the Federal Communications Commission to fill the gap left by state systems of public utilities regulation.1 See S. Rep. No. 95-580, pp. 12-14 (1977). The Act provides that any cable company operating in a State which does not regulate the rates, terms, and conditions of pole attachments may seek relief from alleged overcharging before the Commission, which is empowered to "regulate the rates, terms, and conditions for pole attachments to provide that such rates, terms, and conditions are just and reasonable ... ." 47 U.S.C. 224(b)(1). The Act establishes a standard for the Commission's determination of rates, providing that "a rate is just and reasonable if it assures a utility the recovery of not less than the additional costs of providing pole attachments, nor more than an amount determined by multiplying the percentage of the total usable space, or the percentage of the total duct or conduit capacity, which is occupied by the pole attachment by the sum of the operating expenses and actual capital costs of the utility attributable to the entire pole, duct, conduit, or right-of-way." 224(d)(1).In 1963, appellee Florida Power Corporation (Florida Power) entered into a pole attachment agreement with appellant Cox Cablevision Corporation (Cox). Florida Power subsequently, in 1977 and 1980, contracted for similar purposes with Teleprompter Corporation and Teleprompter Southeast, Inc. (Teleprompter), and Acton CATV, Inc. (Acton), respectively.2 In November 1980, Teleprompter filed a complaint with the FCC, alleging that its 1980 per pole rent of $6.24 was unreasonable under the Act. In February 1981, Acton filed a complaint concerning the rate under its agreement, which was $7.15 per pole. In July 1981, the Commission's Common Carrier Bureau issued a memorandum opinion and order finding in favor of Teleprompter and Acton, reforming the agreements to provide in both cases for yearly rents of $1.79 per pole, and ordering refunds of excess rents paid after the filing of the complaints.3 Florida Power filed an application for review by the FCC; during the pendency of this application Cox filed a complaint seeking revision of the rent charge under its 1963 agreement, which was at that time set at $5.50 per pole. The Common Carrier Bureau ordered reformation of Cox's agreement to provide for rent of $1.79 per pole. In September 1984 the FCC, in a single order, approved the orders of the Common Carrier Bureau in all three cases. The Commission rejected constitutional arguments raised by Florida Power under the Takings and Due Process Clauses, and upheld the rate calculations made by the Bureau.Florida Power then sought review of the FCC's decision in the United States Court of Appeals for the Eleventh Circuit.4 Neither Florida Power nor any of the intervenors argued before the Eleventh Circuit that the Pole Attachments Act was unconstitutional.5 The Court of Appeals nonetheless held in a per curiam opinion that the Pole Attachments Act violated the Fifth Amendment. 772 F.2d 1537 (1985). The court first concluded that the Act effected a taking of property because it authorized a permanent physical occupation of property under our decision in Loretto v. Teleprompter Manhattan CATV Corp., . 772 F.2d, at 1544. The court then struck down the Act under the Fifth Amendment because it authorizes the FCC to make the initial determination of the amount of compensation to be paid under legislatively prescribed standards. "By prescribing a `binding rule' in regard to the ascertainment of just compensation," the court stated, "Congress has usurped what has long been held an exclusive judicial function." Id., at 1546.The FCC and intervenor cable operators noticed separate appeals from this decision. We noted probable jurisdiction and consolidated the cases for argument and decision, . We now reverse.IIThe Court of Appeals found at the outset that the Pole Attachments Act authorizes a permanent physical occupation of property, which, under the rule we adopted in Loretto, is per se a taking for which compensation must be paid. 772 F.2d, at 1543-1544. We disagree with this premise, for we find that Loretto has no application to the facts of this litigation.In Loretto we reviewed a New York statute which prohibited any owner of rental property from "interfer[ing] with the installation of cable television facilities upon his property or premises," and provided that the landlord could charge cable operators for access to his property only the amount "which the [State Commission on Cable Television] shall, by regulation, determine to be reasonable." 458 U.S., at 423, and n. 3. The appellant in Loretto had purchased an apartment building upon the roof of which appellee had mounted cables and switching boxes for the provision of cable television service to tenants. The State Commission on Cable Television had declared that a one-time charge of $1 might be levied by landlords in return for the statutory compulsory access to property. Id., at 424-425. We found that our prior decisions interpreting the Takings Clause, along with the purposes of the Clause itself, compelled the conclusion that "a permanent physical occupation authorized by government is a taking without regard to the public interests that it may serve." Id., at 426. We reversed the holding of the New York Court of Appeals that the challenged statute did not take property within the meaning of the Fifth Amendment, and remanded for consideration of the issue whether just compensation had been paid.We characterized our holding in Loretto as "very narrow." Id., at 441. The Court of Appeals in its decision in these cases broadened that narrow holding beyond the scope to which it legitimately applies. For, while the statute we considered in Loretto specifically required landlords to permit permanent occupation of their property by cable companies, nothing in the Pole Attachments Act as interpreted by the FCC in these cases gives cable companies any right to occupy space on utility poles, or prohibits utility companies from refusing to enter into attachment agreements with cable operators.6 The Act authorizes the FCC, in the absence of parallel state regulation, to review the rents charged by public utility landlords who have voluntarily entered into leases with cable company tenants renting space on utility poles. As we observed in Loretto, statutes regulating the economic relations of landlords and tenants are not per se takings. Id., at 440; see Bowles v. Willingham, ; Block v. Hirsh, ; see also Fresh Pond Shopping Center, Inc. v. Callahan, (dismissing challenge to rent control ordinance under Loretto for want of substantial federal question). "So long as these regulations do not require the landlord to suffer the physical occupation of a portion of his building by a third party, they will be analyzed under the multifactor inquiry generally applicable to nonpossessory governmental activity." Loretto, supra, at 440 (emphasis added).This element of required acquiescence is at the heart of the concept of occupation. As we said in Loretto:"[P]roperty law has long protected an owner's expectation that he will be relatively undisturbed at least in the possession of his property. To require, as well, that the owner permit another to exercise complete dominion literally adds insult to injury. Furthermore, such an occupation is qualitatively more severe than a regulation of the use of property, even a regulation that imposes affirmative duties on the owner, since the owner may have no control over the timing, extent, or nature of the invasion." 458 U.S., at 436 (citation omitted). Appellees contend, in essence, that it is a taking under Loretto for a tenant invited to lease at a rent of $7.15 to remain at the regulated rent of $1.79. But it is the invitation, not the rent, that makes the difference. The line which separates these cases from Loretto is the unambiguous distinction between a commercial lessee and an interloper with a government license. We conclude that the Court of Appeals erred in applying the per se rule of Loretto to the Pole Attachments Act.IIIThe remaining question, whether under traditional Fifth Amendment standards the challenged FCC order effected a taking of property, is readily answered. It is of course settled beyond dispute that regulation of rates chargeable from the employment of private property devoted to public uses is constitutionally permissible. See Munn v. Illinois, ; Permian Basin Area Rate Cases, . Such regulation of maximum rates or prices "may, consistently with the Constitution, limit stringently the return recovered on investment, for investors' interests provide only one of the variables in the constitutional calculus of reasonableness." Id., at 769. So long as the rates set are not confiscatory, the Fifth Amendment does not bar their imposition. St. Joseph Stock Yards Co. v. United States, ; see Permian Basin, supra, at 770.The Pole Attachments Act, as previously noted, provides a range of reasonableness within which the FCC may undertake ratesetting. The Act provides that the minimum reasonable rate is equal to "the additional costs of providing pole attachments," while the maximum reasonable rate is to be calculated "by multiplying the percentage of the total usable space, or the percentage of the total duct or conduit capacity, which is occupied by the pole attachment by the sum of the operating expenses and actual capital costs of the utility attributable to the entire pole, duct, conduit, or right-of-way." 47 U.S.C. 224(d)(1). The minimum measure is thus equivalent to the marginal cost of attachments, while the statutory maximum measure is determined by the fully allocated cost of the construction and operation of the pole to which cable is attached. The FCC has evidently interpreted the statute to provide that when it reduces the contract rate for pole attachments, it may only reduce to the maximum rate allowed under the statute. Tr. of Oral Arg. 10. The rate imposed by the Commission in this case was calculated according to the statutory formula for the determination of fully allocated cost. App. to Juris. Statement of FCC 23a. Appellees have not contended, nor could it seriously be argued, that a rate providing for the recovery of fully allocated cost, including the actual cost of capital, is confiscatory.7 Accordingly, we hold that the the FCC regulatory order challenged below does not effect a taking of property under the Fifth Amendment.IVBecause we hold that the Pole Attachments Act does not authorize a taking of property within the meaning of the Fifth Amendment, the holding of the Court of Appeals, that the Act is void because it unconstitutionally constrains the judicial determination of just compensation for takings, necessarily falls.8 The decision of the Court of Appeals is Reversed.

Section 9 (h) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, which imposes certain restrictions on, and denies the benefits of certain provisions of the National Labor Relations Act to, any labor organization the officers of which have not filed with the National Labor Relations Board the so-called "non-Communist" affidavits prescribed by 9 (h), is valid under the Federal Constitution. Pp. 385-415. 1. One of the purposes of the Labor Management Relations Act was to remove the obstructions to the free flow of commerce resulting from "political strikes" instigated by Communists who had infiltrated the management of labor organizations and were subordinating legitimate trade-union objectives to obstructive strikes when dictated by Communist Party leaders, often in support of the policies of a foreign government. Pp. 387-389. 2. Section 9 (h) does not merely withhold from noncomplying unions benefits granted by the Government; it also imposes on them a number of restrictions which would not exist if the National Labor Relations Act had not been enacted. However, it does not prohibit persons who do not sign the prescribed affidavit from holding union office. Pp. 389-390. 3. The remedy provided by 9 (h) bears reasonable relation to the evil which it was designed to reach, since Congress might reasonably find that Communists, unlike members of other political parties, and persons who believe in the overthrow of the Government by force, unlike persons of other beliefs, represent a continuing danger of disruptive political strikes when they hold positions of union leadership. Pp. 390-393. 4. Section 9 (h) is designed to protect the public, not against what Communists and others identified therein advocate or believe, but against what Congress has concluded they have done and are likely to do again; and the probable effects of the statute upon the free exercise of the right of speech and assembly must be weighed against the congressional determination that political strikes are evils of conduct which cause substantial harm to interstate commerce and that Communists and others identified by 9 (h) pose continuing threats to that public interest when in positions of union leadership. Pp. 393-400. 5. In view of the complexity of the problem of political strikes and how to deal with their leaders, the public interest in the good faith exercise of the great powers entrusted by Congress to labor bargaining representatives under the National Labor Relations Act, the fact that 9 (h) touches only a relatively few persons who combine certain political affiliations or beliefs with the occupancy of positions of great power over the economy of the country, and the fact that injury to interstate commerce would be an accomplished fact before any sanctions could be applied, the legislative judgment that interstate commerce must be protected from a continuing threat of political strikes is a permissible one in this case. Pp. 400-406. 6. The belief identified in 9 (h) is a belief in the objective of overthrow by force or by any illegal or unconstitutional methods of the Government of the United States as it now exists under the Constitution and laws thereof. The sole effect of the statute upon one who holds such beliefs is that he may be forced to relinquish his position as a union leader. So construed, in the light of the circumstances surrounding the problem, 9 (h) does not unduly infringe freedoms protected by the First Amendment. Pp. 406-412. 7. Section 9 (h) is not unconstitutionally vague; it does not violate the prohibition of Article I, 9 of the Constitution against bills of attainder or ex post facto laws; and it does not require a "test oath" contrary to the provision of Article VI that "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." Pp. 412-415. 79 F. Supp. 563, 170 F.2d 247, affirmed.[Footnote *] Together with No. 13, United Steelworkers of America et al. v. National Labor Relations Board, on certiorari to the Court of Appeals for the Seventh Circuit, argued October 11, 1949. No. 10. Although the officers of appellant union had not filed with the National Labor Relations Board the affidavit prescribed by 9 (h) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, 61 Stat. 136, 146, 29 U.S.C. (Supp. III) 141, 159 (h), appellant, claiming that the section was unconstitutional, sued to restrain the Board from holding a representation election in a bargaining unit in which appellant was the employee representative, until a hearing was granted to appellant. The three-judge district court dismissed the complaint. 79 F. Supp. 563. On appeal to this Court, affirmed, p. 415. No. 13. On an unfair labor practice complaint filed with the National Labor Relations Board by petitioner unions, the Board found that the employer had violated the National Labor Relations Act in refusing to bargain on the subject of pensions; but the Board postponed the effective date of its order compelling the employer to bargain, pending the unions' compliance with 9 (h). 77 N. L. R. B. 1. The Court of Appeals sustained the Board's action on both counts. 170 F.2d 247. This Court denied certiorari on the pension issue, , but granted certiorari on an issue regarding the constitutionality of 9 (h). . Affirmed, p. 415.Victor Rabinowitz argued the cause for appellants in No. 10. With him on the brief was Leonard B. Boudin. Samuel A. Neuburger was also of counsel.Thomas E. Harris argued the cause for petitioners in No. 13. With him on the brief were Arthur J. Goldberg and Frank Donner.Solicitor General Perlman argued the cause for appellee in No. 10 and respondent in No. 13. With him on the briefs were Robert L. Stern, Stanley M. Silverberg, Robert N. Denham, David P. Findling, A. Norman Somers, Mozart G. Ratner and Norton J. Come. Briefs of amici curiae supporting appellants in No. 10 were filed by Arthur J. Goldberg, Frank Donner and Thomas E. Harris for the Congress of Industrial Organizations; and Osmond K. Fraenkel and Jerome Walsh for the American Civil Liberties Union.Briefs of amici curiae supporting appellants in No. 10 and petitioners in No. 13 were filed by Robert W. Kenny, Robert J. Silberstein, Richard F. Watt and Edmund Hatfield for the National Lawyers' Guild; and Allan R. Rosenberg for the United Electrical, Radio & Machine Workers (C. I. O.).MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.These cases present for decision the constitutionality of 9 (h) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947.1 This section, commonly referred to as the non-Communist affidavit provision, reads as follows: "No investigation shall be made by the [National Labor Relations] Board of any question affecting commerce concerning the representation of employees, raised by a labor organization under subsection (c) of this section, no petition under section 9 (e) (1) shall be entertained, and no complaint shall be issued pursuant to a charge made by a labor organization under subsection (b) of section 10, unless there is on file with the Board an affidavit executed contemporaneously or within the preceding twelve-month period by each officer of such labor organization and the officers of any national or international labor organization of which it is an affiliate or constituent unit that he is not a member of the Communist Party or affiliated with such party, and that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods. The provisions of section 35 A of the Criminal Code shall be applicable in respect to such affidavits."In No. 10, the constitutional issue was raised by a suit to restrain the Board from holding a representation election in a bargaining unit in which appellant union was the employee representative, without permitting its name to appear on the ballot, and, should the election be held, to restrain the Board from announcing the results or certifying the victor, until a hearing was granted to appellant. A hearing had been denied because of the noncompliance with 9 (h). The complaint alleged that this requirement was unconstitutional. Appellee's motion to dismiss the complaint was granted by the statutory three-judge court, 79 F. Supp. 563 (1948), with one judge dissenting. Since the constitutional issues were properly raised and substantial, we noted probable jurisdiction.No. 13 is the outcome of an unfair labor practice complaint filed with the Board by petitioner unions. The Board found that Inland Steel Company had violated the Labor Relations Act in refusing to bargain on the subject of pensions. 77 N. L. R. B. 1 (1948). But the Board postponed the effective date of its order compelling the company to bargain, pending the unions' compliance with 9 (h). Both sides appealed: the company urged that the Act had been misinterpreted; the unions contended that 9 (h) was unconstitutional and therefore an invalid condition of a Board order. When the court below upheld the Board on both counts, 170 F.2d 247 (1948), with one judge dissenting as to 9 (h), both sides filed petitions for certiorari. We denied the petition pertaining to the pension issue, , but granted the petition directed at the affidavit requirement, , because of the manifest importance of the constitutional issues involved.I.The constitutional justification for the National Labor Relations Act was the power of Congress to protect interstate commerce by removing obstructions to the free flow of commerce. National Labor Relations Board v. Jones & Laughlin Steel Corp., . That Act was designed to remove obstructions caused by strikes and other forms of industrial unrest, which Congress found were attributable to the inequality of bargaining power between unorganized employees and their employers. It did so by strengthening employee groups, by restraining certain employer practices, and by encouraging the processes of collective bargaining.When the Labor Management Relations Act was passed twelve years later, it was the view of Congress that additional impediments to the free flow of commerce made amendment of the original Act desirable. It was stated in the findings and declaration of policy that: "Experience has further demonstrated that certain practices by some labor organizations, their officers, and members have the intent or the necessary effect of burdening or obstructing commerce by preventing the free flow of goods in such commerce through strikes and other forms of industrial unrest or through concerted activities which impair the interest of the public in the free flow of such commerce. The elimination of such practices is a necessary condition to the assurance of the rights herein guaranteed."2 One such obstruction, which it was the purpose of 9 (h) of the Act to remove, was the so-called "political strike." Substantial amounts of evidence were presented to various committees of Congress, including the committees immediately concerned with labor legislation, that Communist leaders of labor unions had in the past and would continue in the future to subordinate legitimate trade union objectives to obstructive strikes when dictated by Party leaders, often in support of the policies of a foreign government. And other evidence supports the view that some union leaders who hold to a belief in violent overthrow of the Government for reasons other than loyalty to the Communist Party likewise regard strikes and other forms of direct action designed to serve ultimate revolutionary goals as the primary objectives of labor unions which they control.3 At the committee hearings, the incident most fully developed was a strike at the Milwaukee plant of the Allis-Chalmers Manufacturing Company in 1941, when that plant was producing vital materials for the national defense program. A full hearing was given not only to company officials, but also to leaders of the international and local unions involved. Congress heard testimony that the strike had been called solely in obedience to Party orders for the purpose of starting the "snowballing of strikes" in defense plants.4 No useful purpose would be served by setting out at length the evidence before Congress relating to the problem of political strikes, nor can we attempt to assess the validity of each item of evidence. It is sufficient to say that Congress had a great mass of material before it which tended to show that Communists and others proscribed by the statute had infiltrated union organizations not to support and further trade union objectives, including the advocacy of change by democratic methods, but to make them a device by which commerce and industry might be disrupted when the dictates of political policy required such action.II.The unions contend that the necessary effect of 9 (h) is to make it impossible for persons who cannot sign the oath to be officers of labor unions. They urge that such a statute violates fundamental rights guaranteed by the First Amendment: the right of union officers to hold what political views they choose and to associate with what political groups they will, and the right of unions to choose their officers without interference from government.5 The Board has argued, on the other hand, that 9 (h) presents no First Amendment problem because its sole sanction is the withdrawal from noncomplying unions of the "privilege" of using its facilities.Neither contention states the problem with complete accuracy. It cannot be denied that the practical effect of denial of access to the Board and the denial of a place on the ballot in representation proceedings is not merely to withhold benefits granted by the Government but to impose upon noncomplying unions a number of restrictions which would not exist if the Board had not been established.6 The statute does not, however, specifically forbid persons who do not sign the affidavit from holding positions of union leadership nor require their discharge from office. The fact is that 9 (h) may well make it difficult for unions to remain effective if their officers do not sign the affidavits. How difficult depends upon the circumstances of the industry, the strength of the union and its organizational discipline. We are, therefore, neither free to treat 9 (h) as if it merely withdraws a privilege gratuitously granted by the Government, nor able to consider it a licensing statute prohibiting those persons who do not sign the affidavit from holding union office. The practicalities of the situation place the proscriptions of 9 (h) somewhere between those two extremes. The difficult question that emerges is whether, consistently with the First Amendment, Congress, by statute, may exert these pressures upon labor unions to deny positions of leadership to certain persons who are identified by particular beliefs and political affiliations.III.There can be no doubt that Congress may, under its constitutional power to regulate commerce among the several States, attempt to prevent political strikes and other kinds of direct action designed to burden and interrupt the free flow of commerce. We think it is clear, in addition, that the remedy provided by 9 (h) bears reasonable relation to the evil which the statute was designed to reach. Congress could rationally find that the Communist Party is not like other political parties in its utilization of positions of union leadership as means by which to bring about strikes and other obstructions of commerce for purposes of political advantage, and that many persons who believe in overthrow of the Government by force and violence are also likely to resort to such tactics when, as officers, they formulate union policy.The fact that the statute identifies persons by their political affiliations and beliefs, which are circumstances ordinarily irrelevant to permissible subjects of government action, does not lead to the conclusion that such circumstances are never relevant. In re Summers, ; Hamilton v. Regents, . We have held that aliens may be barred from certain occupations because of a reasonable relation between that classification and the apprehended evil, Clarke v. Deckebach, ; Pearl Assurance Co. v. Harrington, , even though the Constitution forbids arbitrary banning of aliens from the pursuit of lawful occupations. Truax v. Raich, ; Takahashi v. Fish and Game Commission, . Even distinctions based solely on ancestry, which we declared "are by their very nature odious to a free people," have been upheld under the unusual circumstances of wartime. Hirabayashi v. United States, .7 If accidents of birth and ancestry under some circumstances justify an inference concerning future conduct, it can hardly be doubted that voluntary affiliations and beliefs justify a similar inference when drawn by the legislature on the basis of its investigations. This principle may be illustrated by reference to statutes denying positions of public importance to groups of persons identified by their business affiliations. One federal statute,8 for example, provides that no partner or employee of a firm primarily engaged in underwriting securities may be a director of a national bank. This Court noted that the statute is directed "to the probability or likelihood, based on the experience of the 1920's, that a bank director interested in the underwriting business may use his influence in the bank to involve it or its customers in securities which his underwriting house has in its portfolio or has committed itself to take." Board of Governors v. Agnew, . It was designed "to remove tempting opportunities from the management and personnel of member banks." Id. at p. 449. There was no showing, nor was one required, that all employees of underwriting firms would engage in such conduct. Because of their business connections, carrying as they do certain loyalties, interests and disciplines, those persons were thought to pose a continuing threat of participation in the harmful activities described above. Political affiliations of the kind here involved, no less than business affiliations, provide rational ground for the legislative judgment that those persons proscribed by 9 (h) would be subject to "tempting opportunities" to commit acts deemed harmful to the national economy. In this respect, 9 (h) is not unlike a host of other statutes which prohibit specified groups of persons from holding positions of power and public interest because, in the legislative judgment, they threaten to abuse the trust that is a necessary concomitant of the power of office.If no more were involved than possible loss of position, the foregoing would dispose of the case. But the more difficult problem here arises because, in drawing lines on the basis of beliefs and political affiliations, though it may be granted that the proscriptions of the statute bear a reasonable relation to the apprehended evil, Congress has undeniably discouraged the lawful exercise of political freedoms as well. Stated otherwise, the problem is this: Communists, we may assume, carry on legitimate political activities. Beliefs are inviolate. Cantwell v. Connecticut, . Congress might reasonably find, however, that Communists, unlike members of other political parties, and persons who believe in overthrow of the Government by force, unlike persons of other beliefs, represent a continuing danger of disruptive political strikes when they hold positions of union leadership. By exerting pressures on unions to deny office to Communists and others identified therein, 9 (h) undoubtedly lessens the threat to interstate commerce, but it has the further necessary effect of discouraging the exercise of political rights protected by the First Amendment. Men who hold union offices often have little choice but to renounce Communism or give up their offices. Unions which wish to do so are discouraged from electing Communists to office. To the grave and difficult problem thus presented we must now turn our attention.IV.The unions contend that once it is determined that this is a free speech case, the "clear and present danger" test must apply. See Schenck v. United States, . But they disagree as to how it should be applied. Appellant in No. 10 would require that joining the Communist Party or the expression of belief in overthrow of the Government by force be shown to be a clear and present danger of some substantive evil, since those are the doctrines affected by the statute. Petitioner in No. 13, on the other hand, would require a showing that political strikes, the substantive evil involved, are a clear and present danger to the security of the Nation or threaten widespread industrial unrest.This confusion suggests that the attempt to apply the term, "clear and present danger," as a mechanical test in every case touching First Amendment freedoms, without regard to the context of its application, mistakes the form in which an idea was cast for the substance of the idea. The provisions of the Constitution, said Mr. Justice Holmes, "are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth." Gompers v. United States, . Still less should this Court's interpretations of the Constitution be reduced to the status of mathematical formulas. It is the considerations that gave birth to the phrase, "clear and present danger," not the phrase itself, that are vital in our decision of questions involving liberties protected by the First Amendment.Although the First Amendment provides that Congress shall make no law abridging the freedom of speech, press or assembly, it has long been established that those freedoms themselves are dependent upon the power of constitutional government to survive. If it is to survive it must have power to protect itself against unlawful conduct and, under some circumstances, against incitements to commit unlawful acts. Freedom of speech thus does not comprehend the right to speak on any subject at any time. The important question that came to this Court immediately after the First World War was not whether, but how far, the First Amendment permits the suppression of speech which advocates conduct inimical to the public welfare.9 Some thought speech having a reasonable tendency to lead to such conduct might be punished. Justices Holmes and Brandeis took a different view. They thought that the greater danger to a democracy lies in the suppression of public discussion; that ideas and doctrines thought harmful or dangerous are best fought with words. Only, therefore, when force is very likely to follow an utterance before there is a chance for counter-argument to have effect may that utterance be punished or prevented.10 Thus, "the necessity which is essential to a valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the State [or Congress] constitutionally may seek to prevent ... ." Mr. Justice Brandeis, concurring in Whitney v. California, . By this means they sought to convey the philosophy that, under the First Amendment, the public has a right to every man's views and every man the right to speak them. Government may cut him off only when his views are no longer merely views but threaten, clearly and imminently, to ripen into conduct against which the public has a right to protect itself. But the question with which we are here faced is not the same one that Justices Holmes and Brandeis found convenient to consider in terms of clear and present danger. Government's interest here is not in preventing the dissemination of Communist doctrine or the holding of particular beliefs because it is feared that unlawful action will result therefrom if free speech is practiced. Its interest is in protecting the free flow of commerce from what Congress considers to be substantial evils of conduct that are not the products of speech at all. Section 9 (h), in other words, does not interfere with speech because Congress fears the consequences of speech; it regulates harmful conduct which Congress has determined is carried on by persons who may be identified by their political affiliations and beliefs. The Board does not contend that political strikes, the substantive evil at which 9 (h) is aimed, are the present or impending products of advocacy of the doctrines of Communism or the expression of belief in overthrow of the Government by force. On the contrary, it points out that such strikes are called by persons who, so Congress has found, have the will and power to do so without advocacy or persuasion that seeks acceptance in the competition of the market.11 Speech may be fought with speech. Falsehoods and fallacies must be exposed, not suppressed, unless there is not sufficient time to avert the evil consequences of noxious doctrine by argument and education. That is the command of the First Amendment. But force may and must be met with force. Section 9 (h) is designed to protect the public not against what Communists and others identified therein advocate or believe, but against what Congress has concluded they have done and are likely to do again. The contention of petitioner in No. 13 that this Court must find that political strikes create a clear and present danger to the security of the Nation or of widespread industrial strife in order to sustain 9 (h) similarly misconceives the purpose that phrase was intended to serve. In that view, not the relative certainty that evil conduct will result from speech in the immediate future, but the extent and gravity of the substantive evil must be measured by the "test" laid down in the Schenck case. But there the Court said that: "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." Schenck v. United States, supra at 52. (Emphasis supplied.)So far as the Schenck case itself is concerned, imminent danger of any substantive evil that Congress may prevent justifies the restriction of speech. Since that time this Court has decided that however great the likelihood that a substantive evil will result, restrictions on speech and press cannot be sustained unless the evil itself is "substantial" and "relatively serious," Brandeis, J., concurring in Whitney v. California, supra at 374, 377, or sometimes "extremely serious," Bridges v. California, . And it follows therefrom that even harmful conduct cannot justify restrictions upon speech unless substantial interests of society are at stake. But in suggesting that the substantive evil must be serious and substantial, it was never the intention of this Court to lay down an absolutist test measured in terms of danger to the Nation. When the effect of a statute or ordinance upon the exercise of First Amendment freedoms is relatively small and the public interest to be protected is substantial, it is obvious that a rigid test requiring a showing of imminent danger to the security of the Nation is an absurdity. We recently dismissed for want of substantiality an appeal in which a church group contended that its First Amendment rights were violated by a municipal zoning ordinance preventing the building of churches in certain residential areas. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Porterville, . And recent cases in this Court involving contempt by publication likewise have no meaning if imminent danger of national peril is the criterion.12 On the contrary, however, the right of the public to be protected from evils of conduct, even though First Amendment rights of persons or groups are thereby in some manner infringed, has received frequent and consistent recognition by this Court. We have noted that the blaring sound truck invades the privacy of the home and may drown out others who wish to be heard. Kovacs v. Cooper, . The unauthorized parade through city streets by a religious or political group disrupts traffic and may prevent the discharge of the most essential obligations of local government. Cox v. New Hampshire, . The exercise of particular First Amendment rights may fly in the face of the public interest in the health of children, Prince v. Massachusetts, , or of the whole community, Jacobson v. Massachusetts, , and it may be offensive to the moral standards of the community, Reynolds v. United States, ; Davis v. Beason, . And Government's obligation to provide an efficient public service, United Public Workers v. Mitchell, , and its interest in the character of members of the bar, In re Summers, , sometimes admit of limitations upon rights set out in the First Amendment. And see Giboney v. Empire Storage Co., . We have never held that such freedoms are absolute. The reason is plain. As Mr. Chief Justice Hughes put it, "Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses." Cox v. New Hampshire, supra at 574.When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented. The high place in which the right to speak, think, and assemble as you will was held by the Framers of the Bill of Rights and is held today by those who value liberty both as a means and an end indicates the solicitude with which we must view any assertion of personal freedoms. We must recognize, moreover, that regulation of "conduct" has all too frequently been employed by public authority as a cloak to hide censorship of unpopular ideas. We have been reminded that "It is not often in this country that we now meet with direct and candid efforts to stop speaking or publication as such. Modern inroads on these rights come from associating the speaking with some other factor which the state may regulate so as to bring the whole within official control."13 On the other hand, legitimate attempts to protect the public, not from the remote possible effects of noxious ideologies, but from present excesses of direct, active conduct, are not presumptively bad because they interfere with and, in some of its manifestations, restrain the exercise of First Amendment rights. Reynolds v. United States, supra; Prince v. Massachusetts, supra; Cox v. New Hampshire, supra; Giboney v. Empire Storage Co., supra. In essence, the problem is one of weighing the probable effects of the statute upon the free exercise of the right of speech and assembly against the congressional determination that political strikes are evils of conduct which cause substantial harm to interstate commerce and that Communists and others identified by 9 (h) pose continuing threats to that public interest when in positions of union leadership. We must, therefore, undertake the "delicate and difficult task ... to weigh the circumstances and to appraise the substantiality of the reasons advanced in support of the regulation of the free enjoyment of the rights." Schneider v. State, .V.The "reasons advanced in support of the regulation" are of considerable weight, as even the opponents of 9 (h) agreed. They are far from being "[m]ere legislative preferences or beliefs respecting matters of public convenience [which] may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions."14 It should be emphasized that Congress, not the courts, is primarily charged with determination of the need for regulation of activities affecting interstate commerce. This Court must, if such regulation unduly infringes personal freedoms, declare the statute invalid under the First Amendment's command that the opportunities for free public discussion be maintained. But insofar as the problem is one of drawing inferences concerning the need for regulation of particular forms of conduct from conflicting evidence, this Court is in no position to substitute its judgment as to the necessity or desirability of the statute for that of Congress. Cf. United Public Workers v. Mitchell, supra at 95, 102. In Bridges v. California, supra, we said that even restrictions on particular kinds of utterances, if enacted by a legislature after appraisal of the need, come to this Court "encased in the armor wrought by prior legislative deliberation." at 261. Compare Gitlow v. New York, . The deference due legislative determination of the need for restriction upon particular forms of conduct has found repeated expression in this Court's opinions.When compared with ordinances and regulations dealing with littering of the streets or disturbance of house-holders by itinerant preachers, the relative significance and complexity of the problem of political strikes and how to deal with their leaders becomes at once apparent. It must be remembered that 9 (h) is not an isolated statute dealing with a subject divorced from the problems of labor peace generally. It is a part of some very complex machinery set up by the Federal Government for the purpose of encouraging the peaceful settlement of labor disputes. Under the statutory scheme, unions which become collective bargaining representatives for groups of employees often represent not only members of the union but nonunion workers or members of other unions as well. Because of the necessity to have strong unions to bargain on equal terms with strong employers, individual employees are required by law to sacrifice rights which, in some cases, are valuable to them. See J. I. Case Co. v. Labor Board, . The loss of individual rights for the greater benefit of the group results in a tremendous increase in the power of the representative of the group - the union. But power is never without responsibility. And when authority derives in part from Government's thumb on the scales, the exercise of that power by private persons becomes closely akin, in some respects, to its exercise by Government itself. See Graham v. Brotherhood of Locomotive Firemen, ; Steele v. Louisville & N. R. Co., ; Tunstall v. Brotherhood of Locomotive Firemen, ; Wallace Corp. v. Labor Board, ; Railway Mail Association v. Corsi, .We do not suggest that labor unions which utilize the facilities of the National Labor Relations Board become Government agencies or may be regulated as such. But it is plain that when Congress clothes the bargaining representative "with powers comparable to those possessed by a legislative body both to create and restrict the rights of those whom it represents,"15 the public interest in the good faith exercise of that power is very great.What of the effects of 9 (h) upon the rights of speech and assembly of those proscribed by its terms? The statute does not prevent or punish by criminal sanctions the making of a speech, the affiliation with any organization, or the holding of any belief. But as we have noted, the fact that no direct restraint or punishment is imposed upon speech or assembly does not determine the free speech question. Under some circumstances, indirect "discouragements" undoubtedly have the same coercive effect upon the exercise of First Amendment rights as imprisonment, fines, injunctions or taxes. A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature.But we have here no statute which is either frankly aimed at the suppression of dangerous ideas16 nor one which, although ostensibly aimed at the regulation of conduct, may actually "be made the instrument of arbitrary suppression of free expression of views." Hague v. Committee for Industrial Organization, .17 There are here involved none of the elements of censorship or prohibition of the dissemination of information that were present in the cases mainly relied upon by those attacking the statute.18 The "discouragements" of 9 (h) proceed, not against the groups or beliefs identified therein, but only against the combination of those affiliations or beliefs with occupancy of a position of great power over the economy of the country. Congress has concluded that substantial harm, in the form of direct, positive action, may be expected from that combination. In this legislation, Congress did not restrain the activities of the Communist Party as a political organization; nor did it attempt to stifle beliefs. Compare West Virginia State Board of Education v. Barnette, .19 Section 9 (h) touches only a relative handful of persons, leaving the great majority of persons of the identified affiliations and beliefs completely free from restraint. And it leaves those few who are affected free to maintain their affiliations and beliefs subject only to possible loss of positions which Congress has concluded are being abused to the injury of the public by members of the described groups.We have previously had occasion to consider other statutes and regulations in which the interests involved were, in large measure, like those now being considered. In United Public Workers v. Mitchell, supra, we upheld a statute which provided that employees of the Federal Government could not participate in partisan political activities, concededly a First Amendment right, if they would retain their positions. The decision was not put upon the ground that government employment is a privilege to be conferred or withheld at will. For it was recognized that Congress may not "enact a regulation providing that no Republican, Jew or Negro shall be appointed to federal office, or that no federal employee shall attend Mass or take any active part in missionary work." at 100. But the rational connection between the prohibitions of the statute and its objects, the limited scope of the abridgment of First Amendment rights, and the large public interest in the efficiency of government service, which Congress had found necessitated the statute, led us to the conclusion that the statute may stand consistently with the First Amendment.Similarly, in In re Summers, supra, we upheld the refusal of a state supreme court to admit to membership of its bar an otherwise qualified person on the sole ground that he had conscientious scruples against war and would not use force to prevent wrong under any circumstances. Since he could not, so the justices of the state court found, swear in good faith to uphold the state constitution, which requires service in the militia in time of war, we held that refusal to permit him to practice law did not violate the First Amendment, as its commands are incorporated in the Due Process Clause of the Fourteenth Amendment. Again, the relation between the obligations of membership in the bar and service required by the state in time of war, the limited effect of the state's holding upon speech and assembly, and the strong interest which every state court has in the persons who become officers of the court were thought sufficient to justify the state action. See also Hamilton v. Regents, supra. It is contended that the principle that statutes touching First Amendment freedoms must be narrowly drawn dictates that a statute aimed at political strikes should make the calling of such strikes unlawful but should not attempt to bring about the removal of union officers, with its attendant effect upon First Amendment rights. We think, however, that the legislative judgment that interstate commerce must be protected from a continuing threat of such strikes is a permissible one in this case. The fact that the injury to interstate commerce would be an accomplished fact before any sanctions could be applied, the possibility that a large number of such strikes might be called at a time of external or internal crisis, and the practical difficulties which would be encountered in detecting illegal activities of this kind are factors which are persuasive that Congress should not be powerless to remove the threat, not limited to punishing the act. We recently said that "nothing in the Constitution prevents Congress from acting in time to prevent potential injury to the national economy from becoming a reality." North American Co. v. Securities & Exchange Commission, . While this statement may be subject to some qualification, it indicates the wide scope of congressional power to keep from the channels of commerce that which would hinder and obstruct such commerce.VI.Previous discussion has considered the constitutional questions raised by 9 (h) as they apply alike to members of the Communist Party and affiliated organizations and to persons who believe in overthrow of the Government by force. The breadth of the provision concerning belief in overthrow of the Government by force would raise additional questions, however, if it were read very literally to include all persons who might, under any conceivable circumstances, subscribe to that belief.But we see no reason to construe the statute so broadly. It is within the power and is the duty of this Court to construe a statute so as to avoid the danger of unconstitutionality if it may be done in consonance with the legislative purpose. United States v. Congress of Industrial Organizations, ; United States v. Delaware & Hudson Co., . In enacting 9 (h), Congress had as its objective the protection of interstate commerce from direct interference, not any intent to disturb or proscribe beliefs as such. Its manifest purpose was to bring within the terms of the statute only those persons whose beliefs strongly indicate a will to engage in political strikes and other forms of direct action when, as officers, they direct union activities. The congressional purpose is therefore served if we construe the clause, "that he does not believe in, and is not a member of or supports any organization that believes in or teaches, the overthrow of the United States Government by force or by any illegal or unconstitutional methods," to apply to persons and organizations who believe in violent overthrow of the Government as it presently exists under the Constitution as an objective, not merely a prophecy. Congress might well find that such persons - those who believe that the present form of the Government of the United States should be changed by force or other illegal methods - would carry that objective into their conduct of union affairs by calling political strikes designed to weaken and divide the American people, whether they consider actual overthrow of the Government to be near or distant. It is to those persons that 9 (h) is intended to apply, and only to them. We hold, therefore, that the belief identified in 9 (h) is a belief in the objective of overthrow by force or by any illegal or unconstitutional methods of the Government of the United States as it now exists under the Constitution and laws thereof.As thus construed, we think that the "belief" provision of the oath presents no different problem from that present in that part of the section having to do with membership in the Communist Party. Of course we agree that one may not be imprisoned or executed because he holds particular beliefs. But to attack the straw man of "thought control" is to ignore the fact that the sole effect of the statute upon one who believes in overthrow of the Government by force and violence - and does not deny his belief - is that he may be forced to relinquish his position as a union leader. That fact was crucial in our discussion of the statute as it relates to membership in the Communist Party. To quote, with pertinent substitutions, an apt statement of that principle, post, p. 434: "The Act does not suppress or outlaw the [belief in overthrow of the Government], nor prohibit it or [those who hold that belief] from engaging in any aboveboard activity ... . No individual is forbidden to be or to become a philosophical [believer in overthrow of Government] or a full-fledged member of [a group which holds that belief]. No one is penalized for writing or speaking in favor of [such a belief] or its philosophy. Also, the Act does not require or forbid anything whatever to any person merely because he is [a believer in overthrow of the Government by force]. It applies only to one who becomes an officer of a labor union."If the principle that one may under no circumstances be required to state his beliefs on any subject nor suffer the loss of any right or privilege because of his beliefs be a valid one, its application in other possible situations becomes relevant. Suppose, for example, that a federal statute provides that no person may become a member of the Secret Service force assigned to protect the President unless he swears that he does not believe in assassination of the President. Is this beyond the power of Congress, whatever the need revealed by its investigations? An affirmative answer hardly commends itself to reason unless, indeed, the Bill of Rights has been converted into a "suicide pact." Terminiello v. Chicago, (dissenting opinion). Yet the example chosen is far-fetched only because of the manifest absurdity of reliance upon an oath in such a situation. One can have no doubt that the screening process in the selection of persons to occupy such positions probes far deeper than mere oath-taking can possibly do.To hold that such an oath is permissible, on the other hand, is to admit that the circumstances under which one is asked to state his belief and the consequences which flow from his refusal to do so or his disclosure of a particular belief make a difference. The reason for the difference has been pointed out at some length above. First, the loss of a particular position is not the loss of life or liberty. We have noted that the distinction is one of degree, and it is for this reason that the effect of the statute in proscribing beliefs - like its effect in restraining speech or freedom of association - must be carefully weighed by the courts in determining whether the balance struck by Congress comports with the dictates of the Constitution. But it is inaccurate to speak of 9 (h) as "punishing" or "forbidding" the holding of beliefs, any more than it punishes or forbids membership in the Communist Party.Second, the public interest at stake in ascertaining one's beliefs cannot automatically be assigned at zero without consideration of the circumstances of the inquiry. If it is admitted that beliefs are springs to action, it becomes highly relevant whether the person who is asked whether he believes in overthrow of the Government by force is a general with five hundred thousand men at his command or a village constable. To argue that because the latter may not be asked his beliefs the former must necessarily be exempt is to make a fetish of beliefs. The answer to the implication that if this statute is upheld "then the power of government over beliefs is as unlimited as its power over conduct and the way is open to force disclosure of attitudes on all manner of social, economic, moral and political issues," post, p. 438, is that that result does not follow "while this Court sits."20 The circumstances giving rise to the inquiry, then, are likewise factors to be weighed by the courts, giving due weight, of course, to the congressional judgment concerning the need. In short, the problem of balancing the conflicting individual and national interests involved is no different from the problem presented by proscriptions based upon political affiliations.Insofar as a distinction between beliefs and political affiliations is based upon absence of any "overt act" in the former case, it is relevant, if at all, in connection with problems of proof. In proving that one swore falsely that he is not a Communist, the act of joining the Party is crucial. Proof that one lied in swearing that he does not believe in overthrow of the Government by force, on the other hand, must consist in proof of his mental state. To that extent they differ.To state the difference, however, is but to recognize that while objective facts may be proved directly, the state of a man's mind must be inferred from the things he says or does. Of course we agree that the courts cannot "ascertain the thought that has had no outward manifestation." But courts and juries every day pass upon knowledge, belief and intent - the state of men's minds - having before them no more than evidence of their words and conduct, from which, in ordinary human experience, mental condition may be inferred. See 2 Wigmore, Evidence (3d ed.) 244, 256 et seq. False swearing in signing the affidavit must, as in other cases where mental state is in issue, be proved by the outward manifestations of state of mind. In the absence of such manifestations, which are as much "overt acts" as the act of joining the Communist Party, there can be no successful prosecution for false swearing.21 Considering the circumstances surrounding the problem - the deference due the congressional judgment concerning the need for regulation of conduct affecting interstate commerce and the effect of the statute upon rights of speech, assembly and belief - we conclude that 9 (h) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, does not unduly infringe freedoms protected by the First Amendment. Those who, so Congress has found, would subvert the public interest cannot escape all regulation because, at the same time, they carry on legitimate political activities. Cf. Valentine v. Chrestensen, . To encourage unions to displace them from positions of great power over the national economy, while at the same time leaving free the outlets by which they may pursue legitimate political activities of persuasion and advocacy, does not seem to us to contravene the purposes of the First Amendment. That Amendment requires that one be permitted to believe what he will. It requires that one be permitted to advocate what he will unless there is a clear and present danger that a substantial public evil will result therefrom. It does not require that he be permitted to be the keeper of the arsenal.VII.There remain two contentions which merit discussion. One is that 9 (h) is unconstitutionally vague. The other is that it violates the mandate of Art. I, 9 of the Constitution that "No Bill of Attainder or ex post facto Law shall be passed."The argument as to vagueness stresses the breadth of such terms as "affiliated," "supports" and "illegal or unconstitutional methods." There is little doubt that imagination can conjure up hypothetical cases in which the meaning of these terms will be in nice question. The applicable standard, however, is not one of wholly consistent academic definition of abstract terms. It is, rather, the practical criterion of fair notice to those to whom the statute is directed. The particular context is all important.The only criminal punishment specified is the application of 35 (A) of the Criminal Code, 18 U.S.C. 1001, which covers only those false statements made "knowingly and willfully." The question in any criminal prosecution involving a non-Communist affidavit must therefore be whether the affiant acted in good faith or knowingly lied concerning his affiliations, beliefs, support of organizations, etc. And since the constitutional vice in a vague or indefinite statute is the injustice to the accused in placing him on trial for an offense, the nature of which he is given no fair warning, the fact that punishment is restricted to acts done with knowledge that they contravene the statute makes this objection untenable. As this Court pointed out in United States v. Ragen, , "A mind intent upon willful evasion is inconsistent with surprised innocence." Cf. Omaechevarria v. Idaho, ; Hygrade Provision Co. v. Sherman, ; Screws v. United States, . Without considering, therefore, whether in other circumstances the words used in 9 (h) would render a statute unconstitutionally vague and indefinite, we think that the fact that under 35 (A) of the Criminal Code no honest, untainted interpretation of those words is punishable removes the possibility of constitutional infirmity.The unions' argument as to bill of attainder cites the familiar cases, United States v. Lovett, ; Ex parte Garland, 4 Wall. 333 (1867); Cummings v. Missouri, 4 Wall. 277 (1867). Those cases and this also, according to the argument, involve the proscription of certain occupations to a group classified according to belief and loyalty. But there is a decisive distinction: in the previous decisions the individuals involved were in fact being punished for past actions; whereas in this case they are subject to possible loss of position only because there is substantial ground for the congressional judgment that their beliefs and loyalties will be transformed into future conduct. Of course, the history of the past conduct is the foundation for the judgment as to what the future conduct is likely to be; but that does not alter the conclusion that 9 (h) is intended to prevent future action rather than to punish past action.This distinction is emphasized by the fact that members of those groups identified in 9 (h) are free to serve as union officers if at any time they renounce the allegiances which constituted a bar to signing the affidavit in the past. Past conduct, actual or threatened by their previous adherence to affiliations and beliefs mentioned in 9 (h), is not a bar to resumption of the position. In the cases relied upon by the unions on the other hand, this Court has emphasized that, since the basis of disqualification was past action or loyalty, nothing that those persons proscribed by its terms could ever do would change the result. See United States v. Lovett, supra, at p. 314; Cummings v. Missouri, supra, at p. 327. Here the intention is to forestall future dangerous acts; there is no one who may not, by a voluntary alteration of the loyalties which impel him to action, become eligible to sign the affidavit. We cannot conclude that this section is a bill of attainder.In their argument on this point, the unions seek some advantage from references to English history pertinent to a religious test oath. That experience is written into our Constitution in the following provision of Article VI: "The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States." It is obvious that not all oaths were abolished; the mere fact that 9 (h) is in oath form hardly rises to the stature of a constitutional objection. All that was forbidden was a "religious Test." We do not think that the oath here involved can rightly be taken as falling within that category.Clearly the Constitution permits the requirement of oaths by officeholders to uphold the Constitution itself. The obvious implication is that those unwilling to take such an oath are to be barred from public office. For the President, a specific oath was set forth in the Constitution itself. Art. II, 1. And Congress has detailed an oath for other federal officers.22 Obviously, the Framers of the Constitution thought that the exaction of an affirmation of minimal loyalty to the Government was worth the price of whatever deprivation of individual freedom of conscience was involved. All that we need hold here is that the casting of 9 (h) into the mold of an oath does not invalidate it, if it is otherwise constitutional.We conclude that 9 (h) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, as herein construed, is compatible with the Federal Constitution and may stand. The judgments of the courts below are therefore. Affirmed.MR. JUSTICE DOUGLAS, MR. JUSTICE CLARK and MR. JUSTICE MINTON took no part in the consideration or decision of these cases.

Petitioner and her husband, Simons, were legally separated in New York, where they were domiciled, and he was ordered by the separation decree to make monthly alimony payments. He ultimately moved to Florida, where a year later he secured a divorce. Petitioner had valid constructive notice of the divorce action but entered no appearance. Simons made the monthly payments under the New York decree up to his death about eight years after the divorce. Petitioner claimed dower under Florida law when respondent, executor, offered Simons' will for probate. Respondent opposed the claim on the ground that because of the divorce petitioner was not Simons' wife when he died. Petitioner then brought this action in a Florida court seeking a declaration that the divorce had not destroyed her dower claim. The trial court's dismissal of the action was affirmed on appeal and the state supreme court declined review. Held: 1. The denial of petitioner's dower by the Florida courts did not violate the Full Faith and Credit Clause of the Constitution, since the New York decree, which was fully complied with by Simons, preserved no dower rights in his property. P. 84. 2. Any dower rights petitioner may have had in Simons' estate under Florida law did not survive the divorce decree, since under Florida law dower rights in Florida property are inchoate, and are extinguished by a divorce decree predicated upon constructive service. P. 85. 157 So.2d 199, affirmed.Robert C. Ward argued the cause for petitioner. On the brief was William Gresham Ward.Marion E. Sibley argued the cause for respondent. With him on the brief was Irving B. Levenson. MR. JUSTICE BRENNAN delivered the opinion of the Court.The question to be decided in this case is whether a husband's valid Florida divorce, obtained in a proceeding wherein his nonresident wife was served by publication only and did not make a personal appearance, unconstitutionally extinguished her dower right in his Florida estate.The petitioner and Sol Simons were domiciled in New York when, in 1946, she obtained a New York separation decree that included an award of monthly alimony. Sol Simons moved to Florida in 1951 and, a year later, obtained there a divorce in an action of which petitioner had valid constructive notice but in which she did not enter a personal appearance.1 After Sol Simons' death in Florida in 1960, respondent, the executor of his estate, offered his will for probate in the Probate Court of Dade County, Florida. Petitioner appeared in the proceeding and filed an election to take dower under Florida law, rather than have her rights in the estate governed by the terms of the will, which made no provision for her.2 The respondent opposed the dower claim, asserting that since Sol Simons had divorced petitioner she had not been his wife at his death, and consequently was not entitled to dower under Florida law. Petitioner thereupon brought the instant action in the Circuit Court for Dade County in order to set aside the divorce decree and to obtain a declaration that the divorce, even if valid to alter her marital status, did not destroy or impair her claim to dower. The action was dismissed after trial, and the Florida District Court of Appeal for the Third District affirmed. 157 So.2d 199.3 The Supreme Court of Florida declined to review the case, 166 So.2d 151. We granted certiorari, . We affirm.Petitioner's counsel advised us during oral argument that he no longer challenged the judgment below insofar as it embodied a holding that the 1952 Florida divorce was valid and terminated the marital status of the parties. We therefore proceed to the decision of the question whether the Florida courts unconstitutionally denied petitioner's dower claim.4 Petitioner argues that since she had not appeared in the Florida divorce action the Florida divorce court had no power to extinguish any right which she had acquired under the New York decree. She invokes the principle of Estin v. Estin, , where this Court decided that a Nevada divorce court, which had no personal jurisdiction over the wife, had no power to terminate a husband's obligation to provide the wife support as required by a pre-existing New York separation decree. As this was so, we there ruled that New York, in giving continued effect to the maintenance provisions of its separation decree, did not deny full faith and credit to the Nevada decree. See U.S. Const., Art. IV, 1.5 The application of the Estin principle to the instant case, petitioner contends, dictates that we hold the Florida courts to their constitutional duty to give effect to the New York decree, inherent in which is a preservation of her dower right.The short answer to this contention is that the only obligation imposed on Sol Simons by the New York decree, and the only rights granted petitioner under it, concerned monthly alimony for petitioner's support. Unlike the ex-husband in Estin, Sol Simons made the support payments called for by the separate maintenance decree notwithstanding his ex parte divorce. In making these payments until his death he complied with the full measure of the New York decree; when he died there was consequently nothing left of the New York decree for Florida to dishonor.This conclusion embodies our judgment that there is nothing in the New York decree itself that can be construed as creating or preserving any interest in the nature of or in lieu of dower in any property of the decedent, wherever located. Petitioner refers us to no New York law that treats such a decree as having that effect, or, for that matter, to any New York law that has such an effect irrespective of the existence of the decree. We think it clear that the burden of showing this rested upon petitioner. Cf. State Farm Ins. Co. v. Duel, ; Alaska Packers Assn. v. Industrial Accident Comm'n, . It follows that insofar as petitioner's argument rests on rights created by the New York decree or by New York law, the denial of her dower by the Florida courts was not a violation of the Full Faith and Credit Clause. Cf. Armstrong v. Armstrong, .Insofar as petitioner argues that since she was not subject to the jurisdiction of the Florida divorce court its decree could not extinguish any dower right existing under Florida law, Vanderbilt v. Vanderbilt, , the answer is that under Florida law no dower right survived the decree. The Supreme Court of Florida has said that dower rights in Florida property, being inchoate, are extinguished by a divorce decree predicated upon substituted or constructive service. Pawley v. Pawley, 46 So.2d 464.6 It follows that the Florida courts transgressed no constitutional bounds in denying petitioner dower in her ex-husband's Florida estate. Affirmed.

Appellants are incorporated communities of Thlinget Indians in Alaska. No reservation has been established for them. They operate salmon traps under permits issued by the Army Corps of Engineers and the United States Forest Service and regulations issued by the Secretary of the Interior. They sued to enjoin threatened enforcement against them of a statute of the State of Alaska forbidding the use of salmon traps. Their suit was dismissed, and the State Supreme Court affirmed. Held: 1. The permits issued by the Corps of Engineers and the Forest Service do not exempt these salmon traps from state law. Pp. 63-64. 2. Congress has neither authorized the use contrary to state law of the salmon traps here involved nor empowered the Secretary of the Interior to do so, and the judgment is affirmed. Pp. 62-76. 3. However, in view of all the circumstances and in order to avoid hardship, the stay heretofore granted will remain in force until the end of the 1962 salmon-fishing season. P. 76. ___ Alaska ___, 362 P.2d 901, affirmed.John W. Cragun argued the cause for appellants. With him on the briefs was Frances L. Horn.Ralph E. Moody, Attorney General of Alaska, and, by special leave of Court pro hac vice, Avrum M. Gross, Assistant Attorney General, argued the cause and filed briefs for appellee.Oscar H. Davis, by special leave of Court, argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Solicitor General Cox and Roger P. Marquis. MR. JUSTICE FRANKFURTER delivered the opinion of the Court.This is a companion case to No. 2, Metlakatla Indian Community v. Egan, ante, p. 45, but calls for separate treatment. Appellants seek the reversal of a decision of the Supreme Court of Alaska, ___ Alaska ___, 362 P.2d 901, affirming the dismissal of their petitions for injunctions against interference with their operation of fish traps in southeastern Alaska.The Organized Village of Kake and the Angoon Community Association are corporations chartered under the Wheeler-Howard Act of 1934, 48 Stat. 984, 988, as amended, 49 Stat. 1250 (1936), 25 U.S.C. 473a, 476, 477. Kake is located on Kupreanof Island, 100 miles south of Juneau. Angoon is located on Admiralty Island, 60 miles south of Juneau. They are occupied by Thlinget or Tlinget Indians, native to Alaska.Both communities are entirely dependent upon salmon fishing. In pursuance of a policy to create a sound fishing economy for the two groups, the United States purchased canneries and related properties for Angoon in 1948 and for Kake in 1950. Since these dates appellants have operated fish traps at specified locations in nearby waters, under permits granted by the Army Engineers to erect traps in navigable waters and by the United States Forest Service to anchor them in the Tongass National Forest. In March 1959 the Secretary of the Interior, by regulations issued under authority of the White Act, 43 Stat. 464, as amended, 48 U.S.C. 221-228, and the Alaska Statehood Act, 72 Stat. 339, permitted Angoon to operate three fish traps during the 1959 season and Kake four. 24 Fed. Reg. 2053, 2069. The following year the Secretary authorized permanent operation of these trapsites and specified one additional site for Angoon and five more for Kake for possible future authorization. 25 CFR (1961 Supp.) pt. 88.The history of this litigation is recited in Metlakatla Indian Community v. Egan, supra. It is sufficient to note here that Alaska in 1959 threatened to enforce against Kake and Angoon her anti-fish-trap conservation law, Alaska Laws 1959, c. 17, as amended by id., c. 95; that the State seized one fish trap at Kake, arrested the President of the Kake Village Council and the foreman of the crew attempting to moor the trap, and filed informations against them; that suit was filed by both Kake and Angoon in the interim United States District Court for Alaska to enjoin this interference with their claimed fishing rights; and that the dismissal of both complaints was affirmed by the Supreme Court of Alaska.The situation here differs from that of the Metlakatlans in that neither Kake nor Angoon has been provided with a reservation and in that there is no statutory authority under which the Secretary of the Interior might permit either to operate fish traps contrary to state law. Appellants do not rely heavily on the Secretary's regulations. Neither the White Act nor the Statehood Act, cited by the Secretary, supports a grant of immunity from state law. The White Act was a conservation and anti-monopoly measure. It authorized the Secretary to limit fishing times, places, and equipment in order to conserve fish but forbade him in so doing to create exclusive rights, even in Indians. Hynes v. Grimes Packing Co., . Because the rights claimed are exclusive in the Kakes and Angoons, they cannot have been created pursuant to the White Act, even though that statute now applies, if at all, only to Indians. Moreover, the White Act gives the Secretary power only to limit fishing, not to grant rights. The Statehood Act retained "absolute jurisdiction and control" of Indian "property (including fishing rights)" in the United States, but it did not give powers of the nature claimed to the Secretary of the Interior. No other source of authority appears available. The provisions now found in 25 U.S.C. 2 and 9, referring to the President's power to prescribe regulations for effectuating statutes "relating to Indian affairs," to settle accounts of "Indian affairs," and concerning "the management of all Indian affairs and of all matters arising out of Indian relations," derive from statutes of 1832 and 1834, 4 Stat. 564 and 4 Stat. 735, 738. In keeping with the policy of almost total tribal self-government prevailing when these statutes were passed, see pp. 71-72, infra, the Interior Department itself is of the opinion that the sole authority conferred by the first of these is that to implement specific laws, and by the second that over relations between the United States and the Indians - not a general power to make rules governing Indian conduct. United States Department of the Interior, Federal Indian Law (1958), pp. 54-55; Cohen, Handbook of Federal Indian Law (1945), p. 102. We agree that they do not support the fish-trap regulations.Both communities operate their traps under permits granted by the Army Corps of Engineers and by the United States Forest Service. But neither of these permits grants a right to be free of state regulation or prohibition. Like a certification by the Interstate Commerce Commission, each is simply acknowledgment that the activity does not violate federal law, and not an exemption from state licensing or police power requirements. Cf. Maurer v. Hamilton, ; South Carolina Highway Dept. v. Barnwell Bros., . The Engineers have no objection under the Rivers and Harbors Act, 30 Stat. 1121, 1151, 33 U.S.C. 403, to the obstruction of navigable streams incident to the operation of fish traps at Kake and Angoon; the Forest Service has no objection to the use of National Forest land to anchor them. Neither attempted to exempt these traps from state law.As in the companion case, certain grounds relied on by the Alaska court are no longer urged by the State. The principal dispute now concerns the meaning of 4 of the Statehood Act, in which the State disclaimed all right and title to and the United States retained "absolute jurisdiction and control" over, inter alia, "any lands or other property (including fishing rights), the right or title to which may be held by any Indians, Eskimos, or Aleuts (hereinafter called natives) or is held by the United States in trust for said natives."The United States in its brief amicus curiae contended that the reservation of absolute jurisdiction over Indian "property (including fishing rights)" ousted the State from any regulation of fishing by Indians in Alaska. Appellants urge that Congress intended to protect the Indians in their freedom to continue fishing as they had done before statehood, so that Alaska cannot interfere with the Indian fishing actually practiced at that time. They argue in addition that in using fish traps they were exercising an aboriginal right to fish that was protected by 4. The court below concluded that aboriginal rights of Alaskan natives have been extinguished, that appellants have no rights not enjoyed in common with all other Alaskans, and that 4 protects only exclusive rights given Indians by federal law.The United States wisely abandoned its position that Alaska has disclaimed the power to legislate with respect to any fishing activities of Indians in the State. Legislative history reveals no such intention in Congress, which was concerned with the protection of certain Indian claims in existence at the time of statehood. See, e. g., Hearings Before House Committee on Interior and Insular Affairs on H. R. 2535 and related bills, 84th Cong., 1st Sess. 124-131, 266-267, 381-383 (1955). But we cannot accept Alaska's contention that Indian "property (including fishing rights)" refers only to property owned by or held for Indians under provisions of federal law. Section 4 must be construed in light of the circumstances of its formulation and enactment. See Alaska Pacific Fisheries v. United States, . Congress was aware that few such rights existed in Alaska. Its concern was to preserve the status quo with respect to aboriginal and possessory Indian claims, so that statehood would neither extinguish them nor recognize them as compensable. See, e. g., House Hearings, supra, 130, 384 (1955) (Delegate Bartlett); Hearings Before Senate Committee on Interior and Insular Affairs on S. 50, 83d Cong., 2d Sess. 227 (Senator Jackson), 260-261 (1954).1 Discussion during hearings on the 1955 House bill affords further evidence that claims not based on federal law are included. Section 205 of that bill (like 6 of the bill as enacted) authorized Alaska to select large tracts of United States land for transfer to state ownership. It was understood that the disclaimer provision left the State free to choose Indian "property" if it desired, but that such a taking would leave unimpaired the Indians' right to sue the United States for any compensation that might later be established to be due. See House Hearings, supra, 135 (1955) (Delegate Bartlett). Feeling that experience had shown this procedure too slow to give prompt relief to the Indians, Oklahoma's Representative Edmondson proposed to exempt Indian property from the State's selection. Id., at 381. This was rejected as virtually destroying Alaska's right to select lands. For, although Representative Edmondson pointed out that the disclaimer extended only to property owned by Indians or held in trust for them, four representatives clearly stated their belief that the disclaimer included not just the few Alaska reservations but also the aboriginal or other unproved claims in dispute, which covered most if not all of Alaska. Id., at 383 (Representatives Engle, Dawson, Metcalf, Westland)."Fishing rights" first appeared in a Senate bill reported in 1951, S. Rep. No. 315, 82d Cong., 1st Sess. 2. Earlier bills had mentioned only land. The fishing-rights provision is unique to Alaska, although the disclaimer is in other respects the same as in earlier statutes. See pp. 67-68, infra. It was included because fishing rights are of vital importance to Indians in Alaska. House Hearings, supra, 125 (1955) (Delegate Bartlett). The existence of aboriginal fishing rights was affirmed by the Interior Department's Solicitor in 1942, 57 I. D. 461. There was almost no discussion of "fishing rights" in Congress. In earlier hearings the Senate Committee was considering a suggestion by Senator Cordon that all Indian property be granted to the State, reserving the right to seek federal compensation, except for property actually occupied by Indians. Asked to describe Indian possessory rights, Governor Heintzleman portrayed a smokehouse beside a stream, 50 miles from the town where they live, visited for fishing purposes perhaps two weeks each year. Senate Hearings, supra, 137 (1954). On a similar basis the Kakes and the Angoons have fished at the disputed locations since 1948 and 1950. It appears to be Alaskan custom that, although traps are taken from the water and replaced each year, one does not "jump" a trap-site. The prior claim of the first trapper is respected. See United States v. Libby, McNeil & Libby, 14 Alaska 37, 42, 107 F. Supp. 697, 700 (D. Alaska 1952); Gruening, The State of Alaska (1954), p. 171; 57 I. D. 461, 462 (1942). The Statehood Act by no means makes any claim of appellants to fishing rights compensable against the United States; neither does it extinguish such claims. The disclaimer was intended to preserve unimpaired the right of any Indian claimant to assert his claim, whether based on federal law, aboriginal right or simply occupancy, against the Government. Appellants' claims are "property (including fishing rights)" within 4.Because 4 of the Statehood Act provides that Indian "property (including fishing rights)" shall not only be disclaimed by the State as a proprietary matter but also "shall be and remain under the absolute jurisdiction and control of the United States," the parties have proceeded on the assumption that if Kake and Angoon are found to possess "fishing rights" within the meaning of this section the State cannot apply her law. Consequently argument has centered upon whether appellants have any such "rights."The assumption is erroneous. Although the reference to fishing rights is unique, the retention of "absolute" federal jurisdiction over Indian lands adopts the formula of nine prior statehood Acts. Indian lands in Arizona remained "under the absolute jurisdiction and control" of the United States, 36 Stat. 557, 569; yet in Williams v. Lee, , 223, we declared that the test of whether a state law could be applied on Indian reservations there was whether the application of that law would interfere with reservation self-government. The identical language appears in Montana's admission Act, 25 Stat. 676, 677, yet in Draper v. United States, , the Court held that a non-Indian who was accused of murdering another non-Indian on a Montana reservation could be prosecuted only in the state courts. The Montana statute applies also to North Dakota, South Dakota, and Washington. Identical provisions are found in the Acts admitting New Mexico (36 Stat. 557, 558-559) and Utah (28 Stat. 107, 108), and in the Constitutions of Idaho (1890, Art. 21, 19) and Wyoming (1890, Art. 21, 26), which were ratified by Congress (26 Stat. 215 (Idaho); 26 Stat. 222 (Wyoming)).Draper and Williams indicate that "absolute" federal jurisdiction is not invariably exclusive jurisdiction. The momentum of substantially identical past admission legislation touching Indians carries the settled meaning governing the jurisdiction of States over Indian property to the Alaska Statehood Act in light of its legislative history.Section 4 of the Statehood Act contains three provisions relating to Indian property. The State must disclaim right and title to such property; the United States retains "absolute jurisdiction and control" over it; the State may not tax it. On the urging of the Interior Department that Alaska be dealt with as had other States, these provisions replaced an earlier section granting to the State all lands not actually possessed and used by the United States. Hearings Before a Subcommittee of the House Committee on Public Lands on H. R. 206 and H. R. 1808, 80th Cong., 1st Sess. 2, 12, 14 (1947). The first and third provisions have nothing to do with this case; the second does not exclude state conservation laws from appellants' fish traps. The disclaimer of right and title by the State was a disclaimer of proprietary rather than governmental interest. It was determined, after some debate, to be the best way of ensuring that statehood would neither extinguish nor establish claims by Indians against the United States. If lands subject to the claim of Indian rights were transferred to the State, the Indians were not thereby to lose the right to make claims against the United States for damages. See Senate Hearings, supra, 286 (1954).The provision for "absolute jurisdiction and control" received little attention in Congress. In the 1954 Senate hearings the Committee was considering a provision copied from the Oklahoma statute that Indian lands should remain "subject to the jurisdiction, disposal, and control of the United States." Mr. Barney, on behalf of the Justice Department, urged the inclusion of such a provision in order to avoid the possibility that, under United States v. McBratney, , federal criminal jurisdiction over Indian reservations might be extinguished by statehood. Senators Barrett and Jackson thereupon expressed the clear desire that federal jurisdiction not be made exclusive over all disclaimed areas. Mr. Barney denied that the provision would deprive the State of "political jurisdiction" over disclaimed properties. Senator Cordon declared:"The State may well waive its claim to any right or title to the lands and still have all of its political or police power with respect to the actions of people on those lands, as long as that does not affect the title to the land." Senator Jackson said: "All that you are doing here is a disclaimer of proprietary interest," and Mr. Barney agreed. Senator Cordon said:"The act of admission gives to the State of Alaska political jurisdiction, including all that is meant by the term `police power,' within its boundaries unless there be express or definitely implied, which is the same thing, a reservation of exclusive jurisdiction in the United States." Senators Barrett and Jackson and Mr. Barney agreed. Mr. Slaughter of the Interior Department pointed out that a later section of the bill, now 11, provided for "exclusive" federal jurisdiction over Mt. McKinley National Park. Mr. Barney, in answer to a direct question, stated that "jurisdiction" in the Oklahoma statute and in his proposal for Indian property did not mean exclusive jurisdiction. Senate Hearings, supra, 283-287 (1954). The bill as reported contained no provision on jurisdiction but only a disclaimer of right and title, a reservation of federal power to extinguish Indian claims as if there had been no statehood Act, and an exemption from state taxation. Id., at 331. Provisions retaining federal "jurisdiction" and "absolute jurisdiction" were considered interchangeable by at least one committee, which reported the disclaimer in an Alaska bill as "almost identical" with those in the preceding 13 admission Acts. S. Rep. No. 315, 82d Cong., 1st Sess. 15 (1951).Most statehood bills contained the more common phrasing "absolute jurisdiction and control" rather than the Oklahoma phrase. Although this was the usual language employed to retain federal power in statehood acts, the Senate Committee in 1958 out of an abundance of caution deleted the word "jurisdiction" in order that no one might construe the statute as abolishing state power entirely. The Committee declared that it was not its intention by the retention of federal control to make the Alaska situation any different from that prevailing in other States as to state jurisdiction over Indian lands. S. Rep. No. 1163, 85th Cong., 1st Sess. 15 (1957). The House bill, which retained the usual language, was passed first, 104 Cong. Rec. 9756, and the Senate made no amendments to the House bill because it feared that statehood might be lost once again if the House had to act on a conference report. 104 Cong. Rec. 12009-12010. Senator Jackson stated that "the differences are of wording and language rather than policy ... designed to define more clearly some of the jurisdictional problems involved ... . The objective of both bills is identical. There is strong evidence that the end product of both bills would be identical." The Senate amendment was designed simply to make clear what an examination of past statutes and decisions makes clear also: that the words "absolute jurisdiction and control" are not intended to oust the State completely from regulation of Indian "property (including fishing rights)." "Absolute" in 4 carried the gloss of its predecessor statutes, meaning undiminished, not exclusive. Cf. Boston Sand & Gravel Co. v. United States, . The power of Alaska over Indians, except as granted by Congress in 1958, 72 Stat. 545, is the same as that of many other States.The relation between the Indians and the States has by no means remained constant since the days of John Marshall. In the early years, as the white man pressed against Indians in the eastern part of the continent, it was the policy of the United States to isolate the tribes on territories of their own beyond the Mississippi, where they were quite free to govern themselves. The 1828 treaty with the Cherokee Nation, 7 Stat. 311, guaranteed the Indians their lands would never be subjected to the jurisdiction of any State or Territory. Even the Federal Government itself asserted its power over these reservations only to punish crimes committed by or against non-Indians. 1 Stat. 469, 470; 2 Stat. 139. See 18 U.S.C. 1152. As the United States spread westward, it became evident that there was no place where the Indians could be forever isolated. In recognition of this fact the United States began to consider the Indians less as foreign nations and more as a part of our country. In 1871 the power to make treaties with Indian tribes was abolished, 16 Stat. 544, 566, 25 U.S.C. 71. In 1887 Congress passed the General Allotment Act, 24 Stat. 388, as amended, 25 U.S.C. 331-358, authorizing the division of reservation land among individual Indians with a view toward their eventual assimilation into our society. In 1885, departing from the decision in Ex parte Crow Dog, , Congress intruded upon reservation self-government to extend federal criminal law over several specified crimes committed by one Indian against another on Indian land, 23 Stat. 362, 385, as amended, 18 U.S.C. 1153; United States v. Kagama, . Other offenses remained matters for the tribe, United States v. Quiver, .The general notion drawn from Chief Justice Marshall's opinion in Worcester v. Georgia, 6 Pet. 515, 561; The Kansas Indians, 5 Wall. 737, 755-757; and The New York Indians, 5 Wall. 761, that an Indian reservation is a distinct nation within whose boundaries state law cannot penetrate, has yielded to closer analysis when confronted, in the course of subsequent developments, with diverse concrete situations. By 1880 the Court no longer viewed reservations as distinct nations. On the contrary, it was said that a reservation was in many cases a part of the surrounding State or Territory, and subject to its jurisdiction except as forbidden by federal law, Utah & Northern R. Co. v. Fisher, . In Langford v. Monteith, , the Court held that process might be served within a reservation for a suit in territorial court between two non-Indians. In United States v. McBratney, , and Draper v. United States, , the Court held that murder of one non-Indian by another on a reservation was a matter for state law.2 The policy of assimilation was reversed abruptly in 1934. A great many allottees of reservation lands had sold them and disposed of the proceeds. Further allotments were prohibited in order to safeguard remaining Indian properties. The Secretary of the Interior was authorized to create new reservations and to add lands to existing ones. Tribes were permitted to become chartered federal corporations with powers to manage their affairs, and to organize and adopt constitutions for their own self-government. 48 Stat. 984, 986, 987, 988. These provisions were soon extended to Alaska, 49 Stat. 1250.Concurrently the influence of state law increased rather than decreased. As the result of a report making unfavorable comparisons between Indian Service activities and those of the States, Congress in 1929 authorized the States to enforce sanitation and quarantine laws on Indian reservations, to make inspections for health and educational purposes, and to enforce compulsory school attendance. 45 Stat. 1185, as amended, 25 U.S.C. 231. See Meriam, Problem of Indian Administration (1928); H. R. Rep. No. 2135, 70th Cong., 2d Sess. (1929); Cohen, Handbook of Federal Indian Law (1945), p. 83; United States Department of the Interior, Federal Indian Law (1958), pp. 126-127. In 1934 Congress authorized the Secretary of the Interior to enter into contracts with States for the extension of educational, medical, agricultural, and welfare assistance to reservations, 48 Stat. 596, 25 U.S.C. 452. During the 1940's several States were permitted to assert criminal jurisdiction, and sometimes civil jurisdiction as well, over certain Indian reservations. E. g., 62 Stat. 1161; 62 Stat. 1224; 64 Stat. 845; 63 Stat. 705. A new shift in policy toward termination of federal responsibility and assimilation of reservation Indians resulted in the abolition of several reservations during the 1950's. E. g., 68 Stat. 250 (Menominees); 68 Stat. 718 (Klamaths).In 1953 Congress granted to several States full civil and criminal jurisdiction over Indian reservations, consenting to the assumption of such jurisdiction by any additional States making adequate provision for this in the future. 67 Stat. 588, 18 U.S.C. 1162, 28 U.S.C. 1360. Alaska was added to the list of such States in 1958, 72 Stat. 545. This statute disclaims the intention to permit States to interfere with federally granted fishing privileges or uses of property. Finally, the sale of liquor on reservations has been permitted subject to state law, on consent of the tribe itself. 67 Stat. 586, 18 U.S.C. 1161. Thus Congress has to a substantial degree opened the doors of reservations to state laws, in marked contrast to what prevailed in the time of Chief Justice Marshall.Decisions of this Court are few as to the power of the States when not granted Congressional authority to regulate matters affecting Indians. In Thomas v. Gay, , an Oklahoma territorial tax on the cattle of non-Indian lessees of reservation land was upheld on the authority of the Fisher and Maricopa decisions, supra, which permitted taxation of railroad rights-of-way. The Court conceded that because the lands on which the taxed cattle grazed were leased from Indians the tax might, in contrast to the railroad cases, have an indirect effect on Indians, but that effect was declared to be too remote to require a contrary result. In the latest decision, Williams v. Lee, , we held that Arizona had no jurisdiction over a civil action brought by a non-Indian against an Indian for the price of goods sold the latter on the Navajo Reservation. The applicability of state law, we there said, depends upon "whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them," 358 U.S., at 220. Another recent statement of the governing principle was made in a decision reaffirming the authority of a State to punish crimes committed by non-Indians against non-Indians on reservations: "[I]n the absence of a limiting treaty obligation or Congressional enactment each state had a right to exercise jurisdiction over Indian reservations within its boundaries," New York ex rel. Ray v. Martin, .These decisions indicate that even on reservations state laws may be applied to Indians unless such application would interfere with reservation self-government or impair a right granted or reserved by federal law. Congress has gone even further with respect to Alaska reservations, 72 Stat. 545, 18 U.S.C. 1162, 28 U.S.C. 1360. State authority over Indians is yet more extensive over activities, such as in this case, not on any reservation. It has never been doubted that States may punish crimes committed by Indians, even reservation Indians, outside of Indian country. See Cohen, Indian Rights and the Federal Courts, 24 Minn. L. Rev. 145, 153 (1940), citing Pablo v. People, 23 Colo. 134, 46 P. 636. Even where reserved by federal treaties, off-reservation hunting and fishing rights have been held subject to state regulation, Ward v. Race Horse, ; Tulee v. Washington, , in contrast to holdings by state and federal courts that Washington could not apply the laws enforced in Tulee to fishing within a reservation, Pioneer Packing Co. v. Winslow, 159 Wash. 655, 294 P. 557; Moore v. United States, 157 F.2d 760, 765 (C. A. 9th Cir.). See State v. Cooney, 77 Minn. 518, 80 N. W. 696.True, in Tulee the right conferred was to fish in common with others, while appellants here claim exclusive rights. But state regulation of off-reservation fishing certainly does not impinge on treaty-protected reservation self-government, the factor found decisive in Williams v. Lee. Nor have appellants any fishing rights derived from federal laws. This Court has never held that States lack power to regulate the exercise of aboriginal Indian rights, such as claimed here, or of those based on occupancy. Because of the migratory habits of salmon, fish traps at Kake and Angoon are no merely local matter.Congress has neither authorized the use of fish traps at Kake and Angoon nor empowered the Secretary of the Interior to do so. The judgment of the Supreme Court of Alaska is affirmed. However, in view of all the circumstances and in order to avoid hardship, the stay granted by MR. JUSTICE BRENNAN, and continued by the Court, will remain in force until the end of the 1962 salmon fishing season, as defined in the regulations issued by the Secretary of the Interior. It is so ordered.

In a civil proceeding brought by the United States against several Chicago dairies, the complaint charged a conspiracy to restrain and monopolize the sale of fluid milk in the Chicago area, in violation of the Sherman Act, and price discrimination in violation of the Clayton Act. The District Court dismissed the complaint, holding that, as to the alleged Sherman Act violations, the evidence failed to establish the existence of a conspiracy; and that, though there was proof of price discrimination violative of the Clayton Act by certain of the defendants, a prior decree of that court in a private antitrust suit by a competitor enjoined the conduct in question and made it "useless" to award the Government an injunction. Held: 1. Rulings by the district judge that certain evidence offered by the Government was inadmissible did not affect the substantial rights of the parties within the meaning of 28 U.S.C. 2111, since it does not appear that admission of the evidence in question would have been sufficient to change the conclusion that the Government had not established a case under the Sherman Act; and on that basis the judgment of dismissal as to the Sherman Act allegations is affirmed. Pp. 516-517. 2. In view of the difference in the respective interests sought to be vindicated by the Government and by private litigants in Clayton Act proceedings, the district judge abused his discretion in refusing the Government injunctive relief against price discrimination violative of the Clayton Act solely because of the existence of a prior decree entered in a private action. Pp. 517-520. 111 F. Supp. 562, affirmed in part and remanded.Assistant Attorney General Barnes argued the cause for the United States. With him on the brief were Solicitor General Sobeloff, John F. Davis and Daniel M. Friedman.Stuart S. Ball argued the cause for the Borden Company et al., appellees. On the brief were Mr. Ball for the Borden Company et al., and L. Edward Hart, Jr. and John Paul Stevens for the Bowman Dairy Company et al., appellees.Leo F. Tierney argued the cause for the Beloit Dairy Co., appellee. With him on the brief was Charles L. Stewart, Jr.MR. JUSTICE CLARK delivered the opinion of the Court.The United States instituted this civil proceeding against ten Chicago dairies,1 charging conspiracy to restrain and monopolize the sale of fluid milk to wholesale customers and others in the Chicago area, in violation of the Sherman Act, and price discrimination in violation of the Clayton Act. Prior to trial a consent decree was entered against five of the smaller defendant companies, enjoining continuation of the conduct charged in the complaint. At the close of the Government's case against the remaining five defendants,2 the District Court dismissed the complaint in its entirety. It held that, as to the alleged violations of 1 and 2 of the Sherman Act, the evidence failed to establish the existence of a conspiracy or combination; and that, though there was proof of price discrimination violative of 2 (a) of the Clayton Act by four of the defendants,3 a prior decree in a private antitrust action brought by a competitor dairy company enjoined the conduct in question and made it "useless" to award the Government an injunction. 111 F. Supp. 562. The Government then appealed directly to this Court under 15 U.S.C. 29, and we noted probable jurisdiction, .Three of the four questions presented on this appeal deal with rulings by the district judge that certain evidence was inadmissible.4 The Government does not challenge the court's conclusion that on the record conspiracy was not shown, but it insists that error in these rulings precluded establishment of the conspiracy. After hearing argument and considering as much of the record as is before us, including the Government's offers of proof, we are of the opinion that, even assuming error in each of the challenged rulings, it does not appear that admission of the evidence in question would have been sufficient to change the conclusion that the Government had not established a case under the Sherman Act; hence the rulings cannot be said to have affected substantial rights of the parties within the meaning of 28 U.S.C. 2111.5 Since on this basis we affirm the judgment of dismissal as to the Sherman Act allegations, it is unnecessary to discuss the propriety or impropriety of the several rulings.The fourth question challenges the basis of the District Court's refusal to grant the Government injunctive relief against price discrimination by four of the defendants.6 The district judge found that government evidence tended to prove that these defendant companies have sold at prices which discriminate between purchasers of milk of like grade and quality. This, he said, would give defendants the burden of establishing that the discriminations fall within statutory exceptions, were it not that under a consent decree entered against defendants in a private suit in 1952 by another judge of the same court,7 they already are enjoined from performing all acts specified by the Government in its prayer for relief. In the opinion of the district judge, "A decree of this court entered at the instance of a private litigant is as binding upon a defendant as a decree entered at the instance of the government; and a consent decree, entered by any judge of this court without hearing evidence, is as binding as a decree entered by another judge after a protracted trial. I conclude, therefore, that each of the remaining defendants is now effectively enjoined by this court from performing any of the acts set forth in the government's prayer for injunctive relief, insofar as the Clayton Act is concerned. "As a court of equity, I will not perform a useless task. The violations of the Clayton Act described in the complaint and shown at the trial are, for the most part, old violations. And to this court, the Dean decree assures, as completely as any decree can assure, that there will be no new violations." 111 F. Supp., at 581. Accordingly the court dismissed that part of the complaint which alleged violations of 2 (a) of the Clayton Act. Thus it appears that the Government was refused an injunction solely because of the existence of the prior decree entered against defendants in the course of a private action. We think that refusal on this basis constituted an abuse of discretion.Section 15 of the Clayton Act, 15 U.S.C. 25, charges the United States district attorneys, under supervision of the Attorney General, with the duty of instituting equity proceedings to prevent and restrain violations of certain of the antitrust laws, including price discrimination. Under 16 of the Act, 15 U.S.C. 26, a private plaintiff may obtain injunctive relief against such violations only on a showing of "threatened loss or damage"; and this must be of a sort personal to the plaintiff, Beegle v. Thomson, 138 F.2d 875, 881 (1943). The private-injunction action, like the treble-damage action under 4 of the Act, supplements government enforcement of the antitrust laws; but it is the Attorney General and the United States district attorneys who are primarily charged by Congress with the duty of protecting the public interest under these laws. The Government seeks its injunctive remedies on behalf of the general public; the private plaintiff, though his remedy is made available pursuant to public policy as determined by Congress, may be expected to exercise it only when his personal interest will be served. These private and public actions were designed to be cumulative, not mutually exclusive. S. Rep. No. 698, 63d Cong., 2d Sess. 42; cf. Federal Trade Comm'n v. Cement Institute, . "... [T]he scheme of the statute is sharply to distinguish between Government suits, either criminal or civil, and private suits for injunctive relief or for treble damages. Different policy considerations govern each of these. They may proceed simultaneously or in disregard of each other." United States v. Bendix Home Appliances, 10 F. R. D. 73, 77 (S. D. N. Y. 1949). In short, the Government's right and duty to seek an injunction to protect the public interest exist without regard to any private suit or decree.To hold that a private decree renders unnecessary an injunction to which the Government is otherwise entitled is to ignore the prime object of civil decrees secured by the Government - the continuing protection of the public, by means of contempt proceedings, against a recurrence of antitrust violations. Should a private decree be violated, the Government would have no right to bring contempt proceedings to enforce compliance; it might succeed in intervening in the private action but only at the court's discretion. The private plaintiff might find it to his advantage to refrain from seeking enforcement of a violated decree; for example, where the defendant's violation operated primarily against plaintiff's competitors. Or the plaintiff might agree to modification of the decree, again looking only to his own interest. In any of these events it is likely that the public interest would not be adequately protected by the mere existence of the private decree. It is also clear that Congress did not intend that the efforts of a private litigant should supersede the duties of the Department of Justice in policing an industry. Yet the effect of the decision below is to place on a private litigant the burden of policing a major part of the milk industry in Chicago, a task beyond its ability, even assuming it to be consistently so inclined.We agree with appellees that the statute confers on the Government no absolute right to an injunction upon a showing of past violation of the antitrust laws by defendants. As we said in United States v. W. T. Grant Co., :"... the moving party must satisfy the court that relief is needed. The necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive. The chancellor's decision is based on all the circumstances; his discretion is necessarily broad and a strong showing of abuse must be made to reverse it." The Government contends that it has "an independent right to relief against violations of the Clayton Act, without regard to whether such violations previously have been enjoined by a decree in a private antitrust suit." But we cannot say that the existence of the private decree warrants no consideration by the chancellor in assessing the likelihood of recurring illegal activity. We hold only that, in view of the difference in the respective interests sought to be vindicated by the Government and the private litigant, the district judge abused his discretion in refusing the Government an injunction solely because of the existence of the private decree.The judgment of dismissal as to the Sherman Act allegations is affirmed; as to the Clayton Act allegations the case is remanded to the District Court for further consideration, and such further proceedings as may be necessary, in accordance with this opinion.MR. JUSTICE BLACK and MR. JUSTICE JACKSON took no part in the consideration or decision of this case.

Section 5 of the Voting Rights Act provides that covered States or political subdivisions may not implement any election practices different from those in force on November 1, 1964, without first obtaining approval from the United States District Court for the District of Columbia or, alternatively, from the Attorney General. As of November 1, 1964, the public schools of Hampton County, South Carolina, a covered jurisdiction, were governed by an appointed County Board of Education and an elected Superintendent of Education. The county consists of two School Districts, one where the vast majority of white students live, and the other predominantly black. Each District was governed by a Board of Trustees, who were appointed by the County Board of Education. In 1982, the South Carolina General Assembly enacted Act No. 547, providing that the members of the County Board of Education were to be elected at large rather than appointed. The first election was to be held simultaneously with the general election in November 1982, and prospective candidates were required to file with appellee Election Commission at least 45 days before the election. Act No. 547 was submitted to the Attorney General for approval under 5 of the Voting Rights Act, and he informed the State that he had no objection to the change. But in the meantime, before the Attorney General had approved Act No. 547, Act No. 549 was enacted to abolish the County Board of Education and Superintendent and to devolve their duties upon the District Boards of Trustees, which were to be elected separately. The first trustee election was also scheduled to be held with the November general election, and candidates were required to file between August 16 and 31. Act No. 549 was also submitted to the Attorney General for clearance under 5, and he initially interposed an objection. Nevertheless, the Election Commission, contemplating a reconsideration, continued to accept candidate filings under Act No. 549, and at the same time began accepting filings under Act No. 547. Since the Attorney General had not yet responded to the State's request for reconsideration of his objection to Act No. 549 by the date of the November general election, elections for the County Board of Education were held on that date pursuant to Act No. 547, and no elections were held pursuant to Act No. 549. Thereafter the Attorney General withdrew his objection to Act No. 549, thereby rendering null and void Act No. 547 and the November elections held pursuant thereto. The South Carolina Attorney General then informed the Election Commission that Act No. 549 was in effect and that an election pursuant thereto should be held. Accordingly, the Commission set March 15, 1983, as election day. Appellants, two civil rights organizations and several residents of Hampton County, filed suit in Federal District Court, seeking to enjoin the election as illegal under 5 of the Voting Rights Act. The court denied relief, holding that no violation of 5 had occurred, since, although Act No. 549 itself was a change under the Voting Rights Act, the scheduling of the election and the filing period were simply "ministerial acts necessary to accomplish the statute's purpose and thus did not require preclearance." The court further held that even if these acts were "changes," they had now been precleared along with the remaining provisions of Act No. 549.Held: The use of an August filing period in conjunction with a March election, and the setting of the March election itself, were changes that should have been submitted to the Attorney General under 5 of the Voting Rights Act. Pp. 174-183. (a) By opening the filing period for School District Trustees before preclearance and scheduling the election for a date four months later than that approved by the Attorney General, the county effectively altered the filing deadline from a date approximately two months before the election to one that was almost six months before the election. These changes cannot fairly be characterized as "ministerial" in light of the sweeping objectives of the Voting Rights Act. They possibly prevented relative latecomers from entering the race, and in addition a March election is likely to draw significantly fewer voters than an election held simultaneously with a November general election. The inquiry here is limited to whether the challenged changes have the potential for discrimination. These changes did have such a potential and therefore should have been precleared under 5. Pp. 174-181. (b) The changes cannot be said to have been implicitly approved when the Attorney General withdrew his objection to Act No. 549. Berry v. Doles, , distinguished. Nor can the Attorney General be said to have validated the changes, retroactively or otherwise, because they were never before him. Pp. 181-182. Reversed and remanded.WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. POWELL and REHNQUIST, JJ., concurred in the judgment. Armand Derfner argued the cause for appellants. With him on the briefs were John R. Harper II, Thomas I. Atkins, J. LeVonne Chambers, Lani Guinier, and Eric Schnapper.David A. Strauss argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Assistant Attorney General Reynolds, Deputy Solicitor General Wallace, Deputy Assistant Attorney General Turner, Barbara E. Etkind, and Jessica Dunsay Silver.Treva G. Ashworth, Senior Assistant Attorney General of South Carolina, argued the cause for appellees and filed a brief for appellees Hampton County Election Commission et al. With her on the brief were T. Travis Medlock, Attorney General, and J. Emory Smith, Jr., Assistant Attorney General. Bruce E. Davis and Karen LeCraft Henderson filed a brief for appellees Hampton County School District No. 1 et al.JUSTICE WHITE delivered the opinion of the Court.This appeal challenges a three-judge District Court's construction and application of 5 of the Voting Rights Act, 79 Stat. 437, as amended, 42 U.S.C. 1973c. That section provides that certain jurisdictions, including the one in which this case arose, may not implement any election practices different from those in force on November 1, 1964, without first obtaining approval from the United States District Court for the District of Columbia or, alternatively, from the Attorney General.1 The statute further provides that once a proposed change has been submitted to the Attorney General, he has 60 days in which to object. If an objection is interposed, the submitting authority may request reconsideration. 28 CFR 51.44 (1984). Such a request triggers another 60-day period for the Attorney General to decide whether to continue or withdraw his objection. 51.47. The District Court held that 5 did not require the changes in election practices involved here to be cleared by the Attorney General prior to their implementation. We noted probable jurisdiction, , and now reverse that judgment. IAs of November 1, 1964, the Hampton County, South Carolina, public schools were governed by appointed officials and an elected Superintendent of Education. The county comprises two school districts, School District No. 1, where the vast majority of white students live, and School District No. 2, which is predominantly black.2 Each District was governed by a separate six-member Board of Trustees. These trustees were appointed by a six-member County Board of Education, which in turn was appointed by the county legislative delegation.On February 18, 1982, apparently in an attempt to facilitate consolidation of these two School Districts,3 the South Carolina General Assembly enacted Act No. 547. This statute provided that, beginning in 1983, the six members of the County Board of Education were to be elected at large rather than appointed. The first election for the new Board was to be held simultaneously with the general election in November 1982, and prospective candidates were required to file with the Election Commission at least 45 days before the election.4 Pursuant to 5 of the Voting Rights Act, the State submitted Act No. 547 for the approval of the Attorney General, who received it on February 27.5 On April 28, the Attorney General informed the State that he had no objection to the change in question.6 On April 9, however, before the Attorney General had approved Act No. 547, the Governor of South Carolina signed Act No. 549, which was designed to supersede Act No. 547. Act No. 549 abolished the County Board of Education and the County Superintendent, devolving their duties upon the District Boards of Trustees, which were to be elected separately by each District. Like Act No. 547, Act No. 549 scheduled the first trustee election to coincide with the November 1982 general election. Candidates were required to file between August 16 and August 31. Implementation of the Act was made contingent upon approval in a referendum to be held in May 1982.7 The State did not submit Act No. 549 to the Attorney General for clearance until June 16, 1982, 22 days after it was approved in the referendum and 68 days after it had been enacted.8 As of August 16 - the opening date of the filing period under Act No. 549 - no response had yet been received from the Attorney General. Nevertheless, the County Election Commission began accepting filings for elections to be held under Act No. 549. On August 23, the Attorney General interposed an objection. He informed the State that it had not sustained its burden of showing that the proposal to eliminate the County Board of Education did not have a discriminatory purpose or effect. The Attorney General noted that "the county board has been particularly responsive to the interests and needs of the black community in Hampton County and consistently has appointed bi-racial representation on the local boards of trustees for both School District 1 and School District 2."9 Because the State was contemplating requesting the Attorney General to reconsider this objection, the County Election Commission continued to accept filings under Act No. 549 through the end of the designated filing period, August 31. On that date, the State officially requested reconsideration.10 At the same time, the Election Commission began accepting filings under Act No. 547, in case the Attorney General refused to withdraw his objection to Act No. 549. On November 2, the date of the general election, the Attorney General had not yet responded to the request for reconsideration, and elections for County Board members were held pursuant to Act No. 547.11 No elections were held pursuant to Act No. 549.On November 19, the Attorney General withdrew his objection to Act No. 549. The objection had been based primarily on the possibility that the County Board, which the Act would abolish, might have consolidated the two School Districts, but, upon reappraising South Carolina law, the Attorney General concluded that the Board lacked authority to approve such a consolidation. Therefore, its elimination would not have a potentially discriminatory impact.12 The effect of the Attorney General's clearance of Act No. 549 was to render Act No. 547 - and the November elections held pursuant to it - null and void. In response to a request for advice, the South Carolina Attorney General informed the County Election Commission in January that Act No. 549 was now in effect and that an election for school district trustees should be held "as soon as possible." The State Attorney General further opined that there was no reason to reopen the filing period, "as only the date of the election has changed."13 Accordingly, the Commission set March 15, 1983, as election day.On March 11, appellants, two civil rights organizations and several residents of Hampton County, filed suit in the United States District Court for the District of South Carolina seeking to enjoin the election as illegal under 5 of the Voting Rights Act. The defendants were the County Election Commission, the two School Districts, and various county officials. The complaint identified a number of alleged "changes" in election procedure, including the scheduling of an election at a time other than that specified in the statute, and the use of the August filing period for the March election.14 A preliminary injunction was denied, and the election took place as scheduled.15 Subsequently, a three-judge panel denied a permanent injunction and declaratory relief, holding that no violation of 5 of the Voting Rights Act had occurred.16 The court reasoned that, although Act No. 549 itself was a "change" under the Act, the scheduling of the election and the filing period were simply "ministerial acts necessary to accomplish the statute's purpose ..., and thus did not require preclearance." App. to Juris. Statement 9a. In the alternative, the court held that even if these acts did constitute "changes," they had now been "precleared along with the remaining provisions of Act No. 549." Ibid. That this "preclearance" did not occur until after the filing period had been held was not considered dispositive. The court interpreted Berry v. Doles, , to stand for the proposition that after-the-fact federal approval under 5 might retroactively validate a change in voting procedures.17 IIAppellants contend that the opening of the August filing period before preclearance, and the scheduling of an election in March after the Attorney General had approved only a November election date, are changes that come within the scope of 5. Appellees, echoing the rationale of the District Court, maintain that opening the filing period as required by Act No. 549 - albeit before the Act had been approved - was merely a preliminary step in its implementation. If the Attorney General had ultimately disapproved Act No. 549, the county would not have held an election under it, and the filing period would have become a nullity. Because Act No. 549 was in fact cleared, the filing period it specified was necessarily cleared as well. The alteration of the date of the election, according to appellees, was merely an "unfreezing" of a process that had been temporarily suspended by the operation of the Voting Rights Act. Although appellees concede that a legislatively enacted change in the date of an election is covered by the Act,18 they distinguish the change at issue here because it was required only by the Attorney General's failure to approve Act No. 549 before the scheduled election date, and because it was undertaken only to effect the initial implementation of the statute.We need not decide whether a jurisdiction covered by 5 may ever open a filing period under a statute that has not yet been precleared.19 In this case, Hampton County not only opened the filing period for School District trustees before preclearance, but it also scheduled the election for a date four months later than that approved by the Attorney General. Thus the county effectively altered the filing deadline from a date approximately two months before the election to one that was almost six months before the election.These changes cannot fairly be characterized as "ministerial" in light of the sweeping objectives of the Act. The Voting Rights Act was aimed at "the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race." Allen v. State Board of Elections, . Our precedents recognize that to effectuate the congressional purpose, 5 is to be given broad scope. Id., at 567; see also Dougherty County Board of Education v. White, . Also, far from exempting alterations that might be perceived as minor, Congress failed to adopt such a suggestion when it was proposed in debates on the original Act.20 Developments since the passage of the Act provide no basis for concluding that our cases had misinterpreted the intent of Congress. On the contrary, the legislative history of the most recent extension of the Voting Rights Act in 1982 reveals that the congressional commitment to its continued enforcement is firm. The Senate Committee found "virtual unanimity among those who [had] studied the record," S. Rep. No. 97-417, p. 9 (1982), that 5 should be extended. And, as it had in previous extensions of the Act, Congress specifically endorsed a broad construction of the provision.21 Although this Court has never addressed itself to alterations in voting procedures that exactly parallel those at issue in this case, we have twice held that the rescheduling of a candidate qualifying period is a "change" that comes within the scope of 5. Hadnott v. Amos, ; Allen v. State Board of Elections, supra, at 551, 570.22 Of course, there was no alteration in the filing period itself in this case; it was held between August 16 and August 31, exactly as Act No. 549 required. But a filing period cannot be considered in isolation from the election of which it forms a part. As we have recognized in an analogous context, issues that provoke responses from the electorate and from potential candidates are most likely to arise shortly before election time.23 Under appellees' approach, a filing period held years before an election would serve as well as one held on election eve. But clearly, the former has a much greater potential for hindering voter participation than the latter. Furthermore, the August filing period was held at a time when the Attorney General still had an outstanding objection to Act No. 549. Potential candidates who considered the opening of the filing period illegal in these circumstances may have deliberately stayed away.24 Appellees do not seriously dispute that a change in the date of an election, if effected by statute, requires approval by the Attorney General under 5.25 Rather, they argue that because the rescheduling in this case was merely an administrative effort to comply with a statute that had already received clearance, it was not a change of such magnitude as to trigger the requirements of 5. But plainly, the form of a change in voting procedures cannot determine whether it is within the scope of 5. That section reaches informal as well as formal changes, such as a bulletin issued by a state board of elections. Allen, supra.26 If it were otherwise, States could evade the requirements of 5 merely by implementing changes in an informal manner. Neither is it determinative that an alteration in scheduling is unlikely to be repeated, as it would be if it were embodied in a statute or rule. The Voting Rights Act reaches changes that affect even a single election.27 As we have noted, the change in the election date in this instance extended the gap between the filing period and the election, possibly preventing relative latecomers from entering the race. In addition, an election in March is likely to draw significantly fewer voters than an election held simultaneously with a general election in November.28 Any doubt that these changes are covered by 5 is resolved by the construction placed upon the Act by the Attorney General, which is entitled to considerable deference.29 Under Department of Justice regulations: "Any change affecting voting, even though it appears to be minor or indirect, even though it ostensibly expands voting rights, or even though it is designed to remove the elements that caused objection by the Attorney General to a prior submitted change, must meet the Section 5 preclearance requirement." 28 CFR 51.11 (1984). Among the specific examples of changes listed in the regulations is "[a]ny change affecting the eligibility of persons to become or remain candidates." 51.12. Pursuant to these regulations, the Attorney General has, since 1980, reviewed approximately 58 changes in election dates and approximately 10 changes in dates for candidate filing periods. In none of these instances did the Attorney General advise the covered jurisdiction that its submission was not a "change," and on several occasions objections were interposed.30 Appellees argue that these changes in voting procedures were exempt from preclearance because literal compliance with 5 was impossible. The Attorney General did not approve the November election date until after that date had passed; hence, it was necessary to schedule another election date. Also, it is said that if the legislature had passed a statute setting a March election date and submitted it to the Attorney General, preclearance might not have been obtained by the date of the March election. In that event, yet another amendment would have been necessary, requiring yet another submission. The process might have continued ad infinitum. To the extent that appellees found themselves in a dilemma, however, it was largely of their own making. Rather than submitting Act No. 549 shortly after its passage, which would have allowed ample time for preclearance before the scheduled opening of the filing period, the State delayed this action for two months.31 Even after Act No. 549 received clearance too late to allow the election to be held in November, appellees might still have submitted the new election date without encountering significant inconvenience. Because the Attorney General must respond to any submission within 60 days after he receives the necessary information,32 appellees need only have selected an election date sufficiently far in the future to allow preclearance.Appellees would have us hold that the changes here at issue did not require preclearance because they were undertaken in good faith, were merely an attempt to implement a statute that had already been approved by the Attorney General, and were therefore an improvement over prior voting procedures. But the Attorney General's approval of Act No. 549 signified only that it was not discriminatory, not that it was an improvement over Act No. 547, which had also been approved. Furthermore, neither the absence of discriminatory purpose nor a good-faith implementation of a change removes the potential for discriminatory effects.33 More fundamentally, it is not our province, nor that of the District Court below, to determine whether the changes at issue in this case in fact resulted in impairment of the right to vote, or whether they were intended to have that effect. That task is reserved by statute to the Attorney General or to the District Court for the District of Columbia. Our inquiry is limited to whether the challenged alteration has the potential for discrimination.34 The changes effected here did have such potential and therefore should have been precleared under 5.IIIRelying on Berry v. Doles, , the District Court held as an alternative ground that these changes were implicitly approved when the Attorney General withdrew his objection to Act No. 549. Berry involved changes in voting procedures that were implemented without first being submitted to the Attorney General. In a decision rendered after the election had already taken place, a three-judge District Court held that the changes should have been submitted under 5 and enjoined further enforcement of the statute, but refused to set aside the election. We held that the appropriate remedy was to allow the covered jurisdiction 30 days in which to apply for approval of the change. We further stated: "If approval is obtained, the matter will be at an end. If approval is denied, appellants are free to renew to the District Court their request for [a new election.]" Id., at 193. From this, the District Court drew the conclusion that "a retroactive validation of an election law change under Section 5 could be achieved by after-the-fact federal approval."35 Regardless of whether this is a fair characterization of the holding of Berry, it clearly has no application to the facts of this case. The changes we have identified here - the retention of an August filing period in conjunction with a March election, and the scheduling of the March election - had not even been decided upon by state authorities at the time the Attorney General approved Act No. 549. That statute provided for an August filing period and a November election, which, as we have demonstrated, is quite another matter. Even an informal submission of a change in voting procedures does not satisfy the requirements of 5: the change must be submitted "in some unambiguous and recordable manner." Allen, 393 U.S., at 571. See also McCain v. Lybrand, ; United States v. Sheffield Board of Comm'rs, . A change that was never submitted at all does not meet this standard. The Attorney General cannot be said to have validated these changes, retroactively or otherwise, because they were never before him.IVAppellees' use of an August filing period in conjunction with a March election, and the setting of the March election date itself, were changes that should have been submitted to the Attorney General under 5. These changes cannot be said to have been approved along with Act No. 549. As in Berry v. Doles, supra, it is appropriate in these circumstances for the District Court to enter an order allowing appellees 30 days in which to submit these changes to the Attorney General for approval. 438 U.S., at 192-193. If appellees fail to seek this approval, or if approval is not forthcoming, the results of the March 1983 election should be set aside. If, however, the Attorney General determines that the changes had no discriminatory purpose or effect, the District Court should determine, in the exercise of its equitable discretion, whether the results of the election may stand.36 We therefore reverse the District Court's judgment that 5 was not violated by appellees' failure to secure approval of these changes, and remand for further proceedings consistent with this opinion. It is so ordered. JUSTICE POWELL and JUSTICE REHNQUIST concur in the judgment.

Railroad cars are connected by couplers consisting of knuckles - clamps that lock with their mates - joined to the ends of drawbars, which are fastened to housing mechanisms on the cars. Cars automatically couple when they come together and one car's open knuckle engages the other car's closed knuckle. The drawbar pivots in its housing, allowing the knuckled end some lateral play to prevent moving cars from derailing on a curved track. As a consequence of this lateral movement, drawbars may remain off-center when cars are uncoupled and must be realigned manually to ensure proper coupling. Respondent Hiles injured his back while attempting to realign an off-center drawbar on a car at one of petitioner Norfolk & Western Rail Company's yards. He sued in Illinois state court, alleging that Norfolk & Western had violated 2 of the Safety Appliance Act (SAA or Act), which requires that cars be equipped with "couplers coupling automatically by impact, and capable of being uncoupled, without the necessity of individuals going between the ends of the vehicles." The trial court granted Hiles a directed verdict on liability, and the State Appellate Court affirmed.Held: Section 2 does not makes a railroad liable as a matter of law for injuries incurred by a railroad employee while trying to straighten a misaligned drawbar. Pp. 3-15. (a) Congress passed the SAA in 1893 to promote switchyard safety by requiring the use of standardized automatic couplers. SAA liability may be predicated on the failure of coupling equipment to perform as required by the Act, and the SAA creates an absolute duty requiring not only that automatic couplers be present, but also that they actually perform. See, e. g., Affolder v. New York, C. & St. L. R. Co., . Pp. 3-9. Page II (b) However, failure to couple will not cause a violation if the railroad can show that a coupler has not been properly set to couple on impact. Affolder, supra, at 99. Affolder's restriction on failure-to-perform liability logically extends to every step necessary to prepare a nondefective coupler for coupling, including ensuring a drawbar's proper alignment. Thus, the absolute duty is not breached as a matter of law when a drawbar becomes misaligned during the ordinary course of railroad operations. Hiles' interpretation would require a finding that, as a matter of law, a misaligned drawbar is a malfunctioning drawbar, when, in fact, misalignment occurs as a part of the normal course of railroad car operations. His reading of 2 would mean that every railroad car for nearly a century has been in violation of the SAA. Also contrary to Hiles' argument, 2 does not command railroads to develop a mechanism for automatic drawbar realignment. Congress legislated working automatic couplers for employee safety, not employee safety by whatever means a court might deem appropriate. Pp. 9-15. 268 Ill. App. 3d 561, 644 N.E.2d 508, reversed.THOMAS, J., delivered the opinion for a unanimous Court. [ NORFOLK & WESTERN R. CO. v. HILES, ___ U.S. ___ (1996), 1] JUSTICE THOMAS delivered the opinion of the Court.Before us in this case is the question whether 2 of the Safety Appliance Act (SAA), 49 U.S.C.A. 20302(a)(1)(A) (Supp. 1995), makes a railroad liable as a matter of law for injuries incurred by a railroad employee while trying to straighten a misaligned drawbar. We hold that it does not and, accordingly, reverse the judgment of the Illinois Appellate Court.IRailroad cars in a train are connected by couplers located at both ends of each car. A coupler consists of a knuckle joined to the end of a drawbar, which itself is fastened to a housing mechanism on the car. A knuckle is a clamp that interlocks with its mate, just as two cupped hands - placed palms together with the fingertips pointing in opposite directions - interlock when the fingers are curled.1 When cars come together, the open knuckle on one car engages a closed knuckle on the other car, automatically coupling the cars. The drawbar extends the knuckle out from the end of the car and is [ NORFOLK & WESTERN R. CO. v. HILES, ___ U.S. ___ (1996), 2] designed to pivot in its housing, allowing the knuckled end some lateral play to prevent moving cars from derailing on a curved track. As a consequence of this lateral movement, drawbars may remain off-center when cars are uncoupled. This misalignment, if not corrected, may prevent cars from coupling by allowing the knuckles to pass by each other. To ensure proper coupling, railroad employees must realign drawbars manually.Respondent William J. Hiles was a member of a switching crew at petitioner Norfolk & Western Railway Company's Luther Yard in St. Louis, Missouri. His duties included coupling and uncoupling railroad cars and aligning drawbars. On July 18, 1990, Hiles injured his back while attempting to realign an off-center drawbar. Hiles sued in Illinois state court, alleging that Norfolk & Western had violated the SAA, which requires that cars be equipped with "couplers coupling automatically by impact, and capable of being uncoupled, without the necessity of individuals going between the ends of the vehicles." 49 U.S.C.A. 20302(a)(1)(A) (Supp. 1995). Norfolk and Western argued that the misaligned drawbar did not result from defective equipment. The trial court granted Hiles' motion for directed verdict on liability.The Illinois appellate court affirmed. 268 Ill. App. 3d 561, 644 N.E.2d 508 (1994). The Illinois Appellate Court recognized a deep split of authority over the proper interpretation of the SAA, but determined that it would not reconsider its "longstanding authority permitting a plaintiff ... to recover under the Safety Appliance Act for injuries sustained while attempting to align a misaligned drawbar." Id., at 565, 644 N.E.2d, at 511. The Illinois Supreme Court denied review, and we [ NORFOLK & WESTERN R. CO. v. HILES, ___ U.S. ___ (1996), 3] granted certiorari___ (1995), to resolve the conflict among the lower courts.2 IIAFor most of the nineteenth century, the link-and-pin coupler was the standard coupler used to hook together freight cars. It consisted of a tubelike body that received an oblong link. During coupling, a railworker had to stand between the cars as they came together and guide the link into the coupler pocket. Once the cars were joined, the employee inserted a pin into a hole a few inches from the end of the tube to hold the link in place. See J. White, American Railroad Freight Car 490 (1993) (hereinafter White). The link-and-pin coupler, though widely used, ultimately proved unsatisfactory because (i) it made a loose connection between the cars with too much give and play; (ii) there was no standard design and train crews often spent hours trying to match pins and links while coupling cars; (iii) links and pins were frequently lost, resulting in substantial replacement costs; and (iv) crew members had to go between moving cars during coupling and were frequently injured and sometimes killed. Id., at 490-497.In 1873, Eli H. Janney patented a knuckle-style coupler that was to become the standard for the freight [ NORFOLK & WESTERN R. CO. v. HILES, ___ U.S. ___ (1996), 4] car couplers used even today.3 See Figure 1. The coupler had a bifurcated drawhead and a revolving hook, which, when brought in contact with another coupler, would automatically interlock with its mate. [LOIS Editors' Note: The image referenced herein will be available on a future Lois release.]The Janney coupler had several advantages over link-and-pin couplers. Not only did it alleviate the problem of loose parts that plagued the link-and-pin coupler,4 it also allowed railworkers to couple and uncouple cars without having to go between the cars to guide the link [ NORFOLK & WESTERN R. CO. v. HILES, ___ U.S. ___ (1996), 5] and set the pin.5 One commentator described the automatic coupling operation as follows:"While the cars were apart, the brakeman had to make sure the knuckle of the coupler on the waiting car stood in an open position and that the pin had been lifted into its set position. When the opposite coupler was closed and locked in position, the brakeman was able to stand safely out of the way and signal the engineer to move the cars together. When the knuckle of the coupler of the moving car hit the lever arm of the revolving knuckle on the open coupler, it revolved around the locked one, while concurrently the locking pin dropped automatically from its set position into the coupler, locking the knuckle in place. Although the brakeman had to set up the entire situation by hand, the actual locking operation was automatic and did not require the brakeman to stand between the cars." Clark 191. Though the market was flooded with literally thousands of patented couplers,6 Janney's design was clearly among the best and slowly achieved recognition in the industry. See id., at 193-201. In 1888, the Master Car Builders Association Executive Committee obtained a limited waiver of patent rights - placing much of Janney's design in the public domain - and adopted the [ NORFOLK & WESTERN R. CO. v. HILES, ___ U.S. ___ (1996), 6] design as its standard. Conversion to the new standard proceeded slowly,7 partly as a result of the sheer number of competing designs on the market. The lack of standardized couplers itself caused safety problems,8 and reformers pushed Congress to pass legislation requiring the use of standardized automatic couplers.In 1893, satisfied that an automatic coupler could meet the demands of commercial railroad operations and, at the same time, be manipulated safely, see Clark 206, Congress passed the Safety Appliance Act. Its success in promoting switchyard safety was stunning. Between 1877 and 1887, approximately 38% of all railworker accidents involved coupling. Id., at 179. That percentage fell as the railroads began to replace link-and-pin couplers with automatic couplers. The descent accelerated during the SAA's 7-year grace period and by 1902, only two years after the SAA's effective date, coupling accidents constituted only 4% of all [ NORFOLK & WESTERN R. CO. v. HILES, ___ U.S. ___ (1996), 7] employee accidents. In absolute numbers, coupler-related accidents dropped from nearly 11,000 in 1892 to just over 2,000 in 1902, even though the number of railroad employees steadily increased during that decade. EMPLOYEE COUPLING ACCIDENTS, 1892-19029 ============================================================ Employee Percentage Railroad Employee Coupler Coupler Year Employees Accidents Accidents Accidents ------------------------------------------------------------ 1892 821,415 30,821 10,697 34.71 1893 873,602 34,456 11,710 33.99 1894 779,608 25,245 7,491 29.67 1895 785,034 27,507 8,428 30.64 1896 826,620 31,830 8,686 27.29 1897 823,476 29,360 6,497 22.13 1898 874,558 33,719 5,648 16.75 1899 928,924 37,133 5,477 14.75 1900 1,017,653 42,193 4,198 9.95 1901 1,071,169 43,817 2,966 6.77 1902 1,189,315 53,493 2,256 4.22 ------------------------------------------------------------BAs originally passed, 2 of the SAA provided: "[I]t shall be unlawful for any ... common carrier to haul or permit to be hauled or used on its line any car used in moving interstate traffic not equipped with couplers coupling automatically by impact, and which can be uncoupled[,] without the necessity of men going between the ends of the cars." Act of Mar. 2, 1893, 27 Stat. 531, 45 U.S.C. 2 (1988 ed.), recodified, as amended, 49 U.S.C.A. [ NORFOLK & WESTERN R. CO. v. HILES, ___ U.S. ___ (1996), 8] 20302(a) (Supp. 1995).10 The text of 2 requires that rail cars be equipped with automatic couplers and that all couplers be sufficiently compatible so that they will couple on impact. Johnson v. Southern Pacific Co.. The railroad is liable for an employee's injury or death caused by a violation of the SAA. See St. Louis, I. M. & S. R. Co. v. Taylor ("If the railroad ... use[s] cars which do not comply with the standard, it violates the plain prohibitions of the law, and there arises from that violation the liability to make compensation to one who is injured by it").11 Early SAA cases involved injuries that occurred when an employee was forced to go between the cars during coupling operations. See, e. g., Johnson, supra, at 2 (hand crushed between cars during coupling); San Antonio & Aransas Pass R. Co. v. Wagner (foot crushed between couplers); Atlantic City R. Co. v. Parker (arm caught in drawhead between cars during coupling). Our later cases extended the reach of SAA liability beyond injuries occurring between cars during coupling to other injuries caused by the failure of cars to automatically couple. Affolder v. New York, C. & St. L. R. Co., [ NORFOLK & WESTERN R. CO. v. HILES, ___ U.S. ___ (1996), 9] (railroad employee who ran after a runaway train caused by failure to couple lost a leg when he fell under a car); Carter v. Atlanta & St. Andrews Bay R. Co., (plaintiff successfully boarded runaway cars that failed to couple, but was injured when the cars collided with another train); O'Donnell v. Elgin, J. & E. R. Co., (railworker killed when 2 runaway cars - the result of a broken coupler - collided with cars whose couplers he was adjusting). Liability in each of these cases was predicated on the failure of coupling equipment to perform as required by the SAA, and we held that the SAA creates an absolute duty requiring not only that automatic couplers be present, but also that they actually perform. See, e. g., Affolder, supra, at 98; Carter, supra, at 433-434.IIIHiles urges that railroads have an absolute duty to outfit their cars with safe equipment and that the SAA is violated if an employee is required to go between the ends of cars to manually adjust a misaligned drawbar. We cannot agree. Hiles correctly points out that failure to perform as required by the SAA is itself an actionable wrong dependent on neither negligence nor proof of a defect,12 see Affolder, supra, at 98-99; O'Donnell, supra, at 390, 393, but the absolute duty to which we have referred on numerous occasions is not breached as a matter of law when a drawbar becomes misaligned during the ordinary course of railroad operations.In Affolder, the plaintiff was working with a crew coupling cars. The 25th and 26th cars failed to couple and, after a few more cars were added, the first 25 cars [ NORFOLK & WESTERN R. CO. v. HILES, ___ U.S. ___ (1996), 10] began rolling down a slight incline. The plaintiff ran after the runaway cars in an attempt to board and stop them, but instead fell under a car and lost his leg. At trial, the railroad attempted to prove that the coupler at issue was not defective and that the knuckle on the coupler was closed when the coupling attempt was made. Following O'Donnell, we reaffirmed that the failure of equipment to perform as required is sufficient to create SAA liability, Affolder, supra, at 99 (quoting O'Donnell, supra, at 390), but we noted that failure to couple would not create liability if the coupler was not properly set:"Of course [imposition of failure-to-perform liability] assumes that the coupler was placed in a position to operate on impact. Thus, if `the failure of these two cars to couple on impact was because the coupler on the Pennsylvania car had not been properly opened,' the railroad had a good defense." 339 U.S., at 99.13 In Carter, we similarly conditioned the duty on the coupler's being "properly set." 338 U.S., at 434; see O'Donnell, supra, at 394, n. 7 (declining to consider "a situation where an adequate coupler failed to hold because it was improperly set").In Affolder, we predicated failure-to-perform liability on placing the coupler "in a position to operate on impact." 339 U.S., at 99. We implicitly recognized that certain preliminary steps, such as ensuring that the knuckle is open, are necessary to proper performance of the coupler and that a failure to couple will not [ NORFOLK & WESTERN R. CO. v. HILES, ___ U.S. ___ (1996), 11] constitute an SAA violation if the railroad can show that the coupler had not been placed in a position to automatically couple. Though Affolder involved a claimed closed knuckle, its language was not so limited and, as a matter of common sense, could not have been. Hiles could not reasonably complain that an otherwise working electrical appliance failed to perform if he had neglected to plug in the power cord. Similarly, a court cannot reasonably find as a matter of law that an otherwise nondefective coupler has failed to perform when the drawbar has not been placed "in a position to operate on impact." We think Affolder's restriction on failure-to-perform liability logically extends to every step necessary to prepare a nondefective coupler for coupling, see supra, at 5 (describing the ordinary process of preparing for an automatic coupling), including ensuring proper alignment of the drawbar.14 Hiles contends that the distinction between a closed knuckle and a misaligned drawbar makes a difference because opening a knuckle can be accomplished without going between cars but realigning a drawbar cannot. This is particularly true, Hiles argues, given that Congress' "central policy" in enacting the SAA was to protect the worker by obviating the necessity of going between cars. Brief for Respondent 12-13. We decline to adopt an expansive interpretation of 2 that would prohibit railroad employees from going between cars to realign slued drawbars. The language of 2, which requires couplers that both will couple and can be uncoupled without the necessity of persons going between the cars, does not easily lend itself to Hiles' [ NORFOLK & WESTERN R. CO. v. HILES, ___ U.S. ___ (1996), 12] interpretation. Instead, as even Hiles apparently concedes, see Brief for Respondent 19, the text of 2 only requires railroads to use a particular kind of coupler with certain attributes, and there is no question that Norfolk & Western's cars are equipped with couplers with the necessary functional characteristics.15 [ NORFOLK & WESTERN R. CO. v. HILES, ___ U.S. ___ (1996), 13] Adopting Hiles' reading of 2 would require us to hold that a misaligned drawbar, by itself, is a violation of the SAA, and we are quite unwilling to do that. It is true that our failure-to-perform cases made clear that the railroad will be liable for injuries caused by malfunctioning equipment, even when cars are equipped with automatic couplers. But we cannot agree that a misaligned drawbar is, as a matter of law, a malfunctioning drawbar. Historically, misaligned drawbars were an inevitable byproduct of the ability to traverse curved track and, like the closed knuckle in Affolder, are part of the normal course of railroad car operations.We are understandably hesitant to adopt a reading of 2 that would suggest that almost every railroad car in service for nearly a century has been in violation of the SAA. See United Transportation Union v. Lewis, 711 F.2d 233, 251, n. 39 (CADC 1983). Our hesitance is augmented by the enforcement scheme Congress enacted with the SAA. From its beginning, 6 of the SAA provided that railroads in violation of 2 were liable for "a penalty of one hundred dollars for each and every such violation." Act of Mar. 2, 1893, 27 Stat. 531, 45 U.S.C. 6 (1988 ed.), recodified, as amended, 49 U.S.C.A. 21302(a) (Supp. 1995). The amount of the penalty for a 2 violation has varied over the years,16 but the threat of a penalty has not. Yet Hiles points to not a single instance in which a railroad has been fined for misaligned drawbars. It is not the case that the [ NORFOLK & WESTERN R. CO. v. HILES, ___ U.S. ___ (1996), 14] Government has simply neglected to enforce the penalty provisions of the SAA for nearly 100 years.17 We think there is a better explanation than that the Government has failed to enforce this particular aspect of the SAA since its inception: a misaligned drawbar simply is not a violation of 2.18 Finally, relying on the railroads' experimental attempts to develop automatic realigning devices, Hiles argues that Congress' clear intent to protect railroad employees in coupling operations required the railroads to "develop a mechanism for automatic realignment of a drawbar." Brief for Respondent 27. Or, in the words of his amicus, "[t]he Legislative wisdom of Section 2 is that it is as flexible as technology." Brief for United Transportation Union as Amicus Curiae 17. We reject this argument, for we find no such command in the text of 2. Congress plainly instructed the railroads to install compatible and automatic couplers on all cars, at a time when this basic technology had been in existence for two decades and had received widespread testing and recognition as a feasible technology superior to what was then in primary use. In contrast, Hiles concedes that [ NORFOLK & WESTERN R. CO. v. HILES, ___ U.S. ___ (1996), 15] automatic realignment technology did not even exist in 1893 when Congress passed the SAA, see Brief for Respondent 26-27, and, according to Norfolk & Western, automatic realignment has never been shown to be effective. But this matters not, because Congress legislated working automatic couplers for employee safety, not employee safety by whatever method a court might deem appropriate.The judgment of the Illinois Appellate Court is Reversed.

Georgia statute providing that "[a]ny person who shall, without provocation, use to or of another, and in his presence ... opprobrious words or abusive language, tending to cause a breach of the peace ... shall be guilty of a misdemeanor," which has not been narrowed by the Georgia courts to apply only to "fighting" words "which by their very utterance ... tend to incite an immediate breach of the peace," Chaplinsky v. New Hampshire, , is on its face unconstitutionally vague and overbroad under the First and Fourteenth Amendments. Pp. 520-528. 431 F.2d 855, affirmed.BRENNAN, J., delivered the opinion of the Court, in which DOUGLAS, STEWART, WHITE, and MARSHALL, JJ., joined. BURGER, C. J., filed a dissenting opinion, post, p. 528. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C. J., joined, post, p. 534. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.Courtney Wilder Stanton, Assistant Attorney General of Georgia, argued the cause for appellant. With him on the brief were Arthur K. Bolton, Attorney General, Harold N. Hill, Jr., Executive Assistant Attorney General, Dorothy T. Beasley, Assistant Attorney General, and Franklin Pierce.Elizabeth R. Rindskopf argued the cause for appellee. On the brief were Howard Moore, Jr., and Peter E. Rindskopf.MR. JUSTICE BRENNAN delivered the opinion of the Court.Appellee was convicted in Superior Court, Fulton County, Georgia, on two counts of using opprobrious words and abusive language in violation of Georgia Code Ann. 26-6303, which provides: "Any person who shall, without provocation, use to or of another, and in his presence ... opprobrious words or abusive language, tending to cause a breach of the peace ... shall be guilty of a misdemeanor." Appellee appealed the conviction to the Supreme Court of Georgia on the ground, among others, that the statute violated the First and Fourteenth Amendments because vague and overbroad. The Georgia Supreme Court rejected that contention and sustained the conviction. Wilson v. State, 223 Ga. 531, 156 S. E. 2d 446 (1967). Appellee then sought federal habeas corpus relief in the District Court for the Northern District of Georgia. The District Court found that, because appellee had failed to exhaust his available state remedies as to the other grounds he relied upon in attacking his conviction, only the contention that 26-6303 was facially unconstitutional was ripe for decision.1 303 F. Supp. 952 (1969). On the merits of that question, the District Court, in disagreement with the Georgia Supreme Court, held that 26-6303, on its face, was unconstitutionally vague and broad and set aside appellee's conviction. The Court of Appeals for the Fifth Circuit affirmed. 431 F.2d 855 (1970). We noted probable jurisdiction of the State's appeal, . We affirm.Section 26-6303 punishes only spoken words. It can therefore withstand appellee's attack upon its facial constitutionality only if, as authoritatively construed by the Georgia courts, it is not susceptible of application to speech, although vulgar or offensive, that is protected by the First and Fourteenth Amendments, Cohen v. California, ; Terminiello v. Chicago, . Only the Georgia courts can supply the requisite construction, since of course "we lack jurisdiction authoritatively to construe state legislation." United States v. Thirty-seven Photographs, . It matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when "no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution," Dombrowski v. Pfister, , the transcendent value to all society of constitutionally protected expression is deemed to justify allowing "attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity," id., at 486; see also Baggett v. Bullitt, ; Coates v. City of Cincinnati, ; id., at 619-620 (WHITE, J., dissenting); United States v. Raines, ; NAACP v. Button, . This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their rights for fear of criminal sanctions provided by a statute susceptible of application to protected expression."Although a statute may be neither vague, overbroad, nor otherwise invalid as applied to the conduct charged against a particular defendant, he is permitted to raise its vagueness or unconstitutional overbreadth as applied to others. And if the law is found deficient in one of these respects, it may not be applied to him either, until and unless a satisfactory limiting construction is placed on the statute. The statute, in effect, is stricken down on its face. This result is deemed justified since the otherwise continued existence of the statute in unnarrowed form would tend to suppress constitutionally protected rights." Coates v. City of Cincinnati, supra, at 619-620 (opinion of WHITE, J.) (citation omitted). The constitutional guarantees of freedom of speech forbid the States to punish the use of words or language not within "narrowly limited classes of speech." Chaplinsky v. New Hampshire, . Even as to such a class, however, because "the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn," Speiser v. Randall, , "[i]n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom," Cantwell v. Connecticut, . In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression. "Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity." NAACP v. Button, supra, at 433.Appellant does not challenge these principles but contends that the Georgia statute is narrowly drawn to apply only to a constitutionally unprotected class of words - "fighting" words - "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, supra, at 572. In Chaplinsky, we sustained a conviction under Chapter 378, 2, of the Public Laws of New Hampshire, which provided: "No person shall address any offensive, derisive or annoying word to any other person who is lawfully in any street or other public place, nor call him by any offensive or derisive name ... ." Chaplinsky was convicted for addressing to another on a public sidewalk the words, "You are a God damned racketeer," and "a damned Fascist and the whole government of Rochester are Fascists or agents of Fascists." Chaplinsky challenged the constitutionality of the statute as inhibiting freedom of expression because it was vague and indefinite. The Supreme Court of New Hampshire, however, "long before the words for which Chaplinsky was convicted," sharply limited the statutory language "offensive, derisive or annoying word" to "fighting" words:"[N]o words were forbidden except such as have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed ... . ... . . "The test is what men of common intelligence would understand would be words likely to cause an average addressee to fight... . Derisive and annoying words can be taken as coming within the purview of the statute ... only when they have this characteristic of plainly tending to excite the addressee to a breach of the peace... . "The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee ... ." 91 N. H. 310, 313, 320-321, 18 A. 2d 754, 758, 762 (1941). In view of that authoritative construction, this Court held: "We are unable to say that the limited scope of the statute as thus construed contravenes the Constitutional right of free expression. It is a statute narrowly drawn and limited to define and punish specific conduct lying within the domain of state power, the use in a public place of words likely to cause a breach of the peace." 315 U.S., at 573. Our decisions since Chaplinsky have continued to recognize state power constitutionally to punish "fighting" words under carefully drawn statutes not also susceptible of application to protected expression, Cohen v. California, 403 U.S., at 20; Bachellar v. Maryland, ; see Street v. New York, . We reaffirm that proposition today. Appellant argues that the Georgia appellate courts have by construction limited the proscription of 26-6303 to "fighting" words, as the New Hampshire Supreme Court limited the New Hampshire statute. "A consideration of the [Georgia] cases construing the elements of the offense makes it clear that the opprobrious words and abusive language which are thereby prohibited are those which as a matter of common knowledge and under ordinary circumstances will, when used to or of another person, and in his presence, naturally tend to provoke violent resentment. The statute under attack simply states in statutory language what this Court has previously denominated `fighting words.'" Brief for Appellant 6. Neither the District Court nor the Court of Appeals so read the Georgia decisions. On the contrary, the District Court expressly stated, "Thus, in the decisions brought to this Court's attention, no meaningful attempt has been made to limit or properly define these terms." 303 F. Supp., at 955. The District Judge and one member of the unanimous Court of Appeals panel were Georgia practitioners before they ascended the bench.2 Their views of Georgia law necessarily are persuasive with us. C. Wright, Law of Federal Courts 58, pp. 240-241 (2d ed. 1970). We have, however, made our own examination of the Georgia cases, both those cited and others discovered in research. That examination brings us to the conclusion, in agreement with the courts below, that the Georgia appellate decisions have not construed 26-6303 to be limited in application, as in Chaplinsky, to words that "have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." The dictionary definitions of "opprobrious" and "abusive" give them greater reach than "fighting" words. Webster's Third New International Dictionary (1961) defined "opprobrious" as "conveying or intended to convey disgrace," and "abusive" as including "harsh insulting language." Georgia appellate decisions have construed 26-6303 to apply to utterances that, although within these definitions, are not "fighting" words as Chaplinsky defines them. In Lyons v. State, 94 Ga. App. 570, 95 S. E. 2d 478 (1956), a conviction under the statute was sustained for awakening 10 women scout leaders on a camp-out by shouting, "Boys, this is where we are going to spend the night." "Get the G__ d___ bed rolls out ... let's see how close we can come to the G__ d___ tents." Again, in Fish v. State, 124 Ga. 416, 52 S. E. 737 (1905), the Georgia Supreme Court held that a jury question was presented by the remark, "You swore a lie." Again, Jackson v. State, 14 Ga. App. 19, 80 S. E. 20 (1913), held that a jury question was presented by the words addressed to another, "God damn you, why don't you get out of the road?" Plainly, although "conveying ... disgrace" or "harsh insulting language," these were not words "which by their very utterance ... tend to incite an immediate breach of the peace." Chaplinsky v. New Hampshire, supra, at 572.Georgia appellate decisions construing the reach of "tending to cause a breach of the peace" underscore that 26-6303 is not limited, as appellant argues, to words that "naturally tend to provoke violent resentment." Lyons v. State, supra; Fish v. State, supra; and Jackson v. State, supra. Indeed, the Georgia Court of Appeals3 in Elmore v. State, 15 Ga. App. 461, 83 S. E. 799 (1914), construed "tending to cause a breach of the peace" as mere"words of description, indicating the kind or character of opprobrious or abusive language that is penalized, and the use of language of this character is a violation of the statute, even though it be addressed to one who, on account of circumstances or by virtue of the obligations of office, can not actually then and there resent the same by a breach of the peace ... . "... Suppose that one, at a safe distance and out of hearing of any other than the person to whom he spoke, addressed such language to one locked in a prison cell or on the opposite bank of an impassable torrent, and hence without power to respond immediately to such verbal insults by physical retaliation, could it be reasonably contended that, because no breach of the peace could then follow, the statute would not be violated? ... "... [T]hough, on account of circumstances or obligations imposed by office, one may not be able at the time to assault and beat another on account of such language, it might still tend to cause a breach of the peace at some future time, when the person to whom it was addressed might be no longer hampered by physical inability, present conditions, or official position." 15 Ga. App., at 461-463, 83 S. E., at 799-800.4 Moreover, in Samuels v. State, 103 Ga. App. 66, 67, 118 S. E. 2d 231, 232 (1961), the Court of Appeals, in applying another statute, adopted from a textbook the common-law definition of "breach of the peace.""The term `breach of the peace' is generic, and includes all violations of the public peace or order, or decorum; in other words, it signifies the offense of disturbing the public peace or tranquility enjoyed by the citizens of a community ... . By `peace,' as used in this connection, is meant the tranquility enjoyed by the citizens of a municipality or a community where good order reigns among its members." This definition makes it a "breach of peace" merely to speak words offensive to some who hear them, and so sweeps too broadly. Street v. New York, 394 U.S., at 592. "[H]ow infinitely more doubtful and uncertain are the boundaries of an offense including any `diversion tending to a breach of the peace'... ." Gregory v. Chicago, (Black, J., concurring) (emphasis supplied).Accordingly, we agree with the District Court that our decisions in Ashton v. Kentucky, , and Cox v. Louisiana, , compel the conclusion that 26-6303, as construed, does not define the standard of responsibility with requisite narrow specificity. In Ashton we held that "to make an offense of conduct which is `calculated to create disturbances of the peace' leaves wide open the standard of responsibility." 384 U.S., at 200. In Cox v. Louisiana the statute struck down included as an element congregating with others "with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby." As the District Court observed, "[a]s construed by the Georgia courts, especially in the instant case, the Georgia provision as to breach of the peace is even broader than the Louisiana statute." 303 F. Supp., at 956. We conclude that "[t]he separation of legitimate from illegitimate speech calls for more sensitive tools than [Georgia] has supplied." Speiser v. Randall, 357 U.S., at 525. The most recent decision of the Georgia Supreme Court, Wilson v. State, supra, in rejecting appellee's attack on the constitutionality of 26-6303, stated that the statute "conveys a definite meaning as to the conduct forbidden, measured by common understanding and practice." 223 Ga., at 533, 156 S. E. 2d, at 448. Because earlier appellate decisions applied 26-6303 to utterances where there was no likelihood that the person addressed would make an immediate violent response, it is clear that the standard allowing juries to determine guilt "measured by common understanding and practice" does not limit the application of 26-6303 to "fighting" words defined by Chaplinsky. Rather, that broad standard effectively "licenses the jury to create its own standard in each case." Herndon v. Lowry, . Accordingly, we agree with the conclusion of the District Court, "[t]he fault of the statute is that it leaves wide open the standard of responsibility, so that it is easily susceptible to improper application." 303 F. Supp., at 955-956. Unlike the construction of the New Hampshire statute by the New Hampshire Supreme Court, the Georgia appellate courts have not construed 26-6303 "so as to avoid all constitutional difficulties." United States v. Thirty-seven Photographs, 402 U.S., at 369. Affirmed.MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.

