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Respondent Castleman moved to dismiss his indictment under 18 U. S. C. §922(g)(9), which forbids the possession of firearms by anyone convicted of a "misdemeanor crime of domestic violence." He argued that his previous conviction for "intentionally or knowingly caus[ing] bodily injury to" the mother of his child, App. 27, did not qualify as a "misdemeanor crime of domestic violence" because it did not involve "the use or attempted use of physical force," 18 U. S. C. §921(a)(33)(A)(ii). The District Court agreed, reasoning that "physical force" must entail violent contact and that one can cause bodily injury without violent contact, e.g., by poisoning. The Sixth Circuit affirmed on a different rationale. It held that the degree of physical force required for a conviction to constitute a "misdemeanor crime of domestic violence" is the same as that required for a "violent felony" under the Armed Career Criminal Act (ACCA), §924(e)(2)(B)(i)--namely, violent force — and that Castleman could have been convicted for causing slight injury by nonviolent conduct. Held: Castleman's conviction qualifies as a "misdemeanor crime of domestic violence." Pp. 4-16. (a) Section 922(g)(9)'s "physical force" requirement is satisfied by the degree of force that supports a common-law battery conviction — namely, offensive touching. Congress presumably intends to incorporate the common-law meaning of terms that it uses, and nothing suggests Congress intended otherwise here. The Sixth Circuit relied upon Johnson v. United States, 559 U. S. 133, in which the common-law meaning of "force" was found to be a "comical misfit," id., at 145, when read into ACCA's "violent felony" definition. But Johnson resolves this case in the Government's favor: The very reasons for rejecting the common-law meaning in Johnson are reasons to embrace it here. First, whereas it was "unlikely" that Congress meant to incorporate in ACCA's "violent felony" definition "a phrase that the common law gave peculiar meaning only in its definition of a misdemeanor," id., at 141, it is likely that Congress meant to incorporate the misdemeanor-specific meaning of "force" in defining a "misdemeanor crime of domestic violence." Second, whereas the word "violent" or "violence" standing alone "connotes a substantial degree of force," id., at 140, that is not true of "domestic violence," which is a term of art encompassing acts that one might not characterize as "violent" in a nondomestic context. Third, whereas this Court has hesitated to apply ACCA to "crimes which, though dangerous, are not typically committed by those whom one normally labels 'armed career criminals,' " Begay v. United States, 553 U. S. 137, 146, there is no anomaly in grouping domestic abusers convicted of generic assault or battery offenses together with others whom §922(g) disqualifies from gun ownership. In addition, a contrary reading would have made §922(g)(9) inoperative in at least ten States when it was enacted. Pp. 4-10. (b) Under this definition of "physical force," Castleman's conviction qualifies as a "misdemeanor crime of domestic violence." The application of the modified categorical approach — consulting Castleman's state indictment to determine whether his conviction entailed the elements necessary to constitute the generic federal offense — is straightforward. Castleman pleaded guilty to "intentionally or knowingly caus[ing] bodily injury to" the mother of his child, and the knowing or intentional causation of bodily injury necessarily involves the use of physical force. First, a "bodily injury" must result from "physical force." The common-law concept of "force" encompasses even its indirect application, making it impossible to cause bodily injury without applying force in the common-law sense. Second, the knowing or intentional application of force is a "use" of force. Leocal v. Ashcroft, 543 U. S. 1, distinguished. Pp. 10-13. (c) Castleman claims that legislative history, the rule of lenity, and the canon of constitutional avoidance weigh against this Court's interpretation of §922(g)(9), but his arguments are unpersuasive. Pp. 14-15. 695 F. 3d 582, reversed and remanded. Sotomayor, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Ginsburg, Breyer, and Kagan, JJ., joined. Scalia, J., filed an opinion concurring in part and concurring in the judgment. Alito, J., filed an opinion concurring in the judgment, in which Thomas, J., joined.Opinion of the Court 572 U. S. ____ (2014)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 12-1371UNITED STATES, PETITIONER v. JAMES ALVIN CASTLEMANon writ of certiorari to the united states court of appeals for the sixth circuit[March 26, 2013] Justice Sotomayor delivered the opinion of the Court. Recognizing that "[f]irearms and domestic strife are a potentially deadly combination," United States v. Hayes, 555 U. S. 415, 427 (2009), Congress forbade the possession of firearms by anyone convicted of "a misdemeanor crime of domestic violence." 18 U. S. C. §922(g)(9). The respondent, James Alvin Castleman, pleaded guilty to the misdemeanor offense of having "intentionally or knowingly cause[d] bodily injury to" the mother of his child. App. 27. The question before us is whether this conviction qualifies as "a misdemeanor crime of domestic violence." We hold that it does.IA This country witnesses more than a million acts of domestic violence, and hundreds of deaths from domestic violence, each year.1 See Georgia v. Randolph, 547 U. S. 103, 117-118 (2006). Domestic violence often escalates in severity over time, see Brief for Major Cities Chiefs Association et al. as Amici Curiae 13-15; Brief for National Network to End Domestic Violence et al. as Amici Curiae 9-12, and the presence of a firearm increases the likelihood that it will escalate to homicide, see id., at 14-15; Campbell et al., Assessing Risk Factors for Intimate Partner Homicide, DOJ, Nat. Institute of Justice J., No. 250, p. 16 (Nov. 2003) ("When a gun was in the house, an abused woman was 6 times more likely than other abused women to be killed"). "[A]ll too often," as one Senator noted during the debate over §922(g)(9), "the only difference between a battered woman and a dead woman is the presence of a gun." 142 Cong. Rec. 22986 (1996) (statement of Sen. Wellstone). Congress enacted §922(g)(9), in light of these sobering facts, to " 'close [a] dangerous loophole' " in the gun control laws: While felons had long been barred from possessing guns, many perpetrators of domestic violence are convicted only of misdemeanors. Hayes, 555 U. S., at 418, 426. Section 922(g)(9) provides, as relevant, that any person "who has been convicted . . . of a misdemeanor crime of domestic violence" may not "possess in or affecting commerc[e] any firearm or ammunition." With exceptions that do not apply here, the statute defines a "misdemeanor crime of domestic violence" as"an offense that . . . (i) is a misdemeanor under Federal, State, or Tribal law; and (ii) has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon, committed by a current or former spouse, parent, or guardian of the victim, by a person with whom the victim shares a child in common, by a person who is cohabiting with or has cohabited with the victim as a spouse, parent, or guardian, or by a person similarly situated to a spouse, parent, or guardian of the victim." §921(a)(33)(A).This case concerns the meaning of one phrase in this definition: "the use . . . of physical force."B In 2001, Castleman was charged