David A. Boyle, a United States Marine helicopter copilot, drowned when his helicopter crashed off the Virginia coast. Petitioner, the personal representative of the heirs and estate of Boyle, brought this diversity action in Federal District Court against the Sikorsky Division of respondent corporation (Sikorsky), alleging, inter alia, under Virginia tort law, that Sikorsky had defectively designed the helicopter's copilot emergency escape-hatch system. The jury returned a general verdict for petitioner, and the court denied Sikorsky's motion for judgment notwithstanding the verdict. The Court of Appeals reversed and remanded with directions that judgment be entered for Sikorsky. It found that, as a matter of federal law, Sikorsky could not be held liable for the allegedly defective design because Sikorsky satisfied the requirements of the "military contractor defense."Held: 1. There is no merit to petitioner's contention that, in the absence of federal legislation specifically immunizing Government contractors, federal law cannot shield contractors from liability for design defects in military equipment. In a few areas involving "uniquely federal interests," state law is pre-empted and replaced, where necessary, by federal law of a content prescribed (absent explicit statutory directive) by the courts. The procurement of equipment by the United States is an area of uniquely federal interest. A dispute such as the present one, even though between private parties, implicates the interests of the United States in this area. Once it is determined that an area of uniquely federal interest is implicated, state law will be displaced only where a "significant conflict" exists between an identifiable federal policy or interest and the operation of state law, or the application of state law would frustrate specific objectives of federal legislation. Here, the state-imposed duty of care that is the asserted basis of the contractor's liability is precisely contrary to the duty imposed by the Government contract. But even in this situation, it would be unreasonable to say that there is always a "significant conflict" between state law and a federal policy or interest. In search of a limiting principle to identify when a significant conflict is present, the Court of Appeals relied on the rationale of Feres v. United States, . This produces results that are in some respects too broad and in some respects too narrow. However, the discretionary function exception to the Federal Tort Claims Act does demonstrate the potential for, and suggest the outlines of, "significant conflict" between federal interest and state law in this area. State law is displaced where judgment against the contractor would threaten a discretionary function of the Government. In sum, state law which imposes liability for design defects in military equipment is displaced where (a) the United States approved reasonably precise specifications; (b) the equipment conformed to those specifications; and (c) the supplier warned the United States about dangers in the use of the equipment known to the supplier but not to the United States. Pp. 504-513. 2. Also without merit is petitioner's contention that since the Government contractor defense formulated by the Court of Appeals differed from the instructions given by the District Court to the jury, the Seventh Amendment guarantee of jury trial requires a remand for trial on the new theory. If the evidence presented in the first trial would not suffice, as a matter of law, to support a jury verdict under the properly formulated defense, judgment could properly be entered for respondent at once, without a new trial. It is unclear from the Court of Appeals' opinion, however, whether it was in fact deciding that no reasonable jury could, under the properly formulated defense, have found for petitioner on the facts presented, or rather was assessing on its own whether the defense had been established. The latter would be error, since whether the facts established the conditions for the defense is a question for the jury. The case is remanded for clarification of this point. Pp. 513-514. 792 F.2d 413, vacated and remanded.SCALIA, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, O'CONNOR, and KENNEDY, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL and BLACKMUN, JJ., joined, post, p. 515. STEVENS, J., filed a dissenting opinion, post, p. 531.Louis S. Franecke reargued the cause for petitioner. With him on the briefs was John O. Mack.Philip A. Lacovara reargued the cause for respondent. With him on the briefs were Lewis T. Booker, W. Stanfield Johnson, and William R. Stein.Deputy Solicitor General Ayer reargued the cause for the United States as amicus curiae urging affirmance. With him on the brief were Solicitor General Fried, Assistant Attorney General Willard, Deputy Assistant Attorneys General Spears and Willmore, and Christopher J. Wright.* [Footnote *] Briefs of amici curiae urging reversal were filed for Edwin Lees Shaw by Joel D. Eaton and Robert L. Parks; and for Joan S. Tozer et al. by Michael J. Pangia.Briefs of amici curiae urging affirmance were filed for the Chamber of Commerce of the United States by Herbert L. Fenster, Raymond B. Biagini, and Robin S. Conrad; for the Defense Research Institute, Inc., by James W. Morris III, Ann Adams Webster, and Donald F. Pierce; for Grumman Aerospace Corp. by James M. FitzSimons, Frank J. Chiarchiaro, Charles M. Shaffer, Jr., L. Joseph Loveland, and Gary J. Toman; for the National Security Industrial Association et al. by Kenneth S. Geller and Andrew L. Frey; and for the Product Liability Advisory Council, Inc., et al. by Michael Hoenig, David B. Hamm, William H. Crabtree, and Edward P. Good.Briefs of amici curiae were filed for the Association of Trial Lawyers of America by Robert L. Habush, Dale Haralson, and Denneen L. Peterson; for Bell Helicopter Textron Inc. by R. David Broiles, George Galerstein, and James W. Hunt; and for UNR Industries, Inc., by Joe G. Hollingsworth.JUSTICE SCALIA delivered the opinion of the Court.This case requires us to decide when a contractor providing military equipment to the Federal Government can be held liable under state tort law for injury caused by a design defect.IOn April 27, 1983, David A. Boyle, a United States Marine helicopter copilot, was killed when the CH-53D helicopter in which he was flying crashed off the coast of Virginia Beach, Virginia, during a training exercise. Although Boyle survived the impact of the crash, he was unable to escape from the helicopter and drowned. Boyle's father, petitioner here, brought this diversity action in Federal District Court against the Sikorsky Division of United Technologies Corporation (Sikorsky), which built the helicopter for the United States. At trial, petitioner presented two theories of liability under Virginia tort law that were submitted to the jury. First, petitioner alleged that Sikorsky had defectively repaired a device called the servo in the helicopter's automatic flight control system, which allegedly malfunctioned and caused the crash. Second, petitioner alleged that Sikorsky had defectively designed the copilot's emergency escape system: the escape hatch opened out instead of in (and was therefore ineffective in a submerged craft because of water pressure), and access to the escape hatch handle was obstructed by other equipment. The jury returned a general verdict in favor of petitioner and awarded him $725,000. The District Court denied Sikorsky's motion for judgment notwithstanding the verdict.The Court of Appeals reversed and remanded with directions that judgment be entered for Sikorsky. 792 F.2d 413 (CA4 1986). It found, as a matter of Virginia law, that Boyle had failed to meet his burden of demonstrating that the repair work performed by Sikorsky, as opposed to work that had been done by the Navy, was responsible for the alleged malfunction of the flight control system. Id., at 415-416. It also found, as a matter of federal law, that Sikorsky could not be held liable for the allegedly defective design of the escape hatch because, on the evidence presented, it satisfied the requirements of the "military contractor defense," which the court had recognized the same day in Tozer v. LTV Corp., 792 F.2d 403 (CA4 1986). 792 F.2d, at 414-415.Petitioner sought review here, challenging the Court of Appeals' decision on three levels: First, petitioner contends that there is no justification in federal law for shielding Government contractors from liability for design defects in military equipment. Second, he argues in the alternative that even if such a defense should exist, the Court of Appeals' formulation of the conditions for its application is inappropriate. Finally, petitioner contends that the Court of Appeals erred in not remanding for a jury determination of whether the elements of the defense were met in this case. We granted certiorari, .IIPetitioner's broadest contention is that, in the absence of legislation specifically immunizing Government contractors from liability for design defects, there is no basis for judicial recognition of such a defense. We disagree. In most fields of activity, to be sure, this Court has refused to find federal pre-emption of state law in the absence of either a clear statutory prescription, see, e. g., Jones v. Rath Packing Co., ; Rice v. Santa Fe Elevator Corp., , or a direct conflict between federal and state law, see, e. g., Florida Lime & Avocado Growers, Inc. v. Paul, ; Hines v. Davidowitz, . But we have held that a few areas, involving "uniquely federal interests," Texas Industries, Inc. v. Radcliff Materials, Inc., , are so committed by the Constitution and laws of the United States to federal control that state law is pre-empted and replaced, where necessary, by federal law of a content prescribed (absent explicit statutory directive) by the courts - so-called "federal common law." See, e. g., United States v. Kimbell Foods, Inc., ; Banco Nacional v. Sabbatino, ; Howard v. Lyons, ; Clearfield Trust Co. v. United States, ; D'Oench, Duhme & Co. v. FDIC, .The dispute in the present case borders upon two areas that we have found to involve such "uniquely federal interests." We have held that obligations to and rights of the United States under its contracts are governed exclusively by federal law. See, e. g., United States v. Little Lake Misere Land Co., ; Priebe & Sons, Inc. v. United States, ; National Metropolitan Bank v. United States, , 456 (1945); Clearfield Trust, supra. The present case does not involve an obligation to the United States under its contract, but rather liability to third persons. That liability may be styled one in tort, but it arises out of performance of the contract - and traditionally has been regarded as sufficiently related to the contract that until 1962 Virginia would generally allow design defect suits only by the purchaser and those in privity with the seller. See General Bronze Corp. v. Kostopulos, 203 Va. 66, 69-70, 122 S. E. 2d 548, 551 (1961); see also Va. Code 8.2-318 (1965) (eliminating privity requirement).Another area that we have found to be of peculiarly federal concern, warranting the displacement of state law, is the civil liability of federal officials for actions taken in the course of their duty. We have held in many contexts that the scope of that liability is controlled by federal law. See, e. g., Westfall v. Erwin, ; Howard v. Lyons, supra, at 597; Barr v. Matteo, (plurality opinion); id., at 577 (Black, J., concurring); see also Yaselli v. Goff, 12 F.2d 396 (CA2 1926), aff'd, (per curiam); Spalding v. Vilas, ; Bradley v. Fisher, 13 Wall. 335 (1872). The present case involves an independent contractor performing its obligation under a procurement contract, rather than an official performing his duty as a federal employee, but there is obviously implicated the same interest in getting the Government's work done.1 We think the reasons for considering these closely related areas to be of "uniquely federal" interest apply as well to the civil liabilities arising out of the performance of federal procurement contracts. We have come close to holding as much. In Yearsley v. W. A. Ross Construction Co., , we rejected an attempt by a landowner to hold a construction contractor liable under state law for the erosion of 95 acres caused by the contractor's work in constructing dikes for the Government. We said that "if [the] authority to carry out the project was validly conferred, that is, if what was done was within the constitutional power of Congress, there is no liability on the part of the contractor for executing its will." Id., at 20-21. The federal interest justifying this holding surely exists as much in procurement contracts as in performance contracts; we see no basis for a distinction.Moreover, it is plain that the Federal Government's interest in the procurement of equipment is implicated by suits such as the present one - even though the dispute is one between private parties. It is true that where "litigation is purely between private parties and does not touch the rights and duties of the United States," Bank of America Nat. Trust & Sav. Assn. v. Parnell, , federal law does not govern. Thus, for example, in Miree v. DeKalb County, , which involved the question whether certain private parties could sue as third-party beneficiaries to an agreement between a municipality and the Federal Aviation Administration, we found that state law was not displaced because "the operations of the United States in connection with FAA grants such as these ... would [not] be burdened" by allowing state law to determine whether third-party beneficiaries could sue, id., at 30, and because "any federal interest in the outcome of the [dispute] before us `[was] far too speculative, far too remote a possibility to justify the application of federal law to transactions essentially of local concern.'" Id., at 32-33, quoting Parnell, supra, at 33-34; see also Wallis v. Pan American Petroleum Corp., .2 But the same is not true here. The imposition of liability on Government contractors will directly affect the terms of Government contracts: either the contractor will decline to manufacture the design specified by the Government, or it will raise its price. Either way, the interests of the United States will be directly affected.That the procurement of equipment by the United States is an area of uniquely federal interest does not, however, end the inquiry. That merely establishes a necessary, not a sufficient, condition for the displacement of state law.3 Displacement will occur only where, as we have variously described, a "significant conflict" exists between an identifiable "federal policy or interest and the [operation] of state law," Wallis, supra, at 68, or the application of state law would "frustrate specific objectives" of federal legislation, Kimbell Foods, 440 U.S., at 728. The conflict with federal policy need not be as sharp as that which must exist for ordinary pre-emption when Congress legislates "in a field which the States have traditionally occupied." Rice v. Santa Fe Elevator Corp., 331 U.S., at 230. Or to put the point differently, the fact that the area in question is one of unique federal concern changes what would otherwise be a conflict that cannot produce pre-emption into one that can.4 But conflict there must be. In some cases, for example where the federal interest requires a uniform rule, the entire body of state law applicable to the area conflicts and is replaced by federal rules. See, e. g., Clearfield Trust, 318 U.S., at 366-367 (rights and obligations of United States with respect to commercial paper must be governed by uniform federal rule). In others, the conflict is more narrow, and only particular elements of state law are superseded. See, e. g., Little Lake Misere Land Co., 412 U.S., at 595 (even assuming state law should generally govern federal land acquisitions, particular state law at issue may not); Howard v. Lyons, 360 U.S., at 597 (state defamation law generally applicable to federal official, but federal privilege governs for statements made in the course of federal official's duties).In Miree, supra, the suit was not seeking to impose upon the person contracting with the Government a duty contrary to the duty imposed by the Government contract. Rather, it was the contractual duty itself that the private plaintiff (as third-party beneficiary) sought to enforce. Between Miree and the present case, it is easy to conceive of an intermediate situation, in which the duty sought to be imposed on the contractor is not identical to one assumed under the contract, but is also not contrary to any assumed. If, for example, the United States contracts for the purchase and installation of an air-conditioning unit, specifying the cooling capacity but not the precise manner of construction, a state law imposing upon the manufacturer of such units a duty of care to include a certain safety feature would not be a duty identical to anything promised the Government, but neither would it be contrary. The contractor could comply with both its contractual obligations and the state-prescribed duty of care. No one suggests that state law would generally be pre-empted in this context.The present case, however, is at the opposite extreme from Miree. Here the state-imposed duty of care that is the asserted basis of the contractor's liability (specifically, the duty to equip helicopters with the sort of escape-hatch mechanism petitioner claims was necessary) is precisely contrary to the duty imposed by the Government contract (the duty to manufacture and deliver helicopters with the sort of escape-hatch mechanism shown by the specifications). Even in this sort of situation, it would be unreasonable to say that there is always a "significant conflict" between the state law and a federal policy or interest. If, for example, a federal procurement officer orders, by model number, a quantity of stock helicopters that happen to be equipped with escape hatches opening outward, it is impossible to say that the Government has a significant interest in that particular feature. That would be scarcely more reasonable than saying that a private individual who orders such a craft by model number cannot sue for the manufacturer's negligence because he got precisely what he ordered.In its search for the limiting principle to identify those situations in which a "significant conflict" with federal policy or interests does arise, the Court of Appeals, in the lead case upon which its opinion here relied, identified as the source of the conflict the Feres doctrine, under which the Federal Tort Claims Act (FTCA) does not cover injuries to Armed Services personnel in the course of military service. See Feres v. United States, . Military contractor liability would conflict with this doctrine, the Fourth Circuit reasoned, since the increased cost of the contractor's tort liability would be added to the price of the contract, and "[s]uch pass-through costs would ... defeat the purpose of the immunity for military accidents conferred upon the government itself." Tozer, 792 F.2d, at 408. Other courts upholding the defense have embraced similar reasoning. See, e. g., Bynum v. FMC Corp., 770 F.2d 556, 565-566 (CA5 1985); Tillett v. J. I. Case Co., 756 F.2d 591, 596-597 (CA7 1985); McKay v. Rockwell Int'l Corp., 704 F.2d 444, 449 (CA9 1983), cert. denied, . We do not adopt this analysis because it seems to us that the Feres doctrine, in its application to the present problem, logically produces results that are in some respects too broad and in some respects too narrow. Too broad, because if the Government contractor defense is to prohibit suit against the manufacturer whenever Feres would prevent suit against the Government, then even injuries caused to military personnel by a helicopter purchased from stock (in our example above), or by any standard equipment purchased by the Government, would be covered. Since Feres prohibits all service-related tort claims against the Government, a contractor defense that rests upon it should prohibit all service-related tort claims against the manufacturer - making inexplicable the three limiting criteria for contractor immunity (which we will discuss presently) that the Court of Appeals adopted. On the other hand, reliance on Feres produces (or logically should produce) results that are in another respect too narrow. Since that doctrine covers only service-related injuries, and not injuries caused by the military to civilians, it could not be invoked to prevent, for example, a civilian's suit against the manufacturer of fighter planes, based on a state tort theory, claiming harm from what is alleged to be needlessly high levels of noise produced by the jet engines. Yet we think that the character of the jet engines the Government orders for its fighter planes cannot be regulated by state tort law, no more in suits by civilians than in suits by members of the Armed Services.There is, however, a statutory provision that demonstrates the potential for, and suggests the outlines of, "significant conflict" between federal interests and state law in the context of Government procurement. In the FTCA, Congress authorized damages to be recovered against the United States for harm caused by the negligent or wrongful conduct of Government employees, to the extent that a private person would be liable under the law of the place where the conduct occurred. 28 U.S.C. 1346(b). It excepted from this consent to suit, however,"[a]ny claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. 2680(a). We think that the selection of the appropriate design for military equipment to be used by our Armed Forces is assuredly a discretionary function within the meaning of this provision. It often involves not merely engineering analysis but judgment as to the balancing of many technical, military, and even social considerations, including specifically the trade-off between greater safety and greater combat effectiveness. And we are further of the view that permitting "second-guessing" of these judgments, see United States v. Varig Airlines, , through state tort suits against contractors would produce the same effect sought to be avoided by the FTCA exemption. The financial burden of judgments against the contractors would ultimately be passed through, substantially if not totally, to the United States itself, since defense contractors will predictably raise their prices to cover, or to insure against, contingent liability for the Government-ordered designs. To put the point differently: It makes little sense to insulate the Government against financial liability for the judgment that a particular feature of military equipment is necessary when the Government produces the equipment itself, but not when it contracts for the production. In sum, we are of the view that state law which holds Government contractors liable for design defects in military equipment does in some circumstances present a "significant conflict" with federal policy and must be displaced.5 We agree with the scope of displacement adopted by the Fourth Circuit here, which is also that adopted by the Ninth Circuit, see McKay v. Rockwell Int'l Corp., supra, at 451. Liability for design defects in military equipment cannot be imposed, pursuant to state law, when (1) the United States approved reasonably precise specifications; (2) the equipment conformed to those specifications; and (3) the supplier warned the United States about the dangers in the use of the equipment that were known to the supplier but not to the United States. The first two of these conditions assure that the suit is within the area where the policy of the "discretionary function" would be frustrated - i. e., they assure that the design feature in question was considered by a Government officer, and not merely by the contractor itself. The third condition is necessary because, in its absence, the displacement of state tort law would create some incentive for the manufacturer to withhold knowledge of risks, since conveying that knowledge might disrupt the contract but withholding it would produce no liability. We adopt this provision lest our effort to protect discretionary functions perversely impede them by cutting off information highly relevant to the discretionary decision.We have considered the alternative formulation of the Government contractor defense, urged upon us by petitioner, which was adopted by the Eleventh Circuit in Shaw v. Grumman Aerospace Corp., 778 F.2d 736, 746 (1985), cert. pending, No. 85-1529. That would preclude suit only if (1) the contractor did not participate, or participated only minimally, in the design of the defective equipment; or (2) the contractor timely warned the Government of the risks of the design and notified it of alternative designs reasonably known by it, and the Government, although forewarned, clearly authorized the contractor to proceed with the dangerous design. While this formulation may represent a perfectly reasonable tort rule, it is not a rule designed to protect the federal interest embodied in the "discretionary function" exemption. The design ultimately selected may well reflect a significant policy judgment by Government officials whether or not the contractor rather than those officials developed the design. In addition, it does not seem to us sound policy to penalize, and thus deter, active contractor participation in the design process, placing the contractor at risk unless it identifies all design defects.IIIPetitioner raises two arguments regarding the Court of Appeals' application of the Government contractor defense to the facts of this case. First, he argues that since the formulation of the defense adopted by the Court of Appeals differed from the instructions given by the District Court to the jury, the Seventh Amendment guarantee of jury trial required a remand for trial on the new theory. We disagree. If the evidence presented in the first trial would not suffice, as a matter of law, to support a jury verdict under the properly formulated defense, judgment could properly be entered for the respondent at once, without a new trial. And that is so even though (as petitioner claims) respondent failed to object to jury instructions that expressed the defense differently, and in a fashion that would support a verdict. See St. Louis v. Praprotnik, (plurality opinion of O'CONNOR, J., joined by REHNQUIST, C. J., WHITE, and SCALIA, JJ.); Ebker v. Tan Jay Int'l, Ltd., 739 F.2d 812, 825-826, n. 17 (CA2 1984) (Friendly, J.); 9 C. Wright & A. Miller, Federal Practice and Procedure 2537, pp. 599-600 (1971).It is somewhat unclear from the Court of Appeals' opinion, however, whether it was in fact deciding that no reasonable jury could, under the properly formulated defense, have found for the petitioner on the facts presented, or rather was assessing on its own whether the defense had been established. The latter, which is what petitioner asserts occurred, would be error, since whether the facts establish the conditions for the defense is a question for the jury. The critical language in the Court of Appeals' opinion was that "[b]ecause Sikorsky has satisfied the requirements of the military contractor defense, it can incur no liability for ... the allegedly defective design of the escape hatch." 792 F.2d, at 415. Although it seems to us doubtful that the Court of Appeals was conducting the factual evaluation that petitioner suggests, we cannot be certain from this language, and so we remand for clarification of this point. If the Court of Appeals was saying that no reasonable jury could find, under the principles it had announced and on the basis of the evidence presented, that the Government contractor defense was inapplicable, its judgment shall stand, since petitioner did not seek from us, nor did we grant, review of the sufficiency-of-the-evidence determination. If the Court of Appeals was not saying that, it should now undertake the proper sufficiency inquiry.Accordingly, the judgment is vacated and the case is remanded. So ordered.

[Footnote *] Together with No. 73, First Security Bank of Utah, N. A. v. Commercial Security Bank, and No. 88, Saxon, Comptroller of the Currency v. Commercial Security Bank, on certiorari to the United States Court of Appeals for the District of Columbia Circuit. The provisions of the National Bank Act, 12 U.S.C. 36 (c), which authorize a national banking association, with the Comptroller of the Currency's approval, to establish and operate branch banks if such operation is "at the time expressly authorized to State banks by the law of the State in question," place national and state banks on a basis of "competitive equality" as far as branch banking is concerned, and national banks may establish branches only in accordance with all requirements and conditions applicable to state banks by state law. Pp. 256-262. No. 51, 352 F.2d 90; and Nos. 73 and 88, affirmed.Theodore S. Perry argued the cause and filed briefs for petitioner in No. 51. John J. Wilson argued the cause for petitioner in No. 73. With him on the briefs was Charles J. Steele. Richard A. Posner argued the cause for petitioner in No. 88. With him on the briefs were Solicitor General Marshall, Assistant Attorney General Douglas, David L. Rose and Kathryn H. Baldwin.Joseph S. Jones argued the cause and filed a brief for respondent in No. 51. James F. Bell argued the cause and filed a brief for respondent in Nos. 73 and 88.Robert Y. Button, Attorney General, and Kenneth C. Patty, Assistant Attorney General, filed a brief for the Commonwealth of Virginia, as amicus curiae, urging affirmance in all cases. Henry T. Wickham filed a brief for the Virginia Bankers Association, as amicus curiae, urging affirmance in Nos. 73 and 88.MR. JUSTICE CLARK delivered the opinion of the Court.These cases involve the construction of those portions of the National Bank Act, 44 Stat. 1228, 12 U.S.C. 36 (c), which authorize a national banking association, with the approval of the Comptroller of the Currency, to establish and operate new branches within the limits of the municipality in which the bank is located, if such operation is "at the time expressly authorized to State banks by the law of the State in question."1 Two national banks with their main banking houses in Logan and Ogden, Utah, respectively, seek to open branches in those municipalities. The Utah statute prohibits Utah banks, with certain exceptions not here relevant, from establishing branches except by taking over an existing bank which has been in operation for not less than five years. Utah Code Ann., Tit. 7, c. 3, 6 (1965 Supp.).2 In No. 51, First National Bank of Logan v. Walker Bank & Trust Co., the petitioner seeks to establish a new branch in Logan, where its principal banking house is located, without taking over an established bank. The District Court approved its doing so but the Court of Appeals reversed. 352 F.2d 90 (C. A. 10th Cir.), sub nom. Walker Bank & Trust Co. v. Saxon. In No. 73, First Security Bank of Utah, N. A. v. Commercial Security Bank, and No. 88, Saxon v. Commercial Security Bank, First Security seeks to establish a new branch in Ogden, in which its home office is situated, without taking over an established bank. The District Court held that state law must be complied with, 236 F. Supp. 457, and the Court of Appeals affirmed in a judgment, without opinion, citing Walker Bank & Trust Co., supra. In view of a conflict between these holdings and the decision in First National Bank of Smithfield v. Saxon, 352 F.2d 267 (C. A. 4th Cir.), we granted certiorari, and consolidated the three cases for argument. . We affirm the judgments.1. The Facts.In No. 51, the petitioner maintains its principal banking house in Logan, Utah, which is a second class city under Utah law (Utah Code Ann., Tit. 10, c. 1, 1 (1953, as amended), and is therefore subject to 7-3-6 of the Utah Code, supra. It applied to the Comptroller of the Currency for a certificate to establish an "inside" branch office in Logan. At the time of the application there were no other banks with their main banking offices in Logan. However, there were two branches of banks whose home offices were situated outside of Logan, one of which belonged to respondent, Walker Bank & Trust Co., whose home office was located in Salt Lake City. After a hearing, the Comptroller ordered the certificate issued. The respondent subsequently filed this suit seeking a declaratory judgment and injunctive relief against the Comptroller and First National claiming the action of the Comptroller to be void since the proposed branch was not taking over an established bank in Logan, as required by Utah law. The District Court dismissed the complaint. It found "express authority" under Utah law for state banks to establish branch offices in Logan, relying on the general authority of the statute and holding that the subsequent conditions, such as the acquisition of another bank, did not "change the `express authority' into a lack of authority on the part of State banks or a lack of a statutory expression of such authority, and [did] not add to the Federal statute a requirement that compliance be made by National banks with all State conditions." 234 F. Supp. 74, 78, n. 8. The Court of Appeals reversed, holding that the Congress in enacting 36 (c) (1) acceded to state law and created "a competitive equality between state and national banks." Finding that the trial court's interpretation was to the contrary, it declared "the proper approach is for the Comptroller to look at all the State law on branch banking not just part of it." 352 F.2d 90, 94. In Nos. 73 and 88, the First Security Bank of Utah, a national bank, applied for a certificate from the Comptroller to establish a branch bank in Ogden, where it maintained its principal banking house. Its proposal was to open a new branch and not to take over an existing bank in Ogden. Under Utah law, Ogden is also a second class city and the "take over" provision of 7-3-6, supra, was therefore applicable. Two other banks have their main offices in Ogden. After the Comptroller approved the issuance of the certificate, respondent filed suit in the District Court of the United States for the District of Columbia asking for injunctive and other relief. The District Court imposed all of the restrictions of 7-3-6 of Utah law on the establishment of national banks and the Court of Appeals for the District of Columbia Circuit affirmed, by a judgment without opinion, but cited the opinion of the 10th Circuit, Walker Bank & Trust Co., supra.2. The National Bank Act: Its Background.There has long been opposition to the exercise of federal power in the banking field. Indeed, President Jefferson was opposed to the creation of the first Bank of the United States and President Jackson vetoed the Act of Congress extending the charter of the second Bank of the United States. However, the authority of Congress to act in the field was resolved in the landmark case of McCulloch v. Maryland, 4 Wheat. 316 (1819). There Chief Justice Marshall, while admitting that it does not appear that a bank was in the contemplation of the Framers of the Constitution, held that a national bank could be chartered under the implied powers of the Congress as an instrumentality of the Federal Government to implement its fiscal powers. The paramount power of the Congress over national banks has, therefore, been settled for almost a century and a half. Nevertheless, no national banking act was adopted until 1863 (12 Stat. 665), and it was not until 1927 that Congress dealt with the problem before us in these cases. This inaction was possibly due to the fact that at the turn of the century, there were very few branch banks in the country. At that time only five national and 82 state banks were operating branches with a total of 119 branches. By the end of 1923, however, there were 91 national and 580 state banks with a total of 2,054 branches.3 The Comptroller of the Currency, in his Annual Report of 1923, recommended congressional action on branch banking. The report stated that if state banks continue to engage "in unlimited branch banking it will mean the eventual destruction of the national banking system ... ." H. R. Doc. No. 90, 68th Cong., 1st Sess., 6 (1924). Soon thereafter legislation was introduced to equalize national and state branch banking. The House Report on the measure, H. R. Rep. No. 83, 69th Cong., 1st Sess., 7 (1926), stated among other things: "The bill recognizes the absolute necessity of taking legislative action with reference to the branch banking controversy. The present situation is intolerable to the national banking system. The bill proposes the only practicable solution by stopping the further extension of state-wide branch banking in the Federal reserve system by State member banks and by permitting national banks to have branches in those cities where State banks are allowed to have them under State laws." This bill failed to pass in the Senate and, although Congress continued to study the problem, it was not until 1927 that the McFadden Act was adopted. The bill originated in the House and, in substance, proposed that both national and state banks be permitted to establish "inside" branches within the municipality of their main banking facilities in those States that permitted branch banking at the time of the enactment of the bill. H. R. Rep. No. 83, 69th Cong., 1st Sess., 4-5 (1926). The intent of the Congress to leave the question of the desirability of branch banking up to the States is indicated by the fact that the Senate struck from the House bill the time limitation, thus permitting a subsequent change in state law to have a corresponding effect on the authority of national banks to engage in branching. The Senate Report concluded that the Act should permit "national banks to have branches in those cities where State banks are allowed to have them under State laws." S. Rep. No. 473, 69th Cong., 1st Sess., 14 (1926). In the subsequent Conference Committee, the Senate position was adopted. State banks which were members of the Federal Reserve System were also limited to "inside" branches. A grandfather clause permitted retention of branches operated at the date of enactment. H. R. Rep. No. 1481, 69th Cong., 1st Sess., 6 (1926). The Act was finally passed on February 25, 1927, and became known as the McFadden Act of 1927, taking its name from its sponsor, Representative McFadden. At the time of its enactment he characterized it in this language: "As a result of the passage of this act, the national bank act has been so amended that national banks are able to meet the needs of modern industry and commerce and competitive equality has been established among all member banks of the Federal reserve system." (Emphasis added.) 68 Cong. Rec. 5815 (1927). During the economic depression there was much agitation that bank failures were due to small undercapitalized rural banks and that these banks should be supplanted by branches of larger and stronger banks. The Comptroller of the Currency advocated that national banks be permitted to branch regardless of state law. Hearings before a Subcommittee of the Senate Committee on Banking and Currency pursuant to S. Res. No. 71, 71st Cong., 3d Sess., 7-10 (1931). Senator Carter Glass held a similar belief and introduced a bill that would authorize national banks to organize branches irrespective of state law beyond and "outside" the municipality of its principal banking house. His proposal was strenuously opposed and was eventually defeated. It was not until the Seventy-third Congress that the Banking Act of 1933 was adopted. Senator Glass, the ranking member of the Senate Committee on Banking and Currency and the dominant banking figure in the Congress, was sponsor of the Act. In reporting it to the Senate for passage, he said, the Act "required that the establishment of branch banks by national banks in States which by law permit branch banking should be under the regulations required by State law of State banks." 77 Cong. Rec. 3726 (1933). In a colloquy on the floor of the Senate with Senator Copeland as to the purpose of the Act (with reference to branch banking by national banks), Senator Glass said that it would be permissible "in only those States the laws of which permit branch banking, and only to the extent that the State laws permit branch banking." Moreover, to make it crystal clear, when Senator Copeland replied that "it permits branch banking only in those States where the State laws permit branch banking by State banks," Senator Glass was careful to repeat: "Only in those States and to the extent that the State laws permit branch banking." (Emphasis added.) 76 Cong. Rec. 2511 (1933). Remarks of other members of Congress also indicate that they shared the understanding of Senator Glass. For example, Senator Vandenberg stated that 36 (c) (1) provides "that the branch-banking privilege so far as national banks are concerned shall follow the status established by State law in respect to the State privilege." 76 Cong. Rec. 2262 (1933). Likewise, Senator Long, who had joined a filibuster against an earlier version of the bill, stated at final passage that "[w]e have only undertaken to secure equal treatment for State banks" and that the bill had substantially achieved that result. 77 Cong. Rec. 5862 (1933). In similar tone, Representative Bacon stated that branches of national banks may be established provided "this is permitted by the laws of that State and subject to them." (Emphasis added.) 77 Cong. Rec. 3949 (1933). And Representative Luce, a member of the Conference Committee, reported to the House:"In the controversy over the respective merits of what are known as `unit banking' and `branch banking systems,' a controversy that has been alive and sharp for years, branch banking has been steadily gaining in favor. It is not, however, here proposed to give the advocates of branch banking any advantage. We do not go an inch beyond saying that the two ideas shall compete on equal terms and only where the States make the competition possible by letting their own institutions have branches." 77 Cong. Rec. 5896 (1933). As finally passed, the Act permitted national banks to establish outside branches if such branches could be establish by state banks under state law. It is well to note that the same Act also removed the restriction on outside branch banking by state member banks previously imposed by the McFadden Act. 3. The Policy of Competitive Equality.It appears clear from this resume of the legislative history of 36 (c) (1) and (2) that Congress intended to place national and state banks on a basis of "competitive equality" insofar as branch banking was concerned. Both sponsors of the applicable banking Acts, Representative McFadden and Senator Glass, so characterized the legislation. It is not for us to so construe the Acts as to frustrate this clear-cut purpose so forcefully expressed by both friend and foe of the legislation at the time of its adoption. To us it appears beyond question that the Congress was continuing its policy of equalization first adopted in the National Bank Act of 1864. See Lewis v. Fidelity & Deposit Co., ; McClellan v. Chipman, ; Chase Securities Corp. v. Husband, ; Anderson Nat. Bank v. Luckett, .The Comptroller argues that Utah's statute "expressly authorizes" state banks to have branches in their home municipalities. He maintains that the restriction, in the subsequent paragraph of the statute limiting branching solely to the taking over of an existing bank, is not applicable to national banks. It is a strange argument that permits one to pick and choose what portion of the law binds him. Indeed, it would fly in the face of the legislative history not to hold that national branch banking is limited to those States the laws of which permit it, and even there "only to the extent that the State laws permit branch banking." Utah clearly permits it "only to the extent" that the proposed branch takes over an existing bank.The Comptroller also contends that the Act supersedes state law only as to "whether" and "where" branches may be located and not the "method" by which this is effected. We believe that where a State allows branching only by taking over an existing bank, it expresses as much "whether" and "where" a branch may be located as does a prohibition or a limitation to the home office municipality. As to the restriction being a "method," we have concluded that since it is part and parcel of Utah's policy, it was absorbed by the provisions of 36 (c) (1) and (2), regardless of the tag placed upon it. Affirmed.

[Footnote *] Together with No. 349, Charlotte-Mecklenburg Board of Education et al. v. Swann et al., also on certiorari to the same court. The Charlotte-Mecklenburg school system, which includes the city of Charlotte, North Carolina, had more than 84,000 students in 107 schools in the 1968-1969 school year. Approximately 29% (24,000) of the pupils were Negro, about 14,000 of whom attended 21 schools that were at least 99% Negro. This resulted from a desegregation plan approved by the District Court in 1965, at the commencement of this litigation. In 1968 petitioner Swann moved for further relief based on Green v. County School Board, , which required school boards to "come forward with a plan that promises realistically to work ... now ... until it is clear that state-imposed segregation has been completely removed." The District Court ordered the school board in April 1969 to provide a plan for faculty and student desegregation. Finding the board's submission unsatisfactory, the District Court appointed an expert to submit a desegregation plan. In February 1970, the expert and the board presented plans, and the court adopted the board's plan, as modified, for the junior and senior high schools, and the expert's proposed plan for the elementary schools. The Court of Appeals affirmed the District Court's order as to faculty desegregation and the secondary school plans, but vacated the order respecting elementary schools, fearing that the provisions for pairing and grouping of elementary schools would unreasonably burden the pupils and the board. The case was remanded to the District Court for reconsideration and submission of further plans. This Court granted certiorari and directed reinstatement of the District Court's order pending further proceedings in that court. On remand the District Court received two new plans, and ordered the board to adopt a plan, or the expert's plan would remain in effect. After the board "acquiesced" in the expert's plan, the District Court directed that it remain in effect. Held: 1. Today's objective is to eliminate from the public schools all vestiges of state-imposed segregation that was held violative of equal protection guarantees by Brown v. Board of Education, , in 1954. P. 15. 2. In default by the school authorities of their affirmative obligation to proffer acceptable remedies, the district courts have broad power to fashion remedies that will assure unitary school systems. P. 16. 3. Title IV of the Civil Rights Act of 1964 does not restrict or withdraw from the federal courts their historic equitable remedial powers. The proviso in 42 U.S.C. 2000c-6 was designed simply to foreclose any interpretation of the Act as expanding the existing powers of the federal courts to enforce the Equal Protection Clause. Pp. 16-18. 4. Policy and practice with regard to faculty, staff, transportation, extracurricular activities, and facilities are among the most important indicia of a segregated system, and the first remedial responsibility of school authorities is to eliminate invidious racial distinctions in those respects. Normal administrative practice should then produce schools of like quality, facilities, and staffs. Pp. 18-19. 5. The Constitution does not prohibit district courts from using their equity power to order assignment of teachers to achieve a particular degree of faculty desegregation. United States v. Montgomery County Board of Education, , was properly followed by the lower courts in this case. Pp. 19-20. 6. In devising remedies to eliminate legally imposed segregation, local authorities and district courts must see to it that future school construction and abandonment are not used and do not serve to perpetuate or re-establish a dual system. Pp. 20-21. 7. Four problem areas exist on the issue of student assignment: (1) Racial quotas. The constitutional command to desegregate schools does not mean that every school in the community must always reflect the racial composition of the system as a whole; here the District Court's very limited use of the racial ratio - not as an inflexible requirement, but as a starting point in shaping a remedy - was within its equitable discretion. Pp. 22-25. (2) One-race schools. While the existence of a small number of one-race, or virtually one-race, schools does not in itself denote a system that still practices segregation by law, the court should scrutinize such schools and require the school authorities to satisfy the court that the racial composition does not result from present or past discriminatory action on their part. Pp. 25-26. An optional majority-to-minority transfer provision has long been recognized as a useful part of a desegregation plan, and to be effective such arrangement must provide the transferring student free transportation and available space in the school to which he desires to move. Pp. 26-27. (3) Attendance zones. The remedial altering of attendance zones is not, as an interim corrective measure, beyond the remedial powers of a district court. A student assignment plan is not acceptable merely because it appears to be neutral, for such a plan may fail to counteract the continuing effects of past school segregation. The pairing and grouping of noncontiguous zones is a permissible tool; judicial steps going beyond contiguous zones should be examined in light of the objectives to be sought. No rigid rules can be laid down to govern conditions in different localities. Pp. 27-29. (4) Transportation. The District Court's conclusion that assignment of children to the school nearest their home serving their grade would not effectively dismantle the dual school system is supported by the record, and the remedial technique of requiring bus transportation as a tool of school desegregation was within that court's power to provide equitable relief. An objection to transportation of students may have validity when the time or distance of travel is so great as to risk either the health of the children or significantly impinge on the educational process; limits on travel time will vary with many factors, but probably with none more than the age of the students. Pp. 29-31. 8. Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once a unitary system has been achieved. Pp. 31-32. 431 F.2d 138, affirmed as to those parts in which it affirmed the District Court's judgment. The District Court's order of August 7, 1970, is also affirmed.BURGER, C. J., delivered the opinion for a unanimous Court.Julius LeVonne Chambers and James M. Nabrit III argued the cause for petitioners in No. 281 and respondents in No. 349. With them on the briefs were Jack Greenberg, Norman J. Chachkin, C. O. Pearson, and Anthony G. Amsterdam.William J. Wagonner and Benjamin S. Horack argued the cause and filed briefs for respondents in No. 281 and petitioners in No. 349.Solicitor General Griswold argued the cause for the United States as amicus curiae in both cases. With him on the brief was Assistant Attorney General Leonard.Briefs of amici curiae in No. 281 were filed by Earl Faircloth, Attorney General, Robert J. Kelly, Deputy Attorney General, Ronald W. Sabo, Assistant Attorney General, and Rivers Buford for the State of Florida; by Andrew P. Miller, Attorney General, William G. Broaddus and Theodore J. Markow, Assistant Attorneys General, Lewis F. Powell, Jr., John W. Riely, and Guy K. Tower for the Commonwealth of Virginia; by Claude R. Kirk, Jr., pro se, and Gerald Mager for Claude R. Kirk, Jr., Governor of Florida; by W. F. Womble for the Winston-Salem/Forsyth County Board of Education; by Raymond B. Witt, Jr., and Eugene N. Collins for the Chattanooga Board of Education; by Kenneth W. Cleary for the School Board of Manatee County, Florida; by W. Crosby Few and John M. Allison for the School Board of Hillsborough County, Florida; by Sam J. Ervin, Jr., Charles R. Jonas, and Ernest F. Hollings for the Classroom Teachers Association of the Charlotte-Mecklenburg School System, Inc.; by Mark Wells White, Jr., for Mrs. H. W. Cullen et al., members of the Board of Education of the Houston Independent School District; by Jack Petree for the Board of Education of Memphis City Schools; by Sherwood W. Wise for the Jackson Chamber of Commerce, Inc., et al.; by Stephen J. Pollak, Benjamin W. Boley, and David Rubin for the National Education Association; by William L. Taylor, Richard B. Sobol, and Joseph L. Rauh, Jr., for the United Negro College Fund, Inc., et al.; by Owen H. Page for Concerned Citizens Association, Inc.; by Charles S. Conley, Floyd B. McKissick, and Charles S. Scott for the Congress of Racial Equality; by the Tennessee Federation for Constitutional Government et al.; by William C. Cramer, pro se, and Richard B. Peet, joined by Albert W. Watson et al., for William C. Cramer; by Charles E. Bennett, pro se, James C. Rinaman, Jr., and Yardley D. Buckman for Charles E. Bennett; by Calvin H. Childress and M. T. Bohannon, Jr., for David E. Allgood et al.; by William B. Spong, Jr., and by Newton Collier Estes.MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari in this case to review important issues as to the duties of school authorities and the scope of powers of federal courts under this Court's mandates to eliminate racially separate public schools established and maintained by state action. Brown v. Board of Education, (Brown I).This case and those argued with it1 arose in States having a long history of maintaining two sets of schools in a single school system deliberately operated to carry out a governmental policy to separate pupils in schools solely on the basis of race. That was what Brown v. Board of Education was all about. These cases present us with the problem of defining in more precise terms than heretofore the scope of the duty of school authorities and district courts in implementing Brown I and the mandate to eliminate dual systems and establish unitary systems at once. Meanwhile district courts and courts of appeals have struggled in hundreds of cases with a multitude and variety of problems under this Court's general directive. Understandably, in an area of evolving remedies, those courts had to improvise and experiment without detailed or specific guidelines. This Court, in Brown I, appropriately dealt with the large constitutional principles; other federal courts had to grapple with the flinty, intractable realities of day-to-day implementation of those constitutional commands. Their efforts, of necessity, embraced a process of "trial and error," and our effort to formulate guidelines must take into account their experience.IThe Charlotte-Mecklenburg school system, the 43d largest in the Nation, encompasses the city of Charlotte and surrounding Mecklenburg County, North Carolina. The area is large - 550 square miles - spanning roughly 22 miles east-west and 36 miles north-south. During the 1968-1969 school year the system served more than 84,000 pupils in 107 schools. Approximately 71% of the pupils were found to be white and 29% Negro. As of June 1969 there were approximately 24,000 Negro students in the system, of whom 21,000 attended schools within the city of Charlotte. Two-thirds of those 21,000 - approximately 14,000 Negro students - attended 21 schools which were either totally Negro or more than 99% Negro.This situation came about under a desegregation plan approved by the District Court at the commencement of the present litigation in 1965, 243 F. Supp. 667 (WDNC), aff'd, 369 F.2d 29 (CA4 1966), based upon geographic zoning with a free-transfer provision. The present proceedings were initiated in September 1968 by petitioner Swann's motion for further relief based on Green v. County School Board, , and its companion cases.2 All parties now agree that in 1969 the system fell short of achieving the unitary school system that those cases require.The District Court held numerous hearings and received voluminous evidence. In addition to finding certain actions of the school board to be discriminatory, the court also found that residential patterns in the city and county resulted in part from federal, state, and local government action other than school board decisions. School board action based on these patterns, for example, by locating schools in Negro residential areas and fixing the size of the schools to accommodate the needs of immediate neighborhoods, resulted in segregated education. These findings were subsequently accepted by the Court of Appeals.In April 1969 the District Court ordered the school board to come forward with a plan for both faculty and student desegregation. Proposed plans were accepted by the court in June and August 1969 on an interim basis only, and the board was ordered to file a third plan by November 1969. In November the board moved for an extension of time until February 1970, but when that was denied the board submitted a partially completed plan. In December 1969 the District Court held that the board's submission was unacceptable and appointed an expert in education administration, Dr. John Finger, to prepare a desegregation plan. Thereafter in February 1970, the District Court was presented with two alternative pupil assignment plans - the finalized "board plan" and the "Finger plan."The Board Plan. As finally submitted, the school board plan closed seven schools and reassigned their pupils. It restructured school attendance zones to achieve greater racial balance but maintained existing grade structures and rejected techniques such as pairing and clustering as part of a desegregation effort. The plan created a single athletic league, eliminated the previously racial basis of the school bus system, provided racially mixed faculties and administrative staffs, and modified its free-transfer plan into an optional majority-to-minority transfer system.The board plan proposed substantial assignment of Negroes to nine of the system's 10 high schools, producing 17% to 36% Negro population in each. The projected Negro attendance at the 10th school, Independence, was 2%. The proposed attendance zones for the high schools were typically shaped like wedges of a pie, extending outward from the center of the city to the suburban and rural areas of the county in order to afford residents of the center city area access to outlying schools.As for junior high schools, the board plan rezoned the 21 school areas so that in 20 the Negro attendance would range from 0% to 38%. The other school, located in the heart of the Negro residential area, was left with an enrollment of 90% Negro. The board plan with respect to elementary schools relied entirely upon gerrymandering of geographic zones. More than half of the Negro elementary pupils were left in nine schools that were 86% to 100% Negro; approximately half of the white elementary pupils were assigned to schools 86% to 100% white.The Finger Plan. The plan submitted by the court-appointed expert, Dr. Finger, adopted the school board zoning plan for senior high schools with one modification: it required that an additional 300 Negro students be transported from the Negro residential area of the city to the nearly all-white Independence High School.The Finger plan for the junior high schools employed much of the rezoning plan of the board, combined with the creation of nine "satellite" zones.3 Under the satellite plan, inner-city Negro students were assigned by attendance zones to nine outlying predominately white junior high schools, thereby substantially desegregating every junior high school in the system.The Finger plan departed from the board plan chiefly in its handling of the system's 76 elementary schools. Rather than relying solely upon geographic zoning, Dr. Finger proposed use of zoning, pairing, and grouping techniques, with the result that student bodies throughout the system would range from 9% to 38% Negro.4 The District Court described the plan thus:"Like the board plan, the Finger plan does as much by rezoning school attendance lines as can reasonably be accomplished. However, unlike the board plan, it does not stop there. It goes further and desegregates all the rest of the elementary schools by the technique of grouping two or three outlying schools with one black inner city school; by transporting black students from grades one through four to the outlying white schools; and by transporting white students from the fifth and sixth grades from the outlying white schools to the inner city black school." Under the Finger plan, nine inner-city Negro schools were grouped in this manner with 24 suburban white schools.On February 5, 1970, the District Court adopted the board plan, as modified by Dr. Finger, for the junior and senior high schools. The court rejected the board elementary school plan and adopted the Finger plan as presented. Implementation was partially stayed by the Court of Appeals for the Fourth Circuit on March 5, and this Court declined to disturb the Fourth Circuit's order, .On appeal the Court of Appeals affirmed the District Court's order as to faculty desegregation and the secondary school plans, but vacated the order respecting elementary schools. While agreeing that the District Court properly disapproved the board plan concerning these schools, the Court of Appeals feared that the pairing and grouping of elementary schools would place an unreasonable burden on the board and the system's pupils. The case was remanded to the District Court for reconsideration and submission of further plans. 431 F.2d 138. This Court granted certiorari, , and directed reinstatement of the District Court's order pending further proceedings in that court.On remand the District Court received two new plans for the elementary schools: a plan prepared by the United States Department of Health, Education, and Welfare (the HEW plan) based on contiguous grouping and zoning of schools, and a plan prepared by four members of the nine-member school board (the minority plan) achieving substantially the same results as the Finger plan but apparently with slightly less transportation. A majority of the school board declined to amend its proposal. After a lengthy evidentiary hearing the District Court concluded that its own plan (the Finger plan), the minority plan, and an earlier draft of the Finger plan were all reasonable and acceptable. It directed the board to adopt one of the three or in the alternative to come forward with a new, equally effective plan of its own; the court ordered that the Finger plan would remain in effect in the event the school board declined to adopt a new plan. On August 7, the board indicated it would "acquiesce" in the Finger plan, reiterating its view that the plan was unreasonable. The District Court, by order dated August 7, 1970, directed that the Finger plan remain in effect.IINearly 17 years ago this Court held, in explicit terms, that state-imposed segregation by race in public schools denies equal protection of the laws. At no time has the Court deviated in the slightest degree from that holding or its constitutional underpinnings. None of the parties before us challenges the Court's decision of May 17, 1954, that"in the field of public education the doctrine of `separate but equal' has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated ... are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment... . "Because these are class actions, because of the wide applicability of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity." Brown v. Board of Education, supra, at 495. None of the parties before us questions the Court's 1955 holding in Brown II, that"School authorities have the primary responsibility for elucidating, assessing, and solving these problems; courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles. Because of their proximity to local conditions and the possible need for further hearings, the courts which originally heard these cases can best perform this judicial appraisal. Accordingly, we believe it appropriate to remand the cases to those courts. "In fashioning and effectuating the decrees, the courts will be guided by equitable principles. Traditionally, equity has been characterized by a practical flexibility in shaping its remedies and by a facility for adjusting and reconciling public and private needs. These cases call for the exercise of these traditional attributes of equity power. At stake is the personal interest of the plaintiffs in admission to public schools as soon as practicable on a nondiscriminatory basis. To effectuate this interest may call for elimination of a variety of obstacles in making the transition to school systems operated in accordance with the constitutional principles set forth in our May 17, 1954, decision. Courts of equity may properly take into account the public interest in the elimination of such obstacles in a systematic and effective manner. But it should go without saying that the vitality of these constitutional principles cannot be allowed to yield simply because of disagreement with them." Brown v. Board of Education, . Over the 16 years since Brown II, many difficulties were encountered in implementation of the basic constitutional requirement that the State not discriminate between public school children on the basis of their race. Nothing in our national experience prior to 1955 prepared anyone for dealing with changes and adjustments of the magnitude and complexity encountered since then. Deliberate resistance of some to the Court's mandates has impeded the good-faith efforts of others to bring school systems into compliance. The detail and nature of these dilatory tactics have been noted frequently by this Court and other courts.By the time the Court considered Green v. County School Board, , in 1968, very little progress had been made in many areas where dual school systems had historically been maintained by operation of state laws. In Green, the Court was confronted with a record of a freedom-of-choice program that the District Court had found to operate in fact to preserve a dual system more than a decade after Brown II. While acknowledging that a freedom-of-choice concept could be a valid remedial measure in some circumstances, its failure to be effective in Green required that: "The burden on a school board today is to come forward with a plan that promises realistically to work ... now ... until it is clear that state-imposed segregation has been completely removed." Green, supra, at 439. This was plain language, yet the 1969 Term of Court brought fresh evidence of the dilatory tactics of many school authorities. Alexander v. Holmes County Board of Education, , restated the basic obligation asserted in Griffin v. School Board, , and Green, supra, that the remedy must be implemented forthwith.The problems encountered by the district courts and courts of appeals make plain that we should now try to amplify guidelines, however incomplete and imperfect, for the assistance of school authorities and courts.5 The failure of local authorities to meet their constitutional obligations aggravated the massive problem of converting from the state-enforced discrimination of racially separate school systems. This process has been rendered more difficult by changes since 1954 in the structure and patterns of communities, the growth of student population,6 movement of families, and other changes, some of which had marked impact on school planning, sometimes neutralizing or negating remedial action before it was fully implemented. Rural areas accustomed for half a century to the consolidated school systems implemented by bus transportation could make adjustments more readily than metropolitan areas with dense and shifting population, numerous schools, congested and complex traffic patterns. IIIThe objective today remains to eliminate from the public schools all vestiges of state-imposed segregation. Segregation was the evil struck down by Brown I as contrary to the equal protection guarantees of the Constitution. That was the violation sought to be corrected by the remedial measures of Brown II. That was the basis for the holding in Green that school authorities are "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." 391 U.S., at 437-438.If school authorities fail in their affirmative obligations under these holdings, judicial authority may be invoked. Once a right and a violation have been shown, the scope of a district court's equitable powers to remedy past wrongs is broad, for breadth and flexibility are inherent in equitable remedies."The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims." Hecht Co. v. Bowles, , cited in Brown II, supra, at 300. This allocation of responsibility once made, the Court attempted from time to time to provide some guidelines for the exercise of the district judge's discretion and for the reviewing function of the courts of appeals. However, a school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right. The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution.In seeking to define even in broad and general terms how far this remedial power extends it is important to remember that judicial powers may be exercised only on the basis of a constitutional violation. Remedial judicial authority does not put judges automatically in the shoes of school authorities whose powers are plenary. Judicial authority enters only when local authority defaults.School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court. As with any equity case, the nature of the violation determines the scope of the remedy. 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.The school authorities argue that the equity powers of federal district courts have been limited by Title IV of the Civil Rights Act of 1964, 42 U.S.C. 2000c. The language and the history of Title IV show that it was enacted not to limit but to define the role of the Federal Government in the implementation of the Brown I decision. It authorizes the Commissioner of Education to provide technical assistance to local boards in the preparation of desegregation plans, to arrange "training institutes" for school personnel involved in desegregation efforts, and to make grants directly to schools to ease the transition to unitary systems. It also authorizes the Attorney General, in specified circumstances, to initiate federal desegregation suits. Section 2000c (b) defines "desegregation" as it is used in Title IV:" `Desegregation' means the assignment of students to public schools and within such schools without regard to their race, color, religion, or national origin, but `desegregation' shall not mean the assignment of students to public schools in order to overcome racial imbalance." Section 2000c-6, authorizing the Attorney General to institute federal suits, contains the following proviso:"nothing herein shall empower any official or court of the United States to issue any order seeking to achieve a racial balance in any school by requiring the transportation of pupils or students from one school to another or one school district to another in order to achieve such racial balance, or otherwise enlarge the existing power of the court to insure compliance with constitutional standards." On their face, the sections quoted purport only to insure that the provisions of Title IV of the Civil Rights Act of 1964 will not be read as granting new powers. The proviso in 2000c-6 is in terms designed to foreclose any interpretation of the Act as expanding the existing powers of federal courts to enforce the Equal Protection Clause. There is no suggestion of an intention to restrict those powers or withdraw from courts their historic equitable remedial powers. The legislative history of Title IV indicates that Congress was concerned that the Act might be read as creating a right of action under the Fourteenth Amendment in the situation of so-called "de facto segregation," where racial imbalance exists in the schools but with no showing that this was brought about by discriminatory action of state authorities. In short, there is nothing in the Act that provides us material assistance in answering the question of remedy for state-imposed segregation in violation of Brown I. The basis of our decision must be the prohibition of the Fourteenth Amendment that no State shall "deny to any person within its jurisdiction the equal protection of the laws."IVWe turn now to the problem of defining with more particularity the responsibilities of school authorities in desegregating a state-enforced dual school system in light of the Equal Protection Clause. Although the several related cases before us are primarily concerned with problems of student assignment, it may be helpful to begin with a brief discussion of other aspects of the process.In Green, we pointed out that existing policy and practice with regard to faculty, staff, transportation, extra-curricular activities, and facilities were among the most important indicia of a segregated system. 391 U.S., at 435. Independent of student assignment, where 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.When a system has been dual in these respects, the first remedial responsibility of school authorities is to eliminate invidious racial distinctions. With respect to such matters as transportation, supporting personnel, and extracurricular activities, no more than this may be necessary. Similar corrective action must be taken with regard to the maintenance of buildings and the distribution of equipment. In these areas, normal administrative practice should produce schools of like quality, facilities, and staffs. Something more must be said, however, as to faculty assignment and new school construction.In the companion Davis case, post, p. 33, the Mobile school board has argued that the Constitution requires that teachers be assigned on a "color blind" basis. It also argues that the Constitution prohibits district courts from using their equity power to order assignment of teachers to achieve a particular degree of faculty desegregation. We reject that contention.In United States v. Montgomery County Board of Education, , the District Court set as a goal a plan of faculty assignment in each school with a ratio of white to Negro faculty members substantially the same throughout the system. This order was predicated on the District Court finding that: "The evidence does not reflect any real administrative problems involved in immediately desegregating the substitute teachers, the student teachers, the night school faculties, and in the evolvement of a really legally adequate program for the substantial desegregation of the faculties of all schools in the system commencing with the school year 1968-69." Quoted at 395 U.S., at 232. The District Court in Montgomery then proceeded to set an initial ratio for the whole system of at least two Negro teachers out of each 12 in any given school. The Court of Appeals modified the order by eliminating what it regarded as "fixed mathematical" ratios of faculty and substituted an initial requirement of "substantially or approximately" a five-to-one ratio. With respect to the future, the Court of Appeals held that the numerical ratio should be eliminated and that compliance should not be tested solely by the achievement of specified proportions. Id., at 234. We reversed the Court of Appeals and restored the District Court's order in its entirety, holding that the order of the District Judge"was adopted in the spirit of this Court's opinion in Green ... in that his plan `promises realistically to work, and promises realistically to work now.' The modifications ordered by the panel of the Court of Appeals, while of course not intended to do so, would, we think, take from the order some of its capacity to expedite, by means of specific commands, the day when a completely unified, unitary, nondiscriminatory school system becomes a reality instead of a hope... . We also believe that under all the circumstances of this case we follow the original plan outlined in Brown II ... by accepting the more specific and expeditious order of [District] Judge Johnson ... ." 395 U.S., at 235-236 (emphasis in original). The principles of Montgomery have been properly followed by the District Court and the Court of Appeals in this case.The construction of new schools and the closing of old ones are two of the most important functions of local school authorities and also two of the most complex. They must decide questions of location and capacity in light of population growth, finances, land values, site availability, through an almost endless list of factors to be considered. The result of this will be a decision which, when combined with one technique or another of student assignment, will determine the racial composition of the student body in each school in the system. Over the long run, the consequences of the choices will be far reaching. People gravitate toward school facilities, just as schools are located in response to the needs of people. The location of schools may thus influence the patterns of residential development of a metropolitan area and have important impact on composition of inner-city neighborhoods.In the past, choices in this respect have been used as a potent weapon for creating or maintaining a state-segregated school system. In addition to the classic pattern of building schools specifically intended for Negro or white students, school authorities have sometimes, since Brown, closed schools which appeared likely to become racially mixed through changes in neighborhood residential patterns. This was sometimes accompanied by building new schools in the areas of white suburban expansion farthest from Negro population centers in order to maintain the separation of the races with a minimum departure from the formal principles of "neighborhood zoning." Such a policy does more than simply influence the short-run composition of the student body of a new school. It may well promote segregated residential patterns which, when combined with "neighborhood zoning," further lock the school system into the mold of separation of the races. Upon a proper showing a district court may consider this in fashioning a remedy.In ascertaining the existence of legally imposed school segregation, the existence of a pattern of school construction and abandonment is thus a factor of great weight. In devising remedies where legally imposed segregation has been established, it is the responsibility of local authorities and district courts to see to it that future school construction and abandonment are not used and do not serve to perpetuate or re-establish the dual system. When necessary, district courts should retain jurisdiction to assure that these responsibilities are carried out. Cf. United States v. Board of Public Instruction, 395 F.2d 66 (CA5 1968); Brewer v. School Board, 397 F.2d 37 (CA4 1968). VThe central issue in this case is that of student assignment, and there are essentially four problem areas:(1) to what extent racial balance or racial quotas may be used as an implement in a remedial order to correct a previously segregated system;(2) whether every all-Negro and all-white school must be eliminated as an indispensable part of a remedial process of desegregation;(3) what the limits are, if any, on the rearrangement of school districts and attendance zones, as a remedial measure; and(4) what the limits are, if any, on the use of transportation facilities to correct state-enforced racial school segregation.(1) Racial Balances or Racial Quotas.The constant theme and thrust of every holding from Brown I to date is that state-enforced separation of races in public schools is discrimination that violates the Equal Protection Clause. The remedy commanded was to dismantle dual school systems.We are concerned in these cases with the elimination of the discrimination inherent in the dual school systems, not with myriad factors of human existence which can cause discrimination in a multitude of ways on racial, religious, or ethnic grounds. The target of the cases from Brown I to the present was the dual school system. The elimination of racial discrimination in public schools is a large task and one that should not be retarded by efforts to achieve broader purposes lying beyond the jurisdiction of school authorities. One vehicle can carry only a limited amount of baggage. It would not serve the important objective of Brown I to seek to use school desegregation cases for purposes beyond their scope, although desegregation of schools ultimately will have impact on other forms of discrimination. We do not reach in this case the question whether a showing that school segregation is a consequence of other types of state action, without any discriminatory action by the school authorities, is a constitutional violation requiring remedial action by a school desegregation decree. This case does not present that question and we therefore do not decide it.Our objective in dealing with the issues presented by these cases is to see that school authorities exclude no pupil of a racial minority from any school, directly or indirectly, on account of race; it does not and cannot embrace all the problems of racial prejudice, even when those problems contribute to disproportionate racial concentrations in some schools.In this case it is urged that the District Court has imposed a racial balance requirement of 71%-29% on individual schools. The fact that no such objective was actually achieved - and would appear to be impossible - tends to blunt that claim, yet in the opinion and order of the District Court of December 1, 1969, we find that court directing"that efforts should be made to reach a 71-29 ratio in the various schools so that there will be no basis for contending that one school is racially different from the others ..., [t]hat no school [should] be operated with an all-black or predominantly black student body, [and] [t]hat pupils of all grades [should] be assigned in such a way that as nearly as practicable the various schools at various grade levels have about the same proportion of black and white students." The District Judge went on to acknowledge that variation "from that norm may be unavoidable." This contains intimations that the "norm" is a fixed mathematical racial balance reflecting the pupil constituency of the system. If we were to read the holding of the District Court to require, as a matter of substantive constitutional right, any particular degree of racial balance or mixing, that approach would be disapproved and we would be obliged to reverse. The constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole.As the voluminous record in this case shows,7 the predicate for the District Court's use of the 71%-29% ratio was twofold: first, its express finding, approved by the Court of Appeals and not challenged here, that a dual school system had been maintained by the school authorities at least until 1969; second, its finding, also approved by the Court of Appeals, that the school board had totally defaulted in its acknowledged duty to come forward with an acceptable plan of its own, notwithstanding the patient efforts of the District Judge who, on at least three occasions, urged the board to submit plans.8 As the statement of facts shows, these findings are abundantly supported by the record. It was because of this total failure of the school board that the District Court was obliged to turn to other qualified sources, and Dr. Finger was designated to assist the District Court to do what the board should have done.We see therefore that the use made of mathematical ratios was no more than a starting point in the process of shaping a remedy, rather than an inflexible requirement. From that starting point the District Court proceeded to frame a decree that was within its discretionary powers, as an equitable remedy for the particular circumstances.9 As we said in Green, a school authority's remedial plan or a district court's remedial decree is to be judged by its effectiveness. Awareness of the racial composition of the whole school system is likely to be a useful starting point in shaping a remedy to correct past constitutional violations. In sum, the very limited use made of mathematical ratios was within the equitable remedial discretion of the District Court.(2) One-race Schools.The record in this case reveals the familiar phenomenon that in metropolitan areas minority groups are often found concentrated in one part of the city. In some circumstances certain schools may remain all or largely of one race until new schools can be provided or neighborhood patterns change. Schools all or predominately of one race in a district of mixed population will require close scrutiny to determine that school assignments are not part of state-enforced segregation.In light of the above, it should be clear that the existence of some small number of one-race, or virtually one-race, schools within a district is not in and of itself the mark of a system that still practices segregation by law. The district judge or school authorities should make every effort to achieve the greatest possible degree of actual desegregation and will thus necessarily be concerned with the elimination of one-race schools. 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 predominately of one race, they have the burden of showing that such school assignments are genuinely nondiscriminatory. The court should scrutinize such schools, and the burden upon the school authorities will be to satisfy the court that their racial composition is not the result of present or past discriminatory action on their part.An optional majority-to-minority transfer provision has long been recognized as a useful part of every desegregation plan. Provision for optional transfer of those in the majority racial group of a particular school to other schools where they will be in the minority is an indispensable remedy for those students willing to transfer to other schools in order to lessen the impact on them of the state-imposed stigma of segregation. In order to be effective, such a transfer arrangement must grant the transferring student free transportation and space must be made available in the school to which he desires to move. Cf. Ellis v. Board of Public Instruction, 423 F.2d 203, 206 (CA5 1970). The court orders in this and the companion Davis case now provide such an option.(3) Remedial Altering of Attendance Zones.The maps submitted in these cases graphically demonstrate that one of the principal tools employed by school planners and by courts to break up the dual school system has been a frank - and sometimes drastic - gerrymandering of school districts and attendance zones. An additional step was pairing, "clustering," or "grouping" of schools with attendance assignments made deliberately to accomplish the transfer of Negro students out of formerly segregated Negro schools and transfer of white students to formerly all-Negro schools. More often than not, these zones are neither compact10 nor contiguous; indeed they may be on opposite ends of the city. As an interim corrective measure, this cannot be said to be beyond the broad remedial powers of a court. Absent a constitutional violation there would be no basis for judicially ordering assignment of students on a racial basis. All things being equal, with no history of discrimination, it might well be desirable to assign pupils to schools nearest their homes. But all things are not equal in a system that has been deliberately constructed and maintained to enforce racial segregation. The remedy for such segregation may be administratively awkward, inconvenient, and even bizarre in some situations and may impose burdens on some; but all awkwardness and inconvenience cannot be avoided in the interim period when remedial adjustments are being made to eliminate the dual school systems.No fixed or even substantially fixed guidelines can be established as to how far a court can go, but it must be recognized that there are limits. The objective is to dismantle the dual school system. "Racially neutral" assignment plans proposed by school authorities to a district court may be inadequate; such plans may fail to counteract the continuing effects of past school segregation resulting from discriminatory location of school sites or distortion of school size in order to achieve or maintain an artificial racial separation. When school authorities present a district court with a "loaded game board," affirmative action in the form of remedial altering of attendance zones is proper to achieve truly nondiscriminatory assignments. In short, an assignment plan is not acceptable simply because it appears to be neutral.In this area, we must of necessity rely to a large extent, as this Court has for more than 16 years, on the informed judgment of the district courts in the first instance and on courts of appeals.We hold that the pairing and grouping of noncontiguous school zones is a permissible tool and such action is to be considered in light of the objectives sought. Judicial steps in shaping such zones going beyond combinations of contiguous areas should be examined in light of what is said in subdivisions (1), (2), and (3) of this opinion concerning the objectives to be sought. Maps do not tell the whole story since noncontiguous school zones may be more accessible to each other in terms of the critical travel time, because of traffic patterns and good highways, than schools geographically closer together. Conditions in different localities will vary so widely that no rigid rules can be laid down to govern all situations.(4) Transportation of Students.The scope of permissible transportation of students as an implement of a remedial decree has never been defined by this Court and by the very nature of the problem it cannot be defined with precision. No rigid guidelines as to student transportation can be given for application to the infinite variety of problems presented in thousands of situations. Bus transportation has been an integral part of the public education system for years, and was perhaps the single most important factor in the transition from the one-room schoolhouse to the consolidated school. Eighteen million of the Nation's public school children, approximately 39%, were transported to their schools by bus in 1969-1970 in all parts of the country.The importance of bus transportation as a normal and accepted tool of educational policy is readily discernible in this and the companion case, Davis, supra.11 The Charlotte school authorities did not purport to assign students on the basis of geographically drawn zones until 1965 and then they allowed almost unlimited transfer privileges. The District Court's conclusion that assignment of children to the school nearest their home serving their grade would not produce an effective dismantling of the dual system is supported by the record.Thus the remedial techniques used in the District Court's order were within that court's power to provide equitable relief; implementation of the decree is well within the capacity of the school authority.The decree provided that the buses used to implement the plan would operate on direct routes. Students would be picked up at schools near their homes and transported to the schools they were to attend. The trips for elementary school pupils average about seven miles and the District Court found that they would take "not over 35 minutes at the most."12 This system compares favorably with the transportation plan previously operated in Charlotte under which each day 23,600 students on all grade levels were transported an average of 15 miles one way for an average trip requiring over an hour. In these circumstances, we find no basis for holding that the local school authorities may not be required to employ bus transportation as one tool of school desegregation. Desegregation plans cannot be limited to the walk-in school.An objection to transportation of students may have validity when the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process. District courts must weigh the soundness of any transportation plan in light of what is said in subdivisions (1), (2), and (3) above. It hardly needs stating that the limits on time of travel will vary with many factors, but probably with none more than the age of the students. The reconciliation of competing values in a desegregation case is, of course, a difficult task with many sensitive facets but fundamentally no more so than remedial measures courts of equity have traditionally employed.VIThe Court of Appeals, searching for a term to define the equitable remedial power of the district courts, used the term "reasonableness." In Green, supra, this Court used the term "feasible" and by implication, "workable," "effective," and "realistic" in the mandate to develop "a plan that promises realistically to work, and ... to work now." On the facts of this case, we are unable to conclude that the order of the District Court is not reasonable, feasible and workable. However, in seeking to define the scope of remedial power or the limits on remedial power of courts in an area as sensitive as we deal with here, words are poor instruments to convey the sense of basic fairness inherent in equity. Substance, not semantics, must govern, and we have sought to suggest the nature of limitations without frustrating the appropriate scope of equity.At some point, these school authorities and others like them should have achieved full compliance with this Court's decision in Brown I. The systems would then be "unitary" in the sense required by our decisions in Green and Alexander.It does not follow that the communities served by such systems will remain demographically stable, for in a growing, mobile society, few will do so. Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system. This does not mean that federal courts are without power to deal with future problems; but in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary.For the reasons herein set forth, the judgment of the Court of Appeals is affirmed as to those parts in which it affirmed the judgment of the District Court. The order of the District Court, dated August 7, 1970, is also affirmed. It is so ordered.

Charles Campbell was convicted in Washington state court of multiple murders in 1982. After his second federal habeas petition was filed and denied by the District Court in March 1989, the Court of Appeals granted an indefinite stay of execution. The case was argued and submitted to the Court of Appeals in June 1989, but no decision has been announced and the stay remains in effect. In 1990, the State Attorney General twice wrote letters to the court inquiring about the status of the case, but they went unanswered. In February 1991, the court vacated the submission of the case pending the outcome of Campbell's third state action for collateral relief. After that relief was denied, Campbell advised the court that he intended to file a third federal habeas petition. In August 1991, over two years after the case was submitted, the panel directed him to file the third petition and announced its intention to wait for the District Court's ruling on it before taking further action. The State Attorney General filed this mandamus petition.Held: This Court declines to issue mandamus to the Court of Appeals at this time. The grant of a stay of execution directed to a State by a federal court imposes on that court the concomitant duty to take all steps necessary to ensure a prompt resolution of the matter, and the State has sustained severe prejudice by the 2 1/2-year stay of execution. Nonetheless, as a predicate for extraordinary relief, the State should have asked the Court of Appeals to vacate or modify its August 1991 order before coming to this Court. The Court of Appeals should determine how best to expedite the appeal, given the present posture of the case. Denial of the writ is without prejudice to the State's right to again seek mandamus or other extraordinary relief if unnecessary delays or unwarranted stays occur in the panel's disposition of the matter. Mandamus denied.PER CURIAM.The Court has before it a petition from the State of Washington for a writ of mandamus to the Court of Appeals for the Ninth Circuit. The petition seeks an order directing the Court of Appeals to issue its decision on an appeal from the District Court's denial of a second federal habeas petition in a capital case. The appeal was argued and submitted to the Court of Appeals on June 27, 1989, and no decision has been forthcoming.Charles Rodman Campbell was convicted of multiple murders in 1982 in the State of Washington and sentenced to death. After his conviction was affirmed on direct appeal and we denied certiorari, Campbell v. Washington, , his first federal habeas petition was filed in July, 1985, in the United States District Court for the Western District of Washington. Proceedings in that matter were completed when we denied certiorari in November, 1988. Campbell v. Kincheloe, . No relief was granted.In March, 1989, Campbell filed a second federal habeas petition in the same District Court. The court acted with commendable dispatch, holding a hearing and issuing a written opinion denying a stay or other relief within days after the second petition was filed. On March 28, 1989, Campbell appealed to the Ninth Circuit. The Court of Appeals granted an indefinite stay of execution, and set a briefing schedule. The case was argued and submitted in June 1989, but no decision was announced, and the stay of execution remains in effect. The Washington Attorney General sent letters to the panel in April and October of 1990 inquiring about the status of the case, but neither letter was answered.In January, 1990, Campbell filed a motion to withdraw certain issues from consideration by the Ninth Circuit panel, and he renewed this motion in April. The panel took no action. In July, 1990, Campbell filed his third state action for collateral relief, a personal restraint petition, with the Washington Supreme Court. In September, Campbell again moved the Court of Appeals to withdraw three issues from consideration in the case that it was still holding under submission, leaving eight others to be decided. The panel did not respond until, by order of February 21, 1991, it noted Campbell's motion to withdraw the issues, requested a report on the status of the state court proceedings, and vacated its own submission of the case. Both Washington and Campbell responded that all of the issues pending before the Ninth Circuit had been exhausted. The State requested that the case be resubmitted, but the panel did not do so.The Washington Supreme Court denied Campbell's third personal restraint petition on its merits on March 21, 1991. On June 10, 1991, Campbell filed a document advising the Court of Appeals panel that he desired to discharge his attorneys and proceed pro se, and that he would file a third federal habeas petition in the District Court. At that point, more than two years had passed since the Ninth Circuit had heard oral argument in the case. Almost two months later, on August 7, 1991, the panel granted the motion to relieve counsel, directed Campbell to file his third federal habeas petition by August 30, and announced its intention to wait for the District Court's ruling before taking further action. The District Court has set a briefing schedule for the third petition.On October 25, 1991, the Washington Attorney General filed the mandamus petition now before us, and on November 22, the Court of Appeals and the members of the panel filed a response. Neither the response nor the record reveals any plausible explanation or reason for the panel's delay in resolving the case from June, 1989, until July, 1990. The response addresses the events after Campbell's third personal restraint petition was filed in the Washington Supreme Court. The response indicates that the panel vacated submission in February, 1991, because, if the Washington Supreme Court had granted the state petition, the appeal before the Ninth Circuit would have become moot. It further stated that the panel desired to avoid piecemeal appeals by awaiting the decision of the District Court on the third federal habeas petition. The response noted that the Ninth Circuit has formed a Death Penalty Task Force with the objective of eliminating successive habeas petitions and that the consolidation of the last two petitions is consistent with that objective.The delay of over a year before the third personal restraint was filed in Washington state court remains unexplained, and was, in fact, compounded by the events that followed. The orders by the Ninth Circuit to vacate submission of the case until completion of the state collateral proceeding and then to hold the case in abeyance pending filing and resolution of the third federal habeas proceeding in the District Court raise the very concerns regarding delay that were part of the rationale for this Court's decisions in Rose v. Lundy, , and McCleskey v. Zant, . Adherence to those decisions, and their prompt enforcement by the district courts and courts of appeals, will obviate in many cases what the Court of Appeals here seems to perceive to be the necessity for accommodating multiple filings.As to the Death Penalty Task Force, reports of joint committees of the bench and bar should be of urgent concern to all persons with the responsibility for the administration of justice in the Ninth Circuit, but the ordinary course of legal proceedings and the constant duty of all judges to discharge their duties with diligence and precision cannot be suspended to await its recommendations.None of the reasons offered in the response dispels our concern that the State of Washington has sustained severe prejudice by the two-and-a-half year stay of execution. The stay has prevented Washington from exercising its sovereign power to enforce the criminal law, an interest we found of great weight in McCleskey when discussing the importance of finality in the context of federal habeas corpus proceedings. Id., at 491. Given the potential for prejudice to the State of Washington, the Ninth Circuit was under a duty to consider Cambell's claim for relief without delay. Our case law suggests that expedited review of this second habeas petition would have been proper. Barefoot v. Estelle, , 895 (1983) ("Even where it cannot be concluded that a [successive habeas] petition should be dismissed under Rule 9(b), it would be proper for the district court to expedite consideration of the petition"). The delay in this case demonstrates the necessity for the rule that we now make explicit. In a capital case, the grant of a stay of execution directed to a State by a federal court imposes on that court the concomitant duty to take all steps necessary to ensure a prompt resolution of the matter, consistent with its duty to give full and fair consideration to all of the issues presented in the case.Despite our continuing concerns, we decline to issue mandamus to the Court of Appeals at this time. While there are grounds to question both the necessity and the propriety of the Ninth Circuit's order of August 7, 1991, Campell v. Blodgett, 940 F.2d 549, the State did not file any objection to it. The State should have lodged its objection with the Court of Appeals, citing the cases it now cites to us. True, the State had taken some action. It wrote twice in 1990 to inquire about the status of the case. And after the panel's order vacating submission, the State objected and asked that the case be resubmitted for decision. The argument could be made that further requests for an expedited decision on the merits had little chance of success. But as a predicate for extraordinary relief, the State should have asked the Court of Appeals to vacate or modify its order of August 7, 1991, before coming here. This Court's Rule 20.1 ("To justify the granting of any writ under that provision, it must be shown ... that adequate relief cannot be obtained in any other form or from any other court").As we do not now issue a writ of mandamus, the Court of Appeals should determine how best to expedite the appeal, given the present posture of the case. Denial of the writ is without prejudice to the right of the State to again seek mandamus relief or to request any other extraordinary relief by motion or petition if unnecessary delays or unwarranted stays occur in the panel's disposition of the matter. In view of the delay that has already occurred, any further postponements or extensions of time will be subject to a most rigorous scrutiny in this Court if the State of Washington files a further and meritorious petition for relief.The motion of respondent Charles R. Campbell for leave to proceed in forma pauperis is granted. The petition for writ of mandamus isDenied.JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, concurring in the judgment.In recent years, the federal judiciary has done a magnificent job of handling a truly demanding appellate workload. On a national basis, the average time between notice of appeal and disposition is now less than 11 months. Although delays that are not fully justified occasionally occur, only in the most extraordinary circumstances would it be appropriate for this Court to issue a writ of mandamus to require a court of appeals to render its decision in a case under advisement.1 In its petition for a writ of mandamus, the State criticizes the Court of Appeals' failure to rule on the merits of Campbell's second habeas corpus petition, which was submitted in June, 1989. In their response, the judges on the panel provide a completely satisfactory explanation for their July, 1990, decision to defer ruling on the merits of the petition - namely, their desire to avoid piecemeal litigation and to address all of Campbell's claims in a single ruling. Because that explanation alone is sufficient to mandate denial of the State's petition, there was no occasion for the panel to explain its pre-July, 1990, delay.The panel's decision to defer its ruling on the second habeas petition pending disposition of the third personal restraint petition filed in the Washington Supreme Court in July, 1990, showed proper respect for that court. Although this Court expresses its concern about the State's interest in expediting its execution of Campbell, the Court is notably silent about the fact that the Washington Supreme Court considered the claims Campbell raised in his third personal restraint petition to be substantial. Although the state court, over the dissent of Justice Utter, denied Campbell's petition, that court appointed counsel, scheduled briefing, heard oral argument, and addressed the merits of Campbell's several claims. On these facts, the Ninth Circuit's decision to delay its ruling on Campbell's second habeas petition was sound, for it enables that court to consider the entire case at one time, and will not delay the ultimate disposition of the matter.2 Although I am sure the Court did not intend to send such a message, its opinion today may be read as an open invitation to petitions for mandamus from every State in which a federal court has stayed an execution. This is unfortunate, because, as we noted in Kerr v. United States District Court for Northern District of California, , "particularly in an era of excessively crowded lower court dockets, it is in the interest of the fair and prompt administration of justice to discourage piecemeal litigation. Moreover, as we have so frequently recognized, mandamus is disfavored because it has "the unfortunate consequence of making the judge a litigant, obliged to obtain personal counsel or to leave his defense to one of the litigants [appearing] before him. Ex parte Fahey, . Mandamus is an "extraordinary remed[y] reserved for really extraordinary causes," ibid., precisely because of the great respect we have for our fellow jurists. This is not a situation in which the Ninth Circuit has unduly delayed decision of a case, but rather a situation in which that court has chosen to avoid repetitive and piecemeal litigation by consolidating two appeals. Respect for our fellow judges means providing them latitude in the handling of their burgeoning dockets, and granting due deference to those whose dockets are less discretionary than ours.For the foregoing reasons, and because the State has failed to comply with this Court's Rule 20.1, I believe that the State's petition should have been denied summarily.

This is an appeal from a decision of the District Court sustaining the constitutionality of a state statute which authorized racial segregation in the public schools of Kansas. In the District Court the State intervened and defended the constitutionality of the statute; but neither the State, nor any of the other appellees, has entered an appearance or filed a brief here. Because of the importance of the issue, this Court requests that the State present its views at the oral argument. If the State does not desire to appear, the Attorney General of the State is requested to advise this Court whether the State's default shall be construed as a concession of the invalidity of the statute. Pp. 141-142.The decision below is reported in 98 F. Supp. 797.Robert L. Carter, Thurgood Marshall, Spottswood W. Robinson, III, George E. C. Hayes, George M. Johnson, William R. Ming, Jr., James M. Nabrit, Jr. and Frank D. Reeves for appellants.PER CURIAM.This action was instituted by the appellants attacking a Kansas statute which authorized segregation in the schools of that State. It was urged that the State of Kansas was without power to enact such legislation, claimed by appellants to be in contravention of the Fourteenth Amendment.In the District Court, the State, by its Governor and Attorney General, intervened and defended the constitutionality of the statute. The court upheld its validity.In this Court, the appellants continue their constitutional attack. No appearance has been entered here by the State of Kansas, the Board of Education of Topeka, and the other appellees; nor have they presented any brief in support of the statute's validity. The Court has been advised by counsel for the Board of Education that it does not propose to appear in oral argument or present a brief.Because of the national importance of the issue presented and because of its importance to the State of Kansas, we request that the State present its views at oral argument. If the State does not desire to appear, we request the Attorney General to advise whether the State's default shall be construed as a concession of invalidity.

A postal inspector received from an informant of known reliability a stolen credit card that respondent had given the informant to be used for their mutual advantage, and the inspector was told by the informant that respondent had agreed to furnish additional cards. At the inspector's suggestion, a meeting was arranged between the informant and respondent for a few days later, which took place at a restaurant. Upon a prearranged signal from the informant that respondent had the additional cards, postal officers made a warrantless arrest of respondent, removed him from the restaurant, and gave him Miranda warnings. When a search of respondent's person revealed no cards, a consented search of his nearby car (after respondent had been cautioned that the results could be used against him) revealed two additional cards in the names of other persons. Following an unsuccessful motion to suppress, these cards were used as evidence in respondent's trial, which resulted in his conviction of possessing stolen mail. The Court of Appeals reversed, ruling that the Fourth Amendment prohibited use of that evidence because (1) notwithstanding probable cause for respondent's arrest, the arrest was unconstitutional because the postal inspector had failed to secure an arrest warrant though he had time to do so, and (2) based on the totality of the circumstances (including the illegality of the arrest) respondent's consent to the car search was coerced and thus invalid. Held: 1. The arrest of respondent, having been based on probable cause and made by postal officers acting in strict compliance with the governing statute and regulations, did not violate the Fourth Amendment. Pp. 414-424. 2. Since the arrest comported with the Fourth Amendment, respondent's consent to the car search was not, contrary to the holding of the Court of Appeals, the product of an illegal arrest, nor were there any other circumstances indicating that respondent's consent was not his own "essentially free and unconstrained choice" because his "will ha[d] been ... overborne and his capacity for self-determination critically impaired," Schneckloth v. Bustamonte, . Pp. 424-425. 504 F.2d 849, reversed.WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACKMUN, POWELL, and REHNQUIST, JJ., joined. POWELL, J., filed a concurring opinion, post, p. 425. STEWART, J., filed an opinion concurring in the result, post, p. 433. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 433. STEVENS, J., took no part in the consideration or decision of the case.Deputy Solicitor General Frey argued the cause for the United States. With him on the briefs were Solicitor General Bork, Acting Assistant Attorney General Keeney, and Peter M. Shannon, Jr.Michael D. Nasatir, by appointment of the Court, . argued the cause for respondent. With him on the brief was Donald M. Re.MR. JUSTICE WHITE delivered the opinion of the Court.This case presents questions under the Fourth Amendment as to the legality of a warrantless arrest and of an ensuing search of the arrestee's automobile carried out with his purported consent.IThe relevant events began on August 17, 1972, when an informant, one Khoury, telephoned a postal inspector informing him that respondent Watson was in possession of a stolen credit card and had asked Khoury to cooperate in using the card to their mutual advantage. On five to 10 previous occasions Khoury had provided the inspector with reliable information on postal inspection matters, some involving Watson. Later that day Khoury delivered the card to the inspector. On learning that Watson had agreed to furnish additional cards, the inspector asked Khoury to arrange to meet with Watson. Khoury did so, a meeting being scheduled for August 22.1 Watson canceled that engagement, but at noon on August 23, Khoury met with Watson at a restaurant designated by the latter. Khoury had been instructed that if Watson had additional stolen credit cards, Khoury was to give a designated signal. The signal was given, the officers closed in, and Watson was forthwith arrested. He was removed from the restaurant to the street where he was given the warnings required by Miranda v. Arizona, . A search having revealed that Watson had no credit cards on his person, the inspector asked if he could look inside Watson's car, which was standing within view. Watson said, "Go ahead," and repeated these words when the inspector cautioned that "[i]f I find anything, it is going to go against you." Using keys furnished by Watson, the inspector entered the car and found under the floor mat an envelope containing two credit cards in the names of other persons. These cards were the basis for two counts of a four-count indictment charging Watson with possessing stolen mail in violation of 18 U.S.C. 1708.2 Prior to trial, Watson moved to suppress the cards, claiming that his arrest was illegal for want of probable cause and an arrest warrant and that his consent to search the car was involuntary and ineffective because he had not been told that he could withhold consent. The motion was denied, and Watson was convicted of illegally possessing the two cards seized from his car.3 A divided panel of the Court of Appeals for the Ninth Circuit reversed, 504 F.2d 849 (1974), ruling that the admission in evidence of the two credit cards found in the car was prohibited by the Fourth Amendment. In reaching this judgment, the court decided two issues in Watson's favor. First, notwithstanding its agreement with the District Court that Khoury was reliable and that there was probable cause for arresting Watson, the court held the arrest unconstitutional because the postal inspector had failed to secure an arrest warrant although he concededly had time to do so. Second, based on the totality of the circumstances, one of which was the illegality of the arrest, the court held Watson's consent to search had been coerced and hence was not a valid ground for the warrantless search of the automobile. We granted certiorari. .IIA major part of the Court of Appeals' opinion was its holding that Watson's warrantless arrest violated the Fourth Amendment. Although it did not expressly do so, it may have intended to overturn the conviction on the independent ground that the two credit cards were the inadmissible fruits of an unconstitutional arrest. Cf. Brown v. Illinois, . However that may be, the Court of Appeals treated the illegality of Watson's arrest as an important factor in determining the voluntariness of his consent to search his car. We therefore deal first with the arrest issue.Contrary to the Court of Appeals' view, Watson's arrest was not invalid because executed without a warrant. Title 18 U.S.C. 3061 (a) (3) expressly empowers the Board of Governors of the Postal Service to authorize Postal Service officers and employees "performing duties related to the inspection of postal matters" to "make arrests without warrant for felonies cognizable under the laws of the United States if they have reasonable grounds to believe that the person to be arrested has committed or is committing such a felony." By regulation, 39 CFR 232.5 (a) (3) (1975), and in identical language, the Board of Governors has exercised that power and authorized warrantless arrests. Because there was probable cause in this case to believe that Watson had violated 1708, the inspector and his subordinates, in arresting Watson, were acting strictly in accordance with the governing statute and regulations. The effect of the judgment of the Court of Appeals was to invalidate the statute as applied in this case and as applied to all the situations where a court fails to find exigent circumstances justifying a warrantless arrest. We reverse that judgment.Under the Fourth Amendment, the people are to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, ... and no Warrants shall issue, but upon probable cause ... ." Section 3061 represents a judgment by Congress that it is not unreasonable under the Fourth Amendment for postal inspectors to arrest without a warrant provided they have probable cause to do so.4 This was not an isolated or quixotic judgment of the legislative branch. Other federal law enforcement officers have been expressly authorized by statute for many years to make felony arrests on probable cause but without a warrant. This is true of United States marshals, 18 U.S.C. 3053, and of agents of the Federal Bureau of Investigation, 18 U.S.C. 3052; the Drug Enforcement Administration, 84 Stat. 1273, 21 U.S.C. 878; the Secret Service, 18 U.S.C. 3056 (a); and the Customs Service, 26 U.S.C. 7607.[Footnote 5]Because there is a "strong presumption of constitutionality due to an Act of Congress, especially when it turns on what is `reasonable,'" "[o]bviously the Court should be reluctant to decide that a search thus authorized by Congress was unreasonable and that the Act was therefore unconstitutional." United States v. Di Re, . Moreover, there is nothing in the Court's prior cases indicating that under the Fourth Amendment a warrant is required to make a valid arrest for a felony. Indeed, the relevant prior decisions are uniformly to the contrary."The usual rule is that a police officer may arrest without warrant one believed by the officer upon reasonable cause to have been guilty of a felony ... ." Carroll v. United States, . In Henry v. United States, , the Court dealt with an FBI agent's warrantless arrest under 18 U.S.C. 3052, which authorizes a warrantless arrest where there are reasonable grounds to believe that the person to be arrested has committed a felony. The Court declared that "[t]he statute states the constitutional standard ... ." 361 U.S., at 100. The necessary inquiry, therefore, was not whether there was a warrant or whether there was time to get one, but whether there was probable cause for the arrest. In Abel v. United States, , the Court sustained an administrative arrest made without "a judicial warrant within the scope of the Fourth Amendment." The crucial question in Draper v. United States, , was whether there was probable cause for the warrantless arrest. If there was, the Court said, "the arrest, though without a warrant, was lawful ... ." Id., at 310. Ker v. California, (opinion of Clark, J.), reiterated the rule that "[t]he lawfulness of the arrest without warrant, in turn, must be based upon probable cause ..." and went on to sustain the warrantless arrest over other claims going to the mode of entry. Just last Term, while recognizing that maximum protection of individual rights could be assured by requiring a magistrate's review of the factual justification prior to any arrest, we stated that "such a requirement would constitute an intolerable handicap for legitimate law enforcement" and noted that the Court "has never invalidated an arrest supported by probable cause solely because the officers failed to secure a warrant." Gerstein v. Pugh, .6 The cases construing the Fourth Amendment thus reflect the ancient common-law rule that a peace officer was permitted to arrest without a warrant for a misdemeanor or felony committed in his presence as well as for a felony not committed in his presence if there was reasonable ground for making the arrest. 10 Halsbury's Laws of England 344-345 (3d ed. 1955); 4 W. Blackstone, Commentaries *292; 1 J. Stephen, A History of the Criminal Law of England 193 (1883); 2 M. Hale, Pleas of the Crown *72-74; Wilgus, Arrest Without a Warrant 22 Mich. L. Rev. 541, 547-550, 686-688 (1924); Samuel v. Payne, 1 Doug. 359, 99 Eng. Rep. 230 (K. B. 1780); Beckwith v. Philby, 6 Barn. & Cress. 635, 108 Eng. Rep. 585 (K. B. 1827). This has also been the prevailing rule under state constitutions and statutes. "The rule of the common law, that a peace officer or a private citizen may arrest a felon without a warrant, has been generally held by the courts of the several States to be in force in cases of felony punishable by the civil tribunals." Kurtz v. Moffitt, .In Rohan v. Sawin, 59 Mass. 281 (1850), a false-arrest case, the Supreme Judicial Court of Massachusetts held that the common-law rule obtained in that State. Given probable cause to arrest, "[t]he authority of a constable, to arrest without warrant, in cases of felony, is most fully established by the elementary books, and adjudicated cases." Id., at 284. In reaching this judgment the court observed: "It has been sometimes contended, that an arrest of this character, without a warrant, was a violation of the great fundamental principles of our national and state constitutions, forbidding unreasonable searches and arrests, except by warrant founded upon a complaint made under oath. Those provisions doubtless had another and different purpose, being in restraint of general warrants to make searches, and requiring warrants to issue only upon a complaint made under oath. They do not conflict with the authority of constables or other peace-officers, or private persons under proper limitations, to arrest without warrant those who have committed felonies. The public safety, and the due apprehension of criminals, charged with heinous offences, imperiously require that such arrests should be made without warrant by officers of the law." Id., at 284-285. Also rejected, id., at 285-286, was the trial court's view that to justify a warrantless arrest, the State must show "an immediate necessity therefor, arising from the danger, that the plaintiff would otherwise escape, or secrete the stolen property, before a warrant could be procured against him." The Supreme Judicial Court ruled that there was no "authority for thus restricting a constable in the exercise of his authority to arrest for a felony without a warrant." Id., at 286. Other early cases to similar effect were Wakely v. Hart, 6 Binn. 316 (Pa. 1814); Tolley v. Mix, 3 Wend. 350 (N. Y. Sup. Ct. 1829); State v. Brown, 5 Del. 505 (Ct. Gen. Sess. 1853); Johnson v. State, 30 Ga. 426 (1860); Wade v. Chaffee, 8 R. I. 224 (1865). See Reuck v. McGregor, 32 N. J. L. 70, 74 (Sup. Ct. 1866); Baltimore & O. R. Co. v. Cain, 81 Md. 87, 100, 102, 31 A. 801, 803, 804 (1895).7 Because the common-law rule authorizing arrests without a warrant generally prevailed in the States, it is important for present purposes to note that in 1792 Congress invested United States marshals and their deputies with "the same powers in executing the laws of the United States, as sheriffs and their deputies in the several states have by law, in executing the laws of their respective states." Act of May 2, 1792, c. 28, 9, 1 Stat. 265. The Second Congress thus saw no inconsistency between the Fourth Amendment and legislation giving United States marshals the same power as local peace officers to arrest for a felony without a warrant.8 This provision equating the power of federal marshals with those of local sheriffs was several times reenacted9 and is today 570 of Title 28 of the United States Code. That provision, however, was supplemented in 1935 by 504a of the Judicial Code,10 which in its essential elements is now 18 U.S.C. 3053 and which expressly empowered marshals to make felony arrests without warrant and on probable cause. It was enacted to furnish a federal standard independent of the vagaries of state laws, the Committee Report remarking that under existing law a "marshal or deputy marshal may make an arrest without a warrant within his district in all cases where the sheriff might do so under the State statutes." H. R. Rep. No. 283, 74th Cong., 1st Sess., 1 (1935). See United States v. Riggs, 474 F.2d 699, 702-703, n. 2 (CA2), cert. denied, .The balance struck by the common law in generally authorizing felony arrests on probable cause, but without a warrant, has survived substantially intact. It appears in almost all of the States in the form of express statutory authorization. In 1963, the American Law Institute undertook the task of formulating a model statute governing police powers and practice in criminal law enforcement and related aspects of pretrial procedure. In 1975, after years of discussion, A Model Code of Pre-arraignment Procedure was proposed. Among its provisions was 120.1 which authorizes an officer to take a person into custody if the officer has reasonable cause to believe that the person to be arrested has committed a felony, or has committed a misdemeanor or petty misdemeanor in his presence.11 The commentary to this section said: "The Code thus adopts the traditional and almost universal standard for arrest without a warrant."12 This is the rule Congress has long directed its principal law enforcement officers to follow. Congress has plainly decided against conditioning warrantless arrest power on proof of exigent circumstances.13 Law enforcement officers may find it wise to seek arrest warrants where practicable to do so, and their judgments about probable cause may be more readily accepted where backed by a warrant issued by a magistrate. See United States v. Ventresca, ; Aguilar v. Texas, ; Wong Sun v. United States, . But we decline to transform this judicial preference into a constitutional rule when the judgment of the Nation and Congress has for so long been to authorize warrantless public arrests on probable cause rather than to encumber criminal prosecutions with endless litigation with respect to the existence of exigent circumstances, whether it was practicable to get a warrant, whether the suspect was about to flee, and the like.Watson's arrest did not violate the Fourth Amendment, and the Court of Appeals erred in holding to the contrary.IIIBecause our judgment is that Watson's arrest comported with the Fourth Amendment, Watson's consent to the search of his car was not the product of an illegal arrest. To the extent that the issue of the voluntariness of Watson's consent was resolved on the premise that his arrest was illegal, the Court of Appeals was also in error.We are satisfied in addition that the remaining factors relied upon by the Court of Appeals to invalidate Watson's consent are inadequate to demonstrate that, in the totality of the circumstances, Watson's consent was not his own "essentially free and unconstrained choice" because his "will ha[d] been overborne and his capacity for self-determination critically impaired." Schneckloth v. Bustamonte, . There was no overt act or threat of force against Watson proved or claimed. There were no promises made to him and no indication of more subtle forms of coercion that might flaw his judgment. He had been arrested and was in custody, but his consent was given while on a public street, not in the confines of the police station. Moreover, the fact of custody alone has never been enough in itself to demonstrate a coerced confession or consent to search. Similarly, under Schneckloth, the absence of proof that Watson knew he could withhold his consent, though it may be a factor in the overall judgment, is not to be given controlling significance. There is no indication in this record that Watson was a newcomer to the law,14 mentally deficient, or unable in the face of a custodial arrest to exercise a free choice. He was given Miranda warnings and was further cautioned that the results of the search of his car could be used against him. He persisted in his consent.In these circumstances, to hold that illegal coercion is made out from the fact of arrest and the failure to inform the arrestee that he could withhold consent would not be consistent with Schneckloth and would distort the voluntariness standard that we reaffirmed in that case.In consequence, we reverse the judgment of the Court of Appeals. So ordered.MR. JUSTICE STEVENS took no part in the consideration or decision of this case.

Appellee filed suit in the District Court to bar enforcement of 18 U.S.C. 1302 - which, inter alia, prohibits the mailing of any "publication of any kind ... containing any list of the prizes drawn or awarded by means of" a lottery, gift enterprise, or scheme offering prizes dependent in whole or in part upon lot or chance - based on the First Amendment and the Due Process Clause of the Fifth Amendment. The court found 1302 valid as applied to advertisements but unconstitutional as applied to prize lists. After appellants sought review of the ruling on prize lists, and appellee cross-appealed from the ruling on advertisements, Congress passed two laws affecting 1302's coverage. The parties have agreed to dismiss the cross-appeal.Held: The appeal on the issue whether 1302 is constitutional as applied to prize lists is moot. Since appellants now take the position that the statute does not apply to the noncommercial publishing of prize lists, appellee is willing to forgo any further claim to the declaratory and equitable relief sought in its complaint. Thus, there is no longer any live controversy. 677 F. Supp. 1400, vacated and remanded.Paul J. Larkin, Jr., argued the cause for appellants. With him on the briefs were former Solicitor General Fried, Acting Solicitor General Bryson, Assistant Attorney General Bolton, Deputy Solicitor General Merrill, and Irene M. Solet.P. Cameron DeVore argued the cause for appellee. With him on the brief were Mark R. Anfinson and Marshall J. Nelson.* [Footnote *] Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by John P. Borger, Robert Hicks, and Steven R. Shapiro; and for the Association of National Advertisers by Burt Neuborne and Gilbert H. Weil. P. Cameron DeVore, Marshall J. Nelson, W. Terry Maguire, Rene P. Milam, Charles V. Hamm, and Jeanne S. Whiteing filed a brief for the American Newspaper Publishers Association et al. as amici curiae. PER CURIAM.We initially noted probable jurisdiction of an appeal and a cross-appeal in this matter. . Appellee filed suit in District Court to bar enforcement of 18 U.S.C. 1302, based on the First Amendment and the Due Process Clause of the Fifth Amendment. The suit sought declaratory and injunctive relief against the Postmaster General, among others. Section 1302 prohibits the mailing of any "publication of any kind containing any advertisement of any lottery, gift enterprise, or scheme of any kind offering prizes dependent in whole or in part upon lot or chance, or containing any list of the prizes drawn or awarded by means of any such lottery, gift enterprise, or scheme." The District Court found 1302 valid as applied to advertisements, but unconstitutional as applied to prize lists, because the statute could prevent the publication of prize lists in news reports. The District Court granted an injunction limited to the latter issue. Minnesota Newspaper Assn., Inc. v. Postmaster General, 677 F. Supp. 1400 (Minn. 1987). Appellants sought review of the ruling on prize lists, and appellee cross-appealed from the ruling on advertisements.After the Court had noted probable jurisdiction of both appeals, Congress passed two laws affecting the coverage of 1302. Charity Games Advertising Clarification Act of 1988, 2(a), Pub. L. 100-625, 102 Stat. 3205 (Nov. 7, 1988); Indian Gaming Regulatory Act, 21, Pub. L. 100-497, 102 Stat. 2486 (Oct. 17, 1988). Although the first statute does not take effect until May 7, 1990, the parties agreed to dismiss the cross-appeal under this Court's Rule 53. Minnesota Newspaper Assn., Inc. v. Postmaster General, . In this Court, appellants now take the position that the statute does not apply to the noncommercial publishing of prize lists. Brief for Appellants 12, 14-30. In light of this concession, appellee, the original plaintiff in the case, states its willingness to forgo any further claim to the declaratory and equitable relief sought in its complaint. In these circumstances, we conclude that there is no longer any live controversy on the issue whether the statute is constitutional as it applies to prize lists, and that this appeal is moot. There is no justification for our retaining jurisdiction of a civil case where no real controversy is before us. Deakins v. Monaghan, . We therefore vacate the judgment below and remand for the District Court to dismiss the portions of the complaint remaining at issue on this appeal. See id., at 200; United States v. Munsingwear, Inc., . It is so ordered. JUSTICE WHITE and JUSTICE MARSHALL dissent.JUSTICE STEVENS, dissenting.In my opinion appellants' concession is a reason for affirming, rather than vacating, the judgment of the District Court insofar as it enjoins the Postmaster General from enforcing 18 U.S.C. 1302 as applied to prize lists. I therefore respectfully dissent.

An officer of the Washington State University police department observed a student (Overdahl) leave a dormitory carrying a bottle of gin; because Overdahl appeared to be under 21 (the minimum age allowable under Washington law for possession of alcoholic beverages), the officer stopped him and asked for identification. After Overdahl requested to retrieve his identification from his dormitory room, the officer accompanied him there and, while remaining in the open doorway watching Overdahl and his roommate (respondent), noticed what he believed to be marihuana seeds and a pipe lying on a desk in the room. The officer then entered the room, confirmed that the seeds were marihuana and determined that the pipe smelled of marihuana, and informed Overdahl and respondent of their rights under Miranda v. Arizona, . The students indicated their willingness to waive such rights, and after the officer asked if there were any other drugs in the room, respondent gave him a box which contained more marihuana and cash. After a second officer arrived, the students voluntarily consented, orally and in writing, to a search of the room, which yielded more marihuana and another controlled substance. Respondent was later charged with two counts of possessing the controlled substances and, after denial of his pretrial motion to suppress the evidence seized in the room, was convicted. The Washington Court of Appeals affirmed, but the Washington Supreme Court reversed. It held that, although Overdahl had been placed under lawful arrest, the officer had no right to enter the room and seize contraband without a warrant, and that because the students' consent to the subsequent search of the room was the fruit of the officer's initial entry, the contraband found during that search should also have been suppressed.Held: 1. It is not "unreasonable" under the Fourth Amendment for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest. The officer's need to ensure his own safety - as well as the integrity of the arrest - is compelling. Such surveillance is not an impermissible invasion of the privacy or personal liberty of an individual who has been arrested. Once the officer had placed Overdahl under lawful arrest, he was authorized to accompany him to his room for the purpose of obtaining identification. The officer had a right to remain literally at Overdahl's elbow at all times, and thus a showing of "exigent circumstances" was not necessary to warrant the officer's accompanying Overdahl from the public corridor of the dormitory into his room. Pp. 5-7. 2. The Fourth Amendment did not prohibit the seizure of the contraband discovered in plain view in the room. Regardless of where the officer was positioned with respect to the room's threshold when he observed the contraband, and regardless of whether he may have hesitated briefly at the doorway before entering the room, he did not abandon his right to be in the room with Overdahl whenever he considered it essential. Accordingly, he had the right to act as soon as he observed the seeds and pipe. Pp. 8-9. 3. The seizure of other contraband taken from respondent's room pursuant to his valid consent did not violate the Fourth Amendment. He voluntarily produced marihuana after being informed of his Miranda rights, and he then consented to the search of the room. Thus, all of the seized contraband was properly admitted at his trial. Pp. 9-10. 94 Wash. 2d 711, 619 P.2d 971, reversed and remanded.BURGER, C. J., delivered the opinion of the Court, in which BLACKMUN, POWELL, REHNQUIST, STEVENS, and O'CONNOR, JJ., joined. WHITE, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined., post, p. 10.Ronald R. Carpenter argued the cause and filed briefs for petitioner.Robert F. Patrick argued the cause and filed a brief for respondent.* [Footnote *] Briefs of amici curiae urging reversal were filed by Fred E. Inban, Wayne W. Schmidt, and James P. Manak for Americans for Effective Law Enforcement, Inc.; and by David Crump and Michael C. Kuhn for the Legal Foundation of America et al. Timothy K. Ford filed a brief for the American Civil Liberties Union of Washington as amicus curiae urging affirmance. CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to consider whether a police officer may, consistent with the Fourth Amendment, accompany an arrested person into his residence and seize contraband discovered there in plain view.IOn the evening of January 21, 1978, Officer Daugherty of the Washington State University police department observed Carl Overdahl, a student at the University, leave a student dormitory carrying a half-gallon bottle of gin. Because Washington law forbids possession of alcoholic beverages by persons under 21, Wash. Rev. Code 66.44.270 (1981), and Overdahl appeared to be under age,1 the officer stopped him and asked for identification. Overdahl said that his identification was in his dormitory room and asked if the officer would wait while he went to retrieve it. The officer answered that under the circumstances he would have to accompany Overdahl, to which Overdahl replied "OK."Overdahl's room was approximately 11 by 17 feet and located on the 11th floor of the dormitory. Respondent Chrisman, Overdahl's roommate, was in the room when the officer and Overdahl entered. The officer remained in the open doorway, leaning against the doorjamb while watching Chrisman and Overdahl. He observed that Chrisman, who was in the process of placing a small box in the room's medicine cabinet, became nervous at the sight of an officer. Within 30 to 45 seconds after Overdahl entered the room, the officer noticed seeds and a small pipe lying on a desk 8 to 10 feet from where he was standing. From his training and experience, the officer believed the seeds were marihuana and the pipe was of a type used to smoke marihuana. He entered the room and examined the pipe and seeds, confirming that the seeds were marihuana and observing that the pipe smelled of marihuana.The officer informed Overdahl and Chrisman of their rights under Miranda v. Arizona, ; each acknowledged that he understood his rights and indicated that he was willing to waive them. Officer Daugherty then asked whether the students had any other drugs in the room. The respondent handed Daugherty the box he had been carrying earlier, which contained three small plastic bags filled with marihuana and $112 in cash. At that point, Officer Daugherty called by radio for a second officer; on his arrival, the two students were told that a search of the room would be necessary. The officers explained to Overdahl and Chrisman that they had an absolute right to insist that the officers first obtain a search warrant, but that they could voluntarily consent to the search. Following this explanation, which was given in considerable detail, the two students conferred in whispers for several minutes before announcing their consent; they also signed written forms consenting to the search of the room. The search yielded more marihuana and a quantity of lysergic acid diethylamide (LSD), both controlled substances.Respondent was charged with one count of possessing more than 40 grams of marihuana and one count of possessing LSD, both felonies under Wash. Rev. Code 69.50.401(c) (1976) (current version at Wash. Rev. Code 69.50.401(d) (1981)). A pretrial motion to suppress the evidence seized in the room was denied; respondent was convicted of both counts. On appeal, the Washington Court of Appeals affirmed the convictions, upholding the validity of the search. 24 Wash. App. 385, 600 P.2d 1316 (1979). The Supreme Court of Washington reversed. 94 Wash. 2d 711, 619 P.2d 971 (1980). It held that, although Overdahl had been placed under lawful arrest and "there was nothing to prevent Officer Daugherty from accompanying Overdahl to his room," the officer had no right to enter the room and either examine or seize contraband without a warrant. The court reasoned there was no indication that Overdahl might obtain a weapon or destroy evidence, and, with the officer blocking the only exit from the room, his presence inside the room was not necessary to prevent escape. Because the officer's entry into the room and his observations of its interior were not justified by "exigent circumstances," the seizure of the seeds and pipe were held not to fall within the plain-view exception to the Fourth Amendment's warrant requirement. The court went on to hold that because the students' consent to the subsequent search of the room was the fruit of the officer's initial entry, the contraband found during that search should also have been suppressed.2 Three justices dissented. They concluded it was reasonable for a police officer to keep an arrested person in sight at all times; accordingly, the officer had a legitimate reason for being in the place where he discovered the contraband, and was entitled, under the plain-view doctrine, to seize it.We granted certiorari, , and reverse.IIAThe "plain view" exception to the Fourth Amendment warrant requirement permits a law enforcement officer to seize what clearly is incriminating evidence or contraband when it is discovered in a place where the officer has a right to be. Coolidge v. New Hampshire, ; Harris v. United States, . Here, the officer had placed Overdahl under lawful arrest, and therefore was authorized to accompany him to his room for the purpose of obtaining identification.3 The officer had a right to remain literally at Overdahl's elbow at all times; nothing in the Fourth Amendment is to the contrary.The central premise of the opinion of the Supreme Court of Washington is that Officer Daugherty was not entitled to accompany Overdahl from the public corridor of the dormitory into his room, absent a showing that such "intervention" was required by "exigent circumstances." We disagree with this novel reading of the Fourth Amendment. The absence of an affirmative indication that an arrested person might have a weapon available or might attempt to escape does not diminish the arresting officer's authority to maintain custody over the arrested person. See Pennsylvania v. Mimms, ; United States v. Robinson, . Nor is that authority altered by the nature of the offense for which the arrest was made.Every arrest must be presumed to present a risk of danger to the arresting officer. Cf. United States v. Robinson, supra, at 234, n. 5. There is no way for an officer to predict reliably how a particular subject will react to arrest or the degree of the potential danger. Moreover, the possibility that an arrested person will attempt to escape if not properly supervised is obvious. Although the Supreme Court of Washington found little likelihood that Overdahl could escape from his dormitory room, an arresting officer's custodial authority over an arrested person does not depend upon a reviewing court's after-the-fact assessment of the particular arrest situation. Cf. New York v. Belton, ; United States v. Robinson, supra, at 235.We hold, therefore, that it is not "unreasonable" under the Fourth Amendment for a police officer, as a matter of routine, to monitor the movements of an arrested person, as his judgment dictates, following the arrest. The officer's need to ensure his own safety - as well as the integrity of the arrest - is compelling. Such surveillance is not an impermissible invasion of the privacy or personal liberty of an individual who has been arrested.4 It follows that Officer Daugherty properly accompanied Overdahl into his room, and that his presence in the room was lawful. With restraint, the officer remained in the doorway momentarily, entering no farther than was necessary to keep the arrested person in his view. It was only by chance that, while in the doorway, the officer observed in plain view what he recognized to be contraband. Had he exercised his undoubted right to remain at Overdahl's side, he might well have observed the contraband sooner. BRespondent nevertheless contends that the officer lacked authority to seize the contraband, even though in plain view, because he was "outside" the room at the time he made his observations. The Supreme Court of Washington noted that "[t]he record is in conflict as to whether Officer Daugherty stood in the doorway and then entered the room or whether, while in the doorway, he was in fact in the room." 94 Wash. 2d, at 716, 619 P.2d, at 974. It concluded, however, that it "need not ... let the result be determined by such niceties," and assumed for purposes of its decision that the officer "was in the room at the time he observed the seeds and pipe." Ibid. We agree that on this record "such niceties" are not relevant. It is of no legal significance whether the officer was in the room, on the threshold, or in the hallway, since he had a right to be in any of these places as an incident of a valid arrest.Respondent's argument appears to be that, even if the officer could have stationed himself "inside" the room had he done so immediately upon Overdahl's entry, his 30- to 45-second hesitation was fatal; and that having chosen to remain in the doorway, the officer was precluded from proceeding further to seize the contraband. We reject this contention. Respondent's argument, if accepted, would have the perverse effect of penalizing the officer for exercising more restraint than was required under the circumstances. Moreover, it ignores the fundamental premise that the Fourth Amendment protects only against unreasonable intrusions into an individual's privacy. See Katz v. United States, .The "intrusion" in this case occurred when the officer, quite properly, followed Overdahl into a private area to a point from which he had unimpeded view of and access to the area's contents and its occupants. His right to custodial control did not evaporate with his choice to hesitate briefly in the doorway rather than at some other vantage point inside the room. It cannot be gainsaid that the officer would have had unrestricted access to the room at the first indication that he was in danger, or that evidence might be destroyed - or even upon reassessment of the wisdom of permitting a distance between himself and Overdahl.We therefore conclude that, regardless of where the officer was positioned with respect to the threshold, he did not abandon his right to be in the room whenever he considered it essential. Accordingly, he had the right to act as soon as he observed the seeds and pipe.5 This is a classic instance of incriminating evidence found in plain view when a police officer, for unrelated but entirely legitimate reasons, obtains lawful access to an individual's area of privacy. The Fourth Amendment does not prohibit seizure of evidence of criminal conduct found in these circumstances.6 IIISince the seizure of the marihuana and pipe was lawful, we have no difficulty concluding that this evidence and the contraband subsequently taken from respondent's room were properly admitted at his trial. Respondent voluntarily produced three bags of marihuana after being informed of his rights under Miranda v. Arizona, . He then consented, in writing, to a search of the room, after being advised that his consent must be voluntary and that he had an absolute right to refuse consent and demand procurement of a search warrant. The seizure of the drugs pursuant to respondent's valid consent did not violate the Fourth Amendment.7 The judgment of the Supreme Court of Washington is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered.

A Federal District Court entered an order authorizing public school officials of Little Rock, Ark., to suspend until January 1961 a plan of racial integration previously approved by that Court and affirmed by the Court of Appeals; and it denied a stay of its suspension order pending appeal. After an appeal to the Court of Appeals had been docketed and application for a stay had been made to that Court, petitioners applied to this Court for a writ of certiorari to review the order of the District Court before the Court of Appeals had had an opportunity to act on the petition for a stay or to hear the appeal. Held: The writ is denied on the assumption that the Court of Appeals will act upon the application for a stay or the appeal in ample time to permit arrangements to be made for the next school year. Pp. 566-567.Thurgood Marshall, Wiley A. Branton, Constance Baker Motley and Jack Greenberg for petitioners.PER CURIAM.On June 21, 1958, the District Court for the Eastern District of Arkansas entered an order authorizing the members of the School Board of Little Rock, Arkansas, and the Superintendent of Schools, to suspend until January 1961 a plan of integration theretofore approved by that court in August 1956, Aaron v. Cooper, 143 F. Supp. 855, and affirmed by the Court of Appeals for the Eighth Circuit in April 1957. 243 F.2d 361. On June 23, 1958, the District Court denied an application for a stay of execution of its order. An appeal was docketed in the Court of Appeals for the Eighth Circuit on June 24, 1958, and there is pending in that court an application for a stay of the District Court's order.By the present petition this Court is asked to bring the case here before the Court of Appeals has had an opportunity to act upon the petition for a stay or to hear the appeal. The power of the Court to do so has been exercised but rarely, and the issues and circumstances relevant to the present petition do not warrant its exercise now. The order that the District Court suspended has, in different postures, been before the Court of Appeals for the Eighth Circuit three times already. Aaron v. Cooper, 243 F.2d 361; Thomason v. Cooper, 254 F.2d 808 (April 28, 1958); Faubus v. United States, 254 F.2d 797 (April 28, 1958). That court is the regular court for reviewing orders of the District Court here concerned, and the appeal and the petition for a stay are matters properly to be adjudicated by it in the first instance.We have no doubt that the Court of Appeals will recognize the vital importance of the time element in this litigation, and that it will act upon the application for a stay or the appeal in ample time to permit arrangements to be made for the next school year.Accordingly, the petition for certiorari is Denied.

Appellee was charged by information with shipping sulfuric and hydrofluosilicic acids in interstate commerce and that it "did knowingly fail to show on the shipping papers the required classification of said property, to wit, Corrosive Liquid, in violation of 49 C. F. R. 173.437," issued pursuant to 18 U.S.C. 834 (a). Section 834 (f) provides that whoever "knowingly violates any such regulation" shall be fined and imprisoned. The District Court dismissed the information, holding that it did not charge a "knowing violation" of the regulation. Held: The statute does not signal an exception to the general rule that ignorance of the law is no excuse. The word "knowingly" in the statute pertains to knowledge of the facts, and where, as here, dangerous products are involved, the probability of regulation is so great that anyone who is aware that he is in possession of or dealing with them must be presumed to be aware of the regulation. Pp. 560-565. Reversed.DOUGLAS, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACK, WHITE, MARSHALL, and BLACKMUN, JJ., joined. STEWART, J., filed a dissenting opinion, in which HARLAN and BRENNAN, JJ., joined, post, p. 565.John F. Dienelt argued the cause for the United States pro hac vice. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Wilson, and Beatrice Rosenberg.Harold E. Spencer argued the cause for appellee. With him on the brief was Charles J. McCarthy. MR. JUSTICE DOUGLAS delivered the opinion of the Court.The information charged that appellee shipped sulfuric acid and hydrofluosilicic acid in interstate commerce and "did knowingly fail to show on the shipping papers the required classification of said property, to wit, Corrosive Liquid, in violation of 49 C. F. R. 173.427."Title 18 U.S.C. 834 (a) gives the Interstate Commerce Commission power to "formulate regulations for the safe transportation" of "corrosive liquids" and 18 U.S.C. 834 (f) states that whoever "knowingly violates any such regulation" shall be fined or imprisoned.Pursuant to the power granted by 834 (a) the regulatory agency1 promulgated the regulation already cited which reads in part: "Each shipper offering for transportation any hazardous material subject to the regulations in this chapter, shall describe that article on the shipping paper by the shipping name prescribed in 172.5 of this chapter and by the classification prescribed in 172.4 of this chapter, and may add a further description not inconsistent therewith. Abbreviations must not be used." 49 CFR 173.427. The District Court, relying primarily on Boyce Motor Lines, Inc. v. United States, , ruled that the information did not charge a "knowing violation" of the regulation and accordingly dismissed the information.The United States filed a notice of appeal to the Court of Appeals, 18 U.S.C. 3731, and in reliance on that section later moved to certify the case to this Court which the Court of Appeals did; and we noted probable jurisdiction, .Here as in United States v. Freed, , which dealt with the possession of hand grenades, strict or absolute liability is not imposed; knowledge of the shipment of the dangerous materials is required. The sole and narrow question is whether "knowledge" of the regulation is also required. It is in that narrow zone that the issue of "mens rea" is raised; and appellee bears down hard on the provision in 18 U.S.C. 834 (f) that whoever "knowingly violates any such regulation" shall be fined, etc.Boyce Motor Lines, Inc. v. United States, supra, on which the District Court relied, is not dispositive of the issue. It involved a regulation governing transporting explosives, inflammable liquids, and the like and required drivers to "avoid, so far as practicable, and, where feasible, by prearrangement of routes, driving into or through congested thoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings." The statute punished whoever "knowingly" violated the regulation. Id., at 339. The issue of "mens rea" was not raised below, the sole question turning on whether the standard of guilt was unconstitutionally vague. Id., at 340. In holding the statute was not void for vagueness we said: "The statute punishes only those who knowingly violate the Regulation. This requirement of the presence of culpable intent as a necessary element of the offense does much to destroy any force in the argument that application of the Regulation would be so unfair that it must be held invalid. That is evident from a consideration of the effect of the requirement in this case. To sustain a conviction, the Government not only must prove that petitioner could have taken another route which was both commercially practicable and appreciably safer (in its avoidance of crowded thoroughfares, etc.) than the one it did follow. It must also be shown that petitioner knew that there was such a practicable, safer route and yet deliberately took the more dangerous route through the tunnel, or that petitioner willfully neglected to exercise its duty under the Regulation to inquire into the availability of such an alternative route. "In an effort to give point to its argument, petitioner asserts that there was no practicable route its trucks might have followed which did not pass through places they were required to avoid. If it is true that in the congestion surrounding the lower Hudson there was no practicable way of crossing the River which would have avoided such points of danger to a substantially greater extent than the route taken, then petitioner has not violated the Regulation. But that is plainly a matter for proof at the trial. We are not so conversant with all the routes in that area that we may, with no facts in the record before us, assume the allegations of the indictment to be false. We will not thus distort the judicial notice concept to strike down a regulation adopted only after much consultation with those affected and penalizing only those who knowingly violate its prohibition." Id., at 342-343. The "mens rea" that emerged in the foregoing discussion was not knowledge of the regulation but knowledge of the safer routes and those that were less safe within the meaning of the regulation. Mr. Justice Jackson, writing in dissent for himself, MR. JUSTICE BLACK, and Mr. Justice Frankfurter, correctly said:"I do not suppose the Court intends to suggest that if petitioner knew nothing of the existence of such a regulation its ignorance would constitute a defense." 342 U.S., at 345. There is no issue in the present case of the propriety of the delegation of the power to establish regulations and of the validity of the regulation at issue. We therefore see no reason why the word "regulations" should not be construed as a shorthand designation for specific acts or omissions which violate the Act. The Act, so viewed, does not signal an exception to the rule that ignorance of the law is no excuse and is wholly consistent with the legislative history.The failure to change the language in 834 in 1960 should not lead to a contrary conclusion. The Senate approved an amendment deleting "knowingly" and substituting therefor the language "being aware that the Interstate Commerce Commission has formulated regulations for the safe transportation of explosives and other dangerous articles."2 But the House refused to agree. As the House Committee stated, its version would "retain the present law by providing that a person must `knowingly' violate the regulations."3 The House Committee noted there was a "judicial pronouncement as to the standards of conduct that make a violation a `knowing' violation."4 In St. Johnsbury Trucking Co. v. United States, 220 F.2d 393, 397, Chief Judge Magruder had concluded that knowledge of the regulations was necessary. But whether the House Committee was referring to Boyce Motor Lines or the opinion of Chief Judge Magruder is not clear since both views of the section were before Congress.5 It is clear that strict liability was not intended. The Senate Committee felt it would be too stringent and thus rejected the position of the Interstate Commerce Commission.6 But despite protestations of avoiding strict liability the Senate version was very likely to result in strict liability because knowledge of the facts would have been unnecessary and anyone involved in the business of shipping dangerous materials would very likely know of the regulations involved. Thus in rejecting the Senate version the House was rejecting strict liability.7 But it is too much to conclude that in rejecting strict liability the House was also carving out an exception to the general rule that ignorance of the law is no excuse.The principle that ignorance of the law is no defense applies whether the law be a statute or a duly promulgated and published regulation. In the context of these proposed 1960 amendments we decline to attribute to Congress the inaccurate view that that Act requires proof of knowledge of the law, as well as the facts, and that it intended to endorse that interpretation by retaining the word "knowingly." We conclude that the meager legislative history of the 1960 amendments makes unwarranted the conclusion that Congress abandoned the general rule and required knowledge of both the facts and the pertinent law before a criminal conviction could be sustained under this Act.So far as possession, say, of sulfuric acid is concerned the requirement of "mens rea" has been made a requirement of the Act as evidenced by the use of the word "knowingly." A person thinking in good faith that he was shipping distilled water when in fact he was shipping some dangerous acid would not be covered. As stated in Morissette v. United States, : "The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil." There is leeway for the exercise of congressional discretion in applying the reach of "mens rea." United States v. Balint, . United States v. Murdock, , closely confined the word "willfully" in the income tax law to include a purpose to bring about the forbidden result: "He whose conduct is defined as criminal is one who `willfully' fails to pay the tax, to make a return, to keep the required records, or to supply the needed information. Congress did not intend that a person, by reason of a bona fide misunderstanding as to his liability for the tax, as to his duty to make a return, or as to the adequacy of the records he maintained, should become a criminal by his mere failure to measure up to the prescribed standard of conduct. And the requirement that the omission in these instances, must be willful, to be criminal, is persuasive that the same element is essential to the offense of failing to supply information." Id., at 396. In Balint the Court was dealing with drugs, in Freed with hand grenades, in this case with sulfuric and other dangerous acids. Pencils, dental floss, paper clips may also be regulated. But they may be the type of products which might raise substantial due process questions if Congress did not require, as in Murdock, "mens rea" as to each ingredient of the offense. But where, as here and as in Balint and Freed, dangerous or deleterious devices or products or obnoxious waste materials are involved, the probability of regulation is so great that anyone who is aware that he is in possession of them or dealing with them must be presumed to be aware of the regulation. Reversed.

Where it appears that petitioner state prisoner was not accorded effective review of his appeal from the District Court's denial of his habeas corpus petition because the Court of Appeals in its affirmance order referred to denial of relief under the wrong federal statute and to the wrong District Court and case, the Court of Appeals' judgment is vacated and the case is remanded to that court for further consideration. Certiorari granted; vacated and remanded.PER CURIAM.A Federal District Court entered a final order denying the petitioner habeas corpus relief. Under federal law the petitioner had a statutory right to appellate review of that decision. 28 U.S.C. 2253. Because it appears that effective appellate review may not have been accorded in this case, the writ of certiorari is granted, and the case is remanded to the Court of Appeals for the Fourth Circuit.The petitioner pleaded guilty to narcotics and firearms violations in the Criminal Court of Baltimore City and was sentenced to a term of 20 years in the Maryland state penitentiary. In 1975, after exhausting state post-conviction remedies, he filed a petition for a writ of habeas corpus in the United States District Court for the District of Maryland, alleging that several specific constitutional violations had occurred in the state prosecution. The District Court dismissed the petition without an evidentiary hearing. The petitioner, pro se, took an appeal to the Court of Appeals, which affirmed the order of the District Court in the following language:"PER CURIAM: "A review of the record and of the district court's opinion discloses that this appeal from the order of the district court denying relief under 42 U.S.C. 1983 is without merit. Accordingly, the order is affirmed for the reasons stated by the district court. Blizzard v. Mahan, C/A No. 76-0117-CRT (E. D. N.C., Sept. 13, 1976). "AFFIRMED." Clearly, this per curiam order has nothing whatsoever to do with the petitioner's case. He had filed a petition for a writ of habeas corpus, not a civil rights action under 42 U.S.C. 1983. He had sought relief in a federal court in Maryland, not one in North Carolina. The case of Blizzard v. Mahan, in short, is wholly unrelated to the petitioner's case.* It may be that the petitioner's contentions are wholly frivolous. But it is not enough that a just result may have been reached. "[T]o perform its high function in the best way `justice must satisfy the appearance of justice.' Offutt v. United States, ." In re Murchison, ; cf. In re Gault, . Accordingly, in the exercise of our power to "require such further proceedings to be had as may be just under the circumstances," 28 U.S.C. 2106, we grant the motion for leave to proceed in forma pauperis and the petition for certiorari, vacate the judgment of the Court of Appeals, and remand this case to it for further consideration. It is so ordered.[Footnote *] The petition for certiorari in No. 77-939, Blizzard v. Mahan (denied, post, p. 951), shows that the Court of Appeals' per curiam order in that case (filed on the same day as the order in the present case) is identical to the one quoted in the text above.

Respondent Riley (hereafter respondent) awoke on the morning of November 20, 1975, with severe pains in his neck, shoulders, and arms. Subsequently, he filed a claim for disability benefits under the Longshoremen's and Harbor Worker's Compensation Act (Act), alleging that he suffered an accidental injury in the course of his employment on November 19, 1975, when he was lifting duct work and felt a sharp pain in his neck. The Administrative Law Judge found that the accident never occurred and denied the claim, and the Benefits Review Board affirmed. The Court of Appeals vacated the Board's decision, holding that respondent suffered an "injury" when he awakened in pain on November 20, and that under 20(a) of the Act - which provides that in any proceeding for the enforcement of a claim for compensation under the Act "it shall be presumed, in the absence of substantial evidence to the contrary ... [t]hat the claim comes within the provisions of [the Act]" - respondent was entitled to a presumption that the injury was "employment-bred."Held: 1. The Court of Appeals erred in invoking the 20(a) presumption in support of a claim that respondent did not make, he having claimed that he was injured at work and not that the "injury" occurred at home and that it was somehow "employment-bred." In this case there is no reason to depart from the specific statutory direction that a claim be made and that the presumption, however construed, attach to the claim. Pp. 612-615. 2. The Court of Appeals also erred in its use of the term "injury" as including respondent's attack of pain occurring on the morning of November 20. The Act defines "injury" as an "accidental injury ... arising out of and in the course of employment," so that a prima facie "claim for compensation," to which the 20(a) presumption refers, must at least allege an injury that arose in the course of employment as well as out of employment. Here, however, the "injury" noticed by the Court of Appeals arose in bed, not in the course of employment. The statutory presumption is no substitute for the allegations necessary to state a prima facie case. Pp. 615-616. App. D.C. 402, 627 F.2d 455, reversed.STEVENS, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 617. O'CONNOR, J., took no part in the consideration or decision of the case.Richard W. Galiher, Jr., argued the cause for petitioners. With him on the briefs were Richard W. Galiher, William H. Clarke, and Frank J. Martell.James F. Green argued the cause for respondents. With him on the brief for respondent Riley were Karl N. Marshall, Martin E. Gerel, James A. Mannino, Mark L. Schaffer, and Wayne M. Mansulla.* [Footnote *] John C. Duncan III filed a brief for the American Insurance Association as amicus curiae.JUSTICE STEVENS delivered the opinion of the Court.In the early morning of November 20, 1975, respondent Ralph Riley awoke with severe pains in his neck, shoulders, and arms, which later were attributed by physicians to an exacerbation of an arthritic condition. The United States Court of Appeals for the District of Columbia Circuit held that this "injury" was sufficient to invoke the "statutory presumption of compensability,"1 20(a) of the Longshoremen's and Harbor Workers' Compensation Act, 44 Stat. (part 2) 1436, 33 U.S.C. 920(a), and vacated the administrative denial of disability benefits. We granted certiorari, , and we now reverse. Contending that he was permanently and totally disabled by the arthritic condition,2 Riley's retained counsel filed with the Deputy Commissioner a claim for compensation under the Act. See 33 U.S.C. 913. On standard form LS-203, in response to the direction to "[d]escribe in full how the accident occurred,"3 Riley wrote that on November 19, 1975, he was "[l]ifting duct work with co-worker, weighing approximately 500 pounds, felt sharp pain in neck and sat down." App. 111.An evidentiary hearing was convened before an Administrative Law Judge. After construing the evidence in a light most favorable to Riley and resolving all doubts in his favor, the Administrative Law Judge found "that Claimant sustained no injury within the meaning of Sec. 2(2) of the Act on November 19, 1975, as alleged, and that Claimant and Sutherland [Riley's co-worker] gave false testimony as to the happening of the accident." App. to Pet. for Cert. 24A.A divided panel of the Benefits Review Board affirmed the denial of disability benefits, holding that the Administrative Law Judge's findings were supported by substantial evidence. In dissent, Member Miller stated: "The Act does not require that claimant prove an accident in order to establish a claim. To the contrary, compensation is payable under the Act if claimant is disabled because of injury which is causally related to his employment. 33 U.S.C. 902(10), 902(2)." 9 BRBS 936, 940 (1979) (emphasis in original). Member Miller defined an injury as "something go[ne] wrong within the human frame." Ibid. Riley suffered such an injury when he awoke on November 20 with severe pain. Therefore, Member Miller would have remanded the case for a determination of "the real issue in this case," which "is not whether claimant sustained an accident at work but whether claimant's injury is causally related to his employment." Ibid. That determination was to be made in light of the 20(a) presumption, which "places the burden on employer to prove by substantial evidence that claimant's injury did not arise out of or in the course of employment." Ibid.On Riley's petition for review, the Court of Appeals vacated the decision of the Benefits Review Board, agreeing with Member Miller's position. Riley v. U.S. Industries/Federal Sheet Metal, Inc.App. D.C. 402, 627 F.2d 455 (1980). The court stated that "it can hardly be disputed that petitioner suffered an `injury' when he awakened in pain on November 20, 1975." Id., at 405, 627 F.2d, at 458. The court then turned its "attention to the statutory presumption and the range of situations to which this Court has applied it." Ibid. It construed its earlier cases as holding "that an injury need not have occurred during working hours" and "need not be traceable to any particular work-related incident to be compensable." Id., at 405-406, 627 F.2d, at 458-459.4 "The foregoing cases make clear the pervasive scope of the statutory presumption of compensability. Indeed, no decision of this Court has ever failed to apply the presumption to any facet of any claim before it. We now hold expressly that where a claimant has been injured, the Act requires that, in the absence of substantial evidence to the contrary, a claimant be given the benefit of a rebuttable presumption that the injury arose out of and in the course of the claimant's employment." Id., at 406, 627 F.2d, at 459. The question for remand was not whether Riley's "injury" stemmed from a "work-related incident," but whether it was "`employment-bred.'" Ibid.The Court of Appeals erred because it overlooked (1) the statutory language that relates the 20(a) presumption to the employee's claim, and (2) the statutory definition of the term "injury."IThe Court of Appeals' first error was its invocation of the 20(a) presumption in support of a claim that was not made by Riley. Riley claimed that he suffered an injury at work on November 19 when he was lifting duct work and felt a sharp pain in his neck. The Administrative Law Judge found as a matter of fact that the accident had not occurred; this finding is no longer challenged. The Court of Appeals' theory of recovery was that Riley suffered an injury at home in bed on November 20 and that Riley was entitled to a presumption that this injury was "employment-bred."Section 20(a), 44 Stat. (part 2) 1436, provides that "[i]n any proceeding for the enforcement of a claim for compensation under this Act it shall be presumed, in the absence of substantial evidence to the contrary ... [t]hat the claim comes within the provisions of this Act." The coverage of the presumption is debatable,5 but one thing is clear: the presumption applies to the claim. Even if a claimant has an unfettered right to amend his claim to conform to the proof, the presumption by its terms cannot apply to a claim that has never been made.Section 13 of the Act, 33 U.S.C. 913, provides that a claimant must timely file a claim with the Deputy Commissioner. The content of the claim is not specified in that section. But 12(b), 33 U.S.C. 912(b), requires that the claimant timely give the Deputy Commissioner and his employer notice of his injury, and provides further that "[s]uch notice ... shall contain ... a statement of the time, place, nature, and cause of the injury."6 The claim, like the notice required by 12 and like the pleadings required in any type of litigation, serves the purposes of notifying the adverse party of the allegations and of confining the issues to be tried and adjudicated.7 In Riley's claim, he alleged that he suffered an accidental injury in the course of his employment on November 19. No claim has ever been made that the "injury" occurred at home and that it was somehow "employment-bred." Even if such a vague claim stated a prima facie case of compensability, the statutory presumption does not require the administrative law judge to address and the employer to rebut every conceivable theory of recovery. At least when the claimant is represented by counsel,8 as Riley was, there is no reason to depart from the specific statutory direction that a claim be made and that the presumption, however construed, attach to the claim.IIThe Court of Appeals' second error was its incorrect use of the term "injury." The court stated that Riley's attack of pain in the early morning of November 20 was an "injury" compensable under the Act if the employer did not disprove by substantial evidence that the "injury" was "employment-bred." The fact that "`something unexpectedly goes wrong with the human frame,'" App. D.C., at 405, 627 F.2d, at 458 (quoting Wheatley v. AdlerApp. D.C. 177, 183, 407 F.2d 307, 313 (1968)), however, does not establish an "injury" within the meaning of the Act. The mere existence of a physical impairment is plainly insufficient to shift the burden of proof to the employer.Section 3(a) provides that "[c]ompensation shall be payable under this Act in respect of disability ... of an employee, but only if the disability ... results from an injury." 44 Stat. (part 2) 1426, as amended, 33 U.S.C. 903(a). Injury is defined as an "accidental injury ... arising out of and in the course of employment." 33 U.S.C. 902(2). Arising "out of" and "in the course of" employment are separate elements: the former refers to injury causation; the latter refers to the time, place, and circumstances of the injury.9 Not only must the injury have been caused by the employment, it also must have arisen during the employment.A prima facie "claim for compensation," to which the statutory presumption refers, must at least allege an injury that arose in the course of employment as well as out of employment.10 The "injury" noticed by the Court of Appeals, however, arose in bed, not in the course of employment. Even if the Court of Appeals simply mislabeled the early morning attack of pain as the "injury" itself rather than as a manifestation of an earlier injury, the claim envisioned by the Court of Appeals did not allege any facts that would establish that Riley suffered an injury that arose in the course of employment. The statutory presumption is no substitute for the allegations necessary to state a prima facie case.IIIRiley's claim stated a prima facie case of compensability; if the Administrative Law Judge had believed Riley's allegations, he would have found that Riley's attack of pain in the early morning of November 20 was caused by an injury suffered when Riley was lifting duct work on the job on November 19. The judge, however, disbelieved Riley's allegations and marshaled substantial evidence to support his findings. The statutory presumption did not require him to adjudicate any claim that was not made, and the Court of Appeals erred in remanding for that purpose. Nor could the statutory presumption have aided Riley had he made the claim envisioned by the Court of Appeals - that he suffered an "injury" at home - for such a claim omits the requirement that a compensable injury arise in the course of employment.The judgment of the Court of Appeals is reversed. It is so ordered. JUSTICE O'CONNOR took no part in the consideration or decision of this case.