in a Tennessee court with having "intentionally or knowingly cause[d] bodily injury to" the mother of his child, in violation of Tenn. Code Ann. §39-13-111(b) (Supp. 2002). App. 27. He pleaded guilty. Id., at 29. In 2008, federal authorities learned that Castleman was selling firearms on the black market. A grand jury in the Western District of Tennessee indicted him on two counts of violating §922(g)(9) and on other charges not relevant here. Id., at 13-16. Castleman moved to dismiss the §922(g)(9) charges, arguing that his Tennessee conviction did not qualify as a "misdemeanor crime of domestic violence" because it did not "ha[ve], as an element, the use . . . of physical force," §921(a)(33)(A)(ii). The District Court agreed, on the theory that "the 'use of physical force' for §922(g)(9) purposes" must entail "violent contact with the victim." App. to Pet. for Cert. 40a. The court held that a conviction under the relevant Tennessee statute cannot qualify as a "misdemeanor crime of domestic violence" because one can cause bodily injury without "violent contact"--for example, by "deceiving [the victim] into drinking a poisoned beverage." Id., at 41a. A divided panel of the U. S. Court of Appeals for the Sixth Circuit affirmed, by different reasoning. 695 F. 3d 582 (2012). The majority held that the degree of physical force required by §921(a)(33)(A)(ii) is the same as required by §924(e)(2)(B)(i), which defines "violent felony." Id., at 587. Applying our decision in Johnson v. United States, 559 U. S. 133 (2010), which held that §924(e)(2)(B)(i) requires "violent force," id., at 140, the majority held that Castleman's conviction did not qualify as a "misdemeanor crime of domestic violence" because Castleman could have been convicted for "caus[ing] a slight, nonserious physical injury with conduct that cannot be described as violent." 695 F. 3d, at 590. Judge McKeague dissented, arguing both that the majority erred in extending Johnson's definition of a "violent felony" to the context of a "misdemeanor crime of domestic violence" and that, in any event, Castleman's conviction satisfied the Johnson standard. Id., at 593-597. The Sixth Circuit's decision deepened a split of authority among the Courts of Appeals. Compare, e.g., United States v. Nason, 269 F. 3d 10, 18 (CA1 2001) (§922(g)(9) "encompass[es] crimes characterized by the application of any physical force"), with United States v. Belless, 338 F. 3d 1063, 1068 (CA9 2003) (§922(g)(9) covers only "the violent use of force"). We granted certiorari to resolve this split, 570 U. S. ___ (2013), and now reverse the Sixth Circuit's judgment.IIA "It is a settled principle of interpretation that, absent other indication, 'Congress intends to incorporate the well-settled meaning of the common-law terms it uses.' " Sekhar v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3). Seeing no "other indication" here, we hold that Congress incorporated the common-law meaning of "force"--namely, offensive touching — in §921(a)(33)(A)'s definition of a "misdemeanor crime of domestic violence." Johnson resolves this case in the Government's favor — not, as the Sixth Circuit held, in Castleman's. In Johnson, we considered whether a battery conviction was a "violent felony" under the Armed Career Criminal Act (ACCA), §924(e)(1). As here, ACCA defines such a crime as one that "has as an element the use . . . of physical force," §924(e)(2)(B)(i). We began by observing that at common law, the element of force in the crime of battery was "satisfied by even the slightest offensive touching." 559 U. S., at 139 (citing 3 W. Blackstone, Commentaries on the Laws of England 120 (1768)).2 And we recognized the general rule that "a common-law term of art should be given its established common-law meaning," except "where that meaning does not fit." 559 U. S., at 139. We declined to read the common-law meaning of "force" into ACCA's definition of a "violent felony," because we found it a "comical misfit with the defined term." Id., at 145; see United States v. Stevens, 559 U. S. 460, 474 (2010) ("[A]n unclear definitional phrase may take meaning from the term to be defined"). In defining a " 'violent felony,' " we held, "the phrase 'physical force' " must "mea[n] violent force." Johnson, 559 U. S., at 140. But here, the common-law meaning of "force" fits perfectly: The very reasons we gave for rejecting that meaning in defining a "violent felony" are reasons to embrace it in defining a "misdemeanor crime of domestic violence."3 First, because perpetrators of domestic violence are "routinely prosecuted under generally applicable assault or battery laws," Hayes, 555 U. S., at 427, it makes sense for Congress to have classified as a "misdemeanor crime of domestic violence" the type of conduct that supports a common-law battery conviction. Whereas it was "unlikely" that Congress meant to incorporate in the definition of a " 'violent felony' a phrase that the common law gave peculiar meaning only in its definition of a misdemeanor," Johnson, 559 U. S., at 141, it is likely that Congress meant to incorporate that misdemeanor-specific meaning of "force" in defining a "misdemeanor crime of domestic violence." Second, whereas the word "violent" or "violence" standing alone "connotes a substantial degree of force," id., at 140,4 that is not true of "domestic violence." "Domestic violence" is not merely a type of "violence"; it is a term of art encompassing acts that one might not characterize as "violent" in a nondomestic context. See Brief for National Network to End Domestic Violence et al. as Amici Curiae 4-9; DOJ, Office on Violence Against Women, Domestic Violence (defining physical forms of domestic violence to include "[h]itting, slapping, shoving, grabbing, pinching, biting, [and] hair pulling"), online at http://www.ovw. usdoj.gov/domviolence.htm.5 Indeed, "most physical assaults committed against women and men by intimates are relatively minor and consist of pushing, grabbing, shoving, slapping, and hitting." DOJ, P. Tjaden & N. Thoennes, Extent, Nature and Consequences of Intimate Partner Violence 11 (2000). Minor uses of force may not constitute "violence" in the generic sense. For example, in an opinion that we cited with approval in Johnson, the Seventh Circuit noted that it was "hard to describe . . . as 'violence' " "a squeeze of the arm [that] causes a bruise." Flores v. Ashcroft, 350 F. 3d 666, 670 (2003). But an act of this nature is easy to describe as "domestic violence," when the accumulation of such acts over time can subject one intimate partner to the other's control. If a seemingly minor act like this draws the attention of authorities and leads to a successful prosecution for a misdemeanor offense, it does not offend common sense or the English language to characterize the resulting conviction as a "misdemeanor crime of domestic violence." Justice Scalia's concurrence discounts our reference to social-science definitions of "domestic violence," including those used by the organizations most directly engaged with the problem and thus most aware of its dimensions. See post, at 8-11. It is important to keep in mind, however, that the operative phrase we are construing is not "domestic violence"; it is "physical force." §921(a)(33)(A). "Physical force" has a presumptive common-law meaning, and the question is simply whether that presumptive meaning makes sense in defining a "misdemeanor crime of domestic violence."6 A third reason for distinguishing Johnson's definition of "physical force" is