The public disclosure bar of the False Claims Act (FCA) generally forecloses private parties from bringing qui tam suits to recover falsely or fraudulently obtained federal payments where those suits are "based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media." 31 U. S. C. §3730(e)(4)(A). Respondent Kirk brought such a suit, alleging that his former employer, petitioner Schindler Elevator Corp., had submitted hundreds of false claims for payment under its federal contracts. To support his allegations, Kirk pointed to information his wife received from the Labor Department (DOL) in response to three requests for records she filed under the Freedom of Information Act (FOIA), 5 U. S. C. §552. Granting Schindler's motion to dismiss, the District Court concluded, inter alia, that the FCA's public disclosure bar deprived it of jurisdiction over Kirk's allegations that were based on information disclosed in a Government "report" or "investigation." The Second Circuit vacated and remanded, holding, in effect, that an agency's response to a FOIA request is neither a "report" nor an "investigation."Held: A federal agency's written response to a FOIA request for records constitutes a "report" within the meaning of the FCA's public disclosure bar. Pp. 4-14. (a) "[R]eport" in this context carries its ordinary meaning. Pp. 4-8. (1) Because the FCA does not define "report," the Court looks first to the word's ordinary meaning. See, e.g., Gross v. FBL Financial Services, Inc., 557 U. S. ___, ___. Dictionaries define "report" as, for example, something that gives information. This ordinary meaning is consistent with the public disclosure bar's generally broad scope, see, e.g., Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. ___, ___, as is evidenced by the other sources of public disclosure in §3730(e)(4)(A), especially "news media." Pp. 4-6. (2) Nor is there any textual basis for adopting a narrower definition of "report." The Second Circuit committed the very error this Court reversed in Graham County. In applying the noscitur a sociis canon to conclude that a narrower meaning for "report" was mandated, the court failed to consider all of the sources of public disclosure listed in the statute — in particular, the reference to "news media." See 559 U. S., at ___. Applying the ordinary meaning of "report" also does not render superfluous the other sources of public disclosure in §3730(e)(4)(A). Pp. 6-8. (b) The DOL's three written FOIA responses in this case, along with the accompanying records produced to Mrs. Kirk, are "reports" within the public disclosure bar's ordinary meaning. FOIA requires each agency receiving a request to "notify the person making such request of [its] determination and the reasons therefor." 5 U. S. C. §552(a)(6)(A)(i). Like other federal agencies, the DOL has adopted FOIA regulations mandating a written response. Such agency responses plainly fall within the broad, ordinary meaning of "report" as, e.g., something that gives information. Moreover, any records produced along with such responses are part of the responses, just as if they had been produced as an appendix to a printed report. Pp. 8-9. (c) This Court is not persuaded by assertions that it would be anomalous to read the public disclosure bar to encompass written FOIA responses. Pp. 9-14. (1) The Court's holding is not inconsistent with the public disclosure bar's drafting history. If anything, the drafting history supports this Court's holding. Kirk's case seems a classic example of the "opportunistic" litigation that the public disclosure bar is designed to discourage. Id., at ___. Anyone could identify a few regulatory filing and certification requirements, submit FOIA requests until he discovers a federal contractor who is out of compliance, and potentially reap a windfall in a qui tam action under the FCA. Pp. 9-11. (2) Nor will extending the public disclosure bar to written FOIA responses necessarily lead to unusual consequences. Kirk argues that the Court's ruling would allow a suit by a qui tam relator possessing records whose release was required by FOIA even absent a request, but bar an action by a relator who got the same documents by way of a FOIA request. Even assuming, as Kirk does, that unrequested records are not covered by the public disclosure bar, the Court is not troubled by the different treatment. By its plain terms, the bar applies to some methods of public disclosure and not to others. See Graham County, 559 U. S., at ___. It would not be anomalous if some methods of FOIA disclosure fell within the bar's scope and some did not. Moreover, Kirk's assertion that potential defendants will now insulate themselves from liability by making a FOIA request for incriminating documents is pure speculation. Cf. id., at ___. There is no suggestion that this has occurred in those Circuits that have long held that FOIA responses are "reports" within the public disclosure bar's meaning. Pp. 11-13. (3) Even if the foregoing extratextual arguments were accepted, Kirk and his amici have provided no principled way to define "report" to exclude FOIA responses without excluding other documents — e.g., the Justice Department's annual report of FOIA statistics — that are indisputably reports. Pp. 13-14. (d) Whether Kirk's suit is "based upon ... allegations or transactions" disclosed in the reports at issue is a question to be resolved on remand. P. 14. 601 F. 3d 94, reversed and remanded. Thomas, J., delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, and Alito, JJ., joined. Ginsburg, J., filed a dissenting opinion, in which Breyer and Sotomayor, JJ., joined. Kagan, J., took no part in the consideration or decision of the case.SCHINDLER ELEVATOR CORPORATION, PETI-TIONER v. UNITED STATES ex rel.DANIEL KIRKon writ of certiorari to the united states court of appeals for the second circuit[May 16, 2011] Justice Thomas delivered the opinion of the Court. The False Claims Act (FCA), 31 U. S. C. §§3729-3733, prohibits submitting false or fraudulent claims for payment to the United States, §3729(a), and authorizes qui tam suits, in which private parties bring civil actions in the Government's name, §3730(b)(1). This case concerns the FCA's public disclosure bar, which generally forecloses qui tam suits that are "based upon the public disclosure of allegations or transactions ... in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation." §3730(e)(4)(A) (footnote omitted).1 We must decide whether a federal agency's written response to a request for records under the Freedom of Information Act (FOIA), 5 U. S. C. §552, constitutes a "report" within the meaning of the public disclosure bar. We hold that it does.I Petitioner Schindler Elevator Corporation manufactures, installs, and services elevators and escalators.2 In 1989, Schindler acquired Millar Elevator Industries, Inc., and the two companies merged in 2002. Since 1999, Schindler and the United States have entered into hundreds of contracts that are subject to the Vietnam Era Veterans' Readjustment Assistance Act of 1972 (VEVRAA). That Act requires contractors like Schindler to report certain information to the Secretary of Labor, including how many of its employees are "qualified covered veterans" under the statute. 38 U. S. C. §4212(d)(1). VEVRAA regulations required Schindler to agree in each of its contracts that it would "submit VETS-100 Reports no later than September 30 of each year." 48 CFR §52.222-37(c) (2008); see also §22.1310(b). Respondent Daniel Kirk, a United States Army veteran who served in Vietnam, was employed by Millar and Schindler from 1978 until 2003. In August 2003, Kirk resigned from Schindler in response to what he saw as Schindler's efforts to force him out.3 In March 2005, Kirk filed this action against Schindler under the False Claims Act, which imposes civil penalties and treble damages on persons who submit false or fraudulent claims for payment to the United States. 31 U. S. C. §3729(a). The FCA authorizes both civil actions by the Attorney General and private qui tam actions to enforce its provisions. §3730. When, as here, the Government chooses not to intervene in a qui tam action, the private relator stands to receive between 25% and 30% of the proceeds of the action. §3730(d)(2). In an amended complaint filed in June 2007, Kirk alleged that Schindler had submitted hundreds of false claims for payment under its Government contracts. According to Kirk, Schindler had violated VEVRAA's reporting requirements by failing to file certain required VETS-100 reports and including false information in those it did file. The company's claims for payment were false, Kirk alleged, because Schindler had falsely certified its compliance with VEVRAA. Kirk did not specify the amount of damages he sought on behalf of the United States, but he asserted that the value of Schindler's VEVRAA-covered contracts exceeded $100 million. To support his allegations, Kirk pointed to information his wife, Linda Kirk, received from the Department of Labor (DOL) in response to three FOIA requests. Mrs. Kirk had sought all VETS-100 reports filed by Schindler for the years 1998 through 2006. The DOL responded by letter or e-mail to each request with information about the records found for each year, including years for which no responsive records were located. The DOL informed Mrs. Kirk that it found no VETS-100 reports filed by Schindler in 1998, 1999, 2000, 2002, or 2003. For the other years, the DOL provided Mrs. Kirk with copies of the reports filed by Schindler, 99 in all. Schindler moved to dismiss on a number of grounds, including that the FCA's public disclosure bar deprived the District Court of jurisdiction. See §3730(e)(4)(A). The District Court granted the motion, concluding that most of Kirk's allegations failed to state a claim and that the remainder were based upon the public disclosure of alle-gations or transactions in an administrative "report" or "investigation." 606 F. Supp. 2d 448 (SDNY 2009). The Court of Appeals for the Second Circuit vacated and remanded. 601 F. 3d 94 (2010). The court effectively held that an agency's response to a FOIA request is neither a "report" nor an "investigation" within the meaning of the FCA's public disclosure bar. See id., at 103-111 (agreeing with United States ex rel. Haight v. Catholic Healthcare West, 445 F. 3d 1147 (CA9 2006), and disagreeing with United States ex rel. Mistick PBT v. Housing Auth. of Pittsburgh, 186 F. 3d 376 (CA3 1999)). We granted certiorari, 561 U. S. ___ (2010), and now reverse and remand.II Schindler argues that "report" in the FCA's public disclosure bar carries its ordinary meaning and that the DOL's written responses to Mrs. Kirk's FOIA requests are therefore "reports." We agree.4A1 Adopted in 1986, the FCA's public disclosure bar provides:"No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information." 31 U. S. C. §3730(e)(4)(A) (footnote omitted). Because the statute does not define "report," we look first to the word's ordinary meaning. See Gross v. FBL Financial Services, Inc., 557 U. S. ___, ___ (2009) (slip op., at 7) ("Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose" (internal quotation marks omitted)); Asgrow Seed Co. v. Winterboer, 513 U. S. 179, 187 (1995) ("When terms used in a statute are undefined, we give them their ordinary meaning"). A "report" is "something that gives information" or a "notification," Webster's Third New International Dictionary 1925 (1986), or "[a]n official or formal statement of facts or proceedings," Black's Law Dictionary 1300 (6th ed. 1990). See also 13 Oxford English Dictionary 650 (2d ed. 1989) ("[a]n account brought by one person to another"); American Heritage Dictionary 1103 (1981) ("[a]n account or announcement that is prepared, presented, or delivered, usually in formal or organized form"); Random House Dictionary 1634 (2d ed. 1987) ("an account or statement describing in detail an event, situation, or the like"). This broad ordinary meaning of "report" is consistent with the generally broad scope of the FCA's public disclosure bar. As we explained last Term, to determine the meaning of one word in the public disclosure bar, we must consider the provision's "entire text," read as an "integrated whole." Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. ___, ___, ___, n. 12 (2010) (slip op., at 8, 12, n. 12); see also Tyler v. Cain, 533 U. S. 656, 662 (2001) ("We do not ... construe the meaning of statutory terms in a vacuum"). The other sources of public disclosure in §3730(e)(4)(A), especially "news media," suggest that the public disclosure bar provides "a broa[d] sweep." Graham County, supra, at ___ (slip op., at 8). The statute also mentions "administrative hearings" twice, reflecting intent to avoid underinclusiveness even at the risk of redundancy. The phrase "allegations or transactions" in §3730(e) (4)(A) additionally suggests a wide-reaching public disclosure bar. Congress covered not only the disclosure of "allegations" but also "transactions," a term that courts have recognized as having a broad meaning. See, e.g., Moore v. New York Cotton Exchange, 270 U. S. 593, 610 (1926) (" 'Transaction' is a word of flexible meaning"); Hamilton v. United Healthcare of La., Inc., 310 F. 3d 385, 391 (CA5 2002) ("[T]he ordinary meaning of the term 'transaction' is a broad reference to many different types of business dealings between parties").2 Nor is there any textual basis for adopting a narrower definition of "report." The Court of Appeals, in holding that FOIA responses were not "reports," looked to the words "hearing, audit, or investigation," and the phrase "criminal, civil, [and] administrative hearings." It concluded that all of these sources "connote the synthesis of information in an investigatory context" to "serve some end of the government." 601 F. 3d, at 107; cf. Brief for Respondent 30, n. 15 ("Each is part of the government's ongoing effort to fight fraud"). Applying the noscitur a sociis canon, the Court of Appeals then determined that these " 'neighboring words' " mandated a narrower meaning for "report" than its ordinary meaning. 601 F. 3d, at 107. The Court of Appeals committed the very error we reversed in Graham County. Like the Fourth Circuit in that case, the Second Circuit here applied the noscitur a sociis canon only to the immediately surrounding words, to the exclusion of the rest of the statute. See 601 F. 3d, at 107, n. 6. We emphasized in Graham County that "all of the sources [of public disclosure] listed in §3730(e)(4)(A) provide interpretive guidance." 559 U. S., at ___ (slip op., at 8). When all of the sources are considered, the reference to "news media"--which the Court of Appeals did not consider — suggests a much broader scope. Ibid. The Government similarly errs by focusing only on the adjectives "congressional, administrative, or [GAO],"5 which precede "report." Brief for United States as Amicus Curiae 18. It contends that these adjectives suggest that the public disclosure bar applies only to agency reports "analogous to those that Congress and the GAO would issue or conduct." Ibid. As we explained in Graham County, however, those three adjectives tell us nothing more than that a "report" must be governmental. See 559 U. S., at ___, n. 7 (slip op., at 7, n. 7). The governmental nature of the FOIA responses at issue is not disputed. Finally, applying the ordinary meaning of "report" does not render superfluous the other sources of public disclosure in §3730(e)(4)(A). Kirk argues that reading "report" to mean "something that gives information" would subsume the other words in the phrase "report, hearing, audit, or investigation." Brief for Respondent 23. But Kirk admits that hearings, audits, and investigations are processes "to obtain information." Ibid. (emphasis added). Those processes are thus clearly different from "something that gives information." Moreover, the statute contemplates some redundancy: An "audit," for example, will often be a type of "investigation." We are not persuaded that we should adopt a "different, somewhat special meaning" of "report" over the word's "primary meaning." Muscarello v. United States, 524 U. S. 125, 130, 128 (1998). Indeed, we have cautioned recently against interpreting the public disclosure bar in a way inconsistent with a plain reading of its text. In Graham County, we rejected several arguments for construing the statute narrowly, twice emphasizing that the sole "touchstone" in the statutory text is "public disclosure." 559 U. S., at ___, ___ (slip op., at 11, 19). We chose in that case simply to give the text its "most natura[l] read[ing]," id., at ___ (slip op., at 5), and we do so again here.B A written agency response to a FOIA request falls within the ordinary meaning of "report." FOIA requires each agency receiving a request to "notify the person making such request of [its] determination and the reasons therefor." 5 U. S. C. §552(a)(6)(A)(i). When an agency denies a request in whole or in part, it must additionally "set forth the names and titles or positions of each person responsible for the denial," "make a reasonable effort to estimate the volume of any [denied] matter," and "provide any such estimate to the person making the request." §§552(a)(6)(C)(i), (F). The DOL has adopted more detailed regulations implementing FOIA and mandating a response in writing. See 29 CFR §70.21(a) (2009) (requiring written notice of the grant of a FOIA request and a description of the manner in which records will be disclosed); §§70.21(b)-(c) (requiring a "brief statement of the reason or reasons for [a] denial," as well as written notification if a record "cannot be located or has been destroyed" (italics deleted)). So, too, have other federal agencies. See, e.g., 28 CFR §16.6 (2010) (Dept. of Justice); 43 CFR §2.21 (2009) (Dept. of Interior); 7 CFR §1.7 (2010) (Dept. of Agriculture). Such an agency response plainly is "something that gives information," a "notification," and an "official or formal statement of facts." Any records the agency produces along with its written FOIA response are part of that response, "just as if they had been reproduced as an appendix to a printed report." Mistick, 186 F. 3d, at 384, n. 5. Nothing in the public disclosure bar suggests that a document and its attachments must be disaggregated and evaluated individually. If an allegation or transaction is disclosed in a record attached to a FOIA response, it is disclosed "in" that FOIA response and, therefore, disclosed "in" a report for the purposes of the public disclosure bar.6 The DOL's three written FOIA responses to Mrs. Kirk, along with their attached records, are thus reports within the meaning of the public disclosure bar. Each response was an "official or formal statement" that "[gave] information" and "notif[ied]" Mrs. Kirk of the agency's resolution of her FOIA request.IIIA In interpreting a statute, "[o]ur inquiry must cease if the statutory language is unambiguous," as we have found, and " 'the statutory scheme is coherent and consistent.' " Robinson v. Shell Oil Co., 519 U. S. 337, 340 (1997) (quoting United States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 240 (1989)). We are not persuaded by assertions that it would be anomalous to read the public disclosure bar to encompass written FOIA responses.1 The drafting history of the public disclosure bar does not contradict our holding. As originally enacted in 1863, the FCA placed no restriction on the sources from which a qui tam relator could acquire information on which to base a lawsuit. See Graham County, 559 U. S., at ___ (slip op., at 12). Accordingly, this Court upheld the recovery of a relator, even though the Government claimed that he had discovered the basis for his lawsuit by reading a federal criminal indictment. See United States ex rel. Marcus v. Hess, 317 U. S. 537 (1943). In response, Congress amended the statute to preclude such "parasitic" qui tam actions based on "evidence or information in the possession of the United States ... at the time such suit was brought." 559 U. S., at ___ (slip op., at 12-13) (internal quotation marks omitted). Then, in 1986, Congress replaced the so-called Government knowledge bar with the narrower public disclosure bar. Id., at ___ (slip op., at 13). The Court of Appeals concluded that it would be inconsistent with this drafting history to hold that written FOIA responses are reports. The court reasoned that doing so would "essentially resurrect, in a significant subset of cases, the government possession standard ... repudiated in 1986." 601 F. 3d, at 109. We disagree with the Court of Appeals' conclusion. As a threshold matter, "the drafting history of the public disclosure bar raises more questions than it answers." Graham County, supra, at ___ (slip op., at 14). In any event, it is hardly inconsistent with the drafting history to read the public disclosure bar as operating similarly to the Government knowledge bar in a "subset of cases." 601 F. 3d, at 109. As we have observed, "[r]ather than simply repeal the Government knowledge bar," the public disclosure bar was "an effort to strike a balance between encouraging private persons to root out fraud and stifling parasitic lawsuits." 559 U. S., at ___ (slip op., at 13) (emphasis added). If anything, the drafting history supports our holding. The sort of case that Kirk has brought seems to us a classic example of the "opportunistic" litigation that the public disclosure bar is designed to discourage. Ibid. (internal quotation marks omitted). Although Kirk alleges that he became suspicious from his own experiences as a veteran working at Schindler, anyone could have filed the same FOIA requests and then filed the same suit. Similarly, anyone could identify a few regulatory filing and certification requirements, submit FOIA requests until he discovers a federal contractor who is out of compliance, and potentially reap a windfall in a qui tam action under the FCA. See Brief for Chamber of Commerce of the United States of America et al. as Amici Curiae 20 ("Government contractors ... are required to submit certifications related to everything from how they dispose of hazardous materials to their affirmative action plans" (citing 40 U. S. C. §3142 and 29 U. S. C. §793)).72 Nor will extending the public disclosure bar to written FOIA responses necessarily lead to unusual consequences. FOIA requires agencies to release some records even absent a request. See 5 U. S. C. §§552(a)(1), (2). Kirk argues that it would be strange that two relators could obtain copies of the same document but that only the relator who got the document in response to a FOIA request would find his case barred. This argument assumes that records released under FOIA, but not attached to a written FOIA response, do not fall within the public disclosure bar. We do not decide that question. But even assuming, as Kirk does, that such records are not covered by the public disclosure bar, we are not troubled by the different treatment. By its plain terms, the public disclosure bar applies to some methods of public disclosure and not to others. See Graham County, supra, at ___ (slip op., at 4) ("[T]he FCA's public disclosure bar ... deprives courts of jurisdiction over qui tam suits when the relevant information has already entered the public domain through certain channels" (emphasis added)). It would not be anomalous if some methods of FOIA disclosure fell within the scope of the public disclosure bar and some did not. We also are not concerned that potential defendants will now insulate themselves from liability by making a FOIA request for incriminating documents. This argument assumes that the public disclosure of information in a written FOIA response forever taints that information for purposes of the public disclosure bar. But it may be that a relator who comes by that information from a different source has a legitimate argument that his lawsuit is not "based upon" the initial public disclosure. 31 U. S. C. §3730(e)(4)(A). That question has divided the Courts of Appeals, and we do not resolve it here. See Glaser v. Wound Care Consultants, Inc., 570 F. 3d 907, 915 (CA7 2009) (describing the split in authority). It may also be that such a relator qualifies for the "original source" exception.8 In any event, the notion that potential defendants will make FOIA requests to insulate themselves from liability is pure speculation. Cf. Graham County, 559 U. S., at ___ (slip op., at 19) (rejecting as "strained speculation" an argument that local governments will manipulate the public disclosure bar to escape liability). There is no suggestion that this has occurred in those Circuits that have long held that FOIA responses are "reports" within the meaning of the public disclosure bar.B Even if we accepted these extratextual arguments, Kirk and his amici have provided no principled way to define "report" to exclude FOIA responses without excluding other documents that are indisputably reports. The Government, for example, struggled to settle on a single definition. Compare Brief for United States as Amicus Curiae 19 ("report" must be read to "reflect a focus on situations in which the government is conducting, or has completed, some focused inquiry or analysis concerning the relevant facts") with id., at 21 ("A FOIA response is not a 'report' ... because the federal agency is not charged with uncovering the truth of any matter"), and Tr. of Oral Arg. 33 ("[T]he way to think about it is whether or not the agency ... is engaging in a substantive inquiry into and a substantive analysis of information"). It is difficult to see how the Department of Justice's "Annual Report" of FOIA statistics — something that is indisputably a Government report — would qualify under the latter two definitions. See Dept. of Justice, Freedom of Information Act Annual Report, Fiscal Year 2010, http://www.justice.gov/oip/ annual_report/2010/cover.htm (as visited May 12, 2011, and available in Clerk of Court's case file); see also Tr. of Oral Arg. 19 (Kirk conceding that the DOJ annual report is a report). And even if the first definition arguably encompasses that report, it would seem also to include FOIA responses, which convey the results of a Government agency's "focused inquiry." Kirk also was unable to articulate a workable definition. His various proposed definitions suffer the same deficiencies as the Government's. Compare Brief for Respondent 27 and Tr. of Oral Arg. 17-18 with Brief for Respondent 34-39 and Tr. of Oral Arg. 23. Kirk's first suggestion would exclude "a lot of things that are labeled ... report," id., at 22, and the second — the definition advanced by the Court of Appeals — would seem to include written FOIA responses, id., at 28-29. In the end, it appears that the "only argument is that FOIA is a different kind of mission"--"a special case." Id., at 31. We see no basis for that distinction and adhere to the principle that undefined statutory terms carry their ordinary meaning.* * * The DOL's three written FOIA responses in this case, along with the accompanying records produced to Mrs. Kirk, are reports within the meaning of the public dis-closure bar. Whether Kirk's suit is "based upon ... allegations or transactions" disclosed in those reports is a question for the Court of Appeals to resolve on remand. The judgment of the United States Court of Appeals for the Second Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered. Justice Kagan took no part in the consideration or decision of this case.SCHINDLER ELEVATOR CORPORATION, PETI-TIONER v. UNITED STATES ex rel. DANIEL KIRKon writ of certiorari to the united states court of appeals for the second circuit[May 16, 2011] Justice Ginsburg, with whom Justice Breyer and Justice Sotomayor join, dissenting. The Veteran Era Veterans' Readjustment Assistance Act of 1972 (VEVRAA) requires federal contractors to certify, each year, the number of "qualified covered veterans" they employ and related information. 38 U. S. C. §4212(d); 48 CFR §§22.1310(b) and 52.222-37(c) (2008). Respondent Daniel A. Kirk, a Vietnam War veteran and a former employee of petitioner Schindler Elevator Corporation (Schindler), had cause to believe, based on his own experience and observations, that Schindler failed to meet VEVRAA's annual information-reporting requirements. To confirm and support his on-the-job observations, Kirk obtained, through several Freedom of Information Act (FOIA) requests to the Department of Labor (DOL), copies of Schindler's VEVRAA filings. The DOL responses revealed that, in some years, Schindler filed no information, while in some other years, the corporation filed false information. Armed with the DOL's confirmation of his own impressions, Kirk commenced suit against Schindler under the federal False Claims Act (FCA), 31 U. S. C. §3729 et seq. In a carefully developed, highly persuasive opinion, the Second Circuit explained why a federal agency's response to a FOIA request should not automatically qualify as a "report, hearing, audit, or investigation" preclusive of a whistleblower's lawsuit under the public disclosure bar of the FCA, §3730(e)(4). I would affirm the Second Circuit's judgment as faithful to the text, context, purpose, and history of the FCA's public disclosure bar. The Court finds no "textual basis" for the Second Circuit's interpretation of the statutory language. Ante, at 6. But the Court of Appeals' opinion considered text as well as context. Leaving aside the term "report," the court explained:"All of the other terms in [§3730(e)(4)(A)'s] list of enumerated sources connote the synthesis of information in an investigatory context. '[C]riminal, civil, [and] administrative hearings,' for instance, all entail a government inquiry into a given subject, here into an alleged case of fraud. Similarly, government 'hearing[s and] audit[s]' are processes by which information is compiled with the concerted aim of deepening a government entity's knowledge of a given subject or, often, determining whether a party is in compliance with applicable law... . "In this context, the term 'report' most readily bears a narrower meaning than simply 'something that gives information.' Rather, it connotes the compilation or analysis of information with the aim of synthesizing that information in order to serve some end of the government, as in a 'hearing' or 'audit.' It does not naturally extend to cover the mechanistic production of documents in response to a FOIA request made by a member of the public." 601 F. 3d 94, 107 (2010) (citations omitted).Focusing on the FOIA requests in this case, the Court of Appeals observed that DOL's responses did not "synthesize the documents or their contents with the aim of itself gleaning any insight or information, as ... it necessarily would in conducting a 'hearing' or 'audit.' " Id., at 108. Far from "compil[ing] or synthesiz[ing] information to serve its own investigative or analytic ends," id., at 111, DOL merely assembled and duplicated records, or noted the absence of records. Contrary to the Court's assertion, moreover, the Second Circuit was mindful of the "error we reversed in Graham County [Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. ___ (2010)]," ante, at 6; the Court of Appeals used the noscitur a sociis canon only "as a guide in sifting through the common understandings of 'report' and 'investigation' to discover their intended meaning within the FCA." 601 F. 3d, at 108, n. 6. The court explained:"We ... have not used the canon to impose commonality on terms that 'do not share any ... core of meaning,' Graham County, [559 U. S., at ___, n. 7 (slip op., at 7, n. 7)]. To the contrary, the terms 'hearing,' 'report,' 'audit,' and 'investigation' all refer to processes of uncovering and analyzing information or to the products of those processes. Our interpretation focuses on their shared 'core of meaning.' " Ibid. The Court faults the Court of Appeals for not considering §3730(e)(4)(A)'s "reference to 'news media,' " ante, at 7, suggesting that this omission overlooked Graham County's observation that "all of the sources [of public disclosure] listed in §3730(e)(4)(A) provide interpretive guidance." 559 U. S., at ___ (slip op., at 8). Schindler did not make this argument below. In any event, the point would have been unavailing. Disclosures "of allegations or transactions ... from the news media," §3730(e)(4)(A) (emphasis added), share a common core of meaning with disclosures in other sources that involve "processes of uncovering and analyzing information or ... the products of those processes." 601 F. 3d, at 108, n. 6. The Court regards the case Kirk has brought as "a classic example of the 'opportunistic' litigation that the public disclosure bar is designed to discourage." Ante, at 10. But as the Second Circuit observed:"[T]he facts of this case belie the assertion that individuals who are not original sources and who obtain information through FOIA requests will generally not be persons with firsthand knowledge of fraud but rather will be opportunistic litigators. The facts also illustrate how an overbroad reading of the jurisdictional bar would prevent an individual with independent but partial knowledge of a possible fraud would be barred from bringing a lawsuit that is neither parasitic nor frivolous." 601 F. 3d, at 110 (citation omitted). By ranking DOL's ministerial response an "administrative ... report," akin to a "Government Accounting Office report," §3730(e)(4)(A) (footnote omitted), the Court weakens the force of the FCA as a weapon against fraud on the part of Government contractors. Why should a whistleblower attentive to the heightened pleading standards of Federal Rule of Civil Procedure 9(b) be barred from court if he seeks corroboration for his allegations, as Kirk did, through a FOIA request simply for copies of a contractor's filings? After today's decision, which severely limits whistleblowers' ability to substantiate their allegations before commencing suit, that question is worthy of Congress' attention.FOOTNOTESFootnote 1 During the pendency of this case, the Patient Protection and Affordable Care Act, 124 Stat. 119, amended the public disclosure bar. Because the amendments are not applicable to pending cases, Graham County Soil and Water Conservation Dist. v. United States ex rel. Wilson, 559 U. S. ___, ___, n. 1 (2010) (slip op., at 1, n. 1), this opinion refers to the statute as it existed when the suit was filed.Footnote 2 The facts in this Part, which we must accept as true, are taken from the amended complaint and the filings submitted in opposition to Schindler's motion to dismiss.Footnote 3 Kirk filed a complaint with the Department of Labor's Office of Federal Contract Compliance Programs (OFCCP), claiming that he had been "improperly demoted and constructively terminated by Schindler despite his status as a Vietnam era veteran." App. 23a. The OFCCP investigated Schindler's compliance with VEVRAA and found insufficient evidence to support Kirk's claim. In November 2009, the Department of Labor affirmed the OFCCP's finding. 601 F. 3d 94, 99 (CA2 2010).Footnote 4 Because we conclude that a written response to a FOIA request qualifies as a "report" within the meaning of the public disclosure bar, we need not address whether an agency's search in response to a FOIA request also qualifies as an "investigation."Footnote 5 Although the statute refers to the "Government Accounting Office," it is undisputed that Congress meant the General Accounting Office, also known as GAO and now renamed the Government Accountability Office. See Graham County, 559 U. S., at ___, n. 6 (slip op., at 6, n. 6).Footnote 6 It is irrelevant whether a particular record is itself a report. The attached records do not "becom[e]" reports, 601 F. 3d, at 109, but simply are part of a report.Footnote 7 There is no merit to the suggestion that the public disclosure bar is intended only to exclude qui tam suits that "ride the investigatory coattails of the government's own processes." Brief for Taxpayers Against Fraud Education Fund as Amicus Curiae 25, 26; see Graham County, 559 U. S., at ___ (slip op., at 19) (rejecting the argument that the public disclosure bar applies only to allegations or transactions that "have landed on the desk of a DOJ lawyer").Footnote 8 An "original source" is "an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information." §3730(e)(4)(B). Some Courts of Appeals have narrowly construed the exception to limit "original sources" to those who were the cause of the public disclosure, while others have been more generous. See United States ex rel. Duxbury v. Ortho Biotech Prods., L. P., 579 F. 3d 13, 22 (CA1 2009) (describing a three-way split among the Courts of Appeals). That question is not before us, and we do not decide it.

Following his arrest for driving under the influence of alcohol, respondent Wells gave the Florida Highway Patrol permission to open the trunk of his impounded car. An inventory search of the car turned up two marijuana cigarette butts in an ashtray and a locked suitcase in the trunk. The suitcase was opened, and a considerable amount of marijuana was discovered. After the state trial court denied Wells' motion to suppress the marijuana on the ground that it was seized in violation of the Fourth Amendment, he pleaded nolo contendere to a charge of possession of a controlled substance, but retained his right to appeal the denial of the motion to suppress. The intermediate appellate court held, inter alia, that the trial court erred in denying suppression of the marijuana found in the suitcase. The State Supreme Court affirmed, noting the absence of any Highway Patrol policy on the opening of closed containers found during inventory searches, and holding that Colorado v. Bertine, , requires police to mandate either that all containers be opened during such searches, or that no containers be opened, leaving no room for discretion on the part of individual officers.Held: Absent any Highway Patrol policy with respect to the opening of closed containers encountered during an inventory search, the instant search was insufficiently regulated to satisfy the Fourth Amendment. Requiring standardized criteria or established routine as to such openings prevents individual police officers from having so much latitude that inventory searches are turned into a ruse for a general rummaging in order to discover incriminating evidence. However, denying, as did the State Supreme Court, police officers all discretion is at odds with Bertine. While an "all or nothing" policy is permissible, one that allows a police officer sufficient latitude to determine whether a particular container should be opened in light of the nature of the search and characteristics of the container itself does not violate the Fourth Amendment. Pp. 3-5. 539 So.2d 464, affirmed.REHNQUIST, C. J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. BRENNAN, J., filed an opinion concurring in the judgment, in which MARSHALL, J., joined, post, p. 5. BLACKMUN, J., post, p. 10, and STEVENS, J., post, p. 12, filed opinions concurring in the judgment.Michael J. Neimand, Assistant Attorney General of Florida, argued the cause for petitioner. With him on the brief were Robert A. Butterworth, Attorney General, and Enoch J. Whitney.Huntley Johnson argued the cause for respondent. With him on the brief was Fletcher N. Baldwin, Jr.CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.A Florida Highway Patrol trooper stopped respondent Wells for speeding. After smelling alcohol on Wells' breath, the trooper arrested Wells for driving under the influence. Wells then agreed to accompany the trooper to the station to take a breathalyzer test. The trooper informed Wells that the car would be impounded and obtained Wells' permission to open the trunk. At the impoundment facility, an inventory search of the car turned up two marijuana cigarette butts in an ashtray and a locked suitcase in the trunk. Under the trooper's direction, employees of the facility forced open the suitcase and discovered a garbage bag containing a considerable amount of marijuana.Wells was charged with possession of a controlled substance. His motion to suppress the marijuana on the ground that it was seized in violation of the Fourth Amendment to the United States Constitution was denied by the trial court. He thereupon pleaded nolo contendere to the charge but reserved his right to appeal the denial of the motion to suppress. On appeal, the Florida District Court of Appeal for the Fifth District held, inter alia, that the trial court erred in denying suppression of the marijuana found in the suitcase. Over a dissent, the Supreme Court of Florida affirmed. 539 So.2d 464, 469 (1989). We granted certiorari, , and now affirm (although we disagree with part of the reasoning of the Supreme Court of Florida).The Supreme Court of Florida relied on the opinions in Colorado v. Bertine, ; id., at 376 (BLACKMUN, J., concurring). Referring to language in the Bertine concurrence and a footnote in the majority opinion, the court held that"[i]n the absence of a policy specifically requiring the opening of closed containers found during a legitimate inventory search, Bertine prohibits us from countenancing the procedure followed in this instance." 539 So.2d, at 469. According to the court, the record contained no evidence of any Highway Patrol policy on the opening of closed containers found during inventory searches. Ibid. The court added, however:"The police under Bertine must mandate either that all containers will be opened during an inventory search, or that no containers will be opened. There can be no room for discretion." Ibid. While this latter statement of the Supreme Court of Florida derived support from a sentence in the Bertine concurence taken in isolation, we think it is at odds with the thrust of both the concurrence and the opinion of the Court in that case. We said in Bertine:"Nothing in [South Dakota v.] Opperman[, ,] or [Illinois v.] Lafayette[, ,] prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria and on the basis of something other than suspicion of evidence of criminal activity." 479 U.S., at 375. Our view that standardized criteria, ibid., or established routine, Illinois v. Lafayette, , must regulate the opening of containers found during inventory searches is based on the principle that an inventory search must not be a ruse for a general rummaging in order to discover incriminating evidence. The policy or practice governing inventory searches should be designed to produce an inventory. The individual police officer must not be allowed so much latitude that inventory searches are turned into "a purposeful and general means of discovering evidence of crime," Bertine, 479 U.S., at 376 (BLACKMUN, J., concurring).But in forbidding uncanalized discretion to police officers conducting inventory searches, there is no reason to insist that they be conducted in a totally mechanical "all or nothing" fashion. "[I]nventory procedures serve to protect an owner's property while it is in the custody of the police, to insure against claims of lost, stolen, or vandalized property, and to guard the police from danger." Id., at 372; see also South Dakota v. Opperman, . A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself. Thus, while policies of opening all containers or of opening no containers are unquestionably permissible, it would be equally permissible, for example, to allow the opening of closed containers whose contents officers determine they are unable to ascertain from examining the containers' exteriors. The allowance of the exercise of judgment based on concerns related to the purposes of an inventory search does not violate the Fourth Amendment.In the present case, the Supreme Court of Florida found that the Florida Highway Patrol had no policy whatever with respect to the opening of closed containers encountered during an inventory search. We hold that absent such a policy, the instant search was not sufficiently regulated to satisfy the Fourth Amendment and that the marijuana which was found in the suitcase, therefore, was properly suppressed by the Supreme Court of Florida. Its judgment is therefore Affirmed. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in the judgment.I agree with the Court that the judgment of the Florida Supreme Court should be affirmed because the Florida Highway Patrol had no policy at all with respect to opening closed containers. As the majority recognizes, see ante, at 4 and this page, the search was therefore unconstitutional under any reading of our cases. See Colorado v. Bertine, (opening closed container found in a vehicle during an inventory search constitutional only because policy mandated opening of such containers). Our cases have required that inventory searches be "sufficiently regulated," ante, this page, so as to avoid the possibility that police will abuse their power to conduct such a search. See South Dakota v. Opperman, (Powell, J., concurring) ("[N]o significant discretion is placed in the hands of the individual officer: he usually has no choice as to the subject of the search or its scope").The facts of this case demonstrate a prime danger of insufficiently regulated inventory searches: police may use the excuse of an "inventory search" as a pretext for broad searches of vehicles and their contents. In this case, there was no evidence that the inventory search was done in accordance with any standardized inventory procedure. Although the State characterized the search as an inventory search in the trial court, it did not point to any standard policy governing inventory searches of vehicles (much less to any policy governing the opening of closed containers) until the case reached the Florida Supreme Court. At that time, which was after our decision in Bertine, supra, the Florida Highway Patrol entered the case as amicus curiae and argued that Chapter 16 of the "Florida Highway Patrol Forms and Procedural Manual" contained the standard policy that guided the conduct of the search in this case. The Florida Supreme Court concluded that the manual did not provide any policy for the opening of closed containers. App. 256. But it now appears that the Florida Supreme Court may have been under the misapprehension that the manual was in effect at the time of the search in this case. See Tr. of Oral Arg. 30-31. The State conceded at oral argument before this Court that the manual was not in effect at the time of the search in this case, but argued nonetheless that the officer had performed the search according to "standard operating procedures" that were later incorporated into the Highway Patrol Manual. See id., at 17 ("The rules and regulations which ... came into effect shortly thereafter, merely codified what the Florida Highway Patrol was doing to all procedures [sic] during that period of time"). But the State did not offer any evidence at the suppression hearing to support a finding that Trooper Adams performed the inventory according to "standard operating procedures." Trooper Adams testified that he asked his immediate superior whether he should impound and inventory the car but that his superior left it to Adams' discretion, stating that he found nothing suspicious about the car. Trooper Adams testified that he "took it upon [himself] to go ahead and have the car towed." App. 88. He also testified that he thought that opening the suitcase was part of a proper inventory but that he did not ask anyone else's opinion until after the search was completed. Id., at 82-83. He testified "Well, I had to take my chances." Id., at 83.In addition, there was no evidence that an inventory was actually done in this case: the State introduced neither an inventory sheet nor any testimony that the officer actually inventoried the items found in respondent's car. Tr. of Oral Arg. 5, 25-26. Rather, the testimony at the suppression hearing suggests that the officer used the need to "inventory" as an excuse to search for drugs. The testimony establishes that after arresting respondent for driving under the influence of alcohol and accompanying him to the station house, Trooper Adams returned to the impound lot to conduct the inventory search at 1:30 a. m. Grover Bryan, who assisted the state trooper with the inventory, testified at the hearing that Trooper Adams told him that "he wanted to inventory the car good, he wanted to go through it real good because he felt that there was drugs in it." App. 141. According to Bryan, Adams' desire to inventory the car stemmed from the fact that there was a large amount of cash lying on the floor of the car when respondent was arrested. Bryan testified that Adams insisted that contraband would be found in the car because "[t]here ain't nobody runs around with that kind of money in the floorboard unless they're dealing drugs or something like that." Id., at 142; see ibid. ("[H]e felt that the money that they had found was from a drug deal"). When they finally found the locked suitcase in the trunk, Bryan testified that Adams "want[ed] in the suitcase" because he "had a strong suspicion there was drugs in that car and it was probably in that suitcase." Id., at 145. The men then spent 10 minutes prying open the lock on the suitcase with two knives. App. 82, 147. Bryan testified that once they opened the suitcase and found a bag of marijuana inside, "[Adams] was quite excited. He said `there it is.'" Id., at 147. See also Tr. of Oral Arg. 24 ("Well, to be quite frank, the officer as he got further and further along in his search, got hungrier and hungrier").The majority finds it unnecessary to recount these facts because it affirms the Florida Supreme Court on the narrow ground, clearly established by Opperman and Bertine, that police may not be given total discretion to decide whether to open closed containers found during an inventory search. With this much I agree. Like JUSTICE BLACKMUN, post, at 11-12, however, I cannot join the majority opinion because it goes on to suggest that a State may adopt an inventory policy that vests individual police officers with some discretion to decide whether to open such containers. See ante, at 4 ("A police officer may be allowed sufficient latitude to determine whether a particular container should or should not be opened in light of the nature of the search and characteristics of the container itself"). This suggestion is pure dictum given the disposition of the case. But as JUSTICE BLACKMUN notes, post, at 11, there is a danger that this dictum will be relied on by lower courts in reviewing the constitutionality of particular inventory searches, or even by local policymakers drafting procedures for police to follow when performing inventories of impounded vehicles. Thus, I write separately to emphasize that the majority's suggestion is inconsistent with the reasoning underlying our inventory search cases and relies on a mischaracterization of the holding in Bertine.Our cases clearly hold that an inventory search is reasonable under the Fourth Amendment only if it is done in accordance with standard procedures that limit the discretion of the police. See Opperman, 428 U.S., at 384 (Powell, J., concurring). In Bertine, the Court held that the police may open closed containers found within an impounded vehicle only if the inventory policy mandates the opening of all such containers. See 479 U.S., at 374, n. 6 ("We emphasize that, in this case, the trial court found that the Police Department's procedures mandated the opening of closed containers and the listing of their contents"). Contrary to the majority's assertion today, ante, at 3, Bertine did not establish that police may exercise discretion with respect to the opening of closed containers during an inventory search. The statement in Bertine that "[n]othing in Opperman ... prohibits the exercise of police discretion so long as that discretion is exercised according to standard criteria," 479 U.S., at 375, was made in response to an argument that the inventory search was unconstitutional because the police had some discretion to determine whether to impound the car. The Court's conclusion that the opening of defendant's backpack was constitutional was clearly premised on the city's inventory policy that left no discretion to individual police officers as to the opening of containers found inside a car once it was impounded. See id., at 374, n. 6. JUSTICE BLACKMUN's concurrence in Bertine could not be clearer: "[I]t is permissible for police officers to open closed containers in an inventory search only if they are following standard police procedures that mandate the opening of such containers in every impounded vehicle." Id., at 377 (emphasis added).1 Opening a closed container constitutes a great intrusion into the privacy of its owner even when the container is found in an automobile. See Arkansas v. Sanders, ; United States v. Chadwick, . For this reason, I continue to believe that in the absence of consent or exigency, police may not open a closed container found during an inventory search of an automobile. See Bertine, 479 U.S., at 387 (MARSHALL, J., joined by BRENNAN, J., dissenting).2 In any event, in Bertine, the Court recognized that opening a container constitutes such a great intrusion that the discretion of the police to do so must be circumscribed sharply to guard against abuse. If the Court wishes to revisit that holding, it must wait for another case. Attempting to cast doubt on the vitality of the holding in Bertine in this otherwise easy case is not justified.

Under Illinois' implied-consent statute, if a driver, arrested for driving while intoxicated, refuses to take a breath-analysis test, the arresting officer must file with the clerk of the appropriate circuit court an affidavit that includes the statement that the officer had "reasonable cause to believe the person was driving the motor vehicle ... while under the influence of intoxicating liquor." The clerk must then notify the arrestee that his license will be suspended unless he requests a hearing within a specified time. Respondent refused to take a breath-analysis test after he was arrested for driving under the influence of intoxicating liquor, and the arresting officer filed an affidavit that included the assertion that at the time of the arrest he had "reasonable grounds to believe that said person was driving a motor vehicle in this State while under the influence of intoxicating liquor." Respondent exercised his statutory right to a hearing before suspension of his license. At the hearing, the judge found that the officer's affidavit did not comply with the statute, and entered an order denying the State's request for suspension of respondent's license. The Illinois Appellate Court, although concluding that the affidavit literally complied with the statute's requirements, held that the affidavit was insufficient under the Fourth and Fourteenth Amendments, and that the statute would be constitutional only if it required an arresting officer to set out in his affidavit the underlying circumstances which provided him with a reasonable belief that the arrestee was driving under the influence of intoxicating liquor.Held: Under the test set forth in Mathews v. Eldridge, , the Due Process Clause of the Fourteenth Amendment does not require an arresting officer, in enforcing Illinois' implied-consent statute, to recite in his affidavit the specific evidentiary matters constituting the underlying circumstances which provided him with a reasonable belief that the arrestee was driving under the influence of intoxicating liquor. The driver's right to a hearing before he may be deprived of his license for failing to submit to a breath-analysis test accords him all of the process that the Federal Constitution assures. Cf. Mackey v. Montrym, . Certiorari granted; 107 Ill. App. 3d 81, 437 N. E. 2d 364, reversed and remanded. PER CURIAM.An Illinois statute, Ill. Rev. Stat, ch. 95 1/2, § 11-501.1 (1981), provides that any person who drives an automobile in that State consents to take a breath-analysis test when requested to do so by an officer as incident to an arrest for driving while intoxicated.1 The statute also prescribes the manner in which the test is to be administered and provides a nine-point list of matters of which the arresting officer is to inform the arrestee, including the right to refuse to submit to a breath analysis and the fact that such a refusal may be admitted in evidence against him "in any hearing concerning the suspension, revocation or denial of his license or permit." § 11-501.1(a)(4). Finally relevant for our purposes is subsection (d) of § 11-501.1, which provides in pertinent part: "The arresting officer shall file with the Clerk of the Circuit Court for the county in which the arrest was made, a sworn statement naming the person refusing to take and complete the test requested under the provisions of this Section... . Such sworn statement shall include a statement that the arresting officer had reasonable cause to believe the person was driving the motor vehicle within this State while under the influence of intoxicating liquor ... . "The Clerk shall thereupon notify such person in writing that his privilege to operate a motor vehicle will be suspended unless, within 28 days from the date of mailing of the notice, he shall request in writing a hearing thereon... . "... Such hearing shall proceed in the Court in the same manner as other civil proceedings, except that the scope of such proceedings shall cover only the issues of whether the person was placed under arrest for [driving while intoxicated], whether the arresting officer had reasonable grounds to believe that such person was driving while under the influence of intoxicating liquor, whether the person was informed orally and in writing as provided in paragraph (a) that his privilege to operate a motor vehicle would be suspended if he refused to submit to and complete the test and whether, after being so advised, he refused to submit to and complete the test upon request of the officer."2 Respondent Milton D. Batchelder was stopped while driving his automobile by an officer of the Peoria, Illinois, Police Department after the officer observed respondent driving in a reckless and erratic manner. After completing the stop, the officer approached respondent, determined that he was intoxicated, and arrested him on the charge of driving under the influence of intoxicating liquor. The officer thereafter requested that respondent take a breath-analysis test. Respondent refused. The officer then executed and filed a sworn statement that read in pertinent part: "I hereby certify that I have placed the above-named person under arrest, and that I had at the time of arrest reasonable grounds to believe that said person was driving a motor vehicle in this State while under the influence of intoxicating liquor in that: TRAVELING TOO FAST IN ALLEY WITH PEDESTRIANS AROUND, CROSSED WALNUT W/O SLOWING, MAINTAINED SPEED BEHIND SLIPPER CLUB THEN PARKED ABRUPTLY BEHIND 519 S. W. ADAMS. I further certify that said person did willfully refuse to submit to the breath analyses when requested to do so in accordance with Section 11-501.1 of the Illinois Vehicle Code, after being informed of the possible consequences of his or her refusal." Pet. for Cert. 5-6. To avoid having his license automatically suspended, respondent exercised his statutory right to request a hearing pursuant to § 11-501.1(d).Prior to taking evidence, the judge presiding at the hearing asked if there were any motions. Respondent's counsel moved to dismiss the officer's affidavit, quoted above, on the ground that it did not state any facts showing that respondent was under the influence of intoxicating liquor at the time of his arrest. The judge found that the affidavit did not comply with § 11-501.1(d) because it failed to state facts showing that respondent was under the influence of intoxicating liquor at the time of his arrest. An order was entered denying the State's request for suspension of respondent's license.The State appealed and the Appellate Court of Illinois, Third Judicial District, agreed with the trial court that the facts stated in the affidavit were insufficient to support the conclusion that respondent was intoxicated at the time he was arrested. 107 Ill. App. 3d 81, 437 N. E. 2d 364 (1982). The Appellate Court, however, held that the affidavit literally complied with the requirements of § 11-501.1(d); that subsection requires only that the officer's affidavit state that he "had reasonable cause to believe the person was driving ... while under the influence of intoxicating liquor." The affidavit nonetheless was deemed "insufficient ... due to its failure to comport with the United States Constitution, specifically, the fourth and fourteenth amendments thereof." Id., at 83, 437 N. E. 2d, at 366.Relying on our decision in Delaware v. Prouse, , the Appellate Court opined that "[t]he fourth and fourteenth amendments to the United States Constitution pertain to this situation because stopping an automobile and detaining its occupants constitute a `seizure' within the meaning of those amendments ... ." 107 Ill. App. 3d, at 84, 437 N. E. 2d, at 367. The court also relied on Terry v. Ohio, , for the proposition that "[t]he permissibility of a particular law enforcement practice is judged by balancing its intrusion on the individual's fourth amendment interests against its promotion of legitimate governmental interests." 107 Ill. App. 3d, at 84, 437 N. E. 2d, at 367. Applying this standard here, the Appellate Court held that § 11-501.1(d) is constitutional only if it requires an arresting officer to set out, in his affidavit prepared pursuant to § 11-501.1(d), "the underlying circumstances which provided him with a reasonable belief that the arrested person was driving under the influence of intoxicating liquor." Ibid.In its application of the Federal Constitution to the Illinois implied-consent statute, the Appellate Court inexplicably failed to look to how this Court undertook a similar task in Mackey v. Montrym, . In Mackey, we held that the Massachusetts statute mandating suspension of a driver's license because of his refusal to take a breath-analysis test upon arrest for driving under the influence of intoxicating liquor did not violate the Due Process Clause of the Fourteenth Amendment. The procedures provided for in the Illinois implied-consent statute are, if anything, even more solicitous of due process values than those we upheld in Mackey.We noted in Mackey that "suspension of a driver's license for statutorily defined cause implicates a protectible property interest." Id., at 10. There, as here, the only question presented was "what process is due to protect against an erroneous deprivation of that interest." Ibid.3 We held that this question should be resolved by considering the following three factors:"`First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.'" Ibid., quoting Mathews v. Eldridge, . The analysis utilized in Mackey is equally applicable to and dispositive of this case.First, the driver's interest in the continued possession and use of his license was recognized in Mackey. However, in undertaking the first step of the Eldridge balancing process in Mackey, our concern centered on "[t]he duration of any potentially wrongful deprivation of a property interest," 443 U.S., at 12. Under the Massachusetts statute, the license of a driver who refused to submit to a breath-analysis test was suspended pending the outcome of a hearing that he was entitled to demand. There is no concern or risk under the Illinois statute that a driver will be deprived of his license prior to a hearing. Paragraph 11-501.1(d) clearly grants a driver the right to have a hearing before his license is suspended. Thus, respondent can seek no solace in the first step of the Eldridge analysis."[T]he second stage of the Eldridge inquiry requires consideration of the likelihood of an erroneous deprivation of the private interest involved as a consequence of the procedures used." Mackey v. Montrym, 443 U.S., at 13. In Mackey, we noted that "`something less than an evidentiary hearing is sufficient prior to adverse administrative action.'" Ibid., quoting Dixon v. Love, . Clearly, then, the fact that § 11-501.1(d) provides for a predeprivation hearing abundantly weights this second part of the Eldridge analysis in favor of the constitutionality of the Illinois implied-consent scheme."The third leg of the Eldridge balancing test requires us to identify the governmental function involved; also, to weigh in the balance the state interests served by the summary procedures used, as well as the administrative and fiscal burdens, if any, that would result from the substitute procedures sought." Mackey v. Montrym, supra, at 17. The interest of the States in depriving the drunk driver of permission to continue operating an automobile is particularly strong. We recently commented on "[t]he carnage caused by drunk drivers" in South Dakota v. Neville, . See also Mackey v. Montrym, supra, at 17-18; Perez v. Campbell, and 672 (1971) (BLACKMUN, J., concurring); Tate v. Short, (BLACKMUN, J., concurring); Breithaupt v. Abram, . Indeed, it is the effect of the Appellate Court's opinion on the Illinois effort to halt this "carnage" that has prompted our summary action in this case. That interest is substantially served by the procedures outlined in § 11-501.1(d). Again, the fact that we upheld a more summary procedure in Mackey refutes the suggestion that the Illinois scheme runs afoul of the Eldridge test. Accordingly, we conclude that the Constitution does not require arresting officers in Illinois, in enforcing that State's implied-consent statute, to recite in an affidavit the specific and concrete evidentiary matters constituting "the underlying circumstances which provided him with a reasonable belief that the arrested person was driving under the influence of intoxicating liquor." 107 Ill. App., at 84, 437 N. E. 2d, at 367. The driver's right to a hearing before he may be deprived of his license for failing to submit to a breath-analysis test accords him all of, and probably more than, the process that the Federal Constitution assures. The petition for certiorari is granted, the judgment of the Appellate Court of Illinois, Third Judicial District, is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

1. In a suit by a union under 301 (a) of the Labor Management Relations Act of 1947, a Federal District Court has authority to compel compliance by an employer with an agreement to arbitrate disputes arising under a collective bargaining agreement with the union. Textile Workers v. Lincoln Mills, ante, p. 448. Pp. 550-552.2. A decree under 301 (a) ordering enforcement of an arbitration provision in a collective bargaining agreement is a "final decision" within the meaning of 28 U.S.C. 1291 and is appealable. Pp. 551-552. 233 F.2d 104, affirmed.Douglas M. Orr argued the cause for petitioner. With him on the brief were William B. Mahoney and Daniel T. Drummond, Jr.David E. Feller argued the cause for respondents. With him on the brief were Sidney W. Wernick and Arthur J. Goldberg.MR. JUSTICE DOUGLAS delivered the opinion of the Court.This case, a companion case to No. 211, Textile Workers Union of America v. Lincoln Mills of Alabama, ante, p. 448, was brought by respondent-union in the District Court to compel specific performance of a grievance arbitration provision of a collective bargaining agreement between it and petitioner. The controversy arose over the layoff of employees incident to a curtailment of production and a liquidation of the plants in question. Petitioner terminated the employment of the men who were laid off. The respondent protested the termination of employment, claiming that the men should not have been discharged, thus preserving certain accrued rights to fringe benefits (such as insurance, pensions, and vacations) payable to laid-off employees.The District Court granted specific performance. 131 F. Supp. 767. The Court of Appeals affirmed, 233 F.2d 104, relying on its prior decision in General Electric Co. v. United Electrical Workers, ante, p. 547. For the reasons given in No. 211, Textile Workers Union of America v. Lincoln Mills of Alabama, ante, p. 448, we think the Court of Appeals was correct in affirming the District Court's judgment ordering enforcement of the agreement to arbitrate.There remains the question whether an order directing arbitration is appealable. This case is not comparable to Baltimore Contractors v. Bodinger, , which held that a stay pending arbitration was not a "final decision" within the meaning of 28 U.S.C. 1291. Nor need we consider cases like In re Pahlberg, 131 F.2d 968, and Schoenamsgruber v. Hamburg Line, , holding that an order directing arbitration under the United States Arbitration Act is not appealable. The right enforced here is one arising under 301 (a) of the Labor Management Relations Act of 1947. Arbitration is not merely a step in judicial enforcement of a claim nor auxiliary to a main proceeding, but the full relief sought. A decree under 301 (a) ordering enforcement of an arbitration provision in a collective bargaining agreement is, therefore, a "final decision" within the meaning of 28 U.S.C. 1291. Affirmed.MR. JUSTICE BURTON, whom MR. JUSTICE HARLAN joins, concurs in the result in this case for the reasons set forth in his concurrence in No. 211, Textile Workers Union of America v. Lincoln Mills of Alabama, ante, p. 459.MR. JUSTICE BLACK took no part in the consideration or decision of this case. [For dissenting opinion of MR. JUSTICE FRANKFURTER, see ante, p. 460.]

Following the Court of Appeals' affirmance of a District Court judgment invalidating enforced segregation on equal protection grounds, the city council of Jackson, Mississippi, desegregated its public recreational facilities, including its five public parks, except for their swimming pools. Stating that the pools could not be operated safely and economically on an integrated basis, the council closed four city-owned pools and surrendered its lease on a fifth, which the lessor, the YMCA, continued to operate for whites only. Petitioners, Negro citizens of Jackson, then brought this action, mainly on equal protection grounds, to force the city to reopen and operate the pools on a desegregated basis. The District Court held that there was no denial of equal protection. The Court of Appeals affirmed, rejecting the contention that since the pools had been closed to avoid desegregation there was a denial of equal protection. Held: 1. The closing of the pools to all persons did not constitute a denial of equal protection of the laws under the Fourteenth Amendment to the Negroes. Pp. 219-226. (a) This case is distinguishable from Griffin v. County School Board of Prince Edward County, , and Reitman v. Mulkey, , on both of which petitioners rely. In Griffin there were many facets of state involvement in the segregated operation of "private" schools; here there is no city involvement in the operation or funding of any pool. In Reitman the evidence was deemed sufficient to show that the State, by enacting a constitutional amendment establishing the right of private persons to discriminate in realty transactions, thereby repealing two housing anti-discrimination laws, was abetting refusal to rent apartments on racial grounds; here there was no evidence that the city conspired with the YMCA that its pool be segregated. Pp. 221-224. (b) In this case, where there was substantial evidence to support the council's stated reason for closing the pools and there was no evidence of state action affecting Negroes differently from whites, petitioners' contention that equal protection requirements were violated because the pool-closing decision was motivated by anti-integration considerations, must also fail since courts will not invalidate legislation based solely on asserted illicit motivation by the enacting legislative body. Pp. 224-226. 2. The city council's action in closing the pools instead of keeping them open on an integrated basis did not create a "badge or incident" of slavery in violation of the Thirteenth Amendment. Pp. 226-227. 419 F.2d 1222, affirmed.BLACK, J., delivered the opinion of the Court, in which BURGER, C. J., and HARLAN, STEWART, and BLACKMUN, JJ., joined. BURGER, C. J., post, p. 227, and BLACKMUN, J., post, p. 228, filed concurring opinions. DOUGLAS, J., filed a dissenting opinion, post, p. 231. WHITE, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 240. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and WHITE, JJ., joined, post, p. 271.Paul A. Rosen and William M. Kunstler argued the cause for petitioners. With them on the briefs were Ernest Goodman and Arthur Kinoy.William F. Goodman, Jr., argued the cause for respondents. On the brief were John E. Stone, Thomas H. Watkins, and Elizabeth W. Grayson.Briefs of amici curiae urging reversal were filed by Solicitor General Griswold, Assistant Attorney General Leonard, and Deputy Solicitor General Wallace for the United States, and by Armand Derfner for James Moore et al.MR. JUSTICE BLACK delivered the opinion of the Court.In 1962 the city of Jackson, Mississippi, was maintaining five public parks along with swimming pools, golf links, and other facilities for use by the public on a racially segregated basis. Four of the swimming pools were used by whites only and one by Negroes only. Plaintiffs brought an action in the United States District Court seeking a declaratory judgment that this state-enforced segregation of the races was a violation of the Thirteenth and Fourteenth Amendments, and asking an injunction to forbid such practices. After hearings the District Court entered a judgment declaring that enforced segregation denied equal protection of the laws but it declined to issue an injunction.1 The Court of Appeals affirmed, and we denied certiorari.2 The city proceeded to desegregate its public parks, auditoriums, golf courses, and the city zoo. However, the city council decided not to try to operate the public swimming pools on a desegregated basis. Acting in its legislative capacity, the council surrendered its lease on one pool and closed four which the city owned. A number of Negro citizens of Jackson then filed this suit to force the city to reopen the pools and operate them on a desegregated basis. The District Court found that the closing was justified to preserve peace and order and because the pools could not be operated economically on an integrated basis.3 It held the city's action did not deny black citizens equal protection of the laws. The Court of Appeals sitting en banc affirmed, six out of 13 judges dissenting.4 That court rejected the contention that since the pools had been closed either in whole or in part to avoid desegregation the city council's action was a denial of equal protection of the laws. We granted certiorari to decide that question. We affirm.IPetitioners rely chiefly on the first section of the Fourteenth Amendment which forbids any State to "deny to any person within its jurisdiction the equal protection of the laws." There can be no doubt that a major purpose of this amendment was to safeguard Negroes against discriminatory state laws - state laws that fail to give Negroes protection equal to that afforded white people. History shows that the achievement of equality for Negroes was the urgent purpose not only for passage of the Fourteenth Amendment but for the Thirteenth and Fifteenth Amendments as well. See, e. g., Slaughter-House Cases, 16 Wall. 36, 71-72 (1873). Thus the Equal Protection Clause was principally designed to protect Negroes against discriminatory action by the States. Here there has unquestionably been "state action" because the official local government legislature, the city council, has closed the public swimming pools of Jackson. The question, however, is whether this closing of the pools is state action that denies "the equal protection of the laws" to Negroes. It should be noted first that neither the Fourteenth Amendment nor any Act of Congress purports to impose an affirmative duty on a State to begin to operate or to continue to operate swimming pools. Furthermore, this is not a case where whites are permitted to use public facilities while blacks are denied access. It is not a case where a city is maintaining different sets of facilities for blacks and whites and forcing the races to remain separate in recreational or educational activities.5 See, e. g., Watson v. City of Memphis, ; Brown v. Board of Education, .Unless, therefore, as petitioners urge, certain past cases require us to hold that closing the pools to all denied equal protection to Negroes, we must agree with the courts below and affirm.IIAlthough petitioners cite a number of our previous cases, the only two which even plausibly support their argument are Griffin v. County School Board of Prince Edward County, , and Reitman v. Mulkey, . For the reasons that follow, however, neither case leads us to reverse the judgment here.6 A. In Griffin the public schools of Prince Edward County, Virginia, were closed under authority of state and county law, and so-called "private schools" were set up in their place to avoid a court desegregation order. At the same time, public schools in other counties in Virginia remained open. In Prince Edward County the "private schools" were open to whites only and these schools were in fact run by a practical partnership between State and county, designed to preserve segregated education. We pointed out in Griffin the many facets of state involvement in the running of the "private schools." The State General Assembly had made available grants of $150 per child to make the program possible. This was supplemented by a county grant program of $100 per child and county property tax credits for citizens contributing to the "private schools." Under those circumstances we held that the closing of public schools in just one county while the State helped finance "private schools" was a scheme to perpetuate segregation in education which constituted a denial of equal protection of the laws. Thus the Griffin case simply treated the school program for what it was - an operation of Prince Edward County schools under a thinly disguised "private" school system actually planned and carried out by the State and the county to maintain segregated education with public funds. That case can give no comfort to petitioners here. This record supports no intimation that Jackson has not completely and finally ceased running swimming pools for all time. Unlike Prince Edward County, Jackson has not pretended to close public pools only to run them under a "private" label. It is true that the Leavell Woods pool, previously leased by the city from the YMCA, is now run by that organization and appears to be open only to whites. And according to oral argument, another pool owned by the city before 1963 is now owned and operated by Jackson State College, a predominantly black institution, for college students and their guests.7 But unlike the "private schools" in Prince Edward County there is nothing here to show the city is directly or indirectly involved in the funding or operation of either pool.8 If the time ever comes when Jackson attempts to run segregated public pools either directly or indirectly, or participates in a subterfuge whereby pools are nominally run by "private parties" but actually by the city, relief will be available in the federal courts.B. Petitioners also claim that Jackson's closing of the public pools authorizes or encourages private pool owners to discriminate on account of race and that such "encouragement" is prohibited by Reitman v. Mulkey, supra.In Reitman, California had repealed two laws relating to racial discrimination in the sale of housing by passing a constitutional amendment establishing the right of private persons to discriminate on racial grounds in real estate transactions. This Court there accepted what it designated as the holding of the Supreme Court of California, namely that the constitutional amendment was an official authorization of racial discrimination which significantly involved the State in the discriminatory acts of private parties. 387 U.S., at 376-378, 380-381.In the first place there are no findings here about any state "encouragement" of discrimination, and it is not clear that any such theory was ever considered by the District Court. The implication of petitioners' argument appears to be that the fact the city turned over to the YMCA a pool it had previously leased is sufficient to show automatically that the city has conspired with the YMCA to deprive Negroes of the opportunity to swim in integrated pools. Possibly in a case where the city and the YMCA were both parties, a court could find that the city engaged in a subterfuge, and that liability could be fastened on it as an active participant in a conspiracy with the YMCA. We need not speculate upon such a possibility, for there is no such finding here, and it does not appear from this record that there was evidence to support such a finding. Reitman v. Mulkey was based on a theory that the evidence was sufficient to show the State was abetting a refusal to rent apartments on racial grounds. On this record, Reitman offers no more support to petitioners than does Griffin.IIIPetitioners have also argued that respondents' action violates the Equal Protection Clause because the decision to close the pools was motivated by a desire to avoid integration of the races. But no case in this Court has held that a legislative act may violate equal protection solely because of the motivations of the men who voted for it. The pitfalls of such analysis were set forth clearly in the landmark opinion of Mr. Chief Justice Marshall in Fletcher v. Peck, 6 Cranch 87, 130 (1810), where the Court declined to set aside the Georgia Legislature's sale of lands on the theory that its members were corruptly motivated in passing the bill.A similar contention that illicit motivation should lead to a finding of unconstitutionality was advanced in United States v. O'Brien, , where this Court rejected the argument that a defendant could not be punished for burning his draft card because Congress had allegedly passed the statute to stifle dissent. That opinion explained well the hazards of declaring a law unconstitutional because of the motivations of its sponsors. First, it is extremely difficult for a court to ascertain the motivation, or collection of different motivations, that lie behind a legislative enactment. Id., at 383, 384. Here, for example, petitioners have argued that the Jackson pools were closed because of ideological opposition to racial integration in swimming pools. Some evidence in the record appears to support this argument. On the other hand the courts below found that the pools were closed because the city council felt they could not be operated safely and economically on an integrated basis. There is substantial evidence in the record to support this conclusion. It is difficult or impossible for any court to determine the "sole" or "dominant" motivation behind the choices of a group of legislators. Furthermore, there is an element of futility in a judicial attempt to invalidate a law because of the bad motives of its supporters. If the law is struck down for this reason, rather than because of its facial content or effect, it would presumably be valid as soon as the legislature or relevant governing body repassed it for different reasons.It is true there is language in some of our cases interpreting the Fourteenth and Fifteenth Amendments which may suggest that the motive or purpose behind a law is relevant to its constitutionality. Griffin v. County School Board, supra; Gomillion v. Lightfoot, . But the focus in those cases was on the actual effect of the enactments, not upon the motivation which led the States to behave as they did. In Griffin, as discussed supra, the State was in fact perpetuating a segregated public school system by financing segregated "private" academies. And in Gomillion the Alabama Legislature's gerrymander of the boundaries of Tuskegee excluded virtually all Negroes from voting in town elections. Here the record indicates only that Jackson once ran segregated public swimming pools and that no public pools are now maintained by the city. Moreover, there is no evidence in this record to show that the city is now covertly aiding the maintenance and operation of pools which are private in name only. It shows no state action affecting blacks differently from whites. Petitioners have argued strenuously that a city's possible motivations to ensure safety and save money cannot validate an otherwise impermissible state action. This proposition is, of course, true. Citizens may not be compelled to forgo their constitutional rights because officials fear public hostility or desire to save money. Buchanan v. Warley, ; Cooper v. Aaron, ; Watson v. City of Memphis, . But the issue here is whether black citizens in Jackson are being denied their constitutional rights when the city has closed the public pools to black and white alike. Nothing in the history or the language of the Fourteenth Amendment nor in any of our prior cases persuades us that the closing of the Jackson swimming pools to all its citizens constitutes a denial of "the equal protection of the laws."IVFinally, some faint and unpersuasive argument has been made by petitioners that the closing of the pools violated the Thirteenth Amendment which freed the Negroes from slavery. The argument runs this way: The first Mr. Justice Harlan's dissent in Plessy v. Ferguson, , argued strongly that the purpose of the Thirteenth Amendment was not only to outlaw slavery but also all of its "badges and incidents." This broad reading of the amendment was affirmed in Jones v. Alfred H. Mayer Co., . The denial of the right of Negroes to swim in pools with white people is said to be a "badge or incident" of slavery. Consequently, the argument seems to run, this Court should declare that the city's closing of the pools to keep the two races from swimming together violates the Thirteenth Amendment. To reach that result from the Thirteenth Amendment would severely stretch its short simple words and do violence to its history. Establishing this Court's authority under the Thirteenth Amendment to declare new laws to govern the thousands of towns and cities of the country would grant it a lawmaking power far beyond the imagination of the amendment's authors. Finally, although the Thirteenth Amendment is a skimpy collection of words to allow this Court to legislate new laws to control the operation of swimming pools throughout the length and breadth of this Nation, the Amendment does contain other words that we held in Jones v. Alfred H. Mayer Co. could empower Congress to outlaw "badges of slavery." The last sentence of the Amendment reads: "Congress shall have power to enforce this article by appropriate legislation." But Congress has passed no law under this power to regulate a city's opening or closing of swimming pools or other recreational facilities.It has not been so many years since it was first deemed proper and lawful for cities to tax their citizens to build and operate swimming pools for the public. Probably few persons, prior to this case, would have imagined that cities could be forced by five lifetime judges to construct or refurbish swimming pools which they choose not to operate for any reason, sound or unsound. Should citizens of Jackson or any other city be able to establish in court that public, tax-supported swimming pools are being denied to one group because of color and supplied to another, they will be entitled to relief. But that is not the case here.The judgment is Affirmed.

The Rosenbergs had been sentenced to death for conspiracy to violate the Espionage Act of 1917, and the time of execution had been fixed for the week of June 15, 1953. As the Court was about to adjourn the October Term, 1952, on June 15, 1953, their counsel submitted a motion for leave to file a petition for an original writ of habeas corpus and stay of execution. Later that afternoon, the Court met in Special Term pursuant to a call by THE CHIEF JUSTICE having the approval of all the Associate Justices. All Members of the Court were present. Held: Leave to file petition for an original writ of habeas corpus denied.John F. Finerty submitted the motion for petitioners. With him on the motion was Emanuel H. Bloch.PER CURIAM.The motion for leave to file petition for an original writ of habeas corpus is denied.MR. JUSTICE BLACK dissents.MR. JUSTICE FRANKFURTER.The disposition of an application to this Court for habeas corpus is so rarely to be made by this Court directly that Congress has given the Court authority to transfer such an application to an appropriate district court. 28 U.S.C. 2241. I do not favor such a disposition of this application because the substance of the allegations now made has already been considered by the District Court for the Southern District of New York and on review by the Court of Appeals for the Second Circuit. Neither can I join the Court in denying the application without more. I would set the application down for hearing before the full Court tomorrow forenoon. Oral argument frequently has a force beyond what the written word conveys.

An Arizona statute known as S. B. 1070 was enacted in 2010 to address pressing issues related to the large number of unlawful aliens in the State. The United States sought to enjoin the law as preempted. The District Court issued a preliminary injunction preventing four of its provisions from taking effect. Section 3 makes failure to comply with federal alien-registration requirements a state misdemeanor; §5(C) makes it a misdemeanor for an unauthorized alien to seek or engage in work in the State; §6 authorizes state and local officers to arrest without a warrant a person "the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States"; and §2(B) requires officers conducting a stop, detention, or arrest to make efforts, in some circumstances, to verify the person's immigration status with the Federal Government. The Ninth Circuit affirmed, agreeing that the United States had established a likelihood of success on its preemption claims.Held: 1. The Federal Government's broad, undoubted power over immigration and alien status rests, in part, on its constitutional power to "establish an uniform Rule of Naturalization," Art. I, §8, cl. 4, and on its inherent sovereign power to control and conduct foreign relations, see Toll v. Moreno, 458 U. S. 1, 10. Federal governance is extensive and complex. Among other things, federal law specifies categories of aliens who are ineligible to be admitted to the United States, 8 U. S. C. §1182; requires aliens to register with the Federal Government and to carry proof of status, §§1304(e), 1306(a); imposes sanctions on employers who hire unauthorized workers, §1324a; and specifies which aliens may be removed and the procedures for doing so, see §1227. Removal is a civil matter, and one of its principal features is the broad discretion exercised by immigration officials, who must decide whether to pursue removal at all. Immigration and Customs Enforcement (ICE), an agency within the Department of Homeland Security, is responsible for identifying, apprehending, and removing illegal aliens. It also operates the Law Enforcement Support Center, which provides immigration status information to federal, state, and local officials around the clock. Pp. 2-7. 2. The Supremacy Clause gives Congress the power to preempt state law. A statute may contain an express preemption provision, see, e.g., Chamber of Commerce of United States of America v. Whiting, 563 U. S. ___, ___, but state law must also give way to federal law in at least two other circumstances. First, States are precluded from regulating conduct in a field that Congress has determined must be regulated by its exclusive governance. See Gade v. National Solid Wastes Management Assn., 505 U. S. 88, 115. Intent can be inferred from a framework of regulation "so pervasive . . . that Congress left no room for the States to supplement it" or where a "federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230. Second, state laws are preempted when they conflict with federal law, including when they stand "as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U. S. 52, 67. Pp. 7-8. 3. Sections 3, 5(C), and 6 of S. B. 1070 are preempted by federal law. Pp. 8-19. (a) Section 3 intrudes on the field of alien registration, a field in which Congress has left no room for States to regulate. In Hines, a state alien-registration program was struck down on the ground that Congress intended its "complete" federal registration plan to be a "single integrated and all-embracing system." 312 U. S., at 74. That scheme did not allow the States to "curtail or complement" federal law or "enforce additional or auxiliary regulations." Id., at 66-67. The federal registration framework remains comprehensive. Because Congress has occupied the field, even complementary state regulation is impermissible. Pp. 8-11. (b) Section 5(C)'s criminal penalty stands as an obstacle to the federal regulatory system. The Immigration Reform and Control Act of 1986 (IRCA), a comprehensive framework for "combating the employment of illegal aliens," Hoffman Plastic Compounds, Inc. v. NLRB, 535 U. S. 137, 147, makes it illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized workers, 8 U. S. C. §§1324a(a)(1)(A), (a)(2), and requires employers to verify prospective employees' employment authorization status, §§1324a(a)(1)(B), (b). It imposes criminal and civil penalties on employers, §§1324a(e)(4), (f), but only civil penalties on aliens who seek, or engage in, unauthorized employment, e.g., §§1255(c)(2), (c)(8). IRCA's express preemption provision, though silent about whether additional penalties may be imposed against employees, "does not bar the ordinary working of conflict pre-emption principles" or impose a "special burden" making it more difficult to establish the preemption of laws falling outside the clause. Geier v. American Honda Motor Co., 529 U. S. 861, 869-872. The correct instruction to draw from the text, structure, and history of IRCA is that Congress decided it would be inappropriate to impose criminal penalties on unauthorized employees. It follows that a state law to the contrary is an obstacle to the regulatory system Congress chose. Pp. 12-15. (c) By authorizing state and local officers to make warrantless arrests of certain aliens suspected of being removable, §6 too creates an obstacle to federal law. As a general rule, it is not a crime for a removable alien to remain in the United States. The federal scheme instructs when it is appropriate to arrest an alien during the removal process. The Attorney General in some circumstances will issue a warrant for trained federal immigration officers to execute. If no federal warrant has been issued, these officers have more limited authority. They may arrest an alien for being "in the United States in violation of any [immigration] law or regulation," for example, but only where the alien "is likely to escape before a warrant can be obtained." §1357(a)(2). Section 6 attempts to provide state officers with even greater arrest authority, which they could exercise with no instruction from the Federal Government. This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform an immigration officer's functions. This includes instances where the Attorney General has granted that authority in a formal agreement with a state or local government. See, e.g., §1357(g)(1). Although federal law permits state officers to "cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States," §1357(g)(10)(B), this does not encompass the unilateral decision to detain authorized by §6. Pp. 15-19. 4. It was improper to enjoin §2(B) before the state courts had an opportunity to construe it and without some showing that §2(B)'s enforcement in fact conflicts with federal immigration law and its objectives. Pp. 19-24. (a) The state provision has three limitations: A detainee is presumed not to be an illegal alien if he or she provides a valid Arizona driver's license or similar identification; officers may not consider race, color, or national origin "except to the extent permitted by the United States [and] Arizona Constitution[s]"; and §2(B) must be "implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens." P. 20. (b) This Court finds unpersuasive the argument that, even with those limits, §2(B) must be held preempted at this stage. Pp. 20-24. (1) The mandatory nature of the status checks does not interfere with the federal immigration scheme. Consultation between federal and state officials is an important feature of the immigration system. In fact, Congress has encouraged the sharing of information about possible immigration violations. See §§1357(g)(10)(A), 1373(c). The federal scheme thus leaves room for a policy requiring state officials to contact ICE as a routine matter. Cf. Whiting, 563 U. S., at ___. Pp. 20-21. (2) It is not clear at this stage and on this record that §2(B), in practice, will require state officers to delay the release of detainees for no reason other than to verify their immigration status. This would raise constitutional concerns. And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. But §2(B) could be read to avoid these concerns. If the law only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision would likely survive preemption — at least absent some showing that it has other consequences that are adverse to federal law and its objectives. Without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that conflicts with federal law. Cf. Fox v. Washington, 236 U. S. 273, 277. This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect. Pp. 22-24.641 F. 3d 339, affirmed in part, reversed in part, and remanded. Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, and Sotomayor, JJ., joined. Scalia, J., Thomas, J., and Alito, J., filed opinions concurring in part and dissenting in part. Kagan, J., took no part in the consideration or decision of the case.Opinion of the Court 567 U. S. ____ (2012)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. 11-182ARIZONA, et al., PETITIONERS v. UNITED STATESon writ of certiorari to the united states court of appeals for the ninth circuit[June 25, 2012] Justice Kennedy delivered the opinion of the Court. To address pressing issues related to the large number of aliens within its borders who do not have a lawful right to be in this country, the State of Arizona in 2010 enacted a statute called the Support Our Law Enforcement and Safe Neighborhoods Act. The law is often referred to as S. B. 1070, the version introduced in the state senate. See also H. 2162 (2010) (amending S. 1070). Its stated purpose is to "discourage and deter the unlawful entry and presence of aliens and economic activity by persons unlawfully present in the United States." Note following Ariz. Rev. Stat. Ann. §11-1051 (West 2012). The law's provisions establish an official state policy of "attrition through enforcement." Ibid. The question before the Court is whether federal law preempts and renders invalid four separate provisions of the state law.I The United States filed this suit against Arizona, seeking to enjoin S. B. 1070 as preempted. Four provisions of the law are at issue here. Two create new state offenses. Section 3 makes failure to comply with federal alien-registration requirements a state misdemeanor. Ariz. Rev. Stat. Ann. §13-1509 (West Supp. 2011). Section 5, in relevant part, makes it a misdemeanor for an unauthorized alien to seek or engage in work in the State; this provision is referred to as §5(C). See §13-2928(C). Two other provisions give specific arrest authority and investigative duties with respect to certain aliens to state and local law enforcement officers. Section 6 authorizes officers to arrest without a warrant a person "the officer has probable cause to believe . . . has committed any public offense that makes the person removable from the United States." §13-3883(A)(5). Section 2(B) provides that officers who conduct a stop, detention, or arrest must in some circumstances make efforts to verify the person's immigration status with the Federal Government. See §11-1051(B) (West 2012). The United States District Court for the District of Arizona issued a preliminary injunction preventing the four provisions at issue from taking effect. 703 F. Supp. 2d 980, 1008 (2010). The Court of Appeals for the Ninth Circuit affirmed. 641 F. 3d 339, 366 (2011). It agreed that the United States had established a likelihood of success on its preemption claims. The Court of Appeals was unanimous in its conclusion that §§3 and 5(C) were likely preempted. Judge Bea dissented from the decision to uphold the preliminary injunction against §§2(B) and 6. This Court granted certiorari to resolve important questions concerning the interaction of state and federal power with respect to the law of immigration and alien status. 565 U. S. ___ (2011).IIA The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. See Toll v. Moreno, 458 U. S. 1, 10 (1982); see generally S. Legomsky & C. Rodríguez, Immigration and Refugee Law and Policy 115-132 (5th ed. 2009). This authority rests, in part, on the National Government's constitutional power to "establish an uniform Rule of Naturalization," U. S. Const., Art. I, §8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations, see Toll, supra, at 10 (citing United States v. Curtiss-Wright Export Corp., 299 U. S. 304, 318 (1936)). The federal power to determine immigration policy is well settled. Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. See, e.g., Brief for Argentina et al. as Amici Curiae; see also Harisiades v. Shaughnessy, 342 U. S. 580, 588-589 (1952). Perceived mistreatment of aliens in the United States may lead to harmful reciprocal treatment of American citizens abroad. See Brief for Madeleine K. Albright et al. as Amici Curiae 24-30. It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States. See Chy Lung v. Freeman, 92 U. S. 275, 279-280 (1876); see also The Federalist No. 3, p. 39 (C. Rossiter ed. 2003) (J. Jay) (observing that federal power would be necessary in part because "bordering States . . . under the impulse of sudden irritation, and a quick sense of apparent interest or injury" might take action that would undermine foreign relations). This Court has reaffirmed that "[o]ne of the most important and delicate of all international relationships . . . has to do with the protection of the just rights of a country's own nationals when those nationals are in another country." Hines v. Davidowitz, 312 U. S. 52, 64 (1941). Federal governance of immigration and alien status is extensive and complex. Congress has specified categories of aliens who may not be admitted to the United States. See 8 U. S. C. §1182. Unlawful entry and unlawful reentry into the country are federal offenses. §§1325, 1326. Once here, aliens are required to register with the Federal Government and to carry proof of status on their person. See §§1301-1306. Failure to do so is a federal misdemeanor. §§1304(e), 1306(a). Federal law also authorizes States to deny noncitizens a range of public benefits, §1622; and it imposes sanctions on employers who hire unauthorized workers, §1324a. Congress has specified which aliens may be removed from the United States and the procedures for doing so. Aliens may be removed if they were inadmissible at the time of entry, have been convicted of certain crimes, or meet other criteria set by federal law. See §1227. Removal is a civil, not criminal, matter. A principal feature of the removal system is the broad discretion exercised by immigration officials. See Brief for Former Commissioners of the United States Immigration and Naturalization Service as Amici Curiae 8-13 (hereinafter Brief for Former INS Commissioners). Federal officials, as an initial matter, must decide whether it makes sense to pursue removal at all. If removal proceedings commence, aliens may seek asylum and other discretionary relief allowing them to remain in the country or at least to leave without formal removal. See §1229a(c)(4); see also, e.g., §§1158 (asylum), 1229b (cancellation of removal), 1229c (voluntary departure). Discretion in the enforcement of immigration law embraces immediate human concerns. Unauthorized workers trying to support their families, for example, likely pose less danger than alien smugglers or aliens who commit a serious crime. The equities of an individual case may turn on many factors, including whether the alien has children born in the United States, long ties to the community, or a record of distinguished military service. Some discretionary decisions involve policy choices that bear on this Nation's international relations. Returning an alien to his own country may be deemed inappropriate even where he has committed a removable offense or fails to meet the criteria for admission. The foreign state may be mired in civil war, complicit in political persecution, or enduring conditions that create a real risk that the alien or his family will be harmed upon return. The dynamic nature of relations with other countries requires the Executive Branch to ensure that enforcement policies are consistent with this Nation's foreign policy with respect to these and other realities. Agencies in the Department of Homeland Security play a major role in enforcing the country's immigration laws. United States Customs and Border Protection (CBP) is responsible for determining the admissibility of aliens and securing the country's borders. See Dept. of Homeland Security, Office of Immigration Statistics, Immigration Enforcement Actions: 2010, p. 1 (2011). In 2010, CBP's Border Patrol apprehended almost half a million people. Id., at 3. Immigration and Customs Enforcement (ICE), a second agency, "conducts criminal investigations involving the enforcement of immigration-related statutes." Id., at 2. ICE also operates the Law Enforcement Support Center. LESC, as the Center is known, provides immigration status information to federal, state, and local officials around the clock. See App. 91. ICE officers are responsible "for the identification, apprehension, and removal of illegal aliens from the United States." Immigration Enforcement Actions, supra, at 2. Hundreds of thousands of aliens are removed by the Federal Government every year. See id., at 4 (reporting there were 387,242 removals, and 476,405 returns without a removal order, in 2010).B The pervasiveness of federal regulation does not diminish the importance of immigration policy to the States. Arizona bears many of the consequences of unlawful immigration. Hundreds of thousands of deportable aliens are apprehended in Arizona each year. Dept. of Homeland Security, Office of Immigration Statistics, 2010 Yearbook of Immigration Statistics 93 (2011) (Table 35). Unauthorized aliens who remain in the State comprise, by one estimate, almost six percent of the population. See Passel & Cohn, Pew Hispanic Center, U. S. Unauthorized Immigration Flows Are Down Sharply Since Mid-Decade 3 (2010). And in the State's most populous county, these aliens are reported to be responsible for a disproportionate share of serious crime. See, e.g., Camarota & Vaughan, Center for Immigration Studies, Immigration and Crime: Assessing a Conflicted Situation 16 (2009) (Table 3) (estimating that unauthorized aliens comprise 8.9% of the population and are responsible for 21.8% of the felonies in Maricopa County, which includes Phoenix). Statistics alone do not capture the full extent of Arizona's concerns. Accounts in the record suggest there is an "epidemic of crime, safety risks, serious property damage, and environmental problems" associated with the influx of illegal migration across private land near the Mexican border. Brief for Petitioners 6. Phoenix is a major city of the United States, yet signs along an interstate highway 30 miles to the south warn the public to stay away. One reads, "DANGER — PUBLIC WARNING — TRAVEL NOT RECOMMENDED / Active Drug and Human Smuggling Area / Visitors May Encounter Armed Criminals and Smuggling Vehicles Traveling at High Rates of Speed." App. 170; see also Brief for Petitioners 5-6. The problems posed to the State by illegal immigration must not be underestimated. These concerns are the background for the formal legal analysis that follows. The issue is whether, under preemption principles, federal law permits Arizona to implement the state-law provisions in dispute.III Federalism, central to the constitutional design, adopts the principle that both the National and State Governments have elements of sovereignty the other is bound to respect. See Gregory v. Ashcroft, 501 U. S. 452, 457 (1991); U. S. Term Limits, Inc. v. Thornton, 514 U. S. 779, 838 (1995) (Kennedy, J., concurring). From the existence of two sovereigns follows the possibility that laws can be in conflict or at cross-purposes. The Supremacy Clause provides a clear rule that federal law "shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." Art. VI, cl. 2. Under this principle, Congress has the power to preempt state law. See Crosby v. National Foreign Trade Council, 530 U. S. 363, 372 (2000); Gibbons v. Ogden, 9 Wheat. 1, 210-211 (1824). There is no doubt that Congress may withdraw specified powers from the States by enacting a statute containing an express preemption provision. See, e.g., Chamber of Commerce of United States of America v. Whiting, 563 U. S. ___, ___ (2011) (slip op., at 4). State law must also give way to federal law in at least two other circumstances. First, the States are precluded from regulating conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance. See Gade v. National Solid Wastes Management Assn., 505 U. S. 88, 115 (1992). The intent to displace state law altogether can be inferred from a framework of regulation "so pervasive . . . that Congress left no room for the States to supplement it" or where there is a "federal interest . . . so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject." Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947); see English v. General Elec. Co., 496 U. S. 72, 79 (1990). Second, state laws are preempted when they conflict with federal law. Crosby, supra, at 372. This includes cases where "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc. v. Paul, 373 U. S. 132, 142-143 (1963), and those instances where the challenged state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress," Hines, 312 U. S., at 67; see also Crosby, supra, at 373 ("What is a sufficient obstacle is a matter of judgment, to be informed by examining the federal statute as a whole and identifying its purpose and intended effects"). In preemption analysis, courts should assume that "the historic police powers of the States" are not superseded "unless that was the clear and manifest purpose of Congress." Rice, supra, at 230; see Wyeth v. Levine, 555 U. S. 555, 565 (2009). The four challenged provisions of the state law each must be examined under these preemption principles.IVASection 3 Section 3 of S. B. 1070 creates a new state misdemeanor. It forbids the "willful failure to complete or carry an alien registration document . . . in violation of 8 United States Code section 1304(e) or 1306(a)." Ariz. Rev. Stat. Ann. §11-1509(A) (West Supp. 2011). In effect, §3 adds a state-law penalty for conduct proscribed by federal law. The United States contends that this state enforcement mechanism intrudes on the field of alien registration, a field in which Congress has left no room for States to regulate. See Brief for United States 27, 31. The Court discussed federal alien-registration requirements in Hines v. Davidowitz, 312 U. S. 52. In 1940, as international conflict spread, Congress added to federal immigration law a "complete system for alien registration." Id., at 70. The new federal law struck a careful balance. It punished an alien's willful failure to register but did not require aliens to carry identification cards. There were also limits on the sharing of registration records and fingerprints. The Court found that Congress intended the federal plan for registration to be a "single integrated and all-embracing system." Id., at 74. Because this "complete scheme . . . for the registration of aliens" touched on foreign relations, it did not allow the States to "curtail or complement" federal law or to "enforce additional or auxiliary regulations." Id., at 66-67. As a consequence, the Court ruled that Pennsylvania could not enforce its own alien-registration program. See id., at 59, 74. The present regime of federal regulation is not identical to the statutory framework considered in Hines, but it remains comprehensive. Federal law now includes a requirement that aliens carry proof of registration. 8 U. S. C. §1304(e). Other aspects, however, have stayed the same. Aliens who remain in the country for more than 30 days must apply for registration and be fingerprinted. Compare §1302(a) with id., §452(a) (1940 ed.). Detailed information is required, and any change of address has to be reported to the Federal Government. Compare §§1304(a), 1305(a) (2006 ed.), with id., §§455(a), 456 (1940 ed.). The statute continues to provide penalties for the willful failure to register. Compare §1306(a) (2006 ed.), with id., §457 (1940 ed.). The framework enacted by Congress leads to the conclusion here, as it did in Hines, that the Federal Government has occupied the field of alien registration. See American Ins. Assn. v. Garamendi, 539 U. S. 396, 419, n. 11 (2003) (characterizing Hines as a field preemption case); Pennsylvania v. Nelson, 350 U. S. 497, 504 (1956) (same); see also Dinh, Reassessing the Law of Preemption, 88 Geo. L. J. 2085, 2098-2099, 2107 (2000) (same). The federal statutory directives provide a full set of standards governing alien registration, including the punishment for noncompliance. It was designed as a " 'harmonious whole.' " Hines, supra, at 72. Where Congress occupies an entire field, as it has in the field of alien registration, even complementary state regulation is impermissible. Field preemption reflects a congressional decision to foreclose any state regulation in the area, even if it is parallel to federal standards. See Silkwood v. Kerr-McGee Corp., 464 U. S. 238, 249 (1984). Federal law makes a single sovereign responsible for maintaining a comprehensive and unified system to keep track of aliens within the Nation's borders. If §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations, "diminish[ing] the [Federal Government]'s control over enforcement" and "detract[ing] from the 'integrated scheme of regulation' created by Congress." Wisconsin Dept. of Industry v. Gould Inc., 475 U. S. 282, 288-289 (1986). Even if a State may make violation of federal law a crime in some instances, it cannot do so in a field (like the field of alien registration) that has been occupied by federal law. See California v. Zook, 336 U. S. 725, 730-731, 733 (1949); see also In re Loney, 134 U. S. 372, 375-376 (1890) (States may not impose their own punishment for perjury in federal courts). Arizona contends that §3 can survive preemption because the provision has the same aim as federal law and adopts its substantive standards. This argument not only ignores the basic premise of field preemption — that States may not enter, in any respect, an area the Federal Government has reserved for itself — but also is unpersuasive on its own terms. Permitting the State to impose its own penalties for the federal offenses here would conflict with the careful framework Congress adopted. Cf. Buckman Co. v. Plaintiffs' Legal Comm., 531 U. S. 341, 347-348 (2001) (States may not impose their own punishment for fraud on the Food and Drug Administration); Wisconsin Dept., supra, at 288 (States may not impose their own punishment for repeat violations of the National Labor Relations Act). Were §3 to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies. There is a further intrusion upon the federal scheme. Even where federal authorities believe prosecution is appropriate, there is an inconsistency between §3 and federal law with respect to penalties. Under federal law, the failure to carry registration papers is a misdemeanor that may be punished by a fine, imprisonment, or a term of probation. See 8 U. S. C. §1304(e) (2006 ed.); 18 U. S. C. §3561. State law, by contrast, rules out probation as a possible sentence (and also eliminates the possibility of a pardon). See Ariz. Rev. Stat. Ann. §13-1509(D) (West Supp. 2011). This state framework of sanctions creates a conflict with the plan Congress put in place. See Wisconsin Dept., supra, at 286 ("[C]onflict is imminent whenever two separate remedies are brought to bear on the same activity" (internal quotation marks omitted)). These specific conflicts between state and federal law simply underscore the reason for field preemption. As it did in Hines, the Court now concludes that, with respect to the subject of alien registration, Congress intended to preclude States from "complement[ing] the federal law, or enforc[ing] additional or auxiliary regulations." 312 U. S., at 66-67. Section 3 is preempted by federal law.BSection 5(C) Unlike §3, which replicates federal statutory requirements, §5(C) enacts a state criminal prohibition where no federal counterpart exists. The provision makes it a state misdemeanor for "an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor" in Arizona. Ariz. Rev. Stat. Ann. §13-2928(C) (West Supp. 2011). Violations can be punished by a $2,500 fine and incarceration for up to six months. See §13-2928(F); see also §§13-707(A)(1) (West 2010); 13-802(A); 13-902(A)(5). The United States contends that the provision upsets the balance struck by the Immigration Reform and Control Act of 1986 (IRCA) and must be preempted as an obstacle to the federal plan of regulation and control. When there was no comprehensive federal program regulating the employment of unauthorized aliens, this Court found that a State had authority to pass its own laws on the subject. In 1971, for example, California passed a law imposing civil penalties on the employment of aliens who were "not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers." 1971 Cal. Stats. ch. 1442, §1(a). The law was upheld against a preemption challenge in De Canas v. Bica, 424 U. S. 351 (1976). De Canas recognized that "States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State." Id., at 356. At that point, however, the Federal Government had expressed no more than "a peripheral concern with [the] employment of illegal entrants." Id., at 360; see Whiting, 563 U. S., at ___ (slip op., at 3). Current federal law is substantially different from the regime that prevailed when De Canas was decided. Congress enacted IRCA as a comprehensive framework for "combating the employment of illegal aliens." Hoffman Plastic Compounds, Inc. v. NLRB, 535 U. S. 137, 147 (2002). The law makes it illegal for employers to knowingly hire, recruit, refer, or continue to employ unauthorized workers. See 8 U. S. C. §§1324a(a)(1)(A), (a)(2). It also requires every employer to verify the employment authorization status of prospective employees. See §§1324a(a) (1)(B), (b); 8 CFR §274a.2(b) (2012). These requirements are enforced through criminal penalties and an escalating series of civil penalties tied to the number of times an employer has violated the provisions. See 8 U. S. C. §§1324a(e)(4), (f); 8 CFR §274a.10. This comprehensive framework does not impose federal criminal sanctions on the employee side (i.e., penalties on aliens who seek or engage in unauthorized work). Under federal law some civil penalties are imposed instead. With certain exceptions, aliens who accept unlawful employment are not eligible to have their status adjusted to that of a lawful permanent resident. See 8 U. S. C. §§1255(c)(2), (c)(8). Aliens also may be removed from the country for having engaged in unauthorized work. See §1227(a)(1)(C)(i); 8 CFR §214.1(e). In addition to specifying these civil consequences, federal law makes it a crime for unauthorized workers to obtain employment through fraudulent means. See 18 U. S. C. §1546(b). Congress has made clear, however, that any information employees submit to indicate their work status "may not be used" for purposes other than prosecution under specified federal criminal statutes for fraud, perjury, and related conduct. See 8 U. S. C. §§1324a(b)(5), (d)(2)(F)-(G). The legislative background of IRCA underscores the fact that Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment. A commission established by Congress to study immigration policy and to make recommendations concluded these penalties would be "unnecessary and unworkable." U. S. Immigration Policy and the National Interest: The Final Report and Recommendations of the Select Commission on Immigration and Refugee Policy with Supplemental Views by Commissioners 65-66 (1981); see Pub. L. 95-412, §4, 92 Stat. 907. Proposals to make unauthorized work a criminal offense were debated and discussed during the long process of drafting IRCA. See Brief for Service Employees International Union et al. as Amici Curiae 9-12. But Congress rejected them. See, e.g., 119 Cong. Rec. 14184 (1973) (statement of Rep. Dennis). In the end, IRCA's framework reflects a considered judgment that making criminals out of aliens engaged in unauthorized work — aliens who already face the possibility of employer exploitation because of their removable status — would be inconsistent with federal policy and objectives. See, e.g., Hearings before the Subcommittee No. 1 of the House Committee on the Judiciary, 92d Cong., 1st Sess., pt. 3, pp. 919-920 (1971) (statement of Rep. Rodino, the eventual sponsor of IRCA in the House of Representatives). IRCA's express preemption provision, which in most instances bars States from imposing penalties on employers of unauthorized aliens, is silent about whether additional penalties may be imposed against the employees themselves. See 8 U. S. C. §1324a(h)(2); Whiting, supra, at ___-___ (slip op., at 1-2). But the existence of an "express pre-emption provisio[n] does not bar the ordinary working of conflict pre-emption principles" or impose a "special burden" that would make it more difficult to establish the preemption of laws falling outside the clause. Geier v. American Honda Motor Co., 529 U. S. 861, 869-872 (2000); see Sprietsma v. Mercury Marine, 537 U. S. 51, 65 (2002). The ordinary principles of preemption include the well-settled proposition that a state law is preempted where it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines, 312 U. S., at 67. Under §5(C) of S. B. 1070, Arizona law would interfere with the careful balance struck by Congress with respect to unauthorized employment of aliens. Although §5(C) attempts to achieve one of the same goals as federal law — the deterrence of unlawful employment — it involves a conflict in the method of enforcement. The Court has recognized that a "[c]onflict in technique can be fully as disruptive to the system Congress enacted as conflict in overt policy." Motor Coach Employees v. Lockridge, 403 U. S. 274, 287 (1971). The correct instruction to draw from the text, structure, and history of IRCA is that Congress decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment. It follows that a state law to the contrary is an obstacle to the regulatory system Congress chose. See Puerto Rico Dept. of Con- sumer Affairs v. ISLA Petroleum Corp., 485 U. S. 495, 503 (1988) ("Where a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls, then the pre-emptive inference can be drawn — not from federal inaction alone, but from inaction joined with action"). Section 5(C) is preempted by federal law.CSection 6 Section 6 of S. B. 1070 provides that a state officer, "without a warrant, may arrest a person if the officer has probable cause to believe . . . [the person] has committed any public offense that makes [him] removable from the United States." Ariz. Rev. Stat. Ann. §13-3883(A)(5) (West Supp. 2011). The United States argues that arrests authorized by this statute would be an obstacle to the removal system Congress created. As a general rule, it is not a crime for a removable alien to remain present in the United States. See INS v. Lopez-Mendoza, 468 U. S. 1032, 1038 (1984). If the police stop someone based on nothing more than possible removability, the usual predicate for an arrest is absent. When an alien is suspected of being removable, a federal official issues an administrative document called a Notice to Appear. See 8 U. S. C. §1229(a); 8 CFR §239.1(a) (2012). The form does not authorize an arrest. Instead, it gives the alien information about the proceedings, including the time and date of the removal hearing. See 8 U. S. C. §1229(a)(1). If an alien fails to appear, an in absentia order may direct removal. §1229a(5)(A). The federal statutory structure instructs when it is appropriate to arrest an alien during the removal process. For example, the Attorney General can exercise discretion to issue a warrant for an alien's arrest and detention "pending a decision on whether the alien is to be removed from the United States." 8 U. S. C. §1226(a); see Memorandum from John Morton, Director, ICE, to All Field Office Directors et al., Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens (June 17, 2011) (hereinafter 2011 ICE Memorandum) (describing factors informing this and related decisions). And if an alien is ordered removed after a hearing, the Attorney General will issue a warrant. See 8 CFR §241.2(a)(1). In both instances, the warrants are executed by federal officers who have received training in the enforcement of immigration law. See §§241.2(b), 287.5(e)(3). If no federal warrant has been issued, those officers have more limited authority. See 8 U. S. C. §1357(a). They may arrest an alien for being "in the United States in violation of any [immigration] law or regulation," for example, but only where the alien "is likely to escape before a warrant can be obtained." §1357(a)(2). Section 6 attempts to provide state officers even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers. Under state law, officers who believe an alien is removable by reason of some "public offense" would have the power to conduct an arrest on that basis regardless of whether a federal warrant has issued or the alien is likely to escape. This state authority could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case. This would allow the State to achieve its own immigration policy. The result could be unnecessary harassment of some aliens (for instance, a veteran, college student, or someone assisting with a criminal investigation) whom federal officials determine should not be removed. This is not the system Congress created. Federal law specifies limited circumstances in which state officers may perform the functions of an immigration officer. A principal example is when the Attorney General has granted that authority to specific officers in a formal agreement with a state or local government. See §1357(g)(1); see also §1103(a)(10) (authority may be extended in the event of an "imminent mass influx of aliens off the coast of the United States"); §1252c (authority to arrest in specific circumstance after consultation with the Federal Government); §1324(c) (authority to arrest for bringing in and harboring certain aliens). Officers covered by these agreements are subject to the Attorney General's direction and supervision. §1357(g)(3). There are significant complexities involved in enforcing federal immigration law, including the determination whether a person is removable. See Padilla v. Kentucky, 559 U. S. ___, ___-___ (2010) (Alito, J., concurring in judgment) (slip op., at 4-7). As a result, the agreements reached with the Attorney General must contain written certification that officers have received adequate training to carry out the duties of an immigration officer. See §1357(g)(2); cf. 8 CFR §§287.5(c) (arrest power contingent on training), 287.1(g) (defining the training). By authorizing state officers to decide whether an alien should be detained for being removable, §6 violates the principle that the removal process is entrusted to the discretion of the Federal Government. See, e.g., Reno v. American-Arab Anti-Discrimination Comm., 525 U. S. 471, 483-484 (1999); see also Brief for Former INS Commissioners 8-13. A decision on removability requires a determination whether it is appropriate to allow a foreign national to continue living in the United States. Decisions of this nature touch on foreign relations and must be made with one voice. See Jama v. Immigration and Customs Enforcement, 543 U. S. 335, 348 (2005) ("Removal decisions, including the selection of a removed alien's destination, may implicate [the Nation's] relations with foreign powers and require consideration of changing political and economic circumstances" (internal quotation marks omitted)); see also Galvan v. Press, 347 U. S. 522, 531 (1954) ("Policies pertaining to the entry of aliens and their right to remain here are . . . entrusted exclusively to Congress . . ."); Truax v. Raich, 239 U. S. 33, 42 (1915) ("The authority to control immigration — to admit or exclude aliens — is vested solely in the Federal Government"). In defense of §6, Arizona notes a federal statute permitting state officers to "cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States." 8 U. S. C. §1357(g)(10)(B). There may be some ambiguity as to what constitutes cooperation under the federal law; but no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government. The Department of Homeland Security gives examples of what would constitute cooperation under federal law. These include situations where States participate in a joint task force with federal officers, provide operational support in executing a warrant, or allow federal immigration officials to gain access to detainees held in state facilities. See Dept. of Homeland Security, Guidance on State and Local Governments' Assistance in Immigration Enforcement and Related Matters 13-14 (2011), online at http:// www.dhs.gov/files/resources/immigration.shtm (all Internet materials as visited June 21, 2012, and available in Clerk of Court's case file). State officials can also assist the Federal Government by responding to requests for information about when an alien will be released from their custody. See §1357(d). But the unilateral state action to detain authorized by §6 goes far beyond these measures, defeating any need for real cooperation. Congress has put in place a system in which state officers may not make warrantless arrests of aliens based on possible removability except in specific, limited circumstances. By nonetheless authorizing state and local officers to engage in these enforcement activities as a general matter, §6 creates an obstacle to the full purposes and objectives of Congress. See Hines, 312 U. S., at 67. Section 6 is preempted by federal law.DSection 2(B) Section 2(B) of S. B. 1070 requires state officers to make a "reasonable attempt . . . to determine the immigration status" of any person they stop, detain, or arrest on some other legitimate basis if "reasonable suspicion exists that the person is an alien and is unlawfully present in the United States." Ariz. Rev. Stat. Ann. §11-1051(B) (West 2012). The law also provides that "[a]ny person who is arrested shall have the person's immigration status determined before the person is released." Ibid. The accepted way to perform these status checks is to contact ICE, which maintains a database of immigration records. Three limits are built into the state provision. First, a detainee is presumed not to be an alien unlawfully present in the United States if he or she provides a valid Arizona driver's license or similar identification. Second, officers "may not consider race, color or national origin . . . except to the extent permitted by the United States [and] Arizona Constitution[s]." Ibid. Third, the provisions must be "implemented in a manner consistent with federal law regulating immigration, protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens." §11-1051(L) (West 2012). The United States and its amici contend that, even with these limits, the State's verification requirements pose an obstacle to the framework Congress put in place. The first concern is the mandatory nature of the status checks. The second is the possibility of prolonged detention while the checks are being performed.1 Consultation between federal and state officials is an important feature of the immigration system. Congress has made clear that no formal agreement or special training needs to be in place for state officers to "communicate with the [Federal Government] regarding the immigration status of any individual, including reporting knowledge that a particular alien is not lawfully present in the United States." 8 U. S. C. §1357(g)(10)(A). And Congress has obligated ICE to respond to any request made by state officials for verification of a person's citizenship or immigration status. See §1373(c); see also §1226(d)(1)(A) (requiring a system for determining whether individuals arrested for aggravated felonies are aliens). ICE's Law Enforcement Support Center operates "24 hours a day, seven days a week, 365 days a year" and provides, among other things, "immigration status, identity information and real-time assistance to local, state and federal law enforcement agencies." ICE, Fact Sheet: Law Enforcement Support Center (May 29, 2012), online at http:// www.ice.gov/news/library/factsheets/lesc.htm. LESC responded to more than one million requests for information in 2009 alone. App. 93. The United States argues that making status verification mandatory interferes with the federal immigration scheme. It is true that §2(B) does not allow state officers to consider federal enforcement priorities in deciding whether to contact ICE about someone they have detained. See Brief for United States 47-50. In other words, the officers must make an inquiry even in cases where it seems unlikely that the Attorney General would have the alien removed. This might be the case, for example, when an alien is an elderly veteran with significant and longstanding ties to the community. See 2011 ICE Memorandum 4-5 (mentioning these factors as relevant). Congress has done nothing to suggest it is inappropriate to communicate with ICE in these situations, however. Indeed, it has encouraged the sharing of information about possible immigration violations. See 8 U. S. C. §1357(g) (10)(A). A federal statute regulating the public benefits provided to qualified aliens in fact instructs that "no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [ICE] information regarding the immigration status, lawful or unlawful, of an alien in the United States." §1644. The federal scheme thus leaves room for a policy requiring state officials to contact ICE as a routine matter. Cf. Whiting, 563 U. S., at ___-___ (slip op., at 23-24) (rejecting argument that federal law preempted Arizona's requirement that employers determine whether employees were eligible to work through the federal E-Verify system where the Federal Government had encouraged its use).2 Some who support the challenge to §2(B) argue that, in practice, state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status. See, e.g., Brief for Former Arizona Attorney General Terry Goddard et al. as Amici Curiae 37, n. 49. Detaining individuals solely to verify their immigration status would raise constitutional concerns. See, e.g., Arizona v. Johnson, 555 U. S. 323, 333 (2009); Illinois v. Caballes, 543 U. S. 405, 407 (2005) ("A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission"). And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. Cf. Part IV-C, supra (concluding that Arizona may not authorize warrantless arrests on the basis of removability). The program put in place by Congress does not allow state or local officers to adopt this enforcement mechanism. But §2(B) could be read to avoid these concerns. To take one example, a person might be stopped for jaywalking in Tucson and be unable to produce identification. The first sentence of §2(B) instructs officers to make a "reasonable" attempt to verify his immigration status with ICE if there is reasonable suspicion that his presence in the United States is unlawful. The state courts may conclude that, unless the person continues to be suspected of some crime for which he may be detained by state officers, it would not be reasonable to prolong the stop for the immigration inquiry. See Reply Brief for Petitioners 12, n. 4 ("[Section 2(B)] does not require the verification be completed during the stop or detention if that is not reasonable or practicable"); cf. Muehler v. Mena, 544 U. S. 93, 101 (2005) (finding no Fourth Amendment violation where questioning about immigration status did not prolong a stop). To take another example, a person might be held pending release on a charge of driving under the influence of alcohol. As this goes beyond a mere stop, the arrestee (unlike the jaywalker) would appear to be subject to the categorical requirement in the second sentence of §2(B) that "[a]ny person who is arrested shall have the person's immigration status determined before [he] is released." State courts may read this as an instruction to initiate a status check every time someone is arrested, or in some subset of those cases, rather than as a command to hold the person until the check is complete no matter the circumstances. Even if the law is read as an instruction to complete a check while the person is in custody, moreover, it is not clear at this stage and on this record that the verification process would result in prolonged detention. However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive preemption — at least absent some showing that it has other consequences that are adverse to federal law and its objectives. There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law. See, e.g., United States v. Di Re, 332 U. S. 581, 589 (1948) (authority of state officers to make arrests for federal crimes is, absent federal statutory instruction, a matter of state law); Gonzales v. Peoria, 722 F. 2d 468, 475-476 (CA9 1983) (concluding that Arizona officers have authority to enforce the criminal provisions of federal immigration law), overruled on other grounds in Hodgers-Durgin v. de la Vina, 199 F. 3d 1037 (CA9 1999). The nature and timing of this case counsel caution in evaluating the validity of §2(B). The Federal Government has brought suit against a sovereign State to challenge the provision even before the law has gone into effect. There is a basic uncertainty about what the law means and how it will be enforced. At this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2(B) will be construed in a way that creates a conflict with federal law. Cf. Fox v. Washington ("So far as statutes fairly may be construed in such a way as to avoid doubtful constitutional questions they should be so construed; and it is to be presumed that state laws will be construed in that way by the state courts" (citation omitted)). As a result, the United States cannot prevail in its current challenge. See Huron Portland Cement Co. v. Detroit ("To hold otherwise would be to ignore the teaching of this Court's decisions which enjoin seeking out conflicts between state and federal regulation where none clearly exists"). This opinion does not foreclose other preemption and constitutional challenges to the law as interpreted and applied after it goes into effect.V Immigration policy shapes the destiny of the Nation. On May 24, 2012, at one of this Nation's most distinguished museums of history, a dozen immigrants stood before the tattered flag that inspired Francis Scott Key to write the National Anthem. There they took the oath to become American citizens. The Smithsonian, News Release, Smithsonian Citizenship Ceremony Welcomes a Dozen New Americans (May 24, 2012), online at http://newsdesk.si.edu/releases. These naturalization ceremonies bring together men and women of different origins who now share a common destiny. They swear a common oath to renounce fidelity to foreign princes, to defend the Constitution, and to bear arms on behalf of the country when required by law. 8 CFR §337.1(a) (2012). The history of the United States is in part made of the stories, talents, and lasting contributions of those who crossed oceans and deserts to come here. The National Government has significant power to regulate immigration. With power comes responsibility, and the sound exercise of national power over immigration depends on the Nation's meeting its responsibility to base its laws on a political will informed by searching, thoughtful, rational civic discourse. Arizona may have understandable frustrations with the problems caused by illegal immigration while that process continues, but the State may not pursue policies that undermine federal law.* * * The United States has established that §§3, 5(C), and 6 of S. B. 1070 are preempted. It was improper, however, to enjoin §2(B) before the state courts had an opportunity to construe it and without some showing that enforcement of the provision in fact conflicts with federal immigration law and its objectives. The judgment of the Court of Appeals for the Ninth Circuit is affirmed in part and reversed in part. The case is remanded for further proceedings consistent with this opinion.It is so ordered. Justice Kagan took no part in the consideration or decision of this case.Opinion of Scalia, J. 567 U. S. ____ (2012)No. 11-182ARIZONA, et al., PETITIONERS v. UNITED STATESon writ of certiorari to the united states court of appeals for the ninth circuit[June 25, 2012] Justice Scalia, concurring in part and dissenting in part. The United States is an indivisible "Union of sovereign States." Hinderlider v. La Plata River & Cherry Creek Ditch Co., 304 U. S. 92, 104 (1938). Today's opinion, approving virtually all of the Ninth Circuit's injunction against enforcement of the four challenged provisions of Arizona's law, deprives States of what most would consider the defining characteristic of sovereignty: the power to exclude from the sovereign's territory people who have no right to be there. Neither the Constitution itself nor even any law passed by Congress supports this result. I dissent.I As a sovereign, Arizona has the inherent power to exclude persons from its territory, subject only to those limitations expressed in the Constitution or constitutionally imposed by Congress. That power to exclude has long been recognized as inherent in sovereignty. Emer de Vattel's seminal 1758 treatise on the Law of Nations stated:"The sovereign may forbid the entrance of his territory either to foreigners in general, or in particular cases, or to certain persons, or for certain particular purposes, according as he may think it advantageous to the state. There is nothing in all this, that does not flow from the rights of domain and sovereignty: every one is obliged to pay respect to the prohibition; and whoever dares violate it, incurs the penalty decreed to render it effectual." The Law of Nations, bk. II, ch. VII, §94, p. 309 (B. Kapossy & R. Whatmore eds. 2008).See also I R. Phillimore, Commentaries upon International Law, pt. III, ch. X, p. 233 (1854) ("It is a received maxim of International Law that, the Government of a State may prohibit the entrance of strangers into the country").1 There is no doubt that "before the adoption of the constitution of the United States" each State had the authority to "prevent [itself] from being burdened by an influx of persons." Mayor of New York v. Miln, 11 Pet. 102, 132-133 (1837). And the Constitution did not strip the States of that authority. To the contrary, two of the Constitution's provisions were designed to enable the States to prevent "the intrusion of obnoxious aliens through other States." Letter from James Madison to Edmund Randolph (Aug. 27, 1782), in 1 The Writings of James Madison 226 (1900); accord, The Federalist No. 42, pp. 269-271 (C. Rossiter ed. 1961) (J. Madison). The Articles of Confederation had provided that "the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States." Articles of Confederation, Art. IV. This meant that an unwelcome alien could obtain all the rights of a citizen of one State simply by first becoming an inhabitant of another. To remedy this, the Constitution's Privileges and Immunities Clause provided that "[t]he Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Art. IV, §2, cl. 1 (emphasis added). But if one State had particularly lax citizenship standards, it might still serve as a gateway for the entry of "obnoxious aliens" into other States. This problem was solved "by authorizing the general government to establish a uniform rule of naturalization throughout the United States." The Federalist No. 42, supra, at 271; see Art. I, §8, cl. 4. In other words, the naturalization power was given to Congress not to abrogate States' power to exclude those they did not want, but to vindicate it. Two other provisions of the Constitution are an acknowledgment of the States' sovereign interest in protecting their borders. Article I provides that "[n]o State shall, without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports, except what may be absolutely necessary for executing it's inspection Laws." Art. I, §10, cl. 2 (emphasis added). This assumed what everyone assumed: that the States could exclude from their territory dangerous or unwholesome goods. A later portion of the same section provides that "[n]o State shall, without the Consent of Congress, . . . engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay." Art. I, §10, cl. 3 (emphasis added). This limits the States' sovereignty (in a way not relevant here) but leaves intact their inherent power to protect their territory. Notwithstanding "[t]he myth of an era of unrestricted immigration" in the first 100 years of the Republic, the States enacted numerous laws restricting the immigration of certain classes of aliens, including convicted criminals, indigents, persons with contagious diseases, and (in Southern States) freed blacks. Neuman, The Lost Century of American Immigration (1776-1875), 93 Colum. L. Rev. 1833, 1835, 1841-1880 (1993). State laws not only provided for the removal of unwanted immigrants but also imposed penalties on unlawfully present aliens and those who aided their immigration.2 Id., at 1883. In fact, the controversy surrounding the Alien and Sedition Acts involved a debate over whether, under the Constitution, the States had exclusive authority to enact such immigration laws. Criticism of the Sedition Act has become a prominent feature of our First Amendment jurisprudence, see, e.g., New York Times Co. v. Sullivan, 376 U. S. 254, 273-276 (1964), but one of the Alien Acts3 also aroused controversy at the time:"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That it shall be lawful for the President of the United States at any time during the continuance of this act, to order all such aliens as he shall judge dangerous to the peace and safety of the United States, or shall have reasonable grounds to suspect are concerned in any treasonable or secret machinations against the government thereof, to depart out of the territory of the United States . . . ." An Act concerning Aliens, 1 Stat. 570, 570-571.The Kentucky and Virginia Resolutions, written in denunciation of these Acts, insisted that the power to exclude unwanted aliens rested solely in the States. Jefferson's Kentucky Resolutions insisted "that alien friends are under the jurisdiction and protection of the laws of the state wherein they are [and] that no power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citizens." Kentucky Resolutions of 1798, reprinted in J. Powell, Languages of Power: A Sourcebook of Early American Constitutional History 131 (1991). Madison's Virginia Resolutions likewise contended that the Alien Act purported to give the President "a power nowhere delegated to the federal government." Virginia Resolutions of 1798, reprinted in Powell, supra, at 134 (emphasis omitted). Notably, moreover, the Federalist proponents of the Act defended it primarily on the ground that "[t]he removal of aliens is the usual preliminary of hostility" and could therefore be justified in exercise of the Federal Government's war powers. Massachussets Resolutions in Reply to Virginia, reprinted in Powell, supra, at 136. In Mayor of New York v. Miln, this Court considered a New York statute that required the commander of any ship arriving in New York from abroad to disclose "the name, place of birth, and last legal settlement, age and occupation . . . of all passengers . . . with the intention of proceeding to the said city." 11 Pet., at 130-131. After discussing the sovereign authority to regulate the entrance of foreigners described by De Vattel, the Court said: "The power . . . of New York to pass this law having undeniably existed at the formation of the constitution, the simply inquiry is, whether by that instrument it was taken from the states, and granted to congress; for if it were not, it yet remains with them." Id., at 132.And the Court held that it remains. Id., at 139.II One would conclude from the foregoing that after the adoption of the Constitution there was some doubt about the power of the Federal Government to control immigration, but no doubt about the power of the States to do so. Since the founding era (though not immediately), doubt about the Federal Government's power has disappeared. Indeed, primary responsibility for immigration policy has shifted from the States to the Federal Government. Congress exercised its power "[t]o establish an uniform Rule of Naturalization," Art. I, §8, cl. 4, very early on, see An Act to establish an uniform Rule of Naturalization, 1 Stat. 103. But with the fleeting exception of the Alien Act, Congress did not enact any legislation regulating immigration for the better part of a century. In 1862, Congress passed "An Act to prohibit the 'Coolie Trade' by American Citizens in American Vessels," which prohibited "procuring [Chinese nationals] . . . to be disposed of, or sold, or transferred, for any term of years or for any time whatever, as servants or apprentices, or to be held to service or labor." 12 Stat. 340. Then, in 1875, Congress amended that act to bar admission to Chinese, Japanese, and other Asian immigrants who had "entered into a contract or agreement for a term of service within the United States, for lewd and immoral purposes." An act supplementary to the acts in relation to immigration, ch. 141, 18 Stat. 477. And in 1882, Congress enacted the first general immigration statute. See An act to regulate Immigration, 22 Stat. 214. Of course, it hardly bears mention that Federal immigration law is now extensive. I accept that as a valid exercise of federal power — not because of the Naturalization Clause (it has no necessary connection to citizenship) but because it is an inherent attribute of sovereignty no less for the United States than for the States. As this Court has said, it is an " 'accepted maxim of international law, that every sovereign nation has the power, as inherent in sovereignty, and essential to self-preservation, to forbid the entrance of foreigners within its dominions.' " Fong Yue Ting v. United States (quoting Ekiu v. United States). That is why there was no need to set forth control of immigration as one of the enumerated powers of Congress, although an acknowledgment of that power (as well as of the States' similar power, subject to federal abridgment) was contained in Art. I, §9, which provided that "[t]he Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight . . . ." In light of the predominance of federal immigration restrictions in modern times, it is easy to lose sight of the States' traditional role in regulating immigration — and to overlook their sovereign prerogative to do so. I accept as a given that State regulation is excluded by the Constitution when (1) it has been prohibited by a valid federal law, or (2) it conflicts with federal regulation — when, for example, it admits those whom federal regulation would exclude, or excludes those whom federal regulation would admit. Possibility (1) need not be considered here: there is no federal law prohibiting the States' sovereign power to exclude (assuming federal authority to enact such a law). The mere existence of federal action in the immigration area — and the so-called field preemption arising from that action, upon which the Court's opinion so heavily relies, ante, at 9-11 — cannot be regarded as such a prohibition. We are not talking here about a federal law prohibiting the States from regulating bubble-gum advertising, or even the construction of nuclear plants. We are talking about a federal law going to the core of state sovereignty: the power to exclude. Like elimination of the States' other inherent sovereign power, immunity from suit, elimination of the States' sovereign power to exclude requires that "Congress . . . unequivocally expres[s] its intent to abrogate," Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 55 (1996) (internal quotation marks and citation omitted). Implicit "field preemption" will not do. Nor can federal power over illegal immigration be deemed exclusive because of what the Court's opinion solicitously calls "foreign countries[ '] concern[s] about the status, safety, and security of their nationals in the United States," ante, at 3. The Constitution gives all those on our shores the protections of the Bill of Rights — but just as those rights are not expanded for foreign nationals because of their countries' views (some countries, for example, have recently discovered the death penalty to be barbaric), neither are the fundamental sovereign powers of the States abridged to accommodate foreign countries' views. Even in its international relations, the Federal Government must live with the inconvenient fact that it is a Union of independent States, who have their own sovereign powers. This is not the first time it has found that a nuisance and a bother in the conduct of foreign policy. Four years ago, for example, the Government importuned us to interfere with thoroughly constitutional state judicial procedures in the criminal trial of foreign nationals because the international community, and even an opinion of the International Court of Justice, disapproved them. See Medellín v. Texas, 552 U. S. 491 (2008). We rejected that request, as we should reject the Executive's invocation of foreign-affairs considerations here. Though it may upset foreign powers — and even when the Federal Government desperately wants to avoid upsetting foreign powers — the States have the right to protect their borders against foreign nationals, just as they have the right to execute foreign nationals for murder. What this case comes down to, then, is whether the Arizona law conflicts with federal immigration law — whether it excludes those whom federal law would admit, or admits those whom federal law would exclude. It does not purport to do so. It applies only to aliens who neither possess a privilege to be present under federal law nor have been removed pursuant to the Federal Government's inherent authority. I proceed to consider the challenged provisions in detail.§2(B)"For any lawful stop, detention or arrest made by a law enforcement official . . . in the enforcement of any other law or ordinance of a county, city or town or this state where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States, a reasonable attempt shall be made, when practicable, to determine the immigration status of the person, except if the determination may hinder or obstruct an investigation. Any person who is arrested shall have the person's immigration status determined before the person is released. . . ." S. B. 1070, §2(B), as amended, Ariz. Rev. Stat. Ann. §11-1051(B) (West 2012). The Government has conceded that "even before Section 2 was enacted, state and local officers had state-law authority to inquire of DHS [the Department of Homeland Security] about a suspect's unlawful status and otherwise cooperate with federal immigration officers." Brief for United States 47 (citing App. 62, 82); see also Brief for United States 48-49. That concession, in my view, obviates the need for further inquiry. The Government's conflict-pre-emption claim calls on us "to determine whether, under the circumstances of this particular case, [the State's] law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines v. Davidowitz, 312 U. S. 52, 67 (1941) (emphasis added). It is impossible to make such a finding without a factual record concerning the manner in which Arizona is implementing these provisions — something the Government's pre-enforcement challenge has pretermitted. "The fact that [a law] might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid, since we have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment." United States v. Sal- erno, 481 U. S. 739, 745 (1987). And on its face, §2(B) merely tells state officials that they are authorized to do something that they were, by the Government's concession, already authorized to do. The Court therefore properly rejects the Government's challenge, recognizing that, "[a]t this stage, without the benefit of a definitive interpretation from the state courts, it would be inappropriate to assume §2B will be construed in a way that creates a conflict with federal law." Ante, at 23. Before reaching that conclusion, however, the Court goes to great length to assuage fears that "state officers will be required to delay the release of some detainees for no reason other than to verify their immigration status." Ante, at 22. Of course, any investigatory detention, including one under §2(B), may become an "unreasonable . . . seizur[e]," U. S. Const., Amdt. IV, if it lasts too long. See Illinois v. Caballes, 543 U. S. 405, 407 (2005). But that has nothing to do with this case, in which the Government claims that §2(B) is pre-empted by federal immigration law, not that anyone's Fourth Amendment rights have been violated. And I know of no reason why a protracted detention that does not violate the Fourth Amendment would contradict or conflict with any federal immigration law.§6"A peace officer, without a warrant, may arrest a person if the officer has probable cause to believe . . . [t]he person to be arrested has committed any public offense that makes the person removable from the United States." S. B. 1070, §6(A)(5), Ariz. Rev. Stat. Ann. §13-3883(A)(5) (West Supp. 2011). This provision of S. B. 1070 expands the statutory list of offenses for which an Arizona police officer may make an arrest without a warrant. See §13-3883. If an officer has probable cause to believe that an individual is "removable" by reason of a public offense, then a warrant is not required to make an arrest. The Government's primary contention is that §6 is pre-empted by federal immigration law because it allows state officials to make arrests "without regard to federal priorities." Brief for United States 53. The Court's opinion focuses on limits that Congress has placed on federal officials' authority to arrest removable aliens and the possibility that state officials will make arrests "to achieve [Arizona's] own immigration policy" and "without any input from the Federal Government." Ante, at 17. Of course on this pre-enforcement record there is no reason to assume that Arizona officials will ignore federal immigration policy (unless it be the questionable policy of not wanting to identify illegal aliens who have committed offenses that make them removable). As Arizona points out, federal law expressly provides that state officers may "cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States," 8 U. S. C. §1357(g)(10)(B); and "cooperation" requires neither identical efforts nor prior federal approval. It is consistent with the Arizona statute, and with the "cooperat[ive]" system that Congress has created, for state officials to arrest a removable alien, contact federal immigration authorities, and follow their lead on what to do next. And it is an assault on logic to say that identifying a removable alien and holding him for federal determination of whether he should be removed "violates the principle that the removal process is entrusted to the discretion of the Federal Government," ante, at 18. The State's detention does not represent commencement of the removal process unless the Federal Government makes it so. But that is not the most important point. The most important point is that, as we have discussed, Arizona is entitled to have "its own immigration policy"--including a more rigorous enforcement policy — so long as that does not conflict with federal law. The Court says, as though the point is utterly dispositive, that "it is not a crime for a removable alien to remain present in the United States," ante, at 15. It is not a federal crime, to be sure. But there is no reason Arizona cannot make it a state crime for a removable alien (or any illegal alien, for that matter) to remain present in Arizona. The Court quotes 8 U. S. C. §1226(a), which provides that, "[o]n a warrant issued by the Attorney General, an alien may be arrested and detained pending a decision on whether the alien is to be removed from the United States." Section 1357(a)(2) also provides that a federal immigration official "shall have power without warrant . . . to arrest any alien in the United States, if he has reason to believe that the alien so arrested is in the United States in violation of any [federal immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest." But statutory limitations upon the actions of federal officers in enforcing the United States' power to protect its borders do not on their face apply to the actions of state officers in enforcing the State's power to protect its borders. There is no more reason to read these provisions as implying that state officials are subject to similar limitations than there is to read them as implying that only federal officials may arrest removable aliens. And in any event neither implication would constitute the sort of clear elimination of the States' sovereign power that our cases demand. The Court raises concerns about "unnecessary harassment of some aliens . . . whom federal officials determine should not be removed." Ante, at 17. But we have no license to assume, without any support in the record, that Arizona officials would use their arrest authority under §6 to harass anyone. And it makes no difference that federal officials might "determine [that some unlawfully present aliens] should not be removed," ibid. They may well determine not to remove from the United States aliens who have no right to be here; but unless and until these aliens have been given the right to remain, Arizona is entitled to arrest them and at least bring them to federal officials' attention, which is all that §6 necessarily entails. (In my view, the State can go further than this, and punish them for their unlawful entry and presence in Arizona.) The Government complains that state officials might not heed "federal priorities." Indeed they might not, particularly if those priorities include willful blindness or deliberate inattention to the presence of removable aliens in Arizona. The State's whole complaint — the reason this law was passed and this case has arisen — is that the citizens of Arizona believe federal priorities are too lax. The State has the sovereign power to protect its borders more rigorously if it wishes, absent any valid federal prohibition. The Executive's policy choice of lax federal enforcement does not constitute such a prohibition.§3"In addition to any violation of federal law, a person is guilty of willful failure to complete or carry an alien registration document if the person is in violation of 8 [U. S. C.] §1304(e) or §1306(a)." S. B. 1070, §3(A), as amended, Ariz. Rev. Stat. Ann. §13-1509(A). It is beyond question that a State may make violation of federal law a violation of state law as well. We have held that to be so even when the interest protected is a distinctively federal interest, such as protection of the dignity of the national flag, see Halter v. Nebraska, 205 U. S. 34 (1907), or protection of the Federal Government's ability to recruit soldiers, Gilbert v. Minnesota, 254 U. S. 325 (1920). "[T]he State is not inhibited from making the national purposes its own purposes to the extent of exerting its police power to prevent its own citizens from obstructing the accomplishment of such purposes." Id., at 331 (internal quotation marks omitted). Much more is that so when, as here, the State is protecting its own interest, the integrity of its borders. And we have said that explicitly with regard to illegal immigration: "Despite the exclusive federal control of this Nation's borders, we cannot conclude that the States are without any power to deter the influx of persons entering the United States against federal law, and whose numbers might have a discernible impact on traditional state concerns." Plyler v. Doe, 457 U. S. 202, 228, n. 23 (1982). The Court's opinion relies upon Hines v. Davidowitz, supra. Ante, at 9-10. But that case did not, as the Court believes, establish a "field preemption" that implicitly eliminates the States' sovereign power to exclude those whom federal law excludes. It held that the States are not permitted to establish "additional or auxiliary" registration requirements for aliens. 312 U. S., at 66-67. But §3 does not establish additional or auxiliary registration requirements. It merely makes a violation of state law the very same failure to register and failure to carry evidence of registration that are violations of federal law. Hines does not prevent the State from relying on the federal registration system as "an available aid in the enforcement of a number of statutes of the state applicable to aliens whose constitutional validity has not been questioned." Id., at 75-76 (Stone, J., dissenting). One such statute is Arizona's law forbidding illegal aliens to collect unemployment benefits, Ariz. Rev. Stat. Ann. §23-781(B) (West 2012). To enforce that and other laws that validly turn on alien status, Arizona has, in Justice Stone's words, an interest in knowing "the number and whereabouts of aliens within the state" and in having "a means of their identification," 312 U. S., at 75. And it can punish the aliens' failure to comply with the provisions of federal law that make that knowledge and identification possible. In some areas of uniquely federal concern — e.g., fraud in a federal administrative process (Buckman Co. v. Plaintiffs' Legal Comm., 531 U. S. 341 (2001)) or perjury in violation of a federally required oath (In re Loney, 134 U. S. 372 (1890))--this Court has held that a State has no legitimate interest in enforcing a federal scheme. But the federal alien registration system is certainly not of uniquely federal interest. States, private entities, and individuals rely on the federal registration system (including the E-Verify program) on a regular basis. Arizona's legitimate interest in protecting (among other things) its unemployment-benefits system is an entirely adequate basis for making the violation of federal registration and carry requirements a violation of state law as well. The Court points out, however, ante, at 11, that in some respects the state law exceeds the punishments prescribed by federal law: It rules out probation and pardon, which are available under federal law. The answer is that it makes no difference. Illegal immigrants who violate §3 violate Arizona law. It is one thing to say that the Supremacy Clause prevents Arizona law from excluding those whom federal law admits. It is quite something else to say that a violation of Arizona law cannot be punished more severely than a violation of federal law. Especially where (as here) the State is defending its own sovereign interests, there is no precedent for such a limitation. The sale of illegal drugs, for example, ordinarily violates state law as well as federal law, and no one thinks that the state penalties cannot exceed the federal. As I have discussed, moreover, "field preemption" cannot establish a prohibition of additional state penalties in the area of immigration. Finally, the Government also suggests that §3 poses an obstacle to the administration of federal immigration law, see Brief for United States 31-33, but "there is no conflict in terms, and no possibility of such conflict, [if] the state statute makes federal law its own," California v. Zook, 336 U. S. 725, 735 (1949). It holds no fear for me, as it does for the Court, that "[w]ere §3 to come into force, the State would have the power to bring criminal charges against individuals for violating a federal law even in circumstances where federal officials in charge of the comprehensive scheme determine that prosecution would frustrate federal policies." Ante, at 11. That seems to me entirely appropriate when the State uses the federal law (as it must) as the criterion for the exercise of its own power, and the implementation of its own policies of excluding those who do not belong there. What I do fear — and what Arizona and the States that support it fear — is that "federal policies" of nonenforcement will leave the States helpless before those evil effects of illegal immigration that the Court's opinion dutifully recites in its prologue (ante, at 6) but leaves unremedied in its disposition.§5(C)"It is unlawful for a person who is unlawfully present in the United States and who is an unauthorized alien to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor in this state." S. B. 1070, §5(C), as amended, Ariz. Rev. Stat. Ann. §13-2928(C). Here, the Court rightly starts with De Canas v. Bica, 424 U. S. 351 (1976), which involved a California law providing that " '[n]o employer shall knowingly employ an alien who is not entitled to lawful residence in the United States if such employment would have an adverse effect on lawful resident workers.' " Id., at 352 (quoting California Labor Code Ann. §2805(a)). This Court concluded that the California law was not pre-empted, as Congress had neither occupied the field of "regulation of employment of illegal aliens" nor expressed "the clear and manifest purpose" of displacing such state regulation. Id., at 356-357 (internal quotation marks omitted). Thus, at the time De Canas was decided, §5(C) would have been indubitably lawful. The only relevant change is that Congress has since enacted its own restrictions on employers who hire illegal aliens, 8 U. S. C. §1324a, in legislation that also includes some civil (but no criminal) penalties on illegal aliens who accept unlawful employment. The Court concludes from this (reasonably enough) "that Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment," ante, at 13. But that is not the same as a deliberate choice to prohibit the States from imposing criminal penalties. Congress's intent with regard to exclusion of state law need not be guessed at, but is found in the law's express pre-emption provision, which excludes "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens," §1324a(h)(2) (emphasis added). Common sense, reflected in the canon expressio unius est exclusio alterius, suggests that the specification of pre-emption for laws punishing "those who employ" implies the lack of pre-emption for other laws, including laws punishing "those who seek or accept employment." The Court has no credible response to this. It quotes our jurisprudence to the effect that an "express pre-emption provisio[n] does not bar the ordinary working of conflict pre-emption principles." Ante, at 14 (quoting Geier v. American Honda Motor Co., 529 U. S. 861, 869 (2000) (internal quotation marks omitted)). True enough — conflict preemption principles. It then goes on say that since "Congress decided it would be inappropriate to impose criminal penalties on aliens who seek or engage in unauthorized employment," "[i]t follows that a state law to the contrary is an obstacle to the regulatory system Congress chose." Ante, at 15. For " '[w]here a comprehensive federal scheme intentionally leaves a portion of the regulated field without controls, then the pre-emptive inference can be drawn.' " Ibid. (quoting Puerto Rico Dept. of Consumer Affairs v. ISLA Petroleum Corp.). All that is a classic description not of conflict pre-emption but of field pre-emption, which (concededly) does not occur beyond the terms of an express pre-emption provision. The Court concludes that §5(C) "would interfere with the careful balance struck by Congress," ante, at 15, (another field pre-emption notion, by the way) but that is easy to say and impossible to demonstrate. The Court relies primarily on the fact that "[p]roposals to make unauthorized work a criminal offense were debated and discussed during the long process of drafting [the Immigration Reform and Control Act of 1986 (IRCA)]," "[b]ut Congress rejected them." Ante, at 14. There is no more reason to believe that this rejection was expressive of a desire that there be no sanctions on employees, than expressive of a desire that such sanctions be left to the States. To tell the truth, it was most likely expressive of what inaction ordinarily expresses: nothing at all. It is a "naïve assumption that the failure of a bill to make it out of committee, or to be adopted when reported to the floor, is the same as a congressional rejection of what the bill contained." Crosby v. National Foreign Trade Council, 530 U. S. 363, 389 (2000) (Scalia, J., concurring in judgment) (internal quotation marks and alterations omitted).* * * The brief for the Government in this case asserted that "the Executive Branch's ability to exercise discretion and set priorities is particularly important because of the need to allocate scarce enforcement resources wisely." Brief for United States 21. Of course there is no reason why the Federal Executive's need to allocate its scarce enforcement resources should disable Arizona from devoting its resources to illegal immigration in Arizona that in its view the Federal Executive has given short shrift. Despite Congress's prescription that "the immigration laws of the United States should be enforced vigorously and uniformly," IRCA §115, 100 Stat. 3384, Arizona asserts without contradiction and with supporting citations:"[I]n the last decade federal enforcement efforts have focused primarily on areas in California and Texas, leaving Arizona's border to suffer from comparative neglect. The result has been the funneling of an increasing tide of illegal border crossings into Arizona. Indeed, over the past decade, over a third of the Nation's illegal border crossings occurred in Arizona." Brief for Petitioners 2-3 (footnote omitted).Must Arizona's ability to protect its borders yield to the reality that Congress has provided inadequate funding for federal enforcement — or, even worse, to the Executive's unwise targeting of that funding? But leave that aside. It has become clear that federal enforcement priorities — in the sense of priorities based on the need to allocate "scarce enforcement resources"--is not the problem here. After this case was argued and while it was under consideration, the Secretary of Homeland Security announced a program exempting from immigration enforcement some 1.4 million illegal immigrants under the age of 30.4 If an individual unlawfully present in the United States"• came to the United States under the age of sixteen;"• has continuously resided in the United States for at least five years . . . ,"• is currently in school, has graduated from high school, has obtained a general education development certificate, or is an honorably discharged veteran . . . ,"• has not been convicted of a [serious crime]; and"• is not above the age of thirty,"5then U. S. immigration officials have been directed to "defe[r] action" against such individual "for a period of two years, subject to renewal."6 The husbanding of scarce enforcement resources can hardly be the justification for this, since the considerable administrative cost of conducting as many as 1.4 million background checks, and ruling on the biennial requests for dispensation that the nonenforcement program envisions, will necessarily be deducted from immigration enforcement. The President said at a news conference that the new program is "the right thing to do" in light of Congress's failure to pass the Administration's proposed revision of the Immigration Act.7 Perhaps it is, though Arizona may not think so. But to say, as the Court does, that Arizona contradicts federal law by enforcing applications of the Immigration Act that the President declines to enforce boggles the mind. The Court opinion's looming specter of inutterable horror--"[i]f §3 of the Arizona statute were valid, every State could give itself independent authority to prosecute federal registration violations," ante, at 10 — seems to me not so horrible and even less looming. But there has come to pass, and is with us today, the specter that Arizona and the States that support it predicted: A Federal Government that does not want to enforce the immigration laws as written, and leaves the States' borders unprotected against immigrants whom those laws would exclude. So the issue is a stark one. Are the sovereign States at the mercy of the Federal Executive's refusal to enforce the Nation's immigration laws? A good way of answering that question is to ask: Would the States conceivably have entered into the Union if the Constitution itself contained the Court's holding? Today's judgment surely fails that test. At the Constitutional Convention of 1787, the delegates contended with "the jealousy of the states with regard to their sovereignty." 1 Records of the Federal Convention 19 (M. Farrand ed. 1911) (statement of Edmund Randolph). Through ratification of the fundamental charter that the Convention produced, the States ceded much of their sovereignty to the Federal Government. But much of it remained jealously guarded — as reflected in the innumerable proposals that never left Independence Hall. Now, imagine a provision — perhaps inserted right after Art. I, §8, cl. 4, the Naturalization Clause — which included among the enumerated powers of Congress "To establish Limitations upon Immigration that will be exclusive and that will be enforced only to the extent the President deems appropriate." The delegates to the Grand Convention would have rushed to the exits. As is often the case, discussion of the dry legalities that are the proper object of our attention suppresses the very human realities that gave rise to the suit. Arizona bears the brunt of the country's illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona's estimated 400,000 illegal immigrants — including not just children but men and women under 30 — are now assured immunity from enforcement, and will be able to compete openly with Arizona citizens for employment. Arizona has moved to protect its sovereignty — not in contradiction of federal law, but in complete compliance with it. The laws under challenge here do not extend or revise federal immigration restrictions, but merely enforce those restrictions more effectively. If securing its territory in this fashion is not within the power of Arizona, we should cease referring to it as a sovereign State. I dissent.Opinion of Thomas, J. 567 U. S. ____ (2012)No. 11-182ARIZONA, et al., PETITIONERS v. UNITED STATESon writ of certiorari to the united states court of appeals for the ninth circuit[June 25, 2012] Justice Thomas, concurring in part and dissenting in part. I agree with Justice Scalia that federal immigration law does not pre-empt any of the challenged provisions of S. B. 1070. I reach that conclusion, however, for the simple reason that there is no conflict between the "ordinary meanin[g]" of the relevant federal laws and that of the four provisions of Arizona law at issue here. Wyeth v. Levine, 555 U. S. 555, 588 (2009) (Thomas, J., concurring in judgment) ("Pre-emption analysis should not be a freewheeling judicial inquiry into whether a state statute is in tension with federal objectives, but an inquiry into whether the ordinary meanings of state and federal law conflict" (brackets; internal quotation marks omitted)). Section 2(B) of S. B. 1070 provides that, when Arizona law enforcement officers reasonably suspect that a person they have lawfully stopped, detained, or arrested is unlawfully present, "a reasonable attempt shall be made, when practicable, to determine the immigration status of the person" pursuant to the verification procedure established by Congress in 8 U. S. C. §1373(c). Ariz. Rev. Stat. Ann. §11-1051(B) (West 2012). Nothing in the text of that or any other federal statute prohibits Arizona from directing its officers to make immigration-related inquiries in these situations. To the contrary, federal law expressly states that "no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from" federal officials "information regarding the immigration status" of an alien. 8 U. S. C. §1644. And, federal law imposes an affirmative obligation on federal officials to respond to a State's immigration-related inquiries. §1373(c). Section 6 of S. B. 1070 authorizes Arizona law enforcement officers to make warrantless arrests when there is probable cause to believe that an arrestee has committed a public offense that renders him removable under federal immigration law. States, as sovereigns, have inherent authority to conduct arrests for violations of federal law, unless and until Congress removes that authority. See United States v. Di Re, 332 U. S. 581, 589 (1948) (holding that state law determines the validity of a warrantless arrest for a violation of federal law "in the absence of an applicable federal statute"). Here, no federal statute purports to withdraw that authority. As Justice Scalia notes, ante, at 12 (opinion concurring in part and dissenting in part), federal law does limit the authority of federal officials to arrest removable aliens, but those statutes do not apply to state officers. And, federal law expressly recognizes that state officers may "cooperate with the Attorney General" in the "apprehension" and "detention" of "aliens not lawfully present in the United States." §1357(g)(10)(B). Nothing in that statute indicates that such cooperation requires a prior "request, approval, or other instruction from the Federal Government." Ante, at 18 (majority opinion). Section 3 of S. B. 1070 makes it a crime under Arizona law for an unlawfully present alien to willfully fail to complete or carry an alien registration document in violation of 8 U. S. C. §1304(e) and §1306(a). Section 3 simply incorporates federal registration standards. Unlike the Court, I would not hold that Congress pre-empted the field of enforcing those standards. "[O]ur recent cases have frequently rejected field pre-emption in the absence of statutory language expressly requiring it." Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 564, 617 (1997) (Thomas, J., dissenting); see, e.g., New York State Dept. of Social Servs. v. Dublino, 413 U. S. 405, 415 (1973). Here, nothing in the text of the relevant federal statutes indicates that Congress intended enforcement of its registration requirements to be exclusively the province of the Federal Government. That Congress created a "full set of standards governing alien registration," ante, at 10 (majority opinion), merely indicates that it intended the scheme to be capable of working on its own, not that it wanted to preclude the States from enforcing the federal standards. Hines v. Davidowitz, 312 U. S. 52 (1941), is not to the contrary. As Justice Scalia explains, ante, at 14, Hines at most holds that federal law pre-empts the States from creating additional registration requirements. But here, Arizona is merely seeking to enforce the very registration requirements that Congress created. Section 5(C) of S. B. 1070 prohibits unlawfully present aliens from knowingly applying for, soliciting, or performing work in Arizona. Section 5(C) operates only on individuals whom Congress has already declared ineligible to work in the United States. Nothing in the text of the federal immigration laws prohibits States from imposing their own criminal penalties on such individuals. Federal law expressly pre-empts States from "imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." 8 U. S. C. §1324a(h)(2) (emphasis added). But it leaves States free to impose criminal sanctions on the employees themselves. Despite the lack of any conflict between the ordinary meaning of the Arizona law and that of the federal laws at issue here, the Court holds that various provisions of the Arizona law are pre-empted because they "stan[d] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." Hines, supra, at 67. I have explained that the "purposes and objectives" theory of implied pre-emption is inconsistent with the Constitution because it invites courts to engage in freewheeling speculation about congressional purpose that roams well beyond statutory text. See Wyeth, 555 U. S., at 604 (opinion concurring in judgment); see also Williamson v. Mazda Motor of America, Inc., 562 U. S. ___, ___-___ (2011) (opinion concurring in judgment) (slip op., at 2-3); Haywood v. Drown, 556 U. S. 729, 767 (2009) (dissenting opinion). Under the Supremacy Clause, pre-emptive effect is to be given to congressionally enacted laws, not to judicially divined legislative purposes. See Wyeth, supra, at 604 (Thomas, J., concurring in judgment). Thus, even assuming the existence of some tension between Arizona's law and the supposed "purposes and objectives" of Congress, I would not hold that any of the provisions of the Arizona law at issue here are pre-empted on that basis.Opinion of Alito, J. 567 U. S. ____ (2012)No. 11-182ARIZONA, et al., PETITIONERS v. UNITED STATESon writ of certiorari to the united states court of appeals for the ninth circuit[June 25, 2012] Justice Alito, concurring in part and dissenting in part. This case concerns four provisions of Arizona's Support Our Law Enforcement and Safe Neighborhoods Act, S. B. 1070. Section 2(B) requires Arizona law enforcement officers to make a "reasonable attempt," "when practicable," to ascertain the immigration status of any person whom an officer lawfully stops, detains, or arrests "where reasonable suspicion exists that the person is an alien and is unlawfully present in the United States." Ariz. Rev. Stat. Ann. §11-1051(B) (West 2012). Section 3 provides that an alien who willfully fails "to complete or carry an alien registration document" in violation of 8 U. S. C. §1304(e) or §1306(a) is guilty of a misdemeanor. Ariz. Rev. Stat. Ann. §13-1509(A) (West Supp. 2011). Section 5(C) makes it a misdemeanor for an unauthorized alien who is unlawfully present in the United States "to knowingly apply for work, solicit work in a public place or perform work as an employee or independent contractor." Ariz. Rev. Stat. Ann. §13-2928(C). And §6 authorizes Arizona law enforcement officers to arrest without a warrant any person whom the officer has probable cause to believe "has committed any public offense that makes the person removable from the United States." Ariz. Rev. Stat. Ann. §13-3883(A)(5). I agree with the Court that §2(B) is not pre-empted. That provision does not authorize or require Arizona law enforcement officers to do anything they are not already allowed to do under existing federal law. The United States' argument that §2(B) is pre-empted, not by any federal statute or regulation, but simply by the Executive's current enforcement policy is an astounding assertion of federal executive power that the Court rightly rejects. I also agree with the Court that §3 is pre-empted by virtue of our decision in Hines v. Davidowitz, 312 U. S. 52 (1941). Our conclusion in that case that Congress had enacted an "all-embracing system" of alien registration and that States cannot "enforce additional or auxiliary regulations," id., at 66-67, 74, forecloses Arizona's attempt here to impose additional, state-law penalties for violations of the federal registration scheme. While I agree with the Court on §2(B) and §3, I part ways on §5(C) and §6. The Court's holding on §5(C) is inconsistent with De Canas v. Bica, 424 U. S. 351 (1976), which held that employment regulation, even of aliens unlawfully present in the country, is an area of traditional state concern. Because state police powers are implicated here, our precedents require us to presume that federal law does not displace state law unless Congress' intent to do so is clear and manifest. I do not believe Congress has spoken with the requisite clarity to justify invalidation of §5(C). Nor do I believe that §6 is invalid. Like §2(B), §6 adds virtually nothing to the authority that Arizona law enforcement officers already exercise. And whatever little authority they have gained is consistent with federal law. Section 2(B)A Although §2(B) of the Arizona law has occasioned much controversy, it adds nothing to the authority that Arizona law enforcement officers, like officers in all other States, already possess under federal law. For that reason, I agree with the Court that §2(B) is not pre-empted. Section 2(B) quite clearly does not expand the authority of Arizona officers to make stops or arrests. It is triggered only when a "lawful stop, detention or arrest [is] made ... in the enforcement of any other [state or local] law or ordinance." Ariz. Rev. Stat. Ann. §11-1051(B) (emphasis added). Section 2(B) thus comes into play only when an officer has reasonable suspicion or probable cause to believe that a person has committed a nonimmigration offense. Arizona officers plainly possessed this authority before §2(B) took effect. Section 2(B) also does not expand the authority of Arizona officers to inquire about the immigration status of persons who are lawfully detained. When a person is stopped or arrested and "reasonable suspicion exists that the person is an alien and is unlawfully present in the United States," §2(B) instructs Arizona officers to make a "reasonable attempt," "when practicable," to ascertain that person's immigration status. Ariz. Rev. Stat. Ann. §11-1051(B). Even before the Arizona Legislature enacted §2(B), federal law permitted state and local officers to make such inquiries. In 8 U. S. C. §1357(g)(10)(A), Congress has made clear that state and local governments need not enter into formal agreements with the Federal Government in order "to communicate with the [Federal Government] regarding the immigration status of any individual." In addition, Congress has mandated that neither the Federal Government nor any state or local government may "prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [the Federal Government] information regarding the citizenship or immigration status, lawful or unlawful, of any individual." §1373(a); see also §1644 (providing that "no State or local government entity may be prohibited, or in any way restricted, from sending to or receiving from [the Federal Government] information regarding the immigration status, lawful or unlawful, of an alien in the United States"). And while these provisions preserve the authority of state and local officers to seek immigration-status information from the Federal Government, another federal statute, §1373(c), requires that the Federal Government respond to any such inquiries "by providing the requested verification or status information." It comes as no surprise, therefore, that many States and localities permit their law enforcement officers to make the kinds of inquiries that §2(B) prescribes. See App. 294-298 (reporting that officers in 59 surveyed state and local jurisdictions "generally" ask arrestees about their immigration status while 34 do not and that officers in 78 jurisdictions "generally" inform Immigration and Customs Enforcement (ICE) when they believe an arrestee to be an undocumented alien while only 17 do not). Congress has invited state and local governments to make immigration-related inquiries and has even obligated the Federal Government to respond. Through §2(B), Arizona has taken Congress up on that invitation. The United States does not deny that officers may, at their own discretion, inquire about the immigration status of persons whom they lawfully detain. Instead, the United States argues that §2(B) is pre-empted because it impedes federal-state cooperation by mandating that officers verify the immigration status of every detained person if there is reason to believe that the person is unlawfully present in the country. The United States claims that §2(B)'s mandate runs contrary to federal law in that it "precludes officers from taking [the Federal Government's] priorities and discretion into account." Brief for United States 50. "[B]y interposing a mandatory state law between state and local officers and their federal counterparts," writes the United States, §2(B) "stands as an obstacle to the accomplishment of the federal requirement of cooperation and the full effectuation of the enforcement judgment and discretion Congress has vested in the Executive Branch." Ibid. (internal quotation marks and citation omitted). The underlying premise of the United States' argument seems to be that state and local officers, when left to their own devices, generally take federal enforcement priorities into account. But there is no reason to think that this premise is true. And even if it were, it would not follow that §2(B)'s blanket mandate is at odds with federal law. Nothing in the relevant federal statutes requires state and local officers to consider the Federal Government's priorities before requesting verification of a person's immigration status. Neither 8 U. S. C. §1357(g)(10) nor §1373(a) conditions the right of state and local officers to communicate with the Federal Government on their first taking account of its priorities. Nor does §1373(c) condition the Federal Government's obligation to answer requests for information on the sensitivity of state and local officers to its enforcement discretion. In fact, §1373(c) dictates that the Federal Government "shall respond" to any inquiry seeking verification of immigration status, and that command applies whether or not the requesting officer has bothered to consider federal priorities. Because no federal statute requires such consideration, §2(B) does not conflict with federal law. In any event, it is hard to see how state and local officers could proceed in conformity with the Federal Government's enforcement priorities without making an inquiry into a suspected alien's immigration status. For example, one of the Federal Government's highest priorities is the apprehension and removal of aliens who have failed to comply with a final order of removal. See App. 108. How can an officer identify those persons without first inquiring about their status? At bottom, the discretion that ultimately matters is not whether to verify a person's immigration status but whether to act once the person's status is known. For that reason, §2(B)'s verification requirement is not contrary to federal law because the Federal Government retains the discretion that matters most — that is, the discretion to enforce the law in particular cases. If an Arizona officer contacts the Federal Government to verify a person's immigration status and federal records reveal that the person is in the country unlawfully, the Federal Government decides, presumably based on its enforcement priorities, whether to have the person released or transferred to federal custody. Enforcement discretion thus lies with the Federal Government, not with Arizona. Nothing in §2(B) suggests otherwise. The United States' attack on §2(B) is quite remarkable. The United States suggests that a state law may be pre-empted, not because it conflicts with a federal statute or regulation, but because it is inconsistent with a federal agency's current enforcement priorities. Those priorities, however, are not law. They are nothing more than agency policy. I am aware of no decision of this Court recognizing that mere policy can have pre-emptive force. Cf. Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U. S. 298, 330 (1994) (holding that "Executive Branch communications that express federal policy but lack the force of law cannot render unconstitutional" an "otherwise valid, congressionally condoned" state law). If §2(B) were pre-empted at the present time because it is out of sync with the Federal Government's current priorities, would it be unpre-empted at some time in the future if the agency's priorities changed? Like most law enforcement agencies, ICE does not set out inflexible rules for its officers to follow. To the contrary, it provides a list of factors to guide its officers' enforcement discretion on a case-by-case basis. See Memorandum from John Morton, Director, ICE, to All Field Office Directors et al., p. 4 (June 17, 2011) ("This list is not exhaustive and no one factor is determinative. ICE officers, agents, and attorneys should always consider prosecutorial discretion on a case-by-case basis. The decisions should be based on the totality of the circumstances, with the goal of conforming to ICE's enforcement priorities"). Among those factors is "the agency's civil immigration enforcement priorities," ibid., which change from administration to administration. If accepted, the United States' pre-emption argument would give the Executive unprecedented power to invalidate state laws that do not meet with its approval, even if the state laws are otherwise consistent with federal statutes and duly promulgated regulations. This argument, to say the least, is fundamentally at odds with our federal system. B It has been suggested that §2(B) will cause some persons who are lawfully stopped to be detained in violation of their constitutional rights while a prolonged investigation of their immigration status is undertaken. But nothing on the face of the law suggests that it will be enforced in a way that violates the Fourth Amendment or any other provision of the Constitution. The law instructs officers to make a "reasonable attempt" to investigate immigration status, and this language is best understood as incorporating the Fourth Amendment's standard of reasonableness. Indeed, the Arizona Legislature has directed that §2(B) "shall be implemented in a manner consistent with federal laws . . . protecting the civil rights of all persons and respecting the privileges and immunities of United States citizens." Ariz. Rev. Stat. Ann. §11-1051(L). In the situations that seem most likely to occur, enforcement of §2(B) will present familiar Fourth Amendment questions. To take a common situation, suppose that a car is stopped for speeding, a nonimmigration offense. (Recall that §2(B) comes into play only where a stop or arrest is made for a nonimmigration offense.) Suppose also that the officer who makes the stop subsequently acquires reasonable suspicion to believe that the driver entered the country illegally, which is a federal crime. See 8 U. S. C. §1325(a). It is well established that state and local officers generally have authority to make stops and arrests for violations of federal criminal laws. See, e.g., Miller v. United States, 357 U. S. 301, 305 (1958); United States v. Di Re, 332 U. S. 581, 589 (1948). I see no reason why this principle should not apply to immigration crimes as well. Lower courts have so held. See, e.g., Estrada v. Rhode Island, 594 F. 3d 56, 65 (CA1 2010) (upholding the lawfulness of a detention because the officer had an objectively reasonable belief that the arrestees "had committed immigration violations"); United States v. Vasquez-Alvarez, 176 F. 3d 1294, 1296 (CA10 1999) (noting that "state law-enforcement officers have the general authority to investigate and make arrests for violations of federal immigration laws"); Gonzales v. Peoria, 722 F. 2d 468, 475 (CA9 1983), overruled on other grounds, Hodgers-Durgin v. de la Vina, 199 F. 3d 1037 (1999) (en banc) (holding that "federal law does not preclude local enforcement of the criminal provisions" of federal immigration law). And the United States, consistent with the position long taken by the Office of Legal Counsel (OLC) in the Department of Justice, does not contend otherwise. See Brief for United States 55, n. 33; see also Memorandum from OLC to the Attorney General (Apr. 3, 2002), App. 268-273; Assistance by State and Local Police in Apprehending Illegal Aliens, 20 Op. Off. Legal Counsel 26 (1996). More importantly, no federal statute casts doubt on this authority. To be sure, there are a handful of statutes that purport to authorize state and local officers to make immigration-related arrests in certain situations. See, e.g., 8 U. S. C. §1103(a)(10) (providing for the extension of "any" immigration enforcement authority to state and local officers in the event of an "actual or imminent mass influx of aliens arriving off the coast"); §1252c(a) (providing authority to arrest criminal aliens who had illegally reentered the country but only after consultation with the Federal Government); §1324(c) (providing authority to make arrests for transporting and harboring certain aliens). But a grant of federal arrest authority in some cases does not manifest a clear congressional intent to displace the States' police powers in all other cases. Without more, such an inference is too weak to overcome our presumption against pre-emption where traditional state police powers are at stake. Accordingly, in our hypothetical case, the Arizona officer may arrest the driver for violating §1325(a) if the officer has probable cause. And if the officer has reasonable suspicion, the officer may detain the driver, to the extent permitted by the Fourth Amendment, while the question of illegal entry is investigated. We have held that a detention based on reasonable suspicion that the detainee committed a particular crime "can become unlawful if it is prolonged beyond the time reasonably required to complete that mission." Illinois v. Caballes, 543 U. S. 405, 407 (2005). But if during the course of a stop an officer acquires suspicion that a detainee committed a different crime, the detention may be extended for a reasonable time to verify or dispel that suspicion. Cf. Muehler v. Mena, 544 U. S. 93, 101 (2005) (holding that "no additional Fourth Amendment justification" was required because any questioning concerning immigration status did not prolong the detention). In our hypothetical case, therefore, if the officer, after initially stopping the car for speeding, has a reasonable suspicion that the driver entered the country illegally, the officer may investigate for evidence of illegal entry. But the length and nature of this investigation must remain within the limits set out in our Fourth Amendment cases. An investigative stop, if prolonged, can become an arrest and thus require probable cause. See Caballes, supra, at 407. Similarly, if a person is moved from the site of the stop, probable cause will likely be required. See Hayes v. Florida (holding that the line between detention and arrest is crossed "when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes"). If properly implemented, §2(B) should not lead to federal constitutional violations, but there is no denying that enforcement of §2(B) will multiply the occasions on which sensitive Fourth Amendment issues will crop up. These civil-liberty concerns, I take it, are at the heart of most objections to §2(B). Close and difficult questions will inevitably arise as to whether an officer had reasonable suspicion to believe that a person who is stopped for some other reason entered the country illegally, and there is a risk that citizens, lawful permanent residents, and others who are lawfully present in the country will be detained. To mitigate this risk, Arizona could issue guidance to officers detailing the circumstances that typically give rise to reasonable suspicion of unlawful presence. And in the spirit of the federal-state cooperation that the United States champions, the Federal Government could share its own guidelines. Arizona could also provide officers with a nonexclusive list containing forms of identification sufficient under §2(B) to dispel any suspicion of unlawful presence. If Arizona accepts licenses from most States as proof of legal status, the problem of roadside detentions will be greatly mitigated.1Section 3 I agree that §3 is pre-empted because, like the Court, I read the opinion in Hines to require that result. Although there is some ambiguity in Hines, the Court largely spoke in the language of field pre-emption. The Court explained that where Congress "has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations." 312 U. S., at 66-67. In finding the Pennsylvania alien-registration law pre-empted, the Court observed that Congress had "provided a standard for alien registration in a single integrated and all-embracing system" and that its intent was "to protect the personal liberties of law-abiding aliens through one uniform national registration system." Id., at 74. If we credit our holding in Hines that Congress has enacted "a single integrated and all-embracing system" of alien registration and that States cannot "complement" that system or "enforce additional or auxiliary regulations," id., at 66-67, 74, then Arizona's attempt to impose additional, state-law penalties for violations of federal registration requirements must be invalidated.Section 5(C) While I agree that §3 is pre-empted, I disagree with the Court's decision to strike down §5(C). I do so in large measure because the Court fails to give the same solicitude to our decision in De Canas, 424 U. S. 351, as it is willing to give our decision in Hines. In De Canas, the Court upheld against a pre-emption challenge a state law imposing fines on employers that hired aliens who were unlawfully present in the United States. The Court explained that the mere fact that "aliens are the subject of a state statute does not render it a regulation of immigration." 424 U. S., at 355. The Court emphasized instead that "States possess broad authority under their police powers to regulate the employment relationship to protect workers within the State." Id., at 356. In light of that broad authority, the Court declared that "[o]nly a demonstration that complete ouster of state power ... was 'the clear and manifest purpose of Congress' would justify" the conclusion that "state regulation designed to protect vital state interests must give way to paramount federal legislation." Id., at 357 (some internal quotation marks omitted); see also Bates v. Dow Agrosciences LLC, 544 U. S. 431, 449 (2005) ("In areas of traditional state regulation, [the Court] assume[s] that a federal statute has not supplanted state law unless Congress has made such an intention 'clear and manifest' " (some internal quotation marks omitted)). The Court now tells us that times have changed. Since De Canas, Congress has enacted "a comprehensive framework for combating the employment of illegal aliens," and even though aliens who seek or obtain unauthorized work are not subject to criminal sanctions, they can suffer civil penalties. Ante, at 12-13 (internal quotation marks omitted). Undoubtedly, federal regulation in this area is more pervasive today. But our task remains unchanged: to determine whether the federal scheme discloses a clear and manifest congressional intent to displace state law. The Court gives short shrift to our presumption against pre-emption. Having no express statement of congressional intent to support its analysis, the Court infers from stale legislative history and from the comprehensiveness of the federal scheme that "Congress made a deliberate choice not to impose criminal penalties on aliens who seek, or engage in, unauthorized employment." Ante, at 13. Because §5(C) imposes such penalties, the Court concludes that it stands as an obstacle to the method of enforcement chosen by Congress. Ante, at 15. The one thing that is clear from the federal scheme is that Congress chose not to impose federal criminal penalties on aliens who seek or obtain unauthorized work. But that does not mean that Congress also chose to pre-empt state criminal penalties. The inference is plausible, but far from necessary. As we have said before, the "decision not to adopt a regulation" is not "the functional equivalent of a regulation prohibiting all States and their political subdivisions from adopting such a regulation." Sprietsma v. Mercury Marine, 537 U. S. 51, 65 (2002). With any statutory scheme, Congress chooses to do some things and not others. If that alone were enough to demonstrate pre-emptive intent, there would be little left over for the States to regulate, especially now that federal authority reaches so far and wide. States would occupy tiny islands in a sea of federal power. This explains why state laws implicating traditional state powers are not pre-empted unless there is a "clear and manifest" congressional intention to do so. Not only is there little evidence that Congress intended to pre-empt state laws like §5(C), there is some evidence that Congress intended the opposite result. In making it unlawful for employers to hire unauthorized aliens, see 8 U. S. C. §1324a(a), Congress made it clear that "any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws)" upon employers was pre-empted, §1324a(h)(2). Noticeably absent is any similar directive pre-empting state or local laws targeting aliens who seek or obtain unauthorized employment. Given that Congress expressly pre-empted certain state and local laws pertaining to employers but remained silent about laws pertaining to employees, one could infer that Congress intended to preserve state and local authority to regulate the employee side of the equation. At the very least, it raises serious doubts about whether Congress intended to pre-empt such authority. The Court dismisses any inferences that might be drawn from the express pre-emption provision. See ante, at 14. But even though the existence of that provision "does not bar the ordinary working of conflict pre-emption principles" or impose a " 'special burden' " against pre-emption, Geier v. American Honda Motor Co., 529 U. S. 861, 869-870 (2000), it is still probative of congressional intent. And it is the intent of Congress that is the "ultimate touchstone." Retail Clerks v. Schermerhorn, 375 U. S. 96, 103 (1963). The Court infers from Congress' decision not to impose federal criminal penalties that Congress intended to pre-empt state criminal penalties. But given that the express pre-emption provision covers only state and local laws regulating employers, one could just as well infer that Congress did not intend to pre-empt state or local laws aimed at alien employees who unlawfully seek or obtain work. Surely Congress' decision not to extend its express pre-emption provision to state or local laws like §5(C) is more probative of its intent on the subject of pre-emption than its decision not to impose federal criminal penalties for unauthorized work. In any event, the point I wish to emphasize is that inferences can be drawn either way. There are no necessary inferences that point decisively for or against pre-emption. Therefore, if we take seriously that state employment regulation is a traditional state concern and can be pre-empted only on a showing of "clear and manifest" congressional intent as required by De Canas, then §5(C) must survive. "Our precedents establish that a high threshold must be met if a state law is to be pre-empted for conflicting with the purposes of a federal Act." Chamber of Commerce of United States of America v. Whiting, 563 U. S. ___, ___ (2011) (plurality opinion) (slip op., at 22) (internal quotation marks omitted). I do not believe the United States has surmounted that barrier here.Section 6 I also disagree with the Court's decision that §6 is pre-empted. This provision adds little to the authority that Arizona officers already possess, and whatever additional authority it confers is consistent with federal law. Section 6 amended an Arizona statute that authorizes warrantless arrests. See Ariz. Rev. Stat. §13-3883 (West 2010). Before §6 was added, that statute already permitted arrests without a warrant for felonies, misdemeanors committed in the arresting officer's presence, petty offenses, and certain traffic-related criminal violations. See §§13-3883(A)(1)-(4). Largely duplicating the authority already conferred by these prior subsections, §6 added a new subsection, §13-3883(A)(5) (West Supp. 2011), that authorizes officers to make warrantless arrests on probable cause that the arrestee has committed a "public offense" for which the arrestee is removable from the United States. A "public offense" is defined as conduct that is punishable by imprisonment or a fine according to the law of the State where the conduct occurred and that would be punishable under Arizona law had the conduct occurred in Arizona. See §13-105(27). In what way, if any, does §6 enlarge the arrest authority of Arizona officers? It has been suggested that §6 confers new authority in the following three circumstances: (1) where the arrestee committed but has not been charged with committing an offense in another State; (2) where the officer has probable cause to believe the arrestee committed an offense for which he was previously arrested but not prosecuted; and (3) where the arrestee committed but has already served the sentence for a removable offense. 641 F. 3d 359, 361 (CA9 2011). These are exceedingly narrow categories, involving circumstances that will rarely arise. But such cases are possible, and therefore we must decide whether there are circumstances under which federal law precludes a state officer from making an arrest based on probable cause that the arrestee committed a removable offense.A The idea that state and local officers may carry out arrests in the service of federal law is not unprecedented. As previously noted, our cases establish that state and local officers may make warrantless arrests for violations of federal law and that "in the absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity." Di Re, 332 U. S., at 589; see also Miller, 357 U. S., at 305 (stating that, where a state officer makes an arrest based on federal law, "the lawfulness of the arrest without warrant is to be determined by reference to state law"). Therefore, given the premise, which I understand both the United States and the Court to accept, that state and local officers do have inherent authority to make arrests in aid of federal law, we must ask whether Congress has done anything to curtail or pre-empt that authority in this particular case. Neither the United States nor the Court goes so far as to say that state and local officers have no power to arrest criminal aliens based on their removability. To do so would fly in the face of 8 U. S. C. §1357(g)(10). Under §§1357(g)(1)-(9), the Federal Government may enter into formal agreements with States and municipalities under which their officers may perform certain duties of a federal immigration officer. But §1357(g)(10)(B) makes clear that States and municipalities need not enter into those agreements "otherwise to cooperate ... in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States." It goes without saying that state and local officers could not provide meaningful cooperation in the apprehension, detention, and ultimate removal of criminal aliens without some power to make arrests. Although §1357(g)(10) contemplates state and local authority to apprehend criminal aliens for the purpose of removal, the Court rejects out of hand any possibility that officers could exercise that authority without federal direction. Despite acknowledging that there is "ambiguity as to what constitutes cooperation," the Court says that "no coherent understanding of the term would incorporate the unilateral decision of state officers to arrest an alien for being removable absent any request, approval, or other instruction from the Federal Government." Ante, at 18. The Court adopts an unnecessarily stunted view of cooperation. No one would say that a state or local officer has failed to cooperate by making an on-the-spot arrest to enforce federal law. Unsolicited aid is not necessarily uncooperative. To be sure, were an officer to persist in making an arrest that the officer knows is unwanted, such conduct would not count as cooperation. But nothing in the relevant federal statutes suggests that Congress does not want aliens who have committed removable offenses to be arrested.2 To the contrary, §1226(c)(1) commands that the Executive "shall take into custody any alien" who is deportable for having committed a specified offense. And §1226(c)(2) substantially limits the circumstances under which the Executive has discretion to release aliens held in custody under paragraph (1). So if an officer arrests an alien who is removable for having committed one of the crimes listed in §1226(c)(1), the Federal Government is obligated to take the alien into custody. That Congress generally requires the Executive to take custody of criminal aliens casts considerable doubt on the Court's concern that §6 is an obstacle to the Federal Government's exercise of discretion. The Court claims that the authority conferred by §6 "could be exercised without any input from the Federal Government about whether an arrest is warranted in a particular case" and that this "would allow the State to achieve its own immigration policy," resulting in the "unnecessary harassment of some aliens ... whom federal officials determine should not be removed." Ante, at 17. But §1226(c)(1) belies the Court's fear. In many, if not most, cases involving aliens who are removable for having committed criminal offenses, Congress has left the Executive no discretion but to take the alien into custody. State and local officers do not frustrate the removal process by arresting criminal aliens. The Executive retains complete discretion over whether those aliens are ultimately removed. And once the Federal Government makes a determination that a particular criminal alien will not be removed, then Arizona officers are presumably no longer authorized under §6 to arrest the alien. To be sure, not all offenses for which officers have authority to arrest under §6 are covered by §1226(c)(1). As for aliens who have committed those offenses, Congress has given the Executive discretion under §1226(a) over whether to arrest and detain them pending a decision on removal. But the mere fact that the Executive has enforcement discretion cannot mean that the exercise of state police powers in support of federal law is automatically pre-empted. If that were true, then state and local officers could never make arrests to enforce any federal statute because the Executive always has at least some general discretion over the enforcement of federal law as a practical matter. But even assuming that the express statutory grant of discretion in §1226(a) somehow indicates a congressional desire to pre-empt unilateral state and local authority to arrest criminal aliens covered by that provision, §6 is not pre-empted on its face given its substantial overlap with §1226(c)(1). It bears emphasizing that §6 does not mandate the warrantless apprehension of all aliens who have committed crimes for which they are removable. Instead, it only grants state and local officers permission to make such arrests. The trouble with this premature, facial challenge is that it affords Arizona no opportunity to implement its law in a way that would avoid any potential conflicts with federal law. For example, Arizona could promulgate guidelines or regulations limiting the arrest authority conferred by §6 to the crimes specified in §1226(c)(1). And to the extent §1226(c)(1) is unclear about which exact crimes are covered,3 Arizona could go even further and identify specific crimes for which there is no doubt an alien would be removable. The point is that there are plenty of permissible applications of §6, and the Court should not invalidate the statute at this point without at least some indication that Arizona has implemented it in a manner at odds with Congress' clear and manifest intent. We have said that a facial challenge to a statute is "the most difficult challenge to mount successfully" because "the challenger must establish that no set of circumstances exists under which the [statute] would be valid." United States v. Salerno, 481 U. S. 739, 745 (1987); see also Anderson v. Edwards, 514 U. S. 143, 155, n. 6 (1995) (applying the Salerno standard in a pre-emption case). As to §6, I do not believe the United States has carried that heavy burden.B Finally, the Court tells us that §6 conflicts with federal law because it provides state and local officers with "even greater authority to arrest aliens on the basis of possible removability than Congress has given to trained federal immigration officers." Ante, at 16-17. The Court points to 8 U. S. C. §1357(a)(2), which empowers "authorized" officers and employees of ICE to make arrests without a federal warrant if "the alien so arrested is in the United States in violation of any [immigration] law or regulation and is likely to escape before a warrant can be obtained for his arrest." Because §6 would allow Arizona officers to make arrests "regardless of whether a federal warrant has issued or the alien is likely to escape," ante, at 17, the Court concludes that §6 is an obstacle to the accomplishment of Congress' objectives. But §6 is an obstacle only to the extent it conflicts with Congress' clear and manifest intent to preclude state and local officers from making arrests except where a federal warrant has issued or the arrestee is likely to escape. By granting warrantless arrest authority to federal officers, Congress has not manifested an unmistakable intent to strip state and local officers of their warrantless arrest authority under state law. Likewise, limitations on federal arrest authority do not mean that the arrest authority of state and local officers must be similarly limited. Our opinion in Miller, 357 U. S. 301, is instructive. In that case, a District of Columbia officer, accompanied by a federal officer, made an arrest based on a suspected federal narcotics offense. Id., at 303-304. The federal officer did not have statutory authorization to arrest without a warrant, but the local officer did. Id., at 305. We held that District of Columbia law dictated the lawfulness of the arrest. Id., at 305-306. Where a state or local officer makes a warrantless arrest to enforce federal law, we said that "the lawfulness of the arrest without warrant is to be determined by reference to state law." Id., at 305. Under §6, an Arizona officer may be authorized to make an arrest that a federal officer may not be authorized to make under §1357(a)(2). As Miller makes clear, that fact alone does not render arrests by state or local officers pursuant to §6 unlawful. Nor does it manifest a clear congressional intent to displace the exercise of state police powers that are brought to bear in aid of federal law.FOOTNOTESFootnote 1 Many of the 17th-, 18th-, and 19th-century commentators maintained that states should exclude foreigners only for good reason. Pufendorf, for example, maintained that states are generally expected to grant "permanent settlement to strangers who have been driven from their former home," though acknowledging that, when faced with the prospect of mass immigration, "every state may decide after its own custom what privilege should be granted in such a situation." 2 Of the Law of Nature and Nations, bk. III, ch. III, §10, p. 366 (C. Oldfather & W. Oldfather eds. 1934). See generally Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 Tex. L. Rev. 1, 83-87 (2002). But the authority to exclude was universally accepted as inherent in sovereignty, whatever prudential limitations there might be on its exercise.Footnote 2 E.g., Va. Code Tit. 54, ch. 198, §39 (1849) ("If a master of a vessel or other person, knowingly, import or bring into this state, from any place out of the United States, any person convicted of crime . . . he shall be confined in jail for three months, and be fined one hundred dollars").Footnote 3 There were two Alien Acts, one of which dealt only with enemy aliens. An Act respecting Alien Enemies, 1 Stat. 577.Footnote 4 Preston & Cushman, Obama to Permit Young Migrants to Remain in U. S., N. Y. Times, June 16, 2012, p. A1.Footnote 5 Memorandum from Janet Napolitano, Secretary of Homeland Security, to David V. Aguilar, Acting Commissioner, U. S. Customs and Border Protection; Alejandro Mayorkas, Director, U. S. Citizenship and Immigration Services; and John Morton, Director, U. S. Immigration and Customs Enforcement, p. 1 (June 15, 2012), online at http://www.dhs.gov (all Internet materials as visited June 22, 2012, and available in Clerk of Court's case file).Footnote 6 Id., at 2.Footnote 7 Remarks by the President on Immigration (June 15, 2012), online at http://www.whitehouse.gov.FOOTNOTESFootnote 1 When the Real ID Act takes effect, the Federal Government will no longer accept state forms of identification that fail to meet certain federal requirements. §202(a)(1), 119 Stat. 312. One requirement is that any identification be issued only on proof that the applicant is lawfully present in the United States. §202(c)(2)(B), id., at 313. I anticipate that most, if not all, States will eventually issue forms of identification that suffice to establish lawful presence under §2(B).Footnote 2 That goes for the Executive Branch as well, which has made the apprehension and removal of criminal aliens a priority. See App. 108.Footnote 3 I readily admit that it can be difficult to determine whether a particular conviction will necessarily make an alien removable. See Padilla v. Kentucky, 559 U. S. ___, ___ (2010) (Alito, J., concurring in judgment) (slip op., at 4).

Petitioner and his wife were divorced by a Texas court. Custody of their only child was granted to the respondent mother and petitioner was ordered to pay a monthly sum for the child's support. The mother thereafter married respondent Manzo, who two years later sought to become the child's adoptive father. State law requires the natural father's written consent to adoption, an exception existing if he has not substantially contributed to the child's support for two years commensurate with his financial ability. In that case the written consent of the juvenile court judge in the county of the child's residence may be accepted. The mother filed an affidavit in her county juvenile court alleging petitioner's failure for more than two years to contribute to the child's support and the judge consented to the adoption. Respondents the same day filed an adoption petition alleging that the natural father's consent was not necessary because he had not contributed to the child's support commensurate with his ability for a period of over two years and that the juvenile court judge had given his written consent. No notice of the affidavit or adoption petition was given to petitioner, though his whereabouts were well known to respondents. An adoption decree was later entered making Manzo the child's adoptive father, upon being advised of which petitioner filed a motion seeking to have the court annul its decree. A hearing was held at which petitioner introduced evidence that he had not failed to contribute to his child's support but the court denied petitioner's motion. The appellate court affirmed notwithstanding petitioner's contention of deprivation of due process of law because of entry of the decree without notice, and the state supreme court refused review. Held: 1. Failure to give petitioner notice of the pending adoption proceedings deprived him of his rights without due process of law. P. 550. 2. The hearing subsequently granted to petitioner did not remove the constitutional infirmity since petitioner was forced to assume burdens of proof which, had he been accorded notice of the adoption proceedings, would have rested upon the moving parties. Pp. 550-552. 371 S. W. 2d 407, reversed and remanded.Ewell Lee Smith, Jr., argued the cause for petitioner. With him on the brief were Eugene L. Smith and Ed M. Brown.William Duncan argued the cause for respondents. With him on the brief was Eugene T. Edwards.MR. JUSTICE STEWART delivered the opinion of the Court.The petitioner, R. Wright Armstrong, Jr., and his wife were divorced by a Texas court in 1959. Custody of their only child, Molly Page Armstrong, was awarded to Mrs. Armstrong, and the petitioner was granted "the privilege of visiting with said child at reasonable times, places, and intervals." The divorce decree ordered the petitioner to pay $50 a month for his daughter's support. In 1960 Mrs. Armstrong married the respondent, Salvatore E. Manzo. Two years later the Manzos filed a petition for adoption in the District Court of El Paso County, Texas, seeking to make Salvatore Manzo the legal father of Molly Page Armstrong.1 Texas law provides that an adoption such as this one shall not be permitted without the written consent of the child's natural father, except in certain specified circumstances. One such exceptional circumstance is if the father "shall have not contributed substantially to the support of such child during [a] period of two (2) years commensurate with his financial ability." In that event, the written consent of the judge of the juvenile court of the county of the child's residence may be accepted by the adoption court in lieu of the father's consent.2 Preliminary to filing the adoption petition, Mrs. Manzo filed an affidavit in the juvenile court, alleging in conclusory terms that the petitioner had "failed to contribute to the support of" Molly Page Armstrong "for a period in excess of two years preceding this date." No notice was given to the petitioner of the filing of this affidavit, although the Manzos well knew his precise whereabouts in Fort Worth, Texas. On the basis of the affidavit, and without, so far as the record shows, a hearing of any kind, the juvenile court judge promptly issued his consent to the adoption. In the adoption petition, filed later the same day, the Manzos alleged that "consent of the natural father, R. W. Armstrong, Jr., to the adoption herein sought is not necessary upon grounds that the said father has not contributed to the support of said minor child commensurate with his ability to do so for a period in excess of two (2) years, and the Judge of a Juvenile Court of El Paso County, Texas ... has consented in writing to said adoption." No notice of any kind was given to the petitioner of the filing or pendency of this adoption petition.An investigator appointed by the court made a detailed written report recommending the adoption, and a few weeks later the adoption decree was entered. The decree provided in accord with Texas law that "all legal relationship and all rights and duties between such Child and the natural father shall cease and determine, and such Child is hereafter deemed and held to be for every purpose the child of its parent by adoption, as fully as though naturally born to him in lawful wedlock."3 and further provided that "the said Molly Page Armstrong shall be known by the Christian and Surname as Molly Page Manzo, from this day forward."During this entire period the petitioner was not given, and did not have, the slightest inkling of the pendency of these adoption proceedings. On the day the decree was entered, however, Salvatore Manzo wrote to the petitioner's father, advising him that "I have this date completed court action to adopt Molly Page as my daughter and to change her name to Molly Page Manzo." The petitioner's father immediately relayed this news to the petitioner, who promptly filed a motion in the District Court of El Paso County, asking that the adoption decree be "set aside and annulled and a new trial granted," upon the ground that he had been given no notice of the adoption proceedings.4 The court did not vacate the adoption decree, but set a date for hearing on the motion. At that hearing the petitioner introduced evidence, through witnesses and by depositions, in an effort to show that he had not failed to contribute to his daughter's support "commensurate with his financial ability."5 At the conclusion of the hearing the court entered an order denying the petitioner's motion and providing that the "adoption decree entered herein is in all things confirmed."The petitioner appealed to the appropriate Texas court of civil appeals, upon the ground, among others, that the trial court had erred in not setting aside the adoption decree, because the entry of the decree without notice to the petitioner had deprived him "of his child without due process of law." The appellate court affirmed the trial court's judgment,6 and the Supreme Court of Texas refused an application for writ of error.We granted certiorari. . The questions before us are whether failure to notify the petitioner of the pendency of the adoption proceedings deprived him of due process of law so as to render the adoption decree constitutionally invalid, and, if so, whether the subsequent hearing on the petitioner's motion to set aside the decree served to cure its constitutional invalidity. In disposing of the first issue, there is no occasion to linger long. It is clear that failure to give the petitioner notice of the pending adoption proceedings violated the most rudimentary demands of due process of law. "Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case." Mullane v. Central Hanover Tr. Co., , at 313. "An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. Milliken v. Meyer, ; Grannis v. Ordean, ; Priest v. Las Vegas, ; Roller v. Holly, ... ." Id., at 314. Questions frequently arise as to the adequacy of a particular form of notice in a particular case. See, e. g., Schroeder v. City of New York, ; New York v. New York, N. H. & H. R. Co., ; Walker v. Hutchinson City, ; Mullane v. Central Hanover Tr. Co., supra. But as to the basic requirement of notice itself there can be no doubt, where, as here, the result of the judicial proceeding was permanently to deprive a legitimate parent of all that parenthood implies. Cf. May v. Anderson, .The Texas Court of Civil Appeals implicitly recognized this constitutional rule, but held, in accord with its understanding of the Texas precedents,7 that whatever constitutional infirmity resulted from the failure to give the petitioner notice had been cured by the hearing subsequently afforded to him upon his motion to set aside the decree. 371 S. W. 2d, at 412. We cannot agree.Had the petitioner been given the timely notice which the Constitution requires, the Manzos, as the moving parties, would have had the burden of proving their case as against whatever defenses the petitioner might have interposed. See Jones v. Willson, 285 S. W. 2d 877; Ex parte Payne, 301 S. W. 2d 194. It would have been incumbent upon them to show not only that Salvatore Manzo met all the requisites of an adoptive parent under Texas law, but also to prove why the petitioner's consent to the adoption was not required. Had neither side offered any evidence, those who initiated the adoption proceedings could not have prevailed.Instead, the petitioner was faced on his first appearance in the courtroom with the task of overcoming an adverse decree entered by one judge, based upon a finding of nonsupport made by another judge. As the record shows, there was placed upon the petitioner the burden of affirmatively showing that he had contributed to the support of his daughter to the limit of his financial ability over the period involved. The burdens thus placed upon the petitioner were real, not purely theoretical. For "it is plain that where the burden of proof lies may be decisive of the outcome." Speiser v. Randall, . Yet these burdens would not have been imposed upon him had he been given timely notice in accord with the Constitution. A fundamental requirement of due process is "the opportunity to be heard." Grannis v. Ordean, . It is an opportunity which must be granted at a meaningful time and in a meaningful manner. The trial court could have fully accorded this right to the petitioner only by granting his motion to set aside the decree and consider the case anew. Only that would have wiped the slate clean. Only that would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place. His motion should have been granted.For the reasons stated, the judgment is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Since the order of the Subversive Activities Control Board, affirmed by the Court of Appeals, requiring that petitioner register as a "Communist-front" organization was based upon evidence at a hearing which ended in 1955 which related largely to the activities of one individual who died prior to the Board's order, the judgment is vacated and the cause remanded to determine petitioner's current status. App. D.C. 393, 331 F.2d 53, vacated and remanded.Joseph Forer argued the cause for petitioner. With him on the briefs was David Rein.Bruce J. Terris argued the cause for respondent. With him on the brief were Solicitor General Cox, Assistant Attorney General Yeagley, Kevin T. Maroney, George B. Searls and Doris H. Spangenburg.Melvin L. Wulf and Marvin M. Karpatkin filed a brief for the American Civil Liberties Union, as amicus curiae, urging reversal.PER CURIAM.The Court of Appeals for the District of Columbia Circuit affirmed an order of the Subversive Activities Control Board requiring that the petitioner register as a "Communist-front" organization under 7 of the Subversive Activities Control Act of 1950, as amended, 64 Stat. 993, 50 U.S.C. 786 (1958 ed.). App. D.C. 393, 331 F.2d 53. We granted certiorari. . Under the statute, a determination that an organization is a Communist front must rest on findings that it "(A) is substantially directed, dominated, or controlled by a Communist-action organization, and (B) is primarily operated for the purpose of giving aid and support to a Communist-action organization ... ." 3 (4), 64 Stat. 989, 50 U.S.C. 782 (4) (1958 ed.). In Communist Party of the United States v. Subversive Activities Control Board, , this Court sustained the Board's determination that the Communist Party is a "Communist-action organization" within the meaning of 3 (3) of the Act; in doing so, the Court upheld the registration requirement against First Amendment attack and found an objection based on the Fifth Amendment privilege against self-incrimination not ripe for decision.In the present case the Board's findings that petitioner is a "communist front" were based primarily upon evidence taken at a hearing which was concluded in 1955. The findings which support the conclusion that the petitioner is controlled by and primarily operated for the purpose of giving aid and support to the Communist Party rest in substantial measure upon evidence of the activities of Abner Green, found to be a Party member expressly assigned in 1941 to be petitioner's executive secretary. Green died in 1959. The Board's order was filed on June 27, 1960, but the record discloses no findings or evidence concerning petitioner's activities after Green's death.1 In the circumstances we think that the record should be brought up to date to take account of supervening events. Since a registration order operates prospectively, it is apparent that reasonably current aid and control must be established to justify a registration order. Our Communist Party decision on the Communist-action provisions did not necessarily foreclose petitioner's constitutional questions bearing on the Communist-front provisions.2 Since petitioner's current status is not clear on this record, decision of the serious constitutional questions raised by the order is neither necessary nor appropriate. The judgment of the Court of Appeals is vacated, and the cause remanded for proceedings consistent with this opinion. It is so ordered.MR. JUSTICE WHITE took no part in the decision of this case.

The judgment of the District Court holding invalid certain Pennsylvania apportionment statutes and constitutional provisions vacated and cause remanded for further consideration in the light of supervening decisions. Pp. 40-42. 229 F. Supp. 310, vacated and remanded.Walter E. Alessandroni, Attorney General of Pennsylvania, and Edward Friedman and Alan Miles Ruben, Deputy Attorneys General, for appellants. Marvin Comisky, Thomas D. McBride, Goncer M. Krestal and Marshall J. Seidman for appellees.PER CURIAM.The judgment of the District Court appealed from was entered on April 9, 1964, 229 F. Supp. 310 (D.C. M. D. Pa.). The District Court held invalid under the Fourteenth Amendment to the United States Constitution, the Pennsylvania Representative Apportionment Act of January 9, 1964, P. L. 1419, 25 Purdon's Pa. Stat. Ann. 2221-2222 (1963 Supp., including Acts of the 1963 Extra Session), the Pennsylvania Senatorial Apportionment Act of January 9, 1964, P. L. 1432, 25 Purdon's Pa. Stat. Ann. 2217-2220 (1963 Supp., including Acts of the 1963 Extra Session), and the Pennsylvania Constitution's legislative apportionment provisions, Art. II, 16, 17. The court restrained appellants from conducting any future elections under the apportionment acts, but stayed its order pending the disposition of an appeal to this Court. Thereafter on June 15, 1964, this Court decided Reynolds v. Sims, , and companion cases: WMCA, Inc. v. Lomenzo, ; Maryland Comm. for Fair Representation v. Tawes, ; Davis v. Mann, ; Roman v. Sincock, ; Lucas v. Forty-Fourth General Assembly of Colorado, . On September 29, 1964, the Supreme Court of Pennsylvania handed down a decision construing the legislative apportionment provisions of the Pennsylvania Constitution, and holding these provisions constitutional as construed. The court, however, declared invalid, under the Fourteenth Amendment to the United States Constitution, the Pennsylvania legislative apportionment laws at issue in this appeal. Butcher v. Bloom, 415 Pa. 438, 203 A. 2d 556. The Pennsylvania court retained jurisdiction of the case, stating: "We have indicated that it is our expectation that the Legislature will proceed in timely fashion to enact reapportionment laws which conform to constitutional requirements. We must recognize, however, that if the General Assembly fails to act in a timely fashion, we shall be obliged to take necessary affirmative action to insure that the 1966 election of Pennsylvania legislators will be conducted pursuant to a constitutionally valid plan. Proper regard for our responsibility compels us to retain jurisdiction of this matter pending legislative action. "Should the Legislature fail to enact a constitutionally valid plan of reapportionment as soon as practical, but not later than September 1, 1965, we shall take such action as may be appropriate in light of the then existing situation. "Jurisdiction retained in accordance with this opinion." Id., at 468-469, 203 A. 2d, at 573. The judgment of the District Court is therefore vacated and the cause is remanded for further consideration in light of the decisions supervening since the entry of the judgment of the District Court. Vacated and remanded.

Respondent State Bar of California (State Bar) is an "integrated bar" - i. e., an association of attorneys in which membership and dues are required as a condition of practicing law - created under state law to regulate the State's legal profession. In fulfilling its broad statutory mission to "promote the improvement of the administration of justice," the Bar uses its membership dues for self-regulatory functions, such as formulating rules of professional conduct and disciplining members for misconduct. It also uses dues to lobby the legislature and other governmental agencies, file amicus curiae briefs in pending cases, hold an annual delegates conference for the debate of current issues and the approval of resolutions, and engage in educational programs. Petitioners, State Bar members, brought suit in state court claiming that through these latter activities the Bar expends mandatory dues payments to advance political and ideological causes to which they do not subscribe, in violation of their First and Fourteenth Amendment rights to freedom of speech and association. They requested, inter alia, an injunction restraining the Bar from using mandatory dues or its name to advance political and ideological causes or beliefs. The court granted summary judgment to the Bar on the grounds that it is a governmental agency and therefore permitted under the First Amendment to engage in the challenged activities. The Court of Appeal reversed, holding that, while the Bar's regulatory activities were similar to those of a government agency, its "administration-of-justice" functions were more akin to the activities of a labor union. Relying on the analysis of Abood v. Detroit Bd. of Education, - which prohibits the agency-shop dues of dissenting nonunion employees from being used to support political and ideological union causes that are unrelated to collective-bargaining activities - the court held that the Bar's activities could be financed from mandatory dues only if a particular action served a state interest important enough to overcome the interference with dissenters' First Amendment rights. The State Supreme Court reversed, reasoning that the Bar was a "government agency" that could use its dues for any purpose within the scope of its statutory authority, and that subjecting the Bar's activities to First Amendment scrutiny would place an "extraordinary burden" on its statutory mission. With the exception of certain election campaigning, the court found that all of the challenged activities fell within the Bar's statutory authority.Held: 1. The State Bar's use of petitioners' compulsory dues to finance political and ideological activities with which petitioners disagree violates their First Amendment right of free speech when such expenditures are not necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of legal services. Pp. 9-17. (a) The State Supreme Court's determination that the State Bar is a "government agency" for the purposes of state law is not binding on this Court when such a determination is essential to the decision of a federal question. The State Bar is not a typical "government agency." The Bar's principal funding comes from dues levied on its members rather than from appropriations made by the legislature; its membership is composed solely of lawyers admitted to practice in the State; and its services by way of governance of the profession are essentially advisory in nature, since the ultimate responsibility of such governance is reserved by state law to the State Supreme Court. By contrast, there is a substantial analogy between the relationship of the Bar and its members and that of unions and their members. Just as it is appropriate that employees who receive the benefit of union negotiation with their employer pay their fair share of the cost of that process by paying agency-shop dues, it is entirely appropriate that lawyers who derive benefit from the status of being admitted to practice before the courts should be called upon to pay a fair share of the cost of the professional involvement in this effort. The State Bar was created, not to participate in the general government of the State, but to provide specialized professional advice to those with the ultimate responsibility of governing the legal profession. These differences between the State Bar and traditional government agencies render unavailing respondents' argument that it is not subject to the same constitutional rule with respect to the use of compulsory dues as are labor unions. Pp. 10-13. (b) Abood cannot be distinguished on the ground that the compelled association in the context of labor unions serves only a private economic interest in collective bargaining while the Bar serves more substantial public interests. In fact, the legislative recognition that the agency-shop arrangements serve vital national interests in preserving industrial peace indicates that they serve a substantial public interest as well. It is not possible to determine that the Bar's interests outweigh these other interests sufficiently to produce a different result here. P. 13. (c) The guiding standard for determining permissible Bar expenditures relating to political or ideological activities is whether the challenged expenditures are necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of legal services. Precisely where the line falls between permissible and impermissible dues-financed activities will not always be easy to discern. But the extreme ends of the spectrum are clear: Compulsory dues may not be used to endorse or advance a gun control or nuclear weapons freeze initiative, but may be spent on activities connected with disciplining Bar members or proposing the profession's ethical codes. Pp. 13-16. (d) Since the Bar is already required to submit detailed budgets to the state legislature before obtaining approval to set annual dues, the State Supreme Court's assumption that complying with Abood would create an extraordinary burden for the Bar is unpersuasive. Any burden that might result is insufficient to justify contravention of a constitutional mandate, and unions have operated successfully within the boundaries of Abood procedures for over a decade. An integrated bar could meet its Abood obligation by adopting the sort of procedures described in Teachers v. Hudson, . Questions whether alternative procedures would also satisfy the obligation should be left for consideration upon a more fully developed record. Pp. 16-17. 2. Petitioners' freedom of association claim based on the State Bar's use of its name to advance political and ideological causes or beliefs will not be addressed by this Court in the first instance. P. 17. 47 Cal. 3d 1152, 767 P.2d 1020, reversed and remanded.REHNQUIST, C. J., delivered the opinion for a unanimous Court.Anthony T. Caso argued the cause for petitioners. With him on the briefs were Ronald A. Zumbrun and John H. Findley.Seth M. Hufstedler argued the cause for respondents. With him on the brief were Robert S. Thompson, Laurie D. Zelon, Judith R. Starr, Herbert M. Rosenthal, and Diane Yu.* [Footnote *] Briefs of amici curiae urging reversal were filed for the Ad Hoc Committee Opposing Lobbying and Certain Other Activities of a Mandatory Bar by James J. Bierbower; for the American Civil Liberties Union by Steven R. Shapiro and John A. Powell; for the National Right to Work Legal Defense Foundation by Edwin Vieira; for the Washington Legal Foundation et al. by Daniel J. Popeo, Paul D. Kamenar, and John C. Scully; for Robert E. Gibson by Herbert R. Kraft; for Trayton L. Lathrop, pro se; and for Joseph W. Little, pro se.Briefs of amici curiae urging affirmance were filed for the American Bar Association by L. Stanley Chauvin, Jr., Carter G. Phillips, and Mark D. Hopson; for the American Federation of Labor and Congress of Industrial Organizations by Marsha S. Berzon and Laurence Gold; for the Beverly Hills Bar Association et al. by Ellis J. Horvitz and Peter Abrahams; for the California Legislature by Bion M. Gregory; for the Lawyers' Committee for the Administration of Justice by James J. Brosnahan; for the State Bar of Michigan et al. by Michael Franck and Michael J. Karwoski; and for the State Bar of Wisconsin et al. by John S. Skilton, Barry S. Richard, and Stephen L. Tober.Steven Levine, pro se, filed a brief of amicus curiae.CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Petitioners, members of respondent State Bar of California, sued that body, claiming its use of their membership dues to finance certain ideological or political activities to which they were opposed violated their rights under the First Amendment of the United States Constitution. The Supreme Court of California rejected this challenge on the grounds that the State Bar is a state agency and, as such, may use the dues for any purpose within its broad statutory authority. We agree that lawyers admitted to practice in the State may be required to join and pay dues to the State Bar, but disagree as to the scope of permissible dues-financed activities in which the State Bar may engage.The State Bar is an organization created under California law to regulate the State's legal profession.1 It is an entity commonly referred to as an "integrated bar" - an association of attorneys in which membership and dues are required as a condition of practicing law in a State. Respondent's broad statutory mission is to "promote `the improvement of the administration of justice.'" 47 Cal. 3d 1152, 1156, 767 P.2d 1020, 1021 (1989) (quoting Cal. Bus. & Prof. Code Ann. 6031(a) (West Supp. 1990)). The association performs a variety of functions such as "examining applicants for admission, formulating rules of professional conduct, disciplining members for misconduct, preventing unlawful practice of the law, and engaging in study and recommendation of changes in procedural law and improvement of the administration of justice." 47 Cal. 3d, at 1159, 767 P.2d, at 1023-1024 (internal quotation marks omitted). Respondent also engages in a number of other activities which are the subject of the dispute in this case. "[T]he State Bar for many years has lobbied the Legislature and other governmental agencies, filed amicus curiae briefs in pending cases, held an annual conference of delegates at which issues of current interest are debated and resolutions approved, and engaged in a variety of education programs." Id., at 1156, 767 P.2d, at 1021-1022. These activities are financed principally through the use of membership dues.Petitioners, 21 members of the State Bar, sued in state court claiming that through these activities respondent expends mandatory dues payments to advance political and ideological causes to which they do not subscribe.2 Asserting that their compelled financial support of such activities violates their First and Fourteenth Amendment rights to freedom of speech and association, petitioners requested, inter alia, an injunction restraining respondent from using mandatory bar dues or the name of the State Bar to advance political and ideological causes or beliefs. The trial court granted summary judgment to respondent on the grounds that it is a governmental agency and therefore permitted under the First Amendment to engage in the challenged activities. The California Court of Appeal reversed, holding that while respondent's regulatory activities were similar to those of a government agency, its "administration-of-justice" functions were more akin to the activities of a labor union. The court held that under our opinion in Abood v. Detroit Board of Education, , such activities "could be financed from mandatory dues only if the particular action in question served a state interest important enough to overcome the interference with dissenters' First Amendment rights." 47 Cal. 3d, at 1159, 767 P.2d, at 1023.The Supreme Court of California reversed the Court of Appeal by a divided vote. The court reasoned that respondent's status as a public corporation, as well as certain of its other characteristics, made it a "government agency." It also expressed its belief that subjecting respondent's activities to First Amendment scrutiny would place an "extraordinary burden" on its mission to promote the administration of justice. Id., at 1161-1166, 767 P.2d, at 1025-1028. The court distinguished other cases subjecting the expenditures of state bar associations to First Amendment scrutiny, see, e. g., Gibson v. The Florida Bar, 798 F.2d 1564 (CA11 1986), on the grounds that none of the associations involved in those cases rested "upon a constitutional and statutory structure comparable to that of the California State Bar. None involves an extensive degree of legislative involvement and regulation." 47 Cal. 3d, at 1167, 767 P.2d, at 1029. The court concluded that "the State Bar, considered as a government agency, may use dues for any purpose within the scope of its statutory authority." Id., at 1168, 767 P.2d, at 1030. With the exception of certain election campaigning conducted by respondent and its president, the court found that all of respondent's challenged activities fell within its statutory authority. Id., at 1168-1173, 767 P.2d, at 1030-1033. We granted certiorari, , to consider petitioners' First Amendment claims. We now reverse and remand for further proceedings.In Lathrop v. Donohue, , a Wisconsin lawyer claimed that he could not constitutionally be compelled to join and financially support a state bar association which expressed opinions on, and attempted to influence, legislation. Six Members of this Court, relying on Railway Employes v. Hanson, , rejected this claim."In our view the case presents a claim of impingement upon freedom of association no different from that which we decided in [Hanson]. We there held that 2, Eleventh of the Railway Labor Act ... did not on its face abridge protected rights of association in authorizing union-shop agreements between interstate railroads and unions of their employees conditioning the employees' continued employment on payment of union dues, initiation fees and assessments... . In rejecting Hanson's claim of abridgment of his rights of freedom of association, we said, `On the present record, there is no more an infringement or impairment of First Amendment rights than there would be in the case of a lawyer who by state law is required to be a member of an integrated bar.' 351 U.S., at 238. Both in purport and in practice the bulk of State Bar activities serve the function, or at least so Wisconsin might reasonably believe, of elevating the educational and ethical standards of the Bar to the end of improving the quality of the legal service available to the people of the State, without any reference to the political process. It cannot be denied that this is a legitimate end of state policy. We think that the Supreme Court of Wisconsin, in order to further the State's legitimate interests in raising the quality of professional services, may constitutionally require that the costs of improving the profession in this fashion should be shared by the subjects and beneficiaries of the regulatory program, the lawyers, even though the organization created to attain the objective also engages in some legislative activity. Given the character of the integrated bar shown on this record, in the light of the limitation of the membership requirement to the compulsory payment of reasonable annual dues, we are unable to find any impingement upon protected rights of association." Lathrop, 367 U.S., at 842-843 (plurality opinion) (footnote omitted). Justice Harlan, joined by Justice Frankfurter, similarly concluded that "[t]he Hanson case ... decided by a unanimous Court, surely lays at rest all doubt that a State may constitutionally condition the right to practice law upon membership in an integrated bar association, a condition fully as justified by state needs as the union shop is by federal needs." Id., at 849 (opinion concurring in judgment).The Lathrop plurality emphasized, however, the limited scope of the question it was deciding: "[Lathrop's] compulsory enrollment imposes only the duty to pay dues... . We therefore are confronted, as we were in [Hanson], only with a question of compelled financial support of group activities, not with involuntary membership in any other aspect." Id., at 827-828 (footnote omitted). Indeed, the plurality expressly reserved judgment on Lathrop's additional claim that his free speech rights were violated by the Wisconsin Bar's use of his mandatory dues to support objectionable political activities, believing that the record was not sufficiently developed to address this particular claim.3 Petitioners here present this very claim for decision, contending that the use of their compulsory dues to finance political and ideological activities of the State Bar with which they disagree violates their rights of free speech guaranteed by the First Amendment.In Abood v. Detroit Board of Education, , the Court confronted the issue whether, consistent with the First Amendment, agency-shop dues of nonunion public employees could be used to support political and ideological causes of the union which were unrelated to collective-bargaining activities. We held that while the Constitution did not prohibit a union from spending "funds for the expression of political views ... or toward the advancement of other ideological causes not germane to its duties as collective-bargaining representative," the Constitution did require that such expenditures be "financed from charges, dues, or assessments paid by employees who [did] not object to advancing those ideas and who [were] not coerced into doing so against their will by the threat of loss of governmental employment." Id., at 235-236. The Court noted that just as prohibitions on making contributions to organizations for political purposes implicate fundamental First Amendment concerns, see Buckley v. Valeo, , "compelled ... contributions for political purposes works no less an infringement of ... constitutional rights." Abood, supra, at 234. The Court acknowledged Thomas Jefferson's view that "`to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical.'" 431 U.S., at 234-235, n. 31 (quoting I. Brant, James Madison: The Nationalist 354 (1948)). While the decision in Abood was also predicated on the grounds that a public employee could not be compelled to relinquish First Amendment rights as a condition of public employment, see 431 U.S., at 234-236, in the later case of Ellis v. Railway Clerks, , the Court made it clear that the principles of Abood apply equally to employees in the private sector. See 466 U.S., at 455-457.Although several federal and state courts have applied the Abood analysis in the context of First Amendment challenges to integrated bar associations, see 47 Cal. 3d, at 1166, 767 P.2d, at 1028 (collecting cases), the California Supreme Court in this case held that respondent's status as a regulated state agency exempted it from any constitutional constraints on the use of its dues. "If the bar is considered a governmental agency, then the distinction between revenue derived from mandatory dues and revenue from other sources is immaterial. A governmental agency may use unrestricted revenue, whether derived from taxes, dues, fees, tolls, tuition, donation, or other sources, for any purposes within its authority." Id., at 1167, 767 P.2d, at 1029. Respondent also urges this position, invoking the so-called "government speech" doctrine: "The government must take substantive positions and decide disputed issues to govern... . So long as it bases its actions on legitimate goals, government may speak despite citizen disagreement with the content of its message, for government is not required to be content-neutral." Brief for Respondents 16. See also Abood, supra, at 259, n. 13 (Powell, J., concurring in judgment) ("[T]he reason for permitting the government to compel the payment of taxes and to spend money on controversial projects is that the government is representative of the people").Of course the Supreme Court of California is the final authority on the "governmental" status of the State Bar of California for purposes of state law. But its determination that respondent is a "government agency," and therefore entitled to the treatment accorded a governor, a mayor, or a state tax commission, for instance, is not binding on us when such a determination is essential to the decision of a federal question. The State Bar of California is a good deal different from most other entities that would be regarded in common parlance as "governmental agencies." Its principal funding comes, not from appropriations made to it by the legislature, but from dues levied on its members by the board of governors.4 Only lawyers admitted to practice in the State of California are members of the State Bar, and all 122,000 lawyers admitted to practice in the State must be members. Respondent undoubtedly performs important and valuable services for the State by way of governance of the profession, but those services are essentially advisory in nature. The State Bar does not admit anyone to the practice of law, it does not finally disbar or suspend anyone, and it does not ultimately establish ethical codes of conduct. All of those functions are reserved by California law to the State Supreme Court. See Cal. Bus. & Prof. Code Ann. 6064 (West 1974) (admissions); 6076 (rules of professional conduct); Cal. Bus. & Prof. Code Ann. 6100 (West Supp. 1990) (disbarment or suspension).There is, by contrast, a substantial analogy between the relationship of the State Bar and its members, on the one hand, and the relationship of employee unions and their members, on the other. The reason behind the legislative enactment of "agency-shop" laws is to prevent "free riders" - those who receive the benefit of union negotiation with their employers, but who do not choose to join the union and pay dues - from avoiding their fair share of the cost of a process from which they benefit. The members of the State Bar concededly do not benefit as directly from its activities as do employees from union negotiations with management, but the position of the organized bars has generally been that they prefer a large measure of self-regulation to regulation conducted by a government body which has little or no connection with the profession. The plan established by California for the regulation of the profession is for recommendations as to admission to practice, the disciplining of lawyers, codes of conduct, and the like to be made to the courts or the legislature by the organized bar. It is entirely appropriate that all of the lawyers who derive benefit from the unique status of being among those admitted to practice before the courts should be called upon to pay a fair share of the cost of the professional involvement in this effort.But the very specialized characteristics of the State Bar of California discussed above served to distinguish it from the role of the typical government official or agency. Government officials are expected as a part of the democratic process to represent and to espouse the views of a majority of their constituents. With countless advocates outside of the government seeking to influence its policy, it would be ironic if those charged with making governmental decisions were not free to speak for themselves in the process. If every citizen were to have a right to insist that no one paid by public funds express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it radically transformed. Cf. United States v. Lee, ("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").The State Bar of California was created, not to participate in the general government of the State, but to provide specialized professional advice to those with the ultimate responsibility of governing the legal profession. Its members and officers are such not because they are citizens or voters, but because they are lawyers. We think that these differences between the State Bar, on the one hand, and traditional government agencies and officials, on the other hand, render unavailing respondent's argument that it is not subject to the same constitutional rule with respect to the use of compulsory dues as are labor unions representing public and private employees.Respondent would further distinguish the two situations on the grounds that the compelled association in the context of labor unions serves only a private economic interest in collective bargaining, while the State Bar serves more substantial public interests. But legislative recognition that the agency-shop arrangements serve vital national interests in preserving industrial peace, see Ellis, 466 U.S., at 455-456, indicates that such arrangements serve substantial public interests as well. We are not possessed of any scales which would enable us to determine that the one outweighs the other sufficiently to produce a different result here.Abood held that a union could not expend a dissenting individual's dues for ideological activities not "germane" to the purpose for which compelled association was justified: collective bargaining. Here the compelled association and integrated bar are justified by the State's interest in regulating the legal profession and improving the quality of legal services. The State Bar may therefore constitutionally fund activities germane to those goals out of the mandatory dues of all members. It may not, however, in such manner fund activities of an ideological nature which fall outside of those areas of activity. The difficult question, of course, is to define the latter class of activities.Construing the Railway Labor Act in Ellis, supra, we held:"[W]hen employees such as petitioners object to being burdened with particular union expenditures, the test must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of performing the duties of an exclusive representative of the employees in dealing with the employer on labor-management issues. Under this standard, objecting employees may be compelled to pay their fair share of not only the direct costs of negotiating and administering a collective-bargaining contract and of settling grievances and disputes, but also the expenses of activities or undertakings normally or reasonably employed to implement or effectuate the duties of the union as exclusive representative of the employees in the bargaining unit." Id., at 448. We think these principles are useful guidelines for determining permissible expenditures in the present context as well. Thus, the guiding standard must be whether the challenged expenditures are necessarily or reasonably incurred for the purpose of regulating the legal profession or "improving the quality of the legal service available to the people of the State." Lathrop, 367 U.S., at 843 (plurality opinion).The Supreme Court of California decided that most of the activities complained of by petitioners were within the scope of the State Bar's statutory authority and were therefore not only permissible but could be supported by the compulsory dues of objecting members. The Supreme Court of California quoted the language of the relevant statute to the effect that the State Bar was authorized to "`aid in all matters pertaining to the advancement of the science of jurisprudence or to the improvement of the administration of justice.'" 47 Cal. 3d, at 1169, 767 P.2d, at 1030. Simply putting this language alongside our previous discussion of the extent to which the activities of the State Bar may be financed from compulsory dues might suggest that there is little difference between the two. But there is a difference, and that difference is illustrated by the allegations in petitioners' complaint as to the kinds of State Bar activities which the Supreme Court of California has now decided may be funded with compulsory dues.Petitioners assert that the State Bar has engaged in, inter alia, lobbying for or against state legislation (1) prohibiting state and local agency employers from requiring employees to take polygraph tests; (2) prohibiting possession of armorpiercing handgun ammunition; (3) creating an unlimited right of action to sue anybody causing air pollution; and (4) requesting Congress to refrain from enacting a guest-worker program or from permitting the importation of workers from other countries. Petitioners' complaint also alleges that the conference of delegates funded and sponsored by the State Bar endorsed a gun control initiative, disapproved statements of a United States senatorial candidate regarding court review of a victim's bill of rights, endorsed a nuclear weapons freeze initiative, and opposed federal legislation limiting federal-court jurisdiction over abortions, public school prayer, and busing. See n. 2, supra.Precisely where the line falls between those State Bar activities in which the officials and members of the Bar are acting essentially as professional advisers to those ultimately charged with the regulation of the legal profession, on the one hand, and those activities having political or ideological coloration which are not reasonably related to the advancement of such goals, on the other, will not always be easy to discern. But the extreme ends of the spectrum are clear: Compulsory dues may not be expended to endorse or advance a gun control or nuclear weapons freeze initiative; at the other end of the spectrum petitioners have no valid constitutional objection to their compulsory dues being spent for activities connected with disciplining members of the Bar or proposing ethical codes for the profession.In declining to apply our Abood decision to the activities of the State Bar, the Supreme Court of California noted that it would entail "an extraordinary burden... . The bar has neither time nor money to undertake a bill-by-bill, case-by-case Ellis analysis, nor can it accept the risk of litigation every time it decides to lobby a bill or brief a case." 47 Cal. 3d, at 1165-1166, 767 P.2d, at 1028. In this respect we agree with the assessment of Justice Kaufman in his concurring and dissenting opinions in that court: "[C]ontrary to the majority's assumption, the State Bar would not have to perform the three-step Ellis analysis prior to each instance in which it seeks to advise the Legislature or the courts of its views on a matter. Instead, according to [Teachers v.] Hudson, [ `the constitutional requirements for the [association's] collection of ... fees include an adequate explanation of the basis for the fee, a reasonably prompt opportunity to challenge the amount of the fee before an impartial decisionmaker, and an escrow for the amounts reasonably in dispute while such challenges are pending.' (Id. at 310). Since the bar already is statutorily required to submit detailed budgets to the Legislature prior to obtaining approval for setting members' annual dues (Bus. and Prof. Code 6140.1), the argument that the constitutionally mandated procedure would create `an extraordinary burden' for the bar is unpersuasive. "While such a procedure would likely result in some additional administrative burden to the bar and perhaps prove at times to be somewhat inconvenient, such additional burden or inconvenience is hardly sufficient to justify contravention of the constitutional mandate. It is noteworthy that unions representing government employees have developed, and have operated successfully within the parameters of Abood procedures for over a decade." Id., at 1192, 767 P.2d, at 1046 (citations and footnote omitted). In Teachers v. Hudson, , where we outlined a minimum set of procedures by which a union in an agency-shop relationship could meet its requirement under Abood, we had a developed record regarding different methods fashioned by unions to deal with the "free rider" problem in the organized labor setting. We do not have any similar record here. We believe an integrated bar could certainly meet its Abood obligation by adopting the sort of procedures described in Hudson. Questions whether one or more alternative procedures would likewise satisfy that obligation are better left for consideration upon a more fully developed record.In addition to their claim for relief based on respondent's use of their mandatory dues, petitioners' complaint also requested an injunction prohibiting the State Bar from using its name to advance political and ideological causes or beliefs. See supra, at 5-6. This request for relief appears to implicate a much broader freedom of association claim than was at issue in Lathrop. Petitioners challenge not only their "compelled financial support of group activities," see supra, at 9, but urge that they cannot be compelled to associate with an organization that engages in political or ideological activities beyond those for which mandatory financial support is justified under the principles of Lathrop and Abood. The California courts did not address this claim, and we decline to do so in the first instance. The state courts remain free, of course, to consider this issue on remand.The judgment of the Supreme Court of California is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

After respondent was found guilty of murder, the Arizona trial court granted a new trial because the prosecution had withheld exculpatory evidence from the defense. At the beginning of the new trial, the trial judge, after extended argument, granted the prosecutor's motion for a mistrial predicated on improper and prejudicial comment during defense counsel's opening statement that evidence had been hidden from respondent at the first trial, but the judge did not expressly find that there was "manifest necessity" for a mistrial or expressly state that he had considered alternative solutions. The Arizona Supreme Court refused to review the mistrial ruling, and respondent sought a writ of habeas corpus in Federal District Court. While agreeing that defense counsel's opening statement was improper, that court held that respondent could not be placed in further jeopardy and granted the writ because the state trial judge had failed to find "manifest necessity" for a mistrial. The Court of Appeals affirmed. Held: 1. Although the extent of the possible juror bias cannot be measured and some trial judges might have proceeded with the trial after giving the jury appropriate cautionary instructions, nevertheless the overriding interest in the evenhanded administration of justice requires that the highest degree of respect be accorded to the trial judge's decision to declare a mistrial based on his assessment of the prejudicial impact of defense counsel's opening statement. Pp. 503-514. 2. The record supports the conclusion that the trial judge exercised "sound discretion" in declaring a mistrial, it appearing that he acted responsibly and deliberately and accorded careful consideration to respondent's interest in having the trial concluded in a single proceeding, and therefore the mistrial order is supported by the "high degree" of necessity required in a case of this kind. Pp. 514-516. 3. Since the record provides sufficient justification for the trial judge's mistrial ruling, that ruling is not subject to collateral attack in a federal court simply because the judge failed to make an explicit finding of "manifest necessity" for a mistrial that would avoid a valid double jeopardy plea or to articulate on the record all the factors that informed the deliberate exercise of his discretion. Pp. 516-517. 546 F.2d 829, reversed. STEVENS, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, POWELL, and REHNQUIST, JJ., joined. BLACKMUN, J., concurred in the result. WHITE, J., filed a dissenting opinion, post, p. 517. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 519.Stephen D. Neely argued the cause and filed a brief for petitioner.Ed Bolding argued the cause for respondent. With him on the brief was Frederick S. Klein.MR. JUSTICE STEVENS delivered the opinion of the Court.An Arizona trial judge granted the prosecutor's motion for a mistrial predicated on improper and prejudicial comment during defense counsel's opening statement. In a subsequent habeas corpus proceeding, a Federal District Court held that the Double Jeopardy Clause protected the defendant from another trial. The Court of Appeals for the Ninth Circuit affirmed.1 The questions presented are whether the record reflects the kind of "necessity" for the mistrial ruling that will avoid a valid plea of double jeopardy, and if so, whether the plea must nevertheless be allowed because the Arizona trial judge did not fully explain the reasons for his mistrial ruling.IIn 1971 respondent was found guilty of murdering a hotel night clerk. In 1973, the Superior Court of Pima County, Ariz., ordered a new trial because the prosecutor had withheld exculpatory evidence from the defense. The Arizona Supreme Court affirmed the new trial order in an unpublished opinion.Respondent's second trial began in January 1975. During the voir dire examination of prospective jurors, the prosecutor made reference to the fact that some of the witnesses whose testimony the jurors would hear had testified in proceedings four years earlier.2 Defense counsel told the prospective jurors "that there was evidence hidden from [respondent] at the last trial." In his opening statement, he made this point more forcefully:"You will hear testimony that notwithstanding the fact that we had a trial in May of 1971 in this matter, that the prosecutor hid those statements and didn't give those to the lawyer for George saying the man was Spanish speaking, didn't give those statements at all, hid them."You will hear that that evidence was suppressed and hidden by the prosecutor in that case. You will hear that that evidence was purposely withheld. You will hear that because of the misconduct of the County Attorney at that time and because he withheld evidence, that the Supreme Court of Arizona granted a new trial in this case." App. 180-181, 184. After opening statements were completed, the prosecutor moved for a mistrial. In colloquy during argument of the motion, the trial judge expressed the opinion that evidence concerning the reasons for the new trial, and specifically the ruling of the Arizona Supreme Court, was irrelevant to the issue of guilt or innocence and therefore inadmissible. Defense counsel asked for an opportunity "to find some law" that would support his belief that the Supreme Court opinion would be admissible.3 After further argument, the judge stated that he would withhold ruling on the admissibility of the evidence and denied the motion for mistrial. Two witnesses then testified.The following morning the prosecutor renewed his mistrial motion. Fortified by an evening's research, he argued that there was no theory on which the basis for the new trial ruling could be brought to the attention of the jury, that the prejudice to the jury could not be repaired by any cautionary instructions, and that a mistrial was a "manifest necessity." Defense counsel stated that he still was not prepared with authority supporting his belief that the Supreme Court opinion was admissible.4 He argued that his comment was invited by the prosecutor's reference to the witnesses' earlier testimony and that any prejudice could be avoided by curative instructions. During the extended argument, the trial judge expressed his concern about the possibility that an erroneous mistrial ruling would preclude another trial.5 Ultimately the trial judge granted the motion, stating that his ruling was based upon defense counsel's remarks in his opening statement concerning the Arizona Supreme Court opinion. The trial judge did not expressly find that there was "manifest necessity" for a mistrial; nor did he expressly state that he had considered alternative solutions and concluded that none would be adequate. The Arizona Supreme Court refused to review the mistrial ruling.6 Respondent then filed a petition for writ of habeas corpus in the United States District Court for the District of Arizona, alleging that another trial would violate the Double Jeopardy Clause. After reviewing the transcript of the state proceeding, and hearing the arguments of counsel, the Federal District Judge noted that the Arizona trial judge had not canvassed on the record the possibility of alternatives to a mistrial and expressed the view that before granting a mistrial motion the judge was required "to find that manifest necessity exists for the granting of it."7 Because the record contained no such finding, and because the federal judge was not prepared to make such a finding himself, he granted the writ.8 He agreed with the State, however, that defense counsel's opening statement had been improper.The Ninth Circuit also characterized the opening statement as improper, but affirmed because, absent a finding of manifest necessity or an explicit consideration of alternatives,9 the court was unwilling to infer that the jury was prevented from arriving at a fair and impartial verdict.10 In a concurring opinion, two judges noted that, while the question of manifest necessity had been argued, most of the argument on the mistrial motion had concerned the question whether the opening statement was improper. They concluded that, "absent findings that manifest necessity existed, it ... [was] quite possible that the grant of mistrial was based on the fact that the impropriety of counsel's conduct had been established without reaching the question whether there could, nevertheless, be a fair trial." 546 F.2d, at 833.We are persuaded that the Court of Appeals applied an inappropriate standard of review to mistrial rulings of this kind, and attached undue significance to the form of the ruling. We therefore reverse.IIA State may not put a defendant in jeopardy twice for the same offense. Benton v. Maryland, . The constitutional protection against double jeopardy unequivocally prohibits a second trial following an acquittal. The public interest in the finality of criminal judgments is so strong that an acquitted defendant may not be retried even though "the acquittal was based upon an egregiously erroneous foundation." See Fong Foo v. United States, . If the innocence of the accused has been confirmed by a final judgment, the Constitution conclusively presumes that a second trial would be unfair.Because jeopardy attaches before the judgment becomes final, the constitutional protection also embraces the defendant's "valued right to have his trial completed by a particular tribunal."11 The reasons why this "valued right" merits constitutional protection are worthy of repetition. Even if the first trial is not completed, a second prosecution may be grossly unfair. It increases the financial and emotional burden on the accused,12 prolongs the period in which he is stigmatized by an unresolved accusation of wrongdoing,13 and may even enhance the risk that an innocent defendant may be convicted.14 The danger of such unfairness to the defendant exists whenever a trial is aborted before it is completed.15 Consequently, as a general rule, the prosecutor is entitled to one, and only one, opportunity to require an accused to stand trial.Unlike the situation in which the trial has ended in an acquittal or conviction, retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused. Because of the variety of circumstances that may make it necessary to discharge a jury before a trial is concluded, and because those circumstances do not invariably create unfairness to the accused, his valued right to have the trial concluded by a particular tribunal is sometimes subordinate to the public interest in affording the prosecutor one full and fair opportunity to present his evidence to an impartial jury.16 Yet in view of the importance of the right, and the fact that it is frustrated by any mistrial, the prosecutor must shoulder the burden of justifying the mistrial if he is to avoid the double jeopardy bar. His burden is a heavy one. The prosecutor must demonstrate "manifest necessity" for any mistrial declared over the objection of the defendant.The words "manifest necessity" appropriately characterize the magnitude of the prosecutor's burden.17 For that reason Mr. Justice Story's classic formulation of the test18 has been quoted over and over again to provide guidance in the decision of a wide variety of cases.19 Nevertheless, those words do not describe a standard that can be applied mechanically or without attention to the particular problem confronting the trial judge.20 Indeed, it is manifest that the key word "necessity" cannot be interpreted literally; instead, contrary to the teaching of Webster, we assume that there are degrees of necessity and we require a "high degree" before concluding that a mistrial is appropriate.21 The question whether that "high degree" has been reached is answered more easily in some kinds of cases than in others. At one extreme are cases in which a prosecutor requests a mistrial in order to buttress weaknesses in his evidence. Although there was a time when English judges served the Stuart monarchs by exercising a power to discharge a jury whenever it appeared that the Crown's evidence would be insufficient to convict,22 the prohibition against double jeopardy as it evolved in this country was plainly intended to condemn this "abhorrent" practice.23 As this Court noted in United States v. Dinitz, : "The Double Jeopardy Clause does protect a defendant against governmental actions intended to provoke mistrial requests and thereby to subject defendants to the substantial burdens imposed by multiple prosecutions. It bars retrials where `bad-faith conduct by judge or prosecutor' ... threatens the `[h]arassment of an accused by successive prosecutions or declaration of a mistrial so as to afford the prosecution a more favorable opportunity to convict' the defendant." Thus, the strictest scrutiny is appropriate when the basis for the mistrial is the unavailability of critical prosecution evidence,24 or when there is reason to believe that the prosecutor is using the superior resources of the State to harass or to achieve a tactical advantage over the accused.25 At the other extreme is the mistrial premised upon the trial judge's belief that the jury is unable to reach a verdict, long considered the classic basis for a proper mistrial.26 The argument that a jury's inability to agree establishes reasonable doubt as to the defendant's guilt, and therefore requires acquittal, has been uniformly rejected in this country. Instead, without exception, the courts have held that the trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial. This rule accords recognition to society's interest in giving the prosecution one complete opportunity to convict those who have violated its laws.Moreover, in this situation there are especially compelling reasons for allowing the trial judge to exercise broad discretion in deciding whether or not "manifest necessity" justifies a discharge of the jury. On the one hand, if he discharges the jury when further deliberations may produce a fair verdict, the defendant is deprived of his "valued right to have his trial completed by a particular tribunal." But if he fails to discharge a jury which is unable to reach a verdict after protracted and exhausting deliberations, there exists a significant risk that a verdict may result from pressures inherent in the situation rather than the considered judgment of all the jurors. If retrial of the defendant were barred whenever an appellate court views the "necessity" for a mistrial differently from the trial judge, there would be a danger that the latter, cognizant of the serious societal consequences of an erroneous ruling, would employ coercive means to break the apparent deadlock. Such a rule would frustrate the public interest in just judgments.27 The trial judge's decision to declare a mistrial when he considers the jury deadlocked is therefore accorded great deference by a reviewing court.28 We are persuaded that, along the spectrum of trial problems which may warrant a mistrial and which vary in their amenability to appellate scrutiny, the difficulty which led to the mistrial in this case also falls in an area where the trial judge's determination is entitled to special respect.In this case the trial judge ordered a mistrial because the defendant's lawyer made improper and prejudicial remarks during his opening statement to the jury. Although respondent insists that evidence of prosecutorial misconduct29 was admissible as a matter of Arizona law, and therefore that the opening statement was proper, we regard this issue as foreclosed by respondent's failure to proffer any Arizona precedent supportive of his contention30 and by the state court's interpretation of its own law, buttressed by the consistent opinion of the Federal District Court and the Court of Appeals. Cf. Bishop v. Wood, . We therefore start from the premise that defense counsel's comment was improper and may have affected the impartiality of the jury.We recognize that the extent of the possible bias cannot be measured, and that the District Court was quite correct in believing that some trial judges might have proceeded with the trial after giving the jury appropriate cautionary instructions. In a strict, literal sense, the mistrial was not "necessary." Nevertheless, the overriding interest in the evenhanded administration of justice requires that we accord the highest degree of respect to the trial judge's evaluation of the likelihood that the impartiality of one or more jurors may have been affected by the improper comment. The consistent course of decision in this Court in cases involving possible juror bias supports this conclusion. Simmons v. United States, , involved the possibility of bias caused by a newspaper story describing a letter written by defense counsel denying a charge by a third party that one of the jurors was acquainted with the defendant. Without determining the truth or falsity of the charge, and without examining the jurors to ascertain what influence the story had upon them, the trial judge declared a mistrial because he considered it "impossible that in the future consideration of this case by the jury there can be that true independence and freedom of action on the part of each juror which is necessary to a fair trial of the accused.'" Id., at 150. This Court affirmed, holding that the judge was justified in concluding that the publication of the letter had made it impossible for the jury "to act with the independence and freedom on the part of each juror requisite to a fair trial of the issue between the parties." Id., at 155.In Thompson v. United States, , the Court concluded that a mistrial was required when it was revealed that one of the trial jurors had served on the grand jury that indicted the defendant. Since it is possible that the grand jury had heard no more evidence - and perhaps even less - than was presented at the trial, and since the juror in question may have had no actual bias against the defendant, the record did not demonstrate that the mistrial was strictly "necessary." There can be no doubt, however, about the validity of the conclusion that the possibility of bias justified the mistrial.An improper opening statement unquestionably tends to frustrate the public interest in having a just judgment reached by an impartial tribunal. Indeed, such statements create a risk, often not present in the individual juror bias situation,31 that the entire panel may be tainted. The trial judge, of course, may instruct the jury to disregard the improper comment. In extreme cases, he may discipline counsel, or even remove him from the trial as he did in United States v. Dinitz, . Those actions, however, will not necessarily remove the risk of bias that may be created by improper argument. Unless unscrupulous defense counsel are to be allowed an unfair advantage, the trial judge must have the power to declare a mistrial in appropriate cases. The interest in orderly, impartial procedure would be impaired if he were deterred from exercising that power by a concern that any time a reviewing court disagreed with his assessment of the trial situation a retrial would automatically be barred. The adoption of a stringent standard of appellate review in this area, therefore, would seriously impede the trial judge in the proper performance of his "duty, in order to protect the integrity of the trial, to take prompt and affirmative action to stop ... professional misconduct." Id., at 612.32 There are compelling institutional considerations militating in favor of appellate deference to the trial judge's evaluation of the significance of possible juror bias.33 He has seen and heard the jurors during their voir dire examination. He is the judge most familiar with the evidence and the background of the case on trial. He has listened to the tone of the argument as it was delivered and has observed the apparent reaction of the jurors. In short, he is far more "conversant with the factors relevant to the determination" than any reviewing court can possibly be. See Wade v. Hunter, .IIIOur conclusion that a trial judge's decision to declare a mistrial based on his assessment of the prejudicial impact of improper argument is entitled to great deference does not, of course, end the inquiry. As noted earlier, a constitutionally protected interest is inevitably affected by any mistrial decision. The trial judge, therefore, "must always temper the decision whether or not to abort the trial by considering the importance to the defendant of being able, once and for all, to conclude his confrontation with society through the verdict of a tribunal he might believe to be favorably disposed to his fate." United States v. Jorn, 400 U.S., at 486 (Harlan, J.). In order to ensure that this interest is adequately protected, reviewing courts have an obligation to satisfy themselves that, in the words of Mr. Justice Story, the trial judge exercised "sound discretion" in declaring a mistrial.Thus, if a trial judge acts irrationally or irresponsibly, cf. United States v. Jorn, supra; see Illinois v. Somerville, 410 U.S., at 469, his action cannot be condoned. But our review of this record indicates that this was not such a case.34 Defense counsel aired improper and highly prejudicial evidence before the jury, the possible impact of which the trial judge was in the best position to assess. The trial judge did not act precipitately in response to the prosecutor's request for a mistrial. On the contrary, evincing a concern for the possible double jeopardy consequences of an erroneous ruling, he gave both defense counsel and the prosecutor full opportunity to explain their positions on the propriety of a mistrial. We are therefore persuaded by the record that the trial judge acted responsibly and deliberately, and accorded careful consideration to respondent's interest in having the trial concluded in a single proceeding. Since he exercised "sound discretion" in handling the sensitive problem of possible juror bias created by the improper comment of defense counsel, the mistrial order is supported by the "high degree" of necessity which is required in a case of this kind.35 Neither party has a right to have his case decided by a jury which may be tainted by bias;36 in these circumstances, "the public's interest in fair trials designed to end in just judgments"37 must prevail over the defendant's "valued right" to have his trial concluded before the first jury impaneled.IVOne final matter requires consideration. The absence of an explicit finding of "manifest necessity" appears to have been determinative for the District Court and may have been so for the Court of Appeals. If those courts regarded that omission as critical,38 they required too much. Since the record provides sufficient justification for the state-court ruling, the failure to explain that ruling more completely does not render it constitutionally defective.Review of any trial court decision is, of course, facilitated by findings and by an explanation of the reasons supporting the decision. No matter how desirable such procedural assistance may be, it is not constitutionally mandated in a case such as this. Cf. Cupp v. Naughten, . The basis for the trial judge's mistrial order is adequately disclosed by the record, which includes the extensive argument of counsel prior to the judge's ruling. The state trial judge's mistrial declaration is not subject to collateral attack in a federal court simply because he failed to find "manifest necessity" in those words or to articulate on the record all the factors which informed the deliberate exercise of his discretion.39 The judgment of the Court of Appeals is Reversed.MR. JUSTICE BLACKMUN concurs in the result.

Following oral argument in this Court of this appeal from an order of a three-judge District Court declining, on the basis of Younger v. Harris, , to intervene in a state proceeding to enjoin operation of appellants' bookstore on the ground that it was violating a "public nuisance" statute by selling obscene materials, the statute was held unconstitutional by the Georgia Supreme Court as applied in a similar case, Sanders v. State, 231 Ga. 608, 203 S. E. 2d 153. Since appellants may secure a dismissal of the state proceeding against them on the basis of Sanders, thus precluding any irreparable injury, without which federal injunctive relief would be barred, the judgment below should be reconsidered in the light of the Sanders decision. 356 F. Supp. 1101, vacated and remanded.Robert Eugene Smith argued the cause for appellants. With him on the brief was D. Freeman Hutton.Thomas R. Moran argued the cause and filed a brief for appellees.PER CURIAM.This is an appeal from a decision of a three-judge District Court (356 F. Supp. 1101) declining to intervene in a pending state civil proceeding and holding that such intervention was barred by our decision in Younger v. Harris, . The state proceeding, brought against appellants by the Solicitor General of Fulton County, Georgia, sought an injunction against the operation of appellant Speight's bookstore, and confiscation and destruction of all merchandise on the store's premises, on the grounds that the store was being used for the "advertising, storage, sale, and exhibition for sale of materials obscene within the meaning of Section 26-2101 of the Criminal Code of Georgia." The basis for the State's action was 26-2103 of the Code under which the use of any premises for the violation of 26-2101 constitutes a "public nuisance," thereby triggering the application of state statutory provisions for the abatement of public nuisances, c. 72-2 of the Code of Georgia. The case is here on appeal. 28 U.S.C. 1253, 2101 (b). We noted probable jurisdiction to decide whether under these circumstances federal intervention in the pending state proceedings was barred by our holding in Younger v. Harris, supra.Since oral argument of this case the Georgia Supreme Court has struck down the application of 26-2103 in another case involving similar facts. Sanders v. State, 231 Ga. 608, 203 S. E. 2d 153 (1974). In Sanders the State had brought an action to enjoin the operation of a bookstore on the ground that certain publications sold by the store were obscene under 26-2101. The supreme court held that this application of 26-2103 "represents an unconstitutional prior restraint when construed and applied to authorize the permanent closure of the book store as a public nuisance upon a finding that a single publication, obscene under the standards of Code Ann. 26-2101 (b), was sold on its premises." Id., at 611, 203 S. E. 2d, at 155. As we understand the Georgia court's decision, the operation of a bookstore could not be enjoined merely because some of its merchandise had been judicially determined to be obscene. The Georgia court cited both the Federal and Georgia Constitutions in its decision, although it was not explicit as to whether each provided, in its view, an independent ground for its holding.It would appear that this Georgia Supreme Court decision would probably foreclose the state action against which federal injunctive relief was sought by appellants in this case. In that event appellants could obtain full relief in the state court proceeding merely by moving to dismiss the state action, in accord with state procedural rules, in light of Sanders v. State. If that is the case, appellants could not now make any showing of irreparable injury by reason of the state court proceeding, and such a showing is of course required before the federal court could grant the equitable relief, apart from any special considerations involved in Younger v. Harris, supra, at 46.We therefore vacate the judgment below and remand to the District Court for reconsideration in light of the decision of the Georgia Supreme Court in Sanders v. State, supra. It is so ordered.

A contract between respondent Ferrer, who appears on television as "Judge Alex," and petitioner Preston, an entertainment industry attorney, requires arbitration of "any dispute ... relating to the [contract's] terms ... or the breach, validity, or legality thereof ... in accordance with [American Arbitration Association (AAA)] rules." Preston invoked this provision to gain fees allegedly due under the contract. Ferrer thereupon petitioned the California Labor Commissioner (Labor Commissioner) for a determination that the contract was invalid and unenforceable under California's Talent Agencies Act (TAA) because Preston had acted as a talent agent without the required license. After the Labor Commissioner's hearing officer denied Ferrer's motion to stay the arbitration, Ferrer filed suit in state court seeking to enjoin arbitration, and Preston moved to compel arbitration. The court denied Preston's motion and enjoined him from proceeding before the arbitrator unless and until the Labor Commissioner determined she lacked jurisdiction over the dispute. While Preston's appeal was pending, this Court held, in Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 446, that challenges to the validity of a contract requiring arbitration of disputes ordinarily "should ... be considered by an arbitrator, not a court." Affirming the judgment below, the California Court of Appeal held that the TAA vested the Labor Commissioner with exclusive original jurisdiction over the dispute, and that Buckeye was inapposite because it did not involve an administrative agency with exclusive jurisdiction over a disputed issue. Held: When parties agree to arbitrate all questions arising under a contract, the Federal Arbitration Act (FAA), 9 U. S. C. §1 et seq., supersedes state laws lodging primary jurisdiction in another forum, whether judicial or administrative. Pp. 4-16. (a) The issue is not whether the FAA preempts the TAA wholesale. Instead, the question is simply who decides — the arbitrator or the Labor Commissioner — whether Preston acted as an unlicensed talent agent in violation of the TAA, as Ferrer claims, or as a personal manager not governed by the TAA, as Preston contends. P. 4. (b) FAA §2 "declare[s] a national policy favoring arbitration" when the parties contract for that mode of dispute resolution. Southland Corp. v. Keating, 465 U. S. 1, 10. That national policy "appli[es] in state as well as federal courts" and "foreclose[s] state legislative attempts to undercut the enforceability of arbitration agreements." Id., at 16. The FAA's displacement of conflicting state law has been repeatedly reaffirmed. See, e.g., Buckeye, 546 U. S., at 445-446; Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265, 272. A recurring question under §2 is who should decide whether "grounds ... exist at law or in equity" to invalidate an arbitration agreement. In Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395, 403-404, which originated in federal court, this Court held that attacks on an entire contract's validity, as distinct from attacks on the arbitration clause alone, are within the arbitrator's ken. Buckeye held that the same rule applies in state court. See 546 U. S., at 446. Buckeye largely, if not entirely, resolves the present dispute. The contract at issue clearly "evidenc[ed] a transaction involving commerce" under §2, and Ferrer has never disputed that the contract's written arbitration provision falls within §2's purview. Ferrer sought invalidation of the contract as a whole. He made no discrete challenge to the validity of the arbitration clause, and thus sought to override that clause on a ground Buckeye requires the arbitrator to decide in the first instance. Pp. 5-6. (c) Ferrer attempts to distinguish Buckeye, urging that the TAA merely requires exhaustion of administrative remedies before the parties proceed to arbitration. This argument is unconvincing. Pp. 6-12. (1) Procedural prescriptions of the TAA conflict with the FAA's dispute resolution regime in two basic respects: (1) One TAA provision grants the Labor Commissioner exclusive jurisdiction to decide an issue that the parties agreed to arbitrate, see Buckeye, 546 U. S., at 446; (2) another imposes prerequisites to enforcement of an arbitration agreement that are not applicable to contracts generally, see Doctor's Associates, Inc. v. Casarotto, 517 U. S. 681, 687. Pp. 7-8. (2) Ferrer contends that the TAA is compatible with the FAA because the TAA provision vesting exclusive jurisdiction in the Labor Commissioner merely postpones arbitration. That position is contrary to the one Ferrer took in the California courts and does not withstand examination. Arbitration, if it ever occurred following the Labor Commissioner's decision, would likely be long delayed, in contravention of Congress' intent "to move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible." Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 22. Pp. 8-10. (3) Ferrer contends that the conflict between the arbitration clause and the TAA should be overlooked because Labor Commissioner proceedings are administrative rather than judicial. The Court rejected a similar argument in Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 28-29. Pp. 10-12. (d) Ferrer's reliance on Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, is misplaced for two reasons. First, arbitration was stayed in Volt to accommodate litigation involving third parties who were strangers to the arbitration agreement. Because the contract at issue in Volt did not address the order of proceedings and included a choice-of-law clause adopting California law, the Volt Court recognized as the gap filler a California statute authorizing the state court to stay either third-party court proceedings or arbitration proceedings to avoid the possibility of conflicting rulings on a common issue. Here, in contrast, the arbitration clause speaks to the matter in controversy; both parties are bound by the arbitration agreement; the question of Preston's status as a talent agent relates to the validity or legality of the contract; there is no risk that related litigation will yield conflicting rulings on common issues; and there is no other procedural void for the choice-of-law clause to fill. Second, the Court is guided by its decision in Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52. Although the Volt contract provided for arbitration in accordance with AAA rules, 489 U. S., at 470, n. 1, Volt never argued that incorporation of those rules by reference trumped the contract's choice-of-law clause, so this Court never addressed the import of such incorporation. In Mastrobuono, the Court reached that open question, declaring that the "best way to harmonize" a New York choice-of-law clause and a clause providing for arbitration in accordance with privately promulgated arbitration rules was to read the choice-of-law clause "to encompass substantive principles that New York courts would apply, but not to include [New York's] special rules limiting [arbitrators'] authority." 514 U. S., at 63-64. Similarly here, the "best way to harmonize" the Ferrer-Preston contract's adoption of the AAA rules and its selection of California law is to read the latter to encompass prescriptions governing the parties' substantive rights and obligations, but not the State's "special rules limiting [arbitrators'] authority." Ibid. Pp. 12-15. 145 Cal. App. 4th 440, 51 Cal. Rptr. 3d 628, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Kennedy, Souter, Breyer, and Alito, JJ., joined. Thomas, J., filed a dissenting opinion.ARNOLD M. PRESTON, PETITIONER v. ALEX E.FERRERon writ of certiorari to the court of appeal of california, second appellate district[February 20, 2008] Justice Ginsburg delivered the opinion of the Court. As this Court recognized in Southland Corp. v. Keating, 465 U. S. 1 (1984), the Federal Arbitration Act (FAA or Act), 9 U. S. C. §1 et seq. (2000 ed. and Supp. V), establishes a national policy favoring arbitration when the parties contract for that mode of dispute resolution. The Act, which rests on Congress' authority under the Commerce Clause, supplies not simply a procedural framework applicable in federal courts; it also calls for the application, in state as well as federal courts, of federal substantive law regarding arbitration. 465 U. S., at 16. More recently, in Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440 (2006), the Court clarified that, when parties agree to arbitrate all disputes arising under their contract, questions concerning the validity of the entire contract are to be resolved by the arbitrator in the first instance, not by a federal or state court. The instant petition presents the following question: Does the FAA override not only state statutes that refer certain state-law controversies initially to a judicial forum, but also state statutes that refer certain disputes initially to an administrative agency? We hold today that, when parties agree to arbitrate all questions arising under a contract, state laws lodging primary jurisdiction in another forum, whether judicial or administrative, are superseded by the FAA.I This case concerns a contract between respondent Alex E. Ferrer, a former Florida trial court judge who currently appears as "Judge Alex" on a Fox television network program, and petitioner Arnold M. Preston, a California attorney who renders services to persons in the entertainment industry. Seeking fees allegedly due under the contract, Preston invoked the parties' agreement to arbitrate "any dispute ... relating to the terms of [the contract] or the breach, validity, or legality thereof ... in accordance with the rules [of the American Arbitration Association]." App. 18. Preston's demand for arbitration, made in June 2005, was countered a month later by Ferrer's petition to the California Labor Commissioner charging that the contract was invalid and unenforceable under the California Talent Agencies Act (TAA), Cal. Lab. Code Ann. §1700 et seq. (West 2003 and Supp. 2008). Ferrer asserted that Preston acted as a talent agent without the license required by the TAA, and that Preston's unlicensed status rendered the entire contract void.1 The Labor Commissioner's hearing officer, in November 2005, determined that Ferrer had stated a "colorable basis for exercise of the Labor Commissioner's jurisdiction." App. 33. The officer denied Ferrer's motion to stay the arbitration, however, on the ground that the Labor Commissioner lacked authority to order such relief. Ferrer then filed suit in the Los Angeles Superior Court, seeking a declaration that the controversy between the parties "arising from the [c]ontract, including in particular the issue of the validity of the [c]ontract, is not subject to arbitration." Id., at 29. As interim relief, Ferrer sought an injunction restraining Preston from proceeding before the arbitrator. Preston responded by moving to compel arbitration. In December 2005, the Superior Court denied Preston's motion to compel arbitration and enjoined Preston from proceeding before the arbitrator "unless and until the Labor Commissioner determines that ... she is without jurisdiction over the disputes between Preston and Ferrer." No. BC342454 (Dec. 7, 2005), App. C to Pet. for Cert. 18a, 26a-27a. During the pendency of Preston's appeal from the Superior Court's decision, this Court reaffirmed, in Buckeye, that challenges to the validity of a contract providing for arbitration ordinarily "should ... be considered by an arbitrator, not a court." 546 U. S., at 446. In a 2-to-1 decision issued in November 2006, the California Court of Appeal affirmed the Superior Court's judgment. The appeals court held that the relevant provision of the TAA, Cal. Lab. Code Ann. §1700.44(a) (West 2003), vests "exclusive original jurisdiction" over the dispute in the Labor Commissioner. 145 Cal. App. 4th 440, 447, 51 Cal. Rptr. 3d 628, 634. Buckeye is "inapposite," the court said, because that case "did not involve an administrative agency with exclusive jurisdiction over a disputed issue." 145 Cal. App. 4th, at 447, 51 Cal. Rptr. 3d, at 634. The dissenting judge, in contrast, viewed Buckeye as controlling; she reasoned that the FAA called for immediate recognition and enforcement of the parties' agreement to arbitrate and afforded no basis for distinguishing prior resort to a state administrative agency from prior resort to a state court. 145 Cal. App. 4th, at 450-451, 51 Cal. Rptr. 3d, at 636-637 (Vogel, J., dissenting). The California Supreme Court denied Preston's petition for review. No. S149190 (Feb. 14, 2007), 2007 Cal. LEXIS 1539, App. A to Pet. for Cert. 1a. We granted certiorari to determine whether the FAA overrides a state law vesting initial adjudicatory authority in an administrative agency. 551 U. S. ___ (2007).II An easily stated question underlies this controversy. Ferrer claims that Preston was a talent agent who operated without a license in violation of the TAA. Accordingly, he urges, the contract between the parties, purportedly for "personal management," is void and Preston is entitled to no compensation for any services he rendered. Preston, on the other hand, maintains that he acted as a personal manager, not as a talent agent, hence his contract with Ferrer is not governed by the TAA and is both lawful and fully binding on the parties. Because the contract between Ferrer and Preston provides that "any dispute ... relating to the ... validity, or legality" of the agreement "shall be submitted to arbitration," App. 18, Preston urges that Ferrer must litigate "his TAA defense in the arbitral forum," Reply Brief 31. Ferrer insists, however, that the "personal manager" or "talent agent" inquiry falls, under California law, within the exclusive original jurisdiction of the Labor Commissioner, and that the FAA does not displace the Commissioner's primary jurisdiction. Brief for Respondent 14, 30, 40-44. The dispositive issue, then, contrary to Ferrer's suggestion, is not whether the FAA preempts the TAA wholesale. See id., at 44-48. The FAA plainly has no such destructive aim or effect. Instead, the question is simply who decides whether Preston acted as personal manager or as talent agent.III Section 2 of the FAA states:"A written provision in any ... contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U. S. C. §2.Section 2 "declare[s] a national policy favoring arbitration" of claims that parties contract to settle in that manner. Southland Corp., 465 U. S., at 10. That national policy, we held in Southland, "appli[es] in state as well as federal courts" and "foreclose[s] state legislative attempts to undercut the enforceability of arbitration agreements." Id., at 16. The FAA's displacement of conflicting state law is "now well-established," Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265, 272 (1995), and has been repeatedly reaffirmed, see, e.g., Buckeye, 546 U. S., at 445-446; Doctor's Associates, Inc. v. Casarotto, 517 U. S. 681, 684-685 (1996); Perry v. Thomas, 482 U. S. 483, 489 (1987).2 A recurring question under §2 is who should decide whether "grounds ... exist at law or in equity" to invalidate an arbitration agreement. In Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U. S. 395, 403-404 (1967), we held that attacks on the validity of an entire contract, as distinct from attacks aimed at the arbitration clause, are within the arbitrator's ken. The litigation in Prima Paint originated in federal court, but the same rule, we held in Buckeye, applies in state court. 546 U. S., at 447-448. The plaintiffs in Buckeye alleged that the contracts they signed, which contained arbitration clauses, were illegal under state law and void ab initio. Id., at 443. Relying on Southland, we held that the plaintiffs' challenge was within the province of the arbitrator to decide. See 546 U. S., at 446. Buckeye largely, if not entirely, resolves the dispute before us. The contract between Preston and Ferrer clearly "evidenc[ed] a transaction involving commerce," 9 U. S. C. §2, and Ferrer has never disputed that the written arbitration provision in the contract falls within the purview of §2. Moreover, Ferrer sought invalidation of the contract as a whole. In the proceedings below, he made no discrete challenge to the validity of the arbitration clause. See 145 Cal. App. 4th, at 449, 51 Cal. Rptr. 3d, at 635 (Vogel, J., dissenting).3 Ferrer thus urged the Labor Commissioner and California courts to override the contract's arbitration clause on a ground that Buckeye requires the arbitrator to decide in the first instance.IV Ferrer attempts to distinguish Buckeye by arguing that the TAA merely requires exhaustion of administrative remedies before the parties proceed to arbitration. We reject that argument.A The TAA regulates talent agents and talent agency agreements. "Talent agency" is defined, with exceptions not relevant here, as "a person or corporation who engages in the occupation of procuring, offering, promising, or attempting to procure employment or engagements for an artist or artists." Cal. Lab. Code Ann. §1700.4(a) (West 2003). The definition "does not cover other services for which artists often contract, such as personal and career management (i.e., advice, direction, coordination, and oversight with respect to an artist's career or personal or financial affairs)." Styne v. Stevens, 26 Cal. 4th 42, 51, 26 P. 3d 343, 349 (2001) (emphasis deleted). The TAA requires talent agents to procure a license from the Labor Commissioner. §1700.5. "In furtherance of the [TAA's] protective aims, an unlicensed person's contract with an artist to provide the services of a talent agency is illegal and void." Id., at 51, 26 P. 3d, at 349.4 Section 1700.44(a) of the TAA states:"In cases of controversy arising under this chapter, the parties involved shall refer the matters in dispute to the Labor Commissioner, who shall hear and determine the same, subject to an appeal within 10 days after determination, to the superior court where the same shall be heard de novo."Absent a notice of appeal filed within ten days, the Labor Commissioner's determination becomes final and binding on the parties. REO Broadcasting Consultants v. Martin, 69 Cal. App. 4th 489, 495, 81 Cal. Rptr. 2d 639, 642-643 (1999).5 The TAA permits arbitration in lieu of proceeding before the Labor Commissioner if an arbitration provision "in a contract between a talent agency and [an artist]" both "provides for reasonable notice to the Labor Commissioner of the time and place of all arbitration hearings" and gives the Commissioner "the right to attend all arbitration hearings." §1700.45. This prescription demonstrates that there is no inherent conflict between the TAA and arbitration as a dispute resolution mechanism. But §1700.45 was of no utility to Preston. He has consistently maintained that he is not a talent agent as that term is defined in §1700.4(a), but is, instead, a personal manager not subject to the TAA's regulatory regime. 145 Cal. App. 4th, at 444, 51 Cal. Rptr. 3d, at 631. To invoke §1700.45, Preston would have been required to concede a point fatal to his claim for compensation — i.e., that he is a talent agent, albeit an unlicensed one — and to have drafted his contract in compliance with a statute that he maintains is inapplicable. Procedural prescriptions of the TAA thus conflict with the FAA's dispute resolution regime in two basic respects: First, the TAA, in §1700.44(a), grants the Labor Commissioner exclusive jurisdiction to decide an issue that the parties agreed to arbitrate, see Buckeye, 546 U. S., at 446; second, the TAA, in §1700.45, imposes prerequisites to enforcement of an arbitration agreement that are not applicable to contracts generally, see Doctor's Associates, Inc., 517 U. S., at 687.B Ferrer contends that the TAA is nevertheless compatible with the FAA because §1700.44(a) merely postpones arbitration until after the Labor Commissioner has exercised her primary jurisdiction. Brief for Respondent 14, 40. The party that loses before the Labor Commissioner may file for de novo review in Superior Court. See §1700.44(a). At that point, Ferrer asserts, either party could move to compel arbitration under Cal. Civ. Proc. Code Ann. §1281.2 (West 2007), and thereby obtain an arbitrator's determination prior to judicial review. See Brief for Respondent 13. That is not the position Ferrer took in the California courts. In his complaint, he urged the Superior Court to declare that "the [c]ontract, including in particular the issue of the validity of the [c]ontract, is not subject to arbitration," and he sought an injunction stopping arbitration "unless and until, if ever, the Labor Commissioner determines that he/she has no jurisdiction over the parties' dispute." App. 29 (emphasis added). Ferrer also told the Superior Court: "[I]f ... the Commissioner rules that the [c]ontract is void, Preston may appeal that ruling and have a hearing de novo before this Court." Appellant's App. in No. B188997 (Cal. App.), p. 157, n. 1 (emphasis added). Nor does Ferrer's current argument — that §1700.44(a) merely postpones arbitration — withstand examination. Section 1700.44(a) provides for de novo review in Superior Court, not elsewhere.6 Arbitration, if it ever occurred following the Labor Commissioner's decision, would likely be long delayed, in contravention of Congress' intent "to move the parties to an arbitrable dispute out of court and into arbitration as quickly and easily as possible." Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 22 (1983). If Ferrer prevailed in the California courts, moreover, he would no doubt argue that judicial findings of fact and conclusions of law, made after a full and fair de novo hearing in court, are binding on the parties and preclude the arbitrator from making any contrary rulings. A prime objective of an agreement to arbitrate is to achieve "streamlined proceedings and expeditious results." Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614, 633 (1985). See also Allied-Bruce Terminix Cos., 513 U. S., at 278; Southland Corp., 465 U. S., at 7. That objective would be frustrated even if Preston could compel arbitration in lieu of de novo Superior Court review. Requiring initial reference of the parties' dispute to the Labor Commissioner would, at the least, hinder speedy resolution of the controversy. Ferrer asks us to overlook the apparent conflict between the arbitration clause and §1700.44(a) because proceedings before the Labor Commissioner are administrative rather than judicial. Brief for Respondent 40-48. Allowing parties to proceed directly to arbitration, Ferrer contends, would undermine the Labor Commissioner's ability to stay informed of potentially illegal activity, id., at 43, and would deprive artists protected by the TAA of the Labor Commissioner's expertise, id., at 41-43. In Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20 (1991), we considered and rejected a similar argument, namely, that arbitration of age discrimination claims would undermine the role of the Equal Employment Opportunity Commission (EEOC) in enforcing federal law. The "mere involvement of an administrative agency in the enforcement of a statute," we held, does not limit private parties' obligation to comply with their arbitration agreements. Id., at 28-29. Ferrer points to our holding in EEOC v. Waffle House, Inc., 534 U. S. 279, 293-294 (2002), that an arbitration agreement signed by an employee who becomes a discrimination complainant does not bar the EEOC from filing an enforcement suit in its own name. He further emphasizes our observation in Gilmer that individuals who agreed to arbitrate their discrimination claims would "still be free to file a charge with the EEOC." 500 U. S., at 28. Consistent with these decisions, Ferrer argues, the arbitration clause in his contract with Preston leaves undisturbed the Labor Commissioner's independent authority to enforce the TAA. See Brief for Respondent 44-48. And so it may.7 But in proceedings under §1700.44(a), the Labor Commissioner functions not as an advocate advancing a cause before a tribunal authorized to find the facts and apply the law; instead, the Commissioner serves as impartial arbiter. That role is just what the FAA-governed agreement between Ferrer and Preston reserves for the arbitrator. In contrast, in Waffle House and in the Gilmer aside Ferrer quotes, the Court addressed the role of an agency, not as adjudicator but as prosecutor, pursuing an enforcement action in its own name or reviewing a discrimination charge to determine whether to initiate judicial proceedings. Finally, it bears repeating that Preston's petition presents precisely and only a question concerning the forum in which the parties' dispute will be heard. See supra, at 4. "By agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral ... forum." Mitsubishi Motors Corp., 473 U. S., at 628. So here, Ferrer relinquishes no substantive rights the TAA or other California law may accord him. But under the contract he signed, he cannot escape resolution of those rights in an arbitral forum. In sum, we disapprove the distinction between judicial and administrative proceedings drawn by Ferrer and adopted by the appeals court. When parties agree to arbitrate all questions arising under a contract, the FAA supersedes state laws lodging primary jurisdiction in another forum, whether judicial or administrative.V Ferrer's final attempt to distinguish Buckeye relies on Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U. S. 468 (1989). Volt involved a California statute dealing with cases in which "[a] party to [an] arbitration agreement is also a party to a pending court action ... [involving] a third party [not bound by the arbitration agreement], arising out of the same transaction or series of related transactions." Cal. Civ. Proc. Code Ann. §1281.2(c) (West 2007). To avoid the "possibility of conflicting rulings on a common issue of law or fact," the statute gives the Superior Court authority, inter alia, to stay the court proceeding "pending the outcome of the arbitration" or to stay the arbitration "pending the outcome of the court action." Ibid. Volt Information Sciences and Stanford University were parties to a construction contract containing an arbitration clause. When a dispute arose and Volt demanded arbitration, Stanford sued Volt and two other companies involved in the construction project. Those other companies were not parties to the arbitration agreement; Stanford sought indemnification from them in the event that Volt prevailed against Stanford. At Stanford's request, the Superior Court stayed the arbitration. The California Court of Appeal affirmed the stay order. Volt and Stanford incorporated §1281.2(c) into their agreement, the appeals court held. They did so by stipulating that the contract — otherwise silent on the priority of suits drawing in parties not subject to arbitration — would be governed by California law. Board of Trustees of Leland Stanford Junior Univ. v. Volt Information Sciences, Inc., 240 Cal. Rptr. 558, 561 (1987) (officially depublished). Relying on the Court of Appeal's interpretation of the contract, we held that the FAA did not bar a stay of arbitration pending the resolution of Stanford's Superior Court suit against Volt and the two companies not bound by the arbitration agreement. Preston and Ferrer's contract also contains a choice-of-law clause, which states that the "agreement shall be governed by the laws of the state of California." App. 17. A separate saving clause provides: "If there is any conflict between this agreement and any present or future law," the law prevails over the contract "to the extent necessary to bring [the contract] within the requirements of said law." Id., at 18. Those contractual terms, according to Ferrer, call for the application of California procedural law, including §1700.44(a)'s grant of exclusive jurisdiction to the Labor Commissioner. Ferrer's reliance on Volt is misplaced for two discrete reasons. First, arbitration was stayed in Volt to accommodate litigation involving third parties who were strangers to the arbitration agreement. Nothing in the arbitration agreement addressed the order of proceedings when pending litigation with third parties presented the prospect of inconsistent rulings. We thought it proper, in those circumstances, to recognize state law as the gap filler. Here, in contrast, the arbitration clause speaks to the matter in controversy; it states that "any dispute ... relating to ... the breach, validity, or legality" of the contract should be arbitrated in accordance with the American Arbitration Association (AAA) rules. App. 18. Both parties are bound by the arbitration agreement; the question of Preston's status as a talent agent relates to the validity or legality of the contract; there is no risk that related litigation will yield conflicting rulings on common issues; and there is no other procedural void for the choice-of-law clause to fill. Second, we are guided by our more recent decision in Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52 (1995). Although the contract in Volt provided for "arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association," 489 U. S., at 470, n. 1 (internal quotation marks omitted), Volt never argued that incorporation of those rules trumped the choice-of-law clause contained in the contract, see Brief for Appellant, and Reply Brief, in Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., O. T. 1987, No. 87-1318. Therefore, neither our decision in Volt nor the decision of the California appeals court in that case addressed the import of the contract's incorporation by reference of privately promulgated arbitration rules. In Mastrobuono, we reached that open question while interpreting a contract with both a New York choice-of-law clause and a clause providing for arbitration in accordance with the rules of the National Association of Securities Dealers (NASD). 514 U. S., at 58-59.8 The "best way to harmonize" the two clauses, we held, was to read the choice-of-law clause "to encompass substantive principles that New York courts would apply, but not to include [New York's] special rules limiting the authority of arbitrators." Id., at 63-64. Preston and Ferrer's contract, as noted, provides for arbitration in accordance with the AAA rules. App. 18. One of those rules states that "[t]he arbitrator shall have the power to determine the existence or validity of a contract of which an arbitration clause forms a part." AAA, Commercial Arbitration Rules ¶R-7(b) (2007), online at http://www.adr.org/sp.asp?id=22440 (as visited Feb. 15, 2008, and in Clerk of Court's case file). The incorporation of the AAA rules, and in particular Rule 7(b), weighs against inferring from the choice-of-law clause an understanding shared by Ferrer and Preston that their disputes would be heard, in the first instance, by the Labor Commissioner. Following the guide Mastrobuono provides, the "best way to harmonize" the parties' adoption of the AAA rules and their selection of California law is to read the latter to encompass prescriptions governing the substantive rights and obligations of the parties, but not the State's "special rules limiting the authority of arbitrators." 514 U. S., at 63-64.* * * For the reasons stated, the judgment of the California Court of Appeal is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered.ARNOLD M. PRESTON, PETITIONER v. ALEX E. FERRERon writ of certiorari to the court of appeal of california, second appellate district[February 20, 2008] Justice Thomas, dissenting. As I have stated on many previous occasions, I believe that the Federal Arbitration Act (FAA), 9 U. S. C. §1 et seq. (2000 ed. and Supp. V), does not apply to proceedings in state courts. See Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265, 285-297 (1995) (Thomas, J., dissenting); see also Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 449 (2006) (same); Green Tree Financial Corp. v. Bazzle, 539 U. S. 444, 460 (2003) (same); Doctor's Associates, Inc. v. Casarotto, 517 U. S. 681, 689 (1996) (same). Thus, in state -court proceedings, the FAA cannot displace a state law that delays arbitration until administrative proceedings are completed. Accordingly, I would affirm the judgment of the Court of Appeals.FOOTNOTESFootnote 1 The TAA uses the term "talent agency" to describe both corporations and individual talent agents. We use the terms "talent agent" and "talent agency" interchangeably.Footnote 2 Although Ferrer urges us to overrule Southland, he relies on the same arguments we considered and rejected in Allied-Bruce Terminix Cos. v. Dobson, 513 U. S. 265 (1995). Compare Brief for Respondent 55-59, with Brief for Attorney General of Alabama et al. as Amici Curiae in Allied-Bruce Terminix Cos. v. Dobson, O. T. 1993, No. 93-1001, pp. 11-19. Adhering to precedent, we do not take up Ferrer's invitation to overrule Southland.Footnote 3 Ferrer's petition to the Labor Commissioner sought a declaration that the contract "is void under the [TAA]." App. 23. His complaint in Superior Court seeking to enjoin arbitration asserted: "[T]he [c]ontract is void by reason of [Preston's] attempt to procure employment for [Ferrer] in violation of the [TAA]," and "the [c]ontract's arbitration clause does not vest authority in an arbitrator to determine whether the contract is void." Id., at 27. His brief in the appeals court stated: "Ferrer does not contend that the arbitration clause in the [c]ontract was procured by fraud. Ferrer contends that Preston unlawfully acted as an unlicensed talent agent and hence cannot enforce the [c]ontract." Brief for Respondent in No. B188997, p. 18.Footnote 4 Courts "may void the entire contract" where talent agency services regulated by the TAA are "inseparable from [unregulated] managerial services." Marathon Entertainment, Inc. v. Blasi, No. S145428, 2008 WL 216532, *13 (Cal., Jan. 28, 2008). If the contractual terms are severable, however, "an isolated instance" of unlicensed conduct "does not automatically bar recovery for services that could lawfully be provided without a license." Ibid.Footnote 5 To appeal the Labor Commissioner's decision, an aggrieved party must post a bond of at least $1,000 and up to twice the amount of any judgment approved by the Commissioner. §1700.44(a).Footnote 6 From Superior Court an appeal lies in the Court of Appeal. Cal. Civ. Proc. Ann. §904.1(a) (West 2007); Cal. Rule of Court 8.100(a) (Appellate Rules) (West 2007 rev. ed.). Thereafter, the losing party may seek review in the California Supreme Court, Rule 8.500(a)(1) (Appellate Rules), perhaps followed by a petition for a writ of certiorari in this Court, 28 U. S. C. §1257. Ferrer has not identified a single case holding that California law permits interruption of this chain of appeals to allow the arbitrator to review the Labor Commissioner's decision. See Tr. of Oral Arg. 35.Footnote 7 Enforcement of the parties' arbitration agreement in this case does not displace any independent authority the Labor Commissioner may have to investigate and rectify violations of the TAA. See Brief for Respondent 47 ("[T]he Commissioner has independent investigatory authority and may receive information concerning alleged violations of the TAA from any source." (citation omitted)). See also Tr. of Oral Arg. 13-14.Footnote 8 The question in Mastrobuono was whether the arbitrator could award punitive damages. See Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U. S. 52, 53-54 (1995). New York law prohibited arbitrators, but not courts, from awarding such damages. Id., at 55. The NASD rules, in contrast, authorized "damages and other relief," which, according to a NASD arbitration manual, included punitive damages. Id., at 61 (internal quotation marks omitted). Relying on Volt, respondents argued that the choice-of-law clause incorporated into the parties' arbitration agreement New York's ban on arbitral awards of punitive damages. Opposing that argument, petitioners successfully urged that the agreement to arbitrate in accordance with the NASD rules controlled.

In this case arising under the Federal Employers' Liability Act, the question whether the decedent was killed while he was "employed" by the railroad was an issue of fact which should have been submitted to the jury. Pp. 227-229. 309 S. W. 2d 92, reversed.Harvey L. Davis argued the cause and filed a brief for petitioners.D. L. Case argued the cause and filed a brief for respondent.PER CURIAM.This action was commenced by the petitioners against the respondent railroad in a Texas State District Court, under the Federal Employers' Liability Act, 35 Stat. 65, as amended, 45 U.S.C. 51-60, to recover damages for the death of petitioners' decedent, Claude Baker, allegedly caused by the negligence of the respondent. Baker had been hired as a workman by W. H. Nichols & Co., Inc., which was engaged in work along the main line right of way of the respondent under a contract with it. The work consisted of "grouting," or pumping sand and cement into the roadbed to strengthen and stabilize it. Baker was struck and killed by a train while engaged at this job. It was petitioners' contention in the trial court that Baker was killed while he was "employed" by respondent, within the meaning of 1 of the Act. Evidence on the question was introduced by the parties, and a special issue for the jury's determination was framed, but the judge declined to submit the issue to the jury, holding as a matter of law that Baker was not in such a relationship to the railroad at the time of his death as to entitle him to the protection of the Act. The Court of Civil Appeals affirmed the trial court's judgment for the respondent, 309 S. W. 2d 92, and the Texas Supreme Court refused an application for a writ of error. We granted certiorari, , to investigate whether such an issue is properly one for determination by the jury.The Federal Employers' Liability Act does not use the terms "employee" and "employed" in any special sense, Robinson v. Baltimore & Ohio R. Co., , so that the familiar general legal problems as to whose "employee" or "servant" a worker is at a given time present themselves as matters of federal law under the Act. See Linstead v. Chesapeake & Ohio R. Co., . It has been well said of the question that "[e]ach case must be decided on its peculiar facts and ordinarily no one feature of the relationship is determinative." Cimorelli v. New York Central R. Co., 148 F.2d 575, 577. Although we find no decision of this Court that has discussed the matter, we think it perfectly plain that the question, like that of fault or of causation under the Act, contains factual elements such as to make it one for the jury under appropriate instructions as to the various relevant factors under law. See Restatement, Agency 2d, 220, comment c; 227, comment a. Only if reasonable men could not reach differing conclusions on the issue may the question be taken from the jury. See Chicago, R. I. & P. R. Co. v. Bond, . Here the petitioners introduced evidence tending to prove that the grouting work was part of the maintenance task of the railroad; that the road furnished the material to be pumped into the roadbed; and that a supervisor, admittedly in the employ of the railroad, in the daily course of the work exercised directive control over the details of the job performed by the individual workmen, including the precise point where the mixture should be pumped, when they should move to the next point, and the consistency of the mixture. The railroad introduced evidence tending to controvert this and further evidence tending to show that an employment relationship did not exist between it and Baker at the time of the accident. An issue for determination by the jury was presented. "The very essence of ... [the jury's] function is to select from among conflicting inferences and conclusions that which it considers most reasonable." Tennant v. Peoria & Pekin Union R. Co., . Reversed.MR. JUSTICE FRANKFURTER would dismiss this writ of certiorari as improvidently granted. See Rogers v. Missouri Pacific R. Co., . As the Court itself notes, "`[e]ach case must be decided on its peculiar facts ... .'" Such cases are unique and of no precedential value and are, therefore, outside of the criteria justifying a grant of certiorari. See Houston Oil Co. v. Goodrich, .