that unlike in Johnson — where a determination that the defendant's crime was a "violent felony" would have classified him as an "armed career criminal"--the statute here groups those convicted of "misdemeanor crimes of domestic violence" with others whose conduct does not warrant such a designation. Section 922(g) bars gun possession by anyone "addicted to any controlled substance," §922(g)(3); by most people who have "been admitted to the United States under a nonimmigrant visa," §922(g)(5)(B); by anyone who has renounced United States citizenship, §922(g)(7); and by anyone subject to a domestic restraining order, §922(g)(8). Whereas we have hesitated (as in Johnson) to apply the Armed Career Criminal Act to "crimes which, though dangerous, are not typically committed by those whom one normally labels 'armed career criminals,' " Begay v. United States, 553 U. S. 137, 146 (2008), we see no anomaly in grouping domestic abusers convicted of generic assault or battery offenses together with the others whom §922(g) disqualifies from gun ownership. An additional reason to read the statute as we do is that a contrary reading would have rendered §922(g)(9) inoperative in many States at the time of its enactment. The "assault or battery laws" under which "domestic abusers were . . . routinely prosecuted" when Congress enacted §922(g)(9), and under which many are still prosecuted today, Hayes, 555 U. S., at 427, fall generally into two categories: those that prohibit both offensive touching and the causation of bodily injury, and those that prohibit only the latter. See Brief for United States 36-38. Whether or not the causation of bodily injury necessarily entails violent force — a question we do not reach — mere offensive touching does not. See Johnson, 559 U. S., at 139-140. So if offensive touching did not constitute "force" under §921(a)(33)(A), then §922(g)(9) would have been ineffectual in at least 10 States — home to nearly thirty percent of the Nation's population7 — at the time of its enactment. See post, at 6, and n. 5 (Scalia, J., concurring in part and concurring in judgment) (acknowledging that §922(g)(9) would have been inapplicable in California and nine other States if it did not encompass offensive touching); App. to Brief for United States 10a-16a (listing statutes prohibiting both offensive touching and the causation of bodily injury, only some of which are divisible); cf. Hayes, 555 U. S., at 427 (rejecting an interpretation under which "§922(g)(9) would have been 'a dead letter' in some two-thirds of the States from the very moment of its enactment"). In sum, Johnson requires that we attribute the common-law meaning of "force" to §921(a)(33)(A)'s definition of a "misdemeanor crime of domestic violence" as an offense that "has, as an element, the use or attempted use of physical force." We therefore hold that the requirement of "physical force" is satisfied, for purposes of §922(g)(9), by the degree of force that supports a common-law battery conviction.B Applying this definition of "physical force," we conclude that Castleman's conviction qualifies as a "misdemeanor crime of domestic violence." In doing so, we follow the analytic approach of Taylor v. United States, 495 U. S. 575 (1990), and Shepard v. United States, 544 U. S. 13 (2005). We begin with Taylor's categorical approach, under which we look to the statute of Castleman's conviction to determine whether that conviction necessarily "ha[d], as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon," §921(a)(33)(A). The Tennessee statute under which Castleman was convicted made it a crime to "commi[t] an assault . . . against" a "family or household member"--in Castleman's case, the mother of his child. Tenn. Code Ann. §39-13-111(b). A provision incorporated by reference, §39-13-101, defined three types of assault: "(1) [i]ntentionally, knowingly or recklessly caus[ing] bodily injury to another; (2) [i]ntentionally or knowingly caus[ing] another to reasonably fear imminent bodily injury; or (3) [i]ntentionally or knowingly caus[ing] physical contact with another" in a manner that a "reasonable person would regard . . . as extremely offensive or provocative." §39-13-101(a). It does not appear that every type of assault defined by §39-13-101 necessarily involves "the use or attempted use of physical force, or the threatened use of a deadly weapon," §921(a)(33)(A). A threat under §39-13-101(2) may not necessarily involve a deadly weapon, and the merely reckless causation of bodily injury under §39-13-101(1) may not be a "use" of force.8 But we need not decide whether a domestic assault conviction in Tennessee categorically constitutes a "misdemeanor crime of domestic violence," because the parties do not contest that §39-13-101 is a " 'divisible statute,' " Descamps v. United States, 570 U. S. ___, ___ (2013) (slip op., at 1). We may accordingly apply the modified categorical approach, consulting the indictment to which Castleman pleaded guilty in order to determine whether his conviction did entail the elements necessary to constitute the generic federal offense. Id., at ___ (slip op., at 1-2); see Shepard, 544 U. S., at 26. Here, that analysis is straightforward: Castleman pleaded guilty to having "intentionally or knowingly cause[d] bodily injury" to the mother of his child, App. 27, and the knowing or intentional causation of bodily injury necessarily involves the use of physical force. First, a "bodily injury" must result from "physical force." Under Tennessee law, "bodily injury" is a broad term: It "includes a cut, abrasion, bruise, burn or disfigurement; physical pain or temporary illness or impairment of the function of a bodily member, organ, or mental faculty." Tenn. Code Ann. §39-11-106(a)(2) (1997). Justice Sca- lia's concurrence suggests that these forms of injury necessitate violent force, under Johnson's definition of that phrase. Post, at 3. But whether or not that is so — a question we do not decide — these forms of injury do necessitate force in the common-law sense. The District Court thought otherwise, reasoning that one can cause bodily injury "without the 'use of physical force' "--for example, by "deceiving [the victim] into drinking a poisoned beverage, without making contact of any kind." App. to Pet. for Cert. 41a. But as we explained in Johnson, "physical force" is simply "force exerted by and through concrete bodies," as opposed to "intellectual force or emotional force." 559 U. S., at 138. And the common-law concept of "force" encompasses even its indirect application. "Force" in this sense "describ[es] one of the elements of the common-law crime of battery," id., at 139, and "[t]he force used" in battery "need not be applied directly to the body of the victim." 