On a complaint before the National Labor Relations Board charging that a union had refused to bargain in good faith with an employer in violation of 8 (b) (3) of the National Labor Relations Act, as amended, it appeared that the union had conferred with the employer at the bargaining table for the purpose and with the desire of reaching an agreement on contract terms, but that, during the negotiations, it had sponsored concerted on-the-job activities by its members of a harassing nature designed to interfere with the conduct of the employer's business, for the avowed purpose of putting economic pressure on the employer to accede to the union's bargaining demands. Held: Such tactics would not support a finding by the Board that the union had failed to bargain in good faith as required by 8 (b) (3). Pp. 478-500. (1) The basic premise of the duty of collective bargaining required in the Act is that it is a process in which the parties deal with each other in a serious, good-faith desire to reach agreement and to enter into a contract ordering their industrial relationship. Congress did not intend that the Board control the substantive terms of collective bargaining contracts through the administration of this requirement; and it added 8 (d) in the Taft-Hartley Act to make the proper construction of the duty clear. Pp. 483-487. (2) By adding 8 (b) (3) to the Act through the Taft-Hartley amendments, Congress intended to require of unions the same standard of good faith in collective bargaining that it had already required of employers. P. 487. (3) Section 8 (b) (3) does not authorize the Board to infer a lack of good faith in bargaining on the part of a union solely because the union resorts to tactics designed to exert economic pressure during the negotiations. Pp. 488-490. (4) The use of economic pressure is not inconsistent with the duty of bargaining in good faith; and the Board is not empowered under 8 (b) (3) to distinguish among various union economic weapons and to brand those here involved inconsistent with good-faith collective bargaining. Pp. 490-496. (a) A different conclusion is not required on the theory that a total strike is a concerted activity protected against employer interference by 7 and 8 (a) (1) of the Act, whereas the activity here involved is not a protected concerted activity. Even if an activity is not protected against disciplinary action that does not necessarily mean that it amounts to a refusal to bargain in good faith. Pp. 492-495. (b) A different conclusion is not required on the theory that, because an orthodox "total" strike is "traditional," its use must be taken as being consistent with 8 (b) (3); whereas the tactics here involved are not "traditional" or "normal" and, therefore, need not be so viewed. Pp. 495-496. (5) To construe 8 (b) (3) as authorizing the Board to act as an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands would inject the Board into the substantive aspects of the bargaining process to an extent that Congress did not intend and has not authorized. Pp. 496-500. App. D.C. 218, 260 F.2d 736, affirmed.Dominick L. Manoli argued the cause for petitioner. With him on the brief were Solicitor General Rankin, Stuart Rothman and Thomas J. McDermott.Isaac N. Groner argued the cause and filed a brief for respondent. He was also on a brief for Insurance Workers International Union, AFL-CIO.Nahum A. Bernstein filed a brief for Prudential Insurance Company of America, as amicus curiae, urging reversal. Donald R. Seawell was of counsel.MR. JUSTICE BRENNAN delivered the opinion of the Court.This case presents an important issue of the scope of the National Labor Relations Board's authority under 8 (b) (3) of the National Labor Relations Act,1 which provides that "It shall be an unfair labor practice for a labor organization or its agents ... to refuse to bargain collectively with an employer, provided it is the representative of his employees ... ." The precise question is whether the Board may find that a union, which confers with an employer with the desire of reaching agreement on contract terms, has nevertheless refused to bargain collectively, thus violating that provision, solely and simply because during the negotiations it seeks to put economic pressure on the employer to yield to its bargaining demands by sponsoring on-the-job conduct designed to interfere with the carrying on of the employer's business.Since 1949 the respondent Insurance Agents' International Union and the Prudential Insurance Company of America have negotiated collective bargaining agreements covering district agents employed by Prudential in 35 States and the District of Columbia. The principal duties of a Prudential district agent are to collect premiums and to solicit new business in an assigned locality known in the trade as his "debit." He has no fixed or regular working hours except that he must report at his district office two mornings a week and remain for two or three hours to deposit his collections, prepare and submit reports, and attend meetings to receive sales and other instructions. He is paid commissions on collections made and on new policies written; his only fixed compensation is a weekly payment of $4.50 intended primarily to cover his expenses.In January 1956 Prudential and the union began the negotiation of a new contract to replace an agreement expiring in the following March. Bargaining was carried on continuously for six months before the terms of the new contract were agreed upon on July 17, 1956.2 It is not questioned that, if it stood alone, the record of negotiations would establish that the union conferred in good faith for the purpose and with the desire of reaching agreement with Prudential on a contract.However, in April 1956, Prudential filed a 8 (b) (3) charge of refusal to bargain collectively against the union. The charge was based upon actions of the union and its members outside the conference room, occurring after the old contract expired in March. The union had announced in February that if agreement on the terms of the new contract was not reached when the old contract expired, the union members would then participate in a "Work Without a Contract" program - which meant that they would engage in certain planned, concerted on-the-job activities designed to harass the company.A complaint of violation of 8 (b) (3) issued on the charge and hearings began before the bargaining was concluded.3 It was developed in the evidence that the union's harassing tactics involved activities by the member agents such as these: refusal for a time to solicit new business, and refusal (after the writing of new business was resumed) to comply with the company's reporting procedures; refusal to participate in the company's "May Policyholders' Month Campaign"; reporting late at district offices the days the agents were scheduled to attend them, and refusing to perform customary duties at the offices, instead engaging there in "sit-in-mornings," "doing what comes naturally" and leaving at noon as a group; absenting themselves from special business conferences arranged by the company; picketing and distributing leaflets outside the various offices of the company on specified days and hours as directed by the union; distributing leaflets each day to policyholders and others and soliciting policyholders' signatures on petitions directed to the company; and presenting the signed policyholders' petitions to the company at its home office while simultaneously engaging in mass demonstration there.The hearing examiner filed a report recommending that the complaint be dismissed. The examiner noted that the Board in the so-called Personal Products case, Textile Workers Union, 108 N. L. R. B. 743, had declared similar union activities to constitute a prohibited refusal to bargain; but since the Board's order in that case was set aside by the Court of Appeals for the District of Columbia CircuitApp. D.C. 35, 227 F.2d 409, he did not consider that he was bound to follow it.However, the Board on review adhered to its ruling in the Personal Products case, rejected the trial examiner's recommendation, and entered a cease-and-desist order, 119 N. L. R. B. 768. The Court of Appeals for the District of Columbia Circuit also adhered to its decision in the Personal Products case, and, as in that case, set aside the Board's order. App. D.C. 218, 260 F.2d 736. We granted the Board's petition for certiorari to review the important question presented. .The hearing examiner found that there was nothing in the record, apart from the mentioned activities of the union during the negotiations, that could be relied upon to support an inference that the union had not fulfilled its statutory duty; in fact nothing else was relied upon by the Board's General Counsel in prosecuting the complaint.4 The hearing examiner's analysis of the congressional design in enacting the statutory duty to bargain led him to conclude that the Board was not authorized to find that such economically harassing activities constituted a 8 (b) (3) violation. The Board's opinion answers flatly "We do not agree" and proceeds to say "... the Respondent's reliance upon harassing tactics during the course of negotiations for the avowed purpose of compelling the Company to capitulate to its terms is the antithesis of reasoned discussion it was duty-bound to follow. Indeed, it clearly revealed an unwillingness to submit its demands to the consideration of the bargaining table where argument, persuasion, and the free interchange of views could take place. In such circumstances, the fact that the Respondent continued to confer with the Company and was desirous of concluding an agreement does not alone establish that it fulfilled its obligation to bargain in good faith ... ." 119 N. L. R. B., at 769, 770-771. Thus the Board's view is that irrespective of the union's good faith in conferring with the employer at the bargaining table for the purpose and with the desire of reaching agreement on contract terms, its tactics during the course of the negotiations constituted per se a violation of 8 (b) (3).5 Accordingly, as is said in the Board's brief, "The issue here ... comes down to whether the Board is authorized under the Act to hold that such tactics, which the Act does not specifically forbid but Section 7 does not protect,6 support a finding of a failure to bargain in good faith as required by Section 8 (b) (3)."First. The bill which became the Wagner Act included no provision specifically imposing a duty on either party to bargain collectively. Senator Wagner thought that the bill required bargaining in good faith without such a provision.7 However, the Senate Committee in charge of the bill concluded that it was desirable to include a provision making it an unfair labor practice for an employer to refuse to bargain collectively in order to assure that the Act would achieve its primary objective of requiring an employer to recognize a union selected by his employees as their representative. It was believed that other rights guaranteed by the Act would not be meaningful if the employer was not under obligation to confer with the union in an effort to arrive at the terms of an agreement. It was said in the Senate Report: "But, after deliberation, the committee has concluded that this fifth unfair labor practice should be inserted in the bill. It seems clear that a guarantee of the right of employees to bargain collectively through representatives of their own choosing is a mere delusion if it is not accompanied by the correlative duty on the part of the other party to recognize such representatives ... and to negotiate with them in a bona fide effort to arrive at a collective bargaining agreement. Furthermore, the procedure of holding governmentally supervised elections to determine the choice of representatives of employees becomes of little worth if after the election its results are for all practical purposes ignored. Experience has proved that neither obedience to law nor respect for law is encouraged by holding forth a right unaccompanied by fulfillment. Such a course provokes constant strife, not peace." S. Rep. No. 573, 74th Cong., 1st Sess., p. 12. However, the nature of the duty to bargain in good faith thus imposed upon employers by 8 (5) of the original Act8 was not sweepingly conceived. The Chairman of the Senate Committee declared: "When the employees have chosen their organization, when they have selected their representatives, all the bill proposes to do is to escort them to the door of their employer and say, `Here they are, the legal representatives of your employees.' What happens behind those doors is not inquired into, and the bill does not seek to inquire into it."9 The limitation implied by the last sentence has not been in practice maintained - practically, it could hardly have been - but the underlying purpose of the remark has remained the most basic purpose of the statutory provision. That purpose is the making effective of the duty of management to extend recognition to the union; the duty of management to bargain in good faith is essentially a corollary of its duty to recognize the union. Decisions under this provision reflect this. For example, an employer's unilateral wage increase during the bargaining processes tends to subvert the union's position as the representative of the employees in matters of this nature, and hence has been condemned as a practice violative of this statutory provision. See Labor Board v. Crompton-Highland Mills, Inc., . And as suggested, the requirement of collective bargaining, although so premised, necessarily led beyond the door of, and into, the conference room. The first annual report of the Board declared: "Collective bargaining is something more than the mere meeting of an employer with the representatives of his employees; the essential thing is rather the serious intent to adjust differences and to reach an acceptable common ground... . The Board has repeatedly asserted that good faith on the part of the employer is an essential ingredient of collective bargaining."10 This standard had early judicial approval, e. g., Labor Board v. Griswold Mfg. Co., 106 F.2d 713. Collective bargaining, then, is not simply an occasion for purely formal meetings between management and labor, while each maintains an attitude of "take it or leave it"; it presupposes a desire to reach ultimate agreement, to enter into a collective bargaining contract. See Heinz Co. v. Labor Board, . This was the sort of recognition that Congress, in the Wagner Act, wanted extended to labor unions; recognition as the bargaining agent of the employees in a process that looked to the ordering of the parties' industrial relationship through the formation of a contract. See Teamsters Union v. Oliver, .But at the same time, Congress was generally not concerned with the substantive terms on which the parties contracted. Cf. Terminal Railroad Assn. v. Brotherhood of Railroad Trainmen, . Obviously there is tension between the principle that the parties need not contract on any specific terms and a practical enforcement of the principle that they are bound to deal with each other in a serious attempt to resolve differences and reach a common ground. And in fact criticism of the Board's application of the "good-faith" test arose from the belief that it was forcing employers to yield to union demands if they were to avoid a successful charge of unfair labor practice.11 Thus, in 1947 in Congress the fear was expressed that the Board had "gone very far, in the guise of determining whether or not employers had bargained in good faith, in setting itself up as the judge of what concessions an employer must make and of the proposals and counterproposals that he may or may not make." H. R. Rep. No. 245, 80th Cong., 1st Sess., p. 19. Since the Board was not viewed by Congress as an agency which should exercise its powers to arbitrate the parties' substantive solutions of the issues in their bargaining, a check on this apprehended trend was provided by writing the good-faith test of bargaining into 8 (d) of the Act. That section defines collective bargaining as follows: "For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement, or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a concession ... ."12 The same problems as to whether positions taken at the bargaining table violate the good-faith test continue to arise under the Act as amended. See Labor Board v. Truitt Mfg. Co., ; Labor Board v. Borg-Warner Corp., . But it remains clear that 8 (d) was an attempt by Congress to prevent the Board from controlling the settling of the terms of collective bargaining agreements. Labor Board v. American National Ins. Co., .Second. At the same time as it was statutorily defining the duty to bargain collectively, Congress, by adding 8 (b) (3) of the Act through the Taft-Hartley amendments, imposed that duty on labor organizations. Unions obviously are formed for the very purpose of bargaining collectively; but the legislative history makes it plain that Congress was wary of the position of some unions, and wanted to ensure that they would approach the bargaining table with the same attitude of willingness to reach an agreement as had been enjoined on management earlier. It intended to prevent employee representatives from putting forth the same "take it or leave it" attitude that had been condemned in management. 93 Cong. Rec. 4135, 4363, 5005.13 Third. It is apparent from the legislative history of the whole Act that the policy of Congress is to impose a mutual duty upon the parties to confer in good faith with a desire to reach agreement, in the belief that such an approach from both sides of the table promotes the overall design of achieving industrial peace. See Labor Board v. Jones & Laughlin Steel Corp., . Discussion conducted under that standard of good faith may narrow the issues, making the real demands of the parties clearer to each other, and perhaps to themselves, and may encourage an attitude of settlement through give and take. The mainstream of cases before the Board and in the courts reviewing its orders, under the provisions fixing the duty to bargain collectively, is concerned with insuring that the parties approach the bargaining table with this attitude. But apart from this essential standard of conduct, Congress intended that the parties should have wide latitude in their negotiations, unrestricted by any governmental power to regulate the substantive solution of their differences. See Teamsters Union v. Oliver, supra, at 295.We believe that the Board's approach in this case - unless it can be defended, in terms of 8 (b) (3), as resting on some unique character of the union tactics involved here - must be taken as proceeding from an erroneous view of collective bargaining. It must be realized that collective bargaining, under a system where the Government does not attempt to control the results of negotiations, cannot be equated with an academic collective search for truth - or even with what might be thought to be the ideal of one. The parties - even granting the modification of views that may come from a realization of economic interdependence - still proceed from contrary and to an extent antagonistic viewpoints and concepts of self-interest. The system has not reached the ideal of the philosophic notion that perfect understanding among people would lead to perfect agreement among them on values. The presence of economic weapons in reserve, and their actual exercise on occasion by the parties, is part and parcel of the system that the Wagner and Taft-Hartley Acts have recognized. Abstract logical analysis might find inconsistency between the command of the statute to negotiate toward an agreement in good faith and the legitimacy of the use of economic weapons, frequently having the most serious effect upon individual workers and productive enterprises, to induce one party to come to the terms desired by the other. But the truth of the matter is that at the present statutory stage of our national labor relations policy, the two factors - necessity for good-faith bargaining between parties, and the availability of economic pressure devices to each to make the other party incline to agree on one's terms - exist side by side. One writer recognizes this by describing economic force as "a prime motive power for agreements in free collective bargaining."14 Doubtless one factor influences the other; there may be less need to apply economic pressure if the areas of controversy have been defined through discussion; and at the same time, negotiation positions are apt to be weak or strong in accordance with the degree of economic power the parties possess. A close student of our national labor relations laws writes: "Collective bargaining is curiously ambivalent even today. In one aspect collective bargaining is a brute contest of economic power somewhat masked by polite manners and voluminous statistics. As the relation matures, Lilliputian bonds control the opposing concentrations of economic power; they lack legal sanctions but are nonetheless effective to contain the use of power. Initially it may be only fear of the economic consequences of disagreement that turns the parties to facts, reason, a sense of responsibility, a responsiveness to government and public opinion, and moral principle; but in time these forces generate their own compulsions, and negotiating a contract approaches the ideal of informed persuasion." Cox, The Duty to Bargain in Good Faith, 71 Harv. L. Rev. 1401, 1409.For similar reasons, we think the Board's approach involves an intrusion into the substantive aspects of the bargaining process - again, unless there is some specific warrant for its condemnation of the precise tactics involved here. The scope of 8 (b) (3) and the limitations on Board power which were the design of 8 (d) are exceeded, we hold, by inferring a lack of good faith not from any deficiencies of the union's performance at the bargaining table by reason of its attempted use of economic pressure, but solely and simply because tactics designed to exert economic pressure were employed during the course of the good-faith negotiations. Thus the Board in the guise of determining good or bad faith in negotiations could regulate what economic weapons a party might summon to its aid. And if the Board could regulate the choice of economic weapons that may be used as part of collective bargaining, it would be in a position to exercise considerable influence upon the substantive terms on which the parties contract. As the parties' own devices became more limited, the Government might have to enter even more directly into the negotiation of collective agreements. Our labor policy is not presently erected on a foundation of government control of the results of negotiations. See S. Rep. No. 105, 80th Cong., 1st Sess., p. 2. Nor does it contain a charter for the National Labor Relations Board to act at large in equalizing disparities of bargaining power between employer and union.Fourth. The use of economic pressure, as we have indicated, is of itself not at all inconsistent with the duty of bargaining in good faith. But in three cases in recent years, the Board has assumed the power to label particular union economic weapons inconsistent with that duty. See the Personal Products case,15 supra, 108 N. L. R. B. 743, set asideApp. D.C. 35, 227 F.2d 409;16 the Boone County case, United Mine Workers, 117 N. L. R. B. 1095, set asideApp. D.C. 207, 257 F.2d 211;17 and the present case. The Board freely (and we think correctly) conceded here that a "total" strike called by the union would not have subjected it to sanctions under 8 (b) (3), at least if it were called after the old contract, with its no-strike clause, had expired. Cf. United Mine Workers, supra. The Board's opinion in the instant case is not so unequivocal as this concession (and therefore perhaps more logical).18 But in the light of it and the principles we have enunciated, we must evaluate the claim of the Board to power, under 8 (b) (3), to distinguish among various economic pressure tactics and brand the ones at bar inconsistent with good-faith collective bargaining. We conclude its claim is without foundation.19 (a) The Board contends that the distinction between a total strike and the conduct at bar is that a total strike is a concerted activity protected against employer interference by 720 and 8 (a) (1)21 of the Act, while the activity at bar is not a protected concerted activity. We may agree arguendo with the Board22 that this Court's decision in the Briggs-Stratton case, Automobile Workers v. Wisconsin Board, , establishes that the employee conduct here was not a protected concerted activity.23 On this assumption the employer could have discharged or taken other appropriate disciplinary action against the employees participating in these "slow-down," "sit-in," and arguably unprotected disloyal tactics. See Labor Board v. Fansteel Metallurgical Corp., ; Labor Board v. Electrical Workers, . But surely that a union activity is not protected against disciplinary action does not mean that it constitutes a refusal to bargain in good faith. The reason why the ordinary economic strike is not evidence of a failure to bargain in good faith is not that it constitutes a protected activity but that, as we have developed, there is simply no inconsistency between the application of economic pressure and good-faith collective bargaining. The Board suggests that since (on the assumption we make) the union members' activities here were unprotected, and they could have been discharged, the activities should also be deemed unfair labor practices, since thus the remedy of a cease-and-desist order, milder than mass discharges of personnel and less disruptive of commerce, would be available. The argument is not persuasive. There is little logic in assuming that because Congress was willing to allow employers to use self-help against union tactics, if they were willing to face the economic consequences of its use, it also impliedly declared these tactics unlawful as a matter of federal law. Our problem remains that of construing 8 (b) (3)'s terms, and we do not see how the availability of self-help to the employer has anything to do with the matter.(b) The Board contends that because an orthodox "total" strike is "traditional" its use must be taken as being consistent with 8 (b) (3); but since the tactics here are not "traditional" or "normal," they need not be so viewed.24 Further, the Board cites what it conceives to be the public's moral condemnation of the sort of employee tactics involved here. But again we cannot see how these distinctions can be made under a statute which simply enjoins a duty to bargain in good faith. Again, these are relevant arguments when the question is the scope of the concerted activities given affirmative protection by the Act. But as we have developed, the use of economic pressure by the parties to a labor dispute is not a grudging exception to some policy of completely academic discussion enjoined by the Act; it is part and parcel of the process of collective bargaining. On this basis, we fail to see the relevance of whether the practice in question is time-honored or whether its exercise is generally supported by public opinion. It may be that the tactics used here deserve condemnation, but this would not justify attempting to pour that condemnation into a vessel not designed to hold it.25 The same may be said for the Board's contention that these activities, as opposed to a "normal" strike, are inconsistent with 8 (b) (3) because they offer maximum pressure on the employer at minimum economic cost to the union. One may doubt whether this was so here,26 but the matter does not turn on that. Surely it cannot be said that the only economic weapons consistent with good-faith bargaining are those which minimize the pressure on the other party or maximize the disadvantage to the party using them. The catalog of union and employer27 weapons that might thus fall under ban would be most extensive.28 Fifth. These distinctions essayed by the Board here, and the lack of relationship to the statutory standard inherent in them, confirm us in our conclusion that the judgment of the Court of Appeals, setting aside the order of the Board, must be affirmed. For they make clear to us that when the Board moves in this area, with only 8 (b) (3) for support, it is functioning as an arbiter of the sort of economic weapons the parties can use in seeking to gain acceptance of their bargaining demands. It has sought to introduce some standard of properly "balanced"29 bargaining power, or some new distinction of justifiable and unjustifiable, proper and "abusive"30 economic weapons into the collective bargaining duty imposed by the Act. The Board's assertion of power under 8 (b) (3) allows it to sit in judgment upon every economic weapon the parties to a labor contract negotiation employ, judging it on the very general standard of that section, not drafted with reference to specific forms of economic pressure. We have expressed our belief that this amounts to the Board's entrance into the substantive aspects of the bargaining process to an extent Congress has not countenanced.It is one thing to say that the Board has been afforded flexibility to determine, for example, whether an employer's disciplinary action taken against specific workers is permissible or not, or whether a party's conduct at the bargaining table evidences a real desire to come into agreement. The statute in such areas clearly poses the problem to the Board for its solution. Cf. Labor Board v. Truck Drivers Union, . And specifically we do not mean to question in any way the Board's powers to determine the latter question, drawing inferences from the conduct of the parties as a whole. It is quite another matter, however, to say that the Board has been afforded flexibility in picking and choosing which economic devices of labor and management shall be branded as unlawful. Congress has been rather specific when it has come to outlaw particular economic weapons on the part of unions. See 8 (b) (4) of the National Labor Relations Act, as added by the Taft-Hartley Act, 61 Stat. 141, and as supplemented by the Labor-Management Reporting and Disclosure Act of 1959, 73 Stat. 542; (29 U.S.C. 158 (b) (4); 8 (b) (7), as added by the latter Act, 73 Stat. 544. But the activities here involved have never been specifically outlawed by Congress.31 To be sure, the express prohibitions of the Act are not exclusive - if there were any questions of a stratagem or device to evade the policies of the Act, the Board hardly would be powerless. Phelps Dodge Corp. v. Labor Board, . But it is clear to us that the Board needs a more specific charter than 8 (b) (3) before it can add to the Act's prohibitions here.We recognize without hesitation the primary function and responsibility of the Board to resolve the conflicting interests that Congress has recognized in its labor legislation. Clearly, where the "ultimate problem is the balancing of the conflicting legitimate interests" it must be remembered that "The function of striking that balance to effectuate national labor policy is often a difficult and delicate responsibility, which the Congress committed primarily to the National Labor Relations Board, subject to limited judicial review." Labor Board v. Truck Drivers Union, supra, at 96. Certainly a "statute expressive of such large public policy as that on which the National Labor Relations Board is based must be broadly phrased and necessarily carries with it the task of administrative application." Phelps Dodge Corp. v. Labor Board, supra, at 194. But recognition of the appropriate sphere of the administrative power here obviously cannot exclude all judicial review of the Board's actions. On the facts of this case we need not attempt a detailed delineation of the respective functions of court and agency in this area. We think the Board's resolution of the issues here amounted not to a resolution of interests which the Act had left to it for case-by-case adjudication, but to a movement into a new area of regulation which Congress had not committed to it. Where Congress has in the statute given the Board a question to answer, the courts will give respect to that answer; but they must be sure the question has been asked. We see no indication here that Congress has put it to the Board to define through its processes what economic sanctions might be permitted negotiating parties in an "ideal" or "balanced" state of collective bargaining.It is suggested here that the time has come for a reevaluation of the basic content of collective bargaining as contemplated by the federal legislation. But that is for Congress. Congress has demonstrated its capacity to adjust the Nation's labor legislation to what, in its legislative judgment, constitutes the statutory pattern appropriate to the developing state of labor relations in the country. Major revisions of the basic statute were enacted in 1947 and 1959. To be sure, then, Congress might be of opinion that greater stress should be put on the role of "pure" negotiation in settling labor disputes, to the extent of eliminating more and more economic weapons from the parties' grasp, and perhaps it might start with the ones involved here; or in consideration of the alternatives, it might shrink from such an undertaking. But Congress' policy has not yet moved to this point, and with only 8 (b) (3) to lean on, we do not see how the Board can do so on its own.32 Affirmed.

In a trial in a Federal District Court without a jury, petitioners were convicted of fraudulent and knowing transportation and concealment of illegally imported heroin, in violation of 21 U.S.C. 174. Although the Court of Appeals held that the arrests of both petitioners without warrants were illegal, because not based on "probable cause" within the meaning of the Fourth Amendment nor "reasonable grounds" within the meaning of the Narcotics Control Act of 1956, it affirmed their convictions, notwithstanding the admission in evidence over their timely objections of (1) statements made orally by petitioner Toy in his bedroom at the time of his arrest; (2) heroin surrendered to the agents by a third party as a result of those statements; and (3) unsigned statements made by each petitioner several days after his arrest, and after being lawfully arraigned and released on his own recognizance. The Court of Appeals held that these items were not the fruits of the illegal arrests, and, therefore, were properly admitted in evidence. Held: 1. On the record in this case, there was neither reasonable grounds nor probable cause for Toy's arrest, since the information upon which it was based was too vague and came from too untested a source to accept it as probable cause for the issuance of an arrest warrant; and this defect was not cured by the fact that Toy fled when a supposed customer at his door early in the morning revealed that he was a narcotics agent. Pp. 479-484. 2. On the record in this case, the statements made by Toy in his bedroom at the time of his unlawful arrest were the fruits of the agents' unlawful action, and they should have been excluded from evidence. Pp. 484-487. 3. The narcotics taken from a third party as a result of statements made by Toy at the time of his arrest were likewise fruits of the unlawful arrest, and they should not have been admitted as evidence against Toy. Pp. 487-488. 4. After exclusion of the foregoing items of improperly admitted evidence, the only proofs remaining to sustain Toy's conviction are his and his codefendant's unsigned statements; any admissions of guilt in Toy's statement require corroboration; no reference to Toy in his codefendant's statement constitutes admissible evidence corroborating any admission by Toy; and Toy's conviction must be set aside for lack of competent evidence to support it. Pp. 488-491. 5. In view of the fact that, after his unlawful arrest, petitioner Wong Sun had been lawfully arraigned and released on his own recognizance and had returned voluntarily several days later when he made his unsigned statement, the connection between his unlawful arrest and the making of that statement was so attenuated that the unsigned statement was not the fruit of the unlawful arrest and, therefore, it was properly admitted in evidence. P. 491. 6. The seizure of the narcotics admitted in evidence invaded no right of privacy of person or premises which would entitle Wong Sun to object to its use at his trial. Pp. 491-492. 7. Any references to Wong Sun in his codefendant's statement were incompetent to corroborate Wong Sun's admissions, and Wong Sun is entitled to a new trial, because it is not clear from the record whether or not the trial court relied upon his codefendant's statement as a source of corroboration of Wong Sun's confession. Pp. 492-493. 288 F.2d 366, reversed and cause remanded.Edward Bennett Williams, acting under appointment by the Court, , reargued the cause and filed a supplemental brief for petitioners. Sol A. Abrams also filed a brief for petitioners.J. William Doolittle reargued the cause for the United States. On the brief were Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and J. F. Bishop.MR. JUSTICE BRENNAN delivered the opinion of the Court.The petitioners were tried without a jury in the District Court for the Northern District of California under a two-count indictment for violation of the Federal Narcotics Laws, 21 U.S.C. 174.1 They were acquitted under the first count which charged a conspiracy, but convicted under the second count which charged the substantive offense of fraudulent and knowing transportation and concealment of illegally imported heroin. The Court of Appeals for the Ninth Circuit, one judge dissenting, affirmed the convictions. 288 F.2d 366. We granted certiorari. . We heard argument in the 1961 Term and reargument this Term. .About 2 a. m. on the morning of June 4, 1959, federal narcotics agents in San Francisco, after having had one Hom Way under surveillance for six weeks, arrested him and found heroin in his possession. Hom Way, who had not before been an informant, stated after his arrest that he had bought an ounce of heroin the night before from one known to him only as "Blackie Toy," proprietor of a laundry on Leavenworth Street.About 6 a. m. that morning six or seven federal agents went to a laundry at 1733 Leavenworth Street. The sign above the door of this establishment said "Oye's Laundry." It was operated by the petitioner James Wah Toy. There is, however, nothing in the record which identifies James Wah Toy and "Blackie Toy" as the same person. The other federal officers remained nearby out of sight while Agent Alton Wong, who was of Chinese ancestry, rang the bell. When petitioner Toy appeared and opened the door, Agent Wong told him that he was calling for laundry and dry cleaning. Toy replied that he didn't open until 8 o'clock and told the agent to come back at that time. Toy started to close the door. Agent Wong thereupon took his badge from his pocket and said, "I am a federal narcotics agent." Toy immediately "slammed the door and started running" down the hallway through the laundry to his living quarters at the back where his wife and child were sleeping in a bedroom. Agent Wong and the other federal officers broke open the door and followed Toy down the hallway to the living quarters and into the bedroom. Toy reached into a nightstand drawer. Agent Wong thereupon drew his pistol, pulled Toy's hand out of the drawer, placed him under arrest and handcuffed him. There was nothing in the drawer and a search of the premises uncovered no narcotics.One of the agents said to Toy "... [Hom Way] says he got narcotics from you." Toy responded, "No. I haven't been selling any narcotics at all. However, I do know somebody who has." When asked who that was, Toy said, "I only know him as Johnny. I don't know his last name." However, Toy described a house on Eleventh Avenue where he said Johnny lived; he also described a bedroom in the house where he said "Johnny kept about a piece"2 of heroin and where he and Johnny had smoked some of the drug the night before. The agents left immediately for Eleventh Avenue and located the house. They entered and found one Johnny Yee in the bedroom. After a discussion with the agents, Yee took from a bureau drawer several tubes containing in all just less than one ounce of heroin, and surrendered them. Within the hour Yee and Toy were taken to the Office of the Bureau of Narcotics. Yee there stated that the heroin had been brought to him some four days earlier by petitioner Toy and another Chinese known to him only as "Sea Dog."Toy was questioned as to the identity of "Sea Dog" and said that "Sea Dog" was Wong Sun. Some agents, including Agent Alton Wong, took Toy to Wong Sun's neighborhood where Toy pointed out a multifamily dwelling where he said Wong Sun lived. Agent Wong rang a downstairs door bell and a buzzer sounded, opening the door. The officer identified himself as a narcotics agent to a woman on the landing and asked "for Mr. Wong." The woman was the wife of petitioner Wong Sun. She said that Wong Sun was "in the back room sleeping." Alton Wong and some six other officers climbed the stairs and entered the apartment. One of the officers went into the back room and brought petitioner Wong Sun from the bedroom in handcuffs. A thorough search of the apartment followed, but no narcotics were discovered.Petitioner Toy and Johnny Yee were arraigned before a United States Commissioner on June 4 on a complaint charging a violation of 21 U.S.C. 174. Later that day, each was released on his own recognizance. Petitioner Wong Sun was arraigned on a similar complaint filed the next day and was also released on his own recognizance.3 Within a few days, both petitioners and Yee were interrogated at the office of the Narcotics Bureau by Agent William Wong, also of Chinese ancestry.4 The agent advised each of the three of his right to withhold information which might be used against him, and stated to each that he was entitled to the advice of counsel, though it does not appear that any attorney was present during the questioning of any of the three. The officer also explained to each that no promises or offers of immunity or leniency were being or could be made.The agent interrogated each of the three separately. After each had been interrogated the agent prepared a statement in English from rough notes. The agent read petitioner Toy's statement to him in English and interpreted certain portions of it for him in Chinese. Toy also read the statement in English aloud to the agent, said there were corrections to be made, and made the corrections in his own hand. Toy would not sign the statement, however; in the agent's words "he wanted to know first if the other persons involved in the case had signed theirs." Wong Sun had considerable difficulty understanding the statement in English and the agent restated its substance in Chinese. Wong Sun refused to sign the statement although he admitted the accuracy of its contents.5 Hom Way did not testify at petitioners' trial. The Government offered Johnny Yee as its principal witness but excused him after he invoked the privilege against self-incrimination and flatly repudiated the statement he had given to Agent William Wong. That statement was not offered in evidence nor was any testimony elicited from him identifying either petitioner as the source of the heroin in his possession, or otherwise tending to support the charges against the petitioners.The statute expressly provides that proof of the accused's possession of the drug will support a conviction under the statute unless the accused satisfactorily explains the possession. The Government's evidence tending to prove the petitioners' possession (the petitioners offered no exculpatory testimony) consisted of four items which the trial court admitted over timely objections that they were inadmissible as "fruits" of unlawful arrests or of attendant searches: (1) the statements made orally by petitioner Toy in his bedroom at the time of his arrest; (2) the heroin surrendered to the agents by Johnny Yee; (3) petitioner Toy's pretrial unsigned statement; and (4) petitioner Wong Sun's similar statement. The dispute below and here has centered around the correctness of the rulings of the trial judge allowing these items in evidence.The Court of Appeals held that the arrests of both petitioners were illegal because not based on "`probable cause' within the meaning of the Fourth Amendment" nor "reasonable grounds" within the meaning of the Narcotic Control Act of 1956.6 The Court said as to Toy's arrest, "There is no showing in this case that the agent knew Hom Way to be reliable," and, furthermore, found "nothing in the circumstances occurring at Toy's premises that would provide sufficient justification for his arrest without a warrant." 288 F.2d, at 369, 370. As to Wong Sun's arrest, the Court said "there is no showing that Johnnie Yee was a reliable informer." The Court of Appeals nevertheless held that the four items of proof were not the "fruits" of the illegal arrests and that they were therefore properly admitted in evidence.The Court of Appeals rejected two additional contentions of the petitioners. The first was that there was insufficient evidence to corroborate the petitioners' unsigned admissions of possession of narcotics. The court held that the narcotics in evidence surrendered by Johnny Yee, together with Toy's statements in his bedroom at the time of arrest corroborated petitioners' admissions. The second contention was that the confessions were inadmissible because they were not signed. The Court of Appeals held on this point that the petitioners were not prejudiced, since the agent might properly have testified to the substance of the conversations which produced the statements.We believe that significant differences between the cases of the two petitioners require separate discussion of each. We shall first consider the case of petitioner Toy.I.The Court of Appeals found there was neither reasonable grounds nor probable cause for Toy's arrest. Giving due weight to that finding, we think it is amply justified by the facts clearly shown on this record. It is basic that an arrest with or without a warrant must stand upon firmer ground than mere suspicion, see Henry v. United States, , though the arresting officer need not have in hand evidence which would suffice to convict. The quantum of information which constitutes probable cause - evidence which would "warrant a man of reasonable caution in the belief" that a felony has been committed, Carroll v. United States, - must be measured by the facts of the particular case. The history of the use, and not infrequent abuse, of the power to arrest cautions that a relaxation of the fundamental requirements of probable cause would "leave law-abiding citizens at the mercy of the officers' whim or caprice."7 Brinegar v. United States, .Whether or not the requirements of reliability and particularity of the information on which an officer may act are more stringent where an arrest warrant is absent, they surely cannot be less stringent than where an arrest warrant is obtained. Otherwise, a principal incentive now existing for the procurement of arrest warrants would be destroyed.8 The threshold question in this case, therefore, is whether the officers could, on the information which impelled them to act, have procured a warrant for the arrest of Toy. We think that no warrant would have issued on evidence then available.The narcotics agents had no basis in experience for confidence in the reliability of Hom Way's information; he had never before given information. And yet they acted upon his imprecise suggestion that a person described only as "Blackie Toy," the proprietor of a laundry somewhere on Leavenworth Street, had sold one ounce of heroin. We have held that identification of the suspect by a reliable informant may constitute probable cause for arrest where the information given is sufficiently accurate to lead the officers directly to the suspect. Draper v. United States, . That rule does not, however, fit this case. For aught that the record discloses, Hom Way's accusation merely invited the officers to roam the length of Leavenworth Street (some 30 blocks) in search of one "Blackie Toy's" laundry - and whether by chance or other means (the record does not say) they came upon petitioner Toy's laundry, which bore not his name over the door, but the unrevealing label "Oye's." Not the slightest intimation appears on the record, or was made on oral argument, to suggest that the agents had information giving them reason to equate "Blackie" Toy and James Wah Toy - e. g., that they had the criminal record of a Toy, or that they had consulted some other kind of official record or list, or had some information of some kind which had narrowed the scope of their search to this particular Toy.It is conceded that the officers made no attempt to obtain a warrant for Toy's arrest. The simple fact is that on the sparse information at the officers' command, no arrest warrant could have issued consistently with Rules 3 and 4 of the Federal Rules of Criminal Procedure. Giordenello v. United States, .9 The arrest warrant procedure serves to insure that the deliberate, impartial judgment of a judicial officer will be interposed between the citizen and the police, to assess the weight and credibility of the information which the complaining officer adduces as probable cause. Cf. Jones v. United States, . To hold that an officer may act in his own, unchecked discretion upon information too vague and from too untested a source to permit a judicial officer to accept it as probable cause for an arrest warrant, would subvert this fundamental policy.The Government contends, however, that any defects in the information which somehow took the officers to petitioner Toy's laundry were remedied by events which occurred after they arrived. Specifically, it is urged that Toy's flight down the hall when the supposed customer at the door revealed that he was a narcotics agent adequately corroborates the suspicion generated by Hom Way's accusation. Our holding in Miller v. United States, , is relevant here, and exposes the fallacy of this contention. We noted in that case that the lawfulness of an officer's entry to arrest without a warrant "must be tested by criteria identical with those embodied in 18 U.S.C. 3109, which deals with entry to execute a search warrant." 357 U.S., at 306. That statute requires that an officer must state his authority and his purpose at the threshold, and be refused admittance, before he may break open the door. We held that when an officer insufficiently or unclearly identifies his office or his mission, the occupant's flight from the door must be regarded as ambiguous conduct. We expressly reserved the question "whether the unqualified requirements of the rule admit of an exception justifying noncompliance in exigent circumstances." 357 U.S., at 309. In the instant case, Toy's flight from the door afforded no surer an inference of guilty knowledge than did the suspect's conduct in the Miller case. Agent Wong did eventually disclose that he was a narcotics officer. However, he affirmatively misrepresented his mission at the outset, by stating that he had come for laundry and dry cleaning. And before Toy fled, the officer never adequately dispelled the misimpression engendered by his own ruse. Cf. Gouled v. United States, ; Gatewood v. United States, 209 F.2d 789.Moreover, he made no effort at that time, nor indeed at any time thereafter, to ascertain whether the man at the door was the "Blackie Toy" named by Hom Way. Therefore, this is not the case we hypothesized in Miller where "without an express announcement of purpose, the facts known to officers would justify them in being virtually certain" that the person at the door knows their purpose. 357 U.S., at 310. Toy's refusal to admit the officers and his flight down the hallway thus signified a guilty knowledge no more clearly than it did a natural desire to repel an apparently unauthorized intrusion.10 Here, as in Miller, the Government claims no extraordinary circumstances - such as the imminent destruction of vital evidence, or the need to rescue a victim in peril - see 357 U.S., at 309 - which excused the officer's failure truthfully to state his mission before he broke in.A contrary holding here would mean that a vague suspicion could be transformed into probable cause for arrest by reason of ambiguous conduct which the arresting officers themselves have provoked. Cf. Henry v. United States, . That result would have the same essential vice as a proposition we have consistently rejected - that a search unlawful at its inception may be validated by what it turns up. Byars v. United States, ; United States v. Di Re, . Thus we conclude that the Court of Appeals' finding that the officers' uninvited entry into Toy's living quarters was unlawful and that the bedroom arrest which followed was likewise unlawful, was fully justified on the evidence. It remains to be seen what consequences flow from this conclusion.II.It is conceded that Toy's declarations in his bedroom are to be excluded if they are held to be "fruits" of the agents' unlawful action.In order to make effective the fundamental constitutional guarantees of sanctity of the home and inviolability of the person, Boyd v. United States, , this Court held nearly half a century ago that evidence seized during an unlawful search could not constitute proof against the victim of the search. Weeks v. United States, . The exclusionary prohibition extends as well to the indirect as the direct products of such invasions. Silverthorne Lumber Co. v. United States, . Mr. Justice Holmes, speaking for the Court in that case, in holding that the Government might not make use of information obtained during an unlawful search to subpoena from the victims the very documents illegally viewed, expressed succinctly the policy of the broad exclusionary rule:"The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others, but the knowledge gained by the Government's own wrong cannot be used by it in the way proposed." 251 U.S., at 392. The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It follows from our holding in Silverman v. United States, , that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of "papers and effects." Similarly, testimony as to matters observed during an unlawful invasion has been excluded in order to enforce the basic constitutional policies. McGinnis v. United States, 227 F.2d 598. Thus, verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers' action in the present case is no less the "fruit" of official illegality than the more common tangible fruits of the unwarranted intrusion.11 See Nueslein v. District of Columbia, 115 F.2d 690. Nor do the policies underlying the exclusionary rule invite any logical distinction between physical and verbal evidence. Either in terms of deterring lawless conduct by federal officers, Rea v. United States, , or of closing the doors of the federal courts to any use of evidence unconstitutionally obtained, Elkins v. United States, , the danger in relaxing the exclusionary rules in the case of verbal evidence would seem too great to warrant introducing such a distinction.The Government argues that Toy's statements to the officers in his bedroom, although closely consequent upon the invasion which we hold unlawful, were nevertheless admissible because they resulted from "an intervening independent act of a free will." This contention, however, takes insufficient account of the circumstances. Six or seven officers had broken the door and followed on Toy's heels into the bedroom where his wife and child were sleeping. He had been almost immediately handcuffed and arrested. Under such circumstances it is unreasonable to infer that Toy's response was sufficiently an act of free will to purge the primary taint of the unlawful invasion.12 The Government also contends that Toy's declarations should be admissible because they were ostensibly exculpatory rather than incriminating. There are two answers to this argument. First, the statements soon turned out to be incriminating, for they led directly to the evidence which implicated Toy. Second, when circumstances are shown such as those which induced these declarations, it is immaterial whether the declarations be termed "exculpatory."13 Thus we find no substantial reason to omit Toy's declarations from the protection of the exclusionary rule.III.We now consider whether the exclusion of Toy's declarations requires also the exclusion of the narcotics taken from Yee, to which those declarations led the police. The prosecutor candidly told the trial court that "we wouldn't have found those drugs except that Mr. Toy helped us to." Hence this is not the case envisioned by this Court where the exclusionary rule has no application because the Government learned of the evidence "from an independent source," Silverthorne Lumber Co. v. United States, ; nor is this a case in which the connection between the lawless conduct of the police and the discovery of the challenged evidence has "become so attenuated as to dissipate the taint." Nardone v. United States, . We need not hold that all evidence is "fruit of the poisonous tree" simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is "whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint." Maguire, Evidence of Guilt, 221 (1959). We think it clear that the narcotics were "come at by the exploitation of that illegality" and hence that they may not be used against Toy.IV.It remains only to consider Toy's unsigned statement. We need not decide whether, in light of the fact that Toy was free on his own recognizance when he made the statement, that statement was a fruit of the illegal arrest. Cf. United States v. Bayer, . Since we have concluded that his declarations in the bedroom and the narcotics surrendered by Yee should not have been admitted in evidence against him, the only proofs remaining to sustain his conviction are his and Wong Sun's unsigned statements. Without scrutinizing the contents of Toy's ambiguous recitals, we conclude that no reference to Toy in Wong Sun's statement constitutes admissible evidence corroborating any admission by Toy. We arrive at this conclusion upon two clear lines of decisions which converge to require it. One line of our decisions establishes that criminal confessions and admissions of guilt require extrinsic corroboration; the other line of precedents holds that an out-of-court declaration made after arrest may not be used at trial against one of the declarant's partners in crime.It is a settled principle of the administration of criminal justice in the federal courts that a conviction must rest upon firmer ground than the uncorroborated admission or confession of the accused.14 We observed in Smith v. United States, , that the requirement of corroboration is rooted in "a long history of judicial experience with confessions and in the realization that sound law enforcement requires police investigations which extend beyond the words of the accused." In Opper v. United States, , we elaborated the reasons for the requirement: "In our country the doubt persists that the zeal of the agencies of prosecution to protect the peace, the self-interest of the accomplice, the maliciousness of an enemy or the aberration or weakness of the accused under the strain of suspicion may tinge or warp the facts of the confession. Admissions, retold at a trial, are much like hearsay, that is, statements not made at the pending trial. They had neither the compulsion of the oath nor the test of cross-examination." It is true that in Smith v. United States, supra, we held that although "corroboration is necessary for all elements of the offense established by admissions alone," extrinsic proof was sufficient which "merely fortifies the truth of the confession, without independently establishing the crime charged ... ." 348 U.S., at 156.15 However, Wong Sun's unsigned confession does not furnish competent corroborative evidence. The second governing principle, likewise well settled in our decisions, is that an out-of-court declaration made after arrest may not be used at trial against one of the declarant's partners in crime. While such a statement is "admissible against the others where it is in furtherance of the criminal undertaking ... all such responsibility is at an end when the conspiracy ends." Fiswick v. United States, . We have consistently refused to broaden that very narrow exception to the traditional hearsay rule which admits statements of a codefendant made in furtherance of a conspiracy or joint undertaking.16 See Krulewitch v. United States, . And where postconspiracy declarations have been admitted, we have carefully ascertained that limiting instructions kept the jury from considering the contents with respect to the guilt of anyone but the declarant. Lutwak v. United States, ; Delli Paoli v. United States, . We have never ruled squarely on the question presented here, whether a codefendant's statement might serve to corroborate even where it will not suffice to convict.17 We see no warrant for a different result so long as the rule which regulates the use of out-of-court statements is one of admissibility, rather than simply of weight, of the evidence. The import of our previous holdings is that a co-conspirator's hearsay statements may be admitted against the accused for no purpose whatever, unless made during and in furtherance of the conspiracy. Thus as to Toy the only possible source of corroboration is removed and his conviction must be set aside for lack of competent evidence to support it.V.We turn now to the case of the other petitioner, Wong Sun. We have no occasion to disagree with the finding of the Court of Appeals that his arrest, also, was without probable cause or reasonable grounds. At all events no evidentiary consequences turn upon that question. For Wong Sun's unsigned confession was not the fruit of that arrest, and was therefore properly admitted at trial. On the evidence that Wong Sun had been released on his own recognizance after a lawful arraignment, and had returned voluntarily several days later to make the statement, we hold that the connection between the arrest and the statement had "become so attenuated as to dissipate the taint." Nardone v. United States, . The fact that the statement was unsigned, whatever bearing this may have upon its weight and credibility. does not render it inadmissible; Wong Sun understood and adopted its substance, though he could not comprehend the English words. The petitioner has never suggested any impropriety in the interrogation itself which would require the exclusion of this statement.We must then consider the admissibility of the narcotics surrendered by Yee. Our holding, supra, that this ounce of heroin was inadmissible against Toy does not compel a like result with respect to Wong Sun. The exclusion of the narcotics as to Toy was required solely by their tainted relationship to information unlawfully obtained from Toy, and not by any official impropriety connected with their surrender by Yee. The seizure of this heroin invaded no right of privacy of person or premises which would entitle Wong Sun to object to its use at his trial. Cf. Goldstein v. United States, .18 However, for the reasons that Wong Sun's statement was incompetent to corroborate Toy's admissions contained in Toy's own statement, any references to Wong Sun in Toy's statement were incompetent to corroborate Wong Sun's admissions. Thus, the only competent source of corroboration for Wong Sun's statement was the heroin itself. We cannot be certain, however, on this state of the record, that the trial judge may not also have considered the contents of Toy's statement as a source of corroboration. Petitioners raised as one ground of objection to the introduction of the statements the claim that each statement, "even if it were a purported admission or confession or declaration against interest of a defendant ... would not be binding upon the other defendant." The trial judge, in allowing the statements in, apparently overruled all of petitioners' objections, including this one. Thus we presume that he considered all portions of both statements as bearing upon the guilt of both petitioners.We intimate no view one way or the other as to whether the trial judge might have found in the narcotics alone sufficient evidence to corroborate Wong Sun's admissions that he delivered heroin to Yee and smoked heroin at Yee's house around the date in question. But because he might, as the factfinder, have found insufficient corroboration from the narcotics alone, we cannot be sure that the scales were not tipped in favor of conviction by reliance upon the inadmissible Toy statement. This is particularly important because of the nature of the offense involved here.Surely, under the narcotics statute, the discovery of heroin raises a presumption that someone - generally the possessor - violated the law. As to him, once possession alone is proved, the other elements of the offense - transportation and concealment with knowledge of the illegal importation of the drug - need not be separately demonstrated, much less corroborated. 21 U.S.C. 174. Thus particular care ought to be taken in this area, when the crucial element of the accused's possession is proved solely by his own admissions, that the requisite corroboration be found among the evidence which is properly before the trier of facts. We therefore hold that petitioner Wong Sun is also entitled to a new trial.The judgment of the Court of Appeals is reversed and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered. [For concurring opinion of MR. JUSTICE DOUGLAS, see post, p. 497.][For dissenting opinion of MR. JUSTICE CLARK, see post, p. 498.] APPENDIX TO OPINION OF THE COURT. Statement of JAMES WAH TOY taken on June 5, 1959, concerning his knowledge of WONG SUN's narcotic trafficking I have know WONG SUN for about 3 months. I know him as SEA DOG which is what everyone calls him. I first met him in Marysville, California, during a Chinese holiday. I drove him back to San Francisco on that occasion. Sometimes he asks me to drive him home and to different places in San Francisco.Sometime during April or May of this year, he asked me to drive him out to JOHNNY YEE's house, at 11th and Balboa Streets. He asked me to call JOHNNY and tell him we were coming. When we got there we went into the house and WONG SUN took a paper package out of his pocket and put it on the table. Then both WONG SUN and JOHNNY YEE opened the package. I don't know how much heroin was in it, but I know it was more than 10 spoons. I asked them if I could have some for myself and they said yes. I took a little bit and went across the room and smoked it in a cigarette.WONG SUN and JOHNNY YEE talked for about 10 or 15 minutes, but they were talking in low tones so that I could not hear what they were saying. I didn't see any money change hands, because I wasn't paying too much attention. WONG SUN and I then left the house and drove. I drove WONG SUN to his home and he gave me $15.00. He said the money was for driving him out there.I have driven WONG SUN out to JOHNNY YEE's house about 5 times altogether. Each time WONG SUN gave me $10 or $15 for doing it and also, Johnny gave me a little heroin - enough to put in 3 or 4 cigarettes. The last time I drove WONG SUN out to YEE's house was last Tuesday, May 26, 1959. On Wednesday night June 3, 1959, at about 10:00 p. m., I called JOHNNY YEE and told him that "I'm coming out pretty soon - I don't have anything." He said okay, so I drove out there. When I got there I went in the house and Johnny gave me a paper of heroin. The bindle had about enough for 5 or 6 cigarettes. I didn't give him any money and he didn't ask for any. He gives it to me just out of friendship. He has given me heroin like this quite a few times. I don't remember how many times. I have known HOM WEI about 2 or 3 years but I have never dealt in narcotics with him. I have known ED FONG about 1 year and I have never dealt in narcotics with him, either. I have heard people that I know in the Hop Sing Tong Club talk about HOM WEI dealing in narcotics but nothing about ED FONG. I do not know JOHN MOW LIM or BILL FONG. The only connection I have now is JOHNNY YEE.I have carefully read the foregoing statement, which was made of my own free will, without promise of reward or immunity and not under duress. I have been given ample opportunity to make corrections have initialed or signed each page as evidence thereof and hereby state that this statement is true to the best of my knowledge and belief. ______________________________ JAMES WAH TOY... . . JAMES WAH TOY did not wish to sign this statement at this time. He stated he may change his mind at a later date. However, I read this statement to him and in addition he read it also and stated that the contents thereof were true to the best of his knowledge. Corrections made were by JAMES WAH TOY without his initials. /s/ WILLIAM WONG William Wong. Narcotic Agent STATEMENT OF WONG SUN I met JAMES TOY approximately the middle of March, this year, at Marysville, California, during a Chinese celebration. We returned to San Francisco together and we discussed the possible sale of heroin. I told JAMES that I could get a piece of heroin for $450 from a person known as BILL.Shortly after returning to San Francisco, JAMES told me he wanted me to get a piece. I asked him who it was for and he told me it was for JOHNNY. He gave me $450 and I obtained a piece of heroin from BILL. I did this on approximately 8 occasions, however, at least one of these times the heroin was not for JOHNNY - for another friend of JAMES TOY. JOHNNY would pay JAMES $600 for each piece.On several occasions after I had obtained the piece for JAMES I would drive with him to JOHNNY's house, 606 11th Avenue, and we would go upstairs to the bedroom. There, all three of us would smoke some of the heroin and JAMES would give the piece to JOHNNY. I also went with JAMES on approximately 3 other occasions when he did not take any heroin and then we smoked at JOHNNY's and we would also get some for our own use.About 4 days before I was arrested (arrested on June 4, 1959) JAMES called me at home about 7 o'clock in the evening and told me to come by. I went to the laundry and JAMES told me to get a piece. I called BILL and arranged to meet him. JAMES gave me $450 which I gave to BILL when I met him. BILL called me about one hour later at the laundry and I met him. He gave me one piece, which I gave to JAMES, and JAMES immediately thereafter called JOHNNY. We drove to 606 - 11th Ave. at approximately midnight and JAMES gave the piece to JOHNNY. It was contained in a rubber contraceptive in a small brown paper bag.Again on June 3rd, the night before I was arrested, I met JAMES at the laundry, prior to 11 o'clock in the evening, and JAMES telephoned JOHNNY at EV - 6-9336. Then we went out to JOHNNY's and smoked heroin and also had one paper for our own use later. We were there approximately 1/2 hour and then left.The laundry mentioned is OYE's LAUNDRY, 1733 Leavenworth Street, which is run by JAMES TOY. I do not know JOHNNY's last name and know him only through JAMES TOY. As well as the few times at JOHNNY's home, I have seen JOHNNY on a number of occasions at the laundry.I have carefully read the foregoing statement, consisting of 2 pages which was made of my own free will, without promise of reward or immunity and not under duress. I have been given ample opportunity to make corrections, have initialed or signed each page as evidence thereof and hereby state that this statement is true to the best of my knowledge and belief. ______________________________ WONG SUN... . . WONG SUN, being unable to read English, did not sign this statement. However, I read this statement to him and he stated that the contents thereof were true to the best of his knowledge. /s/ WILLIAM WONG William Wong, Narcotic Agent

Appellees, a national bank and a state bank, are the second and third largest of the 42 commercial banks in the metropolitan area consisting of Philadelphia and its three contiguous counties, and they have branches throughout that area. Appellees' boards of directors approved an agreement for their consolidation, under which the national bank's stockholders would retain their stock certificates, which would represent shares in the consolidated bank, while the state bank's stockholders would surrender their shares in exchange for shares in the consolidated bank. After obtaining reports, as required by the Bank Merger Act of 1960, from the Board of Governors of the Federal Reserve System, the Federal Deposit Insurance Corporation and the Attorney General, all of whom advised that the proposed merger would substantially lessen competition in the area, the Comptroller of the Currency approved it. The United States sued to enjoin consummation of the proposed consolidation, on the ground, inter alia, that it would violate 7 of the Clayton Act. Held: The proposed consolidation of appellee banks is forbidden by 7 of the Clayton Act, and it must be enjoined. Pp. 323-372. 1. By the amendments to 7 of the Clayton Act enacted in 1950, Congress intended to close a loophole in the original section by broadening its scope so as to cover the entire range of corporate amalgamations, from pure stock acquisitions to pure acquisitions of assets, and it did not intend to exclude bank mergers. Pp. 335-349. 2. The Bank Merger Act of 1960, by directing the banking agencies to consider competitive factors before approving mergers, did not immunize mergers approved by them from operation of the federal antitrust laws; and the doctrine of primary jurisdiction is not applicable here. California v. Federal Power Commission, . Pp. 350-355. 3. The proposed consolidation of appellee banks would violate 7 of the Clayton Act, and it must be enjoined. Pp. 355-372. (a) The "line of commerce" here involved is commercial banking. Pp. 355-357. (b) The "section of the country" which is relevant here is the metropolitan area consisting of Philadelphia and its three contiguous counties. Pp. 357-362. (c) The consolidated bank would control such an undue percentage share of the relevant market (at least 30%) and the consolidation would result in such a significant increase in the concentration of commercial banking facilities in the area (33%) that the result would be inherently likely to lessen competition substantially, and there is no evidence in the record to show that it would not do so. Pp. 362-367. (d) The facts that commercial banking is subject to a high degree of governmental regulation and that it deals with the intangibles of credit and services, rather than in the manufacture or sale of tangible commodities, do not immunize it from the anticompetitive effects of undue concentration. Pp. 368-370. (e) This proposed consolidation cannot be justified on the theory that only through mergers can banks follow their customers to the suburbs and retain their business, since this can be accomplished by establishing new branches in the suburbs. P. 370. (f) This proposed consolidation cannot be justified on the ground that the increased lending limit would enable the consolidated bank to compete with the large out-of-state banks, particularly the New York banks, for very large loans. Pp. 370-371. (g) This proposed consolidation cannot be justified on the ground that Philadelphia needs a bank larger than it now has in order to bring business to the area and stimulate its economic development. P. 371. (h) This Court rejects appellees' pervasive suggestion that application of the procompetitive policy of 7 to the banking industry will have dire, although unspecified, consequences for the national economy. Pp. 371-372. 201 F. Supp. 348, reversed.Assistant Attorney General Loevinger argued the cause for the United States. With him on the briefs were Solicitor General Cox, Charles H. Weston, George D. Reycraft, Lionel Kestenbaum and Melvin Spaeth. Philip Price and Arthur Littleton argued the cause for appellees. With them on the brief were Ernest R. Von Starck, Donald A. Scott, Carroll R. Wetzel, John J. Brennan and Minturn T. Wright III.MR. JUSTICE BRENNAN delivered the opinion of the Court.The United States, appellant here, brought this civil action in the United States District Court for the Eastern District of Pennsylvania under 4 of the Sherman Act, 15 U.S.C. 4, and 15 of the Clayton Act, 15 U.S.C. 25, to enjoin a proposed merger of The Philadelphia National Bank (PNB) and Girard Trust Corn Exchange Bank (Girard), appellees here. The complaint charged violations of 1 of the Sherman Act, 15 U.S.C. 1, and 7 of the Clayton Act, 15 U.S.C. 18.1 From a judgment for appellees after trial, see 201 F. Supp. 348, the United States appealed to this Court under 2 of the Expediting Act, 15 U.S.C. 29. Probable jurisdiction was noted. . We reverse the judgment of the District Court. We hold that the merger of appellees is forbidden by 7 of the Clayton Act and so must be enjoined; we need not, and therefore do not, reach the further question of alleged violation of 1 of the Sherman Act. I. THE FACTS AND PROCEEDINGS BELOW.A. The Background: Commercial Banking in the United States. Because this is the first case which has required this Court to consider the application of the antitrust laws to the commercial banking industry, and because aspects of the industry and of the degree of governmental regulation of it will recur throughout our discussion, we deem it appropriate to begin with a brief background description.2 Commercial banking in this country is primarily unit banking. That is, control of commercial banking is diffused throughout a very large number of independent, local banks - 13,460 of them in 1960 - rather than concentrated in a handful of nationwide banks, as, for example, in England and Germany. There are, to be sure, in addition to the independent banks, some 10,000 branch banks; but branching, which is controlled largely by state law - and prohibited altogether by some States - enables a bank to extend itself only to state lines and often not that far.3 It is also the case, of course, that many banks place loans and solicit deposits outside their home area. But with these qualifications, it remains true that ours is essentially a decentralized system of community banks. Recent years, however, have witnessed a definite trend toward concentration. Thus, during the decade ending in 1960 the number of commercial banks in the United States declined by 714, despite the chartering of 887 new banks and a very substantial increase in the Nation's credit needs during the period. Of the 1,601 independent banks which thus disappeared, 1,503, with combined total resources of well over $25,000,000,000, disappeared as the result of mergers.Commercial banks are unique among financial institutions in that they alone are permitted by law to accept demand deposits. This distinctive power gives commercial banking a key role in the national economy. For banks do not merely deal in, but are actually a source of, money and credit; when a bank makes a loan by crediting the borrower's demand deposit account, it augments the Nation's credit supply.4 Furthermore, the power to accept demand deposits makes banks the intermediaries in most financial transactions (since transfers of substantial moneys are almost always by check rather than by cash) and, concomitantly, the repositories of very substantial individual and corporate funds. The banks' use of these funds is conditioned by the fact that their working capital consists very largely of demand deposits, which makes liquidity the guiding principle of bank lending and investing policies; thus it is that banks are the chief source of the country's short-term business credit.Banking operations are varied and complex; "commercial banking" describes a congeries of services and credit devices.5 But among them the creation of additional money and credit, the management of the checking-account system, and the furnishing of short-term business loans would appear to be the most important. For the proper discharge of these functions is indispensable to a healthy national economy, as the role of bank failures in depression periods attests. It is therefore not surprising that commercial banking in the United States is subject to a variety of governmental controls, state and federal. Federal regulation is the more extensive, and our focus will be upon it. It extends not only to the national banks, i. e., banks chartered under federal law and supervised by the Comptroller of the Currency, see 12 U.S.C. 21 et seq. For many state banks, see 12 U.S.C. 321, as well as virtually all the national banks, 12 U.S.C. 222, are members of the Federal Reserve System (FRS), and more than 95% of all banks, see 12 U.S.C. 1815, are insured by the Federal Deposit Insurance Corporation (FDIC). State member and nonmember insured banks are subject to a federal regulatory scheme almost as elaborate as that which governs the national banks.The governmental controls of American banking are manifold. First, the Federal Reserve System, through its open-market operations, see 12 U.S.C. 263 (c), 353-359, control of the rediscount rate, see 12 U.S.C. 357, and modifications of reserve requirements, see 12 U.S.C. 462, 462b, regulates the supply of money and credit in the economy and thereby indirectly regulates the interest rates of bank loans. This is not, however, rate regulation. The Reserve System's activities are only designed to influence the prime, i. e., minimum, bank interest rate. There is no federal control of the maximum, although all banks, state and national, are subject to state usury laws where applicable. See 12 U.S.C. 85. In the range between the maximum fixed by state usury laws and the practical minimum set by federal fiscal policies (there is no law against undercutting the prime rate but bankers seldom do), bankers are free to price their loans as they choose. Moreover, charges for other banking services, such as service charges for checking privileges, are free of governmental regulation, state or federal.Entry, branching, and acquisitions are covered by a network of state and federal statutes. A charter for a new bank, state or national, will not be granted unless the invested capital and management of the applicant, and its prospects for doing sufficient business to operate at a reasonable profit, give adequate protection against undue competition and possible failure. See, e. g., 12 U.S.C. 26, 27, 51; 12 CFR 4.1 (b); Pa. Stat. Ann., Tit. 7, 819-306. Failure to meet these standards may cause the FDIC to refuse an application for insurance, 12 U.S.C. 1815, 1816, and may cause the FDIC, Federal Reserve Board (FRB), and Comptroller to refuse permission to branch to insured, member, and national banks, respectively. 12 U.S.C. 36, 321, 1828 (d). Permission to merge, consolidate, acquire assets, or assume liabilities may be refused by the agencies on the same grounds. 12 U.S.C. (1958 ed., Supp. IV) 1828 (c), note 8, infra. Furthermore, national banks appear to be subject to state geographical limitations on branching. See 12 U.S.C. 36 (c). Banks are also subject to a number of specific provisions aimed at ensuring sound banking practices. For example, member banks of the Federal Reserve System may not pay interest on demand deposits, 12 U.S.C. 371a, may not invest in common stocks or hold for their own account investment securities of any one obligor in excess of 10% of the bank's unimpaired capital and surplus, see 12 U.S.C. 24 Seventh, 335, and may not pay interest on time or savings deposits above the rate fixed by the FRB, 12 U.S.C. 371b. The payment of interest on deposits by nonmember insured banks is also federally regulated. 12 U.S.C. (1958 ed., Supp. IV) 1828 (g); 12 CFR, 1962 Supp., Part 329. In the case of national banks, the 10% limit on the obligations of a single obligor includes loans as well as investment securities. See 12 U.S.C. 84. Pennsylvania imposes the same limitation upon banks chartered under its laws, such as Girard. Pa. Stat. Ann. (1961 Supp.), Tit. 7, 819-1006.But perhaps the most effective weapon of federal regulation of banking is the broad visitatorial power of federal bank examiners. Whenever the agencies deem it necessary, they may order "a thorough examination of all the affairs of the bank," whether it be a member of the FRS or a nonmember insured bank. 12 U.S.C. 325, 481, 483, 1820 (b); 12 CFR 4.2. Such examinations are frequent and intensive. In addition, the banks are required to furnish detailed periodic reports of their operations to the supervisory agencies. 12 U.S.C. 161, 324, 1820 (e). In this way the agencies maintain virtually a day-to-day surveillance of the American banking system. And should they discover unsound banking practices, they are equipped with a formidable array of sanctions. If in the judgment of the FRB a member bank is making "undue use of bank credit," the Board may suspend the bank from the use of the credit facilities of the FRS. 12 U.S.C. 301. The FDIC has an even more formidable power. If it finds "unsafe or unsound practices" in the conduct of the business of any insured bank, it may terminate the bank's insured status. 12 U.S.C. 1818 (a). Such involuntary termination severs the bank's membership in the FRS, if it is a state bank, and throws it into receivership if it is a national bank. 12 U.S.C. 1818 (b). Lesser, but nevertheless drastic, sanctions include publication of the results of bank examinations. 12 U.S.C. 481, 1828 (f). As a result of the existence of this panoply of sanctions, recommendations by the agencies concerning banking practices tend to be followed by bankers without the necessity of formal compliance proceedings. 1 Davis, Administrative Law (1958), 4.04.Federal supervision of banking has been called "[p]robably the outstanding example in the federal government of regulation of an entire industry through methods of supervision ... . The system may be one of the most successful [systems of economic regulation], if not the most successful." Id., 4.04, at 247. To the efficacy of this system we may owe, in part, the virtual disappearance of bank failures from the American economic scene.6 B. The Proposed Merger of PNB and Girard. The Philadelphia National Bank and Girard Trust Corn Exchange Bank are, respectively, the second and third largest of the 42 commercial banks with head offices in the Philadelphia metropolitan area, which consists of the City of Philadelphia and its three contiguous counties in Pennsylvania. The home county of both banks is the city itself; Pennsylvania law, however, permits branching into the counties contiguous to the home county, Pa. Stat. Ann. (1961 Supp.), Tit. 7, 819-204.1, and both banks have offices throughout the four-county area. PNB, a national bank, has assets of over $1,000,000,000, making it (as of 1959) the twenty-first largest bank in the Nation. Girard, a state bank, is a member of the FRS and is insured by the FDIC; it has assets of about $750,000,000. Were the proposed merger to be consummated, the resulting bank would be the largest in the four-county area, with (approximately) 36% of the area banks' total assets, 36% of deposits, and 34% of net loans. It and the second largest (First Pennsylvania Bank and Trust Company, now the largest) would have between them 59% of the total assets, 58% of deposits, and 58% of the net loans, while after the merger the four largest banks in the area would have 78% of total assets, 77% of deposits, and 78% of net loans.The present size of both PNB and Girard is in part the result of mergers. Indeed, the trend toward concentration is noticeable in the Philadelphia area generally, in which the number of commercial banks has declined from 108 in 1947 to the present 42. Since 1950, PNB has acquired nine formerly independent banks and Girard six; and these acquisitions have accounted for 59% and 85% of the respective banks' asset growth during the period, 63% and 91% of their deposit growth, and 12% and 37% of their loan growth. During this period, the seven largest banks in the area increased their combined share of the area's total commercial bank resources from about 61% to about 90%.In November 1960 the boards of directors of the two banks approved a proposed agreement for their consolidation under the PNB charter. By the terms of the agreement, PNB's stockholders were to retain their share certificates, which would be deemed to represent an equal number of shares in the consolidated bank, while Girard's stockholders would surrender their shares in exchange for shares in the consolidated bank, receiving 1.2875 such shares for each Girard share. Such a consolidation is authorized, subject to the approval of the Comptroller of the Currency, by 12 U.S.C. (1958 ed., Supp. IV) 215.7 But under the Bank Merger Act of 1960, 12 U.S.C. (1963 ed., Supp. IV) 1828 (c), the Comptroller may not give his approval until he has received reports from the other two banking agencies and the Attorney General respecting the probable effects of the proposed transaction on competition.8 All three reports advised that the proposed merger would have substantial anticompetitive effects in the Philadelphia metropolitan area. However, on February 24, 1961, the Comptroller approved the merger. No opinion was rendered at that time. But as required by 1828 (c), the Comptroller explained the basis for his decision to approve the merger in a statement to be included in his annual report to Congress. As to effect upon competition, he reasoned that "[s]ince there will remain an adequate number of alternative sources of banking service in Philadelphia, and in view of the beneficial effects of this consolidation upon international and national competition it was concluded that the over-all effect upon competition would not be unfavorable." He also stated that the consolidated bank "would be far better able to serve the convenience and needs of its community by being of material assistance to its city and state in their efforts to attract new industry and to retain existing industry." The day after the Comptroller approved the merger, the United States commenced the present action. No steps have been taken to consummate the merger pending the outcome of this litigation.C. The Trial and the District Court's Decision.The Government's case in the District Court relied chiefly on statistical evidence bearing upon market structure and on testimony by economists and bankers to the effect that, notwithstanding the intensive governmental regulation of banking, there was a substantial area for the free play of competitive forces; that concentration of commercial banking, which the proposed merger would increase, was inimical to that free play; that the principal anticompetitive effect of the merger would be felt in the area in which the banks had their offices, thus making the four-county metropolitan area the relevant geographical market; and that commercial banking was the relevant product market. The defendants, in addition to offering contrary evidence on these points, attempted to show business justifications for the merger. They conceded that both banks were economically strong and had sound management, but offered the testimony of bankers to show that the resulting bank, with its greater prestige and increased lending limit,9 would be better able to compete with large out-of-state (particularly New York) banks, would attract new business to Philadelphia, and in general would promote the economic development of the metropolitan area.10 Upon this record, the District Court held that: (1) the passage of the Bank Merger Act of 1960 did not repeal by implication the antitrust laws insofar as they may apply to bank mergers; (2) 7 of the Clayton Act is inapplicable to bank mergers because banks are not corporations "subject to the jurisdiction of the Federal Trade Commission"; (3) but assuming that 7 is applicable, the four-county Philadelphia metropolitan area is not the relevant geographical market because PNB and Girard actively compete with other banks for bank business throughout the greater part of the northeastern United States; (4) but even assuming that 7 is applicable and that the four-county area is the relevant market, there is no reasonable probability that competition among commercial banks in the area will be substantially lessened as the result of the merger; (5) since the merger does not violate 7 of the Clayton Act, a fortiori it does not violate 1 of the Sherman Act; (6) the merger will benefit the Philadelphia metropolitan area economically. The District Court also ruled that for the purposes of 7, commercial banking is a line of commerce; the appellees do not contest this ruling. II. THE APPLICABILITY OF SECTION 7 OF THE CLAYTON ACT TO BANK MERGERS.A. The Original Section and the 1950 Amendment.By its terms, the present 7 reaches acquisitions of corporate stock or share capital by any corporation engaged in commerce, but it reaches acquisitions of corporate assets only by corporations "subject to the jurisdiction of the Federal Trade Commission." The FTC, under 5 of the Federal Trade Commission Act, has no jurisdiction over banks. 15 U.S.C. 45 (a) (6).11 Therefore, if the proposed merger be deemed an assets acquisition, it is not within 7.12 Appellant argues vigorously that a merger is crucially different from a pure assets acquisition,13 and appellees argue with equal vigor that it is crucially different from a pure stock acquisition.14 Both positions, we think, have merit; a merger fits neither category neatly. Since the literal terms of 7 thus do not dispose of our question, we must determine whether a congressional design to embrace bank mergers is revealed in the history of the statute. The question appears to be one of first impression; we have been directed to no previous case in which a merger or consolidation was challenged under 7 of the Clayton Act, as amended, where the acquiring corporation was not subject to the FTC's jurisdiction.When it was first enacted in 1914, 7 referred only to corporate acquisitions of stock and share capital; it was silent as to assets acquisitions and as to mergers and consolidations. Act of October 15, 1914, c. 323, 7, 38 Stat. 731-732, note 18, infra. It is true that the omission may not have been an oversight. Congress' principal concern was with the activities of holding companies, and specifically with the practice whereby corporations secretly acquired control of their competitors by purchasing the stock of those companies. Although assets acquisitions and mergers were known forms of corporate amalgamation at the time, their no less dangerously anticompetitive effects may not have been fully apparent to the Congress.15 Still, the statutory language, read in the light of the overriding congressional purpose to control corporate concentrations tending to monopoly, lent itself to a construction whereby 7 would have reached at least mergers and consolidations. It would hardly have done violence to the language so to have interpreted the vague term "share capital," see 30 Geo. Wash. L. Rev. 1024, 1027-1028 (1962), or to have adopted the view that: "where the assets are exchanged for the stock of the purchasing company, assuming that the two companies were previously in competition, it is apparent that the seller has acquired stock in a competing company ... [and] therefore, that in effecting the merger section 7 was violated and hence the distribution of the stock received by the selling company to its shareholders and its subsequent dissolution are no bar to proceedings by the government to set aside the purchase." Handler, Industrial Mergers and the Anti-Trust Laws, 32 Col. L. Rev. 179, 266 (1932).16 But the courts found mergers to be beyond the reach of 7, even when the merger technique had supplanted stock acquisitions as the prevalent mode of corporate amalgamation. United States v. Celanese Corp. of America, 91 F. Supp. 14 (D.C. S. D. N. Y. 1950); see Thatcher Mfg. Co. v. Federal Trade Comm'n and Swift & Co. v. Federal Trade Comm'n, decided together with Federal Trade Comm'n v. Western Meat Co., ; Arrow-Hart & Hegeman Elec. Co. v. Federal Trade Comm'n, .17 As a result, 7 became largely a dead letter. Comment, 68 Yale L. J. 1627, 1629-1630 (1959); see Federal Trade Commission, The Merger Movement: A Summary Report (1948), 1, 3-6; Henderson, The Federal Trade Commission (1924), 40. Meanwhile, this Court's decision in United States v. Columbia Steel Co., , stirred concern whether the Sherman Act alone was a check against corporate acquisitions. Note, 52 Col. L. Rev. 766, 768 (1952).It was against this background that Congress in 1950 amended 7 to include an assets-acquisition provision. Act of December 29, 1950 (Celler-Kefauver Antimerger Act), c. 1184, 64 Stat. 1125-1126, 15 U.S.C. 18.18 The legislative history is silent on the specific questions why the amendment made no explicit reference to mergers, why assets acquisitions by corporations not subject to FTC jurisdiction were not included, and what these omissions signify. Nevertheless, the basic congressional design clearly emerges and from that design the answers to these questions may be inferred. Congress primarily sought to bring mergers within 7 and thereby close what it regarded as a loophole in the section.19 But, in addition, it sought to reach transactions such as that involved in Columbia Steel, which was a simple purchase of assets and not a merger.20 In other words, Congress contemplated that the 1950 amendment would give 7 a reach which would bring the entire range of corporate amalgamations, from pure stock acquisitions to pure assets acquisitions, within the scope of 7. Thus, the stock-acquisition and assets-acquisition provisions, read together, reach mergers, which fit neither category perfectly but lie somewhere between the two ends of the spectrum. See pp. 336-337, and notes 13, 14, supra. So construed, the specific exception for acquiring corporations not subject to the FTC's jurisdiction excludes from the coverage of 7 only assets acquisitions by such corporations when not accomplished by merger. This construction is supported by a number of specific considerations.First. Any other construction would be illogical and disrespectful of the plain congressional purpose in amending 7, because it would create a large loophole in a statute designed to close a loophole. It is unquestioned that the stock-acquisition provision of 7 embraces every corporation engaged in commerce, including banks. And it is plain that Congress, in amending 7, considered a distinction for antitrust purposes between acquisition of corporate control by purchase of stock and acquisition by merger unsupportable in reason, and sought to overrule the decisions of this Court which had recognized such a distinction.21 If, therefore, mergers in industries outside the FTC's jurisdiction were deemed beyond the reach of 7, the result would be precisely that difference in treatment which Congress rejected. On the other hand, excluding from the section assets acquisitions not by merger in those industries does not appear to create a lacuna of practical importance.22 Second. The Congress which debated the bill to amend 7 was fully aware of the important differences between a merger and a pure purchase of assets. For example, Senator Kilgore remarked:"When you talk about mergers, you are talking about a stock transaction... . ... . . "... [A]ctually what you do is merge the stockholdings of both corporations, and instead of that - I am thinking in practical terms - you merge the corporate entities of the two corporations and you get one corporation out of it, and you issue stock in the one corporation in lieu of the stock in the other corporation, whereupon the stock of the corporation which had been merged is canceled by the new corporation, and you have one corporation handling the operation of two. So it really is a stock transaction in the final wind-up, regardless of what you call it. But what I call a purchase of assets is where you purchase physical assets, things upon which you could lay your hand, either in the records or on the ground ... ." Hearings before a Subcommittee of the Senate Committee on the Judiciary on Corporate Mergers and Acquisitions, 81st Cong., 1st and 2d Sess. 176; to the same effect, see, e. g., id., at 100, 139, 320-325. Plainly, acquisition of "assets" as used in amended 7 was not meant to be a simple equivalent of acquisition by merger, but was intended rather to ensure against the blunting of the antimerger thrust of the section by evasive transactions such as had rendered the original section ineffectual. Thus, the stock-acquisition provision of 7, though reenacted in haec verba by the 1950 amendment, must be deemed expanded in its new context to include, at the very least, acquisitions by merger or consolidation, transactions which entail a transfer of stock of the parties, while the assets-acquisition provision clearly reaches corporate acquisitions involving no such transfer. And see note 22, supra. This seems to be the point of Congressman Patman's remark, typical of many, that: "What this bill does is to put all corporate mergers on the same footing, whether the result of the acquisitions of stock or the acquisition of physical assets." Hearings, supra, at 126. To the same effect is the House Report on the bill to amend 7: "The bill retains language of the present statute which is broad enough to prevent evasion of the central purpose. It covers not only purchase of assets or stock but also any other method of acquisition ... . It forbids not only direct acquisitions but also indirect acquisitions ... ." H. R. Rep. No. 1191, 81st Cong., 1st Sess. 8-9.Third. The legislative history shows that the objective of including the phrase "corporation subject to the jurisdiction of the Federal Trade Commission" in 7 was not to limit the amalgamations to be covered by the amended statute but to make explicit the role of the FTC in administering the section. The predominant focus of the hearings, debates, and committee reports was upon the powers of the FTC. The decisions of this Court which had uncovered the loophole in the original 7 - Thatcher, Swift, and Arrow-Hart - had not rested directly upon the substantive coverage of 7, but rather upon the limited scope of the FTC's divestiture powers under 11. See note 17, supra. There were intimations that the courts' power to enforce 7 might be far greater. See Thatcher Mfg. Co. v. Federal Trade Comm'n, supra, at 561; Swift & Co. v. Federal Trade Comm'n, supra, at 563; Federal Trade Comm'n v. Eastman Kodak Co., ; Arrow-Hart & Hegeman Elec. Co. v. Federal Trade Comm'n, supra, at 598-599; Irvine, The Uncertainties of Section 7 of the Clayton Act, 14 Cornell L. Q. 28 (1928). Thus, the loophole was sometimes viewed as primarily a gap in the FTC's jurisdiction.23 Furthermore, although the Clayton Act has always provided for dual enforcement by court and agency, see 15 U.S.C. 25; United States v. W. T. Grant Co., ; United States Alkali Export Assn. v. United States, , prior to the 1950 amendment enforcement of 7 was left largely to the FTC. Martin, Mergers and the Clayton Act (1959), 205, 219; Montague, The Celler Anti-Merger Act: An Administrative Problem in an Economic Crisis, 37 A. B. A. J. 253 (1951). And the impetus to amend 7 came in large part from the FTC. See, e. g., Martin, supra, 187-194; Federal Trade Commission, Annual Reports, 1928, pp. 18-19; 1940, pp. 12-13; 1948, pp. 11-12; The Merger Movement: A Summary Report (1948). Congress in 1950 clearly intended to remove all question concerning the FTC's remedial power over corporate acquisitions, and therefore explicitly enlarged the FTC's jurisdiction. Congress' choice of this means of underscoring the FTC's role in enforcing 7 provides no basis for a construction which would undercut the dominant congressional purpose of eliminating the difference in treatment accorded stock acquisitions and mergers by the original 7 as construed.Fourth. It is settled law that "[i]mmunity from the antitrust laws is not lightly implied." California v. Federal Power Comm'n, . Cf. United States v. Borden Co., ; United States v. Southern Pac. Co., . This canon of construction, which reflects the felt indispensable role of antitrust policy in the maintenance of a free economy, is controlling here. For there is no indication in the legislative history to the 1950 amendment of 7 that Congress wished to confer a special dispensation upon the banking industry; if Congress had so wished, moreover, surely it would have exempted the industry from the stock-acquisition as well as the assets-acquisition provision.Of course, our construction of the amended 7 is not foreclosed because, after the passage of the amendment, some members of Congress, and for a time the Justice Department, voiced the view that bank mergers were still beyond the reach of the section.24 "[T]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one." United States v. Price, ; see Rainwater v. United States, ; United States v. United Mine Workers, ; cf. United States v. E. I. du Pont de Nemours & Co., . This holds true even though misunderstanding of the scope of 7 may have played some part in the passage of the Bank Merger Act of 1960.25 There is a question, to which we shall shortly turn, whether there exists such inconsistency between the Bank Merger Act and 7, as we now construe it, as to require a holding that 7 must be deemed repealed pro tanto; but that is a different question from whether misunderstanding of the scope of 7 is relevant to our task of defining what scope Congress gave the section in 1950. When Congress enacted the Bank Merger Act, the applicability of 7 to bank mergers was still to be authoritatively determined; it was a subject of speculation. Thus, this is not a case in which our "earlier decisions are part of the arch on which the new structure rests, [and] we [must] refrain from disturbing them lest we change the design that Congress fashioned." State Board of Ins. v. Todd Shipyards Corp., . Cf. note 17, supra. The design fashioned in the Bank Merger Act was predicated upon uncertainty as to the scope of 7, and we do no violence to that design by dispelling the uncertainty. B. The Effect of the Bank Merger Act of 1960.Appellees contended below that the Bank Merger Act, by directing the banking agencies to consider competitive factors before approving mergers, 12 U.S.C. (1958 ed., Supp. IV) 1828 (c), note 8, supra, immunizes approved mergers from challenge under the federal antitrust laws.26 We think the District Court was correct in rejecting this contention. No express immunity is conferred by the Act.27 Repeals of the antitrust laws by implication from a regulatory statute are strongly disfavored,28 and have only been found in cases of plain repugnancy between the antitrust and regulatory provisions.29 Two recent cases, Pan American World Airways v. United States, , and California v. Federal Power Comm'n, , illustrate this principle. In Pan American, the Court held that because the Civil Aeronautics Board had been given broad powers to enforce the competitive standard clearly delineated by the Civil Aeronautics Act, and to immunize a variety of transactions from the operation of the antitrust laws, the Sherman Act could not be applied to facts composing the precise ingredients of a case subject to the Board's broad regulatory and remedial powers; in contrast, the banking agencies have authority neither to enforce the antitrust laws against mergers, cf. note 22, supra, nor to grant immunity from those laws.In the California case, on the other hand, the Court held that the FPC's approval of a merger did not confer immunity from 7 of the Clayton Act, even though, as in the instant case, the agency had taken the competitive factor into account in passing upon the merger application. See 369 U.S., at 484-485, 487-488. We think California is controlling here. Although the Comptroller was required to consider effect upon competition in passing upon appellees' merger application, he was not required to give this factor any particular weight; he was not even required to (and did not) hold a hearing before approving the application; and there is no specific provision for judicial review of his decision.30 Plainly, the range and scope of administrative powers under the Bank Merger Act bear little resemblance to those involved in Pan American.Nor did Congress, in passing the Bank Merger Act, embrace the view that federal regulation of banking is so comprehensive that enforcement of the antitrust laws would be either unnecessary, in light of the completeness of the regulatory structure, or disruptive of that structure. On the contrary, the legislative history of the Act seems clearly to refute any suggestion that applicability of the antitrust laws was to be affected. Both the House and Senate Committee Reports stated that the Act would not affect in any way the applicability of the antitrust laws to bank acquisitions. H. R. Rep. No. 1416, 86th Cong., 2d Sess. 9; S. Rep. No. 196, 86th Cong., 1st Sess. 3. See also, e. g., 105 Cong. Rec. 8131 (remarks of Senator Robertson, the Act's sponsor). Moreover, bank regulation is in most respects less complete than public utility regulation, to which interstate rail and air carriers, among others, are subject. Rate regulation in the banking industry is limited and largely indirect, see p. 328, supra; banks are under no duty not to discriminate in their services; and though the location of bank offices is regulated, banks may do business - place loans and solicit deposits - where they please. The fact that the banking agencies maintain a close surveillance of the industry with a view toward preventing unsound practices that might impair liquidity or lead to insolvency does not make federal banking regulation all-pervasive, although it does minimize the hazards of intense competition. Indeed, that there are so many direct public controls over unsound competitive practices in the industry refutes the argument that private controls of competition are necessary in the public interest and ought therefore to be immune from scrutiny under the antitrust laws. Cf. Kaysen and Turner, Antitrust Policy (1959), 206. We note, finally, that the doctrine of "primary jurisdiction" is not applicable here. That doctrine requires judicial abstention in cases where protection of the integrity of a regulatory scheme dictates preliminary resort to the agency which administers the scheme. See Far East Conference v. United States, ; Great Northern R. Co. v. Merchants Elevator Co., ; Schwartz, Legal Restriction of Competition in the Regulated Industries: An Abdication of Judicial Responsibility, 67 Harv. L. Rev. 436, 464 (1954).31 Court jurisdiction is not thereby ousted, but only postponed. See General Am. Tank Car Corp. v. El Dorado Terminal Co., ; Federal Maritime Bd. v. Isbrandtsen Co., ; 3 Davis, Administrative Law (1958), 1-55. Thus, even if we were to assume the applicability of the doctrine to merger-application proceedings before the banking agencies,32 the present action would not be barred, for the agency proceeding was completed before the antitrust action was commenced. Cf. United States v. Western Pac. R. Co., ; Retail Clerks Int'l Assn. v. Schermerhorn, . We recognize that the practical effect of applying the doctrine of primary jurisdiction has sometimes been to channel judicial enforcement of antitrust policy into appellate review of the agency's decision, see Federal Maritime Bd. v. Isbrandtsen Co., supra; cf. D. L. Piazza Co. v. West Coast Line, Inc., 210 F.2d 947 (C. A. 2d Cir. 1954), or even to preclude such enforcement entirely if the agency has the power to approve the challenged activities, see United States Nav. Co. v. Cunard S. S. Co., ; cf. United States v. Railway Express Agency, 101 F. Supp. 1008 (D.C. D. Del. 1951); but see Federal Maritime Bd. v. Isbrandtsen Co., supra. But here there may be no power of judicial review of the administrative decision approving the merger, and such approval does not in any event confer immunity from the antitrust laws, see pp. 350-352, supra. Furthermore, the considerations that militate against finding a repeal of the antitrust laws by implication from the existence of a regulatory scheme also argue persuasively against attenuating, by postponing, the courts' jurisdiction to enforce those laws.It should be unnecessary to add that in holding as we do that the Bank Merger Act of 1960 does not preclude application of 7 of the Clayton Act to bank mergers, we deprive the later statute of none of its intended force. Congress plainly did not intend the 1960 Act to extinguish other sources of federal restraint of bank acquisitions having anticompetitive effects. For example, Congress certainly knew that bank mergers would continue subject to the Sherman Act, see p. 352, supra, as well as that pure stock acquisitions by banks would continue subject to 7 of the Clayton Act. If, in addition, bank mergers are subject to 7, we do not see how the objectives of the 1960 Act are thereby thwarted. It is not as if the Clayton and Sherman Acts embodied approaches to antitrust policy inconsistent with or unrelated to each other. The Sherman Act, of course, forbids mergers effecting an unreasonable restraint of trade. See, e. g., Northern Securities Co. v. United States, ; United States v. Union Pac. R. Co., ; indeed, there is presently pending before this Court a challenge to a bank merger predicated solely on the Sherman Act. United States v. First Nat. Bank & Trust Co. of Lexington, prob. juris. noted, post, p. 824. And the tests of illegality under the Sherman and Clayton Acts are complementary. "[T]he public policy announced by 7 of the Clayton Act is to be taken into consideration in determining whether acquisition of assets ... violates the prohibitions of the Sherman Act against unreasonable restraints." United States v. Columbia Steel Co., , n. 7; see Note, 52 Col. L. Rev. 766, 768, n. 10 (1952). To be sure, not every violation of 7, as amended, would necessarily be a violation of the Sherman Act; our point is simply that since Congress passed the 1960 Act with no intention of displacing the enforcement of the Sherman Act against bank mergers - or even of 7 against pure stock acquisitions by banks - continued application of 7 to bank mergers cannot be repugnant to the design of the 1960 Act. It would be anomalous to conclude that Congress, while intending the Sherman Act to remain fully applicable to bank mergers, and 7 of the Clayton Act to remain fully applicable to pure stock acquisitions by banks, nevertheless intended 7 to be completely inapplicable to bank mergers. III. THE LAWFULNESS OF THE PROPOSED MERGER UNDER SECTION 7. The statutory test is whether the effect of the merger "may be substantially to lessen competition" "in any line of commerce in any section of the country." We analyzed the test in detail in Brown Shoe Co. v. United States, , and that analysis need not be repeated or extended here, for the instant case presents only a straightforward problem of application to particular facts. We have no difficulty in determining the "line of commerce" (relevant product or services market) and "section of the country" (relevant geographical market) in which to appraise the probable competitive effects of appellees' proposed merger. We agree with the District Court that the cluster of products (various kinds of credit) and services (such as checking accounts and trust administration) denoted by the term "commercial banking," see note 5, supra, composes a distinct line of commerce. Some commercial banking products or services are so distinctive that they are entirely free of effective competition from products or services of other financial institutions; the checking account is in this category. Others enjoy such cost advantages as to be insulated within a broad range from substitutes furnished by other institutions. For example, commercial banks compete with small-loan companies in the personal-loan market; but the small-loan companies' rates are invariably much higher than the banks', in part, it seems, because the companies' working capital consists in substantial part of bank loans.33 Finally, there are banking facilities which, although in terms of cost and price they are freely competitive with the facilities provided by other financial institutions, nevertheless enjoy a settled consumer preference, insulating them, to a marked degree, from competition; this seems to be the case with savings deposits.34 In sum, it is clear that commercial banking is a market "sufficiently inclusive to be meaningful in terms of trade realities." Crown Zellerbach Corp. v. Federal Trade Comm'n, 296 F.2d 800, 811 (C. A. 9th Cir. 1961).We part company with the District Court on the determination of the appropriate "section of the country." The proper question to be asked in this case is not where the parties to the merger do business or even where they compete, but where, within the area of competitive overlap, the effect of the merger on competition will be direct and immediate. See Bock, Mergers and Markets (1960), 42. This depends upon "the geographic structure of supplier-customer relations." Kaysen and Turner, Anti-trust Policy (1959), 102. In banking, as in most service industries, convenience of location is essential to effective competition. Individuals and corporations typically confer the bulk of their patronage on banks in their local community; they find it impractical to conduct their banking business at a distance.35 See Transamerica Corp. v. Board of Govs. of Fed. Res. Sys., 206 F.2d 163, 169 (C. A. 3d Cir. 1953). The factor of inconvenience localizes banking competition as effectively as high transportation costs in other industries. See, e. g., American Crystal Sugar Co. v. Cuban-American Sugar Co., 152 F. Supp. 387, 398 (D.C. S. D. N. Y. 1957), aff'd, 259 F.2d 524 (C. A. 2d Cir. 1958). Therefore, since, as we recently said in a related context, the "area of effective competition in the known line of commerce must be charted by careful selection of the market area in which the seller operates, and to which the purchaser can practicably turn for supplies," Tampa Elec. Co. v. Nashville Coal Co., (emphasis supplied); see Standard Oil Co. v. United States, and 300, n. 5, the four-county area in which appellees' offices are located would seem to be the relevant geographical market. Cf. Brown Shoe Co., supra, at 338-339. In fact, the vast bulk of appellees' business originates in the four-county area.36 Theoretically, we should be concerned with the possibility that bank offices on the perimeter of the area may be in effective competition with bank offices within; actually, this seems to be a factor of little significance.37 We recognize that the area in which appellees have their offices does not delineate with perfect accuracy an appropriate "section of the country" in which to appraise the effect of the merger upon competition. Large borrowers and large depositors, the record shows, may find it practical to do a large part of their banking business outside their home community; very small borrowers and depositors may, as a practical matter, be confined to bank offices in their immediate neighborhood; and customers of intermediate size, it would appear, deal with banks within an area intermediate between these extremes. See notes 35-37, supra. So also, some banking services are evidently more local in nature than others. But that in banking the relevant geographical market is a function of each separate customer's economic scale means simply that a workable compromise must be found: some fair intermediate delineation which avoids the indefensible extremes of drawing the market either so expansively as to make the effect of the merger upon competition seem insignificant, because only the very largest bank customers are taken into account in defining the market, or so narrowly as to place appellees in different markets, because only the smallest customers are considered. We think that the four-county Philadelphia metropolitan area, which state law apparently recognizes as a meaningful banking community in allowing Philadelphia banks to branch within it, and which would seem roughly to delineate the area in which bank customers that are neither very large nor very small find it practical to do their banking business, is a more appropriate "section of the country" in which to appraise the instant merger than any larger or smaller or different area. Cf. Hale and Hale, Market Power: Size and Shape Under the Sherman Act (1958), 119. We are helped to this conclusion by the fact that the three federal banking agencies regard the area in which banks have their offices as an "area of effective competition." Not only did the FDIC and FRB, in the reports they submitted to the Comptroller of the Currency in connection with appellees' application for permission to merge, so hold, but the Comptroller, in his statement approving the merger, agreed: "With respect to the effect upon competition, there are three separate levels and effective areas of competition involved. These are the national level for national accounts, the regional or sectional area, and the local area of the City of Philadelphia and the immediately surrounding area."Having determined the relevant market, we come to the ultimate question under 7: whether the effect of the merger "may be substantially to lessen competition" in the relevant market. Clearly, this is not the kind of question which is susceptible of a ready and precise answer in most cases. It requires not merely an appraisal of the immediate impact of the merger upon competition, but a prediction of its impact upon competitive conditions in the future; this is what is meant when it is said that the amended 7 was intended to arrest anticompetitive tendencies in their "incipiency." See Brown Shoe Co., supra, at 317, 322. Such a prediction is sound only if it is based upon a firm understanding of the structure of the relevant market; yet the relevant economic data are both complex and elusive. See generally Bok, Section 7 of the Clayton Act and the Merging of Law and Economics, 74 Harv. L. Rev. 226 (1960). And unless businessmen can assess the legal consequences of a merger with some confidence, sound business planning is retarded. See Crown Zellerbach Corp. v. Federal Trade Comm'n, 296 F.2d 800, 826-827 (C. A. 9th Cir. 1961). So also, we must be alert to the danger of subverting congressional intent by permitting a too-broad economic investigation. Standard Oil Co. v. United States, . And so in any case in which it is possible, without doing violence to the congressional objective embodied in 7, to simplify the test of illegality, the courts ought to do so in the interest of sound and practical judicial administration. See Union Carbide Corp., Trade Reg. Rep., FTC Complaints and Orders. 1961-1963, § 15503, at 20375-20376 (concurring opinion). This is such a case.We noted in Brown Shoe Co., supra, at 315, that "[t]he dominant theme pervading congressional consideration of the 1950 amendments [to 7] was a fear of what was considered to be a rising tide of economic concentration in the American economy." This intense congressional concern with the trend toward concentration warrants dispensing, in certain cases, with elaborate proof of market structure, market behavior, or probable anticompetitive effects. Specifically, we think that a merger which produces a firm controlling an undue percentage share of the relevant market, and results in a significant increase in the concentration of firms in that market, is so inherently likely to lessen competition substantially that it must be enjoined in the absence of evidence clearly showing that the merger is not likely to have such anticompetitive effects. See United States v. Koppers Co., 202 F. Supp. 437 (D.C. W. D. Pa. 1962).Such a test lightens the burden of proving illegality only with respect to mergers whose size makes them inherently suspect in light of Congress' design in 7 to prevent undue concentration. Furthermore, the test is fully consonant with economic theory.38 That "[c]ompetition is likely to be greatest when there are many sellers, none of which has any significant market share,"39 is common ground among most economists, and was undoubtedly a premise of congressional reasoning about the antimerger statute. The merger of appellees will result in a single bank's controlling at least 30% of the commercial banking business in the four-county Philadelphia metropolitan area.40 Without attempting to specify the smallest market share which would still be considered to threaten undue concentration, we are clear that 30% presents that threat.41 Further, whereas presently the two largest banks in the area (First Pennsylvania and PNB) control between them approximately 44% of the area's commercial banking business, the two largest after the merger (PNB-Girard and First Pennsylvania) will control 59%. Plainly, we think, this increase of more than 33% in concentration must be regarded as significant.42 Our conclusion that these percentages raise an inference that the effect of the contemplated merger of appellees may be substantially to lessen competition is not an arbitrary one, although neither the terms of 7 nor the legislative history suggests that any particular percentage share was deemed critical. The House Report states that the tests of illegality under amended 7 "are intended to be similar to those which the courts have applied in interpreting the same language as used in other sections of the Clayton Act." H. R. Rep. No. 1191, 81st Cong., 1st Sess. 8. Accordingly, we have relied upon decisions under these other sections in applying 7. See Brown Shoe Co., supra, passim; cf. United States v. E. I. du Pont de Nemours & Co., , and n. 15. In Standard Oil Co. v. United States, , cited in S. Rep. No. 1775, 81st Cong., 2d Sess. 6, this Court held violative of 3 of the Clayton Act exclusive contracts whereby the defendant company, which accounted for 23% of the sales in the relevant market and, together with six other firms, accounted for 65% of such sales, maintained control over outlets through which approximately 7% of the sales were made. In Federal Trade Comm'n v. Motion Picture Adv. Serv. Co., , we held unlawful, under 1 of the Sherman Act and 5 of the Federal Trade Commission Act, rather than under 3 of the Clayton Act, exclusive arrangements whereby the four major firms in the industry had foreclosed 75% of the relevant market; the respondent's market share, evidently, was 20%. Kessler and Stern, Competition, Contract, and Vertical Integration, 69 Yale L. J. 1, 53 n. 231 (1959). In the instant case, by way of comparison, the four largest banks after the merger will foreclose 78% of the relevant market. P. 331, supra. And in Standard Fashion Co. v. Magrane-Houston Co., , the Court held violative of 3 a series of exclusive contracts whereby a single manufacturer controlled 40% of the industry's retail outlets. Doubtless these cases turned to some extent upon whether "by the nature of the market there is room for newcomers." Federal Trade Comm'n v. Motion Picture Adv. Serv. Co., supra, at 395. But they remain highly suggestive in the present context, for as we noted in Brown Shoe Co., supra, at 332, n. 55, integration by merger is more suspect than integration by contract, because of the greater permanence of the former. The market share and market concentration figures in the contract-integration cases, taken together with scholarly opinion, see notes 41 and 42, supra, support, we believe, the inference we draw in the instant case from the figures disclosed by the record.There is nothing in the record of this case to rebut the inherently anticompetitive tendency manifested by these percentages. There was, to be sure, testimony by bank officers to the effect that competition among banks in Philadelphia was vigorous and would continue to be vigorous after the merger. We think, however, that the District Court's reliance on such evidence was misplaced. This lay evidence on so complex an economic-legal problem as the substantiality of the effect of this merger upon competition was entitled to little weight, in view of the witnesses' failure to give concrete reasons for their conclusions.43 Of equally little value, we think, are the assurances offered by appellees' witnesses that customers dissatisfied with the services of the resulting bank may readily turn to the 40 other banks in the Philadelphia area. In every case short of outright monopoly, the disgruntled customer has alternatives; even in tightly oligopolistic markets, there may be small firms operating. A fundamental purpose of amending 7 was to arrest the trend toward concentration, the tendency to monopoly, before the consumer's alternatives disappeared through merger, and that purpose would be ill-served if the law stayed its hand until 10, or 20, or 30 more Philadelphia banks were absorbed. This is not a fanciful eventuality, in view of the strong trend toward mergers evident in the area, see p. 331, supra; and we might note also that entry of new competitors into the banking field is far from easy.44 So also, we reject the position that commercial banking, because it is subject to a high degree of governmental regulation, or because it deals in the intangibles of credit and services rather than in the manufacture or sale of tangible commodities, is somehow immune from the anti-competitive effects of undue concentration. Competition among banks exists at every level - price, variety of credit arrangements, convenience of location, attractiveness of physical surroundings, credit information, investment advice, service charges, personal accommodations, advertising, miscellaneous special and extra services - and it is keen; on this appellees' own witnesses were emphatic.45 There is no reason to think that concentration is less inimical to the free play of competition in banking than in other service industries. On the contrary, it is in all probability more inimical. For example, banks compete to fill the credit needs of businessmen. Small businessmen especially are, as a practical matter, confined to their locality for the satisfaction of their credit needs. See note 35, supra. If the number of banks in the locality is reduced, the vigor of competition for filling the marginal small business borrower's needs is likely to diminish. At the same time, his concomitantly greater difficulty in obtaining credit is likely to put him at a disadvantage vis-a-vis larger businesses with which he competes. In this fashion, concentration in banking accelerates concentration generally.We turn now to three affirmative justifications which appellees offer for the proposed merger. The first is that only through mergers can banks follow their customers to the suburbs and retain their business. This justification does not seem particularly related to the instant merger, but in any event it has no merit. There is an alternative to the merger route: the opening of new branches in the areas to which the customers have moved - so-called de novo branching. Appellees do not contend that they are unable to expand thus, by opening new offices rather than acquiring existing ones, and surely one premise of an antimerger statute such as 7 is that corporate growth by internal expansion is socially preferable to growth by acquisition.Second, it is suggested that the increased lending limit of the resulting bank will enable it to compete with the large out-of-state banks, particularly the New York banks, for very large loans. We reject this application of the concept of "countervailing power." Cf. Kiefer-Stewart Co. v. Joseph E. Seagram & Sons, . If anticompetitive effects in one market could be justified by pro-competitive consequences in another, the logical upshot would be that every firm in an industry could, without violating 7, embark on a series of mergers that would make it in the end as large as the industry leader. For if all the commercial banks in the Philadelphia area merged into one, it would be smaller than the largest bank in New York City. This is not a case, plainly, where two small firms in a market propose to merge in order to be able to compete more successfully with the leading firms in that market. Nor is it a case in which lack of adequate banking facilities is causing hardships to individuals or businesses in the community. The present two largest banks in Philadelphia have lending limits of $8,000,000 each. The only businesses located in the Philadelphia area which find such limits inadequate are large enough readily to obtain bank credit in other cities.This brings us to appellees' final contention, that Philadelphia needs a bank larger than it now has in order to bring business to the area and stimulate its economic development. See p. 334 and note 10, supra. We are clear, however, that a merger the effect of which "may be substantially to lessen competition" is not saved because, on some ultimate reckoning of social or economic debits and credits, it may be deemed beneficial. A value choice of such magnitude is beyond the ordinary limits of judicial competence, and in any event has been made for us already, by Congress when it enacted the amended 7. Congress determined to preserve our traditionally competitive economy. It therefore proscribed anticompetitive mergers, the benign and the malignant alike, fully aware, we must assume, that some price might have to be paid.In holding as we do that the merger of appellees would violate 7 and must therefore be enjoined, we reject appellees' pervasive suggestion that application of the procompetitive policy of 7 to the banking industry will have dire, although unspecified, consequences for the national economy. Concededly, PNB and Girard are healthy and strong; they are not undercapitalized or overloaned; they have no management problems; the Philadelphia area is not overbanked; ruinous competition is not in the offing. Section 7 does not mandate cut-throat competition in the banking industry, and does not exclude defenses based on dangers to liquidity or solvency, if to avert them a merger is necessary.46 It does require, however, that the forces of competition be allowed to operate within the broad framework of governmental regulation of the industry. The fact that banking is a highly regulated industry critical to the Nation's welfare makes the play of competition not less important but more so. At the price of some repetition, we note that if the businessman is denied credit because his banking alternatives have been eliminated by mergers, the whole edifice of an entrepreneurial system is threatened; if the costs of banking services and credit are allowed to become excessive by the absence of competitive pressures, virtually all costs, in our credit economy, will be affected; and unless competition is allowed to fulfill its role as an economic regulator in the banking industry, the result may well be even more governmental regulation. Subject to narrow qualifications, it is surely the case that competition is our fundamental national economic policy, offering as it does the only alternative to the cartelization or governmental regimentation of large portions of the economy. Cf. Northern Pac. R. Co. v. United States, . There is no warrant for declining to enforce it in the instant case.The judgment of the District Court is reversed and the case remanded with direction to enter judgment enjoining the proposed merger. It is so ordered.MR. JUSTICE WHITE took no part in the consideration or decision of this case.

Petitioner's federal habeas corpus petition was dismissed as time barred when the District Court concluded that the federal limitations period was not tolled while petitioner's motion for postconviction relief was pending in state court. After petitioner abandoned his attempt to seek review of the District Court's decision, this Court decided that a state postconviction relief petition can toll the federal statute of limitations even if, like petitioner's, the petition is ultimately dismissed as procedurally barred. Artuz v. Bennett, 531 U. S. 4. Petitioner filed a Federal Rule of Civil Procedure 60(b)(6) motion for relief from the judgment, which the District Court denied. The Eleventh Circuit affirmed the denial, holding that the Rule 60(b) motion was in substance a second or successive habeas petition, which under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U. S. C. §2244(b), cannot be filed without precertification by the court of appeals.Held: 1. Because petitioner's Rule 60(b) motion challenged only the District Court's previous ruling on AEDPA's statute of limitations, it is not the equivalent of a successive habeas petition and can be ruled upon by the District Court without precertification by the Eleventh Circuit. Pp. 3-11. (a) Rule 60(b) applies in §2254 habeas proceedings only "to the extent that [it is] not inconsistent with" applicable federal statutes and rules. §2254 Rule 11. Because §2244(b) applies only where a court acts pursuant to a prisoner's "habeas corpus application," the question here is whether a Rule 60(b) motion is such an application. The text of §2244(b) shows that, for these purposes, a habeas application is a filing containing one or more "claims." Other federal habeas statutes and this Court's decisions also make clear that a "claim" is an asserted federal basis for relief from a state-court conviction. If a Rule 60(b) motion contains one or more "claims," the motion is, if not in substance a "habeas corpus application," at least similar enough that failing to subject it to AEDPA's restrictions on successive habeas petitions would be "inconsistent with" the statute. A Rule 60(b) motion can be said to bring a "claim" if it seeks to add a new ground for relief from the state conviction or attacks the federal court's previous resolution of a claim on the merits, though not if it merely attacks a defect in the federal habeas proceedings' integrity. Pp. 3-8. (b) When no "claim" is presented, there is no basis for contending that a Rule 60(b) motion should be treated like a habeas petition. If neither the motion itself nor the federal judgment from which it seeks relief substantively addresses federal grounds for setting aside the movant's state conviction, allowing the motion to proceed on its own terms creates no inconsistency with the habeas statute or rules. Petitioner's motion, which alleges that the federal courts misapplied §2244(d)'s statute of limitations, fits this description. Nothing in Calderon v. Thompson, 523 U. S. 538, suggests that entertaining a filing confined to a nonmerits aspect of the first federal habeas proceeding is "inconsistent with" AEDPA. Pp. 8-11. 2. Under the proper Rule 60(b) standards, the District Court was correct to deny relief. The change in the law worked by Artuz is not an "extraordinary circumstance" justifying relief under Rule 60(b)(6), and it is made all the less extraordinary by the lack of diligence that petitioner showed in seeking direct appellate review of the statute-of-limitations issue. Pp. 11-13.366 F. 3d 1253, affirmed. Scalia, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Kennedy, Thomas, Ginsburg, and Breyer, JJ., joined. Breyer, J., filed a concurring opinion. Stevens, J., filed a dissenting opinion, in which Souter, J., joined.AURELIO O. GONZALEZ, PETITIONER v. JAMES V. CROSBY, Jr., SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONSon writ of certiorari to the united states court of appeals for the eleventh circuit[June 23, 2005] Justice Scalia delivered the opinion of the Court. After the federal courts denied petitioner habeas corpus relief from his state conviction, he filed a motion for relief from that judgment, pursuant to Federal Rule of Civil Procedure 60(b). The question presented is whether, in a habeas case, such motions are subject to the additional restrictions that apply to "second or successive" habeas corpus petitions under the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) codified at 28 U. S. C. §2244(b).I Petitioner Aurelio Gonzalez pleaded guilty in Florida Circuit Court to one count of robbery with a firearm. He filed no appeal and began serving his 99-year sentence in 1982. Some 12 years later, petitioner began to seek relief from his conviction. He filed two motions for state postconviction relief, which the Florida courts denied. Thereafter, in June 1997, petitioner filed a federal habeas petition in the United States District Court for the Southern District of Florida, alleging that his guilty plea had not been entered knowingly and voluntarily. Upon the State's motion, the District Court dismissed petitioner's habeas petition as barred by AEDPA's statute of limitations, 28 U. S. C. §2244(d). Under Eleventh Circuit precedent, petitioner's filing deadline, absent tolling, was April 23, 1997, one year after AEDPA's statute of limitations took effect. Wilcox v. Florida Dept. of Corrections, 158 F. 3d 1209, 1211 (CA11 1998) (per curiam). Adopting a Magistrate Judge's recommendation, the District Court concluded that the limitations period was not tolled during the 163-day period while petitioner's second motion for state postconviction relief was pending. Section 2244(d)(2) tolls the statute of limitations during the pendency of "properly filed" applications only, and the District Court thought petitioner's motion was not "properly filed" because it was both untimely and successive. Without tolling, petitioner's federal habeas petition was two months late, so the District Court dismissed it as time barred. A judge of the Eleventh Circuit denied a certificate of appealability (COA) on April 6, 2000, and petitioner did not file for rehearing or review of that decision. On November 7, 2000, we held in Artuz v. Bennett, 531 U. S. 4, that an application for state postconviction relief can be "properly filed" even if the state courts dismiss it as procedurally barred. See id., at 8-9. Almost nine months later, petitioner filed in the District Court a pro se "Motion to Amend or Alter Judgment," contending that the District Court's time-bar ruling was incorrect under Artuz's construction of §2244(d), and invoking Federal Rule of Civil Procedure 60(b)(6), which permits a court to relieve a party from the effect of a final judgment.1 The District Court denied the motion, and petitioner appealed. A judge of the Court of Appeals for the Eleventh Circuit granted petitioner a COA, but a panel quashed the certificate as improvidently granted. 317 F. 3d 1308, 1310, 1314 (2003). The full court vacated that order and reheard the case en banc. It granted petitioner a COA but held, by a vote of 7 to 4, that the District Court was correct to deny his Rule 60(b) motion. The en banc majority determined that petitioner's motion — indeed, any postjudgment motion under Rule 60(b) save one alleging fraud on the court under Rule 60(b)(3)--was in substance a second or successive habeas corpus petition. 366 F. 3d 1253, 1278, 1281-1282 (2004). A state prisoner may not file such a petition without precertification by the court of appeals that the petition meets certain stringent criteria. §2244(b). Because petitioner's motion did not satisfy these requirements, the Eleventh Circuit affirmed its denial. Id., at 1282. We granted certiorari. 543 U. S. __ (2005).II Rule 60(b) allows a party to seek relief from a final judgment, and request reopening of his case, under a limited set of circumstances including fraud, mistake, and newly discovered evidence.2 Rule 60(b)(6), the particular provision under which petitioner brought his motion, permits reopening when the movant shows "any ... reason justifying relief from the operation of the judgment" other than the more specific circumstances set out in Rules 60(b)(1)-(5). See Liljeberg v. Health Services Acquisition Corp., 486 U. S. 847, 863, n. 11 (1988); Klapprott v. United States, 335 U. S. 601, 613 (1949) (opinion of Black, J.). The mere recitation of these provisions shows why we give little weight to respondent's appeal to the virtues of finality. That policy consideration, standing alone, is unpersuasive in the interpretation of a provision whose whole purpose is to make an exception to finality. The issue here is whether the text of Rule 60(b) itself, or of some other provision of law, limits its application in a manner relevant to the case before us. AEDPA did not expressly circumscribe the operation of Rule 60(b). (By contrast, AEDPA directly amended other provisions of the Federal Rules. See, e.g., AEDPA, §103, 110 Stat. 1218 (amending Fed. Rule App. Proc. 22).) The new habeas restrictions introduced by AEDPA are made indirectly relevant, however, by the fact that Rule 60(b), like the rest of the Rules of Civil Procedure, applies in habeas corpus proceedings under 28 U. S. C. §22543 only "to the extent that [it is] not inconsistent with" applicable federal statutory provisions and rules. 28 U. S. C. §2254 Rule 11; see Fed. Rule Civ. Proc. 81(a)(2). The relevant provisions of the AEDPA-amended habeas statutes, 28 U. S. C. §§2244(b)(1)-(3), impose three requirements on second or successive habeas petitions: First, any claim that has already been adjudicated in a previous petition must be dismissed. §2244(b)(1). Second, any claim that has not already been adjudicated must be dismissed unless it relies on either a new and retroactive rule of constitutional law or new facts showing a high probability of actual innocence. §2244(b)(2). Third, before the district court may accept a successive petition for filing, the court of appeals must determine that it presents a claim not previously raised that is sufficient to meet §2244(b)(2)'s new-rule or actual-innocence provisions. §2244(b)(3). We proceed to consider whether these provisions limit the application of Rule 60(b) to the present case.A "As a textual matter, §2244(b) applies only where the court acts pursuant to a prisoner's 'application' " for a writ of habeas corpus. Calderon v. Thompson, 523 U. S. 538, 554 (1998). We therefore must decide whether a Rule 60(b) motion filed by a habeas petitioner is a "habeas corpus application" as the statute uses that term. Under §2244(b), the first step of analysis is to determine whether a "claim presented in a second or successive habeas corpus application" was also "presented in a prior application." If so, the claim must be dismissed; if not, the analysis proceeds to whether the claim satisfies one of two narrow exceptions. In either event, it is clear that for purposes of §2244(b) an "application" for habeas relief is a filing that contains one or more "claims." That definition is consistent with the use of the term "application" in the other habeas statutes in chapter 153 of title 28. See, e.g., Woodford v. Garceau, 538 U. S. 202, 207 (2003) (for purposes of §2254(d), an application for habeas corpus relief is a filing that seeks "an adjudication on the merits of the petitioner's claims"). These statutes, and our own decisions, make clear that a "claim" as used in §2244(b) is an asserted federal basis for relief from a state court's judgment of conviction. In some instances, a Rule 60(b) motion will contain one or more "claims." For example, it might straightforwardly assert that owing to "excusable neglect," Fed. Rule Civ. Proc. 60(b)(1), the movant's habeas petition had omitted a claim of constitutional error, and seek leave to present that claim. Cf. Harris v. United States, 367 F. 3d 74, 80-81 (CA2 2004) (petitioner's Rule 60(b) motion sought relief from judgment because habeas counsel had failed to raise a Sixth Amendment claim). Similarly, a motion might seek leave to present "newly discovered evidence," Fed. Rule Civ. Proc. 60(b)(2), in support of a claim previously denied. E.g., Rodwell v. Pepe, 324 F. 3d 66, 69 (CA1 2003). Or a motion might contend that a subsequent change in substantive law is a "reason justifying relief," Fed. Rule Civ. Proc. 60(b)(6), from the previous denial of a claim. E.g., Dunlap v. Litscher, 301 F. 3d 873, 876 (CA7 2002). Virtually every Court of Appeals to consider the question has held that such a pleading, although labeled a Rule 60(b) motion, is in substance a successive habeas petition and should be treated accordingly. E.g., Rodwell, supra, at 71-72; Dunlap, supra, at 876. We think those holdings are correct. A habeas petitioner's filing that seeks vindication of such a claim is, if not in substance a "habeas corpus application," at least similar enough that failing to subject it to the same requirements would be "inconsistent with" the statute. 28 U. S. C. §2254 Rule 11. Using Rule 60(b) to present new claims for relief from a state court's judgment of conviction — even claims couched in the language of a true Rule 60(b) motion — circumvents AEDPA's requirement that a new claim be dismissed unless it relies on either a new rule of constitutional law or newly discovered facts. §2244(b)(2). The same is true of a Rule 60(b)(2) motion presenting new evidence in support of a claim already litigated: even assuming that reliance on a new factual predicate causes that motion to escape §2244(b)(1)'s prohibition of claims "presented in a prior application," §2244(b)(2)(B) requires a more convincing factual showing than does Rule 60(b). Likewise, a Rule 60(b) motion based on a purported change in the substantive law governing the claim could be used to circumvent §2244(b)(2)(A)'s dictate that the only new law on which a successive petition may rely is "a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable." In addition to the substantive conflict with AEDPA standards, in each of these three examples use of Rule 60(b) would impermissibly circumvent the requirement that a successive habeas petition be precertified by the court of appeals as falling within an exception to the successive-petition bar. §2244(b)(3). In most cases, determining whether a Rule 60(b) motion advances one or more "claims" will be relatively simple. A motion that seeks to add a new ground for relief, as in Harris, supra, will of course qualify. A motion can also be said to bring a "claim" if it attacks the federal court's previous resolution of a claim on the merits,4 since alleging that the court erred in denying habeas relief on the merits is effectively indistinguishable from alleging that the movant is, under the substantive provisions of the statutes, entitled to habeas relief. That is not the case, however, when a Rule 60(b) motion attacks, not the substance of the federal court's resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings.5B When no "claim" is presented, there is no basis for contending that the Rule 60(b) motion should be treated like a habeas corpus application. If neither the motion itself nor the federal judgment from which it seeks relief substantively addresses federal grounds for setting aside the movant's state conviction, allowing the motion to proceed as denominated creates no inconsistency with the habeas statute or rules. Petitioner's motion in the present case, which alleges that the federal courts misapplied the federal statute of limitations set out in §2244(d), fits this description.6 Like the Court of Appeals, respondent relies heavily on our decision in Calderon v. Thompson, 523 U. S. 538 (1998). In that case we reversed the Ninth Circuit's decision to recall its mandate and reconsider the denial of Thompson's first federal habeas petition; the recall was, we held, an abuse of discretion because of its inconsistency with the policies embodied in AEDPA. Id., at 554-559. Analogizing an appellate court's recall of its mandate to a district court's grant of relief from judgment, the Eleventh Circuit thought that Calderon's disposition applied to Rule 60(b). 366 F. 3d, at 1272-1277. We think otherwise. To begin with, as the opinion said, compliance with the actual text of AEDPA's successive-petition provision was not at issue in Calderon — because the Court of Appeals considered only the claims and evidence presented in Thompson's first federal habeas petition. 523 U. S., at 554. Calderon did state, however, that "a prisoner's motion to recall the mandate on the basis of the merits of the underlying decision can be regarded as a second or successive application." Id., at 553 (emphasis added). But that is entirely consonant with the proposition that a Rule 60(b) motion that seeks to revisit the federal court's denial on the merits of a claim for relief should be treated as a successive habeas petition. The problem for respondent is that this case does not present a revisitation of the merits. The motion here, like some other Rule 60(b) motions in §2254 cases, confines itself not only to the first federal habeas petition, but to a nonmerits aspect of the first federal habeas proceeding. Nothing in Calderon suggests that entertaining such a filing is "inconsistent with" AEDPA. Rule 60(b) has an unquestionably valid role to play in habeas cases. The Rule is often used to relieve parties from the effect of a default judgment mistakenly entered against them, e.g., Klapprott, 523 U. S. 83, 94, 101 (1998). In some instances, we may note, it is the State, not the habeas petitioner, that seeks to use Rule 60(b), to reopen a habeas judgment granting the writ. See, e.g., Ritter v. Smith, 811 F. 2d 1398, 1400 (CA11 1987). Moreover, several characteristics of a Rule 60(b) motion limit the friction between the Rule and the successive-petition prohibitions of AEDPA, ensuring that our harmonization of the two will not expose federal courts to an avalanche of frivolous postjudgment motions. First, Rule 60(b) contains its own limitations, such as the requirement that the motion "be made within a reasonable time" and the more specific 1-year deadline for asserting three of the most open-ended grounds of relief (excusable neglect, newly discovered evidence, and fraud). Second, our cases have required a movant seeking relief under Rule 60(b)(6) to show "extraordinary circumstances" justifying the reopening of a final judgment. Ackermann v. United States, 340 U. S. 193, 199 (1950); accord, id., at 202; Liljeberg, 434 U. S. 257, 263, n. 7 (1978). Many Courts of Appeals have construed 28 U. S. C. §2253 to impose an additional limitation on appellate review by requiring a habeas petitioner to obtain a COA as a prerequisite to appealing the denial of a Rule 60(b) motion.7 Because petitioner's Rule 60(b) motion challenges only the District Court's previous ruling on the AEDPA statute of limitations, it is not the equivalent of a successive habeas petition. The Eleventh Circuit therefore erred in holding that petitioner did not qualify even to seek Rule 60(b) relief.III Although the Eleventh Circuit's reasoning is inconsistent with our holding today, we nonetheless affirm its denial of petitioner's Rule 60(b) motion. Petitioner's only ground for reopening the judgment denying his first federal habeas petition is that our decision in Artuz showed the error of the District Court's statute-of-limitations ruling. We assume for present purposes that the District Court's ruling was incorrect.8 As we noted above, however, relief under Rule 60(b)(6)--the only subsection petitioner invokes — requires a showing of "extraordinary circumstances." Petitioner contends that Artuz's change in the interpretation of the AEDPA statute of limitations meets this description. We do not agree. The District Court's interpretation was by all appearances correct under the Eleventh Circuit's then-prevailing interpretation of 28 U. S. C. §2244(d)(2). It is hardly extraordinary that subsequently, after petitioner's case was no longer pending, this Court arrived at a different interpretation. Although our constructions of federal statutes customarily apply to all cases then pending on direct review, see, e.g., Harper v. Virginia Dept. of Taxation, 509 U. S. 86, 97 (1993), not every interpretation of the federal statutes setting forth the requirements for habeas provides cause for reopening cases long since final.9 If Artuz justified reopening long-ago dismissals based on a lower court's unduly parsimonious interpretation of §2244(d)(2), then Pace v. DiGuglielmo, 544 U. S. __ (2005), would justify reopening long-ago grants of habeas relief based on a lower court's unduly generous interpretation of the same tolling provision. The change in the law worked by Artuz is all the less extraordinary in petitioner's case, because of his lack of diligence in pursuing review of the statute-of-limitations issue. At the time Artuz was decided, petitioner had abandoned any attempt to seek review of the District Court's decision on this statute-of-limitations issue. Although the District Court relied on Eleventh Circuit precedent holding that a state postconviction application is not "properly filed" if it is procedurally defaulted, and although that precedent was at odds with the rule in several other Circuits, petitioner neither raised that issue in his application for a COA, nor filed a petition for rehearing of the Eleventh Circuit's denial of a COA, nor sought certiorari review of that denial.10 This lack of diligence confirms that Artuz is not an extraordinary circumstance justifying relief from the judgment in petitioner's case. Indeed, in one of the cases in which we explained Rule 60(b)(6)'s extraordinary-circumstances requirement, the movant had failed to appeal an adverse ruling by the District Court, whereas another party to the same judgment had appealed and won reversal. Ackermann, 340 U. S., at 195. Some years later, the petitioner sought Rule 60(b) relief, which the District Court denied. We affirmed the denial of Rule 60(b) relief, noting that the movant's decision not to appeal had been free and voluntary, although the favorable ruling in the companion case made it appear mistaken in hindsight. See id., at 198. Under the Rule 60(b) standards that properly govern petitioner's motion, the District Court was correct to deny relief.*** We hold that a Rule 60(b)(6) motion in a §2254 case is not to be treated as a successive habeas petition if it does not assert, or reassert, claims of error in the movant's state conviction. A motion that, like petitioner's, challenges only the District Court's failure to reach the merits does not warrant such treatment, and can therefore be ruled upon by the District Court without precertification by the Court of Appeals pursuant to §2244(b)(3). In this case, however, petitioner's Rule 60(b)(6) motion fails to set forth an "extraordinary circumstance" justifying relief. For that reason, we affirm the judgment of the Court of Appeals.It is so ordered.AURELIO O. GONZALEZ, PETITIONER v. JAMES V. CROSBY, Jr., SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONSon writ of certiorari to the united states court of appeals for the eleventh circuit[June 23, 2005] Justice Breyer, concurring. The majority explains that a proper Rule 60(b) motion "attacks, not the substance of the federal court's resolution of a claim on the merits, but some defect in the integrity of the federal habeas proceedings." Ante, at 8. This is consistent with Judge Tjoflat's description of the standard in his opinion below, see 366 F. 3d 1253, 1297 (CA11 2004) (specially concurring in part and dissenting in part), and I agree with it. I fear that other language in the majority's opinion, especially its discussion of the significance of the word "claim," could be taken to imply a different standard, with which I would disagree. With that qualification, I join the majority's opinion.AURELIO O. GONZALEZ, PETITIONER v. JAMES V. CROSBY, Jr., SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONSon writ of certiorari to the united states court of appeals for the eleventh circuit[June 23, 2005] Justice Stevens, with whom Justice Souter joins, dissenting. The most significant aspect of today's decision is the Court's unanimous rejection of the view that all postjudgment motions under Federal Rule of Civil Procedure 60(b) except those alleging fraud under Rule 60(b)(3) should be treated as second or successive habeas corpus petitions. Not only do I agree with that holding, I believe that we should have more promptly made clear that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and Rule 60(b) can coexist in harmony. See Abdur'Rahman v. Bell, 537 U. S. 88, 90 (2002) (Stevens, J., dissenting from dismissal of certiorari as improvidently granted). As the Court recognizes, whether a Rule 60(b) motion may proceed in the habeas context depends on the nature of the relief the motion seeks. See ante, at 8.1 Given the substance of petitioner's motion, I agree with the Court that this was a "true" Rule 60(b) motion and that the District Court and the Court of Appeals therefore erred in treating it as a successive habeas petition. And while I also agree with much of the Court's reasoning in Parts I and II of its opinion, I believe the Court goes too far in commenting on issues that are not directly before us and that have not been fully briefed. See, e.g., ante, at 6-7 (discussing various court of appeals cases). My main disagreement, however, pertains to Part III of the Court's opinion. The Court reaches beyond the question on which we granted certiorari (whether petitioner's Rule 60(b) motion should be treated as a successive habeas petition) and adjudicates the merits of that motion. In my judgment, however, "correct procedure requires that the merits of the Rule 60(b) motion be addressed in the first instance by the District Court." Abdur'Rahman, 514 U. S. 211, 233-234 (1995) (Rule 60(b) "reflects and confirms the courts' own inherent and discretionary power, 'firmly established in English practice long before the foundation of our Republic,' to set aside a judgment whose enforcement would work inequity" (citation omitted)). In light of the equitable, often fact-intensive nature of the Rule 60(b) inquiry, it is inappropriate for an appellate court to undertake it in the first instance. This is especially so in this case, in which both the briefing and the record before us are insufficient with regard to the merits issue. Orderly procedure aside, the Court's truncated analysis is unsatisfactory. At least in some circumstances, a supervening change in AEDPA procedural law can be the kind of "extraordinary circumstanc[e]," Ackermann v. United States, 340 U. S. 193, 199 (1950), that constitutes a "reason justifying relief from the operation of the judgment" within the meaning of Rule 60(b)(6). In this case, the District Court dismissed petitioner's habeas petition as time barred after concluding that his second motion for state postconviction relief did not toll AEDPA's statute of limitations. See 28 U. S. C. §2244(d). After that judgment became final, however, we decided Artuz v. Bennett, 531 U. S. 4 (2000), which made clear that the District Court's ruling on tolling was erroneous and that the habeas petition should therefore not have been dismissed.2 Unfortunately, the Court underestimates the significance of the fact that petitioner was effectively shut out of federal court — without any adjudication of the merits of his claims — because of a procedural ruling that was later shown to be flatly mistaken. As we have stressed, "[d]ismissal of a first federal habeas petition is a particularly serious matter, for that dismissal denies the petitioner the protections of the Great Writ entirely, risking injury to an important interest in human liberty." Lonchar v. Thomas, 517 U. S. 314, 324 (1996); see also Slack v. McDaniel, 529 U. S. 473, 483 (2000) ("The writ of habeas corpus plays a vital role in protecting constitutional rights"). When a habeas petition has been dismissed on a clearly defective procedural ground, the State can hardly claim a legitimate interest in the finality of that judgment. Indeed, the State has experienced a windfall, while the state prisoner has been deprived — contrary to congressional intent — of his valuable right to one full round of federal habeas review. While this type of supervening change in procedural law may not alone warrant the reopening of a habeas judgment, there may be special factors that allow a prisoner to satisfy the high standard of Rule 60(b)(6). For instance, when a prisoner has shown reasonable diligence in seeking relief based on a change in procedural law, and when that prisoner can show that there is probable merit to his underlying claims, it would be well in keeping with a district court's discretion under Rule 60(b)(6) for that court to reopen the habeas judgment and give the prisoner the one fair shot at habeas review that Congress intended that he have. After all, we have consistently recognized that Rule 60(b)(6) "provides courts with authority 'adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice.' " Liljeberg v. Health Services Acquisition Corp., 486 U. S. 847, 864 (1988) (quoting Klapprott v. United States, 335 U. S. 601, 614-615 (1949)). Here, petitioner, who is serving a 99-year term in Florida prison, filed his Rule 60(b) motion approximately eight months after this Court's decision in Artuz. A district court could reasonably conclude that this period reveals no lack of diligence on the part of an incarcerated pro se litigant.3 And while we have received scant briefing on the probable merit of his petition, his allegation — that his guilty plea was not knowing and voluntary because it was based on grossly inaccurate advice about the actual time he would serve in prison — at least states a colorable claim of a constitutional violation. See Finch v. Vaughn, 67 F. 3d 909 (CA11 1995); see also Mabry v. Johnson, 467 U. S. 504 (1984).4 The Court relies on petitioner's supposed lack of diligence in pursuing review of the District Court's initial statute-of-limitations ruling. See ante, at 12. In fact, petitioner did appeal the District Court's ruling, which the Court of Appeals correctly interpreted as a request for a certificate of appealability (COA).5 As for petitioner's failure to seek rehearing or certiorari, he alleged in his Rule 60(b) motion, App. 16, and again in his reply brief, that he filed a timely petition for rehearing on April 18, 2000, but that the clerk of the Court of Appeals returned the motion unfiled, "explaining, erroneously, that his appeal was dismissed and closed on October 28, 1999." Reply Brief for Petitioner 13 (emphasis deleted). According to petitioner, "[t]his official misinformation carried the weight of a court decision and was enough to convince a pro se litigant (and some lawyers) that the 90-day window for filing a certiorari petition expired, as well." Ibid. The State, however, represents that petitioner erroneously filed the petition for rehearing under the case number of an earlier, dismissed appeal. Brief for Respondent 4. I do not know how to resolve these allegations, but this only highlights the propriety of a remand. Even on the State's version of events, petitioner's attempt at filing for rehearing is proof of diligence on his part. Putting these allegations aside, the Court's reasoning is too parsimonious. While petitioner could have shown even greater diligence by seeking rehearing for a second time and then filing for certiorari, we have never held pro se prisoners to the standards of counseled litigants. See, e.g., Haines v. Kerner (per curiam). Indeed, petitioner's situation contrasts dramatically with that of the movant in the case the Court relies on, Ackermann v. United States. See ante, at 13. In upholding the denial of Rule 60(b)(6) relief in Ackermann, the Court put great emphasis on the fact that the movant had the benefit of paid counsel and that, for much of the relevant period, he was not detained, but rather enjoyed "freedom of movement and action," 340 U. S., at 201.6 In any event, I believe that our rules governing prisoner litigation should favor a policy of repose rather than a policy that encourages multiple filings with a low probability of success.7 Accordingly, I agree with the Court's conclusion that petitioner filed a "true" Rule 60(b) motion. I respectfully dissent, however, because of the Court's decision to rule on the merits of the motion in the first instance.FOOTNOTESFootnote 1 Although the title "Motion to Alter or Amend Judgment" suggests that petitioner was relying on Federal Rule of Civil Procedure 59(e), the substance of the motion made clear that petitioner sought relief under Rule 60(b)(6).Footnote 2 Rule 60(b) provides in relevant part:"On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud ... , misrepresentation, or misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken."Footnote 3 In this case we consider only the extent to which Rule 60(b) applies to habeas proceedings under 28 U. S. C. §2254, which governs federal habeas relief for prisoners convicted in state court. Federal prisoners generally seek postconviction relief under §2255, which contains its own provision governing second or successive applications. Although that portion of §2255 is similar to, and refers to, the statutory subsection applicable to second or successive §2254 petitions, it is not identical. Accordingly, we limit our consideration to §2254 cases.Footnote 4 The term "on the merits" has multiple usages. See, e.g., Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U. S. 497, 501-503 (2001). We refer here to a determination that there exist or do not exist grounds entitling a petitioner to habeas corpus relief under 28 U. S. C. §§2254(a) and (d). When a movant asserts one of those grounds (or asserts that a previous ruling regarding one of those grounds was in error) he is making a habeas corpus claim. He is not doing so when he merely asserts that a previous ruling which precluded a merits determination was in error — for example, a denial for such reasons as failure to exhaust, procedural default, or statute-of-limitations bar.Footnote 5 Fraud on the federal habeas court is one example of such a defect. See generally Rodriguez v. Mitchell, 252 F. 3d 191, 199 (CA2 2001) (a witness's allegedly fraudulent basis for refusing to appear at a federal habeas hearing "relate[d] to the integrity of the federal habeas proceeding, not to the integrity of the state criminal trial"). We note that an attack based on the movant's own conduct, or his habeas counsel's omissions, see, e.g., supra, at 6, ordinarily does not go to the integrity of the proceedings, but in effect asks for a second chance to have the merits determined favorably.Footnote 6 Petitioner notes that we held in Slack v. McDaniel, 529 U. S. 473 (2000), that when a petition is dismissed without prejudice as unexhausted, the refiled petition is not "successive." He argues that, by parity of reasoning, his Rule 60(b) motion challenging the District Court dismissal of his petition on statute-of-limitations grounds is not "successive." If this argument is correct, petitioner would be able to file not just a Rule 60(b) motion, but a full-blown habeas petition, without running afoul of §2244(b). But see, e.g., Murray v. Greiner, 394 F. 3d 78, 81 (CA2 2005). We need not consider this contention, however, because we conclude that petitioner's Rule 60(b) motion is not subject to the limitations applicable to habeas petitions.Footnote 7 See Reid v. Angelone, 369 F. 3d 363, 369, n. 2 (CA4 2004) (citing cases); 366 F. 3d 1253, 1263 (CA11 2004) (case below); cf. Langford v. Day, 134 F. 3d 1381, 1382 (CA9 1998) (before AEDPA, a certificate of probable cause was a prerequisite to appealing the denial of a 60(b) motion in a habeas case); Reid, supra, at 368 (same). But see Dunn v. Cockrell, 302 F. 3d 491, 492 (CA5 2002); 366 F. 3d, at 1298-1300 (Tjoflat, J., specially concurring in part and dissenting in part). Although we do not decide in this case whether this construction of §2253 is correct (the Eleventh Circuit granted petitioner a COA), the COA requirement appears to be a more plausible and effective screening requirement, with sounder basis in the statute, than the near-absolute bar imposed here by the Court of Appeals.Footnote 8 Although respondent contends that petitioner's motion for state postconviction relief was untimely, and that the District Court's denial of statutory tolling was therefore correct under Pace v. DiGuglielmo, 544 U. S. __ (2005), the Florida courts made no reference to untimeliness in dismissing petitioner's motion.Footnote 9 A change in the interpretation of a substantive statute may have consequences for cases that have already reached final judgment, particularly in the criminal context. See Bousley v. United States, 523 U. S. 614, 619-621 (1998); cf. Fiore v. White, 531 U. S. 225, 228-229 (2001) (per curiam).Footnote 10 We granted review to resolve the conflict over the interpretation of "properly filed" on April 17, 2000, only eight days after the Eleventh Circuit denied petitioner a COA and well within the 90-day period in which petitioner could have sought certiorari. Artuz v. Bennett, 529 U. S. 1065. Whether or not petitioner was aware that the issue was pending before us, see post, at 7, n. 7 (Stevens, J., dissenting), it is indisputable that had he but filed a petition raising the statute-of-limitations argument he now advances, we would surely have granted him the reconsideration in light of Artuz that he later sought in his Rule 60(b) motion. See, e.g., Brown v. Moore, 532 U. S. 968 (2001) (granting a pro se petition for certiorari, vacating the Eleventh Circuit's judgment denying a COA, and remanding for reconsideration in light of Artuz).FOOTNOTESFootnote 1 Under the First Circuit's useful formulation, which was invoked by Judge Tjoflat's dissenting opinion below, "[w]hen the motions' factual predicate deals primarily with the constitutionality of the underlying state conviction or sentence, then the motion should be treated as a second or successive habeas petition. This situation should be distinguished from one in which the motion's factual predicate deals primarily with some irregularity or procedural defect in the procurement of the judgment denying relief. That is the classic function of a Rule 60(b) motion, and such a motion should be treated within the usual confines of Rule 60(b)." Rodwell v. Pepe, 324 F. 3d 66, 70 (2003) (citation omitted); see also 366 F. 3d 1253, 1297 (CA 11 2004) (Tjoflat, J., opinion concurring in part and dissenting in part).Footnote 2 Although the State contests this point in a footnote, see Brief for Respondent 40-41, n. 33, the Court rightly assumes that the District Court's decision was incorrect. See ante, at 11, and n. 8. If any doubt remains, it should be resolved by the District Court in the firstinstance.Footnote 3 While Rule 60(b)(6) contains no specific time limitation on filing, it is worth noting that petitioner filed his motion within the strict 1-year limitation that applies to motions under Rules 60(b)(1)-(3).Footnote 4 It is also worth noting that Artuz v. Bennett, 531 U. S. 4 (2000), was decided only seven months after petitioner's habeas judgment became final. In cases where significant time has elapsed between a habeas judgment and the relevant change in procedural law, it would be within a district court's discretion to leave such a judgment in repose. Footnote 5 See Fed. Rule App. Proc. 22(b)(2) ("If no express request for a certificate is filed, the notice of [appeal shall be deemed to constitute] a request addressed to the judges of the court of appeals"). The procedural route that petitioner navigated was actually more complicated. After the Magistrate Judge initially recommended dismissal of the petition as time barred, petitioner filed an objection that raised a Third Circuit case, Lovasz v. Vaughn, 134 F. 3d 146 (1998), which was among the circuit cases that was later endorsed by Artuz, 531 U. S., at 8. The Magistrate's final report noted that the Eleventh Circuit had not addressed the relevant issue of tolling, and then proceeded to rely (oddly) on Lovasz to deny petitioner's claim. In my view, the citation to Lovasz and the Magistrate's acknowledgment that there was no Eleventh Circuit precedent on point provided a reasonable basis for the granting of a COA. In fact, on September 23, 1998, petitioner filed an application for a COA, and this application was granted by the District Court. The Court of Appeals, however, dismissed petitioner's appeal on October 28, 1999, and remanded the COA for a determination of which specific issues merited permission to appeal. On remand, petitioner filed a new application for a COA, but this time the District Court denied the request. Petitioner then filed a timely appeal, and the District Court granted his motion to proceed in forma pauperis on appeal. The Court of Appeals then declined to issue a COA and dismissed the appeal on April 6, 2000.Footnote 6 Ackermann is further distinguishable in that it did not involve the sort of plain error of law that has been identified in this case. But even if Ackermann were not distinguishable, I would find the views expressed by Justices Black, Frankfurter, and Douglas in dissent, see 340 U. S. at 202 (opinion of Black, J.), more persuasive than those expressed by Justice Minton.Footnote 7 A petition for certiorari seeking review of a denial of a COA has an objectively low chance of being granted. Such a decision is not thought to present a good vehicle for resolving legal issues, and error-correction is a disfavored basis for granting review, particularly in noncapital cases. See generally this Court's Rule 10. As for the fact that this Court granted certiorari in Artuz eight days after the Eleventh Circuit denied petitioner a COA, it would be unrealistic to fault petitioner for failing to capitalize on this fortuity. In my experience, even lower courts and counseled litigants are often not aware of our grants of certiorari on issues that may be relevant to their current business. It would be particularly inappropriate to impose such a strict expectation on a pro se prisoner, particularly in the absence of any indication of when, given his circumstances in prison, he could have reasonably been expected to learn of our grant in Artuz.

In response both to the public outcry concerning the United States' growing dependence on foreign energy and to the alleged excessive profits that major integrated oil companies were earning, the Tax Reduction Act of 1975 repealed, as applied to the major integrated oil companies, the percentage depletion allowance authorized as a deduction from taxable income, but exempted independent producers and royalty owners from the repeal so as to encourage domestic production of oil and gas. The Act added 613A to the Internal Revenue Code. That section provides that a percentage depletion allowance under 611 for such independent producers and royalty owners shall be computed in accordance with 613 "with respect to ... so much of the taxpayer's average daily production of domestic crude oil as does not exceed the taxpayer's depletable oil quantity" and "depletable natural gas quantity." During 1975, respondents (husband and wife) in No. 82-599 assigned their oil and gas leases to third parties, while retaining overriding royalties. As partial consideration for these assignments, respondents received $7,600 in advance royalties. This constituted the entire income received from the property in 1975 since there was no oil and gas production that year. On their joint federal income tax return for 1975, respondents claimed a percentage depletion deduction equal to 22% of the advance royalties. The Commissioner of Internal Revenue disallowed the deduction because the advance royalties were not received "with respect to" any "average daily production" of oil or gas. The Tax Court upheld this determination, but the Court of Appeals reversed. In No. 82-774, petitioner joint owners leased their oil and gas interests in 1975 to various lessees. Under the leases petitioners were to receive both royalties from oil and gas produced and annual cash bonuses even if no oil or gas was produced. In 1976, oil and gas was discovered on the property and was produced in substantial amounts. Petitioners claimed depletion deductions on both the bonuses and the royalties received in that year. The Commissioner disallowed the deduction on the bonuses, again because they were not received "with respect to" any "average daily production." After paying the resulting deficiencies, petitioners filed a suit for refund in the Court of Claims, which held for the Commissioner.Held: Section 613A was not intended to deny the allowance for percentage depletion on advance royalty or lease bonus income altogether; rather, 611-613A entitle taxpayers to such an allowance at some time during the productive life of the lease. Pp. 214-227. (a) Any reasonable interpretation of 613A must harmonize with the section's goal of subsidizing the combined efforts of small producers and royalty owners in the exploration and production of the Nation's oil and gas resources. The Commissioner's interpretation - under which taxpayers would receive percentage depletion on income derived from oil and gas interests only if the payment associated with that income could be attributed directly to specific units of production, and which anomalously suggests that a Congress intent on increasing domestic production by small producers included substantial economic disincentives in the same legislation - does not comport with this goal. By contrast, allowing percentage depletion on all qualified income makes available the maximum public subsidy that Congress was willing to provide. Pp. 217-220. (b) The legislative history of 613A discloses a clear congressional intent to retain the percentage depletion rules that existed in 1975, and under which taxpayers leasing their interests in mineral deposits were entitled to a percentage depletion on any bonus or advance royalty whether there was production of the underlying mineral or not. Pp. 220-223. (c) When 613A is considered together with related Code sections and in light of the legislative history, it is clear that Congress did not mean to withdraw the percentage depletion on lease bonuses or advance royalty income arising from oil and gas properties. Section 613A clearly provides that income attributable to production over a certain level will not be eligible for percentage depletion, but nothing in the statute bars such a depletion on income received prior to actual production. To the contrary, so long as the income can be attributed to production below the established ceilings, lease bonuses and royalty income come within the four corners of the percentage depletion provisions. Pp. 223-224. (d) Since the Commissioner's interpretation is unreasonable, this Court will not defer to it. The Commissioner has not shown any "insurmountable" practical problems that would render his position more tenable. While 613A's various production requirements and limitations make accurate calculation of percentage depletion allowances difficult in the absence of production figures, these problems can be resolved in a number of reasonable ways, as, for example, by requiring lessors to defer depletion deductions to years of actual production or to adjust deductions taken with amended returns. The Commissioner cannot resolve the practical problems by eliminating the allowances altogether. Pp. 224-227. No. 82-599, 677 F.2d 594, affirmed; No. 82-774, 231 Ct. Cl. 642, 689 F.2d 1017, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and POWELL, REHNQUIST, and STEVENS, JJ., joined. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN, WHITE, and MARSHALL, JJ., joined, post, p. 228.[Footnote *] Together with No. 82-774, Farmar et al v. United States, on certiorari to the Court of Claims.Carter G. Phillips argued the cause for petitioner in No. 82-599 and for the United States in No. 82-774. On the briefs were Solicitor General Lee, Assistant Attorney General Archer, Stuart A. Smith, and Jonathan S. Cohen.Marvin K. Collie argued the cause for petitioners in No. 82-774. With him on the brief were William M. Linden and James A. Carter.Thomas J. Donnelly argued the cause for respondents in No. 82-599. With him on the brief was Michael J. Conlan.JUSTICE O'CONNOR delivered the opinion of the Court.These consolidated cases present the question whether 611-613A of the Internal Revenue Code (Code), 26 U.S.C. 611-613A, entitle taxpayers to an allowance for percentage depletion on lease bonus or advance royalty income received from lessees of their oil and gas mineral interests.IAEver since enacting the earliest income tax laws, Congress has subsidized the development of our Nation's natural resources. Toward this end, Congress has allowed holders of economic interests in mineral deposits, including oil and gas wells, to deduct from their taxable incomes the larger of two depletion allowances: cost or percentage.1 Under cost depletion, taxpayers amortize the cost of their wells over their total productive lives.2 Under percentage depletion, taxpayers deduct a statutorily specified percentage of the "gross income" generated from the property, irrespective of actual costs incurred.3 Through these depletion provisions, Congress has permitted taxpayers to recover the investments they have made in mineral deposits and to generate additional capital for further exploration and production of the Nation's mineral resources.Taxpayers have historically preferred the allowance for percentage, as opposed to cost, depletion on wells that are good producers because the tax benefits are significantly greater. Prior to 1975, it was well settled that taxpayers leasing their interests in mineral deposits to others were entitled to percentage depletion on any bonus4 or advance royalty5 received, whether there was production of the underlying mineral or not. The bonus was regarded as "payment in advance for oil and gas to be extracted," Herring v. Commissioner, , and the advance royalty was considered a "return pro tanto of [the lessor's] capital investment in the oil in anticipation of its extraction ... ." Palmer v. Bender, . Though the Commissioner of Internal Revenue had once argued that the allowance should not apply to such income,6 this Court determined that both lease bonuses and advance royalties constituted "gross income from property" and accordingly were subject to percentage depletion. See Herring v. Commissioner, supra, at 327-328. The depletion was based on the income received from the property, and not, at least in the short run, on the production of the substance itself. 293 U.S., at 327-328.Even under pre-1975 law, however, depletion deductions eventually had to be attributed to actual production. Lessors receiving bonus or advance royalty income without oil or gas being produced during the life of the lease have been required to recapture their depletion deductions and restore the previously deducted amounts to income. See Douglas v. Commissioner, . Furthermore, since only one percentage depletion allowance is statutorily authorized for each dollar of oil and gas income, lessees have always been required to reduce their allowances by any bonuses or advance royalties paid to lessors. See Helvering v. Twin Bell Oil Syndicate, . Thus, prior to 1975, those who held economic interests in mineral deposits, large or small, were entitled to a single percentage depletion deduction for all income from the property, including lease bonus and advance royalty income, so long as oil or gas was eventually extracted from the land.The 1970's, however, brought about an abrupt redirection in the Nation's energy policy. Escalating energy prices and the Arab oil embargo awakened the public to the Nation's growing reliance on foreign energy sources. Some thought the major integrated oil companies were reaping excessive oil and gas profits at the public's expense, while reinvesting little of their concomitant tax depletion subsidies in domestic energy production.7 Congress responded to this public outcry by repealing the percentage depletion allowance as applied to the major integrated oil companies. See Tax Reduction Act of 1975, Pub. L. 94-12, 89 Stat. 26, 47-53. At the same time, however, it exempted independent producers and royalty owners from the repeal to encourage domestic production. In new 613A, Congress provided that "... the allowance for depletion under section 611 shall be computed in accordance with section 613 with respect to - "(A) so much of the taxpayer's average daily production of domestic crude oil as does not exceed the taxpayer's depletable oil quantity; and "(B) so much of the taxpayer's average daily production of domestic natural gas as does not exceed the taxpayer's depletable natural gas quantity;"and the applicable percentage (determined in accordance with the table contained in paragraph (5)) shall be deemed to be specified in subsection (b) of section 613 for purposes of subsection (a) of that section." 26 U.S.C. 613A(c)(1).8 Thus, beginning with tax year 1975, only taxpayers who met the terms of this new provision were eligible for the percentage depletion allowance.9 BDuring 1975, Fred Engle and his wife assigned their two Wyoming oil and gas leases to third parties, retaining overriding royalties in each lease. As partial consideration for these assignments, the Engles received a total of $7,600 in advance royalties. This $7,600 constituted the entire income the Engles received from the property in 1975 since there was no oil and gas production that year. On their joint federal income tax return for 1975, the Engles claimed a percentage depletion deduction equal to 22% of the advance royalties received. The Commissioner disallowed the deduction because the advance royalties were not received "with respect to" any "average daily production" of oil or gas as, in his view, was required by the 1975 amendments to the Code.The Tax Court, with one judge dissenting, upheld the Commissioner's determination. 76 T. C. 915 (1981). It agreed that new 613A tied the oil and gas percentage depletion allowance to actual production and that the Engles' advance royalty receipts were not attributable to such production.10 But the Court of Appeals for the Seventh Circuit reversed. 677 F.2d 594 (1982). It found that Congress' motivation in retaining the percentage depletion allowance for "small producers" - namely, to subsidize domestic energy development - was equally applicable to advance royalties received by lessors. Id., at 600. The Court of Appeals therefore held that, in light of this motivation and the Code's longstanding treatment of advance royalties, new 613A should be interpreted to authorize a percentage depletion allowance on advance royalties received, so long as there eventually was production from the property. Id., at 601-602.Also during 1975, the families of Philip D. Farmar and A. A. Sugg, joint owners of 46,515 acres of land in Irion County, Tex., leased their oil and gas interests to various lessees. Under the leases, the Farmars and Suggs were to receive as royalties 20% of all oil and gas produced and sold from the property or 20% of the value of all oil and gas produced from the leases. The leases also provided that the Farmars and Suggs were to receive annual cash bonuses, beginning with a small sum in 1975 and continuing with large sums through 1979, over the life of the lease. These bonuses were payable even if no oil or gas was produced from the property. In 1976, oil and gas was discovered on the Irion property and was produced in substantial amounts. The Farmars and Suggs claimed percentage depletion deductions on both the bonuses and royalties received in that year. The Commissioner disallowed the percentage depletion deductions on the lease bonuses, again because income of this type was not received "with respect to" any "average daily production." After paying the resulting deficiencies, the Farmars and Suggs filed a consolidated suit for refund in the Court of Claims. The Court of Claims held for the Commissioner. 231 Ct. Cl. 642, 689 F.2d 1017 (1982). It concluded that "[t]his statutory language regularly linking depletion directly to production during a taxable year indicates to us that Congress wanted depletion allowable only `with respect to' income derived from, or connected with, actual extraction during the taxable year." Id., at 649, 689 F.2d, at 1021. Since lease bonus income was not so attributable, the court determined that the Farmars and Suggs were not entitled to a percentage depletion allowance on it. See id., at 656-657, 689 F.2d, at 1025.The Commissioner sought a writ of certiorari from the adverse decision of the Court of Appeals for the Seventh Circuit, and the Farmars and Suggs sought a writ of certiorari from the adverse decision of the Court of Claims. We granted both writs, , and consolidated the cases so that we could decide the effect the Tax Reduction Act of 1975 had on percentage depletion of oil and gas income.IIThe 1975 amendments to the Code did not repeal any of the provisions that previously entitled taxpayers to an allowance for percentage depletion on lease bonus or advance royalty income arising from oil and gas mineral interests. Rather, the 1975 amendments added new 613A, which, as its title indicates, is a "Limitatio[n] on percentage depletion in case of oil and gas wells." Our sole task in this case is to determine whether Congress, in enacting the 613A "limitation," intended to deny the allowance for percentage depletion on advance royalty or lease bonus income altogether.AOur starting point, of course, is the language of the statute itself. That language authorizes any independent producer or royalty owner not otherwise disqualified, see 26 U.S.C. 613A(d), to compute "the allowance for depletion under section 611 ... in accordance with" 613's "gross income from ... property" concept. 26 U.S.C. 613A(c)(1). That language also stipulates that the allowance be "with respect to ... so much of the taxpayer's average daily production ... as does not exceed the taxpayer's depletable ... quantity ... ." Ibid. The Commissioner and the taxpayers take different positions as to what this language means.The Commissioner contends that new 613A finally adopts the position he took a half century ago in the Herring case - namely, that taxpayers are not entitled to percentage depletion on any income not attributable to specific units of production during the taxable year.11 He points to 613A(c)(1)'s requirement that "the allowance ... be computed ... with respect to ... the taxpayer's average daily production" and to the repeated references in 613A(c)(2) through (10) to "aggregate production," "production during the taxable year," and "production during the calendar year." From these statutory reference points, the Commissioner contends that 613A redefines depletable "gross income from ... property" to be that income attributable to specific units of production during the taxable year.12 Since lease bonuses and advance royalties are not attributable to specific production during any taxable year, the Commissioner concludes that Congress did not intend such receipts to be eligible for percentage, as opposed to cost, depletion. See Brief for Commissioner 18-24.The taxpayers, by contrast, suggest that Congress did not intend, by enacting new 613A, to change the tax treatment of lease bonus or advance royalty income at all. Rather, they contend that the percentage depletion allowance is available regardless of whether physical extraction occurred during the year for which the deduction is claimed. Under their view, the reference to "average daily production" in 613A constitutes a limitation on the amount of, rather than a prerequisite to, the deduction a taxpayer may claim. Furthermore, the requirement that the allowance be "with respect to" production is simply the pre-1975 recapture requirement reenacted: depletion deductions must always "be with respect to" actual or prospective extraction. Since lease bonus and advance royalty receipts are income arising from the property, the taxpayers conclude that they are eligible for percentage depletion so long as they do not exceed the 613A limitation and production eventually occurs on the property. See Brief for Respondents in No. 82-599, pp. 5-9; Brief for Petitioners in No. 82-774, pp. 7-16.The Commissioner's and taxpayers' interpretations do not exhaust the possible readings of this linguistic maze. For example, 613A could also be read to change the timing, though not the availability, of the percentage depletion allowance.13 Under this view, all income arising from the property would potentially be subject to an eventual allowance for depletion, but the actual deduction would be deferred to a year in which it could be attributed, by some allocation method, to actual production. Since lease bonus and advance royalty income always precede production, they would be included in taxable income during the year of receipt. The depletion allowance attributable to such receipts, however, would be capitalized and amortized against income in years of actual extraction, subject to the rates and depletable quantities limitations applicable in those subsequent years.14 Each of these possible interpretations of new 613A can be reconciled with the language of the statute itself. Congress' repeated references to "production" during the "taxable year" could not have been completely inadvertent, but each of the possible interpretations gives meaning to those references. Our duty then is "to find that interpretation which can most fairly be said to be imbedded in the statute, in the sense of being most harmonious with its scheme and with the general purposes that Congress manifested." NLRB v. Lion Oil Co., (Frankfurter, J., concurring in part and dissenting in part). The circumstances of the enactment of particular legislation may be particularly relevant to this inquiry, Watt v. Alaska, , and it is to those circumstances that we now turn.BThe 1975 amendments to the Code responded both to the public outcry concerning the country's growing dependence on foreign energy and to the alleged excessive profits that major integrated oil companies were earning. Congress wanted to encourage domestic production15 and to improve the competitive position of "small producers" - the independents and the royalty owners - vis-a-vis the major integrated ones.16 Section 613A's goal, more simply put, was to subsidize the combined efforts of small producers and royalty owners in the exploration and production of the Nation's oil and gas resources. Any reasonable interpretation of the statute, therefore, must harmonize with this goal.If the Commissioner's interpretation were adopted, taxpayers would receive percentage depletion on income derived from oil and gas interests only if the payment associated with that income could be attributed directly to specific units of production. On that view, lessors and lessees interested in favorable tax benefits will not use financing arrangements that provide for prepayments on production, that spread income to nonproduction periods or, more importantly, that shift the risks of nonproduction to the parties better able to bear them.17 Lessors naturally will begin demanding larger production royalties to offset the increased expense resulting from delayed receipt of payments, income bunching, and risk bearing. Lessees who are forced to pay the increased royalties will, in turn, have less money with which to purchase leases or to extract minerals therefrom. Thus, solely for tax reasons, lessors and lessees will choose less preferred forms of financing their exploration and production efforts and, in the long run, devote fewer dollars to development of the Nation's energy reserves. In short, the Commissioner's interpretation anomalously suggests that a Congress intent on increasing domestic production by small producers included substantial economic disincentives in the same enabling legislation. Such an interpretation does not comport with Congress' effort to increase production by the independent producers and royalty owners. By contrast, allowing percentage depletion on all qualified income arising from the property makes available the maximum public subsidy that Congress was willing to provide.Ironically, the Commissioner defends his interpretation by reference to the oil and gas crisis that existed in 1975. See Reply Brief for Commissioner 7. He argues that if lessors are allowed percentage depletion only on income directly attributable to production, they will have strong incentives to encourage lessees to produce oil and gas immediately from the property. No one disputes this premise. Requiring lessors to defer percentage depletion deductions to years of actual production would indeed optimize the incentives for early production of the property. But the Commissioner has not suggested that the percentage depletion deductions on advance royalties and lease bonuses be deferred to years of actual production; he argues that they be eliminated altogether. Eliminating the percentage depletion deductions, rather than deferring them, will reduce the total amount of "gross income" subject to the percentage depletion allowance and thereby shrink the public subsidy of domestic oil and gas production. Smaller public subsidies, in turn, mean reduced exploration and production incentives and smaller absolute quantities of domestic production. Thus, the Commissioner's initial premise - that Congress wanted to encourage domestic exploration and production - is against the general position he has taken with respect to lease bonus and advance royalty income.CThe reasonableness of each possible interpretation of the statute can also be measured against the legislative process by which 613A was enacted. When the 1975 amendments were introduced, neither the bill, H. R. 2166, 94th Cong., 1st Sess. (1975), nor the accompanying Ways and Means Committee Report, see H. Rep. No. 94-19 (1975), provided for repeal of the percentage depletion allowance on oil and gas wells. Rather, the provision repealing the percentage depletion allowance was introduced only during debate on the House floor. See 121 Cong. Rec. 4651-4652 (1975). This floor amendment did not contain any of the exemptions ultimately enacted as part of 613A, including the exemption for independent producers and royalty owners. It was only when H. R. 2166 reached the Senate floor that the exemption for independent producers and royalty owners was added. See id., at 7813. The Congress then enacted H. R. 2166, with slight alteration by the Conference Committee, as it was amended on the Senate floor.At no time during either the Senate's or the Conference Committee's consideration of H. R. 2166 was a repeal of the percentage depletion allowance on lease bonus or advance royalty income suggested. Rather, both the Senate and the conferees agreed to maintain the percentage depletion allowance, in its entirety, for those small producers and royalty owners whose income from the property did not exceed that associated with the yearly depletable quantities.18 As explained by the Conference Report, the proposed legislation"retains percentage depletion at 22 percent on a permanent basis for the small independent producer to the extent that his average daily production of oil does not exceed 2,000 barrels a day, or his average daily production of gas does not exceed 12,000,000 cubic feet. Where the independent producer has both oil and natural gas production, the exemption must be allocated between two types of production. ... . . "... The conference substitute follows the Senate amendment in providing a small producer exemption from the repeal of percentage depletion for oil and gas." H. R. Conf. Rep. No. 94-120, pp. 67-68 (1975) (emphasis added). Thus, in exempting independent producers and royalty owners from the repeal, the Senate and the Conference Committee expressed a clear intent to retain the percentage depletion rules as they then existed. Again, the congressional intent is more in harmony with interpretations of the statute that retain percentage depletion on all forms of income than with the Commissioner's interpretation.The Commissioner attempts to find legislative support for his interpretation not in the history of the enacting Congress, but in the history of a previous Congress. In H. R. 17488, 93d Cong., 2d Sess. (1974), the House proposed to repeal the percentage depletion allowance for oil and gas production and, at the same time, to exempt certain independent producers from the repeal. The House Ways and Means Committee Report on H. R. 17488 emphasized that "a lease bonus paid to the lessor of mineral lands in a lump sum or in installments is independent of any actual production from the lease and thus would not be within any of the exemptions." H. R. Rep. No. 93-1502, p. 46 (1974). The Commissioner suggests that "`[t]he idea of a special exemption for small entities, expressly involving production, was very much in the air of the 94th Congress, and it is not unlikely that the prior report was known to several, if not many, of the members who considered 613A,' and almost certainly to those who proposed that Section 613A be added to the tax reduction bill." Reply Brief for Commissioner 6 (quoting 231 Ct. Cl., at 654, 689 F.2d, at 1024).In the 94th Congress, however, the House Ways and Means Committee reported out another bill, H. R. 2166, in lieu of H. R. 17488. This bill retained the percentage depletion allowance and differed from H. R. 17488 in many other respects. See 121 Cong. Rec. 4651-4652 (1975). Thus, it cannot be said that a subsequent Congress, or even the House Ways and Means Committee itself,19 retained the same intent as reflected in H. R. 17488. Moreover, since it was the Senate, and not the House, that added the small-producer exemption to H. R. 2166,20 we must dismiss the Commissioner's reconstruction of the legislative intent as mere wishful thinking. The idea of an exemption for small producers was certainly in the "air" of the 94th Congress, but we find no evidence that a change in the definition of depletable "gross income" was aloft with it.21 DWe have noted that "[t]he true meaning of a single section of a statute in a setting as complex as that of the revenue acts, however precise its language, cannot be ascertained if it be considered apart from related sections, or if the mind be isolated from the history of the income tax legislation of which it is an integral part." Helvering v. Morgan's, Inc., . When the Commissioner's, the taxpayers', and the commentators' interpretations of 613A are viewed in these terms, it becomes clear to us that Congress did not mean, as the Commissioner's interpretation suggests, to withdraw the percentage depletion allowance on lease bonus or advance royalty income arising from oil and gas properties.The 1975 Congress was concerned with shrinking domestic production levels and with assisting smaller producers to compete with the larger ones. Since most depletion deductions are on royalty payments attributable to actual production, Congress, in its haste, not surprisingly defined the class of taxpayers exempted from the percentage depletion repeal in terms of certain production levels. Section 613A clearly provides that income attributable to production over a certain level will not be eligible for percentage depletion. But nothing in the statute bars percentage depletion on income received prior to actual production. To the contrary, we agree that so long as the income can, by some allocation method, be attributed to production below the ceilings Congress established, lease bonus and advance royalty income come within the four corners of the percentage depletion provisions. Lease bonuses and advance royalties are payments received in advance for oil and gas to be extracted, see Herring v. Commissioner, , and therefore should be subject to the 613(a) computation of, and 611 allowance for, oil and gas depletion.IIIUnable to find persuasive support for his position in the text, general purpose, or specific history of the Tax Reduction Act of 1975, the Commissioner reminds us both that the "choice among reasonable interpretations is for the Commissioner, not the courts," National Muffler Dealers Assn., Inc. v. United States, , and that his choice, if found to "implement the congressional mandate in some reasonable manner," must be upheld. United States v. Correll, . "But that principle [only sets] the framework for judicial analysis; it does not displace it. We find that the [Commissioner's interpretation] is ... unreasonable," and we therefore cannot defer to it. United States v. Cartwright, (similarly refusing to defer to unreasonable position of Commissioner).Holders of economic interests in oil and gas deposits have consistently been entitled to a percentage depletion allowance on all income arising from their property, including lease bonuses and advance royalties, for the past 50 years. See Herring v. Commissioner, supra. Our cases have taken a longrun view of the relation between income and production, and we have interpreted the Code to allow percentage depletion on all income so long as actual extraction eventually occurs. See Douglas v. Commissioner, . We usually presume that "Congress is ... aware of [our longstanding] interpretation of a statute and adopt[s] that interpretation when it re-enacts [the] statute without [explicit] change ... ." Lorillard v. Pons, ; see also Albemarle Paper Co. v. Moody, , n. 8 (1975). Had Congress meant to eliminate the percentage depletion allowance on lease bonus and advance royalty income, we believe it would have addressed our decisions to the contrary more explicitly. See Mastro Plastics Corp. v. NLRB, . Since Congress did not, we find the Commissioner's shortrun view of the relation between income and production to be at odds with the amended statutory scheme.The percentage depletion provisions, as modified in 1975, plainly were intended to encourage independent producers and royalty owners to explore and develop the Nation's domestic oil and gas deposits. See supra, at 217-218. Yet the Commissioner would discourage these small producers from using the financing arrangements that would optimize their combined efforts to produce oil and gas. See supra, at 218-220. Not only would the Commissioner deny lessors percentage depletion on lease bonus and advance royalty income, but he also would continue to require lessees to reduce their depletion allowances by the amounts lessors would have been allowed, under pre-1975 law, to deplete. See Rev. Rul. 81-266, 1981-2 Cum. Bull. 139. The Commissioner would allow no one to take the single allowance that the statute clearly contemplates someone should take. See 26 U.S.C. 611(b)(1), 613(a). Thus, the Commissioner not only skews the industry's preferred means of financing oil and gas exploration, but he unreasonably denies that industry a subsidy Congress expressly contemplated it should receive.22 Such an interpretation is "unrealistic and unreasonable," and therefore is not entitled to deference. United States v. Cartwright, supra, at 550.Finally, the Commissioner has not persuaded us of any "insurmountable" practical problems that would render his position more tenable. We do not doubt that 613A's various production requirements and limitations make accurate calculation of the percentage depletion allowance difficult in the absence of actual production figures. See 76 T. C., at 926. But we believe the Commissioner can resolve these problems in a number of reasonable ways, for example, by requiring lessors to defer depletion deductions to years of actual production or by requiring lessors to adjust deductions taken with amended returns filed in later tax years.23 The Commissioner has broad authority to prescribe all "needful rules and regulations" for the enforcement of the tax laws, see 26 U.S.C. 7805(a), and it is up to him to choose the method that best implements the statutory mandate. See United States v. Correll, 389 U.S., at 306-307. What the Commissioner cannot do - because it is an "unreasonable" interpretation of the statutory language in light of its history and purpose - is to resolve the practical problems by eliminating the allowance altogether. Eliminating the allowance might make the statute "simpler to administer," Reply Brief for Commissioner 9, and n. 8, but it does so by ignoring the language of the statute, the views of those who sought its enactment, and the purpose they articulated.IVIn cases such as these, where the effective and expeditious enforcement of our Nation's tax laws is at issue, what we do not decide is as important as what we do decide. These cases do not concern whether taxpayers must include bonuses and advance royalties in their income in the year of receipt. No one questions that taxpayers must do that. See North American Oil Consolidated v. Burnet, . Nor do these cases concern the appropriate tax period in which the percentage depletion deduction should be used to offset taxable income. That issue is a significant one, but none of the parties has directly raised it for our review. Cf. 26 CFR 1.461-1 (1983) (assets having useful life beyond close of year not necessarily deductible in year expenditure made). Rather, our decision holds only that 611-613A of the Code entitle taxpayers to an allowance for percentage depletion on lease bonus or advance royalty income at some time during the productive life of the lease.Accordingly, since the Commissioner has never contested the tax period in which the Engles claimed their percentage depletion deduction, the judgment of the Court of Appeals for the Seventh Circuit in No. 82-599 is affirmed.24 The judgment of the Court of Claims in No. 82-774 denying the Farmars and Suggs any percentage depletion on their lease bonus income is reversed, and the case is remanded for further proceedings in conformity with this opinion. It is so ordered.

A Florida jury convicted petitioner Parker of first-degree murder for the killings of Richard Padgett and Nancy Sheppard. At the advisory sentencing hearing, the jury found that sufficient aggravating circumstances existed to justify a death sentence as to both murders, but that sufficient mitigating circumstances existed to outweigh those aggravating factors, and therefore recommended that Parker be sentenced to life imprisonment on both counts. The trial judge, who has ultimate sentencing authority under state law, accepted the jury's recommendation for the Padgett murder, but overrode the recommendation for the Sheppard murder and sentenced Parker to death. The judge explained, inter alia, that he had found, based on a review of the evidence, six statutory aggravating circumstances as to the Sheppard murder, and no statutory mitigating circumstances. He did not discuss evidence of, or reach any explicit conclusions concerning, nonstatutory mitigating evidence, but declared that "[t]here are no mitigating circumstances that outweigh the aggravating circumstances in" either count. Although concluding that there was insufficient evidence of two of the aggravating circumstances relied on by the trial judge, the State Supreme Court affirmed the death sentence, declaring that the trial court had found no mitigating circumstances to balance against the four properly applied aggravating factors. The court ruled that the facts suggesting the death sentence were "so clear and convincing that no reasonable person could differ," and therefore that judicial override of the jury's recommendation of life was appropriate under state law. The Federal District Court granted Parker's habeas corpus petition as to the imposition of the death penalty, ruling that the sentence was unconstitutional. The Court of Appeals reversed.Held: The Florida Supreme Court acted arbitrarily and capriciously by failing to treat adequately Parker's nonstatutory mitigating evidence. Pp. 313-323. (a) Although the trial judge's order imposing the death sentence does not state explicitly what effect he gave Parker's nonstatutory mitigating evidence, it must be concluded that the judge found and weighed such evidence before imposing the sentence. The record contains substantial evidence, much of it uncontroverted, favoring mitigation. Moreover, the judge declined to override the jury's recommendation of life imprisonment for the Padgett murder, indicating that he found nonstatutory mitigating circumstances in that murder. Furthermore, the judge stated that he found no mitigating circumstances "that outweigh" aggravating circumstances, indicating that nonstatutory mitigating circumstances did, in fact, exist. Pp. 313-318. (b) Thus, the State Supreme Court erred in concluding that the trial judge found no mitigating circumstances to balance against the aggravating factors, and consequently erred in its review of Parker's sentence. Where a reviewing court in a weighing State strikes one or more of the aggravating factors on which the sentencer relies, the reviewing court may, consistent with the Constitution, reweigh the remaining evidence or conduct a harmless error analysis. Clemons v. Mississippi, . The State Supreme Court did not conduct an independent reweighing of the evidence, since it explicitly relied on what it took to be the trial judge's findings of no mitigating circumstances. Moreover, even if the court conducted a harmless error analysis, that analysis was flawed by the court's ignoring of the evidence of mitigating circumstances in the record. Although a federal court on habeas review must give deference to a state appellate court's resolution of an ambiguity in a state trial court's statement, Wainwright v. Goode, , it need not do so where, as here, the appellate court's conclusion is not fairly supported by the record in the case. Pp. 318-320. (c) The State Supreme Court's affirmance of Parker's death sentence based upon nonexistent findings was invalid because it deprived Parker of the individualized treatment to which he is entitled under the Constitution. Clemons, supra, at 752. Pp. 321-322. 876 F.2d 1470, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which MARSHALL, STEVENS, BLACKMUN, and SOUTER, JJ., joined. WHITE, J., filed a dissenting opinion, in which REHNQUIST, C.J., and SCALIA and KENNEDY, JJ., joined.Robert J. Link argued the cause and filed briefs for petitioner.Carolyn M. Snurkowski, Assistant Attorney General of Florida, argued the cause for respondents. With her on the brief were Robert A. Butterworth, Attorney General, and Mark C. Menser, Assistant Attorney General. JUSTICE O'CONNOR delivered the opinion of the Court.This case requires us to determine precisely what effect the Florida courts gave to the evidence petitioner presented in mitigation of his death sentence, and consequently determine whether his death sentence meets federal constitutional requirements.IOn the afternoon of February 6, 1982, petitioner Robert Parker and several others set off to recover money owed them for the delivery of illegal drugs. There followed a nightmarish series of events that ended in the early morning hours of February 7 with the deaths of Richard Padgett, Jody Dalton, and Nancy Sheppard.A Duval County, Florida grand jury indicted Parker, his former wife Elaine, Tommy Groover, and William Long for the first-degree murders of Padgett, Dalton, and Sheppard. Elaine Parker and Long entered negotiated pleas to second-degree murder. A jury convicted Groover of all three first-degree murders, and the judge sentenced him to death on two counts and life imprisonment on the third.Parker's jury convicted him of first-degree murder for the killings of Padgett and Sheppard and third-degree murder for the Dalton killing. At the advisory sentencing hearing, Parker presented evidence in mitigation of a death sentence and argued that such evidence also had been presented at trial. The jury found that sufficient aggravating circumstances existed to justify a death sentence as to both the Padgett and Sheppard murders, but that sufficient mitigating circumstances existed that outweighed these aggravating factors. The jury therefore recommended that Parker be sentenced to life imprisonment on both first-degree counts.The trial judge, who has ultimate sentencing authority under Florida law, accepted the jury's recommendation for the Padgett murder. The judge overrode the jury's recommendation for the Sheppard murder, however, and sentenced Parker to death. The judge's sentencing order explained that "this Court has carefully studied and considered all the evidence and testimony at trial and at advisory sentence proceedings." App. 47. After reviewing the evidence of the various aggravating and mitigating circumstances defined by Florida statute, the judge found six aggravating circumstances present as to the Sheppard murder and no statutory mitigating circumstances. In the sentencing order, the judge did not discuss evidence of, or reach any explicit conclusions concerning, nonstatutory mitigating evidence. He did conclude that "[t]here are no mitigating circumstances that outweigh the aggravating circumstances in the first count (Padgett murder) and the second count (Sheppard murder)." Id., at 61.On direct appeal, the Florida Supreme Court affirmed Parker's convictions and sentences. Parker v. State, 458 So.2d 750 (1984), cert. denied, . The court concluded, however, that there was insufficient evidence to support two of the aggravating circumstances that the trial judge had relied upon in sentencing Parker to death: that the Sheppard murder was "especially heinous, atrocious and cruel," and that the murder was committed during a robbery. 458 So.2d, at 754. Nonetheless, the court affirmed the death sentence, its entire written analysis consisting of the following: "The trial court found no mitigating circumstances to balance against the aggravating factors, of which four were properly applied. In light of these findings the facts suggesting the sentence of death are so clear and convincing that virtually no reasonable person could differ. Tedder v. State, 322 So.2d 908 (Fla. 1975). The jury override was proper, and the facts of this case clearly place it within the class of homicides for which the death penalty has been found appropriate. Ibid. Parker pursued state collateral review without success, and then filed a petition for a writ of habeas corpus in the United States District Court for the Middle District of Florida. That court denied Parker's petition as to his convictions, but granted the petition as to the imposition of the death penalty. App. 146. The court concluded that the trial judge had found no nonstatutory mitigating circumstances. The court also found that there was sufficient evidence in the record to support a finding of nonstatutory mitigating circumstances, and, in particular, to support the jury's recommendation of a life sentence for the Sheppard murder. Because, under Florida law, a sentencing judge is to override a jury's recommendation of life imprisonment only when "virtually no reasonable person could differ," Tedder v. State, 322 So.2d 908, 910 (Fla. 1975) (per curiam), the District Court concluded that the failure of the trial judge to find the presence of nonstatutory mitigating circumstances fairly supported by the record rendered the death sentence unconstitutional. App. 139-142. The District Court also speculated that the trial judge might have failed even to consider nonstatutory mitigating circumstances, thereby violating the rule of Hitchcock v. Dugger, . App. 143. The court ordered the State of Florida to hold a resentencing hearing within 120 days or to vacate the death sentence and impose a lesser sentence. App. 146.The Court of Appeals for the Eleventh Circuit reversed. 876 F.2d 1470 (1989). That court agreed with the District Court that there was "copious evidence of nonstatutory mitigating circumstances presented by Parker during the sentencing phase." Id., at 1475, n. 7. As a consequence, however, the Court of Appeals refused to read the trial judge's silence as to nonstatutory mitigating circumstances as an indication that the judge did not consider or find such circumstances: "Under the facts of this case, the only reasonable conclusion is that the trial judge found at least some mitigating factors to be present, but also found that they were outweighed by the aggravating factors also present. In his sentencing order, the judge wrote that `[t]here are no mitigating circumstances that outweigh the aggravating circumstances in ... the second count (Sheppard murder).' (Emphasis added)." Id., at 1475. The Court of Appeals found no constitutional error in Parker's convictions or death sentence. We granted certiorari, , and now reverse the judgment of the Court of Appeals and remand for further proceedings.IIParker presents several related challenges to his death sentence. The crux of his contentions is that the Florida courts acted in an arbitrary and capricious manner by failing to treat adequately the evidence he presented in mitigation of the sentence. This case is somewhat unusual in that we are required to reconstruct that which we are to review. The trial judge's order imposing the challenged sentence does not state explicitly what effect the judge gave Parker's nonstatutory mitigating evidence. We must first determine what precisely the trial judge found.Florida statute defines certain aggravating and mitigating circumstances relevant to the imposition of the death penalty. Fla. Stat. 921.141(5), 921.141(6) (1985 and Supp. 1990). The death penalty may be imposed only where sufficient aggravating circumstances exist that outweigh mitigating circumstances. Fla.Stat. 921.141(3) (1985). A jury makes an initial sentencing recommendation to the judge; the judge imposes the sentence. 921.141(2), 921.141(3). Both may consider only those aggravating circumstances described by statute. McCampbell v. State, 421 So.2d 1072, 1075 (Fla. 1982) (per curiam). In counterbalance, however, they may consider any mitigating evidence, whether or not it goes to a statutory mitigating circumstance. Jacobs v. State, 396 So.2d 713, 718 (Fla. 1981) (per curiam). If the jury recommends a life sentence rather than the death penalty, the judge may override that recommendation and impose a sentence of death only where "the facts suggesting a sentence of death [are] so clear and convincing that virtually no reasonable person could differ." Tedder, supra, at 910.The jury here recommended a life sentence for the Sheppard murder. The trial judge overrode that recommendation. In his sentencing order, the judge described in detail his fact finding as to each of the eight statutory aggravating and seven statutory mitigating circumstances. The judge found six aggravating circumstances present as to the Sheppard murder, and no statutory mitigating circumstances. App. 48-60. The sentencing order makes no specific mention of nonstatutory mitigating circumstances. Under "Findings of the Court," the order states: "There are no mitigating circumstances that outweigh the aggravating circumstances." Id., at 60-61.What did the trial judge conclude about nonstatutory mitigating evidence? There is no question that Parker presented such evidence. For example, several witnesses at trial, including witnesses for the State, testified that Parker was under the influence of large amounts of alcohol and various drugs, including LSD, during the murders. Tr. 1401-1402, 1497, 1540-1541, 1619, 1738-1739, 1834, 1836, 1880-1881. At the sentencing hearing, Parker's attorney emphasized to the jury that none of Parker's accomplices received a death sentence for the Sheppard murder. Billy Long, who admitted shooting Nancy Sheppard, had been allowed to plead guilty to second-degree murder. Id., at 2366, 2378, 2491-2496. Finally, numerous witnesses testified on Parker's behalf at the sentencing hearing concerning his background and character. Their testimony indicated both a difficult childhood, including an abusive, alcoholic father, and a positive adult relationship with his own children and with his neighbors. Id., at 2322-2360.We must assume that the trial judge considered all this evidence before passing sentence. For one thing, he said he did. The sentencing order states: "Before imposing sentence, this Court has carefully studied and considered all the evidence and testimony at trial and at advisory sentence proceedings, the presentence Investigation Report, the applicable Florida Statutes, the case law, and all other factors touching upon this case." App. 47 (emphasis added). Under both federal and Florida law, the trial judge could not refuse to consider any mitigating evidence. See Jacobs, supra, at 718; Songer v. State, 365 So.2d 696, 700 (Fla. 1978) (per curiam), cert. denied, ; Eddings v. Oklahoma, ; Lockett v. Ohio, (plurality opinion). In his instructions to the jury concerning its sentencing recommendation, the judge explained that, in addition to the statutory mitigating factors, the jury could consider "[a]ny other aspect of the defendant's character or record, and any other circumstances of the crime." Tr. 2506-2507. Moreover, Parker's nonstatutory mitigating evidence - drug and alcohol intoxication, more lenient sentencing for the perpetrator of the crime, character and background - was of a type that the Florida Supreme Court had in other cases found sufficient to preclude a jury override. See, for example, Norris v. State, 429 So.2d 688, 690 (1983) (per curiam) (defendant claimed to be intoxicated); Buckrem v. State, 355 So.2d 111, 113-114 (1978) (same); Malloy v. State, 382 So.2d 1190, 1193 (1979) (per curiam) (lesser sentence for triggerman); McCampbell, supra, at 1075-1076 (background and character); Jacobs, supra, at 718 (same). The trial judge must have at least taken this evidence into account before passing sentence.We also conclude that the trial judge credited much of this evidence, although he found that it did not outweigh the aggravating circumstances. The judge instructed the jurors at the end of the sentencing hearing that they need be only "reasonably convinced" that a mitigating circumstance exists to consider it established. Tr. 2507; Florida Bar, Florida Standard Jury Instructions in Criminal Cases 81 (1981 ed.). We assume the judge applied the same standard himself. He must, therefore, have found at least some nonstatutory mitigating circumstances. The evidence of Parker's intoxication at the time of the murders was uncontroverted. There is also no question that Long, despite being the triggerman for the Sheppard murder, received a lighter sentence than Parker. Respondent conceded this fact in oral argument before this Court. See Tr. of Oral Arg. 35. And, as noted, there was extensive evidence going to Parker's personal history and character that might have provided some mitigation.In addition, every court to have reviewed the record here has determined that the evidence supported a finding of nonstatutory mitigating circumstances. Both the District Court and the Court of Appeals, in reviewing Parker's habeas petition, concluded that there was more than enough evidence in this record to support such a finding. See App. 141-142; 876 F.2d, at 1475. We agree. We note also that the jury found sufficient mitigating circumstances to outweigh the aggravating circumstances in the Sheppard murder. The Florida Supreme Court did not make its own determination of whether the evidence supported a finding of nonstatutory mitigating circumstances. See Parker, 458 So.2d, at 754, quoted supra, at 3. To the extent there is ambiguity in the sentencing order, we will not read it to be against the weight of the evidence.Perhaps the strongest indication that the trial judge found nonstatutory mitigating circumstances is that the judge overrode the jury's sentencing recommendation for the Sheppard murder, but not for the Padgett murder. The jury recommended a life sentence for both murders. The judge explicitly found six aggravating circumstances related to the Sheppard murder and five aggravating circumstances related to the Padgett murder. App. 56-60. The judge found no statutory mitigating circumstances as to either murder. Id., at 48-56. Yet he sentenced Parker to death for the Sheppard murder, but accepted the jury's recommendation as to the Padgett murder. If the judge had found no nonstatutory mitigating circumstances, he would have had nothing to balance against the aggravating circumstances for either murder, and the judge presumably would have overridden both recommendations.It must be that the judge sentenced differentially for the two murders because he believed that the evidence in the Sheppard murder was so "clear and convincing that virtually no reasonable person could differ" about the sentence of death, see Tedder, 322 So.2d, at 910, whereas the evidence in the Padgett murder did not meet this test. Perhaps this decision was based solely on the fact that the judge had found six aggravating circumstances in the Sheppard murder but only five in the Padgett murder. Far more likely, however, is that the judge found nonstatutory mitigating circumstances, at least as to the Padgett murder. But, as the nonstatutory mitigating evidence was in general directed to both murders, there is no reason to think the judge did not find mitigation as to both.The best evidence that the trial judge did not find any nonstatutory mitigating circumstances is that the sentencing order contains detailed findings as to statutory mitigating circumstances, but makes no explicit reference to nonstatutory evidence. There is a likely explanation for this fact. By statute, the sentencing judge is required to set forth explicitly his findings as to only the statutory aggravating and mitigating circumstances. Fla.Stat. 921.141(3) (1985). Florida case law at the time the trial judge entered Parker's sentencing order required no more. See Mason v. State, 438 So.2d 374, 380 (1983), cert. denied, (trial judge need not expressly address each nonstatutory mitigating circumstance). Only very recently has the Florida Supreme Court established a requirement that a trial court must expressly evaluate in its sentencing order each nonstatutory mitigating circumstance proposed by the defendant. See Campbell v. State, 571 So.2d 415 (1990). The absence of a requirement that the sentencing order contain specific findings as to nonstatutory mitigating circumstances probably explains why the order here discusses only those circumstances categorized by statute. Nonstatutory evidence, precisely because it does not fall into any predefined category, is considerably more difficult to organize into a coherent discussion; even though a more complete explanation is obviously helpful to a reviewing court, from the trial judge's perspective it is simpler merely to conclude, in those cases where it is true, that such evidence taken together does not outweigh the aggravating circumstances. And so the judge did, stating that he found "no mitigating circumstances that outweigh the aggravating circumstances." App. 61 (emphasis added).In light of the substantial evidence, much of it uncontroverted, favoring mitigation, the differential sentences for the Sheppard and Padgett murders, and that the judge indicated that he found no mitigating circumstances "that outweigh" aggravating circumstances, we must conclude, as did the Court of Appeals, that the trial court found and weighed nonstatutory mitigating circumstances before sentencing Parker to death.IIIThe Florida Supreme Court did not consider the evidence of nonstatutory mitigating circumstances. On direct review of Parker's sentence, the Florida Supreme Court struck two of the aggravating circumstances on which the trial judge had relied. The Supreme Court nonetheless upheld the death sentence because "[t]he trial court found no mitigating circumstances to balance against the aggravating factors." Parker, 458 So.2d, at 754. The Florida Supreme Court erred in its characterization of the trial judge's findings, and consequently erred in its review of Parker's sentence.As noted, Florida is a weighing state; the death penalty may be imposed only where specified aggravating circumstances outweigh all mitigating circumstances. Fla.Stat. 92.141(3) (1985); McCampbell, 421 So.2d, at 1075; Jacobs, 396 So.2d, at 718. In a weighing State, when a reviewing court strikes one or more of the aggravating factors on which the sentencer relies, the reviewing court may, consistent with the Constitution, reweigh the remaining evidence or conduct a harmless error analysis. Clemons v. Mississippi, . It is unclear what the Florida Supreme Court did here. It certainly did not conduct an independent reweighing of the evidence. In affirming Parker's sentence, the court explicitly relied on what it took to be the trial judge's finding of no mitigating circumstances. Parker, supra, at 754. Had it conducted an independent review of the evidence, the court would have had no need for such reliance. More to the point, the Florida Supreme Court has made it clear on several occasions that it does not reweigh the evidence of aggravating and mitigating circumstances. See, e.g., Hudson v. State, 538 So.2d 829, 831 (per curiam), cert. denied, ("It is not within this Court's province to reweigh or reevaluate the evidence presented as to aggravating or mitigating circumstances"); Brown v. Wainwright 392 So.2d 1327, 1331-1332 (1981) (per curiam).The Florida Supreme Court may have conducted a harmless error analysis. At the time it heard Parker's appeal, this was its general practice in cases in which it had struck aggravating circumstances and the trial judge had found no mitigating circumstances. See Sireci v. State, 399 So.2d 964, 971 (1981), cert. denied, ; Elledge v. State, 346 So.2d 998, 1002-1003 (Fla. 1977). Perhaps the Florida Supreme Court conducted a harmless error analysis here: believing that the trial judge properly had found four aggravating circumstances, and no mitigating circumstances to weigh against them, the Florida Supreme Court may have determined that elimination of two additional aggravating circumstances would have made no difference to the sentence.But, as we have explained, the trial judge must have found mitigating circumstances. The Florida Supreme Court's practice in such cases - where the court strikes one or more aggravating circumstances relied on by the trial judge and mitigating circumstances are present - is to remand for a new sentencing hearing. See ibid. Moody v. State, 418 So.2d 989, 995 (1982). Following Clemons, a reviewing court is not compelled to remand. It may instead reweigh the evidence or conduct a harmless error analysis based on what the sentencer actually found. What the Florida Supreme Court could not do, but what it did, was to ignore the evidence of mitigating circumstances in the record and misread the trial judge's findings regarding mitigating circumstances, and affirm the sentence based on a mischaracterization of the trial judge's findings.In Wainwright v. Goode, , the Court held that a federal court on habeas review must give deference to a state appellate court's resolution of an ambiguity in a state trial court statement. We did not decide in Goode whether the issue resolved by the state appellate court was properly characterized as one of law or of fact. In this case, we conclude that a determination of what the trial judge found is an issue of historical fact. It depends on an examination of the transcript of the trial and sentencing hearing, and the sentencing order. This is not a legal issue; no determination of the legality of Parker's sentence under Florida law necessarily follows from a resolution of the question of what the trial judge found.Because it is a factual issue, the deference we owe is that designated by 28 U.S.C. 2254. In ruling on a petition for a writ of habeas corpus, a federal court is not to overturn a factual conclusion of a state court, including a state appellate court, unless the conclusion is not "fairly supported by the record." 2254(d)(8); Goode, supra, at 85. For the reasons stated, we find that the Florida Supreme Court's conclusion that the trial judge found no mitigating circumstances is not fairly supported by the record in this case. IV"If a State has determined that death should be an available penalty for certain crimes, then it must administer that penalty in a way that can rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not. Spaziano v. Florida, . The Constitution prohibits the arbitrary or irrational imposition of the death penalty. Id., at 466-467. We have emphasized repeatedly the crucial role of meaningful appellate review in ensuring that the death penalty is not imposed arbitrarily or irrationally. See, e.g., Clemons, supra, at 749 (citing cases); Gregg v. Georgia, . We have held specifically that the Florida Supreme Court's system of independent review of death sentences minimizes the risk of constitutional error, and have noted the "crucial protection" afforded by such review in jury override cases. Dobbert v. Florida, . See also Proffitt v. Florida, ; (joint opinion of Stewart, Powell, and STEVENS, JJ.); Spaziano, supra, at 465 (1984). The Florida Supreme Court did not conduct an independent review here. In fact, there is a sense in which the court did not review Parker's sentence at all. It cannot be gainsaid that meaningful appellate review requires that the appellate court consider the defendant's actual record. "What is important ... is an individualized determination on the basis of the character of the individual and the circumstances of the crime." Zant v. Stephens, . See also Clemons, supra at 749, 752; Barclay v. Florida, (plurality opinion). The Florida Supreme Court affirmed Parker's death sentence neither based on a review of the individual record in this case nor in reliance on the trial judge's findings based on that record, but in reliance on some other nonexistent findings. The jury found sufficient mitigating circumstances to outweigh the aggravating circumstances, and recommended that Parker be sentenced to life imprisonment for the Sheppard murder. The trial judge found nonstatutory mitigating circumstances related to the Sheppard murder. The judge also declined to override the jury's recommendation as to the Padgett murder, even though he found five statutory aggravating circumstances and no statutory mitigating circumstances related to that crime. The Florida Supreme Court then struck two of the aggravating circumstances on which the trial judge had relied. On these facts, the Florida Supreme Court's affirmance of Parker's death sentence based on four aggravating circumstances and the trial judge's "finding" of no mitigating circumstances was arbitrary.This is not simply an error in assessing the mitigating evidence. Had the Florida Supreme Court conducted its own examination of the trial and sentencing hearing records and concluded that there were no mitigating circumstances, a different question would be presented. Similarly, if the trial judge had found no mitigating circumstances and the Florida Supreme Court had relied on that finding, our review would be very different. Cf. Lewis v. Jeffers, . But the Florida Supreme Court did not come to its own independent factual conclusion, and it did not rely on what the trial judge actually found; it relied on "findings" of the trial judge that bear no necessary relation to this case. After striking two aggravating circumstances, the Florida Supreme Court affirmed Parker's death sentence without considering the mitigating circumstances. This affirmance was invalid because it deprived Parker of the individualized treatment to which he is entitled under the Constitution. See Clemons, 494 U.S., at 752.VWe reverse the judgment of the Court of Appeals and remand with instructions to return the case to the District Court to enter an order directing the State of Florida to initiate appropriate proceedings in state court so that Parker's death sentence may be reconsidered in light of the entire record of his trial and sentencing hearing and the trial judge's findings. The District Court shall give the State a reasonable period of time to initiate such proceedings. We express no opinion as to whether the Florida courts must order a new sentencing hearing.As to Parker's remaining questions presented to this Court, his petition for a writ of certiorari is dismissed as improvidently granted.It is so ordered.JUSTICE WHITE, with whom THE CHIEF JUSTICE, JUSTICE SCALIA, and JUSTICE KENNEDY join, dissenting."It is not our function to decide whether we agree with the majority of the advisory jury or with the trial judge and the Florida Supreme Court." Spaziano v. Florida, . The Court long ago gave up second guessing state supreme courts in situations such as the one presented here. Nevertheless, the Court today undertakes and performs that task in a manner that is inconsistent with our precedents and with the Court's role as the final arbiter of federal constitutional issues of great importance. Therefore, I dissent. The entire weight of the Court's opinion rests on a reconstruction of the record the likes of which has rarely, if ever, been performed before in this Court. Once armed with its dubious reconstruction of the facts, the Court proceeds to determine that the Florida Supreme Court's conclusion that the trial judge found no nonstatutory mitigating circumstances is not "`fairly supported by the record.'" Ante, at 320 (quoting 28 U.S.C. 2254(d)(8)). The Court then relies on that determination to assert that the Florida Supreme Court "did not conduct an independent review here," ante, at 321, even though the Court admits that the Florida Supreme Court's review was at least thorough enough to cause it to strike down two aggravating factors found by the trial judge. Ante, at 322. The Court ultimately concludes that Parker was deprived of "meaningful appellate review" which, for reasons not fully explained, apparently entitles him to relief under the Eighth Amendment of the Constitution. As I see it, these actions conflict with two lines of the Court's precedent.First, the Court's application of the "fairly supported by the record" standard of 2254(d)(8) is inconsistent with the way that standard has been applied in other cases, and gives far too little deference to state courts that are attempting to apply their own law faithfully and responsibly. For example, in Wainwright v. Goode, (per curiam), a Florida case remarkably similar to this one, the Court indicated that 2254(d)(8) requires federal habeas courts to give considerable deference to factual determinations made by any state court. In Goode, there was a question whether the trial judge who had sentenced the defendant to death had relied on an aggravating factor that was not proper for him to consider under Florida law. In deciding the defendant's appeal, the Florida Supreme Court concluded that the trial judge had not actually relied on the improper factor. On federal habeas review, a federal district court agreed with the Florida Supreme Court, but the Court of Appeals reversed the death sentence. This Court, after reviewing the record, determined that, at best, the trial court record was ambiguous on this issue, and, for that very reason, we held that "the Court of Appeals erred in substituting its view of the facts for that of the Florida Supreme Court." 464 U.S., at 85.There is little if any factual distinction between this case and Goode. Here, the trial judge stated that he found "no mitigating circumstances that outweigh the aggravating circumstances." App. 61. The majority apparently seizes upon the ambiguity inherent in the judge's use of the word "that," arguing that what he must have meant was that there were mitigating circumstances, but that they did not outweigh the aggravators, rather than meaning that no mitigating circumstances existed at all.1 The Florida Supreme Court obviously interpreted his statement in the latter fashion.To state the Court's argument is to refute it. It is clear that the trial judge's statement is ambiguous, as was the case in Goode. The fact that the Justices of this Court cannot agree as to the meaning of the trial judge's statement is strong evidence that the statement is at least ambiguous. Moreover, it is likely that the judge - in following the statutory requirement that he make the weighing determination in writing, see Fla.Stat. 921.141(3) (1985) -, was simply tracking statutory language which requires him, if he chooses to impose a sentence of death, to find "[t]hat there are insufficient mitigating circumstances to outweigh the aggravating circumstances." 921.141(3)(b). That statement itself is ambiguous, because it does not require the trial court to specify whether mitigating circumstances exist but are outweighed, or whether there simply are no such circumstances. I therefore see no reason to disturb the Florida Supreme Court's conclusion that the trial court found that no nonstatutory mitigating circumstances had been established. Our recent decision in Lewis v. Jeffers, , confirms that this Court traditionally gives great deference to state-court determinations such as the one at issue here. In Jeffers, we rejected the contention that federal courts should second-guess state-court findings regarding the existence of aggravating factors, and instead held that the question for federal habeas courts is only whether any rational factfinder could have found the factor to be established. Id., at 780-781. I see no reason to differentiate between state court conclusions regarding mitigating circumstances as opposed to those regarding aggravating factors. Moreover, as the Court expressly acknowledged in both Goode and Jeffers, the deferential review that is required does not vary depending on the level at which the findings are made in state court; it is the same whether a trial court or the state supreme court makes the finding. Goode, supra, at 85; Jeffers, supra, at 783.Even more troubling in this case is the Court's creation of a new and unexplained "meaningful appellate review" standard for federal courts to apply in habeas proceedings. The Court suggests that the Florida Supreme Court's "error" in "misreading" the trial judge's findings is conclusive evidence that the court did not independently review Parker's claims, and that this failure rendered Parker's sentence "arbitrary" in violation of the Eighth Amendment of the Constitution.This holding rests on a faulty assumption about the legal nature of the Florida Supreme Court's review of the trial court's findings2 and in any event finds no support in our cases. The Court previously has held that a state appellate court's interpretation of a trial court's remarks or a state court's finding that particular aggravating circumstances exist, even if considered a legal issue as opposed to a factual determination, is an issue of state law which is essentially unreviewable in federal court. Goode, 464 U.S., at 84; Jeffers, supra, at 783. It is axiomatic that, in general, mere errors of state law are not the concern of this Court, Gryger v. Burke, ; Barclay v. Florida, ; Goode, supra, at 86; Pulley v. Harris, ; Jeffers, supra, at 780, and that the "views of the State's highest court with respect to state law are binding on the federal courts." Goode, supra, at 84 (citing cases); Clemons v. Mississippi, . The Court today suggests that the Eighth Amendment will have been violated any time a federal court decides that a state appellate court has committed an error of state law in a capital case or has not rigorously followed some state appellate procedure. The Court points to no cases supporting this radical revision of our Eighth Amendment jurisprudence.Here, the only "error" the Court identifies is the Florida Supreme Court's "misreading" of the trial court's findings. The Court does not conclude that the trial court failed or refused to consider Parker's evidence of nonstatutory mitigating factors.3 Cf. Hitchcock v. Dugger, . Indeed, it notes that "he said he did." Ante, at 314. Absent such a conclusion, it is difficult to see how any "error" here could have been of federal constitutional dimensions. The Eighth Amendment "does not, by its terms, regulate the procedures of sentencing, as opposed to the substance of punishment." Walton v. Arizona, (SCALIA, J., concurring in part and concurring in judgment). "Thus, the procedural elements of a sentencing scheme come within the prohibition, if at all, only when they are of such a nature as systematically to render the infliction of a cruel punishment "unusual." Ibid. (emphasis added). Therefore, even were I to accept the Court's dubious reconstruction of the factual record in this case, I see no constitutional infirmity in the Florida Supreme Court's judgment.Of course, entirely apart from the dubious legal propositions relied upon by the Court today, the Court's house of cards topples if in fact the trial judge's statements can plausibly be interpreted as indicating that he found no nonstatutory mitigating circumstances to exist. In his written sentencing order, the trial judge premised his discussion of aggravating and mitigating circumstances with the following statement: "Before imposing sentence, this Court has carefully studied and considered all the evidence and testimony at trial and at advisory sentence proceedings, the presentence Investigation Report, the applicable Florida Statutes, the case law, and all other factors touching upon this case." App. 47. The trial court ultimately concluded that "[t]here are no mitigating circumstances that outweigh the aggravating circumstances." Id., at 61. The Court concedes that the trial court's prefatory statement indicates that the judge did in fact consider the evidence of nonstatutory mitigating circumstances presented by Parker, ante, at 314-315, but nonetheless asserts that his concluding statement cannot be interpreted to mean that he did not find any nonstatutory mitigating circumstances to exist. As explained above, the Court - hard as it may try - cannot plausibly escape the fact that the statement is ambiguous. Accordingly, as noted above, under Wainwright v. Goode, supra, federal courts are required to defer to the Florida Supreme Court's interpretation of the trial court's findings.Furthermore, there is nothing implausible about the interpretation the Florida Supreme Court gave to the trial court's order. The Court asserts that the trial judge must have found "drug and alcohol intoxication, more lenient sentencing for the perpetrator of the crime, [and Parker's] character and background," ante, at 315, as nonstatutory mitigating circumstances, and that "the strongest indication that the trial judge found nonstatutory mitigating circumstances is that the judge overrode the jury's sentencing recommendation for the Sheppard murder, but not for the Padgett murder. Ante, at 316. The latter proposition, according to the Court, flows from the fact that, although the mitigating evidence with respect to both murders was the same, the judge overrode only one of the sentences. The Court reasons that, if the trial judge had actually found that there were no mitigating circumstances in either case, then he surely would have overridden both life sentences. Ante, at 316-317.This reasoning ignores the differences between the two crimes. The trial court found six aggravating circumstances with respect to the Sheppard murder and five with respect to the Padgett murder. Although superficially that difference may not appear very significant, in reality it is, because the aggravating circumstance that the court found present in the Sheppard murder but not in the Padgett murder was that the Sheppard murder was "committed for the purpose of avoiding or preventing a lawful arrest or effecting an escape from custody." App. 57. It cannot be seriously disputed that this was the primary, if not sole, motive for killing Nancy Sheppard. This factor goes to the very nature of the Sheppard murder, and readily distinguishes it from the Padgett murder.Padgett was killed in a dispute over payment for illegal drugs. After Tommy Groover and Parker confronted Padgett about his drug debts, they took him to a junkyard "where Groover and Padgett engaged in a fistfight." Id., at 40. They then drove Padgett to a deserted area and "Groover shot Padgett to death," ibid., with Parker present. The trial court found that Parker and "Groover toyed with their victim for hours - as a cat with a mouse." Id., at 59. Thus, it is clear that Groover was a willing participant in the Padgett murder, and that he alone actually killed the victim.By contrast, Sheppard, a teenager, was essentially an innocent bystander who had no connection to Parker other than that her boyfriend was Padgett. Parker and his accomplices tricked her into accompanying them to the scene of the Padgett murder, where they brutally killed her in a pathetic attempt to avoid detection for the Padgett murder. On Parker's orders, William Long shot Sheppard in the head as she knelt down near Padgett's body. Id., at 58, 59. Parker had threatened to kill Long if he did not shoot Sheppard, see id., at 56, 58, 59, a threat driven home by the fact that Parker had previously been convicted and imprisoned for shooting Long, see Tr. 1257-1259, 1340, 1884, 1888, and Parker himself slit Sheppard's throat to insure that the job was done. App. 58, 59. It is not necessary to resort to the imaginative stretch the Court engages in today to see why the trial court might have chosen to override the jury recommendation for the Sheppard murder, but not the Padgett murder.Likewise, an examination of the record reveals why neither the trial court nor the Florida Supreme Court "must" have found nonstatutory mitigating circumstances sufficiently established to require weighing against the aggravating circumstances. The Court's reliance on the disparity in the sentence Parker's accomplice, Long, received is nothing more than another creative reconstruction of the record. The state's theory at trial was that Long feared Parker, and that he shot Sheppard only after Parker threatened to kill him if he did not kill Sheppard. In its written sentencing order, the trial court specifically found that Parker "forced William Long to shoot Nancy Sheppard," id., at 56, that he made "threats to kill Long," ibid., that he "threatened and forced William Long to shoot Nancy Sheppard," id., at 58, and then Parker "cut her throat and took her ring and necklace," ibid., and finally that Parker "ordered William Long to shoot Nancy or himself be killed," and that, after Long shot her, Parker "screamed `shoot her again, shoot her again.'" Id., at 59. As noted previously, the idea that Parker could effectively threaten Long is made more credible by the fact that Parker had previously been convicted and imprisoned for shooting Long. Tr. 1257-1259, 1340, 1884, 1888. Incredibly, without even suggesting that these findings of the trial court are erroneous, the Court asserts that Long was more culpable with regard to the Sheppard murder than Parker, and that his more lenient sentence therefore should be a mitigating circumstance in Parker's case.4 Ante, at 316. Neither the record nor common sense supports that assertion.The Court also suggests that the trial judge must have found "drug and alcohol intoxication" and Parker's "character and background," ante, at 315, as nonstatutory mitigating circumstances. Again, however, the record compels no such conclusion. With respect to the "intoxication" circumstance, all but one of the references the Court makes to the trial transcript involve either inconclusive testimony by various witnesses being questioned by Parker's counsel in an obvious attempt to establish that Parker was intoxicated on drugs or alcohol, see Tr. 1401-1402, 1497, 1540-1541, 1619, 1738, or the self-serving testimony of Parker himself. See id., at 1834, 1880-1881.Furthermore, this testimony is not corroborated by any physical or medical evidence, and it is for the most part inconclusive and equivocal. For example, when Long was asked whether Parker and some of his companions were high at the time they went to get Nancy Sheppard, he replied "[a]s far as I know. I didn't ask them, but they seemed like they were." Id., at 1402. Denise Long, who was visited by Parker and Tommy Groover after the murders had been committed, was asked whether Parker and Groover were high when she saw them. Her response was "[w]ell, there's a difference in being high and just like you are hung over. They looked like they were just hung over from being high or drunk." Id., at 1619. In fact, the State recalled one witness, Lewis Bradley, who had seen Parker and Groover after the murder, and he testified that "they seemed like they had been drinking a couple of beers or something, but they seemed like they had control of theirselves." Id., at 1632.As counsel for the State urged at oral argument, the trial court reasonably could have concluded that there was insufficient evidence to show that Parker was intoxicated on drugs or alcohol at the time of the crimes. Tr. of Oral Arg. 34. There was testimony suggesting that Parker and his companions had been drinking or had taken some drugs at some point during the time period leading up to the murders, but there was no conclusive evidence that Parker was in fact intoxicated or that his actions were in any way affected by drugs or alcohol.5 Similarly, the persuasiveness of Parker's "character and background" evidence depended entirely upon the credibility of witnesses who had a definite interest in seeing that Parker was not sentenced to death.6 I cannot say that the trial court would be in error if he did not credit these submissions as establishing nonstatutory mitigating circumstances.Finally, the Court attempts to explain away the trial court's failure to discuss any nonstatutory mitigating circumstances by suggesting that the judge did not discuss such circumstances because he was not required by statute to make written findings regarding them. Ante, at 317. This is a strange suggestion, particularly in light of the Court's assertion that the judge's statement that "there are no mitigating circumstances that outweigh the aggravating circumstances" means that the judge found nonstatutory mitigating circumstances but determined that they were outweighed. If that were the case, and the trial court had found nonstatutory mitigating circumstances sufficient to merit "weighing," it would be most reasonable to expect the judge to discuss those circumstances in the sentencing order, whether or not state law required written findings regarding nonstatutory mitigating circumstances. The most plausible interpretation of the trial court's findings is that the court considered the evidence presented and determined that none of it rose to the level of establishing a nonstatutory mitigating circumstance to weigh against the numerous statutory aggravating circumstances.7 I cannot countenance the Court's radical departure from our prior cases, and cannot agree with its imaginative reconstruction of the record in this case. Therefore, I dissent, and would affirm the judgment of the Court of Appeals.8

With no indictment and on his own complaint, a federal officer obtained a warrant for petitioner's arrest, but obtained no search warrant. His complaint was not based on his personal knowledge, did not indicate the source of his belief that petitioner had committed a crime and set forth no other sufficient basis for a finding of probable cause. With this warrant, he arrested petitioner and seized narcotics in his possession. The arrest and seizure were not challenged at petitioner's arraignment, but a motion to suppress the use of the narcotics in evidence was made and denied before his trial. They were admitted in evidence at his trial in a federal district court and he was convicted. Held: The arrest and seizure were illegal, the narcotics should not have been admitted in evidence, and petitioner's conviction must be set aside. Pp. 481-488. 1. By waiving preliminary examination before the Commissioner, petitioner did not surrender his right to contest in court the validity of the warrant on the grounds here asserted. Pp. 483-484. 2. Under Rules 3 and 4 of the Federal Rules of Criminal Procedure, read in the light of the Fourth Amendment, probable cause was not shown by the complaint and the warrant for arrest was issued illegally. Pp. 484-487. 3. Having relied entirely in the courts below on the validity of the warrant, the Government cannot contend in this Court that the arrest was justified apart from the warrant, because the arresting officer had probable cause to believe that petitioner had committed a felony; nor should the case be sent back to the District Court for a special hearing on the issue of probable cause. Pp. 487-488. 241 F.2d 575, reversed.William F. Walsh, acting under appointment by the Court, , argued the cause and filed a brief for petitioner. John L. Murphy argued the cause for the United States. On the brief were Solicitor General Rankin, Assistant Attorney General Anderson, Beatrice Rosenberg and Eugene L. Grimm.MR. JUSTICE HARLAN delivered the opinion of the Court.Petitioner was convicted of the unlawful purchase of narcotics, see 26 U.S.C. (Supp. V) 4704, after a trial without a jury before the Federal District Court for the Southern District of Texas. A divided Court of Appeals affirmed. 241 F.2d 575. We granted certiorari to consider petitioner's challenge to the legality of his arrest and the admissibility in evidence of the narcotics seized from his person at the time of the arrest. .Agent Finley of the Federal Bureau of Narcotics obtained a warrant for the arrest of petitioner from the United States Commissioner in Houston, Texas, on January 26, 1956. This warrant, issued under Rules 3 and 4 of the Federal Rules of Criminal Procedure (see note 3, infra), was based on a written complaint, sworn to by Finley, which read in part:"The undersigned complainant [Finley] being duly sworn states: That on or about January 26, 1956, at Houston, Texas in the Southern District of Texas, Veto Giordenello did receive, conceal, etc., narcotic drugs, to-wit: heroin hydrochloride with knowledge of unlawful importation; in violation of Section 174, Title 21, United States Code. "And the complainant further states that he believes that _________________ ______________ are material witnesses in relation to this charge." About 6 o'clock in the afternoon of the following day, January 27, Finley saw petitioner drive up to his residence in a car and enter the house. He emerged shortly thereafter and drove away in the same car, closely followed in a second car by a person described by Finley as a "well-known police character." Finley pursued the cars until they stopped near another residence which was entered by petitioner. When petitioner left this residence, carrying a brown paper bag in his hand, and proceeded towards his car, Finley executed the arrest warrant and seized the bag, which proved to contain a mixture of heroin and other substances. Although warned of his privilege to remain silent, petitioner promptly admitted purchasing the heroin in Chicago and transporting it to Houston.On January 28 petitioner appeared with counsel before a United States Commissioner. He waived the preliminary examination contemplated by Rule 5 of the Rules of Criminal Procedure, see p. 483, infra, and was arraigned on the complaint upon which the arrest warrant had been issued on January 26.1 Prior to trial petitioner, alleging for the first time that his arrest and the coincident seizure from his person of the paper bag were illegal, moved to suppress for use as evidence the heroin found in the bag. This motion was denied by the District Court, and petitioner's conviction and its affirmance by the Court of Appeals followed.In this Court petitioner argues, as he did below, that Finley's seizure of the heroin was unlawful, since the warrant of arrest was illegal and the seizure could be justified only as incident to a legal arrest, and that consequently the admission of the heroin into evidence was error which requires that his conviction be set aside. The Government contends that petitioner waived his right to challenge the legality of his arrest, and hence to object to the admissibility of this evidence, by failing to question the sufficiency of the warrant at the time he was brought before the United States Commissioner. It further asserts that the arrest warrant satisfied the Federal Rules of Criminal Procedure, and, alternatively, that the arrest can be sustained apart from the warrant because Finley had probable cause to believe that petitioner had committed a felony. The Government recognizes that since Finley had no search warrant, the heroin was admissible in evidence only if its seizure was incident to a lawful arrest, see United States v. Rabinowitz, , and that if the arrest was illegal the admission of this evidence was reversible error.I.We think it clear that petitioner, by waiving preliminary examination before the United States Commissioner, did not surrender his right subsequently to contest in court the validity of the warrant on the grounds here asserted. A claim of this nature may involve legal issues of subtlety and complexity which it would be unfair to require a defendant to present so soon after arrest, and in many instances, as here, before his final selection of counsel.In addition, examination of the purpose of the preliminary examination before a Commissioner makes evident the unsoundness of the Government's position. Rule 5 (c) of the Federal Rules of Criminal Procedure provides in part:"If from the evidence it appears to the commissioner that there is probable cause to believe that an offense has been committed and that the defendant has committed it, the commissioner shall forthwith hold him to answer in the district court; otherwise the commissioner shall discharge him." By waiving preliminary examination, a defendant waives no more than the right which this examination was intended to secure him - the right not to be held in the absence of a finding by the Commissioner of probable cause that he has committed an offense.By the same token, the Commissioner here had no authority to adjudicate the admissibility at petitioner's later trial of the heroin taken from his person. That issue was for the trial court. This is specifically recognized by Rule 41 (e) of the Criminal Rules, which provides that a defendant aggrieved by an unlawful search and seizure may "... move the district court ... to suppress for use as evidence anything so obtained on the ground that ..." the arrest warrant was defective on any of several grounds. This was the procedural path followed by petitioner, and we hold it proper to put in issue the legality of the warrant. Cf. Albrecht v. United States, .II.Petitioner challenges the sufficiency of the warrant on two grounds: (1) that the complaint on which the warrant was issued was inadequate because the complaining officer, Finley, relied exclusively upon hearsay information rather than personal knowledge in executing the complaint; and (2) that the complaint was in any event defective in that it in effect recited no more than the elements of the crime charged, namely the concealment of heroin with knowledge of its illegal importation in violation of 21 U.S.C. 174.2 It appears from Finley's testimony at the hearing on the suppression motion that until the warrant was issued on January 26 his suspicions of petitioner's guilt derived entirely from information given him by law enforcement officers and other persons in Houston, none of whom either appeared before the Commissioner or submitted affidavits. But we need not decide whether a warrant may be issued solely on hearsay information, for in any event we find this complaint defective in not providing a sufficient basis upon which a finding of probable cause could be made.Criminal Rules 3 and 4 provide that an arrest warrant shall be issued only upon a written and sworn complaint (1) setting forth "the essential facts constituting the offense charged," and (2) showing "that there is probable cause to believe that [such] an offense has been committed and that the defendant has committed it ... ."3 The provisions of these Rules must be read in light of the constitutional requirements they implement. The language of the Fourth Amendment, that "... no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing ... the persons or things to be seized," of course applies to arrest as well as search warrants. See Ex parte Burford, 3 Cranch 448; McGrain v. Daugherty, . The protection afforded by these Rules, when they are viewed against their constitutional background, is that the inferences from the facts which lead to the complaint "... 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, here a Commissioner, 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 that the person whose arrest is sought has committed a crime.When the complaint in this case is judged with these considerations in mind, it is clear that it does not pass muster because it does not provide any basis for the Commissioner's determination under Rule 4 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. We think these deficiencies could not be cured by the Commissioner's reliance upon a presumption that the complaint was made on the personal knowledge of the complaining officer. The insubstantiality of such an argument is illustrated by the facts of this very case, for Finley's testimony at the suppression hearing clearly showed that he had no personal knowledge of the matters on which his charge was based. In these circumstances, it is difficult to understand how the Commissioner could be expected to assess independently the probability that petitioner committed the crime charged. Indeed, if this complaint were upheld, the substantive requirements would be completely read out of Rule 4, and the complaint would be of only formal significance, entitled to perfunctory approval by the Commissioner. This would not comport with the protective purposes which a complaint is designed to achieve.It does not avail the Government to argue that because a warrant of arrest may be issued as of course upon an indictment, this complaint was adequate since its allegations would suffice for an indictment under Federal Rule of Criminal Procedure 7 (c). A warrant of arrest can be based upon an indictment because the grand jury's determination that probable cause existed for the indictment also establishes that element for the purpose of issuing a warrant for the apprehension of the person so charged. Here, in the absence of an indictment, the issue of probable cause had to be determined by the Commissioner, and an adequate basis for such a finding had to appear on the face of the complaint.III.In the two lower courts the Government defended the legality of petitioner's arrest by relying entirely on the validity of the warrant.4 In this Court, however, its principal contention has been that the arrest was justified apart from the warrant. The argument is that Texas law permits arrest without a warrant upon probable cause that the person arrested has committed a felony; that in the absence of a controlling federal statute, as in the case here, federal officers turn to the law of the State where an arrest is made as the source of their authority to arrest without a warrant, cf. United States v. Di Re, ; Johnson v. United States, supra, at 15; and that Finley, on the basis of the facts he testified to before the District Court, must be deemed, within the standards of Texas law, to have had the probable cause necessary to arrest petitioner without a warrant.We do not think that these belated contentions are open to the Government in this Court and accordingly we have no occasion to consider their soundness. To permit the Government to inject its new theory into the case at this stage would unfairly deprive petitioner of an adequate opportunity to respond. This is so because in the District Court petitioner, being entitled to assume that the warrant constituted the only purported justification for the arrest, had no reason to cross-examine Finley or to adduce evidence of his own to rebut the contentions that the Government makes here for the first time.Nor do we think that it would be sound judicial administration to send the case back to the District Court for a special hearing on the issue of probable cause which would determine whether the verdict of guilty and the judgment already entered should be allowed to stand. The facts on which the Government now relies to uphold the arrest were fully known to it at the time of trial, and there are no special circumstances suggesting such an exceptional course. Cf. United States v. Shotwell Mfg. Co., . This is not to say, however, that in the event of a new trial the Government may not seek to justify petitioner's arrest without relying on the warrant.We hold that the seizure in this case was illegal, that the seized narcotics should therefore not have been admitted into evidence, and that petitioner's conviction accordingly must be set aside. The judgment of the Court of Appeals is Reversed.

1. Petitioner and her husband entered into an agreement for settlement of their property rights, conditioned on the entry of a decree of divorce in a suit then pending in Nevada. The divorce court approved the agreement and entered a decree of divorce. Both the agreement and the decree provided that the agreement should survive the decree. A federal gift tax was assessed on the amount by which the value of the property transferred to the husband exceeded that received by petitioner. Held: The federal gift tax (26 U.S.C. 1000, 1002) was not applicable. Pp. 108-113.2. Petitioner having died since the submission of this case and an administrator of her estate having not yet been appointed, the judgment of this Court is entered as of the date the case was submitted, in pursuance of the practice obtaining in those circumstances. Pp. 112-113. 178 F.2d 861, reversed. The Commissioner's determination of a gift tax deficiency for 1943 was expunged by the Tax Court. 10 T. C. 741. The Court of Appeals reversed. 178 F.2d 861. This Court granted certiorari, limited to questions 2 and 3 presented by the petition. . Reversed, p. 113.Irwin N. Wilpon argued the cause and filed a brief for petitioner.Lee A. Jackson argued the cause for respondent. With him on the brief were Solicitor General Perlman, Assistant Attorney General Caudle, Ellis N. Slack and I. Henry Kutz. MR. JUSTICE DOUGLAS delivered the opinion of the Court.The federal estate tax and the federal gift tax, as held in a line of cases ending with Commissioner v. Wemyss, , and Merrill v. Fahs, , are construed in pari materia, since the purpose of the gift tax is to complement the estate tax by preventing tax-free depletion of the transferor's estate during his lifetime. Both the gift tax1 and the estate tax2 exclude transfers made for "an adequate and full consideration in money or money's worth." In the estate tax this requirement is limited to deductions for claims based upon "a promise or agreement";3 but the consideration for the "promise or agreement" may not be the release of marital rights in the decedent's property.4 In the Wemyss and Merrill cases the question was whether the gift tax was applicable to premarital property settlements. If the standards of the estate tax were to be applied ex proprio vigore in gift tax cases, those transfers would be taxable because there was a "promise or agreement" touching marital rights in property. We sustained the tax, thus giving "adequate and full consideration in money or money's worth" the same meaning under both statutes insofar as premarital property settlements or agreements are concerned.The present case raises the question whether Wemyss and Merrill require the imposition of the gift tax in the type of post-nuptial settlement of property rights involved here.Petitioner divorced her husband, Reginald Wright, in Nevada in 1943. Both she and her husband had substantial property interests. They reached an understanding as respects the unscrambling of those interests, the settlement of all litigated claims to the separate properties, the assumption of obligations, and the transfer of properties.Wright received from petitioner the creation of a trust for his lifetime of the income from her remainder interest in a then-existing trust; an assumption by her of an indebtedness of his of $47,650; and her promise to pay him $416.66 a month for ten years.Petitioner received from Wright 21/90 of certain real property in controversy; a discontinuance of a partition suit then pending; an indemnification from and assumption by him of all liability on a bond and mortgage on certain real property in London, England; and an indemnification against liability in connection with certain real property in the agreement. It was found that the value of the property transferred to Wright exceeded that received by petitioner by $107,150. The Commissioner assessed a gift tax on the theory that any rights which Wright might have given up by entering into the agreement could not be adequate and full consideration.If the parties had without more gone ahead and voluntarily unravelled their business interests on the basis of this compromise, there would be no question that the gift tax would be payable. For there would have been a "promise or agreement" that effected a relinquishment of marital rights in property. It therefore would fall under the ban of the provision of the estate tax5 which by judicial construction has been incorporated into the gift tax statute.But the parties did not simply undertake a voluntary contractual division of their property interests. They were faced with the fact that Nevada law not only authorized but instructed the divorce court to decree a just and equitable disposition of both the community and the separate property of the parties.6 The agreement recited that it was executed in order to effect a settlement of the respective property rights of the parties "in the event a divorce should be decreed"; and it provided that the agreement should be submitted to the divorce court "for its approval." It went on to say, "It is of the essence of this agreement that the settlement herein provided for shall not become operative in any manner nor shall any of the Recitals or covenants herein become binding upon either party unless a decree of absolute divorce between the parties shall be entered in the pending Nevada action."If the agreement had stopped there and were in fact submitted to the court, it is clear that the gift tax would not be applicable. That arrangement would not be a "promise or agreement" in the statutory sense. It would be wholly conditional upon the entry of the decree; the divorce court might or might not accept the provisions of the arrangement as the measure of the respective obligations; it might indeed add to or subtract from them. The decree, not the arrangement submitted to the court, would fix the rights and obligations of the parties. That was the theory of Commissioner v. Maresi, 156 F.2d 929, and we think it sound.Even the Commissioner concedes that that result would be correct in case the property settlement was litigated in the divorce action. That was what happened in Commissioner v. Converse, 163 F.2d 131, where the divorce court decreed a lump-sum award in lieu of monthly payments provided by the separation agreement. Yet without the decree there would be no enforceable, existing agreement whether the settlement was litigated or unlitigated. Both require the approval of the court before an obligation arises. The happenstance that the divorce court might approve the entire settlement, or modify it in unsubstantial details, or work out material changes seems to us unimportant. In each case it is the decree that creates the rights and the duties; and a decree is not a "promise or agreement" in any sense - popular or statutory. But the present case is distinguished by reason of a further provision in the undertaking and in the decree. The former provided that "the covenants in this agreement shall survive any decree of divorce which may be entered." And the decree stated "It is ordered that said agreement and said trust agreements forming a part thereof shall survive this decree." The Court of Appeals turned the case on those provisions. It concluded that since there were two sanctions for the payments and transfers - contempt under the divorce decree and execution under the contract - they were founded not only on the decree but upon both the decree and a "promise or agreement." It therefore held the excess of the value of the property which petitioner gave her husband over what he gave her to be taxable as a gift. 178 F.2d 861.We, however, think that the gift tax statute is concerned with the source of rights, not with the manner in which rights at some distant time may be enforced. Remedies for enforcement will vary from state to state. It is "the transfer" of the property with which the gift tax statute is concerned,7 not the sanctions which the law supplies to enforce transfers. If "the transfer" of marital rights in property is effected by the parties, it is pursuant to a "promise or agreement" in the meaning of the statute. If "the transfer" is effected by court decree, no "promise or agreement" of the parties is the operative fact. In no realistic sense is a court decree a "promise or agreement" between the parties to a litigation. If finer, more legalistic lines are to be drawn, Congress must do it.If, as we hold, the case is free from any "promise or agreement" concerning marital rights in property, it presents no remaining problems of difficulty. The Treasury Regulations8 recognize as tax free "a sale, exchange, or other transfer of property made in the ordinary course of business (a transaction which is bona fide, at arm's length, and free from any donative intent)." This transaction is not "in the ordinary course of business" in any conventional sense. Few transactions between husband and wife ever would be; and those under the aegis of a divorce court are not. But if two partners on dissolution of the firm entered into a transaction of this character or if chancery did it for them, there would seem to be no doubt that the unscrambling of the business interests would satisfy the spirit of the Regulations. No reason is apparent why husband and wife should be under a heavier handicap absent a statute which brings all marital property settlements under the gift tax.We are now advised that since submission of the case on October 16, 1950, petitioner has died, and that it will take some weeks before an administrator of her estate can be appointed. Accordingly we enter our judgment as of October 16, 1950, in pursuance of the practice obtaining in those circumstances. See Mitchell v. Overman, ; McDonald v. Maxwell, . Reversed.

214 F. Supp. 244, reversed.John C. Danielson argued the cause for appellant. With him on the briefs was Jordan Jay Hillman.Frank M. Long argued the cause for appellees. With him on the brief were Philip H. Porter, R. K. Merrill and Richard R. Robinson.Solicitor General Cox, Assistant Attorney General Orrick, Lionel Kestenbaum, Robert W. Ginnane and Arthur Cerra filed a memorandum for the United States and the Interstate Commerce Commission.PER CURIAM.The judgment is reversed. Texas & P. R. Co. v. Gulf, C. & S. F. R. Co., .

[Footnote *] Together with No. 77-1164, Rogers et al. v. Friedman et al.; and No. 77-1186, Texas Optometric Assn., Inc. v. Rogers et al., also on appeal from the same court. Section 5.13 (d) of the Texas Optometry Act prohibits the practice of optometry under a trade name and 2.02 requires that four of the six members of the Texas Optometry Board, which regulates the practice of optometry in the State, be members of the Texas Optometric Association (TOA), a professional organization of optometrists. Rogers, a Board member but ineligible for membership in TOA because of noncompliance with the code of ethics required for membership, brought an action challenging the constitutionality of these provisions. A three-judge District Court held that 2.02 is related reasonably to the State's purpose of ensuring enforcement of the Act and therefore constitutional under the Equal Protection Clause of the Fourteenth Amendment, but that 5.13 (d) is an unconstitutional restriction of the "free flow of commercial information" under the First Amendment. Held: 1. Section 5.13 (d) is constitutional. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, , and Bates v. State Bar of Arizona, , distinguished. Pp. 8-16. (a) The use of a trade name in connection with optometrical practice conveys no information about the price and nature of the services offered by an optometrist until it acquires meaning over a period of time by associations formed in the minds of the public between the name and some standard of price or quality. Because these ill-defined associations of trade names with price and quality information can be manipulated by the users of trade names, there is a significant possibility that trade names will be used to mislead the public. Pp. 11-13. (b) The State's interest in protecting the public from such deceptive and misleading use of optometrical trade names is substantial and well demonstrated in this case, and the prohibition against the use of trade names is constitutionally permissible regulation in furtherance of this interest. Rather than stifling commercial speech, such prohibition ensures that information regarding optometrical services will be communicated more fully and accurately to consumers than it had been in the past. Pp. 13-16. 2. Section 2.02 is also constitutional. Pp. 17-19. (a) The history of the Texas Optometry Act shows that such provision is related reasonably to the State's legitimate purpose of securing a regulatory board that will administer the Act faithfully. Pp. 17-18. (b) While Rogers has a constitutional right to a fair and impartial hearing in any disciplinary proceeding conducted against him by the Texas Optometry Board, his challenge to the fairness of the Board does not arise from any disciplinary proceeding against him. Gibson v. Berryhill, , and Wall v. American Optometric Assn., 379 F. Supp. 175 (ND Ga.), summarily aff'd sub nom. Wall v. Hardwick, , distinguished. Pp. 18-19. 438 F. Supp. 428, affirmed in part and reversed and remanded in part.POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, WHITE, REHNQUIST, and STEVENS, JJ., joined, and in Part III of which MARSHALL and BLACKMUN, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in which MARSHALL, J., joined, post, p. 19.Larry Niemann argued the cause and filed briefs for appellant in No. 77-1186.Dorothy Prengler, Assistant Attorney General of Texas, argued the cause for appellants in No. 77-1163 and appellees in No. 77-1164. With her on the briefs were John L. Hill, Attorney General, David Kendall, First Assistant, and Steve Bickerstaff and Richard Arnett, Assistant Attorneys General.Robert Q. Keith argued the cause and filed briefs for appellants in No. 77-1164 and appellees in Nos. 77-1163 and 77-1186.Fn Fn Ellis Lyons, Bennett Boskey, Edward A. Groobert, and Edwin E. Huddleson III filed a brief for the American Optometric Assn. as amicus curiae urging reversal in Nos. 77-1163 and 77-1186 and affirmance in No. 77-1164.MR. JUSTICE POWELL delivered the opinion of the Court.Texas law prohibits the practice of optometry under a trade name. It also requires that four of the six members of the State's regulatory board, the Texas Optometry Board, be members of the Texas Optometric Association, a professional organization of optometrists. A three-judge District Court sustained the constitutionality of the statute governing the composition of the Texas Optometry Board against a challenge based on the First and Fourteenth Amendments. But it held that the prohibition of the practice of optometry under a trade name ran afoul of First Amendment protection of commercial speech. 438 F. Supp. 428 (ED Tex. 1977). These appeals and the cross-appeal bring both of the District Court's holdings before the Court.1 IThe Texas Legislature approved the Texas Optometry Act (Act) in 1969, repealing an earlier law governing the practice of optometry in the State. Section 2.01 of the Act establishes the Texas Optometry Board (Board) and 2.02 prescribes the qualifications for Board members.2 The Board is responsible for the administration of the Act, and has the authority to grant, renew, suspend, and revoke licenses to practice optometry in the State.3 The Act imposes numerous regulations on the practice of optometry,4 and on several aspects of the business of optometry.5 Many of the Act's business regulations are contained in 5.13, which restricts fee splitting by optometrists and forbids an optometrist to allow his name to be associated with any optometrical office unless he is present and practicing there at least half of the hours that the office is open or half of the hours that he practices, whichever is less. Section 5.13 (d), at issue here, prohibits the practice of optometry under an assumed name, trade name, or corporate name.6 The dispute in this case grows out of the schism between "professional" and "commercial" optometrists in Texas. Although all optometrists in the State must meet the same licensing requirements and are subject to the same laws regulating their practices, they have divided themselves informally into two groups according to their divergent approaches to the practice of optometry.7 Rogers, an advocate of the commercial practice of optometry and a member of the Board, commenced this action by filing a suit against the other five members of the Board. He sought declaratory and injunctive relief from the enforcement of 2.02 of the Act, prescribing the composition of the Board, and 5.13 (d) of the Act, prohibiting the practice of optometry under a trade name.Section 2.02 of the Act requires that four of the six members of the Board must be members of a state organization affiliated with the American Optometric Association (AOA). The only such organization is the Texas Optometric Association (TOA), membership in which is restricted to optometrists who comply with the Code of Ethics of the AOA. Rogers and his fellow commercial optometrists are ineligible for membership in TOA because their business methods are at odds with the AOA Code of Ethics. In his complaint, Rogers alleged that he is deprived of equal protection and due process because he is eligible for only two of the six seats on the Board, and because he is subject to regulation by a Board composed primarily of members of the professional faction. Regarding 5.13 (d), Rogers alleged that while the section prohibits optometrists from practicing under trade names, the prohibition is not extended to ophthalmologists. Rogers claimed that this disparity of treatment denies him the equal protection of the laws, as he is denied the right to conduct his optometrical practice as he has in the past under the name "Texas State Optical."The three-judge District Court that was convened to consider Rogers' challenge to the constitutionality of the Texas law granted two motions to intervene. The TOA intervened as a defendant, adopting without alteration the position taken by the individual members of the Board whom Rogers originally named as defendants. The Texas Senior Citizens Association (TSCA) intervened on behalf of Rogers. This intervenor claimed that its members have a Fourteenth Amendment right to representation of the general public on the Board, and that because 2.02 subjects "commercial" optometrists to regulation by "professional" optometrists, the statute discourages optometrists from communicating truthful commercial information to TSCA members. The TSCA also urged that the prohibition of the practice of optometry under a trade name violates the First Amendment right of its members to receive information about the availability of optometrical services.The District Court found that 2.02 is related reasonably to the State's purpose of ensuring enforcement of the Act and therefore constitutional under the Equal Protection Clause. As to the claim that a Board dominated by professional optometrists would treat commercial optometrists unfairly, the District Court held that any claim that non-TOA members did not receive due process when called before the Board could be settled when and if the problem arose.8 Concluding that the proffered justifications for 5.13 (d) were outweighed by the importance of the commercial speech in question, the District Court held 5.13 (d) unconstitutional and enjoined its enforcement by the Board.In No. 77-1164, Rogers and the TSCA appeal from the District Court's decision upholding the constitutionality of 2.02. In Nos. 77-1163 and 77-1186, the members of the Board other than Rogers, and the TOA, respectively, appeal from the decision striking down 5.13 (d) as unconstitutional. We noted probable jurisdiction, , and now affirm the decision in No. 77-1164 and reverse in Nos. 77-1163 and 77-1186. IIIn holding that 5.13 (d) infringes First Amendment rights, the District Court relied primarily on this Court's decisions in Bates v. State Bar of Arizona, , and Virginia Pharmacy Board v. Virginia Citizens Consumer Council, (1976.) A trade name is a form of advertising, it concluded, because after the name has been used for some time, people "identify the name with a certain quality of service and goods." It found specifically "that the Texas State Optical [TSO] name has come to communicate to the consuming public information as to certain standards of price and quality, and availability of particular routine services," and rejected the argument that the TSO name misleads the public as to the identity of the optometrists with whom it deals. Balancing the constitutional interests in the commercial speech in question against the State's interest in regulating it, the District Court held that the prohibition of the use of trade names by 5.13 (d) is an unconstitutional restriction of the "free flow of commercial information." 438 F. Supp., at 431.AA review of Virginia Pharmacy and Bates shows that the reliance on them by the court below, a reliance reasserted here by Rogers and the TSCA (the plaintiffs), was misplaced. At issue in Virginia Pharmacy was the validity of Virginia's law preventing advertising by pharmacists of the prices of prescription drugs. After establishing that the economic nature of the pharmacists' interest in the speech did not preclude First Amendment protection for their advertisements, the Court discussed the other interests in the advertisements that warranted First Amendment protection. To individual consumers, information about prices of prescription drugs at competing pharmacies "could mean the alleviation of physical pain or the enjoyment of basic necessities." 425 U.S., at 764. Society also has a strong interest in the free flow of commercial information, both because the efficient allocation of resources depends upon informed consumer choices and because "even an individual advertisement, though entirely `commercial,' may be of general public interest." Ibid. The Court acknowledged the important interest of the State in maintaining high standards among pharmacists, but concluded that this interest could not justify the ban on truthful price advertising when weighed against the First Amendment interests in the information conveyed.In the next Term, the Court applied the rationale of Virginia Pharmacy to the advertising of certain information by lawyers. After weighing the First Amendment interests identified in Virginia Pharmacy against the State's interests in regulating the speech in question, the Court concluded that the truthful advertising of prices at which routine legal services will be performed also is protected by the First Amendment. Bates v. State Bar of Arizona, supra.In both Virginia Pharmacy and Bates, we were careful to emphasize that "[s]ome forms of commercial speech regulation are surely permissible." Virginia Pharmacy, supra, at 770; accord, Bates, supra, at 383. For example, restrictions on the time, place, or manner of expression are permissible provided that "they are justified without reference to the content of the regulated speech, that they serve a significant governmental interest, and that in so doing they leave open ample alternative channels for communication of the information." Virginia Pharmacy, supra, at 771. Equally permissible are restrictions on false, deceptive, and misleading commercial speech."Untruthful speech, commercial or otherwise, has never been protected for its own sake. Gertz v. Robert Welch, Inc., ; Konigsberg v. State Bar, , and n. 10 (1961). Obviously, much commercial speech is not provably false, or even wholly false, but only deceptive or misleading. We foresee no obstacle to a State's dealing effectively with this problem. The First Amendment, as we construe it today, does not prohibit the State from insuring that the stream of commercial information flow cleanly as well as freely." Id., at 771-772 (footnote omitted); accord, Bates, supra, at 383. Regarding the permissible extent of commercial-speech regulation, the Court observed in Virginia Pharmacy that certain features of commercial speech differentiate it from other varieties of speech in ways that suggest that "a different degree of protection is necessary to insure that the flow of truthful and legitimate commercial information is unimpaired." 425 U.S., at 772 n. 24. Because it relates to a particular product or service, commercial speech is more objective, hence more verifiable, than other varieties of speech. Commercial speech, because of its importance to business profits, and because it is carefully calculated, is also less likely than other forms of speech to be inhibited by proper regulation. These attributes, the Court concluded, indicate that it is "appropriate to require that a commercial message appear in such a form ... as [is] necessary to prevent its being deceptive... . They may also make inapplicable the prohibition against prior restraints." Ibid.; see id., at 775-781 (STEWART, J., concurring).9 BOnce a trade name has been in use for some time, it may serve to identify an optometrical practice and also to convey information about the type, price, and quality of services offered for sale in that practice. In each role, the trade name is used as part of a proposal of a commercial transaction. Like the pharmacist who desired to advertise his prices in Virginia Pharmacy, the optometrist who uses a trade name "does not wish to editorialize on any subject, cultural, philosophical, or political. He does not wish to report any particularly newsworthy fact, or to make generalized observations even about commercial matters." Id., at 761. His purpose is strictly business. The use of trade names in connection with optometrical practice, then, is a form of commercial speech and nothing more.10 A trade name is, however, a significantly different form of commercial speech from that considered in Virginia Pharmacy and Bates. In those cases, the State had proscribed advertising by pharmacists and lawyers that contained statements about the products or services offered and their prices. These statements were self-contained and self-explanatory. Here, we are concerned with a form of commercial speech that has no intrinsic meaning. A trade name conveys no information about the price and nature of the services offered by an optometrist until it acquires meaning over a period of time by associations formed in the minds of the public between the name and some standard of price or quality.11 Because these ill-defined associations of trade names with price and quality information can be manipulated by the users of trade names, there is a significant possibility that trade names will be used to mislead the public.The possibilities for deception are numerous. The trade name of an optometrical practice can remain unchanged despite changes in the staff of optometrists upon whose skill and care the public depends when it patronizes the practice. Thus, the public may be attracted by a trade name that reflects the reputation of an optometrist no longer associated with the practice. A trade name frees an optometrist from dependence on his personal reputation to attract clients, and even allows him to assume a new trade name if negligence or misconduct casts a shadow over the old one. By using different trade names at shops under his common ownership, an optometrist can give the public the false impression of competition among the shops. The use of a trade name also facilitates the advertising essential to large-scale commercial practices with numerous branch offices, conduct the State rationally may wish to discourage while not prohibiting commercial optometrical practice altogether.The concerns of the Texas Legislature about the deceptive and misleading uses of optometrical trade names were not speculative or hypothetical, but were based on experience in Texas with which the legislature was familiar when in 1969 it enacted 5.13 (d). The forerunner of 5.13 (d) was adopted as part of a "Professional Responsibility Rule" by the Texas State Board of Examiners in Optometry in 1959.12 In a decision upholding the validity of the Rule, the Texas Supreme Court reviewed some of the practices that had prompted its adoption. Texas State Bd. of Examiners in Optometry v. Carp, 412 S. W. 2d 307, appeal dismissed and cert. denied, . One of the plaintiffs in that case, Carp, operated 71 optometrical offices in Texas under at least 10 different trade names. From time to time, he changed the trade names of various shops, though the licensed optometrists practicing in each shop remained the same. He purchased the practices of other optometrists and continued to practice under their names, even though they were no longer associated with the practice. In several instances, Carp used different trade names on offices located in close proximity to one another and selling the same optical goods and services. The offices were under common management, and had a common staff of optometrists, but the use of different trade names facilitated advertising that gave the impression of competition among the offices.The Texas court found that Carp used trade names to give a misleading impression of competitive ownership and management of his shops. It also found that Rogers, a party to this suit and a plaintiff in Carp, had used a trade name to convey the impression of standardized optometrical care. All 82 of his shops went under the trade name "Texas State Optical" or "TSO," and he advertised "scientific TSO eye examination[s]" available in every shop. 412 S. W. 2d, at 312. The TSO advertising was calculated as well, the court found, to give "the impression that [Rogers or one of his brothers] is present at a particular office. Actually they have neither been inside nor seen some of their eighty-two offices distributed generally over Texas." Id., at 313. Even if Rogers' use and advertising of the trade name were not in fact misleading, they were an example of the use of a trade name to facilitate the large-scale commercialization which enhances the opportunity for misleading practices.13 It is clear that the State's interest in protecting the public from the deceptive and misleading use of optometrical trade names is substantial and well demonstrated.14 We are convinced that 5.13 (d) is a constitutionally permissible state regulation in furtherance of this interest. We emphasize, in so holding, that the restriction on the use of trade names has only the most incidental effect on the content of the commercial speech of Texas optometrists. As noted above, a trade name conveys information only because of the associations that grow up over time between the name and a certain level of price and quality of service. Moreover, the information associated with a trade name is largely factual, concerning the kind and price of the services offered for sale. Since the Act does not prohibit or limit the type of informational advertising held to be protected in Virginia Pharmacy and Bates, the factual information associated with trade names may be communicated freely and explicitly to the public. An optometrist may advertise the type of service he offers, the prices he charges,15 and whether he practices as a partner, associate, or employee with other optometrists.16 Rather than stifling commercial speech, 5.13 (d) ensures that information regarding optometrical services will be communicated more fully and accurately to consumers than it had been in the past when optometrists were allowed to convey the information through unstated and ambiguous associations with a trade name. In sum, Texas has done no more than require that commercial information about optometrical services "appear in such a form ... as [is] necessary to prevent its being deceptive." Virginia Pharmacy, 425 U.S., at 772 n. 24.17 IIIWe stated the applicable constitutional rule for reviewing equal protection challenges to local economic regulations such as 2.02 in New Orleans v. Dukes, . "When local economic regulation is challenged solely as violating the Equal Protection Clause, this Court consistently defers to legislative determinations as to the desirability of particular statutory discriminations. See, e. g., Lehnhausen v. Lake Shore Auto Parts Co., . Unless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations and require only that the classification challenged be rationally related to a legitimate state interest." The history of the Act shows that 2.02 is related reasonably to the State's legitimate purpose of securing a Board that will administer the Act faithfully.Prior to 1967, the TOA dominated the State Board of Examiners; during that period, the State Board adopted various rules for the regulation of the optometrical profession, including the Professional Responsibility Rule. Between 1967 and 1969, the commercial optometrists secured a majority on the State Board and took steps to repeal the Professional Responsibility Rule. This precipitated a legislative struggle between the commercial and professional optometrists which ended in the passage of the Act in 1969. At that time the legislature enacted into law, with certain modifications, the Professional Responsibility Rule long supported by the TOA, and created the Board to administer the Act. In view of its experience with the commercial and professional optometrists preceding the passage of the Act,18 it was reasonable for the legislature to require that a majority of the Board be drawn from a professional organization that had demonstrated consistent support for the rules that the Board would be responsible for enforcing. Nor is there any constitutional basis for TSCA's due process claim that the legislature is required to place a representative of consumers on the Board.19 Although Rogers has no constitutional right to be regulated by a Board that is sympathetic to the commercial practice of optometry, he does have a constitutional right to a fair and impartial hearing in any disciplinary proceeding conducted against him by the Board. Gibson v. Berryhill, ; Wall v. American Optometric Assn., 379 F. Supp. 175 (ND Ga.), summarily aff'd sub nom. Wall v. Hardwick, . In both Gibson and Wall, however, disciplinary proceedings had been instituted against the plaintiffs, and the courts were able to examine in a particular context the possibility that the members of the regulatory board might have personal interests that precluded a fair and impartial hearing of the charges. Finding the presence of such prejudicial interests, it was appropriate for the courts to enjoin further proceedings against the plaintiffs. E. g., Gibson, supra, at 570, 578-579 In contrast, Rogers' challenge to the fairness of the Board does not arise from any disciplinary proceeding against him.20 IVThe portion of the District Court's judgment appealed from in No. 77-1164, sustaining the constitutionality of 2.02, is affirmed. That part of the District Court's judgment appealed from in Nos. 77-1163 and 77-1186, declaring 5.13 (d) unconstitutional insofar as it proscribes the use of trade names by optometrists, is reversed. The case is remanded with instructions to dissolve the injunction against the enforcement of 5.13 (d). So ordered.

Florida statutory provision proscribing "the abominable and detestable crime against nature, either with mankind or beast ...," in light of the State Supreme Court's longstanding construction as applying to copulation per os and per anum, held not unconstitutionally vague; and that court's later ruling after appellees' convictions for those offenses had become final holding the statute void for vagueness as applied to oral and anal sexual activity did not require reversal of appellees' convictions since the subsequent ruling was prospective only and at the time appellees committed the acts they were on clear notice that their conduct was criminal under the statute as then construed. 478 F.2d 390, reversed.PER CURIAM.In separate trials, appellees were convicted of violating Fla. Stat. 800.01 (1965), which proscribed "the abominable and detestable crime against nature, either with mankind or with beast ... ."1 Having exhausted state remedies,2 appellees sought federal habeas corpus, asserting, among other things, that the Florida statute was impermissibly vague. The writ was granted to both appellees. The Court of Appeals affirmed on the sole ground that 800.01 was unconstitutionally vague and void on its face for failure to give appellees adequate notice that the conduct for which they were convicted was forbidden by law. 478 F.2d 390 (CA5 1973).We reverse. We perceive no violation of the "underlying principle ... that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed." United States v. Harriss, . Stone was convicted for copulation per os and per anum, Huffman for copulation per anum. These very acts had long been held to constitute "the abominable and detestable crime against nature" under 800.01 and predecessor statutes. Delaney v. State, 190 So.2d 578 (Fla. Sup. Ct. 1966), appeal dismissed, , declared as much; and this had been the case since 1921 under Ephraim v. State, 82 Fla. 93, 89 So. 344 (1921). Delaney also held that there could be no complaint of vagueness or lack of notice that the defendant's conduct was criminal where the acts committed were among those that prior cases had held covered by the statute.Delaney and its supporting cases require reversal of the Court of Appeals. The judgment of federal courts as to the vagueness or not of a state statute must be made in the light of prior state constructions of the statute. For the purpose of determining whether a state statute is too vague and indefinite to constitute valid legislation "we must take the statute as though it read precisely as the highest court of the State has interpreted it." Minnesota ex rel. Pearson v. Probate Court, . When a state statute has been construed to forbid identifiable conduct so that "interpretation by [the state court] puts these words in the statute as definitely as if it had been so amended by the legislature," claims of impermissible vagueness must be judged in that light. Winters v. New York, . This has been the normal view in this Court. Fox v. Washington, ; Beauharnais v. Illinois, ; Mishkin v. New York, . The Court of Appeals, therefore, was not free to ignore Delaney and related cases; and as construed by those cases, 800.01 afforded appellees ample notice that their conduct was forbidden by law.Appellees rely on Franklin v. State, 257 So.2d 21 (Fla. Sup. Ct. 1971), to avoid the efficacy of prior constructions of 800.01. In that case, decided after appellees' convictions had become final, the Florida Supreme Court reconsidered Delaney and held that if 800.01 was intended to reach oral and anal sexual activity, that intention should appear on the face of the statute; otherwise it was void for vagueness and uncertainty in its language. But this holding did not remove the fact that when appellees committed the acts with which they were charged, they were on clear notice that their conduct was criminal under the statute as then construed. Thus, the Florida Supreme Court expressly ruled in Franklin that "this judgment holding the felony statute void is not retroactive, but prospective only," id., at 24; and subsequently the Florida courts denied appellee Stone's request for relief based on the Franklin case. Stone v. State, supra, n. 2. The State Supreme Court did not overrule Delaney with respect to pre-Franklin convictions. Nor was it constitutionally compelled to do so or to make retroactive its new construction of the Florida statute: "A state in defining the limits of adherence to precedent may make a choice for itself between the principle of forward operation and that of relation backward. It may say that decisions of its highest court, though later overruled, are law none the less for intermediate transactions." Great Northern R. Co. v. Sunburst Oil & Refining Co., . Contrary to the judgment of the Court of Appeals, 800.01 was not void at the time appellees performed the acts for which they were convicted. The motion of appellees to proceed in forma pauperis is granted and the judgment of the Court of Appeals is reversed. So ordered.

Title 18 U.S.C. 1725 prohibits the deposit of unstamped "mailable matter" in a letterbox approved by the United States Postal Service, and violations are subject to a fine. The local Postmaster notified appellee civic association that its practice of delivering messages to residents by placing unstamped notices in the letterboxes of private homes violated 1725, and advised it that if it and other members of appellee council of civic associations continued such practice it could result in a fine. Appellees then brought suit in Federal District Court against the Postal Service for declaratory and injunctive relief, contending that the enforcement of 1725 would inhibit their communications with local residents and would thereby deny them the freedom of speech and press secured by the First Amendment. The District Court ultimately declared 1725 unconstitutional as applied to appellees and the council's member associations and enjoined the Postal Service from enforcing it as to them.Held: Section 1725 does not unconstitutionally abridge appellees' First Amendment rights, inasmuch as neither the enactment nor the enforcement of 1725 is geared in any way to the content of the message sought to be placed in the letterbox. Pp. 120-134. (a) When a letterbox is designated an "authorized depository" of the mail by the Postal Service, it becomes an essential part of the nationwide system for the delivery and receipt of mail. In effect, the postal customer, although he pays for the physical components of the "authorized depository," agrees to abide by the Postal Service's regulations in exchange for the Postal Service agreeing to deliver and pick up his mail. A letterbox, once designated an "authorized depository," does not at the same time transform itself into a "public forum" of some limited nature to which the First Amendment guarantees access to all comers. Just because it may be somewhat more efficient for appellees to place their messages in letterboxes does not mean that there is a First Amendment right to do so. The First Amendment does not guarantee access to property simply because it is owned or controlled by the Government. Pp. 126-131. (b) Congress, in exercising its constitutional authority to develop and operate a national postal system, may properly legislate with the generality of cases in mind, and should not be put to the test of defending in one township after another the constitutionality of a statute under the traditional "time, place, and manner" analysis. If Congress and the Postal Service are to operate as efficiently as possible an extensive system for the delivery of mail, they must adopt regulations of a general character having uniform applicability throughout the Nation. In this case, Congress was legislating to promote what it considered to be the efficiency of the Postal Service, and was not laying down a generalized prohibition against the distribution of leaflets or the discussion of issues in traditional public forums. Pp. 132-133. (c) While Congress may not by its own ipse dixit destroy the "public forum" status of streets and parks, a letterbox may not properly be analogized to streets and parks. Pp. 133-134. 490 F. Supp. 157, reversed.REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, and POWELL, JJ., joined. BRENNAN, J., post, p. 134, and WHITE, J., post, p. 141, filed opinions concurring in the judgment. MARSHALL, J., post, p. 142, STEVENS, J., post, p. 152, filed dissenting opinions.Edwin S. Kneedler argued the cause for appellant. On the briefs were Solicitor General McCree, Acting Assistant Attorney General Martin, Deputy Solicitor General Geller, Peter Buscemi, William Kanter, and John C. Hoyle.Jon H. Hammer argued the cause for appellees. With him on the briefs was E. Payson Clark, Jr.* [Footnote *] Samuel J. Cohen filed a brief for the National Association of Letter Carriers, AFL-CIO, as amicus curiae urging reversal.Briefs of amici curiae urging affirmance were filed by Adam Yarmolinsky and Stephen T. Owen for Independent Sector et al.; and by John R. Myer, David A. Webster, Virginia S. Taylor, E. Richard Larson, and Bruce J. Ennis for the Piedmont Heights Civil Club, Inc., et al.JUSTICE REHNQUIST delivered the opinion of the Court.We noted probable jurisdiction to decide whether the United States District Court for the Southern District of New York correctly determined that 18 U.S.C. 1725, which prohibits the deposit of unstamped "mailable matter" in a letterbox approved by the United States Postal Service, unconstitutionally abridges the First Amendment rights of certain civic associations in Westchester County, N. Y. . Jurisdiction of this Court rests on 28 U.S.C. 1252.IAppellee Council of Greenburgh Civic Associations (Council) is an umbrella organization for a number of civic groups in Westchester County, N. Y. Appellee Saw Mill Valley Civic Association is one of the Council's member groups. In June 1976, the Postmaster in White Plains, N. Y., notified the Chairman of the Saw Mill Valley Civic Association that the association's practice of delivering messages to local residents by placing unstamped notices and pamphlets in the letterboxes of private homes was in violation of 18 U.S.C. 1725, which provides: "Whoever knowingly and willfully deposits any mailable matter such as statements of accounts, circulars, sale bills, or other like matter, on which no postage has been paid, in any letter box established, approved, or accepted by the Postal Service for the receipt or delivery of mail matter on any mail route with intent to avoid payment of lawful postage thereon, shall for each such offense be fined not more than $300." Saw Mill Valley Civic Association and other Council members were advised that if they continued their practice of placing unstamped notices in the letterboxes of private homes it could result in a fine not to exceed $300.In February 1977, appellees filed this suit in the District Court for declaratory and injunctive relief from the Postal Service's threatened enforcement of 1725. Appellees contended that the enforcement of 1725 would inhibit their communication with residents of the town of Greenburgh and would thereby deny them the freedom of speech and freedom of the press secured by the First Amendment.The District Court initially dismissed the complaint for failure to state a claim on which relief could be granted. 448 F. Supp. 159 (SDNY 1978). On appeal, however, the Court of Appeals for the Second Circuit reversed and remanded the case to the District Court to give the parties "an opportunity to submit proof as to the extent of the handicap to communication caused by enforcement of the statute in the area involved, on the one hand, and the need for the restriction for protection of the mails, on the other." 586 F.2d 935, 936 (1978). In light of this language, it was not unreasonable for the District Court to conclude that it had been instructed to "try" the statute, much as more traditional issues of fact are tried by a court, and that is what the District Court proceeded to do.In the proceedings on remand, the Postal Service offered three general justifications for 1725: (1) that 1725 protects mail revenues; (2) that it facilitates the efficient and secure delivery of the mails; and (3) that it promotes the privacy of mail patrons. More specifically, the Postal Service argued that elimination of 1725 could cause the overcrowding of mailboxes due to the deposit of civic association notices. Such overcrowding would in turn constitute an impediment to the delivery of the mails. Testimony was offered that 1725 aided the investigation of mail theft by restricting access to letterboxes, thereby enabling postal investigators to assume that anyone other than a postal carrier or a householder who opens a mailbox may be engaged in the violation of the law. On this point, a postal inspector testified that 10% of the arrests made under the external mail theft statute, 18 U.S.C. 1708, resulted from surveillance-type operations which benefit from enforcement of 1725. Testimony was also introduced that 1725 has been particularly helpful in the investigation of thefts of government benefit checks from letterboxes.1 The Postal Service introduced testimony that it would incur additional expense if 1725 were either eliminated or held to be inapplicable to civic association materials. If delivery in mailboxes were expanded to permit civic association circulars - but not other types of nonmailable matter such as commercial materials - mail carriers would be obliged to remove and examine individual unstamped items found in letterboxes to determine if their deposit there was lawful. Carriers would also be confronted with a larger amount of unstamped mailable matter which they would be obliged to separate from outgoing mail. The extra time resulting from these additional activities. When computed on a nationwide basis, would add substantially to the daily cost of mail delivery.The final justification offered by the Postal Service for 1725 was that the statute provided significant protection for the privacy interests of postal customers. Section 1725 provides postal customers the means to send and receive mails without fear of their correspondence becoming known to members of the community. The Postal Service also argued at trial that the enforcement of 1725 left appellees with ample alternative means of delivering their message. The appellees can deliver their messages either by paying postage, by hanging their notices on doorknobs, by placing their notices under doors or under a doormat, by using newspaper or nonpostal boxes affixed to houses or mailbox posts, by telephoning their constituents, by engaging in person-to-person delivery in public areas, by tacking or taping their notices on a door post or letterbox post, or by placing advertisements in local newspapers. A survey was introduced comparing the effectiveness of certain of these alternatives which arguably demonstrated that between 70-75% of the materials placed under doors or doormats or hung from doorknobs were found by the homeowner whereas approximately 82% of the items placed in letterboxes were found. This incidental difference, it was argued, cannot be of constitutional significance.The District Court found the above arguments of the Postal Service insufficient to sustain the constitutionality of 1725 at least as applied to these appellees. 490 F. Supp. 157 (1980). Relying on the earlier opinion of the Court of Appeals, the District Court noted that the legal standard it was to apply would give the appellees relief if the curtailment of their interest in free expression resulting from enforcement of 1725 substantially outweighed the Government's interests in the effective delivery and protection of the mails. The District Court concluded that the appellees had satisfied this standard.The District Court based its decision on several findings. The court initially concluded that because civic associations generally have small cash reserves and cannot afford the applicable postage rates, mailing of the appellees' message would be financially burdensome. Similarly, because of the relatively slow pace of the mail, use of the mails at certain times would impede the appellees' ability to communicate quickly with their constituents. Given the widespread awareness of the high cost and limited celerity of the mails, the court probably could have taken judicial notice of both of these findings.The court also found that none of the alternative means of delivery suggested by the Postal Service were "nearly as effective as placing civic association flyers in approved mailboxes; so that restriction on the [appellees'] delivery methods to such alternatives also constitutes a serious burden on [appellees'] ability to communicate with their constituents." 490 F. Supp., at 160.2 Accordingly, the District Court declared 1725 unconstitutional as applied to appellees and the Council's member associations and enjoined the Postal Service from enforcing it as to them.IIThe present case is a good example of Justice Holmes' aphorism that "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, . For only by review of the history of the postal system and its present statutory and regulatory scheme can the constitutional challenge to 1725 be placed in its proper context.By the early 18th century, the posts were made a sovereign function in almost all nations because they were considered a sovereign necessity. Government without communication is impossible, and until the invention of the telephone and telegraph, the mails were the principal means of communication. Kappel Commission, Toward Postal Excellence, Report of the President's Commission on Postal Organization 47 (Comm. Print 1968). Little progress was made in developing a postal system in Colonial America until the appointment of Benjamin Franklin, formerly Postmaster at Philadelphia, as Deputy Postmaster General for the American Colonies in 1753. In 1775, Franklin was named the first Postmaster General by the Continental Congress, and, because of the trend toward war, the Continental Congress undertook its first serious effort to establish a secure mail delivery organization in order to maintain communication between the States and to supply revenue for the Army. D. Adie, An Evaluation of Postal Service Wage Rates 2 (American Enterprise Institute, 1977).Given the importance of the post to our early Nation, it is not surprising that when the United States Constitution was ratified in 1789. Art. I, 8, provided Congress the power "To establish Post Offices and post Roads" and "To make all Laws which shall be necessary and proper" for executing this task. The Post Office played a vital yet largely unappreciated role in the development of our new Nation. Stagecoach trails which were improved by the Government to become post roads quickly became arteries of commerce. Mail contracts were of great assistance to the early development of new means of transportation such as canals, railroads, and eventually airlines. Kappel Commission. Toward Postal Excellence, supra, at 46. During this developing stage, the Post Office was to many citizens situated across the country the most visible symbol of national unity. Ibid.The growth of postal service over the past 200 years has been remarkable. Annual revenues increased from less than $40 million in 1790 to close to $200 million in 1829 when the Postmaster General first became a member of the Cabinet. However, expenditures began exceeding revenues as early as the 1820's as the postal structure struggled to keep pace with the rapid growth of the country westward. Because of this expansion, delivery costs to the South and West raised average postal costs nationally. To prevent competition from private express services, Congress passed the Postal Act of 1845, which prohibited competition in letter mail and established what is today referred to as the "postal monopoly."More recently, to deal with the problems of increasing deficits and shortcomings in the overall management and efficiency of the Post Office. Congress passed the Postal Reorganization Act of 1970. This Act transformed the Post Office Department into a Government-owned corporation called the United States Postal Service. The Postal Service today is among the largest employers in the world, with a work force nearing 700,000 processing 106.3 billion pieces of mail each year. Ann. Rep. of the Postmaster General 2, 11 (1980). The Postal Service is the Nation's largest user of floor space, and the Nation's largest nonmilitary purchaser of transport, operating more than 200,000 vehicles. Its rural carriers alone travel over 21 million miles each day and its city carriers walk or drive another million miles a day. D. Adie, An Evaluation of Postal Service Wage Rates, supra, at 1. Its operating budget in fiscal 1980 exceeded $17 billion. Ann. Rep. of the Postmaster General, supra, at 2.Not surprisingly, Congress has established a detailed statutory and regulatory scheme to govern this country's vast postal system. See 39 U.S.C. 401 et seq. and the Domestic Mail Manual (DMM), which has been incorporated by reference in the Code of Federal Regulations, 39 CFR pt. 3 (1980). Under 39 U.S.C. 403 (a), the Postal Service is directed to "plan, develop, promote, and provide adequate and efficient postal services at fair and reasonable rates and fees." Section 403 (b) (1) similarly directs the Postal Service "to maintain an efficient system of collection, sorting, and delivery of the mail nationwide," and under 39 U.S.C. 401 the Postal Service is broadly empowered to adopt rules and regulations designed to accomplish the above directives.Acting under this authority, the Postal Service has provided by regulation that both urban and rural postal customers must provide appropriate mail receptacles meeting detailed specifications concerning size, shape, and dimensions. DMM 155.41, 155.43, 156.311, 156.51, and 156.54. By regulation, the Postal Service has also provided that "[e]very letter box or other receptacle intended or used for the receipt or delivery of mail on any city delivery route, rural delivery route, highway contract route, or other mail route is designated an authorized depository for mail within the meaning of 18 U.S.C. [] 1725." DMM 151.1. A letterbox provided by a postal customer which meets the Postal Service's specifications not only becomes part of the Postal Service's nationwide system for the receipt and delivery of mail, but is also afforded the protection of the federal statutes prohibiting the damaging or destruction of mail deposited therein. See 18 U.S.C. 1702, 1705, and 1708.It is not without irony that this elaborate system of regulation, coupled with the historic dependence of the Nation on the Postal Service, has been the causal factor which led to this litigation. For it is because of the very fact that virtually every householder wishes to have a mailing address and a receptacle in which mail sent to that address will be deposited by the Postal Service that the letterbox or other mail receptacle is attractive to those who wish to convey messages within a locality but do not wish to purchase the stamp or pay such other fee as would permit them to be transmitted by the Postal Service. To the extent that the "alternative means" eschewed by the appellees and found to be inadequate alternatives by the District Court are in fact so, it is in no small part attributable to the fact that the typical mail patron first looks for written communications from the "outside world" not under his doormat, or inside the screen of his front door, but in his letterbox. Notwithstanding the increasing frequency of complaints about the rising cost of using the Postal Service, and the uncertainty of the time which passes between mailing and delivery, written communication making use of the Postal Service is so much a fact of our daily lives that the mail patron watching for the mail-truck, or the jobholder returning from work looking in his letterbox before he enters his house, are commonplaces of our society. Indeed, according to the appellees the receptacles for mailable matter are so superior to alternative efforts to communicate printed matter that all other alternatives for deposit of such matter are inadequate substitutes for postal letterboxes.Postal Service regulations, however, provide that letterboxes and other receptacles designated for the delivery of mail "shall be used exclusively for matter which bears postage." DMM 151.2.3 Section 1725 merely reinforces this regulation by prohibiting, under pain of criminal sanctions, the deposit into a letterbox of any mailable matter on which postage has not been paid. The specific prohibition contained in 1725 is also repeated in the Postal Service regulations at DMM 146.21.Section 1725 was enacted in 1934 "to curb the practice of depositing statements of account, circulars, sale bills, etc., in letter boxes established and approved by the Postmaster General for the receipt or delivery of mail matter without payment of postage thereon by making this a criminal offense." H. R. Rep. No. 709, 73d Cong., 2d Sess., 1 (1934). Both the Senate and House Committees on Post Offices and Post Roads explained the principal motivation for 1725 as follows: "Business concerns, particularly utility companies, have within the last few years adopted the practice of having their circulars, statements of account, etc., delivered by private messenger, and have used as receptacles the letter boxes erected for the purpose of holding mail matter and approved by the Post Office Department for such purpose. This practice is depriving the Post Office Department of considerable revenue on matter which would otherwise go through the mails, and at the same time is resulting in the stuffing of letter boxes with extraneous matter." Ibid.; S. Rep. No. 742, 73d Cong., 2d Sess., 1 (1934). Nothing in any of the legislation or regulations recited above requires any person to become a postal customer. Anyone is free to live in any part of the country without having letters or packages delivered or received by the Postal Service by simply failing to provide the receptacle for those letters and packages which the statutes and regulations require. Indeed, the provision for "General Delivery" in most post offices enables a person to take advantage of the facilities of the Postal Service without ever having provided a receptacle at or near his premises conforming to the regulations of the Postal Service. What the legislation and regulations do require is that those persons who do wish to receive and deposit their mail at their home or business do so under the direction and control of the Postal Service.IIIAs early as the last century, this Court recognized the broad power of Congress to act in matters concerning the posts: "The power vested in Congress `to establish postoffices and post-roads' has been practically construed, since the foundation of the government, to authorize not merely the designation of the routes over which the mail shall be carried, and the offices where letters and other documents shall be received to be distributed or forwarded, but the carriage of the mail, and all measures necessary to secure its safe and speedy transit, and the prompt delivery of its contents. The validity of legislation describing what should be carried, and its weight and form, and the charges to which it should be subjected, has never been questioned... . The power possessed by Congress embraces the regulation of the entire Postal System of the country. The right to designate what shall be carried necessarily involves the right to determine what shall be excluded." Ex parte Jackson, . However broad the postal power conferred by Art. I may be, it may not of course be exercised by Congress in a manner that abridges the freedom of speech or of the press protected by the First Amendment to the Constitution. In this case we are confronted with the appellees' assertion that the First Amendment guarantees them the right to deposit, without payment of postage, their notices, circulars, and flyers in letterboxes which have been accepted as authorized depositories of mail by the Postal Service.4 In addressing appellees' claim, we note that we are not here confronted with a regulation which in any way prohibits individuals from going door-to-door to distribute their message or which vests unbridled discretion in a governmental official to decide whether or not to permit the distribution to occur. We are likewise not confronted with a regulation which in any way restricts the appellees' right to use the mails. The appellees may mail their civic notices in the ordinary fashion, and the Postal Service will treat such notices identically with all other mail without regard to content. There is no claim that the Postal Service treats civic notices, because of their content, any differently from the way it treats any of the other mail it processes. Admittedly, if appellees do choose to mail their notices, they will be required to pay postage in a manner identical to other Postal Service patrons, but appellees do not challenge the imposition of a fee for the services provided by the Postal Service.5 What is at issue in this case is solely the constitutionality of an Act of Congress which makes it unlawful for persons to use, without payment of a fee, a letterbox which has been designated an "authorized depository" of the mail by the Postal Service. As has been previously explained, when a letterbox is so designated, it becomes an essential part of the Postal Service's nationwide system for the delivery and receipt of mail. In effect, the postal customer, although he pays for the physical components of the "authorized depository," agrees to abide by the Postal Service's regulations in exchange for the Postal Service agreeing to deliver and pick up his mail.Appellees' claim is undermined by the fact that a letterbox, once designated an "authorized depository," does not at the same time undergo a transformation into a "public forum" of some limited nature to which the First Amendment guarantees access to all comers. There is neither historical nor constitutional support for the characterization of a letterbox as a public forum. Letterboxes are an essential part of the nationwide system for the delivery and receipt of mail, and since 1934 access to them has been unlawful except under the terms and conditions specified by Congress and the Postal Service. As such, it is difficult to accept appellees' assertion that because it may be somewhat more efficient to place their message in letterboxes there is a First Amendment right to do so. The underlying rationale of appellees' argument would seem to foreclose Congress or the Postal Service from requiring in the future that all letterboxes contain locks with keys being available only to the homeowner and the mail carrier. Such letterboxes are presently found in many apartment buildings, and we do not think their presence offends the First Amendment to the United States Constitution. Letterboxes which lock, however, have the same effect on civic associations that wish access to them as does the enforcement of 1725. Such letterboxes also accomplish the same purpose - that is, they protect mail revenues while at the same time facilitating the secure and efficient delivery of the mails. We do not think the First Amendment prohibits Congress from choosing to accomplish these purposes through legislation as opposed to lock and key.Indeed, it is difficult to conceive of any reason why this Court should treat a letterbox differently for First Amendment access purposes than it has in the past treated the military base in Greer v. Spock, , the jail or prison in Adderley v. Florida, , and Jones v. North Carolina Prisoners' Union, , or the advertising space made available in city rapid transit cars in Lehman v. City of Shaker Heights, . In all these cases, this Court recognized that the First Amendment does not guarantee access to property simply because it is owned or controlled by the government. In Greer v. Spock, supra, the Court cited approvingly from its earlier opinion in Adderley v. Florida, supra, wherein it explained that "`[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.'" 424 U.S., at 836.6 This Court has not hesitated in the past to hold invalid laws which it concluded granted too much discretion to public officials as to who might and who might not solicit individual homeowners, or which too broadly inhibited the access of persons to traditional First Amendment forums such as the public streets and parks. See, e. g., Village of Schaumburg v. Citizens for a Better Environment, ; Hague v. CIO, ; Schneider v. State, ; Martin v. City of Struthers, ; Lovell v. City of Griffin, ; and Police Department of Chicago v. Mosley, . But it is a giant leap from the traditional "soapbox" to the letterbox designated as an authorized depository of the United States mails, and we do not believe the First Amendment requires us to make that leap.7 IVIt is thus unnecessary for us to examine 1725 in the context of a "time, place, and manner" restriction on the use of the traditional "public forums" referred to above. This Court has long recognized the validity of reasonable time, place, and manner regulations on such a forum so long as the regulation is content-neutral, serves a significant governmental interest, and leaves open adequate alternative channels for communication. See, e. g., Consolidated Edison Co. v. Public Service Comm'n, ; Linmark Associates, Inc. v. Willingboro, ; Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., ; Grayned v. City of Rockford, ; Cox v. New Hampshire, . But since a letterbox is not traditionally such a "public forum," the elaborate analysis engaged in by the District Court was, we think, unnecessary. To be sure, if a governmental regulation is based on the content of the speech or the message, that action must be scrutinized more carefully to ensure that communication has not been prohibited "`merely because public officials disapprove the speaker's view.'" Consolidated Edison Co. v. Public Service Comm'n, supra, at 536, quoting Niemotko v. Maryland, (Frankfurter, J., concurring in result). But in this case there simply is no question that 1725 does not regulate speech on the basis of content. While the analytical line between a regulation of the "time, place, and manner" in which First Amendment rights may be exercised in a traditional public forum, and the question of whether a particular piece of personal or real property owned or controlled by the government is in fact a "public forum" may blur at the edges, we think the line is nonetheless a workable one. We likewise think that Congress may, in exercising its authority to develop and operate a national postal system, properly legislate with the generality of cases in mind, and should not be put to the test of defending in one township after another the constitutionality of a statute under the traditional "time, place, and manner" analysis. This Court has previously acknowledged that the "guarantees of the First Amendment have never meant `that people who want to propagandize protests or views have a constitutional right to do so whenever and however and wherever they please.'" Greer v. Spock, 424 U.S., at 836, quoting Adderley v. Florida, 385 U.S., at 48. If Congress and the Postal Service are to operate as efficiently as possible a system for the delivery of mail which serves a Nation extending from the Atlantic Ocean to the Pacific Ocean, from the Canadian boundary on the north to the Mexican boundary on the south, it must obviously adopt regulations of general character having uniform applicability throughout the more than three million square miles which the United States embraces. In so doing, the Postal Service's authority to impose regulations cannot be made to depend on all of the variations of climate, population, density, and other factors that may vary significantly within a distance of less than 100 miles.VFrom the time of the issuance of the first postage stamp in this country at Brattleboro, Vt., in the fifth decade of the last century, through the days of the governmentally subsidized "Pony Express" immediately before the Civil War, and through the less admirable era of the Star Route Mail Frauds in the latter part of that century, Congress has actively exercised the authority conferred upon it by the Constitution "to establish Post Offices and Post Roads" and "to make all laws which shall be necessary and proper" for executing this task. While Congress, no more than a suburban township, may not by its own ipse dixit destroy the "public forum" status of streets and parks which have historically been public forums, we think that for the reasons stated a letterbox may not properly be analogized to streets and parks. It is enough for our purposes that neither the enactment nor the enforcement of 1725 was geared in any way to the content of the message sought to be placed in the letterbox. The judgment of the District Court is accordingly. Reversed.