2 W. LaFave, Substan-tive Criminal Law §16.2(b) (2d ed. 2003). "[A] battery may be committed by administering a poison or by infecting with a disease, or even by resort to some intangible substance," such as a laser beam. Ibid. (footnote omitted) (citing State v. Monroe, 121 N. C. 677, 28 S. E. 547 (1897) (poison); State v. Lankford, 29 Del. 594, 102 A. 63 (1917) (disease); Adams v. Commonwealth, 33 Va. App. 463, 534 S. E. 2d 347 (2000) (laser beam)). It is impossible to cause bodily injury without applying force in the common-law sense. Second, the knowing or intentional application of force is a "use" of force. Castleman is correct that under Leocal v. Ashcroft, 543 U. S. 1 (2004), the word "use" "conveys the idea that the thing used (here, 'physical force') has been made the user's instrument." Brief for Respondent 37. But he errs in arguing that although "[p]oison may have 'forceful physical properties' as a matter of organic chemistry, . . . no one would say that a poisoner 'employs' force or 'carries out a purpose by means of force' when he or she sprinkles poison in a victim's drink," ibid. The "use of force" in Castleman's example is not the act of "sprinkl[ing]" the poison; it is the act of employing poison knowingly as a device to cause physical harm. That the harm occurs indirectly, rather than directly (as with a kick or punch), does not matter. Under Castleman's logic, after all, one could say that pulling the trigger on a gun is not a "use of force" because it is the bullet, not the trigger, that actually strikes the victim. Leocal held that the "use" of force must entail "a higher degree of intent than negligent or merely accidental conduct," 543 U. S., at 9; it did not hold that the word "use" somehow alters the meaning of "force." Because Castleman's indictment makes clear that the use of physical force was an element of his conviction, that conviction qualifies as a "misdemeanor crime of domestic violence."III We are not persuaded by Castleman's nontextual arguments against our interpretation of §922(g)(9).A First, Castleman invokes §922(g)(9)'s legislative history to suggest that Congress could not have intended for the provision to apply to acts involving minimal force. But to the extent that legislative history can aid in the interpretation of this statute, Castleman's reliance on it is unpersuasive. Castleman begins by observing that during the debate over §922(g)(9), several Senators argued that the provision would help to prevent gun violence by perpetrators of severe domestic abuse. Senator Lautenberg referred to "serious spousal or child abuse" and to "violent individuals"; Senator Hutchison to " 'people who batter their wives' "; Senator Wellstone to people who "brutalize" their wives or children; and Senator Feinstein to "severe and recurring domestic violence." 142 Cong. Rec. 22985-22986, 22988. But as we noted above, see supra, at 2, the impetus of §922(g)(9) was that even perpetrators of severe domestic violence are often convicted "under generally applicable assault or battery laws." Hayes, 555 U. S., at 427. So nothing about these Senators' isolated references to severe domestic violence suggests that they would not have wanted §922(g)(9) to apply to a misdemeanor assault conviction like Castleman's. Castleman next observes that §922(g)(9) is the product of a legislative compromise. The provision originally barred gun possession for any "crime of domestic violence," defined as any "felony or misdemeanor crime of violence, regardless of length, term, or manner of punishment." 142 Cong. Rec. 5840. Congress rewrote the provision to require the use of physical force in response to the concern "that the term crime of violence was too broad, and could be interpreted to include an act such as cutting up a credit card with a pair of scissors," id., at 26675. See Hayes, 555 U. S., at 428. Castleman would have us conclude that Congress thus meant "to narrow the scope of the statute to convictions based on especially severe conduct." Brief for Respondent 24. But all Congress meant to do was address the fear that §922(g)(9) might be triggered by offenses in which no force at all was directed at a person. As Senator Lautenberg noted, the revised text was not only "more precise" than the original but also "probably broader." 142 Cong. Rec. 26675.B We are similarly unmoved by Castleman's invocation of the rule of lenity. Castleman is correct that our "construction of a criminal statute must be guided by the need for fair warning." Crandon v. United States, 494 U. S. 152, 160 (1990). But "the rule of lenity only applies if, after considering text, structure, history, and purpose, there remains a grievous ambiguity or uncertainty in the statute, such that the Court must simply guess as to what Congress intended." Barber v. Thomas, 560 U. S. 474, 488 (2010) (citation and internal quotation marks omitted). That is not the case here.C Finally, Castleman suggests — in a single paragraph — that we should read §922(g)(9) narrowly because it implicates his constitutional right to keep and bear arms. But Castleman has not challenged the constitutionality of §922(g)(9), either on its face or as applied to him, and the meaning of the statute is sufficiently clear that we need not indulge Castleman's cursory nod to constitutional avoidance concerns.* * * Castleman's conviction for having "intentionally or knowingly cause[d] bodily injury to" the mother of his child qualifies as a "misdemeanor crime of domestic violence." The judgment of the United States Court of Appeals for the Sixth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.Opinion of Scalia, J. 572 U. S. ____ (2014)No. 12-1371UNITED STATES, PETITIONER v. JAMES ALVIN CASTLEMANon writ of certiorari to the united states court of appeals for the sixth circuit[March 26, 2014] Justice Scalia, concurring in part and concurring in the judgment. I agree with the Court that intentionally or knowingly causing bodily injury to a family member "has, as an element, the use . . . of physical force," 18 U. S. C. § §921(a)(33)(A)(ii), and thus constitutes a "misdemeanor crime of domestic violence," §922(g)(9). I write separately, however, because I reach that conclusion on narrower grounds.I Our decision in Johnson v. United States, 559 U. S. 133 (2010), is the natural place to begin. Johnson is significant here because it concluded that "the phrase 'physical force' means violent force — that is, force capable of caus- ing physical pain or injury to another person." Id., at 140 (second emphasis added). This is an easy case if the phrase "physical force" has the same meaning in §921(a)(33)(A)(ii), the provision that defines "misdemeanor crime of domestic violence" for purposes of §922(g)(9), as it does in §924(e)(2)(B)(ii), the provision interpreted in Johnson, since it is impossible to cause bodily injury without using force "capable of" producing that result. There are good reasons to give the phrase Johnson's interpretation. One is the presumption of consistent usage — the rule of thumb that a term generally means the same thing each time it is used. Although the presumption is most commonly applied to terms appearing in the same enactment, e.g., IBP, Inc. v. Alvarez, 546 U. S. 21, 33-34 (2005), it is equally relevant "when Congress uses the same language in two statutes having similar purposes," Smith v. City of Jackson, 544 U. S. 228, 233 (2005) (plurality opinion); see also Northcross v. Board of Ed. of Memphis City Schools, 412 U. S. 427, 428 (1973) (per curiam). This case is a textbook candidate for application of the Smith-Northcross branch of the rule. The "physical force" clauses at issue here and in Johnson are worded in nearly identical fashion: The former defines a "misdemeanor crime of domestic violence" as an offense that "has, as an element, the use or attempted use of physical force," §921(a)(33)(A)(ii), while the latter defines a "violent felony" as an offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another," §924(e)(2)(B)(i). And both statutes are designed to promote public safety by deterring a class of criminals from possessing firearms. Respondent's arguments fail to overcome the presumption of consistent usage. In respondent's view, "physical force" cannot mean "any force that produces any pain or bodily injury," Brief for Respondent 25, because §921(a)(33)(A)(ii) defines a violent crime and one can inflict all sorts of minor injuries — bruises, paper cuts, etc.