In filing his petition under Chapter 7 of the Bankruptcy Code, petitioner Marrama misrepresented the value of his Maine property and that he had not transferred it during the preceding year. Respondent DeGiacomo, the trustee of Marrama's estate, stated his intention to recover the Maine property as an estate asset. Thereafter, Marrama sought to convert the proceeding to Chapter 13, but the trustee and respondent bank, Marrama's principal creditor, objected, contending that the request to convert was made in bad faith and would constitute an abuse of the bankruptcy process. The Bankruptcy Judge denied Marrama's request, finding bad faith. Affirming, the First Circuit's Bankruptcy Appellate Panel rejected Marrama's argument that he had an absolute right to convert under §706(a) of the Bankruptcy Code, which provides that a Chapter 7 debtor "may convert a case" so long as it has not been converted previously, and that a waiver of the right to convert is unenforceable. The First Circuit also rejected that argument, emphasizing, inter alia, that a bankruptcy court has the authority to dismiss a Chapter 13 petition based on a debtor's bad faith, and that a first-time motion to convert a Chapter 7 case to Chapter 13 should not be treated differently from the filing of a Chapter 13 petition in the first instance. Held: Marrama forfeited his right to proceed under Chapter 13. The broad description of the right to convert as "absolute" in Senate and House Committee Reports fails to give full effect to the express limitation of §706(d), which provides that "a case may not be converted to a case under another chapter of this title unless the debtor may be a debtor under such chapter." That text expressly conditioned Marrama's right to convert on his ability to qualify as a Chapter 13 "debtor." Marrama does not qualify as such a debtor under §1307(c), which provides that a Chapter 13 proceeding may be either dismissed or converted to a Chapter 7 proceeding "for cause." Bankruptcy courts routinely treat dismissal for prepetition bad-faith conduct as implicitly authorized by the words "for cause," and a ruling that an individual's Chapter 13 case should be dismissed or converted to Chapter 7 because of bad faith is tantamount to a ruling that the individual does not qualify as a Chapter 13 debtor. Congress gave " 'honest but unfortunate debtor[s]' " Grogan v. Garner, 498 U. S. 279, 287, the chance to repay their debts should they acquire the means to do so, and §706(a) protects a debtor from being forced to waive that right. However, a provision protecting a borrower from waiver is not a shield against forfeiture. Neither §706 nor §1307(c) limits a court's authority to take appropriate action in response to fraudulent conduct by the atypical litigant who has demonstrated that he is not entitled to the relief available to the typical debtor. On the contrary, bankruptcy judges' broad authority to take necessary or appropriate action "to prevent an abuse of process" described in Code §105(a) is adequate to authorize an immediate denial of a §706 motion to convert in lieu of a conversion order that merely postpones the allowance of equivalent relief and may give a debtor an opportunity to take action prejudicial to creditors. Pp. 5-10.430 F. 3d 474, affirmed. Stevens, J., delivered the opinion of the Court, in which Kennedy, Souter, Ginsburg, and Breyer, JJ., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., and Scalia and Thomas, JJ., joined.ROBERT LOUIS MARRAMA, PETITIONER v. CITIZENSBANK OF MASSACHUSETTS et al.on writ of certiorari to the united states court of appeals for the first circuit[February 21, 2007] Justice Stevens delivered the opinion of the Court. The principal purpose of the Bankruptcy Code is to grant a " 'fresh start' " to the " 'honest but unfortunate debtor.' " Grogan v. Garner, 498 U. S. 279, 286, 287 (1991). Both Chapter 7 and Chapter 13 of the Code permit an insolvent individual to discharge certain unpaid debts toward that end. Chapter 7 authorizes a discharge of prepetition debts following the liquidation of the debtor's assets by a bankruptcy trustee, who then distributes the proceeds to creditors. Chapter 13 authorizes an individual with regular income to obtain a discharge after the successful completion of a payment plan approved by the bankruptcy court. Under Chapter 7 the debtor's non-exempt assets are controlled by the bankruptcy trustee; under Chapter 13 the debtor retains possession of his property. A proceeding that is commenced under Chapter 7 may be converted to a Chapter 13 proceeding and vice versa. 11 U. S. C. §§706(a), 1307(a) and (c). An issue that has arisen with disturbing frequency is whether a debtor who acts in bad faith prior to, or in the course of, filing a Chapter 13 petition by, for example, fraudulently concealing significant assets, thereby forfeits his right to obtain Chapter 13 relief. The issue may arise at the outset of a Chapter 13 case in response to a motion by creditors or by the United States trustee either to dismiss the case or to convert it to Chapter 7, see §1307(c). It also may arise in a Chapter 7 case when a debtor files a motion under §706(a) to convert to Chapter 13. In the former context, despite the absence of any statutory provision specifically addressing the issue, the federal courts are virtually unanimous that prepetition bad-faith conduct may cause a forfeiture of any right to proceed with a Chapter 13 case.1 In the latter context, however, some courts have suggested that even a bad-faith debtor has an absolute right to convert at least one Chapter 7 proceeding into a Chapter 13 case even though the case will thereafter be dismissed or immediately returned to Chapter 7.2 We granted certiorari to decide whether the Code mandates that procedural anomaly. 547 U. S. ____ (2006).I On March 11, 2003, petitioner, Robert Marrama, filed a voluntary petition under Chapter 7, thereby creating an estate consisting of all his property "wherever located and by whomever held." 11 U. S. C. §541(a). Respondent Mark DeGiacomo is the trustee of that estate. Respondent Citizens Bank of Massachusetts (hereinafter Bank) is the principal creditor. In verified schedules attached to his petition, Marrama made a number of statements about his principal asset, a house in Maine, that were misleading or inaccurate. For instance, while he disclosed that he was the sole beneficiary of the trust that owned the property, he listed its value as zero. He also denied that he had transferred any property other than in the ordinary course of business during the year preceding the filing of his petition. Neither statement was true. In fact, the Maine property had substantial value, and Marrama had transferred it into the newly created trust for no consideration seven months prior to filing his Chapter 13 petition. Marrama later admitted that the purpose of the transfer was to protect the property from his creditors. After Marrama's examination at the meeting of creditors, see 11 U. S. C. §341, the trustee advised Marrama's counsel that he intended to recover the Maine property as an asset of the estate. Thereafter, Marrama filed a "Verified Notice of Conversion to Chapter 13." Pursuant to Federal Rule of Bankruptcy Procedure 1017(c)(2), the notice of conversion was treated as a motion to convert, to which both the trustee and the Bank filed objections. Relying primarily on Marrama's attempt to conceal the Maine property from his creditors,3 the trustee contended that the request to convert was made in bad faith and would constitute an abuse of the bankruptcy process. The Bank opposed the conversion on similar grounds. At the hearing on the conversion issue, Marrama explained through counsel that his misstatements about the Maine property were attributable to "scrivener's error," that he had originally filed under Chapter 7 rather than Chapter 13 because he was then unemployed, and that he had recently become employed and was therefore eligible to proceed under Chapter 13.4 The Bankruptcy Judge rejected these arguments, ruling that there is no "Oops" defense to the concealment of assets and that the facts established a "bad faith" case. App. 34a-35a. The judge denied the request for conversion. Marrama's principal argument on appeal to the Bankruptcy Appellate Panel for the First Circuit5 was that he had an absolute right to convert his case from Chapter 7 to Chapter 13 under the plain language of §706(a) of the Code. The panel affirmed the decision of the Bankruptcy Court. It construed §706(a), when read in connection with other provisions of the Code and the Bankruptcy Rules, as creating a right to convert a case from Chapter 7 to Chapter 13 that "is absolute only in the absence of extreme circumstances." In re Marrama, 313 B. R. 525, 531 (2004). In concluding that the record disclosed such circumstances, the panel relied on Marrama's failure to describe the transfer of the Maine residence into the revocable trust, his attempt to obtain a homestead exemption on rental property in Massachusetts, and his nondisclosure of an anticipated tax refund. On appeal from the panel, the Court of Appeals for the First Circuit also rejected the argument that §706(a) gives a Chapter 7 debtor an absolute right to convert to Chapter 13. In addition to emphasizing that the statute uses the word "may" rather than "shall," the court added:"In construing subsection 706(a), it is important to bear in mind that the bankruptcy court has unquestioned authority to dismiss a chapter 13 petition — as distinguished from converting the case to chapter 13 — based upon a showing of 'bad faith' on the part of the debtor. We can discern neither a theoretical nor a practical reason that Congress would have chosen to treat a first-time motion to convert a chapter 7 case to chapter 13 under subsection 706(a) differently from the filing of a chapter 13 petition in the first instance." In re Marrama, 430 F. 3d 474, 479 (2005) (citations omitted). While other Courts of Appeals and bankruptcy appellate panels have refused to recognize any "bad faith" exception to the conversion right created by §706(a), see n. 2, supra, we conclude that the courts in this case correctly held that Marrama forfeited his right to proceed under Chapter 13.II The two provisions of the Bankruptcy Code most relevant to our resolution of the issue are subsections (a) and (d) of 11 U. S. C. §706, which provide:"(a) The debtor may convert a case under this chapter to a case under chapter 11, 12, or 13 of this title at any time, if the case has not been converted under section 1112, 1208, or 1307 of this title. Any waiver of the right to convert a case under this subsection is unenforceable. "(d) Notwithstanding any other provision of this section, a case may not be converted to a case under another chapter of this title unless the debtor may be a debtor under such chapter." Petitioner contends that subsection (a) creates an unqualified right of conversion. He seeks support from language in both the House and Senate Committee Reports on the provision. The Senate Report stated:"Subsection (a) of this section gives the debtor the one-time absolute right of conversion of a liquidation case to a reorganization or individual repayment plan case. If the case has already once been converted from chapter 11 or 13 to chapter 7, then the debtor does not have that right. The policy of the provision is that the debtor should always be given the opportunity to repay his debts, and a waiver of the right to convert a case is unenforceable." S. Rep. No. 95-989, p. 94 (1978); see also H. R. Rep. No. 95-595, p. 380 (1977) (using nearly identical language). The Committee Reports' reference to an "absolute right" of conversion is more equivocal than petitioner suggests. Assuming that the described debtor's "opportunity to repay his debts" is a short-hand reference to a right to proceed under Chapter 13, the statement that he should "always" have that right is inconsistent with the earlier recognition that it is only a one-time right that does not survive a previous conversion to, or filing under, Chapter 13. More importantly, the broad description of the right as "absolute" fails to give full effect to the express limitation in subsection (d). The words "unless the debtor may be a debtor under such chapter" expressly conditioned Marrama's right to convert on his ability to qualify as a "debtor" under Chapter 13. There are at least two possible reasons why Marrama may not qualify as such a debtor, one arising under §109(e) of the Code, and the other turning on the construction of the word "cause" in §1307(c). The former provision imposes a limit on the amount of indebtedness that an individual may have in order to qualify for Chapter 13 relief.6 More pertinently,7 the latter provision, §1307(c), provides that a Chapter 13 proceeding may be either dismissed or converted to a Chapter 7 proceeding "for cause" and includes a nonexclusive list of 10 causes justifying that relief.8 None of the specified causes mentions prepetition bad-faith conduct (although subparagraph 10 does identify one form of Chapter 7 error — which is necessarily prepetition conduct — that would justify dismissal of a Chapter 13 case).9 Bankruptcy courts nevertheless routinely treat dismissal for prepetition bad-faith conduct as implicitly authorized by the words "for cause." See n. 1, supra. In practical effect, a ruling that an individual's Chapter 13 case should be dismissed or converted to Chapter 7 because of prepetition bad-faith conduct, including fraudulent acts committed in an earlier Chapter 7 proceeding, is tantamount to a ruling that the individual does not qualify as a debtor under Chapter 13. That individual, in other words, is not a member of the class of " 'honest but unfortunate debtor[s]' " that the bankruptcy laws were enacted to protect. See Grogan v. Garner, 498 U. S., at 287. The text of §706(d) therefore provides adequate authority for the denial of his motion to convert. The class of honest but unfortunate debtors who do possess an absolute right to convert their cases from Chapter 7 to Chapter 13 includes the vast majority of the hundreds of thousands of individuals who file Chapter 7 petitions each year.10 Congress sought to give these individuals the chance to repay their debts should they acquire the means to do so. Moreover, as the Court of Appeals observed, the reference in §706(a) to the unenforceability of a waiver of the right to convert functions "as a consumer protection provision against adhesion contracts, whereby a debtor's creditors might be precluded from attempting to prescribe a waiver of the debtor's right to convert to chapter 13 as a non-negotiable condition of its contractual agreements." 430 F. 3d, at 479. A statutory provision protecting a borrower from waiver is not a shield against forfeiture. Nothing in the text of either §706 or §1307(c) (or the legislative history of either provision) limits the authority of the court to take appropriate action in response to fraudulent conduct by the atypical litigant who has demonstrated that he is not entitled to the relief available to the typical debtor.11 On the contrary, the broad authority granted to bankruptcy judges to take any action that is necessary or appropriate "to prevent an abuse of process" described in §105(a) of the Code,12 is surely adequate to authorize an immediate denial of a motion to convert filed under §706 in lieu of a conversion order that merely postpones the allowance of equivalent relief and may provide a debtor with an opportunity to take action prejudicial to creditors.13 Indeed, as the Solicitor General has argued in his brief amicus curiae, even if §105(a) had not been enacted, the inherent power of every federal court to sanction "abusive litigation practices," see Roadway Express, Inc. v. Piper, 447 U. S. 752, 765 (1980), might well provide an adequate justification for a prompt, rather than a delayed, ruling on an unmeritorious attempt to qualify as a debtor under Chapter 13. Accordingly, the judgment of the Court of Appeals is affirmed.It is so ordered.ROBERT LOUIS MARRAMA, PETITIONER v. CITIZENS BANK OF MASSACHUSETTS et al.on writ of certiorari to the united states court of appeals for the first circuit[February 21, 2007] Justice Alito, with whom The Chief Justice, Justice Scalia, and Justice Thomas join, dissenting. Under the clear terms of the Bankruptcy Code, a debtor who initially files a petition under Chapter 7 has the right to convert the case to another chapter under which the case is eligible to proceed. The Court, however, holds that a debtor's conversion right is conditioned upon a bankruptcy judge's finding of "good faith." Because the imposition of this condition is inconsistent with the Bankruptcy Code, I respectfully dissent.I The Bankruptcy Code unambiguously provides that a debtor who has filed a bankruptcy petition under Chapter 7 has a broad right to convert the case to another chapter. Title 11 §706(a) states:"[A] debtor may convert a case under this chapter to a case under chapter 11, 12, or 13 of this title at any time, if the case has not been converted under section 1112, 1208, or 1307 of this title." The Code restricts a Chapter 7 debtor's conversion right in two — and only two — ways. First, §706(a) makes clear that the right to convert is available only once: A debtor may convert so long as "the case has not been converted [to Chapter 7] under section 1112, 1208, or 1307 of this title." Second, §706(d) provides that a debtor wishing to convert to another chapter must meet the conditions that are needed in order to "be a debtor under such chapter." Nothing in §706(a) or any other provision of the Code suggests that a bankruptcy judge has the discretion to override a debtor's exercise of the §706(a) conversion right on a ground not set out in the Code. Thus, a straightforward reading of the Code suggests that a Chapter 7 debtor has the right to convert the debtor's case to Chapter 13 (or another chapter) provided that the two express statutory conditions contained in §706 are satisfied. This reading of the Code is buttressed by the contrast between the terms of §706 and the language employed in other Code provisions that give bankruptcy judges the discretion to deny conversion requests. As noted, §706(a) says that a Chapter 7 debtor "may convert" the debtor's case to another chapter. Chapters 11, 12, and 13 contain similar provisions stating that debtors under those chapters "may convert" their cases to other chapters. See §§1112(a), 1208(a), and 1307(a) (2000 ed. and Supp IV). Chapters 11, 12, and 13 also contain separate provisions governing conversion requests by other parties in interest. For example, the applicable provision in Chapter 11 provides:"On request of a party in interest and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 11 of this title at any time." §706(b) (emphasis added).See also §§1112(b), 1208(b), (d), and 1307(c). In these sections, parties in interest are not given a right to convert. Rather, parties in interest are authorized to request conversion. And the authority to convert, after notice and a hearing, is expressly left to the discretion of the bankruptcy court, which "may convert" the case if the general standard of "cause" is found to have been met. If the Code had been meant to give a bankruptcy court similar authority when a Chapter 7 debtor wishes to convert, the Code would have used language similar to that in §§1112(b), 1208(b), (d), and 1307(c). Congress knew how to limit conversion authority in this way, and it did not do so in §706(a). In Chapter 7, Congress did directly address the consequences of the sort of conduct complained of in this case. In §727(a)(3), Congress specified that a debtor may be denied a discharge of debts if "the debtor has concealed ... records, and papers, from which the debtor's financial condition or business transactions might be ascertained." The Code further provides that discharge may be denied if the debtor has "made a false oath or account" or "presented or used a false claim." §727(a)(4). In addition to blocking discharge, Congress could easily have deemed such conduct sufficient to bar conversion to another chapter, but Congress did not do so. Instead of taking that approach, Congress included in the statutory scheme several express means to redress a debtor's bad faith. First, if a bankruptcy court finds that there is "cause," the court may convert or reconvert a Chapter 11 or Chapter 13 restructuring to a Chapter 7 liquidation. §§1112(b), 1307(c). Second, a Chapter 13 debtor must propose a repayment plan to satisfy the debtor's creditors — a plan that is subject to court approval and must be proposed in good faith. §§1325(a)(3), (4); accord, §1328(b)(2). Third, a debtor's asset schedules are filed under penalty of perjury. 28 U. S. C. §1746; Fed. Rule Bkrtcy. Proc. 1008. Fourth, a Chapter 13 case is overseen by a trustee who is empowered to investigate the debtor's financial affairs, to furnish information regarding the bankruptcy estate to parties in interest, and to oppose discharge if necessary. 11 U. S. C. §§704(4), (6) and (9). See also §1302(b) (defining the powers of a Chapter 13 trustee in part by reference to the powers of a Chapter 7 trustee). These measures, as opposed to the "good faith" requirement crafted by the Court, represent the Code's strategy for dealing with debtors who engage in the type of abusive tactics that the Court's opinion targets.1 In sum, the Code expressly gives a debtor who initially files under Chapter 7 the right to convert the case to another chapter so long as the debtor satisfies the requirements of the destination chapter. By contrast, the Code pointedly does not give the bankruptcy courts the authority to deny conversion based on a finding of "bad faith." There is no justification for disregarding the Code's scheme.II In reaching the conclusion that a bankruptcy judge may override a Chapter 7 debtor's conversion right based on a finding of "bad faith," the Court reasons as follows. Under §706(d), a Chapter 7 debtor may not convert to another chapter "unless the debtor may be a debtor under such chapter." Under §1307(c), a Chapter 13 proceeding may be dismissed or converted to Chapter 7 "for cause." One such "cause" recognized by bankruptcy courts is "bad faith." Therefore, a Chapter 7 debtor who has proceeded in "bad faith" and wishes to convert his or her case to Chapter 13 is not eligible to "be a debtor" under Chapter 13 because the debtor's case would be subject to dismissal or reconversion to Chapter 7 pursuant to §1307(c). I cannot agree with this strained reading of the Code. The requirements that must be met in order to "be a debtor" under Chapter 13 are set forth in 11 U. S. C. A. §109 (main ed. and Supp. 2006), which is appropriately titled "Who may be a debtor." The two requirements that are specific to Chapter 13 appear in subsection (e). First, Chapter 13 is restricted to individuals, with or without their spouses, with regular income. Second, a debtor may not proceed under Chapter 13 if specified debt limits are exceeded.2 As the Court of Appeals below correctly understood, §706(d)'s requirement that a debtor may convert only if "the debtor may be a debtor under such chapter" obviously refers to the chapter-specific requirements of §109. In re Marrama, 430 F. 3d 474, 479, n. 3 (CA1 2005). Rather than reading §§109(e) and 706(d) together, the Court puts §109(e) aside and treats §706(d) as a separate repository of additional requirements (namely, the absence of the grounds for dismissal or reconversion under §1307(c)) that a Chapter 7 debtor must satisfy before conversion to Chapter 13. But §1307(c) plainly does not set out requirements that an individual must meet in order to "be a debtor" under Chapter 13. Instead, §1307(c) sets out the standard ("cause") that a bankruptcy court must apply in deciding whether, in its discretion, an already filed Chapter 13 case should be dismissed or converted to Chapter 7. Thus, the Court's holding in this case finds no support in the terms of the Bankruptcy Code. In holding that a bankruptcy judge may deny conversion based on "bad faith," the Court of Appeals appears to have been influenced by the belief that following the literal terms of the Code would be pointless. Id., at 479-481. Specifically, the Court of Appeals observed that if a debtor who wishes to convert from Chapter 7 to Chapter 13 has exhibited such "bad faith" that the bankruptcy court would immediately convert the case back to Chapter 7 under §1307(c), then no purpose would be served by requiring the parties and the court to go through the process of conversion and prompt reconversion. Id., at 481. It is by no means clear, however, that conversion under §706(a) followed by a reconversion proceeding under §1307(c) would be an empty exercise. The immediate practical effect of following the statutory scheme is compliance with Bankruptcy Rule 1017(f), which applies Bankruptcy Rule 9014 to the reconversion. Fed. Rule Bkrtcy. Proc. 1017(e)(1). Rule 9014 (a), in turn, requires that the request be made by motion and that "reasonable notice and opportunity for hearing ... be afforded the party against whom relief is sought." The Court's decision circumvents this process and forecloses the right that a Chapter 13 debtor would otherwise possess to file a Chapter 13 repayment and reorganization plan, 11 U. S. C. §1321, which must be filed in good faith and which must demonstrate that creditors will receive no less than they would under an immediate Chapter 7 liquidation, §§1325(a)(3) and (4); accord, §1328(b)(2). While the plan must be filed no later than 15 days after filing the petition or conversion, the debtor may file the plan at the time of conversion, i.e., before the reconversion hearing. Fed. Rule Bkrtcy. Proc. 3015(b). Moreover, it is not clear whether, in converting a case "for cause" under §1307(c), a bankruptcy court must consider the debtor's plan (if already filed) and, if the plan must be considered, whether the court must take into account whether the plan was filed in good faith, whether it honestly discloses the debtor's assets, whether it demonstrates that creditors would in fact fare better under the plan than under a liquidation, and whether the plan in some sense "cures" prior bad faith. Today's opinion renders these questions academic, and little is left to guide what a bankruptcy court must consider, or may disregard, in blocking a §706(a) conversion.3 The Court notes that the Bankruptcy Code is intended to give a " ' "fresh start" ' " to the " ' "honest but unfortunate debtor." ' " Ante, at 1, 9 (quoting Grogan v. Garner, 498 U. S. 279, 286, 287 (1991)). But compliance with the statutory scheme — conversion to Chapter 13 followed by notice and a hearing on the question of reconversion — would at least provide some structure to the process of identifying those debtors whose " 'bad faith' " meets the Court's standard for consignment to liquidation, i.e., " 'bad faith' " conduct that is "atypical" and "extraordinary." Ante, at 10, n. 11.III Finally, the Court notes two alternative bases for its holding. First, the Court points to 11 U. S. C. §105(a), which governs a bankruptcy court's general powers.4 Second, the Court suggests that even without a textual basis, a bankruptcy court's inherent power may empower it to deny a §706(a) conversion request for bad faith. Obviously, however, neither of these sources of authority authorizes a bankruptcy court to contravene the Code. On the contrary, a bankruptcy court's general and equitable powers "must and can only be exercised within the confines of the Bankruptcy Code." Norwest Bank Worthington v. Ahlers, 485 U. S. 197, 206 (1988); accord, Sec v. United States Realty & Improvement Co., 310 U. S. 434, 455 (1940) ("A bankruptcy court ... is guided by equitable doctrines and principles except in so far as they are inconsistent with the Act"). Ultimately, §105(a) and a bankruptcy court's inherent powers may have a role to play in a case such as this. The problem the Court identifies is a real one. A debtor who is convinced that he or she can successfully conceal assets has a significant incentive to pursue Chapter 7 liquidation in lieu of a Chapter 13 restructuring. If successful, the debtor preserves wealth; if unsuccessful, the debtor can convert to Chapter 13 and land largely where the debtor would have been if he or she had fully disclosed all assets and proceeded in Chapter 13 in the first instance. Bankruptcy courts have used their statutory and equitable authority to craft various remedies for a range of bad faith conduct: requiring accountings or reporting of assets 5; enjoining debtors from alienating estate property 6; penalizing counsel 7; assessing costs and fees 8; or holding the debtor in contempt 9. But whatever steps a bankruptcy court may take pursuant to §105(a) or its general equitable powers, a bankruptcy court cannot contravene the provisions of the Code. Because the provisions of the Code rule out the procedure that was followed in this case by the bankruptcy court, I would reverse the judgment of the Court of Appeals.FOOTNOTESFootnote 1 See, e.g., In re Alt, 305 F. 3d 413, 418-419 (CA6 2002); In re Leavitt, 171 F. 3d 1219, 1224 (CA9 1999); In re Kestell, 99 F. 3d 146, 148 (CA4 1996); In re Molitor, 76 F. 3d 218, 220 (CA8 1996); In re Gier, 986 F. 2d 1326, 1329-1330 (CA10 1993); In re Love, 957 F. 2d 1350, 1354 (CA7 1992); In re Sullivan, 326 B. R. 204, 211 (Bkrtcy. App. Panel CA1 2005).Footnote 2 See, e.g., In re Martin, 880 F. 2d 857, 859 (CA5 1989); In re Croston, 313 B. R. 447 (Bkrtcy. App. Panel CA9 2004); In re Miller, 303 B. R. 471 (Bkrtcy. App. Panel CA10 2003).Footnote 3 The trustee also noted that in his original verified schedules Marrama had claimed a property in Gloucester, Mass., as a homestead exemption, see 11 U. S. C. §522(b)(2); Mass. Gen. Laws, ch. 188, §1 (West 2005), but testified at the meeting of creditors that he did not reside at the property and was receiving rental income from it, App. 71a-72a. Moreover, when asked at the meeting whether anyone owed him any money, Marrama responded "No," id., at 50a, and in response to a similar question on Schedule B to his petition, which specifically requested a description of any "tax refunds," Marrama indicated that he had "none." Supp. App. 6. In fact, Marrama had filed an amended tax return in July 2002 in which he claimed the right to a refund, and shortly before the hearing on the motion to convert, the Internal Revenue Service informed the trustee that Marrama was entitled to a refund of $8,745.86, App. 30a-31a.Footnote 4 The parties dispute the accuracy of this representation. The trustee's brief notes that Schedule I to Marrama's original petition indicates that he had been employed by a flooring company at the time the case was filed. See Brief for Respondent Mark G. DeGiacomo 10, n. 7 (citing Supp. App. 18, 30). Marrama's counsel stated during oral argument, however, that the income listed in Schedule I represented an estimate based on employment that had not yet begun. Tr. of Oral Arg. 24. Since the sufficiency of the evidence of bad faith is not at issue, we may assume that Marrama did have more income available when he sought to convert than when he commenced the Chapter 7 case.Footnote 5 The judicial council of any circuit is authorized by statute to establish a bankruptcy appellate panel service, comprising bankruptcy judges, to hear appeals from the bankruptcy courts with the consent of the parties. See 28 U. S. C. §158(b); Connecticut Nat. Bank v. Germain, 503 U. S. 249, 252 (1992). The First Circuit has established this service.Footnote 6 Subsection (e) of 11 U. S. C. §109 provides:"Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $250,000 and noncontingent, liquidated, secured debts of less than $750,000, or an individual with regular income and such individual's spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts that aggregate less than $250,000 and noncontingent, liquidated, secured debts of less than $750,000 may be a debtor under chapter 13 of this title."These dollar limits are subject to adjustment for inflation every three years. See §104(b). Footnote 7 Marrama initiated a new Chapter 13 case the day after we granted certiorari in the present case. The new case was dismissed on the grounds that, under §109(e), he was ineligible to be a Chapter 13 debtor. See In re Marrama, 345 B. R. 458, 463-464, and n. 10 (Bkrtcy. Ct. Mass. 2006). As the Bankruptcy Judge made no such determination on the record before us in this case, and as it is not necessary to our decision that such a determination be made, we do not consider whether Marrama fails to meet the §109(e) debt limit.Footnote 8 Title II U. S. C. §1307(c) provides, in relevant part:"Except as provided in subsection (e) of this section, on request of a party in interest or the United States trustee and after notice and a hearing, the court may convert a case under this chapter to a case under chapter 7 of this title, or may dismiss a case under this chapter, whichever is in the best interests of creditors and the estate, for cause, including--"(1) unreasonable delay by the debtor that is prejudicial to creditors;"(2) nonpayment of any fees and charges required under chapter 123 of title 28;"(3) failure to file a plan timely under section 1321 of this title;"(10) only on request of the United States trustee, failure to timely file the information required by paragraph (2) of section 521."Section 521(2), which has since been amended and redesignated as §521(a)(2), see 119 Stat. 38, imposes a duty on a debtor in a Chapter 7 proceeding to file within a certain time period a statement of intent with respect to the retention or surrender of property being used to secure debts. See 11 U. S. C. A. §521(a)(2), (2004 ed. and Supp. 2006).Footnote 9 Indeed, because §521(2) by its terms applies only to Chapter 7 debtors, at least one prominent treatise has assumed that this subsection could only apply to a debtor who has converted a case from Chapter 7 to Chapter 13. See 8 Collier on Bankruptcy ¶1307.04[9] (15th ed. rev. 2006).Footnote 10 We are advised by the Administrative Office of the United States Courts that 833,148 Chapter 7 cases were filed in fiscal year 2006. Memorandum from Steven R. Schlesinger, Administrative Office of the United States Courts, to Supreme Court Library (Dec. 13, 2006) (available in Clerk of Court's case file).Footnote 11 We have no occasion here to articulate with precision what conduct qualifies as "bad faith" sufficient to permit a bankruptcy judge to dismiss a Chapter 13 case or to deny conversion from Chapter 7. It suffices to emphasize that the debtor's conduct must, in fact, be atypical. Limiting dismissal or denial of conversion to extraordinary cases is particularly appropriate in light of the fact that lack of good faith in proposing a Chapter 13 plan is an express statutory ground for denying plan confirmation. 11 U. S. C. §1325(a)(3); see In re Love, 957 F. 2d, at 1356 ("Because dismissal is harsh ... the bankruptcy court should be more reluctant to dismiss a petition ... for lack of good faith than to reject a plan for lack of good faith under Section 1325(a)").Footnote 12 Title II U. S. C. §105(a) provides:"The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process."Footnote 13 Both the Chapter 7 trustee and the United States as amicus curiae argue in their briefs that in the interval between the allowance of a motion to convert under §706(a) and the subsequent granting of a motion to dismiss under §1307(c), the fact that the debtor would have possession of the property formerly under the control of the trustee would create an opportunity for the debtor to take actions that would impair the rights of creditors. Whether or not that risk is significant, under our understanding of the Code, the debtor's prior misconduct may provide a sufficient justification for a denial of his motion to convert.FOOTNOTESFootnote 1 And as noted above, 11 U. S. C. §727(a)(4) also addresses such conduct, making it a bar to discharge, but not to conversion.Footnote 2 "Only an individual with regular income that owes, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts of less than $307,675 and noncontingent, liquidated, secured debts of less than $922,975, or an individual with regular income and such individual's spouse, except a stockbroker or a commodity broker, that owe, on the date of the filing of the petition, noncontingent, liquidated, unsecured debts that aggregate less than $307,675 and noncontingent, liquidated, secured debts of less than $922,975 may be a debtor under chapter 13 of this title." §109(e) (Supp. 2006) (footnote omitted).Footnote 3 Indeed, the only procedural guidance for such a situation is Federal Rule of Bankruptcy Procedure 1017(f)(2), which requires the filing of a motion to convert by the debtor and service thereof. Footnote 4 "The court may issue any order, process, or judgment that is necessary or appropriate to carry out the provisions of this title. No provision of this title providing for the raising of an issue by a party in interest shall be construed to preclude the court from, sua sponte, taking any action or making any determination necessary or appropriate to enforce or implement court orders or rules, or to prevent an abuse of process." §105(a).Footnote 5 See, e.g., In re All Denominational New Church, 268 B. R. 536 (Bkrtcy. App. Panel CA8 2001) (affirming dismissal for failure to comply with required monthly reporting); In re Martin's Aquarium, Inc., 225 B. R. 868, 880 (Bkrtcy. Ct. E. D. Pa. 1998) ("[A] debtor may, in an appropriate case, be required to produce an accounting, and . . . a bankruptcy court does indeed have the power to so order [this equitable remedy]").Footnote 6 See, e.g., In re Bartmann, 320 B. R. 725, 732-733 (Bkrtcy. Ct. N. D. Okla. 2004); In re Newport Creamery, Inc., 293 B. R. 293 (Bkrtcy. Ct. R. I. 2003); In re Peklo, 201 B. R. 331 (Bkrtcy Ct. Conn. 1996).Footnote 7 See, e.g., In re Everly, 346 B. R. 791, 797 (Bkrtcy. App. Panel CA8 2006) (bankruptcy court's §105 powers include authority to sanction counsel); In re Brooks-Hamilton, 329 B. R. 270 (Bkrtcy. App. Panel CA9 2005) (upholding sanction and suspension of debtor's counsel); In re Washington, 297 B. R. 662 (Bkrtcy. Ct. S. D. Fla. 2003).Footnote 8 See, e.g., In re Deville, 280 B. R. 483 (Bkrtcy. App. Panel CA9 2002); In re Johnson, 336 B. R. 568, 573 (Bkrtcy. Ct. S. D. Fla. 2006); In re Couch-Russell, No. 00-02226, 2003 W L 25273863 (Bkrtcy. Ct. Idaho 2003); In re Gorshtein, 285 B. R. 118 (Bkrtcy. Ct. S. D. N. Y. 2002).Footnote 9 See, e.g., In re Sekendur, 334 B. R. 609 (Bkrtcy. Ct. N. D. Ill. 2005) (imposing contempt sanction for serial and vexatious bankruptcy filing); In re Tolbert, 258 B. R. 387 (Bkrtcy. Ct. W. D. Mo. 2001) (same); In re Swanson, 207 B. R. 76 (Bkrtcy. Ct. N. J. 1997) (imposing civil contempt under §105 for failure to vacate property).

Mr.J. Leonard Townsend, of Washington, D.C., for petitioners. Mr. Hugh H. Obear, of Washington, D.C., for respondents. Mr. Justice DOUGLAS delivered the opinion of the Court. This case, here on certiorari to the Court of Appeals of the District of Columbia, presents important problems under 30 and 32 of the Banking Act of 1933, 48 Stat. 162, 193, as amended, 49 Stat. 704, 709, 12 U.S.C. 77, 78, 12 U.S.C.A. 77, 78. Section 30 of the Act provides that the Comptroller of the Currency, whenever he is of the opinion that a director or officer of a national bank has violated any law relating to the bank, shall warn him to discontinue the violation and, if the violation continues, may certify the facts to the Board of Governors of the Federal Reserve System. The Board is granted power to order that the director or officer be removed from office if it finds after notice and a reasonable opportunity to be heard that he has continued to violate the law. > 1 Section 32 of the Act prohibits, inter alia, any partner or employee of any partnership 'primarily engaged in the issue, flotation, underwriting, public sale, or distribution, at wholesale or retail, or through syndicate participation, of stocks, bonds, or other similar securities' from serving at the same time as an officer, director, or employee of a member bank. 2 Pursuant to the procedure outlined in 30 the Board ordered respondents removed from office as directors of the Paterson National Bank on the ground that they were employees of a firm 'primarily engaged' in underwriting within the meaning of 32. Respondents brought suit in the District Court for the District of Columbia to review the action of the Board or to enjoin its action. The District Court dismissed the complaint. The Court of Appeals reversed by a divided vote, holding that the Board exceeded its authority and that an injunction should issue. 153 F.2d 785. First. The Board contends that the removal orders of the Board made under 30 are not subject to judicial review in the absence of a charge of fraud. It relies on the absence of an express right of review and on the nature of the federal bank supervisory scheme of which 30 is an integral part. Cf. Adams v. Nagle, ; Switchmen's Union of North America v. National Mediation Board, ; Estep v. United States, . A majority of the Court, however, is of the opinion that the determination of the extent of the authority granted the Board to issue removal orders under 30 of the Act is subject to judicial review and that the District Court is authorized to enjoin the removal if the Board transcends its bounds and acts beyond the limits of its statutory grant of authority. See American School of Magnetic Healing v. McAnnulty, ; Philadelphia Co. v. Stimson, ; Stark v. Wickard, , 310 S., 64 S.Ct. 559, 570, 571. That being decided, it seems plain that the claim to the office of director is such a personal one as warrants judicial consideration of the controversy. Cf. columbia Broadcasting System v. United States, ; Stark v. Wickard, supraat page 305, 64 S.Ct. at page 568. Second. We come then to the merits. Respondents for a number of years have been directors of the Paterson National Bank, a national banking association and a member of the Federal Reserve System. Since 1941 they have been employed by Eastman, Dillon & Co., a partnership, which holds itself out as being 'Underwriters, Distributors, Dealers and Brokers in Industrial, Railroad, Public Utility and Municipal Securities.' During the fiscal year ending February 28, 1943, its gross income from the underwriting field3 was 26 per cent of its gross income from all sources, while its gross income from the brokerage business was 42 per cent of its gross income from all sources. The same percentages for the fiscal year ending February 29, 1944, were 32 per cent and 47 per cent respectively; and for the period from March 1, 1944, to July 31, 1944, 39 per cent and 40 per cent respectively. Of the total number of transactions, as well as the total market value of the securities bought and sold by the firm as broker and as dealer for an indefinite period prior to September 20, 1943, about 15 per cent were in the underwriting field. The firm is active in the underwriting field, getting what business it can. In 1943 it ranked ninth among 94 leading investment bankers in the country with respect to its total participations in underwritings of bonds. For a time during 1943 it ranked first among the underwriters of the country. Apart from municipals and rails, its participation in underwritings during 1943 amounted to $14,657,000. Since October, 1941, respondents have done no business with the bank other than a strictly commission business with its custom- ers. Nor has the firm done business with the bank since the fall of 1941 These are the essential facts found by the Board. On the basis of these facts the Board concluded that during the times relevant here Eastman, Dillon & Co. was 'primarily engaged' in the underwriting business and that respondents, being employees of the firm, were disqualified from serving as directors of the bank. The Court of Appeals concluded that when applied to a single subject 'primary' means first, chief, or principal; that a firm is not 'primarily engaged' in underwriting when underwriting is not by any standard its chief or principal business. Since this firm's underwriting business did not by any quantitative test exceed 50 per cent of its total business, the court held that it was not 'primarily engaged' in the underwriting busine within the meaning of 32 of the Act. We take a different view. It is true that 'primary' when applied to a single subject often means first, chief, or principal. But that is not always the case. For other accepted and common meanings of 'primarily' are 'essentially' (Oxford English Dictionary) or 'fundamentally' (Webster's New International). An activity or function may be 'primary' in that sense if it is substantial. If the underwriting business of a firm is substantial, the firm is engaged in the underwriting business in a primary way though by any quantitative test underwriting may not be its chief or principal activity. On the facts in this record we would find it hard to say that underwriting was not one primary activity of the firm and brokerage another. If 'primarily' is not used in the sense we suggest then the firm is not 'primarily engaged' in any line of business though it specializes in at least two and does a substantial amount of each. One might as well say that a professional man is not 'primarily engaged' in his profession though he holds himself out to serve all comers and devotes substan- tial time to the practice but makes the greater share of his income on the stock market. That is the construction given the Act by the Board. And it is, we think, not only permissible but also more consonant with the legislative purpose than the construction which the Court of Appeals adopted. Firms which do underwriting also engage in numerous other activities. The Board indeed observed that if one was not 'primarily engaged' in underwriting unless by some quantitative test it was his principal activity, they 32 would apply to no one. Moreover, the evil at which the section was aimed is not one likely to emerge only when the firm with which a bank director is connected has an underwriting business which exceeds 50 per cent of its total business. Section 32 is directed to the probability or likelihood, based on the experience of the 1920's that a bank director interested in the underwriting business may use his influence in the bank to involve it or its customers in securities which his underwriting house has in its portfolio or has committed itself to take. That likelihood or probability does not depend on whether the firm's underwriting business exceeds 50 per cent of its total business. It might, of course, exist whatever the proportion of the underwriting business. But Congress did not go the whole way; it drew the line where the need was thought to be the greatest. And the line between substantial and unsubstantial seems to us to be the one indicated by the words 'primarily engaged.' There is other intrinsic evidence in the Banking Act of 1933 to support our conclusion. Section 20 of the Act, 12 U.S.C.A. 377, outlaws affiliation4 of a member bank with an organization 'engaged principally' in the underwriting business. Section 19, 12 U.S.C.A. 61, provides control over bank holding companies. In order to vote its stock in controlled banks a bank holding company must show that it does not own, control, or have any interest in, and is not participating in the management or direction of any organization 'engaged principally' in the underwriting business. On the other hand, when Congress came to deal with the practice of underwriters taking checking deposits, it used language different from what it used either in 19 and 20 on the one hand or in 32 on the other. By 21, 12 U.S.C.A. 378, it prohibited any organization 'engaged' in the underwriting business 'to engage at the same time to any extent whatever' in the business of receiving checking deposits. Thus within the same Act we find Congress dealing with several types of underwriting firms-those 'engaged' in underwriting, those 'primarily engaged' in underwriting, those 'engaged principally' in underwriting. The inference seems reasonable to us that Congress by the words it chose marked a distinction which we should not obliterate by reading 'pr marily' to mean 'principally'. The Court of Appeals laid some stress on the fact that Congress did not abolish the bank offiliate system but only those underwriter affiliates which were under the control of a member bank or which were under a common control with it. 5 Section 20. Since Congress made majority control critical under 20, it was thought that under 32 a firm was not 'primarily engaged' in underwriting unless underwriting constituted a majority of its business. But the two situations are not comparable. In 32 Congress was not dealing with the problem of control of underwriters by banks or vice versa. The prohibited nexus is in no way dependent on the presence or absence of control, nor would it be made so even if 'primarily engaged' in underwriting were construed to mean princi- pally engaged in that business. Section 32 was designed, as we have said, to remove tempting opportunities from the management and personnel of member banks. In no realistic sense do those opportunities disappear merely because the underwriting activities of the outside firm with which the officer, director, or employee is connected happens to fall below 51 per cent. Fifty-one per cent, which is relevant in terms of control, is irrelevant here. The fact then that Congress did not abolish underwriter affiliates serves as no guide in determining whether 'primarily engaged' in underwriting as used in 32 means principally engaged or substantially engaged in that business. Section 32 is not concerned, of course, with any showing that the director in question has in fact been derelict in his duties or has in any way breached his fiduciary obligation to the bank. It is a preventive or prophylactic measure. The fact that respondents have been scrupulous in their relationships to the bank is therefore immaterial. There is a suggestion that if 'primarily' does not mean principally but merely connotes substantiality, 32 constitutes an unlawful delegation of authority to the Board. But we think it plain under our decisions that if substantiality is the statutory guide, the limits of administrative action are sufficiently definite or ascertainable so as to survive challenge on the grounds of unconstitutionality. Sunshine Anthracite Coal Co. v. Adkins, , 397-400, 60 S.Ct. 907, 914- 916; Opp Cotton Mills v. Administrator, , 142- 146, 657, 61 S.Ct. 524, 531-533; Yakus v. United States, , 424-428, 64 S.Ct. 660, 667-669; Bowles v. Willingham, , 512-516, 64 S.Ct. 641, 646-648.REVERSED. Mr. Justice RUTLEDGE, concurring. If the question presented on the merits is reviewable judicially, in my opinion it is only for abuse of discretion by the Board of Governors. Not only because Congress has committed the system's operation to their hands, but also because the system itself is a highly specialized and technical one, requiring expert and coordinated management in all its phases, I think their judgment should be conclusive upon any matter which, like this one, is open to reasonable difference of opinion. Their specialized experience gives them an advantage judges cannot possibly have, not only in dealing with the problems raised for their discretion by the system's working, but also in ascertaining the meaning Congress had in mind in prescribing the standards by which they should administer it. Accordingly their judgment in such matters should be overturned only where there is no reasonable basis to sustain it or where they exercise it in a manner which clearly exceeds their statutory authority. In this case I cannot say that either of these things has occurred. The Board made its etermination after the required statutory hearing on notice. 48 Stat. 162, 193, 12 U.S.C. 77, 12 U.S.C.A. 77. The consideration given was full and thorough, including detailed findings of fact and conclusions of law, followed by a carefully written opinion. 1 The Board concluded that 'primarily' in 32 does not mean 'first in volume in comparison with any other business or businesses in which it (the employer) engages,'2 but means rather as 'a matter of primary importance,' like 'primary' colors or planets or as the word is used in the phrase 'the primary causes of a war.' This view it found not only supported by accepted dictionary meaning but also in conformity with Congress' intent as established by the legislative history. In a further ground which we must take as reflecting its specialized experience, the Board stated: 'To say that a securities firm ranking ninth among the leading investment bankers of the country with respect to its total participations in underwritings of bonds, and for a period ranking first, should be held to be beyond the scope of the statute is to say that Congress enacted a statute with the intention that it would apply to no one.' I cannot say that the Board's conclusion, in the light of those groundings, is wanting either for warrant in law or for reasonable basis in fact. The considerations stated in the Court's opinion and in the dissenting opinion filed in the Court of Appeals, 153 F.2d 785, 795, as well as by the Board itself, confirm this view. I think it important not only for this case but for like ones which may arise in the future, perhaps as a result of this decision, to make clear that my concurrence in the Court's disposition of the case is based upon the ground I have set forth, and not upon independent judicial determination of the question presented on the merits. I do not think this Court or any other should undertake to reconsider, as an independent judgment, the Board's determination upon that question or similar ones likely to arise, if the Board was not without basis in fact for its judgment and does not clearly transgress a statutory mandate. More than has been shown here would be required to cause me to believe that the Board has exceeded its power in either respect. Mr. Justice FRANKFURTER joins in this opinion.

After petitioner pleaded guilty to federal drug charges, the District Court sentenced him to prison, but failed to inform him at the sentencing hearing of his right to appeal the sentence. In a later motion for habeas relief, petitioner alleged that that failure violated the express terms of Federal Rule of Criminal Procedure 32(a)(2). The District Court rejected petitioner's claim that any Rule 32 violation, without regard to prejudice, is enough to vacate a sentence, and held that petitioner was not entitled to relief because he actually knew of his right to appeal when he was sentenced. The Third Circuit affirmed, holding that the Rule 32(a)(2) violation was subject to harmless-error review and that, because petitioner was aware of his right to appeal, the Rule's purpose had been served.Held: A district court's failure to advise a defendant of his right to appeal does not entitle him to habeas relief if he knew of his right and hence suffered no prejudice from the omission. Because Rule 32(a)(2) requires a district court to advise a defendant of any right to appeal his sentence, it is undisputed that the court's failure to give the required advice was error in this case. However, as a general rule, a court's failure to give a defendant advice required by the Federal Rules is a sufficient basis for collateral relief only when the defendant is prejudiced by the error. See, e.g.,United States v. Timmreck,441 U. S. 780. Because petitioner had full knowledge of his right to appeal, the fact that the court violated the Rule, standing alone, does not entitle him to collateral relief. The narrow holding in Rodriquez v. United States,395 U. S. 327--that when counsel fails to file a requested appeal, a defendant is entitled to resentencing and an appeal without showing that his appeal would likely have merit — is not implicated here because the District Court found that petitioner did not request an appeal. Pp. 3-7.142 F. 3d 430, affirmed. Kennedy, J., delivered the opinion for a unanimous Court. O'Connor, J., filed a concurring opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined. MANUEL DeJESUS PEGUERO, PETITIONER v.UNITED STATESon writ of certiorari to the united states court ofappeals for the third circuit[March 2, 1999] Justice Kennedy delivered the opinion of the Court. We granted certiorari to resolve a Circuit conflict over whether a district court's failure to advise a defendant of his right to appeal as required by the Federal Rules of Criminal Procedure provides a basis for collateral relief even when the defendant was aware of his right to appeal when the trial court omitted to give the advice. Compare, e.g., Thompson v. United States, 111 F. 3d 109 (CA11 1997) (defendant entitled to relief even if he knew of his right to appeal through other sources); United States v. Sanchez, 88 F. 3d 1243 (CADC 1996) (same); Reid v. United States, 69 F. 3d 688 (CA2 1995) (per curiam) (same), with Tress v. United States, 87 F. 3d 188 (CA7 1996) (defendant not entitled to relief if he knew of his right to appeal); United States v. Drummond, 903 F. 2d 1171 (CA8 1990) (same). We hold that a district court's failure to advise the defendant of his right to appeal does not entitle him to habeas relief if he knew of his right and hence suffered no prejudice from the omission. Petitioner Manuel Peguero pleaded guilty to conspiracy to distribute cocaine, in violation of 21 U. S. C. §846. At a sentencing hearing held on April 22, 1992, the District Court sentenced petitioner to 274 months' imprisonment. The court did not inform petitioner of his right to appeal his sentence. In December of 1996, more than four years after he was sentenced, petitioner filed a pro se motion to set aside his conviction and sentence. See 28 U. S. C. §2255 (1994 ed., Supp. II). He alleged his counsel was ineffective for various reasons, including the failure to file a notice of appeal pursuant to petitioner's request. App. 63, 65. The District Court appointed new counsel, who filed an amended motion adding a claim that at the sentencing proceeding the trial court violated Federal Rule of Criminal Procedure 32(a)(2) by failing to advise petitioner of his right to appeal his sentence. This last claim gives rise to the question before us. The District Court held an evidentiary hearing. Petitioner testified that, upon being sentenced, he at once asked his lawyer to file an appeal. App. 139. Consistent with petitioner's testimony, the District Court found that, although the sentencing court had failed to advise petitioner of his right to appeal the sentence, petitioner knew of his right to appeal when the sentencing hearing occurred. No. 1:CR-90-97-01 (MD Pa., July 1, 1997), App. 168, 184. The court also credited the testimony of petitioner's trial counsel that petitioner told counsel he did not want to take an appeal because he hoped to cooperate with the Government and earn a sentence reduction. Id., at 180-181; cf. Fed. Rule Crim. Proc. 35(b) ("The court, on motion of the Government made within one year after the imposition of the sentence, may reduce a sentence to reflect a defendant's subsequent, substantial assistance in the investigation or prosecution of another person who has committed an offense"). Relying on our holding in United States v. Timmreck, 441 U. S. 780 (1979), the District Court rejected petitioner's claim that any violation of Rule 32, without regard to prejudice, is enough to vacate a sentence under §2255. The court held that petitioner was not entitled to relief because he was actually aware of his right to appeal at the time of sentencing. No. 1:CR-90-97-01, App. 184. The court also rejected petitioner's ineffective assistance of counsel claim based on its finding that petitioner did not request an appeal. Id., at 180. The Court of Appeals for the Third Circuit affirmed the ruling. It held that the Rule 32(a)(2) violation was subject to harmless-error review and that, because petitioner was aware of his right to appeal, the purpose of the Rule had been served and petitioner was not entitled to relief. Judgt. order reported at 142 F. 3d 430 (1998), App. 192, 194-195. In 1992, when petitioner was sentenced, Federal Rule of Criminal Procedure 32(a)(2) provided:"Notification of Right To Appeal.--After imposing sentence in a case which has gone to trial on a plea of not guilty, the court shall advise the defendant of the defendant's right to appeal, including any right to appeal the sentence, and of the right of a person who is unable to pay the cost of an appeal to apply for leave to appeal in forma pauperis. There shall be no duty on the court to advise the defendant of any right of appeal after sentence is imposed following a plea of guilty or nolo contendere, except that the court shall advise the defendant of any right to appeal the sentence. If the defendant so requests, the clerk of the court shall prepare and file forthwith a notice of appeal on behalf of the defendant."Current Rule 32(c)(5) likewise imposes on the district court the duty to advise the defendant at sentencing of any right to appeal. The requirement that the district court inform a defendant of his right to appeal serves important functions. It will often be the case that, as soon as sentence is imposed, the defendant will be taken into custody and transported elsewhere, making it difficult for the defendant to maintain contact with his attorney. The relationship between the defendant and the attorney may also be strained after sentencing, in any event, because of the defendant's disappointment over the outcome of the case or the terms of the sentence. The attorney, moreover, concentrating on other matters, may fail to tell the defendant of the right to appeal, though months later the attorney may think that he in fact gave the advice because it was standard practice to do so. In addition, if the defendant is advised of the right by the judge who imposes sentence, the defendant will realize that the appeal may be taken as of right and without affront to the trial judge, who may later rule upon a motion to modify or reduce the sentence. See Fed. Rule Crim. Proc. 35. Advising the defendant of his right at sentencing also gives him a clear opportunity to announce his intention to appeal and request the court clerk to file the notice of appeal, well before the 10-day filing period runs. See Rule 32(c)(5) ("If the defendant so requests, the clerk of the court must immediately prepare and file a notice of appeal on behalf of the defendant"); Fed. Rule App. Proc. 4(b) (establishing 10-day period for filing appeal, which may be extended for 30 days by district court for "excusable neglect"). These considerations underscore the importance of the advice which comes from the court itself. Trial judges must be meticulous and precise in following each of the requirements of Rule 32 in every case. It is undisputed, then, that the court's failure to give the required advice was error. A violation of Rule 32(a)(2), however, does not entitle a defendant to collateral relief in all circumstances. Our precedents establish, as a general rule, that a court's failure to give a defendant advice required by the Federal Rules is a sufficient basis for collateral relief only when the defendant is prejudiced by the court's error. In Hill v. United States, 368 U. S. 424 (1962), for example, the District Court violated the then-applicable version of Rule 32(a) by failing to make explicit that the defendant had an opportunity to speak in his own behalf. The defendant did not allege that he had been "affirmatively denied an opportunity to speak," that the District Judge had been deprived of any relevant information, or that the defendant "would have had anything at all to say if he had been formally invited to speak." Id., at 429. The defendant established only "a failure to comply with the formal requirements of the Rule," ibid., and alleged no prejudice; on these premises, the Court held the defendant was not entitled to collateral relief, id., at 428-429. So, also, in United States v. Timmreck, collateral relief was unavailable to a defendant who alleged only that the District Court " `fail[ed] to comply with the formal requirements' " of Rule 11 of the Federal Rules of Criminal Procedure by not advising him of a mandatory special parole term to which he was subject. 441 U. S., at 785. The defendant did not argue "that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty." Id., at 784. Having alleged no prejudice, defendant's "only claim [was] of a technical violation of the Rule" insufficient to justify habeas relief. Ibid. In this case, petitioner had full knowledge of his right to appeal, hence the District Court's violation of Rule 32(a)(2) by failing to inform him of that right did not prejudice him. The fact of the violation, standing alone, Hill and Timmreck instruct, does not entitle petitioner to collateral relief. Our decision in Rodriquez v. United States, 395 U. S. 327 (1969), does not hold otherwise. In Rodriquez, the Court held that when counsel fails to file a requested appeal, a defendant is entitled to resentencing and to an appeal without showing that his appeal would likely have had merit. Id., at 329-330. Without questioning the rule in Rodriquez, we conclude its holding is not implicated here because of the District Court's factual finding that petitioner did not request an appeal. While Rodriquez did note the sentencing court's failure to advise the defendant of his right to appeal, it did so only in the course of rejecting the Government's belated argument that the case should be remanded for factfinding to determine the reason counsel had not filed the appeal. The court's failure to advise the defendant of his right was simply one factor — in combination with the untimeliness of the Government's request and the lengthy proceedings and delay the defendant had already endured — that led the Court to conclude that it was "just under the circumstances" to accord the petitioner final relief at that time without further proceedings. Id., at 331-332. This limited and fact-specific conclusion does not support a general rule that a court's failure to advise a defendant of the right to appeal automatically requires resentencing to allow an appeal. Petitioner and his amicus would distinguish Timmreck (and, presumably, Hill) on the ground that the defendant in Timmreck had the opportunity to raise his claim on direct appeal but failed to do so, whereas the absence of the "judicial warning [required by Rule 32(a)(2)] may effectively undermine the defendant's ability to take a direct appeal." Brief for Petitioner 20. This argument, however, provides no basis for holding that a Rule 32(a)(2) oversight, though nonprejudicial, automatically entitles the defendant to habeas relief. Even errors raised on direct appeal are subject to harmless-error review. Rule 52(a) of the Federal Rules of Criminal Procedure prohibits federal courts from granting relief based on errors that "d[o] not affect substantial rights." See Rule 52(a) ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded"); see also Bank of Nova Scotia v. United States, 487 U. S. 250, 254-255 (1988) ("[A] federal court may not invoke supervisory power to circumvent the harmless-error inquiry prescribed by Federal Rule of Criminal Procedure 52(a)... . Rule 52 is, in every pertinent respect, as binding as any statute duly enacted by Congress, and federal courts have no more discretion to disregard the Rule's mandate than they do to disregard constitutional or statutory provisions"). Accordingly, we hold that petitioner is not entitled to habeas relief based on a Rule 32(a)(2) violation when he had independent knowledge of the right to appeal and so was not prejudiced by the trial court's omission. The judgment of the Court of Appeals for the Third Circuit isAffirmed. MANUEL DeJESUS PEGUERO, PETITIONER v.UNITED STATESon writ of certiorari to the united states court ofappeals for the third circuit[March 2, 1999] Justice O'Connor, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, concurring. I join the opinion of the Court, and I write separately to express my views about the meaning of prejudice in this context. When, as here, a district court fails to advise a defendant of his right to appeal, there are two ways in which this error could be said not to have prejudiced the defendant. First, a defendant might not be prejudiced by the error because he already knew about his right to appeal. That is the case here, and the Court properly concludes that under these circumstances, the defendant has not shown that he is entitled to collateral relief. Second, a defendant might not be prejudiced by the district court's failure to advise him of his right to appeal because he had no meritorious grounds for appeal in any event. In my opinion, there is no reason why a defendant should have to demonstrate that he had meritorious grounds for an appeal when he is attempting to show that he was harmed by the district court's error. To require defendants to specify the grounds for their appeal and show that they have some merit would impose a heavy burden on defendants who are often proceeding pro se in an initial 28 U. S. C. §2255 motion. If the district judge had fulfilled his obligation to advise the defendant of his right to appeal, and the defendant had wanted to appeal, he would have had a lawyer to identify and develop his arguments on appeal. The defendant should not be penalized for failing to appeal in the first instance when his failure to appeal is attributable to the errors of a district court judge. This result is consistent with our resolution of Rodriquez v. United States,395 U. S. 327 (1969). In Rodriquez, we held that when a defendant's failure to appeal a conviction is attributable to an error by his lawyer, the defendant is entitled to collateral relief without requiring him to show that his appeal would have had merit. In my view, there is no reason to adopt a different rule when the failure to appeal results from a district judge's error.

In 1942, respondent and two codefendants were convicted in a New York State Court of murder committed during a robbery, and each was sentenced to life imprisonment. The sole evidence against each was his confession. Respondent did not appeal; but his codefendants did. Their appeals were unsuccessful; but subsequent proceedings resulted in their release on the ground that their confessions were coerced and their convictions violated the Fourteenth Amendment. Thereafter, respondent applied to the State Court for a coram nobis review of his conviction; but this was denied ultimately because of his failure to appeal. He then applied to a Federal District Court for a writ of habeas corpus, which was denied on the ground that his failure to appeal was a failure to exhaust available state remedies, within the meaning of 28 U.S.C. 2254, although it was conceded that respondent's confession had been coerced. The Court of Appeals reversed. Held: The judgment of the Court of Appeals is affirmed on other grounds. Pp. 394-441. 1. Under the conditions of modern society, respondent's imprisonment under a conviction procured by a coerced confession, which the State concedes was obtained in violation of the Fourteenth Amendment, is intolerable; and habeas corpus is the appropriate remedy. Pp. 399-415. (a) The basic principle of the Great Writ of habeas corpus is that, in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: If the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release. Pp. 399-402. (b) A review of the history of habeas corpus shows that, when the Suspension Clause, Art. I, 9, Cl. 2, was written into the Federal Constitution and the first Judiciary Act was passed conferring habeas corpus jurisdiction upon the federal judiciary, there was respectable common-law authority for the proposition that habeas corpus was available to remedy any kind of governmental restraint contrary to the fundamental law; and it would appear that the Constitution invites, if it does not compel, a generous construction of the power of the federal courts to dispense the writ conformably with common-law practice. Pp. 402-406. (c) Changed conceptions of the kind of criminal proceedings so fundamentally defective as to make imprisonment under them constitutionally intolerable should not be allowed to obscure the basic continuity in the conception of the writ as a remedy for such imprisonments. Pp. 406-415. 2. The exigencies of federalism do not compel a different result. Pp. 415-426. (a) The rule that a state prisoner must exhaust his remedies in the state courts before applying to a federal court for a writ of habeas corpus, which evolved as a matter of accommodation between state and federal courts and is now codified in 28 U.S.C. 2254, is a doctrine of comity between courts. It is not one defining power but one which relates to the appropriate exercise of power. Pp. 415-420. (b) Save in one decision, which has since been repudiated, this Court has consistently held that, after the state courts had decided the federal question on the merits against the applicant, he could apply to the federal courts for habeas corpus and there relitigate the question. Pp. 420-422. (c) Even if the state court adjudication turns wholly on primary, historical facts, a Federal District Court has a broad power on habeas corpus to hold an evidentiary hearing and determine the facts. P. 422. (d) Conventional notions of finality in criminal litigation cannot be permitted to defeat the manifest federal policy that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review. Pp. 422-424. (e) By relying on a rule of discretion, avowedly flexible and always yielding to "exceptional circumstances," this Court has refused to concede jurisdictional significance to abortive state-court proceedings. Pp. 424-426. 3. Federal courts have power under the federal habeas corpus statute, 28 U.S.C. 2241 et seq., to grant relief despite the applicant's failure to have pursued a state remedy not available to him at the time he applies. The doctrine under which state procedural defaults are held to constitute an adequate and independent state law ground barring direct Supreme Court review is not to be extended to limit the power granted the federal courts under the federal habeas corpus statute. Pp. 398-399, 426-434. (a) Federal court jurisdiction in a habeas corpus proceeding is conferred by the allegation of an unconstitutional restraint, and it is not defeated by anything that may occur in the state proceedings. Pp. 426-427. (b) Due process denied in the state proceedings leading to a conviction is not restored just because a state court declines to adjudicate on the merits the claim of such denial. P. 427. (c) By committing a procedural default, a defendant may be debarred from challenging his conviction in the state courts, even on federal constitutional grounds; but forfeiture of remedies does not legitimize the unconstitutional conduct by which his conviction was procured. Pp. 427-428. (d) The federal courts are not without power to grant habeas corpus relief to an applicant whose federal claims would not be heard on direct review in this Court because of a procedural default furnishing an adequate and independent ground of state decision. Pp. 428-434. 4. Respondent's failure to appeal was not a failure to exhaust "the remedies available in the courts of the State," as required by 28 U.S.C. 2254. That requirement refers only to a failure to exhaust state remedies still open to the applicant at the time he files his application for habeas corpus in the federal court. Pp. 434-435. 5. Darr v. Burford, , is overruled to the extent that it required a state prisoner to seek certiorari in this Court before seeking federal habeas corpus relief. Pp. 435-438. 6. Respondent's failure to appeal cannot, in the circumstances of this case, be deemed an intelligent and understanding waiver of his right to appeal such as to justify the withholding of federal habeas corpus relief. Pp. 399, 438-440. (a) A federal judge may, in his discretion, deny relief to an applicant for habeas corpus who has deliberately by-passed the orderly procedure of state courts and in so doing has forfeited his state-court remedies. P. 438. (b) This grant of discretion is not to be interpreted as permission to introduce legal fictions into federal habeas corpus proceedings. It is applicable only when the petitioner himself has understandingly and knowingly foregone the privilege of seeking to vindicate his federal claims in the state courts. P. 439. (c) In the circumstances of this case, it cannot be said that respondent's failure to appeal justified the withholding of federal habeas corpus relief. Pp. 439-440. 300 F.2d 345, affirmed on other grounds.William I. Siegel argued the cause for petitioners. With him on the brief was Edward S. Silver.Leon B. Polsky argued the cause and filed a brief for respondent.Joseph J. Rose, Assistant Attorney General of New York, argued the cause for the State of New York, as amicus curiae, urging reversal. With him on the brief were Louis J. Lefkowitz, Attorney General, and Paxton Blair, Solicitor General.MR. JUSTICE BRENNAN delivered the opinion of the Court.This case presents important questions touching the federal habeas corpus jurisdiction, 28 U.S.C. 2241 et seq., in its relation to state criminal justice. The narrow question is whether the respondent Noia may be granted federal habeas corpus relief from imprisonment under a New York conviction now admitted by the State to rest upon a confession obtained from him in violation of the Fourteenth Amendment, after he was denied state post-conviction relief because the coerced confession claim had been decided against him at the trial and Noia had allowed the time for a direct appeal to lapse without seeking review by a state appellate court.Noia was convicted in 1942 with Santo Caminito and Frank Bonino in the County Court of Kings County, New York, of a felony murder in the shooting and killing of one Hammeroff during the commission of a robbery. The sole evidence against each defendant was his signed confession. Caminito and Bonino, but not Noia, appealed their convictions to the Appellate Division of the New York Supreme Court. These appeals were unsuccessful, but subsequent legal proceedings resulted in the releases of Caminito and Bonino on findings that their confessions had been coerced and their convictions therefore procured in violation of the Fourteenth Amendment.1 Although it has been stipulated that the coercive nature of Noia's confession was also established,2 the United States District Court for the Southern District of New York held in Noia's federal habeas corpus proceeding that because of his failure to appeal he must be denied relief under the provision of 28 U.S.C. 2254 whereby "An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State ... ." 183 F. Supp. 222 (1960).3 The Court of Appeals for the Second Circuit reversed, one judge dissenting, and ordered that Noia's conviction be set aside and that he be discharged from custody unless given a new trial forthwith. 300 F.2d 345 (1962). The Court of Appeals questioned whether 2254 barred relief on federal habeas corpus where the applicant had failed to exhaust state remedies no longer available to him at the time the habeas proceeding was commenced (here a direct appeal from the conviction), but held that in any event exceptional circumstances were present which excused compliance with the section. The court also rejected other arguments advanced in support of the proposition that the federal remedy was unavailable to Noia. The first was that the denial of state post-conviction coram nobis relief on the ground of Noia's failure to appeal barred habeas relief because such failure constituted an adequate and independent state ground of decision, such that this Court on direct review of the state coram nobis proceedings would have declined to adjudicate the federal questions presented. In rejecting this argument, the court - while expressing the view that "[j]ust as it would be an encroachment on the prerogatives of the state for the Supreme Court upon direct review to disregard the state ground, equally - if not more so - would it be a trespass against the state for a lower federal court, upon a petition for habeas corpus, to disregard the state ground in granting relief to the prisoner," 300 F.2d, at 359 - held that the exceptional circumstances excusing compliance with 2254 also established that Noia's failure to appeal was not a state procedural ground adequate to bar the federal habeas remedy: "The coincidence of these factors: the undisputed violation of a significant constitutional right, the knowledge of this violation brought home to the federal court at the incipiency of the habeas corpus proceeding so forcibly that the state made no effort to contradict it, and the freedom the relator's codefendants now have by virtue of their vindications of the identical constitutional right leads us to conclude that the state procedural ground, that of a simple failure to appeal, reasonable enough to prevent federal judicial intervention in most cases, is in this particular case unreasonable and inadequate." 300 F.2d, at 362. The second argument was that Noia's failure to appeal was to be deemed a waiver of his claim that he had been unconstitutionally convicted. The Court of Appeals rejected this argument on the ground that no waiver could be inferred in the circumstances. Id., at 351-352.We granted certiorari. . We affirm the judgment of the Court of Appeals but reach that court's result by a different course of reasoning. We hold: (1) Federal courts have power under the federal habeas statute to grant relief despite the applicant's failure to have pursued a state remedy not available to him at the time he applies; the doctrine under which state procedural defaults are held to constitute an adequate and independent state law ground barring direct Supreme Court review is not to be extended to limit the power granted the federal courts under the federal habeas statute. (2) Noia's failure to appeal was not a failure to exhaust "the remedies available in the courts of the State" as required by 2254; that requirement refers only to a failure to exhaust state remedies still open to the applicant at the time he files his application for habeas corpus in the federal court. (3) Noia's failure to appeal cannot under the circumstances be deemed an intelligent and understanding waiver of his right to appeal such as to justify the withholding of federal habeas corpus relief.I.The question has been much mooted under what circumstances, if any, the failure of a state prisoner to comply with a state procedural requirement, as a result of which the state courts decline to pass on the merits of his federal defense, bars subsequent resort to the federal courts for relief on habeas corpus.4 Plainly it is a question that has important implications for federal-state relations in the area of the administration of criminal justice. It cannot be answered without a preliminary inquiry into the historical development of the writ of habeas corpus.We do well to bear in mind the extraordinary prestige of the Great Writ, habeas corpus ad subjiciendum,5 in Anglo-American jurisprudence: "the most celebrated writ in the English law." 3 Blackstone Commentaries 129. It is "a writ antecedent to statute, and throwing its root deep into the genius of our common law... . It is perhaps the most important writ known to the constitutional law of England, affording as it does a swift and imperative remedy in all cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its use occurring in the thirty-third year of Edward I." Secretary of State for Home Affairs v. O'Brien, 1923. A. C. 603, 609 (H. L.). Received into our own law in the colonial period,6 given explicit recognition in the Federal Constitution, Art. I, 9, cl. 2,7 incorporated in the first grant of federal court jurisdiction, Act of September 24, 1789, c. 20, 14, 1 Stat. 81-82, habeas corpus was early confirmed by Chief Justice John Marshall to be a "great constitutional privilege." Ex parte Bollman and Swartwout, 4 Cranch 75, 95. Only two Terms ago this Court had occasion to reaffirm the high place of the writ in our jurisprudence: "We repeat what has been so truly said of the federal writ: `there is no higher duty than to maintain it unimpaired,' Bowen v. Johnston, , and unsuspended, save only in the cases specified in our Constitution." Smith v. Bennett, .These are not extravagant expressions. Behind them may be discerned the unceasing contest between personal liberty and government oppression. It is no accident that habeas corpus has time and again played a central role in national crises, wherein the claims of order and of liberty clash most acutely, not only in England in the seventeenth century,8 but also in America from our very beginnings, and today.9 Although in form the Great Writ is simply a mode of procedure, its history is inextricably intertwined with the growth of fundamental rights of personal liberty. For its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release. Thus there is nothing novel in the fact that today habeas corpus in the federal courts provides a mode for the redress of denials of due process of law. Vindication of due process is precisely its historic office. In 1593, for example, a bill was introduced in the House of Commons, which, after deploring the frequency of violations of "the great Charter and auncient good Lawes and statutes of this realme," provided: "Fore remedy whereof be it enacted: That the provisions and prohibicions of the said great Charter and other Lawes in that behalfe made be dulie and inviolatelie observed. And that no person or persons be hereafter committed to prison but yt be by sufficient warrant and Authorities and by due course and proceedings in Lawe ... . "And that the Justice of anie the Queenes Majesties Courts of Recorde at the common Lawe maie awarde a writt of habeas Corpus for the deliverye of anye person so imprisoned ... ."10 Although it was not enacted, this bill accurately pre-figured the union of the right to due process drawn from Magna Charta and the remedy of habeas corpus accomplished in the next century.Of course standards of due process have evolved over the centuries. But the nature and purpose of habeas corpus have remained remarkably constant. History refutes the notion that until recently the writ was available only in a very narrow class of lawless imprisonments. For example, it is not true that at common law habeas corpus was exclusively designed as a remedy for executive detentions; it was early used by the great common-law courts to effect the release of persons detained by order of inferior courts.11 The principle that judicial as well as executive restraints may be intolerable received dramatic expression in Bushell's Case, Vaughan, 135, 124 Eng. Rep. 1006, 6 Howell's State Trials 999 (1670). Bushell was one of the jurors in the trial, held before the Court of Oyer and Terminer at the Old Bailey, of William Penn and William Mead on charges of tumultuous assembly and other crimes. When the jury brought in a verdict of not guilty, the court ordered the jurors committed for contempt. Bushell sought habeas corpus, and the Court of Common Pleas, in a memorable opinion by Chief Justice Vaughan, ordered him discharged from custody. The case is by no means isolated,12 and when habeas corpus practice was codified in the Habeas Corpus Act of 1679, 31 Car. II, c. 2, no distinction was made between executive and judicial detentions.13 Nor is it true that at common law habeas corpus was available only to inquire into the jurisdiction, in a narrow sense, of the committing court. Bushell's Case is again in point. Chief Justice Vaughan did not base his decision on the theory that the Court of Oyer and Terminer had no jurisdiction to commit persons for contempt, but on the plain denial of due process, violative of Magna Charta, of a court's imprisoning the jury because it disagreed with the verdict: "... [W]hen a man is brought by Habeas Corpus to the Court, and upon retorn of it, it appears to the Court, That he was against Law imprison'd and detain'd, ... he shall never be by the Act of the Court remanded to his unlawful imprisonment, for then the Court should do an act of Injustice in imprisoning him, de novo, against Law, whereas the great Charter is Quod nullus libet homo imprisonetur nisi per legem terrae; This is the present case, and this was the case upon all the Presidents [precedents] produc'd and many more that might be produc'd, where upon Habeas Corpus, many have been discharg'd ... . "This appears plainly by many old Books, if the Reason of them be rightly taken, For insufficient causes are as no causes retorn'd; and to send a man back to Prison for no cause retorn'd, seems unworthy of a Court." Vaughan, at 156, 124 Eng. Rep., at 1016, 9 Howell's State Trials, at 1023. To the same effect, we read in Bacon's Abridgment:"[I]f the commitment be against law, as being made by one who had no jurisdiction of the cause, or for a matter for which by law no man ought to be punished, the court are to discharge him ...; and the commitment is liable to the same objection where the cause is so loosely set forth, that the court cannot adjudge whether it were a reasonable ground of imprisonment or not."14 Thus, at the time that the Suspension Clause was written into our Federal Constitution and the first Judiciary Act was passed conferring habeas corpus jurisdiction upon the federal judiciary, there was respectable common-law authority for the proposition that habeas was available to remedy any kind of governmental restraint contrary to fundamental law. In this connection it is significant that neither the Constitution nor the Judiciary Act anywhere defines the writ, although the Act does intimate, 1 Stat. 82, that its issuance is to be "agreeable to the principles and usages of law" - the common law, presumably. We need not pause to consider whether it was the Framers' understanding that congressional refusal to permit the federal courts to accord the writ its full common-law scope as we have described it might constitute an unconstitutional suspension of the privilege of the writ. There have been some intimations of support for such a proposition in decisions of this Court. Thus Mr. Justice (later Chief Justice) Stone wrote for the Court that "[t]he use of the writ ... as an incident of the federal judicial power is implicitly recognized by Article I, 9, Clause 2 of the Constitution." McNally v. Hill, . (Italics supplied.) To the same effect are the words of Chief Justice Chase in Ex parte Yerger, 8 Wall. 85, 95: "The terms of this provision [the Suspension Clause] necessarily imply judicial action." And see United States ex rel. Turner v. Williams, (concurring opinion).15 But at all events it would appear that the Constitution invites, if it does not compel, cf. Byrd v. Blue Ridge Rural Elec. Cooperative, , a generous construction of the power of the federal courts to dispense the writ conformably with common-law practice.The early decision of this Court in Ex parte Watkins, 3 Pet. 193, which held that the judgment of a federal court of competent jurisdiction could not be impeached on habeas, seems to have viewed the power more narrowly; see also Ex parte Kearney, 7 Wheat. 38. But Watkins may have been compelled by factors, affecting peculiarly the jurisdiction of this Court, which are not generally applicable to federal habeas corpus powers. It was plain from the decision in Marbury v. Madison, 1 Cranch 137, 174-175, which had narrowly construed the grant of original jurisdiction to the Supreme Court in Article III, that the Court would have the power to issue writs of habeas corpus only if such issuance could be deemed an exercise of appellate jurisdiction. Confronted with the question in Ex parte Bollman and Swartwout, 4 Cranch 75 - like Watkins, a case of direct application to the Court for the writ - the Court held that the jurisdiction "which the court is now asked to exercise is clearly appellate. It is the revision of a decision of an inferior court, by which a citizen has been committed to gaol." 4 Cranch, at 100. This answer sufficed to enable the discharge of the petitioners, who had been committed (but not tried or convicted) for treason; but at the same time it virtually dictated the result in Watkins. The Court had no general jurisdiction of appeals from federal criminal judgments, see pp. 412-413, infra; if, therefore, the writ of habeas corpus was appellate in nature, its issuance to vacate such a judgment would have the effect of accomplishing indirectly what the Court had no power to do directly. This reasoning is prominent in Chief Justice Marshall's opinion for the Court in Watkins. See 3 Pet., at 203.Strictly, then, Watkins is authority only as to this Court's power to issue the writ; the habeas jurisdiction of the other federal courts and judges, including the individual Justices of the Supreme Court, has generally been deemed original. In re Kaine, 14 How. 103; Ex parte Yerger, 8 Wall. 85, 101. But cf. Ex parte Clarke, . But even as to this Court's power, the life of the principles advanced in Watkins was relatively brief.16 In Ex parte Lange, 18 Wall. 163, again a case of direct application to this Court for the writ, the Court ordered the release of one duly convicted in a Federal Circuit Court. The trial judge, after initially imposing upon the defendant a sentence in excess of the legal maximum, had attempted to correct the error by resentencing him. The Court held this double-sentencing procedure unconstitutional, on the ground of double jeopardy, and while conceding that the Circuit Court had a general competence in criminal cases, reasoned that it had no jurisdiction to render a patently lawless judgment.This marked a return to the common-law principle that restraints contrary to fundamental law, by whatever authority imposed, could be redressed by writ of habeas corpus. See also Ex parte Wells, 18 How. 307; Ex parte Parks, . The principle was clearly stated a few years after the Lange decision by Mr. Justice Bradley, writing for the Court in Ex parte Siebold, :"... The validity of the judgments is assailed on the ground that the acts of Congress under which the indictments were found are unconstitutional. If this position is well taken, it affects the foundation of the whole proceedings. An unconstitutional law is void, and is as no law. An offence created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment. It is true, if no writ of error lies, the judgment may be final, in the sense that there may be no means of reversing it. But personal liberty is of so great moment in the eye of the law that the judgment of an inferior court affecting it is not deemed so conclusive but that ... the question of the court's authority to try and imprison the party may be reviewed on habeas corpus ... ." The course of decisions of this Court from Lange and Siebold to the present makes plain that restraints contrary to our fundamental law, the Constitution, may be challenged on federal habeas corpus even though imposed pursuant to the conviction of a federal court of competent jurisdiction.17 The same principles have consistently been applied in cases of state prisoners seeking habeas corpus in the federal courts, although the development of the law in this area was at first delayed for several reasons. The first Judiciary Act did not extend federal habeas to prisoners in state custody, Ex parte Dorr, 3 How. 103; and shortly after Congress removed this limitation in 1867, it withdrew from this Court jurisdiction of appeals from habeas decisions by the lower federal courts and did not restore it for almost 20 years.18 Moreover, it was not until this century that the Fourteenth Amendment was deemed to apply some of the safeguards of criminal procedure contained in the Bill of Rights to the States. Yet during the period of the withdrawal of the Supreme Court's jurisdiction of habeas appeals, the lower federal courts did not hesitate to discharge state prisoners whose convictions rested on unconstitutional statutes or had otherwise been obtained in derogation of constitutional rights.19 After its jurisdiction had been restored, this Court adhered to the pattern set by the lower federal courts and to the principles enunciated in Ex parte Siebold and the other federal-prisoner cases.20 More recently, further applications of the Fourteenth Amendment in state criminal proceedings have led the Court to find correspondingly more numerous occasions upon which federal habeas would lie.21 Mr. Justice Holmes expressed the rationale behind such decisions in language that sums up virtually the whole history of the Great Writ:"... [H]abeas corpus cuts through all forms and goes to the very tissue of the structure. It comes in from the outside, not in subordination to the proceedings, and although every form may have been preserved opens the inquiry whether they have been more than an empty shell. "The argument for the appellee in substance is that the trial was in a court of competent jurisdiction ... . But ... [w]hatever disagreement there may be as to the scope of the phrase `due process of law,' there can be no doubt that it embraces the fundamental conception of a fair trial ... . We are not speaking of mere disorder, or mere irregularities in procedure, but of a case where the processes of justice are actually subverted. In such a case, the Federal court has jurisdiction to issue the writ. The fact that the state court still has its general jurisdiction and is otherwise a competent court does not make it impossible to find that a jury has been subjected to intimidation in a particular case. The loss of jurisdiction is not general but particular, and proceeds from the control of a hostile influence."22 We do not suggest that this Court has always followed an unwavering line in its conclusions as to the availability of the Great Writ. Our development of the law of federal habeas corpus has been attended, seemingly, with some backing and filling. E. g., Ex parte Parks, ; Ex parte Bigelow, ; In re Belt, ; In re Moran, ; Knewel v. Egan, . Although the remedy extends to federal prisoners held in violation of federal law and not merely of the Federal Constitution, many cases have denied relief upon allegations merely of error of law and not of a substantial constitutional denial. E. g., Ex parte Parks, supra, at 20-21; In re Wight, ; Harlan v. McGourin, ; Eagles v. United States ex rel. Samuels, . Such decisions are not however authorities against applications which invoke the historic office of the Great Writ to redress detentions in violation of fundamental law.23 In some of the cases the denial of the remedy on jurisdictional grounds seems to have been chosen in preference to decision of the merits of constitutional claims felt to be tenuous. E. g., In re Moran, supra; Knewel v. Egan, supra; Goto v. Lane, ; United States v. Valante, .24 And doubtless a powerful influence against the allowance of the remedy to state prisoners flowed from the availability of review of state criminal judgments in this Court as of right. See, e. g., Andrews v. Swartz, . Before 1916 review of such judgments was not discretionary by writ of certiorari but of right by writ of error.25 The occasions on which the extraordinary remedy of habeas corpus was indispensable were therefore few, since the practice of the Court was to put the habeas corpus applicant to his writ of error. E. g., In re Frederich, ; Bergemann v. Backer, . And when the Court had no general appellate jurisdiction of federal criminal judgments, which was the case until 1891,26 the writ was sparingly allowed for the reason stated by Chief Justice Marshall in Ex parte Watkins, supra. Thus, in Bigelow the Court said: "No appeal or writ of error ... lies to this court. The act of Congress has made the judgment of that court [the Supreme Court of the District of Columbia] conclusive, as it had a right to do, and the defendant, having one review of his trial and judgment, has no special reason to complain." 113 U.S., at 329. The same view is apparent in Ex parte Parks, supra, at 20-21; Ex parte Curtis, . Cf. Harlan v. McGourin, supra, 218 U.S., at 448.Nevertheless, the possibly grudging scope given the Great Writ in such cases is overshadowed by the numerous and varied allegations which this Court has deemed cognizable on habeas, not only in the last decades, but continuously since the fetters of the Watkins decision were thrown off in Ex parte Lange. E. g., Ex parte Wilson, (Fifth Amendment grand jury right); In re Converse, (Due Process Clause of Fourteenth Amendment); Rogers v. Peck, (same); Felts v. Murphy, (same); Lott v. Pittman, (same); Callan v. Wilson, (constitutional right to jury trial in federal criminal cases); Hawaii v. Mankichi, (same) (by implication); Arndstein v. McCarthy, (Self-Incrimination Clause of Fifth Amendment); Morgan v. Devine, (double jeopardy); Andersen v. Treat, (Sixth Amendment right to counsel); and see decisions cited at notes 17, 20 and 21, supra.And so, although almost 300 years have elapsed since Bushell's Case, changed conceptions of the kind of criminal proceedings so fundamentally defective as to make imprisonment pursuant to them constitutionally intolerable should not be allowed to obscure the basic continuity in the conception of the writ as the remedy for such imprisonments.It now remains to consider this principle in the application to the present case. It was settled in Brown v. Allen, supra, that the use of a coerced confession in a state criminal trial could be challenged in a federal habeas corpus proceeding. Yet actually the principle had been fore-shadowed much earlier - indeed, in the very first case in which this Court reversed a state conviction on the ground that coerced confessions had been used in evidence. "That complaint is ... of a wrong so fundamental that it made the whole proceeding a mere pretense of a trial and rendered the conviction and sentence wholly void. Moore v. Dempsey ... . [A]nd the proceeding thus vitiated could be challenged in any appropriate manner." Brown v. Mississippi, . Under the conditions of modern society, Noia's imprisonment, under a conviction procured by a confession held by the Court of Appeals in Caminito v. Murphy to have been coerced, and which the State here concedes was obtained in violation of the Fourteenth Amendment, is no less intolerable than was Bushell's under the conditions of a very different society; and habeas corpus is no less the appropriate remedy.II.But, it is argued, a different result is compelled by the exigencies of federalism, which played no role in Bushell's Case.We can appraise this argument only in light of the historical accommodation that has been worked out between the state and federal courts respecting the administration of federal habeas corpus. Our starting point is the Judiciary Act of February 5, 1867, c. 28, 1, 14 Stat. 385-386, which first extended federal habeas corpus to state prisoners generally, and which survives, except for some changes in wording, in the present statutory codification. The original Act and the current provisions are set out in an Appendix at the end of this opinion, post, pp. 441-445. Although the Act of 1867, like its English and American predecessors, nowhere defines habeas corpus, its expansive language and imperative tone, viewed against the background of post-Civil War efforts in Congress to deal severely with the States of the former Confederacy, would seem to make inescapable the conclusion that Congress was enlarging the habeas remedy as previously understood, not only in extending its coverage to state prisoners, but also in making its procedures more efficacious. In 1867, Congress was anticipating resistance to its Reconstruction measures and planning the implementation of the post-war constitutional Amendments. Debated and enacted at the very peak of the Radical Republicans' power, see 2 Warren, The Supreme Court in United States History (1928), 455-497, the measure that became the Act of 1867 seems plainly to have been designed to furnish a method additional to and independent of direct Supreme Court review of state court decisions for the vindication of the new constitutional guarantees. Congress seems to have had no thought, thus, that a state prisoner should abide state court determination of his constitutional defense - the necessary predicate of direct review by this Court - before resorting to federal habeas corpus. Rather, a remedy almost in the nature of removal from the state to the federal courts of state prisoners' constitutional contentions seems to have been envisaged. See Ex parte Bridges, 2 Woods 428, 432 (Cir. Ct. N. D. Ga. 1875); Ex parte McCready, 1 Hughes 598 (Cir. Ct. E. D. Va. 1874). Compare Rev. Stat., 1874, 641 (providing for removal to Federal Circuit Court "When any civil suit or criminal prosecution is commenced in any State court, for any cause whatsoever, against any person who is denied or cannot enforce in the judicial tribunals of the State ... any right secured to him by any law providing for the equal civil rights of citizens of the United States"); Virginia v. Rives, .The elaborate provisions in the Act for taking testimony and trying the facts anew in habeas hearings27 lend support to this conclusion, as does the legislative history of House bill No. 605, which became, with slight changes, the Act of February 5, 1867. The bill was introduced in response to a resolution of the House on December 19, 1865, asking the Judiciary Committee to determine "what legislation is necessary to enable the courts of the United States to enforce the freedom of the wives and children of soldiers of the United States ... and also to enforce the liberty of all persons under the operation of the constitutional amendment abolishing slavery." Cong. Globe, 39th Cong., 1st Sess. 87. The terms in which it was described by its proponent, Representative Lawrence of Ohio, leave little doubt of the breadth of its intended scope: "the effect of ... [bill No. 605] is to enlarge the privilege of the writ of hobeas [sic] corpus, and make the jurisdiction of the courts and judges of the United States coextensive with all the powers that can be conferred upon them. It is a bill of the largest liberty." Cong. Globe, 39th Cong., 1st Sess. 4151 (1866). This Court, shortly after the passage of the Act, described it in equally broad terms: "This legislation is of the most comprehensive character. It brings within the habeas corpus jurisdiction of every court and of every judge every possible case of privation of liberty contrary to the National Constitution, treaties, or laws. It is impossible to widen this jurisdiction." Ex parte McCardle, 6 Wall. 318, 325-326.In thus extending the habeas corpus power of the federal courts evidently to what was conceived to be its constitutional limit, the Act of February 5, 1867, clearly enough portended difficult problems concerning the relationship of the state and federal courts in the area of criminal administration. Such problems were not slow to mature. Only eight years after passage of the Act, Mr. Justice Bradley, sitting as Circuit Justice, held that a convicted state prisoner who had not sought any state appellate or collateral remedies could nevertheless win immediate release on federal habeas if he proved the unconstitutionality of his conviction; although the judgment was not final within the state court system, the federal court had the power to inquire into the legality of the prisoner's detention. Ex parte Bridges, supra. Accord, Ex parte McCready, supra. This holding flowed inexorably from the clear congressional policy of affording a federal forum for the determination of the federal claims of state criminal defendants, and it was explicitly approved by the full Court in Ex parte Royall, , a case in which habeas had been sought in advance of trial. The Court held that even in such a case the federal courts had the power to discharge a state prisoner restrained in violation of the Federal Constitution, see 117 U.S., at 245, 250-251, but that ordinarily the federal court should stay its hand on habeas pending completion of the state court proceedings. This qualification plainly stemmed from considerations of comity rather than power, and envisaged only the postponement, not the relinquishment, of federal habeas corpus jurisdiction, which had attached by reason of the allegedly unconstitutional detention and could not be ousted by what the state court might decide. As well stated in a later case: "... While the Federal courts have the power and may discharge the accused in advance of his trial, if he is restrained of his liberty in violation of the Federal Constitution or laws, ... the practice of exercising such power before the question has been raised or determined in the state court is one which ought not to be encouraged. The party charged waives no defect of jurisdiction by submitting to a trial of his case upon the merits, and we think that comity demands that the state courts, under whose process he is held, and which are equally with the Federal courts charged with the duty of protecting the accused in the enjoyment of his constitutional rights, should be appealed to in the first instance. Should such rights be denied, his remedy in the Federal court will remain unimpaired."28 These decisions fashioned a doctrine of abstention, whereby full play would be allowed the States in the administration of their criminal justice without prejudice to federal rights enwoven in the state proceedings. Thus the Court has frequently held that application for a writ of habeas corpus should have been denied "without prejudice to a renewal of the same after the accused had availed himself of such remedies as the laws of the State afforded ... ." Minnesota v. Brundage, . See also Ex parte Royall, supra, at 254. With refinements, this doctrine requiring the exhaustion of state remedies is now codified in 28 U.S.C. 2254.29 But its rationale has not changed: "it would be unseemly in our dual system of government for a federal district court to upset a state court conviction without an opportunity to the state courts to correct a constitutional violation ... . Solution was found in the doctrine of comity between courts, a doctrine which teaches that one court should defer action on causes properly within its jurisdiction until the courts of another sovereignty with concurrent powers, and already cognizant of the litigation, have had an opportunity to pass upon the matter." Darr v. Burford, . The rule of exhaustion "is not one defining power but one which relates to the appropriate exercise of power." Bowen v. Johnston, . Cf. Stack v. Boyle, ; Frisbie v. Collins, ; Douglas v. Green, .The reasoning of Ex parte Royall and its progeny suggested that after the state courts had decided the federal question on the merits against the habeas petitioner, he could return to the federal court on habeas and there relitigate the question, else a rule of timing would become a rule circumscribing the power of the federal courts on habeas, in defiance of unmistakable congressional intent. And so this Court has consistently held, save only in Frank v. Mangum, . In that case, the State Supreme Court had rejected on the merits petitioner's contention of mob domination at his trial, and this Court held that habeas would not lie because the State had afforded petitioner corrective process. However, the decision seems grounded not in any want of power, for the Court described the federal courts' habeas powers in the broadest terms, 237 U.S., at 330-331, but rather in a narrow conception of due process in state criminal justice. The Court felt that so long as Frank had had an opportunity to challenge his conviction in some impartial tribunal, such as the State Supreme Court, he had been afforded the process he was constitutionally due. The majority's position in Frank, however, was substantially repudiated in Moore v. Dempsey, , a case almost identical in all pertinent respects to Frank. Mr. Justice Holmes, writing for the Court in Moore (he had written the dissenting opinion in Frank), said: "if in fact a trial is dominated by a mob so that there is an actual interference with the course of justice, there is a departure from due process of law; ... [if] the State Courts failed to correct the wrong, ... perfection in the machinery for correction ... can[not] prevent this Court from securing to the petitioners their constitutional rights." 261 U.S., at 90-91. It was settled in Moore, restoring what evidently had been the assumption until Frank, see, e. g., Cook v. Hart, ; and cases cited in note 28, supra, that the state courts' view of the merits was not entitled to conclusive weight. We have not deviated from that position.30 Thus, we have left the weight to be given a particular state court adjudication of a federal claim later pressed on habeas substantially in the discretion of the Federal District Court: "the state adjudication carries the weight that federal practice gives to the conclusion of a court ... of another jurisdiction on federal constitutional issues. It is not res judicata." Brown v. Allen, supra, at 458 (opinion of Mr. Justice Reed). "... [N]o binding weight is to be attached to the State determination. The congressional requirement is greater. The State court cannot have the last say when it, though on fair consideration and what procedurally may be deemed fairness, may have misconceived a federal constitutional right." 344 U.S., at 508 (opinion of Mr. Justice Frankfurter). Even if the state court adjudication turns wholly on primary, historical facts, the Federal District Court has a broad power on habeas to hold an evidentiary hearing and determine the facts.31 The breadth of the federal courts' power of independent adjudication on habeas corpus stems from the very nature of the writ, and conforms with the classic English practice.32 As put by Mr. Justice Holmes in his dissenting opinion in Frank v. Mangum, supra, at 348: "If the petition discloses facts that amount to a loss of jurisdiction in the trial court, jurisdiction could not be restored by any decision above." It is of the historical essence of habeas corpus that it lies to test proceedings so fundamentally lawless that imprisonment pursuant to them is not merely erroneous but void. Hence, the familiar principle that res judicata is inapplicable in habeas proceedings, see, e. g., Darr v. Burford, ; Salinger v. Loisel, ; Frank v. Mangum, ; Church, Habeas Corpus (1884), 386, is really but an instance of the larger principle that void judgments may be collaterally impeached. Restatement, Judgments (1942), 7, 11; Note, Res Judicata, 65 Harv. L. Rev. 818, 850 (1952). Cf. Windsor v. McVeigh, . So also, the traditional characterization of the writ of habeas corpus as an original (save perhaps when issued by this Court33) civil remedy for the enforcement of the right to personal liberty,34 rather than as a stage of the state criminal proceedings or as an appeal therefrom, emphasizes the independence of the federal habeas proceedings from what has gone before. This is not to say that a state criminal judgment resting on a constitutional error is void for all purposes. But conventional notions of finality in criminal litigation cannot be permitted to defeat the manifest federal policy that federal constitutional rights of personal liberty shall not be denied without the fullest opportunity for plenary federal judicial review.Despite the Court's refusal to give binding weight to state court determinations of the merits in habeas, it has not infrequently suggested that where the state court declines to reach the merits because of a procedural default, the federal courts may be foreclosed from granting the relief sought on habeas corpus.35 But the Court's practice in this area has been far from uniform,36 and even greater divergency has characterized the practice of the lower federal courts.37 For the present, however, it suffices to note that rarely, if ever, has the Court predicated its deference to state procedural rules on a want of power to entertain a habeas application where a procedural default was committed by the defendant in the state courts. Typically, the Court, like the District Court in the instant case, has approached the problem as an aspect of the rule requiring exhaustion of state remedies, which is not a rule distributing power as between the state and federal courts. See pp. 417-420, supra. That was the approach taken in the Spencer and Daniels decisions, the most emphatic in their statement of deference to state rules of procedure. The same considerations of comity that led the Court to refuse relief to one who had not yet availed himself of his state remedies likewise prompted the refusal of relief to one who had inexcusably failed to tender the federal questions to the state courts. Either situation poses a threat to the orderly administration of criminal justice that ought if possible to be averted. Whether in fact the conduct of a Spencer or a Daniels was inexcusable in this sense is beside the point, as is the arguable illogicality of turning a rule of timing into a doctrine of forfeitures. The point is that the Court, by relying upon a rule of discretion, avowedly flexible, Frisbie v. Collins, , yielding always to "exceptional circumstances," Bowen v. Johnston, , has refused to concede jurisdictional significance to the abortive state court proceeding.III.We have reviewed the development of habeas corpus at some length because the question of the instant case has obvious importance to the proper accommodation of a great constitutional privilege and the requirements of the federal system. Our survey discloses nothing to suggest that the Federal District Court lacked the power to order Noia discharged because of a procedural forfeiture he may have incurred under state law. On the contrary, the nature of the writ at common law, the language and purpose of the Act of February 5, 1867, and the course of decisions in this Court extending over nearly a century are wholly irreconcilable with such a limitation. At the time the privilege of the writ was written into the Federal Constitution it was settled that the writ lay to test any restraint contrary to fundamental law, which in England stemmed ultimately from Magna Charta but in this country was embodied in the written Constitution. Congress in 1867 sought to provide a federal forum for state prisoners having constitutional defenses by extending the habeas corpus powers of the federal courts to their constitutional maximum. Obedient to this purpose, we have consistently held that federal court jurisdiction is conferred by the allegation of an unconstitutional restraint and is not defeated by anything that may occur in the state court proceedings. State procedural rules plainly must yield to this overriding federal policy.A number of arguments are advanced against this conclusion. One, which concedes the breadth of federal habeas power, is that a state prisoner who forfeits his opportunity to vindicate federal defenses in the state court has been given all the process that is constitutionally due him, and hence is not restrained contrary to the Constitution. But this wholly misconceives the scope of due process of law, which comprehends not only the right to be heard but also a number of explicit procedural rights - for example, the right not to be convicted upon evidence which includes one's coerced confession - drawn from the Bill of Rights. As Mr. Justice Holmes explained in Moore v. Dempsey, see pp. 421-422, supra, a mob-dominated trial is no less a denial of due process because the State Supreme Court believed that the trial was actually a fair one. A fortiori, due process denied in the proceedings leading to conviction is not restored just because the state court declines to adjudicate the claimed denial on the merits.A variant of this argument is that if the state court declines to entertain a federal defense because of a procedural default, then the prisoner's custody is actually due to the default rather than to the underlying constitutional infringement, so that he is not in custody in violation of federal law.38 But this ignores the important difference between rights and particular remedies. Cf. Douglas v. Jeannette, ; Stefanelli v. Minard, ; Wolf v. Colorado, . A defendant by committing a procedural default may be debarred from challenging his conviction in the state courts even on federal constitutional grounds. But a forfeiture of remedies does not legitimize the unconstitutional conduct by which his conviction was procured. Would Noia's failure to appeal have precluded him from bringing an action under the Civil Rights Acts against his inquisitors? The Act of February 5, 1867, like the Civil Rights Acts, was intended to furnish an independent, collateral remedy for certain privations of liberty. The conceptual difficulty of regarding a default as extinguishing the substantive right is increased where, as in Noia's case, the default forecloses extraordinary remedies. In what sense is Noia's custody not in violation of federal law simply because New York will not allow him to challenge it on coram nobis or on delayed appeal? But conceptual problems aside, it should be obvious that to turn the instant case on the meaning of "custody in violation of the Constitution" is to reason in circles. The very question we face is how completely federal remedies fall with the state remedies; when we have answered this, we shall know in what sense custody may be rendered lawful by a supervening procedural default.It is a familiar principle that this Court will decline to review state court judgments which rest on independent and adequate state grounds, notwithstanding the copresence of federal grounds. See, e. g., NAACP v. Alabama ex rel. Patterson, ; Fox Film Corp. v. Muller, . Section 25 of the Judiciary Act of 1789, c. 20, 1 Stat. 85-87, denied this Court power to base the reversal of a state court decision on any error other "than such as ... immediately respects ... questions of validity or construction of the said [Federal] constitution, treaties, statutes, commissions, or authorities in dispute." The deletion of the express restriction by the Judiciary Act of February 5, 1867, c. 28, 2, 14 Stat. 386-387, did not enlarge this Court's power in that regard. Murdock v. Memphis, 20 Wall. 590. Murdock was a case involving state substantive grounds, but the principle is also applicable in cases involving procedural grounds. See, e. g., Herb v. Pitcairn, ; Davis v. Wechsler, ; Ward v. Board of County Comm'rs, . Thus, a default such as Noia's, if deemed adequate and independent (a question on which we intimate no view), would cut off review by this Court of the state coram nobis proceeding in which the New York Court of Appeals refused him relief. It is contended that it follows from this that the remedy of federal habeas corpus is likewise cut off.39 The fatal weakness of this contention is its failure to recognize that the adequate state-ground rule is a function of the limitations of appellate review. Most of the opinion in the Murdock case is devoted to demonstrating the Court's lack of jurisdiction on direct review to decide questions of state law in cases also raising federal questions. It followed from this holding that if the state question was dispositive of the case, the Court could not decide the federal question. The federal question was moot; nothing turned on its resolution. And so we have held that the adequate state-ground rule is a consequence of the Court's obligation to refrain from rendering advisory opinions or passing upon moot questions.40 But while our appellate function is concerned only with the judgments or decrees of state courts, the habeas corpus jurisdiction of the lower federal courts is not so confined. The jurisdictional prerequisite is not the judgment of a state court but detention simpliciter. The entire course of decisions in this Court elaborating the rule of exhaustion of state remedies is wholly incompatible with the proposition that a state court judgment is required to confer federal habeas jurisdiction. And the broad power of the federal courts under 28 U.S.C. 2243 summarily to hear the application and to "determine the facts, and dispose of the matter as law and justice require," is hardly characteristic of an appellate jurisdiction. Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him. Indeed, it has no other power; it cannot revise the state court judgment; it can act only on the body of the petitioner. Medley, Petitioner, .To be sure, this may not be the entire answer to the contention that the adequate state-ground principle should apply to the federal courts on habeas corpus as well as to the Supreme Court on direct review of state judgments. The Murdock decision may be supported not only by the factor of mootness, but in addition by certain characteristics of the federal system. The first question the Court had to decide in Murdock was whether it had the power to review state questions in cases also raising federal questions. It held that it did not, thus affirming the independence of the States in matters within the proper sphere of their lawmaking power from federal judicial interference. For the federal courts to refuse to give effect in habeas proceedings to state procedural defaults might conceivably have some effect upon the States' regulation of their criminal procedures. But the problem is crucially different from that posed in Murdock of the federal courts' deciding questions of substantive state law. In Noia's case the only relevant substantive law is federal - the Fourteenth Amendment. State law appears only in the procedural framework for adjudicating the substantive federal question. The paramount interest is federal. Cf. Dice v. Akron, C. & Y. R. Co., . That is not to say that the States have not a substantial interest in exacting compliance with their procedural rules from criminal defendants asserting federal defenses. Of course orderly criminal procedure is a desideratum, and of course there must be sanctions for the flouting of such procedure. But that state interest "competes ... against an ideal ... [the] ideal of fair procedure." Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 5 (1956). And the only concrete impact the assumption of federal habeas jurisdiction in the face of a procedural default has on the state interest we have described, is that it prevents the State from closing off the convicted defendant's last opportunity to vindicate his constitutional rights, thereby punishing him for his default and deterring others who might commit similar defaults in the future.Surely this state interest in an airtight system of forfeitures is of a different order from that, vindicated in Murdock, in the autonomy of state law within the proper sphere of its substantive regulation. The difference is illustrated in the settled principle that if a prisoner is detained lawfully under one count of the indictment, he cannot challenge the lawfulness of a second count on federal habeas. McNally v. Hill, . For the federal court to order the release of such a prisoner would be to nullify a proceeding - that under the first count - wholly outside the orbit of federal interest. Contrariwise, the only count under which Noia was convicted and imprisoned is admitted to be vitiated by force of federal law.Certainly this Court has differentiated the two situations in its application of the adequate state-ground rule. While it has deferred to state substantive grounds so long as they are not patently evasive of or discriminatory against federal rights, it has sometimes refused to defer to state procedural grounds only because they made burdensome the vindication of federal rights.41 That the Court nevertheless ordinarily gives effect to state procedural grounds may be attributed to considerations which are peculiar to the Court's role and function and have no relevance to habeas corpus proceedings in the Federal District Courts: the unfamiliarity of members of this Court with the minutiae of 50 States' procedures; the inappropriateness of crowding our docket with questions turning wholly on particular state procedures; the web of rules and statutes that circumscribes our appellate jurisdiction; and the inherent and historical limitations of such a jurisdiction.A practical appraisal of the state interest here involved plainly does not justify the federal courts' enforcing on habeas corpus a doctrine of forfeitures under the guise of applying the adequate state-ground rule. We fully grant, see p. 438, infra, that the exigencies of federalism warrant a limitation whereby the federal judge has the discretion to deny relief to one who has deliberately sought to subvert or evade the orderly adjudication of his federal defenses in the state courts. Surely no stricter rule is a realistic necessity. A man under conviction for crime has an obvious inducement to do his very best to keep his state remedies open, and not stake his all on the outcome of a federal habeas proceeding which, in many respects, may be less advantageous to him than a state court proceeding. See Rogers v. Richmond, . And if because of inadvertence or neglect he runs afoul of a state procedural requirement, and thereby forfeits his state remedies, appellate and collateral, as well as direct review thereof in this Court, those consequences should be sufficient to vindicate the State's valid interest in orderly procedure. Whatever residuum of state interest there may be under such circumstances is manifestly insufficient in the face of the federal policy, drawn from the ancient principles of the writ of habeas corpus, embodied both in the Federal Constitution and in the habeas corpus provisions of the Judicial Code, and consistently upheld by this Court, of affording an effective remedy for restraints contrary to the Constitution. For these several reasons we reject as unsound in principle, as well as not supported by authority, the suggestion that the federal courts are without power to grant habeas relief to an applicant whose federal claims would not be heard on direct review in this Court because of a procedural default furnishing an adequate and independent ground of state decision.What we have said substantially disposes of the further contention that 28 U.S.C. 2254 embodies a doctrine of forfeitures and cuts off relief when there has been a failure to exhaust state remedies no longer available at the time habeas is sought. This contention is refuted by the language of the statute and by its history.42 It was enacted to codify the judicially evolved rule of exhaustion, particularly as formulated in Ex parte Hawk, . See the review of the legislative history in Darr v. Burford, . Nothing in the Hawk opinion points to past exhaustion. Very little support can be found in the long course of previous decisions by this Court elaborating the rule of exhaustion for the proposition that it was regarded at the time of the revision of the Judicial Code as jurisdictional rather than merely as a rule ordering the state and federal proceedings so as to eliminate unnecessary federal-state friction. There is thus no warrant for attributing to Congress, in the teeth of the language of 2254, intent to work a radical innovation in the law of habeas corpus. We hold that 2254 is limited in its application to failure to exhaust state remedies still open to the habeas applicant at the time he files his application in federal court.43 Parenthetically, we note that our holding in Irvin v. Dowd, , is not inconsistent. Our holding there was that since the Indiana Supreme Court had reached the merits of Irvin's federal claim, the District Court was not barred by 2254 from determining the merits of Irvin's constitutional contentions.IV.Noia timely sought and was denied certiorari here from the adverse decision of the New York Court of Appeals on his coram nobis application, and therefore the case does not necessarily draw in question the continued vitality of the holding in Darr v. Burford, supra, that a state prisoner must ordinarily seek certiorari in this Court as a precondition of applying for federal habeas corpus. But what we hold today necessarily overrules Darr v. Burford to the extent it may be thought to have barred a state prisoner from federal habeas relief if he had failed timely to seek certiorari in this Court from an adverse state decision. Furthermore, our decision today affects all procedural hurdles to the achievement of swift and imperative justice on habeas corpus, and because the hurdle erected by Darr v. Burford is unjustifiable under the principles we have expressed, even insofar as it may be deemed merely an aspect of the statutory requirement of present exhaustion, that decision in that respect also is hereby overruled.The soundness of the decision was questioned from the beginning. See Pollock, Certiorari and Habeas Corpus, 42 J. of Crim. L. 356, 357-358, n. 15, 364 (1951). Section 2254 speaks only of "remedies available in the courts of the State." Nevertheless, the Court in Darr v. Burford put a gloss upon these words to include petitioning for certiorari in this Court, which is not the court of any State, among the remedies that an applicant must exhaust before proceeding in federal habeas corpus. It is true that before the enactment of 2254 the Court had spoken of the obligation to seek review in this Court before applying for habeas. E. g., Baker v. Grice, ; Markuson v. Boucher, . But that was at the time when review of state criminal judgments in this Court was by writ of error. Review here was thus a stage of the normal appellate process. The writ of certiorari, which today provides the usual mode of invoking this Court's appellate jurisdiction of state criminal judgments, "is not a matter of right, but of sound judicial discretion, and will be granted only where there are special and important reasons therefor." Supreme Court Rule 19 (1). Review on certiorari therefore does not provide a normal appellate channel in any sense comparable to the writ of error.It is also true that Ex parte Hawk, , a decision cited in the Reviser's Note to 2254, intimated in dictum that exhaustion might comprehend seeking certiorari here. 321 U.S., at 116-117. But that passing reference cannot be exalted into an attribution to Congress of a design patently belied by the unequivocal statutory language. The rationale of Darr v. Burford emphasized the values of comity between the state and federal courts, and assumed that these values would be realized by requiring a state criminal defendant to afford this Court an opportunity to pass upon state action before he might seek relief in federal habeas corpus. But the expectation has not been realized in experience. On the contrary the requirement of Darr v. Burford has proved only to be an unnecessarily burdensome step in the orderly processing of the federal claims of those convicted of state crimes. The goal of prompt and fair criminal justice has been impeded because in the overwhelming number of cases the applications for certiorari have been denied for failure to meet the standard of Rule 19. And the demands upon our time in the examination and decision of the large volume of petitions which fail to meet that test have unwarrantably taxed the resources of this Court. Indeed, it has happened that counsel on oral argument has confessed that the record was insufficient to justify our consideration of the case but that he had felt compelled to make the futile time-consuming application in order to qualify for proceeding in a Federal District Court on habeas corpus to make a proper record. Bullock v. South Carolina, . And so in a number of cases the Court has apparently excused compliance with the requirement. See, e. g., Weston v. Sigler, ; Bailey v. Arkansas, ; Poret v. Sigler, ; Massey v. Moore, . Cf. Thomas v. Arizona, , n. 1. The same practice has sometimes been followed in the Federal District Courts. See Reitz, Federal Habeas Corpus: Postconviction Remedy for State Prisoners, 108 U. of Pa. L. Rev. 461, 499 (1960).Moreover, comity does not demand that such a price in squandered judicial resources be paid; the needs of comity are adequately served in other ways. The requirement that the habeas petitioner exhaust state court remedies available to him when he applies for federal habeas corpus relief gives state courts the opportunity to pass upon and correct errors of federal law in the state prisoner's conviction. And the availability to the States of eventual review on certiorari of such decisions of lower federal courts as may grant relief is always open. Our function of making the ultimate accommodation between state criminal law enforcement and state prisoners' constitutional rights becomes more meaningful when grounded in the full and complete record which the lower federal courts on habeas corpus are in a position to provide.V.Although we hold that the jurisdiction of the federal courts on habeas corpus is not affected by procedural defaults incurred by the applicant during the state court proceedings, we recognize a limited discretion in the federal judge to deny relief to an applicant under certain circumstances. Discretion is implicit in the statutory command that the judge, after granting the writ and holding a hearing of appropriate scope, "dispose of the matter as law and justice require," 28 U.S.C. 2243; and discretion was the flexible concept employed by the federal courts in developing the exhaustion rule. Furthermore, habeas corpus has traditionally been regarded as governed by equitable principles. United States ex rel. Smith v. Baldi, (dissenting opinion). Among them is the principle that a suitor's conduct in relation to the matter at hand may disentitle him to the relief he seeks. Narrowly circumscribed, in conformity to the historical role of the writ of habeas corpus as an effective and imperative remedy for detentions contrary to fundamental law, the principle is unexceptionable. We therefore hold that the federal habeas judge may in his discretion deny relief to an applicant who has deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies. But we wish to make very clear that this grant of discretion is not to be interpreted as a permission to introduce legal fictions into federal habeas corpus. The classic definition of waiver enunciated in Johnson v. Zerbst, - "an intentional relinquishment or abandonment of a known right or privilege" - furnishes the controlling standard. If a habeas applicant, after consultation with competent counsel or otherwise, understandingly and knowingly forewent the privilege of seeking to vindicate his federal claims in the state courts, whether for strategic, tactical, or any other reasons that can fairly be described as the deliberate by-passing of state procedures, then it is open to the federal court on habeas to deny him all relief if the state courts refused to entertain his federal claims on the merits - though of course only after the federal court has satisfied itself, by holding a hearing or by some other means, of the facts bearing upon the applicant's default. Cf. Price v. Johnston, . At all events we wish it clearly understood that the standard here put forth depends on the considered choice of the petitioner.44 Cf. Carnley v. Cochran, ; Moore v. Michigan, . A choice made by counsel not participated in by the petitioner does not automatically bar relief. Nor does a state court's finding of waiver bar independent determination of the question by the federal courts on habeas, for waiver affecting federal rights is a federal question. E. g., Rice v. Olson, .The application of the standard we have adumbrated to the facts of the instant case is not difficult. Under no reasonable view can the State's version of Noia's reason for not appealing support an inference of deliberate by-passing of the state court system. For Noia to have appealed in 1942 would have been to run a substantial risk of electrocution. His was the grisly choice whether to sit content with life imprisonment or to travel the uncertain avenue of appeal which, if successful, might well have led to a retrial and death sentence. See, e. g., Palko v. Connecticut, . He declined to play Russian roulette in this fashion. This was a choice by Noia not to appeal, but under the circumstances it cannot realistically be deemed a merely tactical or strategic litigation step, or in any way a deliberate circumvention of state procedures. This is not to say that in every case where a heavier penalty, even the death penalty, is a risk incurred by taking an appeal or otherwise foregoing a procedural right, waiver as we have defined it cannot be found. Each case must stand on its facts. In the instant case, the language of the judge in sentencing Noia, see note 3, supra, made the risk that Noia, if reconvicted, would be sentenced to death, palpable and indeed unusually acute.VI.It should be unnecessary to repeat what so often has been said and what so plainly is the case: that the availability of the Great Writ of habeas corpus in the federal courts for persons in the custody of the States offends no legitimate state interest in the enforcement of criminal justice or procedure. Our decision today swings open no prison gates. Today as always few indeed is the number of state prisoners who eventually win their freedom by means of federal habeas corpus.45 Those few who are ultimately successful are persons whom society has grievously wronged and for whom belated liberation is little enough compensation. Surely no fair-minded person will contend that those who have been deprived of their liberty without due process of law ought nevertheless to languish in prison. Noia, no less than his codefendants Caminito and Bonino, is conceded to have been the victim of unconstitutional state action. Noia's case stands on its own; but surely no just and humane legal system can tolerate a result whereby a Caminito and a Bonino are at liberty because their confessions were found to have been coerced yet a Noia, whose confession was also coerced, remains in jail for life. For such anomalies, such affronts to the conscience of a civilized society, habeas corpus is predestined by its historical role in the struggle for personal liberty to be the ultimate remedy. If the States withhold effective remedy, the federal courts have the power and the duty to provide it. Habeas corpus is one of the precious heritages of Anglo-American civilization. We do no more today than confirm its continuing efficacy. Affirmed. APPENDIX TO OPINION OF THE COURT. The Judiciary Act of February 5, 1867, c. 28, 1, 14 Stat. 385-386:... [T]he several courts of the United States, and the several justices and judges of such courts, within their respective jurisdictions, in addition to the authority already conferred by law, shall have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the constitution, or of any treaty or law of the United States; and it shall be lawful for such person so restrained of his or her liberty to apply to either of said justices or judges for a writ of habeas corpus, which application shall be in writing and verified by affidavit, and shall set forth the facts concerning the detention of the party applying, in whose custody he or she is detained, and by virtue of what claim or authority, if known; and the said justice or judge to whom such application shall be made shall forthwith award a writ of habeas corpus, unless it shall appear from the petition itself that the party is not deprived of his or her liberty in contravention of the constitution or laws of the United States. Said writ shall be directed to the person in whose custody the party is detained, who shall make return of said writ and bring the party before the judge who granted the writ, and certify the true cause of the detention of such person within three days thereafter, unless such person be detained beyond the distance of twenty miles; and if beyond the distance of twenty miles and not above one hundred miles, then within ten days; and if beyond the distance of one hundred miles, then within twenty days. And upon the return of the writ of habeas corpus a day shall be set for the hearing of the cause, not exceeding five days thereafter, unless the party petitioning shall request a longer time. The petitioner may deny any of the material facts set forth in the return, or may allege any fact to show that the detention is in contravention of the constitution or laws of the United States, which allegations or denials shall be made on oath. The said return may be amended by leave of the court or judge before or after the same is filed, as also may all suggestions made against it, that thereby the material facts may be ascertained. The said court or judge shall proceed in a summary way to determine the facts of the case, by hearing testimony and the arguments of the parties interested, and if it shall appear that the petitioner is deprived of his or her liberty in contravention of the constitution or laws of the United States, he or she shall forthwith be discharged and set at liberty. And if any person or persons to whom such writ of habeas corpus may be directed shall refuse to obey the same, or shall neglect or refuse to make return, or shall make a false return thereto, in addition to the remedies already given by law, he or they shall be deemed and taken to be guilty of a misdemeanor, and shall, on conviction before any court of competent jurisdiction, be punished by fine not exceeding one thousand dollars, and by imprisonment not exceeding one year, or by either, according to the nature and aggravation of the case. From the final decision of any judge, justice, or court, inferior to the circuit court, an appeal may be taken to the circuit court of the United States for the district in which said cause is heard, and from the judgment of said circuit court to the Supreme Court of the United States, on such terms and under such regulations and orders, as well for the custody and appearance of the person alleged to be restrained of his or her liberty, as for sending up to the appellate tribunal a transcript of the petition, writ of habeas corpus, return thereto, and other proceedings, as may be prescribed by the Supreme Court, or, in default of such, as the judge hearing said cause may prescribe; and pending such proceedings or appeal, and until final judgment be rendered therein, and after final judgment of discharge in the same, any proceeding against such person so alleged to be restrained of his or her liberty in any State court, or by or under the authority of any State, for any matter or thing so heard and determined, or in process of being heard and determined, under and by virtue of such writ of habeas corpus, shall be deemed null and void. 28 U.S.C. 2241:(a) Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions... .... . . (c) The writ of habeas corpus shall not extend to a prisoner unless - ... . . (3) He is in custody in violation of the Constitution or laws or treaties of the United States ... .28 U.S.C. 2243:A court, justice or judge entertaining an application for a writ of habeas corpus shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.The writ, or order to show cause shall be directed to the person having custody of the person detained. It shall be returned within three days unless for good cause additional time, not exceeding twenty days, is allowed.The person to whom the writ or order is directed shall make a return certifying the true cause of the detention.When the writ or order is returned a day shall be set for hearing, not more than five days after the return unless for good cause additional time is allowed.Unless the application for the writ and the return present only issues of law the person to whom the writ is directed shall be required to produce at the hearing the body of the person detained.The applicant or the person detained may, under oath, deny any of the facts set forth in the return or allege any other material facts. The return and all suggestions made against it may be amended, by leave of court, before or after being filed.The court shall summarily hear and determine the facts, and dispose of the matter as law and justice require.

Vacated and remanded. Keith B. Nordyke argued the cause for petitioner. With him on the brief were June E. Denlinger and Joe Giarrusso, Jr.Rene I. Salomon, Assistant Attorney General of Louisiana, argued the cause for respondent. With him on the breif were William J. Guste, Jr., Attorney General, and M. Patricia Jones, Assistant Attorney General.* [Footnote *] Briefs of amici curiae urging reversal were filed by the American Psychiatric Association et al. by Joel N. Onek, Richard G. Taranto, Carter G. Phillips, and Kirk B. Johnson; and for the Coalition for Fundamental Rights and Equality of Ex-patients by Peter Margulies.PER CURIAMThe judgment is vacated and the case is remanded to the 19th Judicial District Court of Louisiana for further consideration in light of Washington v. Harper, It is so ordered.JUSTICE SOUTER took no part in the consideration or decision of this case.

Trial court's "accomplice instruction," in effect requiring the jury to decide that a defense witness' testimony was "true beyond a reasonable doubt" before considering that testimony, impermissibly obstructed the right of a criminal defendant to present exculpatory testimony of an accomplice (Washington v. Texas, ); and it unfairly reduced the prosecution's burden of proof, since it is possible that the testimony would have created a reasonable doubt in the minds of the jury, but that it was not considered because the testimony itself was not believable beyond a reasonable doubt. Cf. In re Winship, . Certiorari granted; 461 F.2d 521, reversed and remanded.PER CURIAM.The petition for a writ of certiorari is granted.In this case, the court below held in effect that in a criminal trial, the jury may be instructed to ignore defense testimony unless it believes beyond a reasonable doubt that the testimony is true. That holding is fundamentally inconsistent with our prior decisions in In re Winship, , and Washington v. Texas, , and must therefore be reversed.After a jury trial, petitioner was found guilty of possessing and concealing, with intent to defraud, counterfeit obligations of the United States. The evidence showed that on June 2, 1970, petitioner, her husband, and one Robert E. Voyles were traveling together by car between St. Louis, Missouri, and Brazil, Indiana. Upon reaching Brazil, Voyles left petitioner and her husband and passed two counterfeit bills at a local store. He was then arrested shortly after he entered the car in which petitioner and her husband were waiting.After his arrest, Voyles was placed in the police car and taken to the station house. Petitioner and her husband were told to follow in their own car. A Mr. Baumunk testified that he saw petitioner throw a paper sack out of the car window as petitioner was following the police car. The bag was subsequently found to contain counterfeit bills. Police also found three counterfeit bills crumpled up under the right seat of petitioner's car.Although petitioner testified in her own defense, she relied primarily on the testimony of Voyles. Voyles freely admitted his own guilt,1 but steadfastly insisted that neither petitioner nor her husband had anything to do with the crime. He testified that petitioner had merely agreed to give him a ride and knew nothing about the counterfeit bills that he carried with him. When the car stopped in Brazil, Voyles allegedly removed some of the counterfeit bills from his satchel which he kept in petitioner's trunk, and concealed the rest of the bills in a sack which he placed under the front bumper by the headlight. The defense argued that it was this sack that Baumunk saw fall to the ground as petitioner drove to the police station. Voyles also stated that after he had rejoined petitioner, he saw police approaching the car and threw the remaining bills on his person onto the car floor, again without the knowledge of petitioner. Petitioner thus asserts that she was not in knowing possession of the bills on the car floor.With the case in this posture, the Government's position clearly depended upon its ability to discredit Voyles, since his testimony was completely exculpatory. Over strenuous defense objection,2 the trial judge gave the jury a lengthy "accomplice instruction" to be used in evaluating Voyles' testimony. After first defining the word "accomplice" and warning that an accomplice's testimony is "open to suspicion," the judge made the following statement: "However, I charge you that the testimony of an accomplice is competent evidence and it is for you to pass upon the credibility thereof. If the testimony carries conviction and you are convinced it is true beyond a reasonable doubt, the jury should give it the same effect as you would to a witness not in any respect implicated in the alleged crime and you are not only justified, but it is your duty, not to throw this testimony out because it comes from a tainted source." (Emphasis added.)The clear implication of this instruction was that the jury should disregard Voyles' testimony unless it was "convinced it is true beyond a reasonable doubt."3 Such an instruction places an improper burden on the defense and allows the jury to convict despite its failure to find guilt beyond a reasonable doubt.4 Accomplice instructions have long been in use and have been repeatedly approved. See, e. g., Holmgren v. United States, . In most instances, they represent no more than a commonsense recognition that an accomplice may have a special interest in testifying, thus casting doubt upon his veracity. See, e. g., Crawford v. United States, . But in most of the recorded cases, the instruction has been used when the accomplice turned State's evidence and testified against the defendant. See generally McMillen v. United States, 386 F.2d 29 (CA1 1967), and cases cited therein. No constitutional problem is posed when the judge instructs a jury to receive the prosecution's accomplice testimony "with care and caution." See, e. g., United States v. George, 319 F.2d 77, 80 (CA6 1963). Cf. United States v. Nolte, 440 F.2d 1124 (CA5 1971). But there is an essential difference between instructing a jury on the care with which it should scrutinize certain evidence in determining how much weight to accord it and instructing a jury, as the judge did here, that as a predicate to the consideration of certain evidence, it must find it true beyond a reasonable doubt.In Washington v. Texas, supra, we held that a criminal defendant has a Sixth Amendment right to present to the jury exculpatory testimony of an accomplice. The instruction given below impermissibly obstructs the exercise of that right by totally excluding relevant evidence unless the jury makes a preliminary determination that it is extremely reliable.Moreover, the instruction also has the effect of substantially reducing the Government's burden of proof. We held in In re Winship, supra, that the Constitution requires proof of guilt beyond a reasonable doubt. It is possible that Voyles' testimony would have created a reasonable doubt in the minds of the jury, but that it was not considered because the testimony itself was not believable beyond a reasonable doubt. By creating an artificial barrier to the consideration of relevant defense testimony putatively credible by a preponderance of the evidence, the trial judge reduced the level of proof necessary for the Government to carry its burden. Indeed, where, as here, the defendant's case rests almost entirely on accomplice testimony, the effect of the judge's instructions is to require the defendant to establish his innocence beyond a reasonable doubt.Because such a requirement is plainly inconsistent with the constitutionally rooted presumption of innocence, the conviction must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Title 39 U.S.C. 3001(e)(2) prohibits the mailing of unsolicited advertisements for contraceptives. When appellee manufacturer of contraceptives proposed to mail to the public unsolicited advertisements including informational pamphlets promoting its products but also discussing venereal disease and family planning, the Postal Service notified appellee that the proposed mailings would violate 3001(e)(2). Appellee then brought an action for declaratory and injunctive relief in Federal District Court, which held that the statute, as applied to the proposed mailings, violated the First Amendment.Held: As applied to appellee's proposed mailings, 3001(e)(2) is unconstitutional. Pp. 64-75. (a) The mailings, which are concededly advertisements, refer to specific products, and are economically motivated, constitute commercial speech notwithstanding the fact that they contain discussions of important public issues such as the prevention of venereal disease and family planning. Pp. 64-68. (b) Advertising for contraceptives not only implicates "substantial individual and societal interests" in the free flow of commercial information, but also relates to activity that is protected from unwarranted governmental interference. Thus, appellee's proposed commercial speech is clearly protected by the First Amendment. P. 69. (c) Neither of the interests asserted by appellants - that 3001(e)(2) shields recipients of mail from materials that they are likely to find offensive and aids parents' efforts to control the manner in which their children become informed about birth control - is sufficient to justify the sweeping prohibition on the mailing of unsolicited contraceptive advertisements. The fact that protected speech may be offensive to some persons does not justify its suppression, and, in any event, recipients of objectionable mailings can avoid further offensiveness simply by averting their eyes or disposing of the mailings in a trash can. While the second asserted interest is substantial, 3001(e)(2) as a means of effectuating this interest fails to withstand scrutiny. The statute's marginal degree of protection afforded those parents who desire to keep their children from confronting such mailings is improperly achieved by purging all mailboxes of unsolicited material that is entirely suitable for adults. Section 3001(e)(2) is also defective because it denies parents truthful information bearing on their ability to discuss birth control and to make informed decisions in this area. Pp. 70-75. 526 F. Supp. 823, affirmed.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE, BLACKMUN, and POWELL, JJ., joined. REHNQUIST, J., filed an opinion concurring in the judgment, in which O'CONNOR, J., joined, post, p. 75. STEVENS, J., filed an opinion concurring in the judgment, post, p. 80. BRENNAN, J., took no part in the decision of the case.David A. Strauss argued the cause for appellants. With him on the briefs were Solicitor General Lee and Deputy Solicitor General Geller.Jerold S. Solovy argued the cause for appellee. With him on the brief were Robert L. Graham and Laura A. Kaster.* [Footnote *] Robert D. Joffe, Eve W. Paul, and Dara Klassel filed a brief for the Planned Parenthood Federation of America, Inc., et al. as amici curiae urging affirmance.Michael L. Burack, Charles S. Sims, and Janet Benshoof filed a brief for the American Civil Liberties Union as amicus curiae.JUSTICE MARSHALL delivered the opinion of the Court.Title 39 U.S.C. 3001(e)(2) prohibits the mailing of unsolicited advertisements for contraceptives. The District Court held that, as applied to appellee's mailings, the statute violates the First Amendment. We affirm.ISection 3001(e)(2) states that "[a]ny unsolicited advertisement of matter which is designed, adapted, or intended for preventing conception is nonmailable matter, shall not be carried or delivered by mail, and shall be disposed of as the Postal Service directs ... ."1 As interpreted by Postal Service regulations,2 the statutory provision does not apply to unsolicited advertisements in which the mailer has no commercial interest. In addition to the civil consequences of a violation of 3001(e)(2), 18 U.S.C. 1461 makes it a crime knowingly to use the mails for anything declared by 3001(e) to be nonmailable.3 Appellee Youngs Drug Products Corp. (Youngs) is engaged in the manufacture, sale, and distribution of contraceptives. Youngs markets its products primarily through sales to chain warehouses and wholesale distributors, who in turn sell contraceptives to retail pharmacists, who then sell those products to individual customers. Appellee publicizes the availability and desirability of its products by various methods. This litigation resulted from Youngs' decision to undertake a campaign of unsolicited mass mailings to members of the public. In conjunction with its wholesalers and retailers, Youngs seeks to mail to the public on an unsolicited basis three types of materials:- multi-page, multi-item flyers promoting a large variety of products available at a drugstore, including prophylactics;- flyers exclusively or substantially devoted to promoting prophylactics;- informational pamphlets discussing the desirability and availability of prophylactics in general or Youngs' products in particular.4 In 1979 the Postal Service traced to a wholesaler of Youngs' products an allegation of an unsolicited mailing of contraceptive advertisements. The Service warned the wholesaler that the mailing violated 39 U.S.C. 3001(e)(2). Subsequently, Youngs contacted the Service and furnished it with copies of Youngs' three types of proposed mailings, stating its view that the statute could not constitutionally restrict the mailings. The Service rejected Youngs' legal argument and notified the company that the proposed mailings would violate 3001(e)(2). Youngs then brought this action for declaratory and injunctive relief in the United States District Court for the District of Columbia. It claimed that the statute, as applied to its proposed mailings, violated the First Amendment and that Youngs and its wholesaler were refraining from distributing the advertisements because of the Service's warning.The District Court determined that 3001(e)(2), by its plain language, prohibited all three types of proposed mailings. The court then addressed the constitutionality of the statute as applied to these mailings. Finding all three types of materials to be commercial solicitations, the court considered the constitutionality of the statute within the framework established by this Court for analyzing restrictions imposed on commercial speech. The court concluded that the statutory prohibition was more extensive than necessary to the interests asserted by the Government, and it therefore held that the statute's absolute ban on the three types of mailings violated the First Amendment.5 526 F. Supp. 823 (1981).Appellants brought this direct appeal pursuant to 28 U.S.C. 1252, see United States v. Darusmont, , and we noted probable jurisdiction, .IIBeginning with Bigelow v. Virginia, , this Court extended the protection of the First Amendment to commercial speech.6 Nonetheless, our decisions have recognized "the `common-sense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." Ohralik v. Ohio State Bar Assn., . Thus, we have held that the Constitution accords less protection to commercial speech than to other constitutionally safeguarded forms of expression. Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, ; Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., , n. 24 (1976).For example, as a general matter, "the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Department of Chicago v. Mosley, . With respect to noncommercial speech, this Court has sustained content-based restrictions only in the most extraordinary circumstances.7 See Consolidated Edison Co. v. Public Service Comm'n of New York, ; Stone, Restrictions of Speech Because of its Content: The Peculiar Case of Subject-Matter Restrictions, 46 U. Chi. L. Rev. 81, 82 (1978). By contrast, regulation of commercial speech based on content is less problematic. In light of the greater potential for deception or confusion in the context of certain advertising messages, see In re R. M. J., , content-based restrictions on commercial speech may be permissible. See Friedman v. Rogers, (upholding prohibition on use of trade names by optometrists).Because the degree of protection afforded by the First Amendment depends on whether the activity sought to be regulated constitutes commercial or noncommercial speech, we must first determine the proper classification of the mailings at issue here. Appellee contends that its proposed mailings constitute "fully protected" speech, so that 3001(e)(2) amounts to an impermissible content-based restriction on such expression.8 Appellants argue,9 and the District Court held,10 that the proposed mailings are all commercial speech. The application of 3001(e)(2) to appellee's proposed mailings must be examined carefully to ensure that speech deserving of greater constitutional protection is not inadvertently suppressed.11 Most of appellee's mailings fall within the core notion of commercial speech - "speech which does `no more than propose a commercial transaction.'" Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., supra, at 762, quoting Pittsburgh Press Co. v. Human Relations Comm'n, .12 Youngs' informational pamphlets, however, cannot be characterized merely as proposals to engage in commercial transactions. Their proper classification as commercial or noncommercial speech thus presents a closer question. The mere fact that these pamphlets are conceded to be advertisements clearly does not compel the conclusion that they are commercial speech. See New York Times Co. v. Sullivan, . Similarly, the reference to a specific product does not by itself render the pamphlets commercial speech.13 See Associated Students for Univ. of Cal. at Riverside v. Attorney General, 368 F. Supp. 11, 24 (CD Cal. 1973). Finally, the fact that Youngs has an economic motivation for mailing the pamphlets would clearly be insufficient by itself to turn the materials into commercial speech. See Bigelow v. Virginia, 421 U.S., at 818; Ginzburg v. United States, ; Thornhill v. Alabama, .The combination of all these characteristics, however, provides strong support for the District Court's conclusion that the informational pamphlets are properly characterized as commercial speech.14 The mailings constitute commercial speech notwithstanding the fact that they contain discussions of important public issues15 such as venereal disease and family planning. We have made clear that advertising which "links a product to a current public debate" is not thereby entitled to the constitutional protection afforded noncommercial speech. Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S., at 563, n. 5. A company has the full panoply of protections available to its direct comments on public issues,16 so there is no reason for providing similar constitutional protection when such statements are made in the context of commercial transactions. See ibid. Advertisers should not be permitted to immunize false or misleading product information from government regulation simply by including references to public issues. Cf. Metromedia, Inc. v. San Diego, (BRENNAN, J., concurring in judgment).We conclude, therefore, that all of the mailings in this case are entitled to the qualified but nonetheless substantial protection accorded to commercial speech.III"The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation." Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S., at 563. In Central Hudson we adopted a four-part analysis for assessing the validity of restrictions on commercial speech. First, we determine whether the expression is constitutionally protected. For commercial speech to receive such protection, "it at least must concern lawful activity and not be misleading." Id., at 566. Second, we ask whether the governmental interest is substantial. If so, we must then determine whether the regulation directly advances the government interest asserted, and whether it is not more extensive than necessary to serve that interest. Ibid. Applying this analysis, we conclude that 3001(e)(2) is unconstitutional as applied to appellee's mailings. We turn first to the protection afforded by the First Amendment. The State may deal effectively with false, deceptive, or misleading sales techniques. Virginia Pharmacy Board v. Virginia Citizens Consumer Council, Inc., 425 U.S., at 771-772. The State may also prohibit commercial speech related to illegal behavior. Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S., at 388. In this case, however, appellants have never claimed that Youngs' proposed mailings fall into any of these categories. To the contrary, advertising for contraceptives not only implicates "`substantial individual and societal interests'" in the free flow of commercial information, but also relates to activity which is protected from unwarranted state interference. See Carey v. Population Services International, , quoting Virginia Pharmacy Board, supra, at 760, 763-766.17 Youngs' proposed commercial speech is therefore clearly protected by the First Amendment. Indeed, where - as in this case - a speaker desires to convey truthful information relevant to important social issues such as family planning and the prevention of venereal disease, we have previously found the First Amendment interest served by such speech paramount. See Carey v. Population Services International, supra; Bigelow v. Virginia, supra.18 We must next determine whether the Government's interest in prohibiting the mailing of unsolicited contraceptive advertisements is a substantial one. The prohibition in 3001(e)(2) originated in 1873 as part of the Comstock Act, a criminal statute designed "for the suppression of Trade in and Circulation of obscene Literature and Articles of immoral Use." Act of Mar. 3, 1873, ch. 258, 2, 17 Stat. 599.19 Appellants do not purport to rely on justifications for the statute offered during the 19th century.20 Instead, they advance interests that concededly were not asserted when the prohibition was enacted into law.21 This reliance is permissible since the insufficiency of the original motivation does not diminish other interests that the restriction may now serve. See Ohralik v. Ohio State Bar Assn., 436 U.S., at 460. Cf. Doe v. Bolton, (a State may readjust its views and emphases in light of modern knowledge).In particular, appellants assert that the statute (1) shields recipients of mail from materials that they are likely to find offensive and (2) aids parents' efforts to control the manner in which their children become informed about sensitive and important subjects such as birth control.22 The first of these interests carries little weight. In striking down a state prohibition of contraceptive advertisements in Carey v. Population Services International, supra, we stated that offensiveness was "classically not [a] justificatio[n] validating the suppression of expression protected by the First Amendment. At least where obscenity is not involved, we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression." 431 U.S., at 701.23 We specifically declined to recognize a distinction between commercial and noncommercial speech that would render this interest a sufficient justification for a prohibition of commercial speech. Id., at 701, n. 28.Recognizing that their reliance on this interest is "problematic,"24 appellants attempt to avoid the clear import of Carey by emphasizing that 3001(e)(2) is aimed at the mailing of materials to the home. We have, of course, recognized the important interest in allowing addressees to give notice to a mailer that they wish no further mailings which, in their sole discretion, they believe to be erotically arousing or sexually provocative. See Rowan v. Post Office Department, (upholding the constitutionality of 39 U.S.C. 3008).25 But we have never held that the Government itself can shut off the flow of mailings to protect those recipients who might potentially be offended. The First Amendment "does not permit the government to prohibit speech as intrusive unless the `captive' audience cannot avoid objectionable speech." Consolidated Edison Co. v. Public Service Comm'n of New York, 447 U.S., at 542. Recipients of objectionable mailings, however, may "`effectively avoid further bombardment of their sensibilities simply by averting their eyes.'" Ibid., quoting Cohen v. California, . Consequently, the "short, though regular, journey from mail box to trash can ... is an acceptable burden, at least so far as the Constitution is concerned." Lamont v. Commissioner of Motor Vehicles, 269 F. Supp. 880, 883(SDNY), summarily aff'd, 386 F.2d 449 (CA2 1967), cert. denied, . The second interest asserted by appellants - aiding parents' efforts to discuss birth control with their children - is undoubtedly substantial. "[P]arents have an important `guiding role' to play in the upbringing of their children ... which presumptively includes counseling them on important decisions." H. L. v. Matheson, , quoting Bellotti v. Baird, . As a means of effectuating this interest, however, 3001(e)(2) fails to withstand scrutiny.To begin with, 3001(e)(2) provides only the most limited incremental support for the interest asserted. We can reasonably assume that parents already exercise substantial control over the disposition of mail once it enters their mailboxes. Under 39 U.S.C. 3008, parents can also exercise control over information that flows into their mailboxes. And parents must already cope with the multitude of external stimuli that color their children's perception of sensitive subjects.26 Under these circumstances, a ban on unsolicited advertisements serves only to assist those parents who desire to keep their children from confronting such mailings, who are otherwise unable to do so, and whose children have remained relatively free from such stimuli.This marginal degree of protection is achieved by purging all mailboxes of unsolicited material that is entirely suitable for adults. We have previously made clear that a restriction of this scope is more extensive than the Constitution permits, for the government may not "reduce the adult population ... to reading only what is fit for children." Butler v. Michigan, .27 The level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox. In FCC v. Pacifica Foundation, , this Court did recognize that the Government's interest in protecting the young justified special treatment of an afternoon broadcast heard by adults as well as children.28 At the same time, the majority "emphasize[d] the narrowness of our holding," id., at 750, explaining that broadcasting is "uniquely pervasive" and that it is "uniquely accessible to children, even those too young to read." Id., at 748-749 (emphasis added). The receipt of mail is far less intrusive and uncontrollable. Our decisions have recognized that the special interest of the Federal Government in regulation of the broadcast media29 does not readily translate into a justification for regulation of other means of communication. See Consolidated Edison Co. v. Public Service Comm'n of New York, supra, at 542-543; FCC v. Pacifica Foundation, supra, at 748 (broadcasting has received the most limited First Amendment protection).Section 3001(e)(2) is also defective because it denies to parents truthful information bearing on their ability to discuss birth control and to make informed decisions in this area.30 See Associated Students for Univ. of Cal. at Riverside v. Attorney General, 368 F. Supp., at 21. Cf. Carey v. Population Services International, 431 U.S., at 708 (POWELL, J., concurring in part and concurring in judgment) (provision prohibiting parents from distributing contraceptives to children constitutes "direct interference with ... parental guidance"). Because the proscribed information "may bear on one of the most important decisions" parents have a right to make, the restriction of "the free flow of truthful information" constitutes a "basic" constitutional defect regardless of the strength of the government's interest. Linmark Associates, Inc. v. Willingboro, .IVWe thus conclude that the justifications offered by appellants are insufficient to warrant the sweeping prohibition on the mailing of unsolicited contraceptive advertisements. As applied to appellee's mailings, 3001(e)(2) is unconstitutional. The judgment of the District Court is therefore Affirmed. JUSTICE BRENNAN took no part in the decision of this case.

Section 103(a) of the Internal Revenue Code exempts from a taxpayer's gross income the interest earned on the obligations of any State. Section 103 was amended by the Tax Equity and Fiscal Responsibility Act of 1982, which added a new provision, 103(j)(1), to the Internal Revenue Code. Section 103(j)(1) requires that "registration-required obligation[s]" be issued in registered, rather than bearer, form to qualify for the 103(a) exemption. If a registration-required obligation is issued in bearer, rather than registered, form, 103(j)(1) provides that the interest is taxable. South Carolina asks leave to file a complaint against the Secretary of the Treasury, seeking injunctive and other relief on the ground that 103(j)(1) is invalid as violative of the Tenth Amendment and the doctrine of intergovernmental tax immunity. The Secretary argues that the action is barred by the Anti-Injunction Act, which provides that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed."Held: The motion for leave to file the complaint is granted. JUSTICE BRENNAN delivered the opinion of the Court with respect to Parts I and II, concluding that the Anti-Injunction Act does not bar the action. Pp. 373-381. (a) The Act's purposes and the circumstances of its enactment indicate that it does not apply to actions brought by aggrieved parties, such as South Carolina, for whom Congress has not provided an alternative forum in which to litigate their claims. Here, if South Carolina issues bearer bonds, its bondholders, by virtue of 103(j)(1), will be liable for the tax on the interest earned on those bonds. South Carolina will incur no tax liability. Under these circumstances, the State will be unable to utilize any statutory procedure to contest the constitutionality of 103(j)(1). Pp. 373-380. (b) The indicia of congressional intent also demonstrate that Congress did not intend the Anti-Injunction Act to apply where an aggrieved party would be required to depend on the mere possibility of persuading a third party to assert his claims. The nature of the remedy proposed by the Secretary that the State may obtain judicial review of its claims by issuing bearer bonds and urging a purchaser of those bonds to bring a suit contesting the legality of 103(j)(1), only buttresses the conclusion that the Act was not intended to apply to this kind of action. Reliance on such proposed remedy would create the risk that the Act would entirely deprive the State of any opportunity to obtain review of its claims. Pp. 380-381. JUSTICE BRENNAN, joined by CHIEF JUSTICE BURGER, JUSTICE WHITE, and JUSTICE MARSHALL, concluded in Part III that since the manner in which a State may exercise its borrowing power is a question of vital importance to all States, it is appropriate for this Court to exercise its discretion in favor of hearing this case. But since the record is presently not sufficiently developed to permit the merits to be addressed, a Special Master will be appointed to develop the record. Pp. 381-382. JUSTICE BLACKMUN concluded that because the suit is not one "for the purpose of restraining the assessment or collection of any tax," the Anti-Injunction Act is no bar to South Carolina's ability to bring the suit in another court. Nevertheless, because the issue presented is substantial and of concern to a number of States, and because prompt resolution of the issue in this Court will benefit all concerned, the grant of leave to file is a proper exercise of the Court's discretion. P. 384. JUSTICE O'CONNOR, joined by JUSTICE POWELL and JUSTICE REHNQUIST, concluded that, although great deference is due the congressional policy against premature judicial interference with federal taxes, it is proper to exercise this Court's original jurisdiction where South Carolina has demonstrated injury of "serious magnitude" and that it has no adequate alternative forum in which to raise its unique claims. Pp. 400-402. BRENNAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which BURGER, C. J., and WHITE, MARSHALL, and STEVENS, JJ., joined, and an opinion with respect to Part III, in which BURGER, C. J., and WHITE and MARSHALL, JJ., joined. BLACKMUN, J., filed an opinion concurring in the judgment, post, p. 382. O'CONNOR, J., filed an opinion concurring in the judgment, in which POWELL and REHNQUIST, JJ., joined, post, p. 384. STEVENS, J., filed an opinion concurring in part and dissenting in part, post, p. 403.Huger Sinkler argued the cause for plaintiff. With him on the briefs were Karen LeCraft Henderson, T. Travis Medlock, Attorney General of South Carolina, C. Tolbert Goolsby, Jr., Chief Deputy Attorney General, and David C. Eckstrom and Grady L. Patterson III, Assistant Attorneys General.Susan Lee Voss, Assistant Attorney General of Texas, argued the cause for the State of Texas et al. as amici curiae. With her on the brief were Jim Mattox, Attorney General of Texas, David R. Richards, Executive Assistant Attorney General, and Robert T. Lewis and Michael Cafiso, Assistant Attorneys General, and the Attorneys General for their respective States as follows: Norman C. Gorsuch of Alaska, Robert K. Corbin of Arizona, Michael J. Bowers of Georgia, Linley E. Pearson of Indiana, Thomas J. Miller of Iowa, William J. Guste, Jr., of Louisiana, Stephen H. Sachs of Maryland, William A. Allain of Mississippi, John D. Ashcroft of Missouri, Michael T. Greely of Montana, Brian McKay of Nevada, Gregory H. Smith of New Hampshire, Rufus L. Edmisten of North Carolina, Robert Wefald of North Dakota, Anthony Celebrezze of Ohio, Michael K. Turpin of Oklahoma, LeRoy S. Zimmerman of Pennsylvania, Dennis J. Roberts II of Rhode Island, William L. Leech, Jr., of Tennessee, John J. Easton, Jr., of Vermont, Gerald L. Baliles of Virginia, Bronson C. La Follette of Wisconsin, and Archie G. McClintock of Wyoming.Deputy Solicitor General Claiborne argued the cause for defendant. With him on the briefs were Solicitor General Lee, Assistant Attorney General Archer, Stuart A. Smith, Michael L. Paup, and Ernest J. Brown.* [Footnote *] Briefs of amici curiae were filed for the City of Baltimore et al. by Benjamin Brown, J. Lamar Shelley, John W. Witt, Roger F. Cutler, Roy D. Bates, George Agnost, Robert J. Alfton, Mark Aronchick, James K. Baker, James P. McGuire, Clifford D. Pierce, Jr., William H. Taube, William I. Thornton, Jr., Henry W. Underhill, Jr., and Charles S. Rhyne; and for the National Association of Counties et al. by Lawrence R. Velvel and Dennis A. Dutterer. JUSTICE BRENNAN delivered the opinion of the Court.FnSouth Carolina invokes the Court's original jurisdiction1 and asks leave to file a complaint against Donald T. Regan, the Secretary of the Treasury of the United States. The State seeks an injunction and other relief, on the ground that 103(j)(1) of the Internal Revenue Code of 1954, 26 U.S.C. 103(j) (1) (1982 ed.), as added by 310(b)(1) of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), Pub. L. 97-248, 96 Stat. 596, is constitutionally invalid as violative of the Tenth Amendment and the doctrine of intergovernmental tax immunity.The Secretary objects to the motion on the ground that the Anti-Injunction Act, 26 U.S.C. 7421(a), bars this action2 and, alternatively, that the Court should exercise its discretion to deny leave to file. We are not persuaded that either is a ground for denying the motion, and therefore grant the motion for leave to file the complaint.ISection 103(a) of the Internal Revenue Code (IRC) exempts from a taxpayer's gross income the interest earned on the obligations of any State.3 In 1982, however, as part of TEFRA, Congress amended 103 to restrict the types of bonds that qualify for the tax exemption granted by that section. Specifically, 310(b)(1) of TEFRA added a new provision, 103(j)(1), to the Code. Section 103(j)(1) requires that certain obligations, termed "registration-required obligation[s]," be issued in registered,4 rather than bearer, form to qualify for the 103(a) exemption.5 For purposes of 103 (j)(1), registration-required obligations are defined broadly to include most publicly issued obligations with maturities greater than one year.6 If an obligation that is registration-required is issued in bearer, rather than registered, form, then 103(j)(1) provides that the interest on that obligation is taxable.Because the imposition of a tax on bearer bonds would require a State to pay its bondholders a higher rate of interest on such bonds, South Carolina argues that the practical effect of 103(j)(1) is to require it to issue its obligations in registered form. For that reason, South Carolina argues that the section destroys its freedom to issue obligations in the form that it chooses. Viewing its borrowing power as essential to the maintenance of its separate and independent existence, South Carolina contends that the condition imposed by 103 (j)(1) on the exercise of that power violates the Tenth Amendment. In addition, relying on Pollock v. Farmers' Loan & Trust Co., , South Carolina argues that Congress may not tax the interest earned on the obligations of a State. Because 103(j)(1) imposes a tax on the interest earned on state obligations issued in bearer form, the State argues that the section is unconstitutional. Accordingly, South Carolina asks that its motion to file the complaint be granted and that this Court award declaratory, injunctive, and other appropriate relief.7 The Secretary does not address the merits of the State's constitutional claims. Rather, he argues that we may not grant the motion to file because this action is barred by the Anti-Injunction Act. The Act provides, in pertinent part, that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed."8 Characterizing this action as a suit to "restrai[n] the assessment or collection of" a tax, the Secretary contends that this suit is barred by the statute. The Secretary argues that Enochs v. Williams Packing & Navigation Co., , establishes the single judicially created exception to the Act and that this action does not fall within that exception. We need not address whether this case falls within the Williams Packing exception for we hold that the Act was not intended to bar an action where, as here, Congress has not provided the plaintiff with an alternative legal way to challenge the validity of a tax.9 IIWhen enacted in 1867, the forerunner of the current Anti-Injunction Act provided that "no suit for the purpose of restraining the assessment or collection of tax shall be maintained in any court." Act of Mar. 2, 1867, 10, 14 Stat. 475.10 Although the Act apparently has no recorded legislative history, Bob Jones University v. Simon, , the circumstances of its enactment strongly suggest that Congress intended the Act to bar a suit only in situations in which Congress had provided the aggrieved party with an alternative legal avenue by which to contest the legality of a particular tax.The Act originated as an amendment to a statute that provided that"[n]o suit shall be maintained in any court for the recovery of any tax alleged to have been erroneously or illegally assessed or collected, until appeal shall have been duly made to the commissioner of internal revenue ... and a decision of said commissioner shall be had thereon, unless such suit shall be brought within six months from the time of said decision ... ." Internal Revenue Act of July 13, 1866, 19, 14 Stat. 152. The Anti-Injunction Act amended this statute by adding the prohibition against injunctions. Act of Mar. 2, 1867, 10, 14 Stat. 475. The Act, therefore, prohibited injunctions in the context of a statutory scheme that provided an alternative remedy. As we explained in Snyder v. Marks, , "[t]he remedy of a suit to recover back the tax after it is paid is provided by statute, and a suit to restrain its collection is forbidden." This is cogent evidence that the 1867 amendment was merely intended to require taxpayers to litigate their claims in a designated proceeding.The Secretary argues that, regardless of whether other remedies are available, a plaintiff may only sue to restrain the collection of taxes if it satisfies the narrow exception to the Act enunciated in Williams Packing, supra. Williams Packing did not, however, ever address, let alone decide, the question whether the Act applies when Congress has provided no alternative remedy. Indeed, as we shall see, a careful reading of Williams Packing and its progeny supports our conclusion that the Act was not intended to apply in the absence of such a remedy.Williams Packing was a taxpayer's suit to enjoin the District Director of the Internal Revenue Service from collecting allegedly past-due social security and unemployment taxes. The Court concluded that the Anti-Injunction Act would not apply if the taxpayer (1) was certain to succeed on the merits, and (2) could demonstrate that collection would cause him irreparable harm. 370 U.S., at 6-7. Finding that the first condition had not been met, the Court concluded that the Act barred the suit. Significantly, however, Congress had provided the plaintiff in Williams Packing with the alternative remedy of a suit for a refund. Id., at 7.In each of this Court's subsequent cases that have applied the Williams Packing rule, the plaintiff had the option of paying the tax and bringing a suit for a refund. Moreover, these cases make clear that the Court in Williams Packing and its progeny did not intend to decide whether the Act would apply to an aggrieved party who could not bring a suit for a refund. For example, in Bob Jones, supra, the taxpayer sought to prevent the Service from revoking its tax-exempt status under IRC 501(c)(3). Because the suit would have restrained the collection of income taxes from the taxpayer and its contributors, as well as the collection of federal social security and unemployment taxes from the taxpayer, the Court concluded that the suit was an action to restrain "the assessment or collection of any tax" within the meaning of the Anti-Injunction Act. 416 U.S., at 738-739. Applying the Williams Packing test, the Court found that the Act barred the suit because the taxpayer failed to demonstrate that it was certain to succeed on the merits. 416 U.S., at 749. In rejecting the taxpayer's challenge to the Act on due process grounds, however, the Court relied on the availability of a refund suit, noting that "our conclusion might well be different" if the aggrieved party had no access to judicial review. Id., at 746. Similarly, the Court left open the question whether the Due Process Clause would be satisfied if an organization had to rely on a "friendly donor" to obtain judicial review of the Service's revocation of its tax exemption. Id., at 747, n. 21.11 In addition, in Alexander v. "Americans United" Inc., , decided the same day as Bob Jones, the Court considered a taxpayer's action to require the Service to reinstate its tax-exempt status.12 The Court applied the Williams Packing test and held that the action was barred by the Act. Finally, in United States v. American Friends Service Committee, (per curiam), the taxpayers sought to enjoin the Government from requiring that a portion of their wages be withheld. The taxpayers argued that the withholding provisions violated their First Amendment right to bear witness to their religious beliefs. The Court again applied the Williams Packing rule and found that the suit was barred by the Anti-Injunction Act. In both of these cases, the taxpayers argued that the Williams Packing test was irrelevant and the Act inapplicable because they did not have adequate alternative remedies. In rejecting this argument, the Court expressly relied on the availability of refund suits. 416 U.S., at 761; 419 U.S., at 11. This emphasis on alternative remedies would have been irrelevant had the Court meant to decide that the Act applied in the absence of such remedies. We therefore turn to that question.The analysis in Williams Packing and its progeny of the purposes of the Act provides significant support for our holding today. Williams Packing expressly stated that the Act was intended to protect tax revenues from judicial interference "and to require that the legal right to the disputed sums be determined in a suit for refund." 370 U.S., at 7 (emphasis added). Similarly, the Court concluded that the Act was also designed as "protection of the collector from litigation pending a suit for refund," id., at 7-8 (emphasis added). The Court's concerns with protecting the expeditious collection of revenue and protecting the collector from litigation were expressed in the context of a procedure that afforded the taxpayer the remedy of a refund suit.13 Nor is our conclusion inconsistent with the 1966 amendment to the Anti-Injunction Act. In 1966, in 110(c) of the Federal Tax Lien Act, Pub. L. 89-719, 80 Stat. 1144, Congress amended the Anti-Injunction Act to read, in pertinent part, that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed." Ibid. The central focus of the added phrase, "by any person, whether or not such person is the person against whom such tax was assessed," was on third parties whose property rights competed with federal tax liens. Bob Jones, 416 U.S., at 732, n. 6. Prior to the adoption of the Tax Lien Act, such parties were often unable to protect their property interests. Ibid.; H. R. Rep. No. 1884, 89th Cong., 2d Sess., 27-28 (1966).14 Section 110(a) of the Tax Lien Act gave such third parties a right of action against the United States.15 The amendment to the Anti-Injunction Act was primarily designed to insure that the right of action granted by 110(a) of the Federal Tax Lien Act was exclusive. 416 U.S., at 732, n. 6. The language added to the Anti-Injunction Act by the 1966 amendment is, therefore, largely irrelevant to the issue before us today.16 In sum, the Anti-Injunction Act's purpose and the circumstances of its enactment indicate that Congress did not intend the Act to apply to actions brought by aggrieved parties for whom it has not provided an alternative remedy.17 In this case, if the plaintiff South Carolina issues bearer bonds, its bondholders will, by virtue of 103(j)(1), be liable for the tax on the interest earned on those bonds. South Carolina will incur no tax liability. Under these circumstances, the State will be unable to utilize any statutory procedure to contest the constitutionality of 103(j)(1). Accordingly, the Act cannot bar this action.The Secretary suggests that the State may obtain judicial review of its claims by issuing bearer bonds and urging a purchaser of those bonds to bring a suit contesting the legality of 103(j)(1). But the nature of this proposed remedy only buttresses our conclusion that the Act was not intended to apply to this kind of action. First, instances in which a third party may raise the constitutional rights of another are the exception rather than the rule. Singleton v. Wulff, . More important, to make use of this remedy the State "must first be able to find [an individual] willing to subject himself to the rigors of litigation against the Service, and then must rely on [him] to present the relevant arguments on [its] behalf." Bob Jones, 416 U.S., at 747, n. 21. Because it is by no means certain that the State would be able to convince a taxpayer to raise its claims,18 reliance on the remedy suggested by the Secretary would create the risk that the Anti-Injunction Act would entirely deprive the State of any opportunity to obtain review of its claims. For these reasons, we should not lightly attribute to Congress an intent to require plaintiff to find a third party to contest its claims. Here, the indicia of congressional intent - the Act's purposes and the circumstances of its enactment - demonstrate that Congress did not intend the Act to apply where an aggrieved party would be required to depend on the mere possibility of persuading a third party to assert his claims. Rather, the Act was intended to apply only when Congress has provided an alternative avenue for an aggrieved party to litigate its claims on its own behalf.19 Because Congress did not prescribe an alternative remedy for the plaintiff in this case, the Act does not bar this suit.IIIThe Secretary argues that if we conclude that the Anti-Injunction Act is not a bar to this suit, we should in any event exercise our discretion to deny leave to file. He notes that the Court's jurisdiction over this suit is not exclusive and that the Court exercises its "original jurisdiction sparingly and [is] particularly reluctant to take jurisdiction of a suit where the plaintiff has another adequate forum in which to settle his claim." United States v. Nevada, (per curiam). The State has, however, alleged that the application of 103(j)(1) will "materially interfere with and infringe upon the authority of South Carolina to borrow funds." Motion for Leave to File Complaint 16; see supra, at 371-372. Additionally, 24 States have jointly submitted an amicus brief urging this Court to grant the motion to file. Unquestionably, the manner in which a State may exercise its borrowing power is a question that is of vital importance to all 50 States. Under these circumstances, we believe that it is appropriate for us to exercise our discretion in favor of hearing this case. At present, however, the record is not sufficiently developed to permit us to address the merits. We shall therefore appoint a Special Master to develop the record.Accordingly, plaintiff's motion for leave to file a complaint is granted and a Special Master will be appointed. It is so ordered. Fn Part III of the opinion is joined only by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE MARSHALL.

On the application of a customer of respondent, a bank issued a standby letter of credit for respondent's benefit in the amount of $145,200. The letter of credit provided that a draft drawn upon it would be honored by the bank only if accompanied by respondent's signed statement that the customer had failed to make payment for invoiced goods. On the same day that the letter of credit was issued, the customer executed an unsecured promissory note in the bank's favor. The customer and the bank understood the liability on the note to be contingent on respondent's presenting drafts on the letter of credit after the customer's nonpayment. Subsequently, the bank was declared insolvent, and petitioner Federal Deposit Insurance Corporation (FDIC) was appointed its receiver. Respondent then presented to the FDIC drafts on the letter of credit for payment of over $700,000 worth of goods delivered to the customer before the bank became insolvent. When the drafts were returned unpaid, respondent sued the FDIC in Federal District Court, alleging that the letter of credit backed by a promissory note was an insured deposit under the definition of "deposit" in 12 U.S.C. 1813(l) (1) as an unpaid balance of "money or its equivalent" received or held by a bank that, inter alia, is evidenced by a letter of credit, and that therefore respondent was entitled to $100,000 in deposit insurance, this being the maximum amount insured by the FDIC. The District Court agreed, and the Court of Appeals affirmed.Held: A standby letter of credit backed by a contingent promissory note does not give rise to an insured deposit. This has been the FDIC's longstanding interpretation, and such interpretation is consistent with Congress' purpose in creating federal deposit insurance to protect the assets and "hard earnings" that businesses and individuals have entrusted to banks. This purpose would not be furthered by extending deposit insurance to cover a standby letter of credit backed by a contingent promissory note, which involves no such surrender of assets or hard earnings to the bank's custody. In this case, the bank was not in possession of any of respondent's or the customer's assets when it went into receivership. Pp. 430-440. 751 F.2d 1131, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, WHITE, POWELL, and STEVENS, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BLACKMUN and REHNQUIST, JJ., joined, post, p. 440.Charles A. Rothfeld argued the cause for petitioner. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Wallace, and John C. Murphy, Jr.Gerald F. Slattery, Jr., argued the cause and filed a brief for respondent.* [Footnote *] Briefs of amici curiae urging reversal were filed for the American Bankers Association et al. by John L. Warden and Stanley F. Farrar; for the Council on International Banking, Inc., by Bud G. Holman; for the National Association of Bond Lawyers by Daniel O. Mahoney; and for the U.S. Conference of Mayors et al. by Benna Ruth Solomon and Joyce Holmes Benjamin.George W. Miller and Dennis J. Lehr filed a brief for William H. Allen et al. as amici curiae urging affirmance.JUSTICE O'CONNOR delivered the opinion of the Court.We granted certiorari to consider whether a standby letter of credit backed by a contingent promissory note is insured as a "deposit" under the federal deposit insurance program. We hold that, in light of the longstanding interpretation of petitioner Federal Deposit Insurance Corporation (FDIC) that such a letter does not create a deposit and, in light of the fact that such a letter does not entrust any noncontingent assets to the bank, a standby letter of credit backed by a contingent promissory note does not give rise to an insured deposit.IOrion Manufacturing Corporation (Orion) was, at the time of the relevant transactions, a customer of respondent Philadelphia Gear Corporation (Philadelphia Gear). On Orion's application, the Penn Square Bank, N. A. (Penn Square) issued a letter of credit for the benefit of Philadelphia Gear in the amount of $145,200. The letter of credit provided that a draft drawn upon the letter of credit would be honored by Penn Square only if accompanied by Philadelphia Gear's "signed statement that [it had] invoiced Orion Manufacturing Corporation and that said invoices have remained unpaid for at least fifteen (15) days." App. 25. Because the letter of credit was intended to provide payment to the seller only if the buyer of the invoiced goods failed to make payment, the letter of credit was what is commonly referred to as a "standby" or "guaranty" letter of credit. See, e. g., 12 CFR 337.2(a), and n. 1 (1985) (defining standby letters of credit and mentioning that they may "`guaranty' payment of a money obligation"). A conventional "commercial" letter of credit, in contrast, is one in which the seller obtains payment from the issuing bank without looking to the buyer for payment even in the first instance. See ibid. (distinguishing standby letters of credit from commercial letters of credit). See also Verkuil, Bank Solvency and Guaranty Letters of Credit, 25 Stan. L. Rev. 716, 717-724 (1973); Arnold & Bransilver, The Standby Letter of Credit - The Controversy Continues, 10 U.C.C.L.J. 272, 277-279 (Spring 1978).On the same day that Penn Square issued the standby letter of credit, Orion executed an unsecured promissory note for $145,200 in favor of Penn Square. App. 27. The purpose of the note was listed as "Back up Letter of Credit." Ibid. Although the face of the note did not so indicate, both Orion and Penn Square understood that nothing would be considered due on the note, and no interest charged by Penn Square, unless Philadelphia Gear presented drafts on the standby letter of credit after nonpayment by Orion. 751 F.2d 1131, 1134 (CA10 1984). See also Tr. of Oral Arg. 32.On July 5, 1982, Penn Square was declared insolvent. Petitioner FDIC was appointed its receiver. Shortly thereafter, Philadelphia Gear presented drafts on the standby letter of credit for payment of over $700,000 for goods delivered before Penn Square's insolvency. The FDIC returned the drafts unpaid. 751 F.2d., at 1133-1134.Philadelphia Gear sued the FDIC in the Western District of Oklahoma. Philadelphia Gear alleged that the standby letter of credit was an insured deposit under the definition of "deposit" set forth at 12 U.S.C. 1813(l)(1), and that Philadelphia Gear was therefore entitled to $100,000 in deposit insurance from the FDIC. See 12 U.S.C. 1821(a)(1) (setting forth $100,000 as the maximum amount generally insured by the FDIC for any single depositor at a given bank). In apparent hopes of obtaining additional funds from the FDIC in the latter's capacity as receiver rather than as insurer, respondent also alleged that terms of the standby letter of credit allowing repeated reinstatements of the credit made the letter's total value more than $145,200.The District Court held that the total value of the standby letter of credit was $145,200, App. B to Pet. for Cert. 20a, 28a-30a; that the letter was an insured deposit on which the FDIC was liable for $100,000 in deposit insurance, id., at 37a-43a; and that Philadelphia Gear was entitled to prejudgment interest on that $100,000, id., at 43a. The FDIC appealed from the District Court's ruling that the standby letter of credit backed by a contingent promissory note constituted a "deposit" for purposes of 12 U.S.C. 1813(l)(1) and its ruling that Philadelphia Gear was entitled to an award of prejudgment interest. Philadelphia Gear cross-appealed from the District Court's ruling on the total value of the letter of credit.The Court of Appeals for the Tenth Circuit reversed the District Court's award of prejudgment interest, 751 F.2d, at 1138-1139, but otherwise affirmed the District Court's decision. As to the definition of "deposit," the Court of Appeals held that a standby letter of credit backed by a promissory note fell within the terms of 12 U.S.C. 1813(l)(1)'s definition of "deposit," and was therefore insured. Id., at 1134-1138. We granted the FDIC's petition for certiorari on this aspect of the Court of Appeals' ruling. . We now reverse.IITitle 12 U.S.C. 1813(l)(1) provides: "The term `deposit' means - "(1) the unpaid balance of money or its equivalent received or held by a bank in the usual course of business and for which it has given or is obligated to give credit, either conditionally or unconditionally, to a commercial ... account, or which is evidenced by ... a letter of credit or a traveler's check on which the bank is primarily liable: Provided, That, without limiting the generality of the term `money or its equivalent,' any such account or instrument must be regarded as evidencing the receipt of the equivalent of money when credited or issued in exchange for checks or drafts or for a promissory note upon which the person obtaining any such credit or instrument is primarily or secondarily liable... ." Philadelphia Gear successfully argued before the Court of Appeals that the standby letter of credit backed by a contingent promissory note constituted a "deposit" under 12 U.S.C. 1813(l)(1) because that letter was one on which the bank was primarily liable, and evidenced the receipt by the bank of "money or its equivalent" in the form of a promissory note upon which the person obtaining the credit was primarily or secondarily liable. The FDIC does not here dispute that the bank was primarily liable on the letter of credit. Brief for Petitioner 7, n. 7. Nor does the FDIC contest the fact that the backup note executed by Orion is, at least in some sense, a "promissory note." See Tr. of Oral Arg. 7 (remarks of Mr. Rothfeld, representing the FDIC) ("It was labeled a note. It can be termed a note"). The FDIC argues rather that it has consistently interpreted 1813(l)(1) not to include standby letters of credit backed only by a contingent promissory note because such a note represents no hard assets and thus does not constitute "money or its equivalent." Because the alleged "deposit" consists only of a contingent liability, asserts the FDIC, a standby letter of credit backed by a contingent promissory note does not give rise to a "deposit" that Congress intended the FDIC to insure. Under this theory, while the note here may have been labeled a promissory note on its face and may have been a promissory note under state law, it was not a promissory note for purposes of the federal law set forth in 12 U.S.C. 1813(l)(1). See D'Oench, Duhme & Co. v. FDIC, (holding that liability on a promissory note acquired by the FDIC is a federal question); First National Bank v. Dickinson, (holding that federal law governs the definition of branch banking under the McFadden Act).The Court of Appeals quite properly looked first to the language of the statute. See Florida Power & Light Co. v. Lorion, ; United States v. Yermian, . Finding the language of the proviso in 1813(l)(1) sufficiently plain, the Court of Appeals looked no further. But as the FDIC points out, the terms "letter of credit" and "promissory note" as used in the statute have a federal definition, and the FDIC has developed and interpreted those definitions for many years within the framework of the complex statutory scheme that the FDIC administers. The FDIC's interpretation of whether a standby letter of credit backed by a contingent promissory note constitutes a "deposit" is consistent with Congress' desire to protect the hard earnings of individuals by providing for federal deposit insurance. Since the creation of the FDIC, Congress has expressed no dissatisfaction with the FDIC's interpretation of "deposit"; indeed, Congress in 1960 adopted the FDIC's regulatory definition as the statutory language. When we weigh all these factors together, we are constrained to conclude that the term "deposit" does not include a standby letter of credit backed by a contingent promissory note.AJustice Holmes stated that, as to discerning the constitutionality of a federal estate tax, "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, . Although the genesis of the Federal Deposit Insurance Act may not be quite so powerful a substitute for legal analysis, that history is worthy of at least a page of recounting for the light it sheds on Congress' purpose in passing the Act. Cf. Watt v. Alaska, ("The circumstances of the enactment of particular legislation may persuade a court that Congress did not intend words of common meaning to have their literal effect").When Congress created the FDIC, the Nation was in the throes of an extraordinary financial crisis. See generally F. Allen, Since Yesterday: The Nineteen-Thirties in America 98-121 (1940); A. Schlesinger, The Crisis of the Old Order 474-482 (1957). More than one-third of the banks in the United States open in 1929 had shut their doors just four years later. Bureau of the Census, Historical Statistics of the United States: Colonial Times to 1970, pt. 2, pp. 1019, 1038 (1976). In response to this financial crisis, President Roosevelt declared a national banking holiday effective the first business day after he took office. 48 Stat. 1689. Congress in turn responded with extensive legislation on banking, including the laws that gave the FDIC its existence.Congress' purpose in creating the FDIC was clear. Faced with virtual panic, Congress attempted to safeguard the hard earnings of individuals against the possibility that bank failures would deprive them of their savings. Congress passed the 1933 provisions "[i]n order to provide against a repetition of the present painful experience in which a vast sum of assets and purchasing power is `tied up.'" S. Rep. No. 77, 73d Cong., 1st Sess., 12 (1933) (emphasis added). The focus of Congress was therefore upon ensuring that a deposit of "hard earnings" entrusted by individuals to a bank would not lead to a tangible loss in the event of a bank failure. As the chairman of the relevant Committee in the House of Representatives explained on the floor:"[T]he purpose of this legislation is to protect the people of the United States in the right to have banks in which their deposits will be safe. They have a right to expect of Congress the establishment and maintenance of a system of banks in the United States where citizens may place their hard earnings with reasonable expectation of being able to get them out again upon demand... . ... . ."[The purpose of the bill is to ensure that] the community is saved from the shock of a bank failure, and every citizen has been given an opportunity to withdraw his deposits... . ... . ."The public ... demand of you and me that we provide a banking system worthy of this great Nation and banks in which citizens may place the fruits of their toil and know that a deposit slip in return for their hard earnings will be as safe as a Government bond." 77 Cong. Rec. 3837, 3838, 3840 (1933) (remarks of Rep. Steagall). See also id., at 3913 (remarks of Rep. Keller) ("[We must make] it absolutely certain that ... any and every man, woman, or child who puts a dollar in any bank can absolutely know that he will under no circumstances lose a single penny of it"); id., at 3924 (remarks of Rep. Green) ("It is time that we pass a law so secure that when a man puts his money in a bank he will know for sure that when he comes back it will be there"). To prevent bank failure that resulted in the tangible loss of hard assets was therefore the focus of Congress' effort in creating deposit insurance.Despite the fact Congress revisited the deposit insurance statute in 1935, 1950, and 1960, these comments remain the best indication of Congress' underlying purpose in creating deposit insurance. The Reports on the 1935 amendments presented the definition of "deposit" without any specific comment. See H. R. Rep. No. 742, 74th Cong., 1st Sess., 2 (1935); S. Rep. No. 1007, 74th Cong., 1st Sess., 2-4 (1935); H. R. Conf. Rep. No. 1822, 74th Cong., 1st Sess., 44 (1935). The floor debates centered around changes in the Federal Reserve System made in the same bill, not on deposit insurance. See, e. g., 79 Cong. Rec. 6568-6577, 6651-6660 (1935). Indeed, in light of the fact that instruments denominated "promissory notes" seem at the time to have been considered exclusively uncontingent, see, e. g., 16 Fed. Res. Bull. 520 (1930) (Regulation A) (defining promissory note as an "unconditional promise ... to pay [a sum certain in dollars] at a fixed or determinable future time") (emphasis added); Gilman v. Commissioner, 53 F.2d 47, 50 (CA8 1931) ("The form of these [contingent] instruments referred to as `promissory notes' is very unusual"), it is unlikely that Congress would have had occasion to refer expressly to contingent notes such as the one before us here even if Congress had turned its attention to the definition of "deposit" when it first enacted the provision treating "money or its equivalent."The legislative history of the 1950 amendments is similarly unhelpful, as one would expect given that the relevant provisions were reenacted but unchanged. See S. Rep. No. 1269, 81st Cong., 2d Sess., 2-3 (1950); H. R. Rep. No. 2564, 81st Cong., 2d Sess., 5-6 (1950). The Committee Reports on the 1960 amendments likewise give no indication that the amendments' phrasing was meant to effect any fundamental changes in the definition of deposit; those Reports state only that the changes are intended to bring into harmony the definitions of "deposit" used for purposes of deposit insurance with those used in reports of condition, and that the FDIC's rules and regulations are to be incorporated into the new definition. See H. R. Rep. No. 1827, 86th Cong., 2d Sess., 3, 5 (1960); S. Rep. No. 1821, 86th Cong., 2d Sess., 7, 10 (1960). See also 106 Cong. Rec. 14794 (1960) (discussing pre-1960 scheme).Congress' focus in providing for a system of deposit insurance - a system that has been continued to the present without modification to the basic definition of deposits that are "money or its equivalent" - was clearly a focus upon safeguarding the assets and "hard earnings" that businesses and individuals have entrusted to banks. Congress wanted to ensure that someone who put tangible assets into a bank could always get those assets back. The purpose behind the insurance of deposits in general, and especially in the section defining deposits as "money or its equivalent," therefore, is the protection of assets and hard earnings entrusted to a bank.This purpose is not furthered by extending deposit insurance to cover a standby letter of credit backed by a contingent promissory note, which involves no such surrender of assets or hard earnings to the custody of the bank. Philadelphia Gear, which now seeks to collect deposit insurance, surrendered absolutely nothing to the bank. The letter of credit is for Philadelphia Gear's benefit, but the bank relied upon Orion to meet the obligations of the letter of credit and made no demands upon Philadelphia Gear. Nor, more importantly, did Orion surrender any assets unconditionally to the bank. The bank did not credit any account of Orion's in exchange for the promissory note, and did not treat its own assets as increased by its acceptance of the note. The bank could not have collected on the note from Orion unless Philadelphia Gear presented the unpaid invoices and a draft on the letter of credit. In the absence of a presentation by Philadelphia Gear of the unpaid invoices, the promissory note was a wholly contingent promise, and when Penn Square went into receivership, neither Orion nor Philadelphia Gear had lost anything except the ability to use Penn Square to reduce Philadelphia Gear's risk that Philadelphia Gear would go unpaid for a delivery of goods to Orion. BCongress' actions with respect to the particular definition of "deposit" that it has chosen in order to effect its general purpose likewise lead us to believe that a standby letter of credit backed by a contingent promissory note is not an insurable "deposit." In 1933, Congress amended the Federal Reserve Act to authorize the creation of the FDIC and charged it "to insure ... the deposits of all banks which are entitled to the benefits of [FDIC] insurance." 8, Banking Act of 1933, ch. 89, 48 Stat. 168. Congress did not define the term "deposit," however, until the Banking Act of 1935, in which it stated:"The term `deposit' means the unpaid balance of money or its equivalent received by a bank in the usual course of business and for which it has given or is obligated to give credit to a commercial, checking, savings, time or thrift account, or which is evidenced by its certificate of deposit, and trust funds held by such bank whether retained or deposited in any department of such bank or deposited in another bank, together with such other obligations of a bank as the board of directors [of the FDIC] shall find and shall prescribe by its regulations to be deposit liabilities by general usage ... ." 101, Banking Act of 1935, ch. 614, 49 Stat. 684, 685-686. Less than two months after this statute was enacted, the FDIC promulgated a definition of "deposit," which provided in part that "letters of credit must be regarded as issued for the equivalent of money when issued in exchange for ... promissory notes upon which the person procuring [such] instruments is primarily or secondarily liable." See 12 CFR 301.1(d) (1939) (codifying Regulation I, rule 1, Oct. 1, 1935), revoked after incorporation into statutory law, 12 CFR 234 (Supp. 1962).In 1950, Congress revisited the provisions specifically governing the FDIC in order to remove them from the Federal Reserve Act and place them into a separate Act. See Act of Sept. 21, 1950, ch. 967, 64 Stat. 874. The new provisions did not modify the definition of "deposit." In 1960, Congress expanded the statutory definition of "deposit" in several categories, and also incorporated the regulatory definition that the FDIC had employed since 1935 into the statute that remains in force today. See supra, at 430 (quoting current version of statute).At no point did Congress disown its initial, clear desire to protect the hard assets of depositors. See supra, at 432-435. At no point did Congress criticize the FDIC's longstanding interpretation, see infra, at 438, that a standby letter of credit backed by a contingent promissory note is not a "deposit." In fact, Congress had reenacted the 1935 provisions in 1950 without changing the definition of "deposit" at all. Compare 49 Stat. 685-686 with 64 Stat. 874-875. When the statute giving rise to the longstanding interpretation has been reenacted 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." NLRB v. Bell Aerospace, . See Zenith Radio Corp. v. United States, . Indeed, the current statutory definition of "deposit," added by Congress in 1960, was expressly designed to incorporate the FDIC's rules and regulations on "deposits." As Committees of both Houses of Congress explained the amendments: "The amended definition would include the present statutory definition of deposits, and the definition of deposits in the rules and regulations of the Federal Deposit Insurance Corporation, [along] with ... changes [in sections other than what is now 1813(l)(1)]." H. R. Rep. No. 1827, 86th Cong., 2d Sess., 5 (1960) (emphasis added); S. Rep. No. 1821, 86th Cong., 2d Sess., 10 (1960) (same). Congress, therefore, has expressly incorporated into the statutory scheme the regulations that the FDIC devised to assist it in determining what constitutes a "deposit" within the statutory scheme. Under these circumstances, we must obviously give a great deal of deference to the FDIC's interpretation of what these regulations do and do not include within their definition of "deposit."CAlthough the FDIC does not argue that it has an express regulation excluding a standby letter of credit backed by a contingent promissory note from the definition of "deposit" in 12 U.S.C. 1813(l)(1), that exclusion by the FDIC is nonetheless longstanding and consistent. At a meeting of FDIC and bank officials shortly after the FDIC's creation, a bank official asked whether a letter of credit issued by a charge against a customer's account was a deposit. The FDIC official replied:"`If your letter of credit is issued by a charge against a depositor's account or for cash and the letter of credit is reflected on your books as a liability, you do have a deposit liability. If, on the other hand, you merely extend a line of credit to your customer, you will only show a contingent liability on your books. In that event no deposit liability has been created.'" Transcript as quoted in FDIC v. Irving Trust Co., 137 F. Supp. 145, 161 (SDNY 1955). Because Penn Square apparently never reflected the letter of credit here as a noncontingent liability, and because the interwoven financial instruments at issue here can be viewed most accurately as the extension of a line of credit by Penn Square to Orion, this transcript lends support to the FDIC's contention that its longstanding policy has been to exclude standby letters of credit backed by contingent promissory notes from 12 U.S.C. 1813(l)(1)'s definition of "deposit."The FDIC's contemporaneous understanding that standby letters of credit backed by contingent promissory notes do not generate a "deposit" for purposes of 12 U.S.C. 1813 (l)(1) has been fortified by its behavior over the following decades. The FDIC has asserted repeatedly that it has never charged deposit insurance premiums on standby letters of credit backed by contingent promissory notes, and Philadelphia Gear does not contest that assertion. See Tr. of Oral Arg. 42. Congress requires the FDIC to assess contributions to its insurance fund at a fixed percentage of a bank's "deposits" under 12 U.S.C. 1813(l)(1). See 12 U.S.C. 1817(a)(4), (b)(1), (b)(4)(A). By the time that this suit - the first challenge to the FDIC's treatment of standby letters of credit backed by contingent promissory notes - was brought, almost $100 billion in standby letters of credit was outstanding. See Board of Governors of the Federal Reserve System, Annual Statistical Digest 71 (1983); FDIC, 1983 Statistics on Banking (Table 110F). The FDIC's failure to levy premiums on standby letters of credit backed by contingent promissory notes therefore clearly demonstrates that the FDIC has never considered such letters to reflect deposits.Although the FDIC's interpretation of the relevant statute has not been reduced to a specific regulation, we conclude nevertheless that the FDIC's practice and belief that a standby letter of credit backed by a contingent promissory note does not create a "deposit" within the meaning of 12 U.S.C. 1813(l)(1) are entitled in the circumstances of this case to the "considerable weight [that] should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer." Chevron U.S. A. Inc. v. Natural Resources Defense Council, Inc., . As we have stated above, the FDIC's interpretation here of a statutory definition adopted wholesale from the FDIC's own regulation is consistent with congressional purpose, and may certainly stand.IIIPhiladelphia Gear essentially seeks to have the FDIC guarantee the contingent credit extended to Orion, not assets entrusted to the bank by Philadelphia Gear or by Orion on Philadelphia Gear's behalf. With a standard "commercial" letter of credit, Orion would typically have unconditionally entrusted Penn Square with funds before Penn Square would have written the letter of credit, and thus Orion would have lost something if Penn Square became unable to honor its obligations. As the FDIC concedes, deposit insurance extends to such a letter of credit backed by an uncontingent promissory note. See Tr. of Oral Arg. 8 (statement of Mr. Rothfeld, representing the FDIC) ("If this note were a fully uncontingent negotiable note that were not limited by any side agreements, it would be a note backing a letter of credit within the meaning of the statute"). See also id., at 17-18. But here, with a standby letter of credit backed by a contingent promissory note, Penn Square was not in possession of any of Orion's or Philadelphia Gear's assets when it went into receivership. Nothing was ventured, and therefore no insurable deposit was lost. We believe that, whatever the relevant State's definition of "letter of credit" or "promissory note," Congress did not by using those phrases in 12 U.S.C. 1813 (l)(1) intend to protect with deposit insurance a standby letter of credit backed only by a contingent promissory note. We thus hold that such an arrangement does not give rise to a "deposit" under 12 U.S.C. 1813(l)(1).Accordingly, the judgment of the court below is reversed, and the case is remanded for further proceedings consistent with this opinion. Reversed and remanded. JUSTICE MARSHALL, with whom JUSTICE BLACKMUN and JUSTICE REHNQUIST join, dissenting.There is considerable common sense backing the Court's opinion. The standby letter of credit in this case differs considerably from the savings and checking accounts that come most readily to mind when one speaks of an insured deposit. Nevertheless, to reach this common-sense result, the Court must read qualifications into the statute that do not appear there. We recently recognized that even when the ingenuity of businessmen creates transactions and corporate forms that were perhaps not contemplated by Congress, the courts must enforce the statutes that Congress has enacted. See Board of Governors, FRS v. Dimension Financial Corp., . Congress unmistakably provided that letters of credit backed by promissory notes constitute "deposits" for purposes of the federal deposit insurance program, and the Court's attempt to draw distinctions between different types of letter of credit transactions forces it to ignore both the statute and some settled principles of commercial law. Here, as in Dimension, the inflexibility of the statute as applied to modern financial transactions is a matter for Congress, not the FDIC or this Court, to remedy.It cannot be doubted that the standby letter of credit in this case meets the literal definition of a "deposit" contained in 12 U.S.C. 1813(l)(1). It is "a letter of credit ... on which the bank is primarily liable ... issued in exchange for ... a promissory note upon which [Orion] is primarily or secondarily liable." The Court, however, holds that the note in this case, whether or not it is a promissory note under the Uniform Commercial Code (UCC) and Oklahoma law, is not a promissory note for purposes of the Federal Deposit Insurance Act. We should assume, absent convincing evidence to the contrary, that Congress intended for the term "promissory note" to derive its meaning from the ordinary sources of commercial law. I believe that there is no such evidence in this case.The Court justifies its restrictive reading of the term "promissory note" in large part by arguing that Congress would not have wanted to include in that term any obligation that was not the present equivalent of money. The keystone of the FDIC's arguments, and of the Court's decision, is that Orion did not entrust "money or its equivalent" to the bank. The note in this case, however, was the equivalent of money, and the Court's reading of Congress' intent is therefore largely irrelevant.FDIC concedes, as it must, that Congress has determined that a promissory note generally constitutes money or its equivalent. Moreover, that statutory definition comports with economic reality. Promissory notes typically are negotiable instruments and therefore readily convertible into cash. The FDIC argues, and the Court holds, that the promissory note in this case is "contingent" and therefore not the equivalent of money. However, while the FDIC argues strenuously that Orion's note is not a promissory note in the usual sense of the word, one could more plausibly state that it is not a "contingent" obligation in the usual sense of that word. On its face the note is an unconditional obligation of Orion to pay the holder $145,200 plus accrued interest on August 1, 1982. It sets out no conditions that would affect the negotiability of the note, and therefore is fully negotiable for purposes of the UCC, U.C.C. 3-104(1) (1977); Okla. Stat., Tit. 12A, 3-104(1) (1981).The Court therefore misses the point when it states that at the time of the original banking Acts, the term "promissory note" was not understood to include a contingent obligation. Ante, at 434. The note at issue in this case is an unconditional promise to pay, and satisfies all the requisites of a negotiable promissory note, either under the UCC or the common law as it existed in the 1930's. The only contingencies attached to Orion's obligation arise out of a separate contract. As to such contingencies, the law was well settled long before 1930:"[I]n order to make a note invalid as a promissory note, the contingency to avoid it must be apparent, either upon the face of the note, or upon some contemporaneous written memorandum on the same paper; for, if the memorandum is not contemporaneous, or if it be merely verbal in each case, whatever may be its effect as a matter of defence between the original parties, it is not deemed to be a part of the instrument, and does not affect, much less invalidate, its original character." J. Thorndike, Story on Promissory Notes 34 (7th ed. 1878) (footnotes omitted).1 It is far from a matter of semantics to state that while Orion and the bank may have an oral understanding concerning the bank's treatment of Orion's note, that note itself is unconditional and equivalent to money. The Court correctly observes that the bank would have breached its oral contract had it attempted to sue on the note; nevertheless, Orion would have had separately to plead and prove a breach of contract in that case, because parol evidence that the contract between the parties differed from the written instrument would have been inadmissible in the bank's action to collect the debt. See American Perforating Co. v. Oklahoma State Bank, 463 P.2d 958, 962-963 (Okla. 1970). Similarly, should the note have found its way into the hands of a third party, Orion would have had no choice but to honor it, again being left with only the right to sue the bank for breach of the oral contract. Orion's entrustment of the note to the bank was not, therefore, completely risk free.The risk taken on by Orion may not differ substantially from the risk assumed by one who hands over money to the bank to guarantee repayment of funds paid out on a letter of credit. The bank typically undertakes to put such cash collateral into a special account, where it never enters into the general assets of the bank. See U.C.C. 5-117, comment (1977). Should the bank cease operations, the customer will enjoy a preference in bankruptcy, entitling it to receive its money back before general unsecured creditors of the bank are paid. U.C.C. 5-117; Okla. Stat., Tit. 12A, 5-117 (1981). Like Orion, then, that hypothetical customer has little to fear absent misconduct by the bank or a third party. If the federal deposit insurance program should not protect Philadelphia Gear, therefore, it probably should not protect any holder of a letter of credit, whether commercial, standby, funded, or unfunded.2 That, however, is clearly a matter for Congress to determine.While the Court purports to examine what Congress meant when it said "promissory note," in fact the Court's opinion does not rest on any special attributes of Orion's note. Rather, the Court rules that when an individual entrusts a negotiable instrument to a bank, that instrument is not "money or its equivalent" for purposes of 1813(l)(1) so long as the bank promises not to negotiate it or collect on it until certain conditions are met. That is a proviso that Congress might have been well advised to include in the Act, but did not. I therefore dissent.

Respondent, a disgruntled ex-employee of a married couple, entered the couple's home, shot the wife twice with a shotgun, shot and killed the husband, and then slit the wife's throat and stabbed her twice. Respondent was tried in an Oklahoma court and found guilty of the first-degree murder of the husband. The jury imposed the death penalty upon finding that two statutory aggravating circumstances, including the circumstance that the murder was "especially heinous, atrocious, or cruel," had been established, and that these circumstances outweighed the mitigating evidence. The Oklahoma Court of Criminal Appeals affirmed on direct appeal, and later affirmed a denial of state collateral relief. The Federal District Court then denied respondent's habeas corpus petition, but the Court of Appeals reversed, holding that the statutory words "heinous," "atrocious," and "cruel" do not on their face offer sufficient guidance to the jury to escape the strictures of Furman v. Georgia, . The court also ruled that the Oklahoma courts had not adopted a limiting construction that cured the infirmity, concluding that the construction utilized by the state appellate court, which simply declared that the facts of the case were so plainly "especially heinous, atrocious, or cruel" that the death penalty was warranted, was itself unconstitutionally vague under the Eighth Amendment to the Federal Constitution. The court therefore enjoined the execution of the death sentence, but without prejudice to further state proceedings for redetermination of the sentence.Held: As applied in this case, the statutory aggravating circumstance was unconstitutionally vague. Pp. 360-366. (a) The State's contention that factual circumstances may, in themselves, plainly characterize the killing as "especially heinous, atrocious, or cruel" represents an improper, Due Process Clause approach to vagueness that fails to recognize the rationale of this Court's Eighth Amendment cases. Under Furman, supra, and its progeny, the proper analysis of a vagueness claim focuses on whether the challenged aggravating circumstance adequately informs the jury as to what it must find in order to impose the death penalty, or whether it leaves the jury with unchanneled discretion to make an arbitrary and capricious decision. Godfrey v. Georgia, , which applied that analysis, controls this case. The language of the Oklahoma provision gave no more guidance to the jury here than did the "outrageously or wantonly vile, horrible, or inhuman" language that was held unconstitutional in Godfrey. Moreover, Oklahoma's addition of the word "especially" no more limited the overbreadth of the aggravating factor than did the addition of "outrageously or wantonly" to the word "vile" in the language considered in Godfrey. Furthermore, the state appellate court's factual approach to construction was indistinguishable from the action of the Georgia court in Godfrey, which failed to cure the jury's unfettered discretion and to satisfy the Eighth Amendment. Pp. 360-364. (b) The State's complaint that the Court of Appeals erroneously ruled that torture or serious physical abuse is the only constitutionally acceptable limiting construction of the aggravating circumstance is unfounded, since, although the court noted cases in which such a requirement was held to be curative, it expressly refrained from directing the State to adopt any particular construction. The contention that the death penalty should stand because the jury found another, unchallenged aggravating circumstance sufficient to sustain the sentence is also unpersuasive, since, when this case was decided, Oklahoma had no procedure for attempting to save a death penalty when one of several aggravating circumstances found by the jury was held to be invalid or unsupported by evidence, but simply vacated the death sentence and automatically imposed a life-imprisonment sentence. The significance for this case of the state appellate court's decisions, which were issued after the Court of Appeals' decision below, to adopt a torture-or-serious-physical-abuse limiting construction of the aggravating circumstance, and to no longer automatically set aside a death penalty where one of several aggravating circumstances is invalid or inapplicable, must be decided in the first instance by the Oklahoma courts in any further proceedings for redetermination of the appropriate sentence. Pp. 364-366. 822 F.2d 1477, affirmed.WHITE, J., delivered the opinion for a unanimous Court. BRENNAN, J., filed a concurring opinion, in which MARSHALL, J., joined, post, p. 366.Susan Stewart Dickerson, Assistant Attorney General of Oklahoma, argued the cause for petitioners. With her on the briefs were Robert H. Henry, Attorney General, and David W. Lee, M. Caroline Emerson, and Sandra D. Howard, Assistant Attorneys General. Mandy Welch by appointment of the Court, , argued the cause and filed briefs for respondent.* [Footnote *] A brief of amici curiae urging reversal was filed for the State of Alabama et al. by Don Siegelman, Attorney General of Alabama, and Ed Carnes, Assistant Attorney General, and by the Attorneys General for their respective States as follows: Robert K. Corbin of Arizona, Duane Woodard of Colorado, James T. Jones of Idaho, William J. Guste, Jr., of Louisiana, Michael C. Moore of Mississippi, William L. Webster of Missouri, Brian McKay of Nevada, Stephen E. Merrill of New Hampshire, Lacy H. Thornburg of North Carolina, Roger A. Tellinghuisen of South Dakota, W. J. Michael Cody of Tennessee, David L. Wilkinson of Utah, Mary Sue Terry of Virginia, and Joseph B. Meyer of Wyoming. Kenneth Stuart Gallant filed a brief for Roger Dale Hayes as amicus curiae urging affirmance. Richard C. Neuhoff filed a brief for the California Appellate Project as amicus curiae.JUSTICE WHITE delivered the opinion of the Court.On May 4, 1982, after eating their evening meal in their Muskogee County, Oklahoma, home, Hugh and Charma Riddle watched television in their living room. At some point, Mrs. Riddle left the living room and was proceeding towards the bathroom when she encountered respondent Cartwright standing in the hall holding a shotgun. She struggled for the gun and was shot twice in the legs. The man, whom she recognized as a disgruntled ex-employee, then proceeded to the living room where he shot and killed Hugh Riddle. Mrs. Riddle dragged herself down the hall to a bedroom where she tried to use a telephone. Respondent, however, entered the bedroom, slit Mrs. Riddle's throat, stabbed her twice with a hunting knife the Riddles had given him for Christmas, and then left the house. Mrs. Riddle survived and called the police. Respondent was arrested two days later and charged with first-degree murder.Respondent was tried and found guilty as charged. The State, relying on three statutory aggravating circumstances, sought the death penalty. The jury found two of them to have been established: first, the defendant "knowingly created a great risk of death to more than one person"; second, the murder was "especially heinous, atrocious, or cruel." Okla. Stat., Tit. 21, 701.12(2) and (4) (1981). Finding that the aggravating circumstances outweighed the mitigating evidence, the jury imposed the death penalty. The Oklahoma Court of Criminal Appeals affirmed on direct appeal, Cartwright v. State, 695 P.2d 548, cert. denied, , and later affirmed a denial of state collateral relief. Cartwright v. State, 708 P.2d 592 (1985), cert. denied, . Respondent then sought federal habeas corpus on several grounds. The District Court rejected each of them, including the claim that the death sentence was invalid because it rested wholly or in part on an unconstitutional aggravating circumstance, namely, the unconstitutionally vague and overbroad aggravating circumstance that the murder was "especially heinous, atrocious, or cruel." A panel of the Court of Appeals for the Tenth Circuit affirmed, 802 F.2d 1203 (1986), but rehearing en banc was granted limited to the claim concerning the challenged aggravating circumstance.The en banc court recognized that the jury had found two aggravating circumstances, one of them being unchallenged. But it noted that in cases where a death sentence rested in part on an invalid aggravating circumstance, the Oklahoma courts did not reweigh the aggravating and mitigating circumstances in an effort to save the death penalty; rather, the death sentence was vacated and a life-imprisonment sentence automatically imposed. Oklahoma had "no provision for curing on appeal a sentencer's consideration of an invalid aggravating circumstance." 822 F.2d 1477, 1482 (1987). It was therefore necessary to consider the vagueness challenge to one of the aggravating circumstances. The court proceeded to do so and unanimously sustained the challenge. It stated that the words "heinous," "atrocious," and "cruel" did not on their face offer sufficient guidance to the jury to escape the strictures of our judgment in Furman v. Georgia, . Nor, in the court's view, had the Oklahoma courts adopted a limiting construction that cured the infirmity and that was relied upon to affirm the death sentence in this case. It concluded that the Oklahoma Court of Criminal Appeals' construction of the aggravating circumstance was "unconstitutionally vague" under the Eighth Amendment. 822 F.2d, at 1483, 1492. The death sentence, accordingly, was held to be invalid and its execution enjoined, but "without prejudice to further proceedings by the state for redetermination of the sentence on the conviction." Id., at 1492.Petitioner sought review here of the Tenth Circuit's holding that the aggravating circumstance was unconstitutionally vague. Because of the conflict between the Court of Appeals for the Tenth Circuit and the Court of Criminal Appeals of Oklahoma and because of the importance of this constitutional issue to the orderly and proper administration of state death-penalty statutes, we granted certiorari, limited to that issue. . We affirm the judgment of the Court of Appeals.The Court of Appeals, with some care, reviewed the evolution in the interpretation of the "especially heinous, atrocious, or cruel" aggravating circumstance by the Oklahoma Court of Criminal Appeals up to and including its decision in this case. Its reading of the cases was that while the Oklahoma court had considered the attitude of the killer, the manner of the killing, and the suffering of the victim to be relevant and sufficient to support the aggravating circumstance, that court had "refused to hold that any one of those factors must be present for a murder to satisfy this aggravating circumstance." 822 F.2d, at 1491. Rather, the Oklahoma court simply had reviewed all of the circumstances of the murder and decided whether the facts made out the aggravating circumstance. Ibid. We normally defer to courts of appeals in their interpretation of state law, and we see no reason not to accept the Court of Appeals' statements about state law in this case, especially since the State does not challenge this reading of the Oklahoma cases.The State, however, takes issue with the Court of Appeals' conclusion that this approach, which was also employed in this case, to interpreting and applying the challenged aggravating circumstance is unconstitutional. It insists that in some cases there are factual circumstances that so plainly characterize the killing as "especially heinous, atrocious, or cruel" that affirmance of the death penalty is proper. As we understand the argument, it is that a statutory provision governing a criminal case is unconstitutionally vague only if there are no circumstances that could be said with reasonable certainty to fall within reach of the language at issue. Or to put it another way, that if there are circumstances that any reasonable person would recognize as covered by the statute, it is not unconstitutionally vague even if the language would fail to give adequate notice that it covered other circumstances as well.The difficulty with the State's argument is that it presents a Due Process Clause approach to vagueness and fails to recognize the rationale of our cases construing and applying the Eighth Amendment. Objections to vagueness under the Due Process Clause rest on the lack of notice, and hence may be overcome in any specific case where reasonable persons would know that their conduct is at risk. Vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis. United States v. Powell, ; United States v. Mazurie, ; Palmer v. City of Euclid, (per curiam); United States v. National Dairy Corp., , 36 (1963). Claims of vagueness directed at aggravating circumstances defined in capital punishment statutes are analyzed under the Eighth Amendment and characteristically assert that the challenged provision fails adequately to inform juries what they must find to impose the death penalty and as a result leaves them and appellate courts with the kind of open-ended discretion which was held invalid in Furman v. Georgia, .Furman held that Georgia's then-standardless capital punishment statute was being applied in an arbitrary and capricious manner; there was no principled means provided to distinguish those that received the penalty from those that did not. E. g., id., at 310 (Stewart, J., concurring); id., at 311 (WHITE, J., concurring). Since Furman, our cases have insisted that the channeling and limiting of the sentencer's discretion in imposing the death penalty is a fundamental constitutional requirement for sufficiently minimizing the risk of wholly arbitrary and capricious action. Gregg v. Georgia, , 206-207 (1976) (opinion of Stewart, Powell, and STEVENS, JJ.); id., at 220-222 (WHITE, J., concurring in judgment); Spaziano v. Florida, ; Lowenfield v. Phelps, .Godfrey v. Georgia, , which is very relevant here, applied this central tenet of Eighth Amendment law. The aggravating circumstance at issue there permitted a person to be sentenced to death if the offense "was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." Id., at 422. The jury had been instructed in the words of the statute, but its verdict recited only that the murder was "outrageously or wantonly vile, horrible or inhuman." The Supreme Court of Georgia, in affirming the death sentence, held only that the language used by the jury was "not objectionable" and that the evidence supported the finding of the presence of the aggravating circumstance, thus failing to rule whether, on the facts, the offense involved torture or an aggravated battery to the victim. Id., at 426-427. Although the Georgia Supreme Court in other cases had spoken in terms of the presence or absence of these factors, it did not do so in the decision under review, and this Court held that such an application of the aggravating circumstance was unconstitutional, saying: "In the case before us, the Georgia Supreme Court has affirmed a sentence of death based upon no more than a finding that the offense was `outrageously or wantonly vile, horrible and inhuman.' There is nothing in these few words, standing alone, that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence. A person of ordinary sensibility could fairly characterize almost every murder as `outrageously or wantonly vile, horrible and inhuman.' Such a view may, in fact, have been one to which the members of the jury in this case subscribed. If so, their preconceptions were not dispelled by the trial judge's sentencing instructions. These gave the jury no guidance concerning the meaning of any of [the aggravating circumstance's] terms. In fact, the jury's interpretation of [that circumstance] can only be the subject of sheer speculation." Id., at 428-429 (footnote omitted). The affirmance of the death sentence by the Georgia Supreme Court was held to be insufficient to cure the jury's unchanneled discretion because that court failed to apply its previously recognized limiting construction of the aggravating circumstance. Id., at 429, 432. This Court concluded that, as a result of the vague construction applied, there was "no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not." Id., at 433. Cf. Proffitt v. Florida, . It plainly rejected the submission that a particular set of facts surrounding a murder, however shocking they might be, were enough in themselves, and without some narrowing principle to apply to those facts, to warrant the imposition of the death penalty.We think the Court of Appeals was quite right in holding that Godfrey controls this case. First, the language of the Oklahoma aggravating circumstance at issue - "especially heinous, atrocious, or cruel" - gave no more guidance than the "outrageously or wantonly vile, horrible or inhuman" language that the jury returned in its verdict in Godfrey. The State's contention that the addition of the word "especially" somehow guides the jury's discretion, even if the term "heinous" does not, is untenable. To say that something is "especially heinous" merely suggests that the individual jurors should determine that the murder is more than just "heinous," whatever that means, and an ordinary person could honestly believe that every unjustified, intentional taking of human life is "especially heinous." Godfrey, supra, at 428-429. Likewise, in Godfrey the addition of "outrageously or wantonly" to the term "vile" did not limit the overbreadth of the aggravating factor.Second, the conclusion of the Oklahoma court that the events recited by it "adequately supported the jury's finding" was indistinguishable from the action of the Georgia court in Godfrey, which failed to cure the unfettered discretion of the jury and to satisfy the commands of the Eighth Amendment. The Oklahoma court relied on the facts that Cartwright had a motive of getting even with the victims, that he lay in wait for them, that the murder victim heard the blast that wounded his wife, that he again brutally attacked the surviving wife, that he attempted to conceal his deeds, and that he attempted to steal the victims' belongings. 695 P.2d, at 554. Its conclusion that on these facts the jury's verdict that the murder was especially heinous, atrocious, or cruel was supportable did not cure the constitutional infirmity of the aggravating circumstance.The State complains, however, that the Court of Appeals ruled that to be valid the "especially heinous, atrocious, or cruel" aggravating circumstance must be construed to require torture or serious physical abuse and that this was error. We do not, however, agree that the Court of Appeals imposed this requirement. It noted cases in which such a requirement sufficed to validate an otherwise vague aggravating circumstance, but it expressly refrained from directing the State to adopt any specific curative construction of the aggravating circumstance at issue here. 822 F.2d, at 1491-1492. We also do not hold that some kind of torture or serious physical abuse is the only limiting construction of the heinous, atrocious, or cruel aggravating circumstance that would be constitutionally acceptable.The State also insists that the death penalty should stand because the jury found two aggravating circumstances, one of which was unchallenged and is sufficient to sustain the sentence. When this case was decided, however, the Oklahoma Court of Criminal Appeals would not attempt to save the death penalty when one of several aggravating circumstances found by the jury was found invalid or unsupported by the evidence. As the Tenth Circuit said, there was "no provision for curing on appeal a sentencer's consideration of an invalid aggravating circumstance." Id., at 1482. If this was the case at that time, and the State does not dispute it, the Court of Appeals cannot be faulted for not itself undertaking what the state courts themselves refused to do.It is true that since the decision of the Court of Appeals, the Oklahoma Court of Criminal Appeals has restricted the "heinous, atrocious, or cruel" aggravating circumstance to those murders in which torture or serious physical abuse is present. Stouffer v. State, 742 P.2d 562 (1987). At the same time, that court decided that it would not necessarily set aside a death penalty where on appeal one of several aggravating circumstances has been found invalid or unsupported by the evidence. Id., at 564. See also Castro v. State, 745 P.2d 394, 408-409 (1987), cert. denied, .What significance these decisions of the Court of Criminal Appeals have for the present case is a matter for the state courts to decide in the first instance. Like that of the Court of Appeals, our judgment is without prejudice to further proceedings in the state courts for redetermination of the appropriate sentence.The judgment of the Court of Appeals is Affirmed. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring.I join the Court's opinion except insofar as the judgment, which is without prejudice to further sentencing proceedings, does not expressly preclude the reimposition of the death penalty. Adhering to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments, Gregg v. Georgia, , 231 (1976), I would direct that the resentencing proceedings be circumscribed such that the State may not reimpose the death sentence.

The respondent railroad sued the United States in the District Court under the Tucker Act to recover a sum allegedly due for certain transportation of military supplies, the United States having paid the export rate rather than the higher domestic rate. The goods had been shipped via respondent railroad to an Atlantic port for export; that exportation had been frustrated by wartime developments; they were stored domestically; and later shipped from a Pacific port to a different foreign country. The District Court gave judgment for the respondent, and the Court of Appeals affirmed. On review here, held: 1. On the record in this case, this Court cannot say whether the issue of tariff construction should have been referred to the Interstate Commerce Commission. Pp. 80-81. 2. The question of tariff construction should be determined by the Court of Appeals upon a full record, which would include consideration of the factors shown by the record in the earlier case on which it relied, but which is not before this Court. P. 81. 3. Referral to the Interstate Commerce Commission of the question of tariff construction is not barred by the two-year limitation contained in 16 (3) of the Interstate Commerce Act. United States v. Western Pacific R. Co., ante, p. 59. P. 81. 224 F.2d 443, reversed and remanded.Morton Hollander argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Doub and Melvin Richter.Meade T. Spicer, Jr. argued the cause and filed a brief for respondent. MR. JUSTICE HARLAN delivered the opinion of the Court.This case presents questions similar to those involved in United States v. Western Pacific R. Co., ante, p. 59, decided today.In 1941 and 1942 the Government shipped from Pontiac, Michigan, to Newport News, Virginia, over the respondent's lines, various military supplies destined for China, via the port of Rangoon, Burma. This intended exportation was frustrated by the fall of Rangoon to Japanese military forces on March 8, 1942. The Government therefore took possession of the shipments at Newport News, reshipped them about three months later to storage centers in Pennsylvania and New Jersey, and more than a year later again reshipped some of the goods to various points on the Pacific Coast, whence they were exported to Calcutta, India. Had the original purpose of a shipment to China been accomplished, the export rate provided in Item 23030 of Tariff No. 218-M1 would have applied to the transportation between Pontiac and Newport News. However, when that shipment was frustrated, the respondent billed the Government at the higher domestic rate.2 The Government paid these bills as rendered, but subsequently, on post-audit by the General Accounting Office, readjusted the charges to the lower export rate, deducting the difference from subsequent bills of the carrier for other transportation services.3 Thereafter the respondent sued the United States in the District Court for the Eastern District of Virginia under the Tucker Act4 to recover the amount of these deductions. The District Court gave judgment for the respondent,5 the Court of Appeals affirmed,6 and we granted certiorari.7 The Court of Appeals, following its earlier decision in United States v. Chesapeake & Ohio R. Co., 215 F.2d 213, held "that the intention to export to China was abandoned and that the movement which began at Pontiac, Michigan, as an export was converted by the shipper into a domestic shipment"; hence the domestic rate applied. It further held that the District Court had properly denied the Government's request for a referral to the Interstate Commerce Commission of the question whether the domestic rate, if applied to these shipments, would be reasonable. As to this the Court of Appeals said that the "question was not the reasonableness of rates, which everyone conceded to be reasonable, but which rate was applicable to the shipment under the circumstances of the case, a question which the court was competent to decide." Therefore, it concluded that there were no "administrative questions" for the Commission to determine. Further, without questioning the timeliness of the respondent's suit under the Tucker Act,8 the Court of Appeals held that in any event referral to the Commission of the question of the reasonableness of the domestic tariff as applied to these shipments was barred by the two-year statute of limitations of the Interstate Commerce Act.9 Unlike the Court of Claims in United States v. Western Pacific R. Co., supra, the Court of Appeals, correctly we think, regarded the questions of whether the domestic tariff applied to these shipments, and whether it was reasonable if so applied, as simply two ways of stating the same underlying problem. Hence we face the same question as the one we have dealt with in the Western Pacific case, supra, namely: does the issue of tariff construction, which the Court of Appeals regarded as one for the court, involve such acquaintance with rate-making and transportation factors as to make the issue initially one for the Interstate Commerce Commission, under the doctrine of primary jurisdiction? In this instance we cannot say positively whether or not there should have been a referral to the Commission. The Government, treating the issues of "construction" and "reasonableness" as separable, did not question the Court of Appeals' holding that the domestic tariff applied, but argued only that the tariff was unreasonable as applied to these shipments. The parties, therefore, have not briefed or argued the factors making for or against the application of the domestic rather than the export tariff. Consequently, we do not know what kinds of factors are involved, and we therefore cannot say on this record whether the issue of tariff construction should have been referred to the Commission. We think this question should be determined by the Court of Appeals upon a full record, which would no doubt include consideration of the factors shown by the record in the earlier case which it followed here,10 and which is not before us.11 For the reasons given in our opinion in the Western Pacific case, supra, we hold that referral to the Commission would not be barred by the 16 (3) statute of limitations.We shall therefore reverse the judgment below and remand the case to the Court of Appeals for further proceedings not inconsistent with this opinion and with our opinion in United States v. Western Pacific R. Co., supra, decided this day. It is so ordered.MR. JUSTICE DOUGLAS dissents from a reference of these matters to the Interstate Commerce Commission, since he is of the view that the principles of Great Northern R. Co. v. Merchants Elevator Co., , are applicable here.MR. JUSTICE REED and MR. JUSTICE BRENNAN took no part in the consideration or decision of this case.

1. Section 20 (c) of the Immigration Act of 1917, as amended, 8 U.S.C. 156 (c), which makes it a felony for an alien against whom a specified order of deportation is outstanding to "willfully fail or refuse to make timely application in good faith for travel or other documents necessary to his departure" is not, on its face, void for vagueness. Pp. 170-172.2. The question whether the statute is unconstitutional because it affords a defendant no opportunity to have the court which tries him pass on the validity of the order of deportation is reserved, because it is not properly before the Court in this case. Pp. 172-173. 99 F. Supp. 778, reversed. The District Court dismissed two counts of an indictment against respondent on the ground that 20 (c) of the Immigration Act of 1917, as amended, 8 U.S.C. 156 (c), on which they were based, was void for vagueness. 99 F. Supp. 778. On appeal to this Court under 18 U.S.C. 3731, reversed, p. 173.Robert L. Stern argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General McInerney, Beatrice Rosenberg and Kenneth C. Shelver.John W. Porter and A. L. Wirin argued the cause and filed a brief for appellee. MR. JUSTICE DOUGLAS delivered the opinion of the Court.Section 20 of the Immigration Act of 1917, as amended, 39 Stat. 890, 57 Stat. 553, 64 Stat. 1010, 8 U.S.C. (Supp. IV) 156, contains provisions designed to expedite the deportation of aliens. Section 20 (a) provides that the Attorney General shall direct the deportation "to the country specified by the alien, if it is willing to accept him into its territory." Otherwise the Attorney General shall direct the deportation to any one of a series of specified countries or if deportation to any of them is impracticable, inadvisable, or impossible, then to any country which is willing to accept the alien. Section 20 (b) grants the Attorney General powers of supervision over aliens against whom deportation orders have been outstanding for more than six months and fixes penalties for violations of the regulations which the Attorney General has prescribed. Section 20 (c) provides that any alien against whom a specified order of deportation is outstanding "who shall willfully fail or refuse to depart from the United States within a period of six months from the date of such order of deportation, or from the date of the enactment of the Subversive Activities Control Act of 1950, whichever is the later, or shall willfully fail or refuse to make timely application in good faith for travel or other documents necessary to his departure, ... shall upon conviction be guilty of a felony, and shall be imprisoned not more than ten years ... ." (Italics added.)The latter (the italicized) provision of 20 (c) is involved here. Appellee is an alien who came to this country from Russia in 1913. An order of deportation was entered against him in 1930 by reason of his advocacy of the overthrow of the Government by force and violence. An indictment was returned against him, two counts of which charged him with willfully failing and refusing to make timely application in good faith for travel or other documents necessary to his departure from the United States. The District Court sustained a motion to dismiss these two counts. It held that the statute in question was unconstitutionally vague and indefinite, because it did not specify the nature of the travel documents necessary for departure nor indicate to which country or to how many countries the alien should make application. 99 F. Supp. 778. The case is here on appeal. 18 U.S.C. (Supp. IV) 3731.While a statute, plain and unambiguous on its face, may be given an application that violates due process of law, we are not concerned with that problem in the present case. The question here is whether the statute on its face meets the constitutional test of certainty and definiteness. We think it does when viewed in its statutory setting.The statutory scheme seems clear and unambiguous. The choice of a country willing to receive the alien is left first to the alien himself and then to the Attorney General. Once the country willing to receive the alien is identified, the mechanism for effecting his departure remains. The six-month period specified in 20 (c) makes clear what a "timely" application is. The statutory words "travel or other documents necessary to his departure" will, of course, have different meanings in reference to various countries. The forms to be filled out, the deposits to be made, the number of photographs to be furnished, and the information to be supplied will vary from country to country. But when the country to which the alien is to be deported is known, any mystery concerning the documents necessary to his departure vanishes. The words "necessary to his departure" when applied to deportations would normally refer to a lawful departure from this country and a lawful entrance into another. The alien satisfies the statute by making timely application for such documents as the country in question requires for his admission.The statute might well be a trap if, for example, it required the alien to know the visa requirements of one or more countries. But the emphasis of the present statute is on a "timely application in good faith" for such documents as the country in question may require. Though the visa requirements for entrance into a particular country are in constant change, the command of the statute remains simple and intelligible. We conclude that the warning contained in the statute is sufficiently definite to free it of any constitutional infirmity of vagueness. Cf. United States v. Petrillo, ; Jordan v. De George, .Another question of constitutional law is pressed upon us. It is that the statute must be declared unconstitutional because it affords a defendant no opportunity to have the court which tries him pass on the validity of the order of deportation. That question was neither raised by the appellee nor briefed nor argued here. If it had been, we might consider it. See United States v. Curtiss-Wright Corp., . But when a single, naked question of constitutionality is presented, we do not search for new and different constitutional questions. Rather we refrain from passing on the constitutionality of a phase of a statute until a stage has been reached where the decision of the precise constitutional issue is necessary. See United States v. Petrillo, supra.It will be time to consider whether the validity of the order of deportation may be tried in the criminal trial either by the court or by the jury (cf. Yakus v. United States, ; Cox v. United States, ) when and if the appellee seeks to have it tried. That question is not foreclosed by this opinion. We reserve decision on it. Reversed.MR. JUSTICE CLARK took no part in the consideration or decision of this case.MR. JUSTICE BLACK, dissenting.The only thing certain about 20 (c) of the Immigration Act of 1917, as amended, is that violation of its terms is a felony punishable by ten years' imprisonment. An alien ordered deported by the Bureau of Immigration is subject to this ten-year penalty if he "willfully fail or refuse to make timely application in good faith for travel or other documents necessary to his departure." To avoid punishment an alien must guess with unerring accuracy what answers a judge or jury1 might someday give to the following questions: (1) When is an application "timely"? (2) What constitutes a "good faith" application? (3) What kind of "documents" are "necessary to his departure"? (4) To whom must he apply for these documents?Aliens living in this country are not necessarily sophisticated world travelers familiar with the present-day red tape that must be unwound to get from one country to another. Congress should at least indicate when, to whom, and for what the alien should apply. If, for example, the statute merely required an alien to report at a certain time and place to sign "documents" collected by the American Department of State, the affirmative conduct demanded would at least be clear and specific. But the present statute, in my judgment, entangles aliens in a snare of vagueness from which few can escape. I think the Constitution requires more than a "bad" guess to make a criminal.2

The three-judge District Court's order, in a class action challenging the constitutionality of the Wisconsin statutory scheme for involuntary commitment of mental patients, that "judgment be and hereby is entered in accordance with the Opinion heretofore entered," which opinion stated that appellees were entitled to injunctive relief against further enforcement of "the present Wisconsin scheme," is sufficient as an order "granting" an injunction to invoke this Court's appellate jurisdiction under 28 U.S.C. 1253. Gunn v. University Committee, , distinguished. For purposes of plenary judicial review, however, the court's order does not satisfy the requirements of Fed. Rule Civ. Proc. 65 (d) that an order granting an injunction "be specific in terms" and "describe in reasonable detail ... the act or acts sought to be restrained ... ." 349 F. Supp. 1078, vacated and remanded.PER CURIAM.In October and November 1971, appellee Alberta Lessard was subjected to a period of involuntary commitment under the Wisconsin State Mental Health Act, Wis. Stat. 51.001 et seq. While in confinement, she filed this suit in the United States District Court for the Eastern District of Wisconsin, on behalf of herself and all other persons 18 years of age or older who were being held involuntarily pursuant to the Wisconsin involuntary-commitment laws, alleging that the statutory scheme was violative of the Due Process Clause of the Fourteenth Amendment. Jurisdiction was predicated on 28 U.S.C. 1343 (3) and 42 U.S.C. 1983. Since both declaratory and injunctive relief were sought, a District Court of three judges was convened, pursuant to 28 U.S.C. 2281.After hearing argument and receiving briefs, the District Court filed a comprehensive opinion, declaring the Wisconsin statutory scheme unconstitutional. 349 F. Supp. 1078. The opinion concluded by stating that "Alberta Lessard and the other members of her class are entitled to declaratory and injunctive relief against further enforcement of the present Wisconsin scheme against them... . [Miss Lessard] is also entitled to an injunction against any further extensions of the invalid order which continues to make her subject to the jurisdiction of the hospital authorities." Id., at 1103. Over nine months later, the District Court entered a judgment, which simply stated that "It is Ordered and Adjudged that judgment be and hereby is entered in accordance with the Opinion heretofore entered ... ." The defendant-appellants now seek to invoke the appellate jurisdiction of this Court, pursuant to 28 U.S.C. 1253. That statute provides that "Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges." In response, the appellee has filed a motion to dismiss the appeal for want of jurisdiction. Relying upon this Court's decision in Gunn v. University Committee to End the War, , she claims that the District Court's judgment did not constitute "an order granting or denying" an injunction.In Gunn, a statutory three-judge court had found a Texas breach of the peace statute unconstitutional. There, as here, the opinion of the District Court concluded by stating that the plaintiffs "are entitled to ... injunctive relief." University Committee to End the War v. Gunn, 289 F. Supp. 469, 475 (WD Tex.). The District Court in Gunn, however, entered no further order or judgment of any kind; the concluding paragraph of the opinion was the only mention of injunctive relief. Thus, we concluded that we lacked jurisdiction to hear the appeal under 28 U.S.C. 1253, because of the total absence of any order "granting or denying" an injunction.Although the language of the District Court opinion here parallels that in Gunn, there is thus an important distinction between the two cases. While the record in Gunn was devoid of any order granting injunctive relief, there was in the present case a judgment entered "in accordance with the Opinion." Since the opinion of the District Court by its own terms authorizes the granting of injunctive relief to the appellee, we believe that the judgment here is sufficient to invoke our jurisdiction under 28 U.S.C. 1253.Yet, although sufficient to invoke our appellate jurisdiction, the District Court's order provides a wholly inadequate foundation upon which to premise plenary judicial review. Rule 65 (d) of the Federal Rules of Civil Procedure provides, in relevant part: "Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained ... ." The order here falls far short of satisfying the second and third clauses of Rule 65 (d). Neither the brief judgment order nor the accompanying opinion is "specific" in outlining the "terms" of the injunctive relief granted; nor can it be said that the order describes "in reasonable detail ... the act or acts sought to be restrained." Rather, the defendants are simply told not to enforce "the present Wisconsin scheme" against those in the appellee's class.As we have emphasized in the past, the specificity provisions of Rule 65 (d) are no mere technical requirements. The Rule was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders, and to avoid the possible founding of a contempt citation on a decree too vague to be understood. International Longshoremen's Assn. v. Philadelphia Marine Trade Assn., ; Gunn, supra, at 388-389. See generally 7 J. Moore, Federal Practice § 65.11; 11 C. Wright & A. Miller, Federal Practice and Procedure 2955.1 Since an injunctive order prohibits conduct under threat of judicial punishment, basic fairness requires that those enjoined receive explicit notice of precisely what conduct is outlawed.2 The requirement of specificity in injunction orders performs a second important function. Unless the trial court carefully frames its orders of injunctive relief, it is impossible for an appellate tribunal to know precisely what it is reviewing. Gunn, supra, at 388. We can hardly begin to assess the correctness of the judgment entered by the District Court here without knowing its precise bounds. In the absence of specific injunctive relief, informed and intelligent appellate review is greatly complicated, if not made impossible.Hence, although the order below is sufficient to invoke our appellate jurisdiction, it plainly does not satisfy the important requirements of Rule 65 (d). Accordingly, we vacate the judgment of the District Court and remand the case to that court for further proceedings consistent with this opinion. Vacated and remanded.MR. JUSTICE DOUGLAS dissents.

[Footnote *] Together with No. 85-170, Brock, Secretary of Labor v. United Transportation Union et al., also on petition for certiorari to the same court. Pursuant to the Occupational Safety and Health Act (Act), the Secretary of Labor issued a citation to Cuyahoga Valley Railway Co. for a violation of the Act; the company contested the citation; the Secretary filed a complaint with the Occupational Safety and Health Review Commission (Commission), and the company filed an answer; and the United Transportation Union, which represents the company's employees, intervened. At the hearing, the Administrative Law Judge (ALJ), over the Union's objection, granted the Secretary's motion to vacate the citation on the ground that the Secretary did not have jurisdiction over the relevant safety conditions. Despite the Secretary's objection, the Commission directed review of the ALJ's order and ultimately remanded the case to the ALJ for consideration of the Union's objections. The Court of Appeals affirmed, holding that, because the adversarial process was well advanced at the time the Secretary attempted to withdraw the citation, the Commission, as the adjudicative body, had the authority to review the Secretary's withdrawal of the citation.Held: The Secretary has unreviewable discretion to withdraw a citation charging an employer with violating the Act. The Court of Appeals' decision is inconsistent with the detailed statutory scheme, which contemplates that the rights created by the Act are to be protected by the Secretary, and that enforcement of the Act is the Secretary's sole responsibility. The Commission's function is to act as a neutral arbiter and to determine whether the Secretary's citations should be enforced. Its authority does not extend to overturning the Secretary's decision not to issue or to withdraw a citation. Certiorari granted; 748 F.2d 340, reversed.PER CURIAM.The Secretary of Labor is authorized to inspect work sites to uncover noncompliance with the Occupational Safety and Health Act. 29 U.S.C. 657(a). If, as a result of such an inspection, the Secretary discovers a violation of the Act, he is authorized to issue a citation to the employer fixing a reasonable time for the abatement of the violation, 658(a), and assessing a penalty for the violation. 666. The employer then has 15 days in which to contest the citation. 659(a). Similarly, employees have 15 days in which to challenge as unreasonable "the period of time fixed in the citation for the abatement of the violation." 659(c). See generally Whirlpool Corp. v. Marshall, , n. 11 (1980). The statute and rules of the Occupational Safety and Health Review Commission also permit affected employees to participate as parties in any hearing in which the employer contests the citation. 29 U.S.C. 659(c); 29 CFR 2200.20(a) (1985).If an employer contests the citation, and the Secretary intends to seek its enforcement, the Secretary must file a complaint with the Commission within 20 days, and the employer must file an answer within 15 days. 29 CFR 2200.33 (1985). Once these pleadings are filed, a hearing to determine the validity of the citation will be held before an administrative law judge (ALJ), with discretionary review by the Commission. 29 U.S.C. 659(c), 661(j).In the present cases, the Secretary cited Cuyahoga Valley Railway Company for a violation of the Act. Cuyahoga contested the citation, the Secretary filed a complaint with the Commission, and Cuyahoga filed an answer. Respondent United Transportation Union, which represents Cuyahoga employees, properly moved to intervene in the proceedings. At the hearing, however, the Secretary moved to vacate the citation on the ground that the Federal Railway Administration, not the Secretary, had jurisdiction over the relevant safety conditions. Despite the Union's objection, the ALJ granted the Secretary's motion and vacated the citation. Thereafter, the Commission directed review of the ALJ's order. The Secretary promptly objected to this action, asserting that part of the citation involved matters beyond the reach of the Act and that additional portions of the citation did not warrant litigation because of the state of the evidence. He also stated that the record before the Commission was inadequate to resolve the issue posed.1 Some six years later, the Commission rejected this submission and remanded the case to the ALJ for consideration of the Union's objections.The Court of Appeals for the Sixth Circuit affirmed the Commission's holding that it could review the Secretary's decision to withdraw a citation. Donovan v. United Transportation Union, 748 F.2d 340 (1984). The court recognized that the Secretary "has the sole authority to determine whether to prosecute" a violation of the Act. Id., at 343. Here, however, the court found that the Secretary "had already made the decision to prosecute by filing a complaint and that complaint had been answered at the time the Secretary attempted to withdraw the citation." Ibid. Because the "adversarial process was well-advanced at the time the Secretary attempted to withdraw the citation," the court reasoned that the Commission, "as the adjudicative body, had control of the case and the authority to review the Secretary's withdrawal of the citation." Ibid.2 Contrary to the Sixth Circuit's decision, eight other Courts of Appeals have held that the Secretary has unreviewable discretion to withdraw a citation charging an employer with violating the Occupational Health and Safety Act. Donovan v. Allied Industrial Workers (Midland), 760 F.2d 783, 785 (CA7 1985); Donovan v. Local 962, International Chemical Workers Union (Englehard), 748 F.2d 1470, 1473 (CA11, 1984); Donovan v. International Union, Allied Industrial Workers (Whirlpool), 722 F.2d 1415, 1422 (CA8 1983); Donovan v. United Steelworkers of America (Monsanto), 722 F.2d 1158, 1160 (CA4 1983); Donovan v. Oil, Chemical and Atomic Workers International (American Petrofina), 718 F.2d 1341, 1352-1353 (CA5 1983), cert. denied, ; Donovan v. Occupational Safety and Health Review Comm'n (Mobil Oil), 713 F.2d 918, 926-927 (CA2 1983); Oil, Chemical and Atomic Workers International v. Occupational Safety and Health Comm'n (American Cynamid)App. D.C. 137, 144-145, 671 F.2d 643, 650-651, cert. denied, ; Marshall v. Sun Petroleum Products Co., 622 F.2d 1176, 1187 (CA3), cert. denied, . We agree with the decisions of these courts.It is apparent that the Court of Appeals' decision is inconsistent with the detailed statutory scheme which contemplates that the rights created by the Act are to be protected by the Secretary. See Atlas Roofing Co. v. Occupational Safety and Health Comm'n, ; Mobil Oil, supra, at 927; Sun Petroleum Products, supra, at 1187. It is also clear that enforcement of the Act is the sole responsibility of the Secretary. Oil, Chemical and Atomic Workers International v. Occupational Safety and Health Comm'n, supra, at 143, 671 F.2d, at 649. It is the Secretary, not the Commission, who sets the substantive standards for the workplace, and only the Secretary has the authority to determine if a citation should be issued to an employer for unsafe working conditions, 29 U.S.C. 658. A necessary adjunct of that power is the authority to withdraw a citation and enter into settlement discussions with the employer. Whirlpool, supra, at 1420; Mobil Oil, supra, at 927. The Commission's function is to act as a neutral arbiter and determine whether the Secretary's citations should be enforced over employee or union objections. Its authority plainly does not extend to overturning the Secretary's decision not to issue or to withdraw a citation.The Sixth Circuit's conclusion that the Commission can review the Secretary's decision to withdraw a citation would discourage the Secretary from seeking voluntary settlements with employers in violation of the Act, thus unduly hampering the enforcement of the Act. Whirlpool, supra, at 1420; Mobil Oil, supra, at 927. Such a procedure would also allow the Commission to make both prosecutorial decisions and to serve as the adjudicator of the dispute, a commingling of roles that Congress did not intend. Whirlpool, supra, at 1419; Mobil Oil, supra, at 930-931; Sun Petroleum Products, supra, at 1187. Indeed, the Commission itself was created to avoid giving the Secretary both prosecutorial and adjudicatory powers. See generally Senate Committee on Labor and Public Welfare, Subcommittee on Labor, 92d Cong., 1st Sess., Legislative History of the Occupational Safety and Health Act of 1970 (S. 2193, Pub. L. 91-596) (Comm. Print 1971). Accord, Whirlpool, supra, at 1419; Mobil Oil, supra, at 930-931, and n. 21. The other Courts of Appeals to address this problem have recognized the distinct roles of the Secretary and the Commission and accordingly have acknowledged that the Secretary's decision to withdraw a citation against an employer under the Act is not reviewable by the Commission. Based on these considerations, the petitions for certiorari are granted, and the judgment of the Court of Appeals is Reversed. JUSTICE BRENNAN and JUSTICE BLACKMUN dissent from summary disposition. They would grant certiorari and set the cases for oral argument.JUSTICE MARSHALL dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See Maggio v. Fulford, (MARSHALL, J., dissenting); Wyrick v. Fields, (MARSHALL, J., dissenting).

462 F.2d 1058, affirmed by an equally divided Court.[Footnote *] Together with No. 72-550, Bradley et al. v. State Board of Education of Virginia et al., also on certiorari to the same court.George B. Little argued the cause for petitioners in No. 72-549. With him on the briefs was Conrad B. Mattox, Jr. William T. Coleman, Jr., argued the cause for petitioners in No. 72-550. With him on the briefs were Jack Greenberg, James M. Nabrit III, Norman J. Chachkin, Louis R. Louis, William L. Taylor, and Anthony G. Amsterdam.Philip B. Kurland argued the cause for respondents in both cases. With him on the brief were Edward I. Rothschild, Andrew P. Miller, Attorney General of Virginia, William G. Broaddus and D. Patrick Lacy, Jr., Assistant Attorneys General, Frederick T. Gray, Walter E. Rogers, J. Segar Gravatt, R. D. McIlwaine III, L. Paul Byrne, and J. Mercer White, Jr.Solicitor General Griswold argued the cause for the United States as amicus curiae urging affirmance in both cases. With him on the brief were Assistant Attorney General Pottinger, A. Raymond Randolph, Jr., Brian K. Landsberg, and John C. Hoyle.Fn Fn Briefs of amici curiae urging reversal in both cases were filed by Stephen J. Pollak, Richard M. Sharp, and David Rubin for the National Education Association, and by Melvin L. Wulf, Sanford Jay Rosen, and Philip Hirschkop for the American Civil Liberties Union et al. Margie Pitts Hames filed a brief for the Black Parents of Atlanta, Georgia, as amicus curiae urging reversal in No. 72-550. Briefs of amici curiae urging affirmance in both cases were filed by David I. Caplan for the Jewish Rights Council, and by Harold H. Fuhrman for the National Suburban League, Ltd. Charles S. Conley and Floyd B. McKissick filed a brief for the Congress of Racial Equality as amicus curiae urging affirmance in No. 72-549. PER CURIAM.The judgment is affirmed by an equally divided Court.MR. JUSTICE POWELL took no part in the consideration or decision of these cases.

Petitioner was convicted in a Federal District Court for violating 21 U.S.C. 174, by knowingly possessing and transporting heroin imported unlawfully. In the face of repeated demands by petitioner for disclosure, the trial court sustained the Government's refusal to disclose the identity of an undercover informer who had taken a material part in bringing about petitioner's possession of the drugs, had been present with petitioner at the occurrence of the alleged crime, and might have been a material witness as to whether petitioner knowingly transported the drugs as charged. Held: In the circumstances of this case, failure of the court to require disclosure of the identity of the informer was reversible error. Pp. 54-66. (a) Where disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair trial, the Government's privilege to withhold disclosure of the informer's identity must give way. Pp. 60-62. (b) However, no fixed rule is justifiable. The public interest in protecting the flow of information to the Government must be balanced against the individual's right to prepare his defense. Whether nondisclosure is erroneous depends on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors. P. 62. (c) In this case, the informer was not expressly mentioned in the relevant charge of the indictment; but the charge, viewed in connection with the evidence introduced at his trial, is so closely related to the informer as to make his identity and testimony highly material. Pp. 62-63. (d) The provision of the statute authorizing a conviction when the Government has proved that the accused possessed narcotics - unless he explains or justifies such possession - emphasizes petitioner's vital need for access to any material witness. P. 63. (e) The circumstances of this case demonstrate that the informer's possible testimony was highly relevant and might have been helpful to the defense. Pp. 63-65. (f) On the record in this case, it cannot be assumed that the informer was known to petitioner and available to him as a witness, nor that the informer had died before the trial. P. 60, n. 8. (g) The trial court erred also in denying, prior to the trial, petitioner's motion for a bill of particulars, insofar as it requested the informer's identity and address, particularly because Count 1 of the indictment charged an unlawful sale of heroin to the informer. P. 65, n. 15. 229 F.2d 812, reversed and remanded.Maurice J. Walsh argued the cause and filed a brief for petitioner.James W. Knapp argued the cause for the United States. On the brief were Solicitor General Rankin, Assistant Attorney General Olney, Beatrice Rosenberg and Julia P. Cooper.MR. JUSTICE BURTON delivered the opinion of the Court.This case concerns a conviction for violation of the Narcotic Drugs Import and Export Act, as amended.1 The principal issue is whether the United States District Court committed reversible error when it allowed the Government to refuse to disclose the identity of an undercover employee who had taken a material part in bringing about the possession of certain drugs by the accused, had been present with the accused at the occurrence of the alleged crime, and might be a material witness as to whether the accused knowingly transported the drugs as charged. For the reasons hereafter stated, we hold that, under the circumstances here present, this was reversible error.In 1955, in the Northern District of Illinois, petitioner, Albert Roviaro, was indicted on two counts by a federal grand jury. The first count charged that on August 12, 1954, at Chicago, Illinois, he sold heroin to one "John Doe" in violation of 26 U.S.C. 2554 (a). The second charged that on the same date and in the same city he "did then and there fraudulently and knowingly receive, conceal, buy and facilitate the transportation and concealment after importation of ... heroin, knowing the same to be imported into the United States contrary to law; in violation of Section 174, Title 21, United States Code."Before trial, petitioner moved for a bill of particulars requesting, among other things, the name, address and occupation of "John Doe." The Government objected on the ground that John Doe was an informer and that his identity was privileged. The motion was denied.Petitioner, who was represented by counsel, waived a jury and was tried by the District Court. During the trial John Doe's part in the charged transaction was described by government witnesses, and counsel for petitioner, in cross-examining them, sought repeatedly to learn John Doe's identity. The court declined to permit this cross-examination and John Doe was not produced, identified, or otherwise made available. Petitioner was found guilty on both counts and was sentenced to two years' imprisonment and a fine of $5 on each count, the sentences to run concurrently.2 The Court of Appeals sustained the conviction, holding that the concurrent sentence was supported by the conviction on Count 2 and that the trial court had not abused its discretion in denying petitioner's requests for disclosure of Doe's identity. 229 F.2d 812. We granted certiorari, , in order to pass upon the propriety of the nondisclosure of the informer's identity and to consider an alleged conflict with Portomene v. United States, 221 F.2d 582; United States v. Conforti, 200 F.2d 365; and Sorrentino v. United States, 163 F.2d 627.At the trial, the Government relied on the testimony of two federal narcotics agents, Durham and Fields, and two Chicago police officers, Bryson and Sims, each of whom knew petitioner by sight. On the night of August 12, 1954, these four officers met at 75th Street and Prairie Avenue in Chicago with an informer described only as John Doe.3 Doe and his Cadillac car were searched and no narcotics were found. Bryson secreted himself in the trunk of Doe's Cadillac, taking with him a device with which to raise the trunk lid from the inside. Doe then drove the Cadillac to 70th Place and St. Lawrence Avenue, followed by Durham in one government car and Field and Sims in another. After an hour's wait, at about 11 o'clock, petitioner arrived in a Pontiac, accompanied by an unidentified man. Petitioner immediately entered Doe's Cadillac, taking a front seat beside Doe. They then proceeded by a circuitous route to 74th Street near Champlain Avenue. Both government cars trailed the Cadillac but only the one driven by Durham managed to follow it to 74th Street. When the Cadillac came to a stop on 74th Street, Durham stepped out of his car onto the sidewalk and saw petitioner alight from the Cadillac about 100 feet away. Durham saw petitioner walk a few feet to a nearby tree, pick up a small package, return to the open right front door of the Cadillac, make a motion as if depositing the package in the car, and then wave to Doe and walk away. Durham went immediately to the Cadillac and recovered a package from the floor. He signaled to Bryson to come out of the trunk and then walked down the street in time to see petitioner re-enter the Pontiac, parked nearby, and ride away.Meanwhile, Bryson, concealed in the trunk of the Cadillac, had heard a conversation between John Doe and petitioner after the latter had entered the car. He heard petitioner greet John Doe and direct him where to drive. At one point, petitioner admonished him to pull over to the curb, cut the motor, and turn out the lights so as to lose a "tail." He then told him to continue "further down." Petitioner asked about money Doe owed him. He advised Doe that he had brought him "three pieces this time." When Bryson heard Doe being ordered to stop the car, he raised the lid of the trunk slightly. After the car stopped, he saw petitioner walk to a tree, pick up a package, and return toward the car. He heard petitioner say, "Here it is," and "I'll call you in a couple of days." Shortly thereafter he heard Durham's signal to come out and emerged from the trunk to find Durham holding a small package found to contain three glassine envelopes containing a white powder. A field test of the powder having indicated that it contained an opium derivative, the officers, at about 12:30 a.m., arrested petitioner at his home and took him, along with Doe, to Chicago police headquarters. There petitioner was confronted with Doe, who denied that he knew or had ever seen petitioner.4 Subsequent chemical analysis revealed that the powder contained heroin.I.Petitioner contends that the trial court erred in upholding the right of the Government to withhold the identity of John Doe. He argues that Doe was an active participant in the illegal activity charged and that, therefore, the Government could not withhold his identity, his whereabouts, and whether he was alive or dead at the time of trial.5 The Government does not defend the nondisclosure of Doe's identity with respect to Count 1, which charged a sale of heroin to John Doe, but it attempts to sustain the judgment on the basis of the conviction on Count 2, charging illegal transportation of narcotics.6 It argues that the conviction on Count 2 may properly be upheld since the identity of the informer, in the circumstances of this case, has no real bearing on that charge and is therefore privileged.What is usually referred to as the informer's privilege is in reality the Government's privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. Scher v. United States, ; In re Quarles and Butler, ; Vogel v. Gruaz, . The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation. The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged.7 Likewise, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.8 A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer's identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way.9 In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.10 Most of the federal cases involving this limitation on the scope of the informer's privilege have arisen where the legality of a search without a warrant is in issue and the communications of an informer are claimed to establish probable cause. In these cases the Government has been required to disclose the identity of the informant unless there was sufficient evidence apart from his confidential communication.11 Three recent cases in the Courts of Appeals have involved the identical problem raised here - the Government's right to withhold the identity of an informer who helped to set up the commission of the crime and who was present at its occurrence. Portomene v. United States, 221 F.2d 582; United States v. Conforti, 200 F.2d 365; Sorrentino v. United States, 163 F.2d 627. In each case it was stated that the identity of such an informer must be disclosed whenever the informer's testimony may be relevant and helpful to the accused's defense.12 We believe that no fixed rule with respect to disclosure is justifiable. The problem is one that calls for balancing the public interest in protecting the flow of information against the individual's right to prepare his defense. Whether a proper balance renders nondisclosure erroneous must depend on the particular circumstances of each case, taking into consideration the crime charged, the possible defenses, the possible significance of the informer's testimony, and other relevant factors.II.The materiality of John Doe's possible testimony must be determined by reference to the offense charged in Count 2 and the evidence relating to that count. The charge is in the language of the statute. It does not charge mere possession; it charges that petitioner did "fraudulently and knowingly receive, conceal, buy and facilitate the transportation and concealment after importation of ... heroin, knowing the same to be imported into the United States contrary to law ... ." While John Doe is not expressly mentioned, this charge, when viewed in connection with the evidence introduced at the trial, is so closely related to John Doe as to make his identity and testimony highly material.It is true that the last sentence of subdivision (c) of 2 authorizes a conviction when the Government has proved that the accused possessed narcotics, unless the accused explains or justifies such possession.13 But this statutory presumption does not reduce the offense to one of mere possession or shift the burden of proof; it merely places on the accused, at a certain point, the burden of going forward with his defense.14 The fact that petitioner here was faced with the burden of explaining or justifying his alleged possession of the heroin emphasizes his vital need for access to any material witness. Otherwise, the burden of going forward might become unduly heavy.The circumstances of this case demonstrate that John Doe's possible testimony was highly relevant and might have been helpful to the defense. So far as petitioner knew, he and John Doe were alone and unobserved during the crucial occurrence for which he was indicted. Unless petitioner waived his constitutional right not to take the stand in his own defense, John Doe was his one material witness. Petitioner's opportunity to cross-examine Police Officer Bryson and Federal Narcotics Agent Durham was hardly a substitute for an opportunity to examine the man who had been nearest to him and took part in the transaction. Doe had helped to set up the criminal occurrence and had played a prominent part in it. His testimony might have disclosed an entrapment. He might have thrown doubt upon petitioner's identity or on the identity of the package. He was the only witness who might have testified to petitioner's possible lack of knowledge of the contents of the package that he "transported" from the tree to John Doe's car. The desirability of calling John Doe as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide.Finally, the Government's use against petitioner of his conversation with John Doe while riding in Doe's car particularly emphasizes the unfairness of the nondisclosure in this case. The only person, other than petitioner himself, who could controvert, explain or amplify Bryson's report of this important conversation was John Doe. Contradiction or amplification might have borne upon petitioner's knowledge of the contents of the package or might have tended to show an entrapment.This is a case where the Government's informer was the sole participant, other than the accused, in the transaction charged. The informer was the only witness in a position to amplify or contradict the testimony of government witnesses. Moreover, a government witness testified that Doe denied knowing petitioner or ever having seen him before. We conclude that, under these circumstances, the trial court committed prejudicial error in permitting the Government to withhold the identity of its undercover employee in the face of repeated demands by the accused for his disclosure.15 Petitioner also presents a claim of error arising out of a controversy over the correctness of an entry, made on the envelope containing the heroin, to the effect that the heroin had been found by Bryson. The undisputed testimony of the officers was that the heroin had been found by Durham and handed by him to Bryson who, in turn, handed it to Fields who made the erroneous entry. On the basis of this discrepancy, petitioner sought to obtain Durham's written report to the Federal Narcotics Bureau concerning the case. Although this discrepancy dealt with the relatively minor matter of who had first found the package, it also reflected upon the credibility of Durham and Fields, two of the Government's principal witnesses. However, in view of the decision we have reached on other grounds, we deem it unnecessary to determine whether the denial of this request, even if erroneous, was prejudicial to petitioner. The judgment of the Court of Appeals is reversed and the case is remanded to the District Court for proceedings not inconsistent with this opinion. Reversed and remanded.MR. JUSTICE BLACK and MR. JUSTICE WHITTAKER took no part in the consideration or decision of this case.

Record in this case involving State's use of evidence to convict respondent which allegedly had been illegally seized held not sufficiently clear and specific to permit decision of the constitutional issues involved. 368 F.2d 142, certiorari dismissed as improvidently granted.Elliot L. Richardson, Attorney General of Massachusetts, argued the cause for petitioner. With him on the briefs were Willie J. Davis and James B. Krasnoo, Assistant Attorneys General.Louis M. Nordlinger argued the cause and filed a brief for respondent.Anthony G. Amsterdam and Melvin L. Wulf filed a brief for the American Civil Liberties Union et al., as amici curiae, urging affirmance.PER CURIAM.In 1958 respondent was tried and convicted in Middlesex Superior Court, Massachusetts, for armed robbery of a bank and related offenses. He appealed, and in 1961 his conviction was affirmed by the Supreme Judicial Court of Massachusetts, sub nom. Commonwealth v. Binkiewicz, 342 Mass. 740, 175 N. E. 2d 473.Respondent eventually filed a petition for a writ of habeas corpus in the Federal District Court. Testimony was taken by the District Court on December 30, 1965. It ruled that respondent's Fourth Amendment rights had been violated by the entry into his apartment, by his arrest, and by the search and seizure of certain articles in his apartment which were introduced in evidence against him. Accordingly, it set aside his conviction and ordered his release.1 Mapp v. Ohio, . The Court of Appeals affirmed.2 We granted certiorari because of the importance of the constitutional issues presented.3 At the time of respondent's trial in 1958, Massachusetts did not have an exclusionary rule for evidence obtained by an illegal search or seizure, Commonwealth v. Wilkins, 243 Mass. 356, 138 N. E. 11 (1923); Commonwealth v. Spofford, 343 Mass. 703, 706, 180 N. E. 2d 673, 675 (1962), and the parties did not focus upon the issues now before us. The evidentiary hearing in 1965 took place almost eight years after the events.After oral argument and study of the record, we have reached the conclusion that the record is not sufficiently clear and specific to permit decision of the important constitutional questions involved in this case. The writ is therefore dismissed as improvidently granted. Cf. Smith v. Mississippi, . Dismissed.

The dismissal of an appeal from a money judgment by a state appellate court as a reasonable measure for safeguarding the collectibility of that judgment does not violate the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment; and, upon the facts in this case, the state appellate court's dismissal of petitioner's appeal was such a reasonable measure. Pp. 38-45. 1. No violation of the Equal Protection Clause has been shown in this case, because there has been no showing that anyone comparably situated has been treated differently from petitioner. P. 41. 2. Dismissal of the appeal in this case did not violate the Due Process Clause of the Fourteenth Amendment. Pp. 41-45. (a) Hovey v. Elliott, , distinguished. Pp. 41-42. (b) While a statutory review is important and must be exercised without discrimination, such a review is not a requirement of due process. P. 43. (c) Where the effectiveness of a money judgment is jeopardized by the judgment debtor, he has no constitutional right to an appeal extending that frustration. Pp. 43-44. 3. Dismissal of petitioner's appeal is not regarded as a penalty imposed as a punishment for criminal contempt. It was a reasonable method of sustaining the effectiveness of the state's judicial process as against the rights of a judgment debtor who appealed without filing a supersedeas bond and refused to comply with reasonable orders designed to safeguard the value of the judgment pending a decision on his appeal. Pp. 44-45. Judgment affirmed.Norman Leonard argued the cause and filed a brief for petitioner.John Geisness argued the cause for respondents. With him on the brief was Samuel B. Bassett. MR. JUSTICE BURTON delivered the opinion of the Court.The question before us is whether a state appellate court violates either the Due Process or the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States when it dismisses an appeal from a money judgment as a reasonable measure for safe-guarding the collectibility of that judgment. For the reasons hereafter stated, we hold that it does not and that the dismissal of the appeal in the instant case was such a reasonable measure.This litigation resulted from a "blacklisting" letter written by Harris as an agent of petitioner, National Union of Marine Cooks and Stewards, in 1949, to persons able to affect the employment of the 95 respondents whose occupation was that of stewards in the Alaska trade.1 It took the following course: 1949 - In the Superior Court of the State of Washington for King County, respondents' libel action against petitioner and Harris, seeking $20,000 damages for each respondent, was dismissed on demurrer. June 9, 1950 - On appeal to the Supreme Court of Washington, the letter was held libelous per se, the judgment was reversed and the cause remanded for trial. 36 Wash. 2d 557, 219 P.2d 121. September 4, 1951 - In the Superior Court, a total judgment of $475,000 was rendered against petitioner and Harris, awarding $5,000 to each respondent. September 5, 1951 - In the Superior Court, petitioner and Harris filed notices of appeal to the Supreme Court but offered no supersedeas bond and obtained no stay of proceedings.2 October 19, 1951 - In the Superior Court, in the same case, respondents began a supplemental proceeding to discover petitioner's available assets. February 15, 1952 - In the Superior Court supplemental proceeding, the evidence disclosed no substantial assets of petitioner in Washington but showed $298,000 of United States bonds to be in its possession in California. The court ordered petitioner to deliver these bonds to the court's receiver, for safe-keeping, pending disposition of petitioner's appeal. April 4, 1952 - In the Superior Court supplemental proceeding, upon petitioner's failure to deliver the bonds, the court adjudged it in contempt, stating "that said contemptuous conduct ... frustrates the enforcement of the judgment herein ... and frustrates the receivership created herein by order of this Court ... ." 41 Wash. 2d 22, 24, 246 P.2d 1107, 1108. May 17, 1952 - The Supreme Court struck from its calendar petitioner's appeal on the merits, pending its review of the adjudication of contempt "unless the said appellant Union sooner purges itself of the contempt ... ." May 26, 1953 - The Supreme Court held that the "adjudication of contempt is affirmed, and the appeal presently pending in the main action shall be dismissed unless, within fifteen days from the date of the remittitur herein, the appellant union purges itself of the order of contempt, by complying with the trial court's order requiring delivery of the bonds to the receiver." 42 Wash. 2d 648, 654, 257 P.2d 629, 633. May 27, 1953 - In the Supreme Court, respondents filed an affidavit showing that petitioner's disbursements, in 1952, had been $633,391.10, as opposed to its receipts of $413,280.90, and that its total cash assets, at the end of that year, had shrunk to $90,389.84. June 12, 1953 - In the Supreme Court, respondents renewed their motion to dismiss petitioner's appeal in the main action. They filed a supporting affidavit stating that "All of ... [petitioner's] assets of substantial value are in California and two California courts have refused to entertain suit on the Washington judgment while this appeal is pending." July 3, 1953 - The Supreme Court ordered dismissal of petitioner's appeal unless petitioner purged itself of contempt. August 19, 1953 - The Supreme Court denied petitioner a rehearing and entered judgment dismissing its appeal in the main action. March 8, 1954 - This Court granted certiorari because of the significant relation of the constitutional issue to the enforcement of state judgments. .3 There is no question before us as to the power of the state courts of Washington, under its laws, (1) to order petitioner to deliver the specified bonds to the receiver, (2) to adjudicate petitioner in contempt for failure to do so, or (3) to dismiss petitioner's appeal upon failure to purge itself of contempt by delivery of the bonds. Those questions have been settled by the Supreme Court of Washington. The question before us is whether the procedure which has culminated in the dismissal of petitioner's appeal violates either the Due Process or the Equal Protection Clause of the Fourteenth Amendment.4 We have no difficulty with the Equal Protection Clause because no showing has been made that anyone comparably situated has been treated differently from petitioner. The significant issue is whether the action of the State violates due process of law. To decide this, we consider first whether, generally, the dismissal of an appeal from a money judgment amounts to due process of law where it constitutes a reasonable means of safeguarding the collectibility of that judgment. If so, we may then consider whether the dismissal in the instant case constituted such a means.The constitutional objection raised by petitioner was long ago considered in Hovey v. Elliott, . In that case, the Supreme Court of the District of Columbia went further and attempted to deprive a defendant of his right to answer the suit brought against him. Having stricken defendant's answer, the court entered judgment against him as a punishment for his refusal to deliver to a court-appointed receiver certain funds which were the subject matter of the litigation. When the State of New York later refused to honor that judgment, this Court, in affirming the action of the Court of Appeals of New York, held that the District of Columbia had deprived defendant of his property without due process of law by denying him his constitutional right to a day in court.5 The instant case does not go so far. Here the petitioner has had its day in court. The dismissal has cut off only a statutory right of review after a full trial by judge and jury. In Hovey v. Elliott, supra, this distinction was anticipated and room was left open for a later consideration of cases like the one before us.6 While a statutory review is important and must be exercised without discrimination, such a review is not a requirement of due process. District of Columbia v. Clawans, ; Ohio v. Akron Park District, ; Reetz v. Michigan, ; McKane v. Durston, .While this Court has not, until now, passed upon the constitutionality of a state court's dismissal of an appeal in a case like the present, it has decided somewhat comparable issues. Where the subject matter of litigation has been removed or has removed itself from the jurisdiction of a state court in violation of that court's orders, this Court has upheld a dismissal of the offending litigant's appeal. For example, where a prisoner has escaped from custody while his appeal is pending, this Court has upheld a dismissal of his appeal. Cf. Eisler v. United States, , and 883. Similarly, after a state prisoner's recapture, this Court has sustained a state court's refusal to revive his appeal. Allen v. Georgia, . See also, Smith v. United States, ; Washington v. Handy, 27 Wash. 469, 67 P. 1094; People v. Genet, 59 N. Y. 80; Massachusetts v. Andrews, 97 Mass. 543.7 The circumstances before us are, in some degree, comparable. The order here violated was issued in a supplemental proceeding to discover and safeguard property of petitioner, without which the judgment would have little or no value. Petitioner's failure to deliver the specified out-of-state property to the court's receiver frustrated the state court much as the escape of a prisoner would frustrate it in attempting to review his conviction. Where the effectiveness of a money judgment is jeopardized by the judgment debtor, he has no constitutional right to an appeal extending that frustration.The dismissal here is not regarded by us as a penalty imposed as a punishment for criminal contempt. It is an exercise of a state court's inherent power to use its processes to induce compliance with a supplemental order reasonably issued in aid of execution. Furthermore, the appeal was not summarily dismissed. Petitioner was allowed 15 days, after being adjudged in contempt, within which to purge itself. The propriety of the dismissal and its remedial nature are demonstrated by the situation in California. Two proceedings brought there by respondents to reach petitioner's assets in California evidently were frustrated by the insistence of the California courts that they would not entertain any suit on the Washington judgment while an appeal from that judgment was pending in Washington.The supplemental proceeding indicated that the $298,000 in bonds, to which the court directed its order, constituted the only substantial asset from which payment of respondents' judgment might be realized and that this asset might be dissipated unless placed in protective custody.In appraising the reasonableness of the State's order, it is noteworthy that the court did not seek to apply the bonds to the satisfaction of respondents' judgment. It merely directed petitioner to deliver them to the court's receiver for safekeeping. Petitioner's appeal was not dismissed because of petitioner's failure to satisfy a judgment pending an appeal from it. It was dismissed because of petitioner's failure to comply with the court's order to safeguard petitioner's assets from dissipation pending such appeal. Viewing the dismissal of petitioner's appeal in the light of its reasonableness in sustaining the effectiveness of a state's judicial process, as against the rights of a judgment debtor, without filing a supersedeas bond, to refuse to comply with orders safeguarding the value of that judgment, we find nothing that violates due process of law.The judgment of the Supreme Court of the State of Washington, accordingly, is Affirmed.

In 1971, petitioner, who was then 19 years old, pleaded guilty to the charge of carrying a pistol without a license in violation of a provision of the District of Columbia Code and was placed on probation for two years under 5010(a) of the Federal Youth Corrections Act (YCA). At the end of the 2-year probationary period, he was unconditionally discharged from the YCA program. In 1980, petitioner was again convicted of carrying a pistol without a license under the same provision of the District of Columbia Code, and was sentenced to imprisonment as a felon, rather than a misdemeanant, under the recidivist provision of the Code. The District of Columbia Court of Appeals affirmed, rejecting petitioner's contention that his earlier conviction could not properly provide the basis for his being sentenced as a recidivist because, following his successful completion of the 2-year probationary term, that conviction had been expunged under 5021(b) of the YCA, which provides that where a youth offender has been placed on probation, the court may thereafter, in its discretion, "unconditionally discharge such youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court, which discharge shall automatically set aside the conviction."Held: Under the interpretation of 5021(b) plainly suggested by its language, the conviction of a youth offender placed on probation under 5010(a) is not set aside where, as here, the court has not exercised its discretion to discharge him unconditionally "prior to the expiration of the maximum period of probation theretofore fixed by the court." This limitation is fully consistent with the YCA's rehabilitation purposes as well as with Congress' intent to employ the set-aside as an incentive for positive behavior by youths sentenced under the YCA. Accordingly, the trial court was free to take petitioner's previous conviction into account in imposing sentence under the recidivist provision of the District of Columbia Code. Pp. 663-668. 440 A. 2d 1008, affirmed.MARSHALL, J., delivered the opinion for a unanimous Court. Linda Gillespie Stuntz argued the cause for petitioner. With her on the briefs was Erwin N. Griswold.Barbara E. Etkind argued the cause for the United States. With her on the brief were Solicitor General Lee, Assistant Attorney General Jensen, Deputy Solicitor General Frey, and Kathleen A. Felton.JUSTICE MARSHALL delivered the opinion of the Court.This case presents the question whether a conviction upon which a youth offender was sentenced to probation under the Federal Youth Corrections Act of 1950, 18 U.S.C. 5005 et seq., was automatically set aside after he served his full term of probation.IIn 1971 petitioner Melvin Tuten, who was 19 years old, pleaded guilty to the charge of carrying a pistol without a license in violation of D.C. Code 22-3204 (1981).1 He was placed on probation for two years under the Federal Youth Corrections Act of 1950 (YCA), 18 U.S.C. 5005 et seq. At the end of the 2-year probationary period, petitioner was unconditionally discharged from the YCA program.In 1980 petitioner was tried and convicted of carrying a pistol without a license under the same provision of the D.C. Code. The prosecutor urged that petitioner's previous conviction made him subject to the enhanced penalty provided by D.C. Code 22-3204 (1981) for one who previously "has been convicted in the District of Columbia of a violation of this section." The trial judge agreed and, based on the earlier conviction, sentenced petitioner as a felon rather than a misdemeanant. The judge imposed a sentence of two to six years' imprisonment.On appeal to the District of Columbia Court of Appeals, petitioner contended that the earlier conviction could not properly provide the basis for his being sentenced as a recidivist because that conviction had been expunged under the YCA, 5021(b), following his successful completion of the 2-year probationary term. The court rejected this assertion and affirmed the sentence. 440 A. 2d 1008 (1982). It relied primarily upon the "ordinary meaning" of the language of 5021. 440 A. 2d, at 1013. Section 5021 provides:"(a) Upon the unconditional discharge by the Commission of a committed youth offender before the expiration of the maximum sentence imposed upon him, the conviction shall be automatically set aside and the Commission shall issue to the youth offender a certificate to that effect."(b) Where a youth offender has been placed on probation by the court, the court may thereafter, in its discretion, unconditionally discharge such youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court, which discharge shall automatically set aside the conviction, and the court shall issue to the youth offender a certificate to that effect." The court concluded that the automatic set-aside provision of subsection (b) applies only to a youth offender who receives an unconditional discharge before the expiration of his probationary period. The court also stated that "the legislative history contains no persuasive reasons" to depart from the ordinary meaning of the statutory language, and noted that "the case law and public policy support the plain meaning of the statute." 440 A. 2d, at 1013.2 We granted certiorari, , and we now affirm.IIThis Court has in previous decisions described and analyzed the YCA in considerable detail in the course of deciding particular issues arising under the Act. See Ralston v. Robinson, ; Durst v. United States, ; Dorszynski v. United States, . The Act generally applies to persons under 22 years of age at the time of their conviction3 who are sentenced in federal courts or in courts of the District of Columbia.4 "[T]he principal purpose of the YCA is to rehabilitate persons who, because of their youth, are unusually vulnerable to the danger of recidivism." Ralston v. Robinson, supra, at 206. To achieve this purpose, the Act gives courts a number of alternatives in sentencing youth offenders. First, a court may commit a youth offender to the custody of the Attorney General for institutional treatment and supervision under the Act. 18 U.S.C. 5010(b) and (c). The Act affords the Attorney General a broad range of discretion in providing institutional treatment, which includes educational and vocational training as well as psychiatric counseling. 5006(g), 5011, 5013. See Dorszynski, supra, at 434.5 Second, if the court finds, as it did in this case, that a youth offender does not need to be committed to custody, it may place him on probation under the supervision of a probation officer or supervisory agent. 5010(a). Finally, if the court finds that the defendant will not benefit from rehabilitative treatment, it may sentence him under any of the penalty provisions applicable to adult offenders. 5010(d).As we noted in Durst v. United States, supra, at 548, "[a] particularly valuable benefit for the offender sentenced under the YCA is the prospect of obtaining a certificate setting aside his conviction" under 5021 of the Act. Congress' purpose in adopting 5021 was to promote the rehabilitation of youth offenders by providing a substantial incentive for positive behavior while serving a sentence under the YCA.6 Congress recognized that a criminal conviction often carries with it numerous civil and social disabilities. For example, a conviction may result in the loss of the rights to vote, to hold a public office, to serve on a jury, and to practice various occupations and professions.7 As in this case, a conviction may also make an offender subject to increased penalties for subsequent convictions. Like various state expungement statutes,8 5021 enables an eligible youth offender to reenter society and conduct his life free from the disabilities that accompany a criminal conviction. Dorszynski, supra, at 429, n. 6.9 Until 1961, the YCA's set-aside provision was applicable only to a youth who was committed to the custody of the Attorney General under 5010(b) or 5010(c) and was unconditionally discharged prior to expiration of the maximum sentence imposed.10 It was not applicable to an offender who, like petitioner, was sentenced initially to probation rather than to confinement. The YCA was amended in 1961 to add 5021(b), Pub. L. 87-336, 75 Stat. 750, in order to correct this inconsistency in the Act. See H. R. Rep. No. 433, 87th Cong., 1st Sess., 1 (1961); S. Rep. No. 1048, 87th Cong., 1st Sess., 1 (1961). Under 5021(b), youth offenders sentenced initially to probation under 5010(a) are afforded an opportunity to have their convictions set aside similar to that which had previously been afforded only to youth offenders sentenced under 5010(b) and (c).We are now asked to decide when 5021 requires the setting aside of the conviction of a youth offender who has been placed on probation. Petitioner maintains that after a youth offender successfully completes the term of probation to which he was initially sentenced, his conviction must be automatically set aside under 5021(b). As the court below noted, however, this interpretation is contrary to the language of the statute itself, which provides that a "discharge shall automatically set aside the conviction" if the court "unconditionally discharge[s] [the] youth offender from probation prior to the expiration of the maximum period of probation theretofore fixed by the court" (emphasis added). The clear import of 5021(b) was described by this Court in Durst. "[Section 5021(b)] extend[s] the benefit of a certificate [setting aside the conviction] to youths sentenced to probation under 5010(a) when the court unconditionally discharges the youth prior to expiration of the sentence of probation imposed." 434 U.S., at 548 (emphasis added). See also Dorszynski, 418 U.S., at 435. Statements in the legislative history of the 1961 amendment echo the language of 5021(b) limiting the set-aside to youth offenders discharged before their original probationary terms expire.11 Under the interpretation of 5021(b) plainly suggested by the language of the statute, the conviction of a youth offender who has been placed on probation under 5010(a) is not set aside where, as here, the court has not exercised its discretion to discharge him unconditionally "prior to the expiration of the maximum period of probation theretofore fixed by the court," which in this case was two years. This limitation is fully consistent with the rehabilitative purposes of the YCA as well as with Congress' intent to employ the set-aside as an incentive for positive behavior by youths sentenced under the Act. The incentive might be significantly weaker if convictions were set aside regardless of whether the youth offender, by his conduct during the probationary period, had convinced the sentencing court to discharge him before the expiration of his probationary term. Although it would also have been reasonable for Congress to make the set-aside available to any youth offender who completes probation without incident, this result is certainly not compelled by the purposes of the Act. Moreover, the remedial purposes of the Act are not frustrated by the possibility that a court may inadvertently fail to grant an early unconditional discharge.12 A youth offender who believes that the sentencing court's failure to grant an early unconditional discharge from probation was an oversight may, following the completion of his probationary period, move that court to exercise its discretion to grant him an early unconditional discharge nunc pro tunc and to set aside his conviction. See United States v. Fryer, 545 F.2d 11, 13, n. 3 (CA6 1976).13 In short, the language of 5021(b), the legislative history, and the rehabilitative purposes of the YCA all point to a single conclusion: that petitioner's previous conviction was not set aside under 5021(b) because he was unconditionally discharged from probation upon the completion, not prior to the completion, of the 2-year term of probation to which he was initially sentenced under 5010(a). The trial court was therefore free in this case to take petitioner's previous conviction into account in imposing sentence under the recidivist provision of the District of Columbia's penal statute. Accordingly, the judgment of the District of Columbia Court of Appeals is Affirmed.

The Disbursing Office of the House of Representatives is a "department or agency" of the United States within the meaning of 18 U.S.C. 1001, which forbids the willful falsification of a material fact "in any matter within the jurisdiction of any department or agency of the United States." Pp. 503-510. (a) The legislative history of this section shows that it was the intention of Congress to make it applicable to the legislative and judicial branches of the Government. Pp. 504-508. (b) A different result is not required by the definitions of "department" and "agency" in 18 U.S.C. 6. Pp. 508-509. (c) The development, scope and purpose of 1001 shows that "department," as used in this context, was meant to describe the executive, legislative and judicial branches of the Government. P. 509. (d) That criminal statutes must be construed strictly does not mean that every criminal statute must be given the narrowest possible meaning in complete disregard of the purpose of the legislature. Pp. 509-510. 120 F. Supp. 857, reversed.Charles F. Barber argued the cause for the United States. With him on briefs were Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg, Ralph S. Spritzer and Richard J. Blanchard.Edward Bennett Williams argued the cause for appellee. With him on the brief was Murdaugh Stuart Madden.MR. JUSTICE REED delivered the opinion of the Court.On November 10, 1953, an 18-count indictment was returned in the United States District Court for the District of Columbia, charging the appellee, a former member of Congress, with violations of 18 U.S.C. 1001.1 During the course of the trial a judgment of acquittal was ordered on counts 8 through 18 of the indictment. The jury returned a verdict of guilty on the remaining 7 counts which charged the appellee with having falsely and fraudulently represented to the Disbursing Office of the House of Representatives that a named woman was entitled to compensation as his official clerk. The District Court granted appellee's motion in arrest of judgment, holding that he had not falsified a material fact "within the jurisdiction of any department or agency of the United States" since the Disbursing Office was not a department or agency within the meaning of the statute. The District Court was of the opinion that the statute does not afford protection to the legislative and judicial branches of the Government. The Government brought this case here on direct appeal pursuant to 18 U.S.C. 3731. Reference to the evolution of 1001 will assist in determining the correctness of the decision below. A detailed analysis appears in the opinion of the trial court. 120 F. Supp. 857.Section 1001 had its origin in a statute passed almost 100 years ago in the wake of a spate of frauds upon the Government. The Act of March 2, 1863, 12 Stat. 696, "An Act to prevent and punish Frauds upon the Government of the United States," made it a criminal offense for"any person in the land or naval forces of the United States ... [to] make or cause to be made, or present or cause to be presented for payment or approval to or by any person or officer in the civil or military service of the United States, any claim upon or against the Government of the United States, or any department or officer thereof, knowing such claim to be false, fictitious, or fraudulent ... ." This provision clearly covers the presentation of false claims against any component of the Government to any officer of the Government. The prohibition of the statute is broad, although its application was limited to military personnel.False statements were proscribed in the following clause of the same section in these terms:"any person in such forces or service who shall, for the purpose of obtaining, or aiding in obtaining, the approval or payment of such claim, make, use, or cause to be made or used, any false bill, receipt, voucher, entry, roll, account, claim, statement, certificate, affidavit, or deposition, knowing the same to contain any false or fraudulent statement or entry." It will be noted that there is here no specification as to the group to whom the false statements had to be made. The provision in the false claims section which made the presentation of false claims to "any person or officer in the civil or military service of the United States" punishable might reasonably have been applied here. There would be no justification for giving the false statements section a narrower scope, for, so long as the false statement was made with the indicated purpose, the statute made it punishable.From 1863 to 1934 the coverage of the statute was at various times extended, but no change was made which could be or is taken by the appellee as restricting the scope of the false statements provision to the executive branch.2 The words urged as crucial in this first appeared in the revision of 1934. 48 Stat. 996. No change was made in the false claims portion of the statute, but the false statements section was amended to read: "or whoever shall knowingly and willfully falsify or conceal or cover up by any trick, scheme, or device a material fact, or make or cause to be made any false or fraudulent statements or representations, or make or use or cause to be made or used any false bill, receipt, voucher, roll, account, claim, certificate, affidavit, or deposition, knowing the same to contain any fraudulent or fictitious statement or entry, in any matter within the jurisdiction of any department or agency of the United States or of any corporation in which the United States of America is a stockholder; ... ." (Italics supplied.) The amendment deleted all words as to purpose and inserted the italicized phrase. Under the prior statutes there had been no possibility of a restrictive interpretation which would read out falsifications made to officers of the legislative or judicial branches. Did the insertion of the new phrase exclude those branches? We think not. The 1934 revision was largely the product of the urging of the Secretary of the Interior.3 The Senate Report, S. Rep. No. 1202, 73d Cong., 2d Sess., indicates that its purpose was to broaden the statute so as to reach not only false papers presented in connection with a claim against the Government, but also nonmonetary frauds such as those involved in the "hot-oil" shipments. A greater variety of false statements were meant to be included.4 There is no indication in either the committee reports5 or in the congressional debates6 that the scope of the statute was to be in any way restricted. There was certainly no suggestion that the new phrase was to be interpreted so that only falsifications made to executive agencies would be reached.7 Apparently the italicized phrase was inserted simply to compensate for the deleted language as to purpose - to indicate that not all falsifications but only those made to government organs were reached.The 1948 revision put the statute into its present form.8 62 Stat. 683. The false claims provision became 287 of Title 18 and retained its prior form without significant change. Section 1001 is the "false statements" section. Except for housekeeping changes in language which are of no particular significance, the deletion of the reference to corporations, and the transposition of the "in any matter" clause to the beginning of the section, there has been no change since the 1934 statute. There is no indication that the revision was intended to work any substantive change. It would thus be supposed that the statute retained its broad scope, a scope at least as broad as the false claims section, and could not be limited to falsifications made to executive agencies.The appellee and the District Court rely on 6 of Title 18 to restrict the scope of 1001. Section 6 provides: "As used in this title: "The term `department' means one of the executive departments enumerated in section 1 of Title 5, unless the context shows that such term was intended to describe the executive, legislative, or judicial branches of the government. "The term `agency' includes any department, independent establishment, commission, administration, authority, board or bureau of the United States or any corporation in which the United States has a proprietary interest, unless the context shows that such term was intended to be used in a more limited sense." The falsification here involved was held to be within the jurisdiction of the Disbursing Office of the House which it was thought could not meet the definitions in 6. It seemed significant to the trial court "that Title 18, 287 (formerly the first part of old Section 35) provides penalties against any one who `makes or presents to any person or officer in the civil, military, or naval service of the United States, or to any department or agency thereof, any claim ... knowing such claim to be false,'" whereas 1001 does not contain such language. 120 F. Supp., at 861.It might be argued that the matter here involved was within the jurisdiction of the Treasury Department, as the appellee's misstatements would require the payment of funds from the United States Treasury. Or, viewing this as a matter within the jurisdiction of the Disbursing Office, it might be argued, as the Government does, that that body is an "authority" within the 6 definition of "agency." We do not rest our decision on either of those interpretations. The context in which this language is used calls for an unrestricted interpretation. This is enforced by its legislative history. It would do violence to the purpose of Congress to limit the section to falsifications made to the executive departments. Congress could not have intended to leave frauds such as this without penalty. The development, scope and purpose of the section shows that "department," as used in this context, was meant to describe the executive, legislative and judicial branches of the Government. The difference between the language of 287 and that of 1001 can only be understood in the light of legislative history. That history dispels the possibility of attaching any significance to the difference.That criminal statutes are to be construed strictly is a proposition which calls for the citation of no authority. But this does not mean that every criminal statute must be given the narrowest possible meaning in complete disregard of the purpose of the legislature.9 The judgment below is accordingly Reversed. THE CHIEF JUSTICE, MR. JUSTICE BURTON and MR. JUSTICE HARLAN took no part in the consideration or decision of this case.

Mr. Rudolph F. Becker, Jr., of New Orleans, La., for petitioner. Mr. W. Marvin Smith, of New Orleans, La., for the United States. PER CURIAM. Petitioner and his employee, one Perniciaro, were jointly indicted and tried on the charges contained in an eight-count indictment. The defendants were acquitted under Counts 1 to 7, the first of which charged petitioner and Perniciaro with conspiring for the purpose of enabling Perniciaro to evade military service by failing to make known to the draft board facts which might have resulted in Perniciaro being placed in a different draft classifica- [ Mogall v. U. S. ], 425] tion. The defendants were convicted under Count 8, however, which charged petitioner and Perniciaro with failing to report facts in writing to the local draft board which might have resulted in Perniciaro being placed in a different draft classification, contrary to 11 of the Selective Training and Service Act of 1940, 54 Stat. 894, 50 U.S.C.Appendix, 311, 50 U.S.C.A.Appendix, 311, and 626.1(b) of the Selective Service Regulations. The Government now concedes that the Selective Service Regulations imposed no legal obligation upon petitioner, as an employer of a registrant under the Selective Training and Service Act, to make such reports to the local board. It is also conceded that petitioner was tried and convicted upon the assumption that he was under such a legal obligation. We agree that the plain language of the Regulation and the record of this case support these conclusions. The Government urges that although the judgment of conviction against petitioner should be reversed, the indictment should not be dismissed since the prosecution may wish to try petitioner a second time on the charges contained in Count 8, as an aider and abettor. There is no showing of facts sufficient for us to pass judgment on the question. Accordingly, we intimate no opinion on the propriety of this procedure or the issues which it might present. See Sealfon v. United States, 1948, . Those questions will be open in the District Court on our remand of the cause. Reversed.

], 505] Harry Leroy Jones, of Washington, D.C., for petitioner. S. C. Masterson, of Richmond, Cal., for respondents. Everett W. Mattoon, of Los Angeles, Cal., for the State of California, as amicus curiae by special leave of Court. Mr. Justice DOUGLAS delivered the opinion of the Court. Alvina Wagner, a resident of California, died in 1942, leaving real and personl property situate there. By a will dated December 23, 1941, and admitted to probate in a California court in 1942, she bequeathed her entire estate to four relatives who are nationals and residents of Germany. Six heirs-at-law, residents of California, filed a petition for determination of heirship in , 506] the probate proceedings claiming that the German nationals were ineligible as legatees under California law. 1 There has never been a hearing on that petition. For in 1943 the Alien Property Custodian, to whose functions the Attorney General has recently succeeded,2 vested in himself all right, title and interest of the German nationals in the estate of this decedent. 3 He thereupon instituted this action in the District Court against the executor under the will and the California heirs-at-law for a determination that they have no interest in the estate and that he was entitled to the entire net estate, , 507] after payment of administration and other expenses. The District Court granted judgment for the Custodian on the pleadings. Crowley v. Allen, 52 F.Supp. 850. The Circuit Court of Appeals reversed holding that the District Court was without jurisdiction of the subject matter. Allen v. Markham, 9 Cir., 147 F.2d 136. The case came here on certiorari. We held that the District Court had jurisdiction of the suit and remanded the cause to the Circuit Court of Appeals for consideration of the merits. Markham v. Allen, . The Circuit Court of Appeals thereupon held for respondents. Allen v. Markham, 9 Cir., 156 F.2d 653. The case is here again on a petition for a writ of certiorari which we granted becuase the issues raised are of national importance. First. Our problem starts with the Treaty of Friendship, Commerce and Consular Rights with Germany, signed December 8, 1923, and proclaimed October 14, 1925. 44 Stat. 2132. It has different provisons governing the testamentary disposition of realty and personalty, which we will treat separately. The one pertaining to realty, contained in Article IV, reads as follows: 'Where, on the death of any person holding real or other immovable property or interests therein within the territories of one High Contracting Party, such property or interests therein wuld, by th e laws of the country or by a testamentary disposition, descend or pass to a national of the other High Contracting Party, whether resident or non- resident, were he not disqualified by the laws of the country where such property or interests therein is or are situated, such national shall be allowed a term of three years in which to sell the same, this term to be reasonably prolonged if circumstances render it necessary, and withdraw the proceeds thereof, without restraint or interference, and exempt from any succession, probate or administrative duties or charges other than , 508] those which may be imposed in like cases upon the nationals of the country from which such proceeds may be drawn.' The rights secured are in terms a right to sell within a specified time plus a right to withdraw the proceeds and an exemption from discriminatory taxation. It is plain that those rights extend to the German heirs of 'any person' holding realty in the United States. And though they are not expressed in terms of ownership or the right to inherit, that is their import and meaning. Techt v. Hughes, 229 N.Y. 222, 240, 128 N.E. 185, 191, 11 A.L.R. 166; Ahrens v. Ahrens, 144 Iowa, 486, 489, 123 N.W. 164, 166, Ann.Cas.1912A, 1098. And see People ex rel. Atty. Gen. v. Gerke, 5 Cal. 381; Scharpf v. Schmidt, 172 Ill. 255, 50 N.E. 182; Colson v. Carlson, 116 Kan. 593, 227 P. 360; Goos v. Brocks, 117 Neb. 750, 223 N.W. 13. If, therefore, the provisions of the treaty have not been superseded or abrogated they prevail over any requirements of California law which conflict with them. Hauenstein v. Lynham, . Second. The Circuit Court of Appeals concluded that these provisions of the treaty had been abrogated. It relied for that conclusion on 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, 55 Stat. 839, 50 U.S.C.App.Supp. 1, 5, 50 U.S.C.A.Appendix, 5, and the Treaty of Berlin, 42 Stat.1939. We start from the premise that the outbreak of war does not necessarily suspend or abrogate treaty provisions. Society for the Propagation of the Gospel in Foreign Parts v. Town of New Haven, 8 Wheat. 464, 494, 495. There may of course be such an incompatibility between a particular treaty provision and the maintenance of a state of war as to make clear that it should not be enforced. Karnuth v. United States, . Or the Chief Executive or the Congress may have formulated a national policy quite inconsistent with , 509] the enforcement of a treaty in whole or in part. This was the view stated in Techt v. Hughes, supra, and we believe it to be the correct one. That case concerned the right of a resident alien enemy to inherit real property in New York. Under New York law, as it then stood, an alien enemy had no such right. The question was whether the right was granted by a reciprocal inheritance provision in a treaty with Austria which was conched in terms practically identical with those we have here. The court found nothing incompatible with national policy in permitting the resident alien enemy to have the right of inheritance granted by the treaty. Cardozo, J., speaking for the court, stated the applicable principles as follows: 'The question is not what states may do after was has supervened, and this without breach of their duty as members of the society of nations. The question is what courts are to presume that they have done. * * * President and Senate may denounce the treaty, and thus terminate its life. Congress may enact an inconsistent rule, which will control the action of the courts (Fong Yue Ting v. United States, ). The treaty of peace itself may set up new relations, and terminate earlier compacts, either tacitly or expressly. * * * But until some one of these things is done, until some one of these events occurs, while war is still lagrant, a nd the will of the political departments of the government unrevealed, the courts, as I view their function, play a humbler and more cautious part. It is not for them to denounce treaties generally, en bloc. Their part it is, as one provision or another is involved in some actual controversy before them, to determine whether, alone, or by force of connection with an inseparable scheme, the provision is inconsistent with the policy or safety of the nation in the emergency of war, and hence , 510] presumably intended to be limited to times of peace. The mere fact that other portions of the treaty are suspended, or even abrogated, is not conclusive. The treaty does not fall in its entirety unless it has the character of an indivisible act.' 229 N.Y. at pages 242-243, 128 N.E. at page 192, 11 A.L.R. 166. To the same effect see Goos v. Brocks, supra; State ex rel. v. Reardon, 120 Kan. 614, 245 P. 158, 47 A.L.R. 452.4 We do not think that the national policy expressed in the Trading with the Enemy Act, as amended, is incompatible with the right of inheritance granted German aliens under Article IV of the treaty. It is true that since the declaration of war on December 11, 1941, 55 Stat. 796, 50 U.S.C.A. note preceding section 1, the Act see Lenoir, The Effect of War on have prohibited the entry of German nationals into this country,5 have outlawed communications or transactions of a commercial character with them,6 and have precluded the removal of money or property from this country for their use or account. 7 We assume that these provisions abrogate the parts of Article IV of the treaty dealing with the liquidation of the inheritance and the withdrawal of the proceeds, even though the Act provides that the prohibited activities and transactions may be licensed. 8 But the Act and the Executive Orders do not evince such hostility to ownership of property by alien enemies as to imply that its acquisition conflicts with the national policy. There is, indeed, tacit recognition that acquisition of property by inheritance is compatible with the , 511] scheme of the Act. For the custodian is expressly empowered to represent the alien enemy heir in all legal proceedings, including those incident to succession. 9 Much reliance for the contrary view is placed on the power to vest alien property in an agency of the United States. 10 But the power to vest, i.e., to take away, what may be owned or acquired does not reveal a policy at odds with the reciprocal right to inherit granted by Article IV of the treaty. For the power to vest is discretionary not mandatory. The loss of the inheritance by vesting is, therefore, not inevitable. But more important, vesting does not necessarily deprive the alien enemy of all the benefits of his inheritance. If he owes money to American creditors, the property will be applied to the payment of his debts. 11 To give the power to vest the effect which respondents urge would, indeed, prove too much. That power is not restricted to property of alien enemies. It extends to the property of nationals of any foreign country, friend or enemy. 12 Provisions comprable to that contained in Article IV of the present treaty are found in existing treaties , 512] with friendly nations. 13 We will not readily asume that when Congress enacted 5(b) and authorized the vesting of property, it had a purpose to abrogate all such treaty clauses. Cf. Cook v. United States, , 311. Yet if the power to vest is inconsistent with the right of inheritance of an alien enemy, it is difficult to see why it is any less so when other aliens are involved. Finally, there is a distinction between the acquisition of property and the use thereof which 5(b) itself recognizes. That section not only grants the President the power to vest; it likewise grants him authority under the same circumstances to 'prevent or prohibit, any acquisition * * * of * * * any property in which any foreign country or a national thereof has any interest.' 5(b)(1)(B). No action has been taken to prevent or prohibit the acquisition of property by inheritance on the part of enemy aliens. The grant of express power to cut off, inter alia, the right of inheritance and the non-exercise of the power lend support to the view that the Trading with the Enemy Act, as amended, did not without more suspend or abrogate Article IV of the present treaty. This conclusion squares with the general rule stated in Karnuth v. United Statessupra, page 237, 49 S.Ct. at page 276, that treaty provisions 'giving the right to citizens of subjects of one of the high contracting powers to continue to hold and transmit land in the territory of the other' survive the outbreak of war. The argument based on the Treaty of Berlin is inconclusive. The Joint Resolution of July 2, 1921, 42 Stat. 105, 106, declared that property of German nationals held by the United States should be retained and no disposition made of it, except as specifically provided by law, until the German government made suitable provision for the satisfaction of claims of American nationals against it. , 513] Thus absolute title to the property in question became vested in the United States. Cummings v. Deutsche Bank, . The Treaty of Berlin accorded the United States all rights and advantages specified in the resolution. But the Treaty of 1828 with Prussia contained a provision substantially similar to Article IV of the present treaty. 8 Stat. 378, 384, art. XIV. Hence it is argued that if the Treaty of 1828 survived the outbreak of was and thus guaranteed property rights in German nationals by way of inheritance during that war, it would not have been necessary to have negotiated a new convention covering the same ground in 1923. And it is also argued that if the provision in the earlier treaty did not survive the war, it is unlikely that the same parties would intend like provisions in the later treaty to have a different effect. The attitude of the State Department has varied. In 1918 Secretary Lansing expressed the view that such treaty provisions were not in force during the war with Germany and Austria. 14 Today the Department apparently takes the other view. 15 We have no reliable evidence of the intention of the high contracting parties outside the words of the present treaty. The attitude and conduct under earlier treaties, reflecting as they did numerous contingencies and conditions, leave no sure guide to the construction of the present treaty. Where the relevant historical source and the i nstrument itself give no plain indication that it is to become inoperative in whole or in part on the outbreak of war, we are left to determine, as Techt v. Hughes, supra, indicates, whether the provision under which rights are asserted is incompatible with national , 514] policy in time of war. So far as the right of inheritance of realty under Article IV of the present treaty is concerned, we find no incompatibility with national policy, for reasons already given. It is argued, however, that the Treaty of 1923 with Germany must be held to have failed to survive the war, since Germany, as a result of its defeat and the occupation by the Allies, has ceased to exist as an independent national or international community. But the question whether a state is in a position to perform its treaty obligations is essentially a political question. Terlinden v. Ames, , 491. We find no evidence that the political departments have considered the collapse and surrender of Germany as putting an end to such provisions of the treaty as survived the outbreak of the war or the obligation of either party in respect to them. The Allied Control Counsel has, indeed, assumed control of Germany's foreign affairs and treaty obligations16-a policy and course of conduct by the political departments wholly consistent with the maintenance and enforcement, rather than the repudiation, of pre-existing treaties. 16 The Axis in Defeat, State Dept. Pub. No. 2423, pp. 71, 72, 77. Third. The problem of the personalty raises distinct questions. Article IV of the treaty contains the following provision pertaining to it: 'Nationals of either High Contracting Party may have full power to dispose of their personal property of every kind within the territories of the other, by testament, donation, or otherwise, and their heirs, legatees and donees, of whatsoever nationality, whether resident or non-resident, shall succeed to such personal property, and may take possession thereof, either by themselves or by others acting for them, and retain or dispose of the same at their pleasure , 515] subject to the payment of such duties or charges only as the nationals of the High Contracting Party within whose territories such property may be or belong shall be liable to pay in like cases.' A practically identical provision of the Treaty of 1844 with Wurttemburg, art. III, 8 Stat. 588, 590, was before the Court in Frederickson v. State of Louisiana, 23 How. 445. In that case the testator was a citizen of the United States, his legatees being citizens and residents of Wurttemberg. Louisiana, where the testator was domiciled, levied a succession tax of 10 per cent on legatees not comiciled in the United States. The Court held that the treaty did not cover the 'case of a citizen or subject of the respective countries residing at home, and disposing of property there in favor of a citizen or subject of the other * * *' 23 How. at pages 447, 448. That decision was made in 1860. In 1917 the Court followed it in cases involving three other treaties. Petersen v. State of Iowa, ; Duus v. Brown, ; Skarderud v. Tax Commission, . The construction adopted by those cases is, to say the least, permissible when the syntax of the sentences dealing with realty and personalty is considered. So far as realty is concerned, the testator includes 'any person'; and the property covered is that within the territory of either of the high contracting parties. In case of personalty, the provision governs the right of 'nationals' of either contractig party to dispose of their property within the territory of the 'other' contracting party; and it is 'such personal property' that the 'heirs, legatees and donees' are entitled to take. Petitioner, however, presents a detailed account of the history of the clause which was not before the Court in Frederickson v. State of Louisiana, supra, and which bears out the construction that it grants the foreign heir the right to succeed to his inheritance or the proceeds thereof. But , 516] we do not stop to review that history. For the consistent judicial construction of the language since 1860 has given it a character which the treaty-making agencies have not seen fit to alter. And that construction is entirely consistent with the plain language of the treaty. We therefore do not deem it appropriate to change that construction at this late date, even though as an original matter the other view might have much to commend it. We accordingly hold that Article IV of the treaty does not cover personalty located in this country and which an American citizen undertakes to leave to German nationals. We do not know from the present record the nationality of Alvina Wagner. But since the issue arises on the Government's motion for judgment on the pleadings, we proceed on the assumption less favorable to it, viz., that she was an American citizen. Fourth. It is argued, however, that even though the provision of the treaty is inapplicable, the personalty may not be disposed of pursuant to the California statute because that statute is unconstitutional. Issues under the Fourteenth Amendment are not raised as in Terrace v. Thompson, . The challenge to the statute is that it is an extension of state power into the field of foreign affairs, which is exclusively reserved by the Constitution to the Federal Government. That argument is based on the fact that under the statute the right of non-resident aliens to take by succession or testamentary disposition is dependent upon the existence of a reciprocal right on the part of citizens of the United States to take personalty on the same terms and conditions as residents and citizens of the other nation. 17 The argument is that by this method California seeks to promite the right of American citizens to inherit abroad by offering to aliens , 517] reciprocal rights of inheritance in California. Such an offer of reciprocal arrangements is said to be a matter for settlement by the Federal Government on a nation-wide basis. In Blythe v. Hinckley, , California had granted aliens an unqualified right to inherit property within its borders. The alien claimant was a citizen of Great Britain with whom the United States had no treaty providing for inheritance by aliens in this country. The argument was that a grant of rights to aliens by a State was, in absence of a treaty, a forbidden entry into foreign affairs. The court rejected the argument as being an extraordinary one. The objection to the present statute is equally far fetched. Rights of succession to property are determined by local law. See Lyeth v. Hoey, , 158, 119 A.L. R. 410; Irving Trust Co. v. Day, , 401, 137 A.L.R. 1093. Those rights may be affected by an overriding federal policy, as where a treaty makes different or conflicting arrangements. Hauenstein v. lynham, supra. Then the state policy must give way. Cf. Hines v. Davidowitz, . But here there is no treaty governing the rights of succession to the personal property. Nor has California entered the forbidden domain of negotiating with a foreign country, United States v. Curtiss-Wright Export Corp., , 317, 219, or making a compact with it contrary to the prohibition of Article I, Section 10 of the Constitution. What California has done wil have some incidental or indirect effect in foreign countries. But that is true of many state laws which none would claim cross the forbidden line. In summary, we hold that disposition of the realty is governed by Article IV of the treaty. Disposition of the personalty, however, is not governed by the treaty unless it is determined that Alvina Wagner was a German national. If she was an American citizen, disposition of the , 518] personalty is governed by California law. Whether there are other requirements of the California statute which would bar the California heirs-at-law is a question on which we intimate no opinion. The judgment is reversed in part and affirmed in part, and the cause is remanded to the District Court for proceedings in conformity with this opinion. So ordered. Affirmed in part and reversed in part. Mr. Justice RUTLEDGE (concurring in part). I join in the Court's opinion insofar as it relates to the real estate. But, as to the personal property, I think the cause should be remanded to the District Court for determination of Alvina Wagner's nationality, without expression of opinion here upon the constitutionality of the California statute. The decision now made on that issue, by virtue of the Court's hypothesizing that she was an American citizen, will be rendered both moot and advisory in character if it is found, as it may well be in the District Court's further proceedings, that she was a German national. This Court has consistently declined to decide constitutional questions on hypothetical presentations. Rescue Army v. Municipal Court, . The practice should be followed in this case, even though conceivably another appeal might be saved by indulging the presumption which the Court makes. It is more important that constitutional decisions be reserved until the issues calling for them are squarely and inescapably presented, factually as well as legally, than it is to expedite the termination of litigation or the procedural convenience of the parties.