--by engaging in nonviolent behavior. Respondent therefore reasons that §921(a)(33)(A)(ii) requires force capable of inflicting "serious" bodily injury. That requirement is more demanding than both of the plausible meanings of "physical force" we identified in Johnson: common-law offensive touching (which Johnson rejected) and force capable of causing physical pain or injury, serious or otherwise. See 559 U. S., at 138-140. It would be surpassing strange to read a statute defining a "misdemeanor crime of domestic violence" as requiring greater force than the similarly worded statute in Johnson, which defined a "violent felony," and respondent does not make a convincing case for taking that extraordinary step. For these reasons, I would give "physical force" the same meaning in §921(a)(33)(A)(ii) as in Johnson. The rest of the analysis is straightforward. Because "intentionally or knowingly caus[ing] bodily injury," App. 27, categorically involves the use of "force capable of causing physical pain or injury to another person," 559 U. S., at 140, respondent's 2001 domestic-assault conviction qualifies as a "misdemeanor crime of domestic violence" under §922(g)(9).1 I would reverse the judgment below on that basis and remand for further proceedings.II Unfortunately, the Court bypasses that narrower interpretation of §921(a)(33)(A)(ii) in favor of a much broader one that treats any offensive touching, no matter how slight, as sufficient. That expansive common-law definition cannot be squared with relevant precedent or statutory text. We have twice addressed the meaning of "physical force" in the context of provisions that define a class of violent crimes. Both times, we concluded that "physical force" means violent force. In Johnson, we thought it "clear that in the context of a statutory definition of 'violent felony,' the phrase 'physical force' means violent force." Id., at 140. And we held that common-law offensive touching — the same type of force the Court today holds does constitute "physical force"--is not sufficiently violent to satisfy the Armed Career Criminal Act's "physical force" requirement. See id., at 140-144. Our analysis in Johnson was premised in large part on our earlier interpretation of the generic federal "crime of violence" statute, 18 U. S. C. §16. In Leocal v. Ashcroft, 543 U. S. 1, 11 (2004), we observed that §16(a)--which defines a "crime of violence" as "an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another"--comprehends "a category of violent, active crimes." The textual similarity between §921(a)(33)(A)(ii)'s "physical force" clause and the clauses at issue in Johnson and Leocal thus raises the question: Why should the same meaning not apply here? The Court gives four responses that merit discussion, none of which withstands scrutiny. First, the Court invokes the " 'settled principle of interpretation that, absent other indication, "Congress intends to incorporate the well-settled meaning of the common-law terms it uses." ' " Ante, at 4 (quoting Sekhar v. United States, 570 U. S. ___, ___ (2013) (slip op., at 3)). That principle is of limited relevance, since the presumption of consistent statutory meaning is precisely "other indication" that §921(a)(33) (A)(ii) does not incorporate the common-law meaning. Anyway, a more accurate formulation of the principle cited by the Court is that when " 'a word is obviously transplanted from another legal source, whether the common law or other legislation, it brings the old soil with it.' " Sekhar, supra, at ___ (slip op., at 3-4) (quoting Frankfurter, Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947); emphasis added). Section 921(a)(33)(A)(ii) was enacted after the statutes involved in Johnson and Leocal,2 and its "physical force" clause is quite obviously modeled on theirs. Second, the Court asserts that any interpretation of "physical force" that excludes offensive touching "would have rendered §922(g)(9) inoperative in many States at the time of its enactment." Ante, at 9. But there is no interpretive principle to the effect that statutes must be given their broadest possible application, and §922(g)(9) without offensive touching would have had application in four-fifths of the States. Although domestic violence was "routinely prosecuted" under misdemeanor assault or battery statutes when Congress enacted §922(g)(9), United States v. Hayes, 555 U. S. 415, 427 (2009), and such statutes generally prohibited "both offensive touching and the causation of bodily injury" or "only the latter," ante, at 9, it does not follow that interpreting "physical force" to mean violent force would have rendered §922(g)(9) a practical nullity. To the contrary, §922(g)(9) would have worked perfectly well in 38 of the 48 States that had misdemeanor assault or battery statutes at the time of §922(g)(9)'s enactment. At that point, 19 States had statutes that covered infliction of bodily injury but not offensive touching,3 and 19 more had statutes that prohibited both of types of conduct, but did so in a divisible manner — thus making it possible to identify the basis for a conviction by inspecting charging documents and similar materials, see Descamps v. United States, 570 U. S. ___, ___ (2013) (slip op., at 5-8).4 That leaves only 10 States whose misdemeanor assault or battery statutes (1) prohibited offensive touching, and (2) were framed in such a way that offensive touching was indivisible from physical violence.5 The fact that §922(g)(9) would not have applied immediately in 10 States is hardly enough to trigger the presumption against ineffectiveness — the idea that Congress presumably does not enact useless laws. Compare Hayes, supra, at 427 (rejecting an interpretation that supposedly would have rendered §922(g)(9) " 'a dead letter' in some two-thirds of the States"). I think it far more plausible that Congress enacted a statute that covered domestic-violence convictions in four-fifths of the States, and left it to the handful of nonconforming States to change their laws (as some have), than that Congress adopted a meaning of "domestic violence" that included the slightest unwanted touching. Third, the Court seizes on the one and only meaningful distinction between §921(a)(33)(A)(ii) and the other provisions referred to above: that it defines a violent "misdemeanor" rather than a "violent felony" or an undifferentiated "crime of violence." Ante, at 5-6. We properly take account of the term being defined when interpreting "an unclear definitional phrase." United States v. Stevens, 559 U. S. 460, 474 (2010); but see Babbitt v. Sweet Home Chapter, Communities for Great Ore., 515 U. S. 687, 717-719 (1995) (Scalia, J., dissenting). But when we do so, we consider the entire term being defined, not just part of it. Here, the term being defined is "misdemeanor crime of domestic violence." Applying the term-to-be-defined canon thus yields the unremarkable conclusion that "physical force" in §921(a)(33)(A)(ii) refers to the type of force involved in violent misdemeanors (such as bodily-injury offenses) rather than nonviolent ones (such as offensive touching). Fourth, and finally, the Court seeks to evade Johnson and Leocal on the ground that " 'domestic violence' encompasses a range of force broader than that which constitutes 'violence' simpliciter." Ante, at 6, n. 4. That is to say, an act need not be violent to qualify as "domestic violence." That absurdity is not only at war with the English language, it is flatly inconsistent with definitions of "domestic violence" from the period surrounding §921(a)(33)(A)(ii)'s enactment. At the time, dictionaries defined "domestic violence" as, for instance, "[v]iolence between members of a household, usu. spouses; an assault or other violent act committed by one member of a household against another," Black's Law Dictionary 1564 (7th ed. 1999), and "[v]iolence toward or physical abuse of one's spouse or domestic partner," American Heritage Dictionary 534 (4th ed. 2000).6 Those definitions, combined with the absence of "domestic violence" entries in earlier dictionaries, see, e.g., Black's Law Dictionary 484 (6th ed. 1990); American Heritage Dictionary 550 (3d ed. 1992), make it utterly implausible that Congress adopted a "term of art" definition "encompassing acts that one might not characterize as 'violent' in a nondomestic context," ante, at 7. The Court's inventive, nonviolent definition fares no better when judged against other accepted sources of meaning. Current dictionaries give "domestic violence" the same meaning as above: ordinary violence that occurs in a domestic context. See, e.g., American Heritage Dictionary 533 (5th ed. 2011) ("[p]hysical abuse of a household member, especially one's spouse or domestic partner"). The same goes for definitions of "domestic violence" found in other federal statutes.7 Indeed, Congress defined "crime of domestic violence" as a "crime of violence" in another section of the same bill that enacted §921(a) (33)(A)(ii). See §350(a), 110 Stat. 3009-639, codified at 8 U. S. C. §1227(a)(2)(E)(i). The Court ignores these authorities and instead bases its definition on an amicus brief filed by the National Network to End Domestic Violence and other private organizations,8 and two publications issued by the Department of Justice's Office on Violence Against Women. The amicus brief provides a series of definitions — drawn from law-review articles, foreign-government bureaus, and similar sources — that include such a wide range of nonviolent and even nonphysical conduct that they cannot possibly be relevant to the meaning of a statute requiring "physical force," or to the legal meaning of "domestic violence" (as opposed to the meaning desired by private and governmental advocacy groups). For example, amici's definitions describe as "domestic violence" acts that "humiliate, isolate, frighten, . . . [and] blame . . . someone"; "acts of omission"; "excessive monitoring of a woman's behavior, repeated accusations of infidelity, and controlling with whom she has contact." Brief for National Network to End Domestic Violence et al. as Amici Curiae 5-8, and nn. 7, 11. The offerings of the Department of Justice's Office on Violence Against Women are equally capacious and (to put it mildly) unconventional. Its publications define "domestic violence" as "a pattern of abusive behavior . . . used by one partner to gain or maintain power and control over another," including "[u]ndermining an individual's sense of self-worth," "name-calling," and "damaging one's relationship with his or her children." See, e.g., Domestic Violence, online at http://www.ovw.usdoj.gov/domviolence.htm (all Internet materials as visited Mar. 21, 2014, and available in the Clerk of Court's case file).9 Of course these private organizations and the Department of Justice's (nonprosecuting) Office are entitled to define "domestic violence" any way they want for their own purposes — purposes that can include (quite literally) giving all domestic behavior harmful to women a bad name. (What is more abhorrent than violence against women?) But when they (and the Court) impose their all-embracing definition on the rest of us, they not only distort the law, they impoverish the language. When everything is domestic violence, nothing is. Congress will have to come up with a new word (I cannot imagine what it would be) to denote actual domestic violence. Although the Justice Department's definitions ought to be deemed unreliable in toto on the basis of their extravagant extensions alone (falsus in uno, falsus in omnibus), the Court chooses to focus only upon the physical actions that they include, viz., "[h]itting, slapping, shoving, grabbing, pinching, biting, [and] hair pulling." Ibid. None of those actions bears any real resemblance to mere offensive touching, and all of them are capable of causing physical pain or injury. Cf. Johnson, 559 U. S., at 143 (identifying "a slap in the face" as conduct that might rise to the level of violent force). And in any event, the Department of Justice thankfully receives no deference in our interpreta-tion of the criminal laws whose claimed violation the Department of Justice prosecutes. See Gonzales v. Oregon, 546 U. S. 243, 264 (2006) (citing Crandon v. United States, 494 U. S. 152, 177 (1990) (Scalia, J., concurring in judgment)). The same ought to be said of advocacy organizations, such as amici, that (unlike dictionary publishers) have a vested interest in expanding the definition of "domestic violence" in order to broaden the base of individuals eligible for support services.10* * * This is a straightforward statutory-interpretation case that the parties and the Court have needlessly complicated. Precedent, text, and common sense all dictate that the term "physical force," when used to define a "misdemeanor crime of domestic violence," requires force capable of causing physical pain or bodily injury.Alito, J., concurring in judgment 572 U. S. ____ (2014)No. 12-1371UNITED STATES, PETITIONER v. JAMES ALVIN CASTLEMANon writ of certiorari to the united states court of appeals for the sixth circuit[March 26, 2014] Justice Alito, with whom Justice Thomas joins, concurring in the judgment. The decision in this case turns on the meaning of the phrase "has, as an element, the use . . . of physical force." 18 U. S. C. §921(a)(33)(A)(ii). In Johnson v. United States, the Court interpreted the very same language and held that "physical force" means "violent force." Id., at 140. I disagreed and concluded that the phrase incorporated the well-established meaning of "force" under the common law of battery, which did not require violent force. See id., at 146 (dissenting opinion). The Court of Appeals in the present case understandably followed the reasoning of Johnson, but now this Court holds that Johnson actually dictates that the identical statutory language be interpreted in exactly the same way that the Johnson majority rejected. See ante, at 5. In my view, the meaning of the contested statutory language is the same now as it was four years ago in Johnson, and therefore, for the reasons set out in my Johnson dissent, I would not extend the reasoning of Johnson to the question presented here, on which the Johnson Court specifically reserved judgment. 559 U. S., at 143-144.FOOTNOTESFootnote 1 See Dept. of Justice (DOJ), Bureau of Justice Statistics (BJS), J. Truman, L. Langton, & M. Planty, Criminal Victimization 2012 (Oct. 2013) (Table 1) (1,259,390 incidents of domestic violence in 2012), online at http://www.bjs.gov/content/pub/pdf/cv12.pdf (all Internet materials as visited Mar. 19, 2014, and available in Clerk of Court's case file); DOJ, BJS, C. Rennison, Crime Data Brief, Intimate Partner Violence, 1993-2001, p. 1 (Feb. 2003) (violence among intimate partners caused deaths of 1,247 women and 440 men in 2000), online at http://www.bjs.gov/content/pub/pdf/ipv01.pdf.Footnote 2 We explained that the word "physical" did not add much to the word "force," except to distinguish "force exerted by and through concrete bodies . . . from, for example, intellectual force or emotional force." Johnson, 559 U. S., at 138.Footnote 3 Johnson specifically reserved the question whether our definition of "physical force" would extend to 18 U. S. C. §922(g)(9). 559 U. S., at 143-144. And these reasons for declining to extend Johnson's definition to §922(g)(9) serve equally to rebut the "presumption of consistent usage" on which Justice Scalia's concurrence heavily relies, post, at 1-2, 4.Footnote 4 This portion of Johnson's analysis relied heavily on Leocal v. Ashcroft, 543 U. S. 1 (2004), in which we interpreted the meaning of a "crime of violence" under C. §16. As in Johnson and here, the statute defines a "crime of violence" in part as one "that has as an element the use . . . of physical force," §16(a). In support of our holding in Johnson, we quoted Leocal's observation that " '[t]he ordinary meaning of [a "crime of violence"] . . . suggests a category of violent, active crimes.' " 559 U. S., at 140 (quoting 543 U. S., at 11). The Courts of Appeals have generally held that mere offensive touching cannot constitute the "physical force" necessary to a "crime of violence," just as we held in Johnson that it could not constitute the "physical force" necessary to a "violent felony." See Karimi v. Holder, 715 F. 3d 561, 566-568 (CA4 2013); Singh v. Ashcroft, 386 F. 3d 1228, 1233 (CA9 2004); Flores v. Ashcroft, 350 F. 3d 666, 672 (CA7 2003); United States v. Venegas-Ornelas, 348 F. 3d 1273, 1275 (CA10 2003); United States v. Landeros-Gonzales, 262 F. 3d 424, 426 (CA5 2001); see also United States v. Rede-Mendez, 680 F. 3d 552, 558 (CA6 2012) (commenting generally that "[i]n the crime of violence context, 'the phrase "physical force" means violent force' "); United States v. Haileselassie, 668 F. 3d 1033, 1035 (CA8 2012) (dicta). But see Hernandez v. U. S. Attorney General, 513 F. 3d 1336, 1340, n. 3 (CA11 2008) (per curiam). The Board of Immigration Appeals has similarly extended Johnson's requirement of violent force to the context of a "crime of violence" under §16. Matter of Velasquez, 25 I. & N. Dec. 278, 282 (2010). Nothing in today's opinion casts doubt on these holdings, because — as we explain--"domestic violence" encompasses a range of force broader than that which constitutes "violence" simpliciter. We note, as does Justice Scalia's concurrence, post, at 8, and n. 7, that federal law elsewhere defines "domestic violence" in more limited terms: For example, a provision of the Immigration and Nationality Act defines a " 'crime of domestic violence' " as "any crime of violence (as defined by [18 U. S. C. §16])" committed against a qualifying relation. 8 U. S. C. §1227(a)(2)(E)(i). Our view that "domestic violence" encompasses acts that might not constitute "violence" in a nondomestic context does not extend to a provision like this, which specifically defines "domestic violence" by reference to a generic "crime of violence."Footnote 5 See also A. Ganley, Understanding Domestic Violence, in Improving the Health Care Response to Domestic Violence: A Resource Manual for Health Care Providers 18 (2d ed. 1996), online at http://www.futureswithoutviolence.org / userfiles / file/ HealthCare / improving_healthcare_manual_1.pdf (physical forms of domestic violence "may include spitting, scratching, biting, grabbing, shaking, shoving, pushing, restraining, throwing, twisting, [or] slapping"); M. McCue, Domestic Violence: A Reference Handbook 6 (1995) (noting that physical forms of domestic violence "may begin with relatively minor assaults such as painful pinching or squeezing").Footnote 6 The concurrence's reliance on definitions of "domestic violence" in other statutory provisions, see post, at 8, and n. 7, is similarly unpersuasive. These other provisions show that when Congress wished to define "domestic violence" as a type of "violence" simpliciter, it knew how to do so. That it did not do so here suggests, if anything, that it did not mean to. See, e.g., Custis v. United States, 511 U. S. 485, 492 (1994). This also answers the concurrence's suggestion, post, at 10, that our holding will somehow make it difficult for Congress to define "domestic violence"--where it wants to — as requiring violent force.Footnote 7 See U. S. Census Bureau, Time Series of Intercensal State Population Estimates: April 1, 1990 to April 1, 2000, online at http://www.census.gov/popest/data/intercensal/st-co/files/CO-EST2001-12-00.pdf (estimating state and national populations as of July 1, 1996).Footnote 8 We held in Leocal that " 'use' requires active employment," rather "than negligent or merely accidental conduct." 543 U. S., at 9. Although Leocal reserved the question whether a reckless application of force could constitute a "use" of force, id., at 13, the Courts of Appeals have almost uniformly held that recklessness is not sufficient. See United States v. Palomino Garcia, 606 F. 3d 1317, 1335-1336 (CA11 2010); Jimenez-Gonzalez v. Mukasey, 548 F. 3d 557, 560 (CA7 2008); United States v. Zuniga-Soto, 527 F. 3d 1110, 1124 (CA10 2008); United States v. Torres-Villalobos, 487 F. 3d 607, 615-616 (CA8 2007); United States v. Portela, 469 F. 3d 496, 499 (CA6 2006); Fernandez-Ruiz v. Gonzales, 466 F. 3d 1121, 1127-1132 (CA9 2006) (en banc); Garcia v. Gonzales, 455 F. 3d 465, 468-469 (CA4 2006); Oyebanji v. Gonzales, 418 F. 3d 260, 263-265 (CA3 2005) (Alito, J.); Jobson v. Ashcroft, 326 F. 3d 367, 373 (CA2 2003); United States v. Chapa-Garza, 243 F. 3d 921, 926 (CA5 2001). But see United States v. Booker, 644 F. 3d 12, 19-20 (CA1 2011) (noting that the First Circuit had not resolved the recklessness issue under Leocal, but declining to extend Leocal's analysis to §922(g)(9)).FOOTNOTESFootnote 1 Respondent argues at length that Tenn. Code Ann. §39-13-111(b) (2013 Supp.) does not require the "use" of physical force, since it is possible to cause bodily injury through deceit or other nonviolent means. Brief for Respondent 30-42. The argument fails for the reasons given by the Court. See ante, at 13.Footnote 2 Section §921(a)(33)(A)(ii) was enacted in 1996. See §658, 110 Stat. 3009-371. The Armed Career Criminal Act provision interpreted in Johnson was enacted in 1986, see §1402, 100 Stat. 3207-39, and the "crime of violence" statute discussed in Leocal was enacted in 1984, see §1001, 98 Stat. 2136.Footnote 3 See Ala. Code §13A-6-22 (1995); Alaska Stat. §11.41.230 (1996); Ark. Code Ann. §5-13-203 (1993); Colo. Rev. Stat. Ann. §18-3-204 (Westlaw 1996); Conn. Gen. Stat. §53a-61 (1996); Haw. Rev. Stat. Ann. §707-712 (1994); Ky. Rev. Stat. Ann. §508.030 (Michie 1990); Minn. Stat. §609.224 (Westlaw 1995); Miss. Code Ann. §97-3-7 (Westlaw 1995); Neb. Rev. Stat. §28-310 (1995); N. J. Stat. Ann. §2C:12-1 (West 1995); N. Y. Penal Law Ann. §120.00 (Westlaw 1995); N. D. Cent. Code Ann. §12.1-17-01 (Westlaw 1995); Ohio Rev. Code Ann. §2903.13 (Lexis 1993); Ore. Rev. Stat. §163.160 (1991); 18 Pa. Cons. Stat. Ann. §2701 (Westlaw 1995); S. D. Codified Laws §22-18-1 (1988); Vt. Stat. Ann., Tit. 13, §1023 (1995); Wis. Stat. Ann. §940.19 (West Cum. Supp. 1995).Footnote 4 See Ariz. Rev. Stat. Ann. §13-1203 (Westlaw 1995); Del. Code Ann., Tit. 11, §§601, 611 (1995); Fla. Stat. §784.03 (Westlaw 1995); Ga. Code Ann. §16-5-23 (1996); Idaho Code §18-903 (Westlaw 1996); Ill. Comp. Stat., ch. 720, §5/12-3 (West 1994); Ind. Code §35-42-2-1 (Michie 1994); Iowa Code §708.1 (Westlaw 1996); Kan. Stat. Ann. §21-3142 (1995); Me. Rev. Stat. Ann., Tit. 17-A, §207 (Westlaw 1996); Mo. Rev. Stat. §565.070 (Westlaw 1996); Mont. Code Ann. §45-5-201 (1995); N. H. Rev. Stat. Ann. §631:2-a (West 1996); N. M. Stat. Ann. §§30-3-4, 30-3-5 (Westlaw 1996); Tenn. Code Ann. §39-13-101 (1991); Tex. Penal Code Ann. §22.01 (Westlaw 1996); Utah Code Ann. §76-5-102 (Lexis 1995); W. Va. Code Ann. §61-2-9 (Lexis 1992); Wyo. Stat. Ann. §6-2-501 (1996).Footnote 5 See Cal. Penal Code Ann. §242 (Westlaw 1996); La. Rev. Stat. Ann. §14:33 (Westlaw 1996); Mass. Gen. Laws, ch. 265, §13A (West 1994); Mich. Comp. Laws §750.81 (1991); Nev. Rev. Stat. Ann. §200.481 (West Cum. Supp. 1995); N. C. Gen. Stat. Ann. §14-33 (Lexis 1993); Okla. Stat., Tit. 21, §642 (West 1991); R. I. Gen. Laws §11-5-3 (Michie 1994); Va. Code Ann. §18.2-57 (Michie 1996); Wash. Rev. Code Ann. §9A.36.041 (Michie 1994).Footnote 6 Definitions of "physical force" from the same period are also at odds with the Court's nonviolent interpretation of that phrase. See Black's Law Dictionary 656 (7th ed. 1999) ("[f]orce consisting in a physical act, esp. a violent act directed against a robbery victim"); id., at 1147 (6th ed. 1990) ("[f]orce applied to the body; actual violence").Footnote 7 See, e.g., 18 U. S. C. §2261(a)(1) (defining as "[i]nterstate domestic violence" certain "crime[s] of violence"); §3561(b) ("The term 'domestic violence crime' means a crime of violence . . . in which the victim or intended victim is the [defendant's] spouse" or other qualifying relation); 25 U. S. C. A. §1304(a)(2) ("The term 'domestic violence' means violence committed by a current or former spouse or" other qualifying relation); 42 U. S. C. A. §13925(a)(8) (Sept. 2013 Supp.) ("The term 'domestic violence' includes felony or misdemeanor crimes of violence committed by a current or former spouse" or other qualifying relation).Footnote 8 The other organizations on the brief are the National Domestic Violence Hotline, the Domestic Violence Legal Empowerment and Appeals Project, Legal Momentum, and innumerable state organizations against domestic violence.Footnote 9 The Court refers in a footnote to two additional social-science definitions, neither of which aids the Court's cause. See ante, at 7, n. 5. The first is drawn from a health-care manual that provides "a behavioral definition of domestic violence . . . rather than a legal definition, since a behavioral definition is more comprehensive and more relevant to the health care setting." A. Ganley, Understanding Domestic Violence, in Improving the Health Care Response to Domestic Violence: A Resource Manual for Health Care Providers 18 (2d ed. 1996) (emphasis added), online at http://www.futureswithoutviolence.org/userfiles/file/HealthCare/ improving_healthcare_manual_1.pdf. Here, of course, we are concerned with the less comprehensive legal definition. The second definition referred to in the footnote equates domestic violence with "overt violence," which in its least serious form consists of "painful pinching or squeezing." M. McCue, Domestic Violence: A Reference Handbook 6 (1995) (emphasis added). That meaning is consistent with Johnson's definition of "physical force," but it plainly does not include harmless offensive touching.Footnote 10 See, e.g., National Network to End Domestic Violence, Reauthorize The Family Violence Prevention and Services Act 1 (Sept. 22, 2010) (advocating the expansion of a program assisting victims of domestic violence to include victims of "dating violence" and thereby "ensure that all victims in danger can access services"), online at http://nnedv.org/ downloads/Policy/FVPSA_fact_sheet_9-22-10.pdf.

At respondent's bench trial in a New Jersey court resulting in his conviction of rape, a police officer testified that a few hours after the rape she accompanied the victim to respondent's apartment where the rape had occurred; that he was not there but another tenant let them into respondent's apartment; and that the officer seized a sheet from respondent's bed. At such point in the testimony, respondent's counsel sought to suppress introduction of the sheet and any testimony about it on the ground that the officer had seized it without a search warrant in violation of the Fourth Amendment, but the judge ruled that counsel's suppression motion was late under the applicable New Jersey Court Rule. The judge rejected counsel's attempt to justify his omission on the grounds that he had not heard of the seizure until the day before, when the trial began; that it was the State's obligation to inform him of its case, even though he made no pretrial request for discovery, which would have revealed the search and seizure; and that he had not expected to go to trial because he had been told that the victim did not wish to proceed. Respondent retained new counsel after the trial and, on appeal, alleged ineffective assistance of counsel at the trial and error in the trial court's refusal to entertain the suppression motion during the trial. The appellate court rejected the claims and affirmed respondent's conviction. Thereafter respondent unsuccessfully sought postconviction relief from the trial judge on the same grounds. He then obtained habeas corpus relief in Federal District Court, which held, inter alia, that he had established his ineffective-assistance claim. The Court of Appeals concluded that Stone v. Powell, - which held that federal courts should withhold habeas review where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim - should not be extended to bar federal habeas consideration of Sixth Amendment claims based on counsel's alleged failure competently to litigate Fourth Amendment claims. Reviewing the District Court's determination of ineffective assistance under the test established by the intervening decision in Strickland v. Washington, - which held that, to establish ineffective assistance, the defendant must prove both incompetence of counsel and prejudice - the Court of Appeals determined that respondent's trial counsel had been "grossly ineffective," but vacated and remanded for the District Court to consider whether, under the standards set forth in Strickland, respondent had been prejudiced by his attorney's incompetence.Held: 1. The restriction on federal habeas review of Fourth Amendment claims announced in Stone v. Powell, supra, does not extend to Sixth Amendment ineffective-assistance-of-counsel claims which are founded primarily on incompetent representation with respect to a Fourth Amendment issue. Federal courts may grant habeas relief in appropriate cases, regardless of the nature of the underlying attorney error. Pp. 373-383. (a) Respondent's Sixth Amendment claim is not in fact a Fourth Amendment claim directly controlled by Stone, as petitioners assert. The two claims are distinct, both in nature and in the requisite elements of proof. Pp. 374-375. (b) Nor are the rationale and purposes of Stone fully applicable to a Sixth Amendment claim that is based principally on defense counsel's failure to litigate a Fourth Amendment claim competently. Stone held that the remedy for Fourth Amendment violations provided by the exclusionary rule is not a personal constitutional right, but instead is predominately a judicially created structural remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect; the rule has minimal utility in the context of federal collateral proceedings. Here, respondent sought direct federal habeas protection of his fundamental personal right to effective assistance of counsel, and collateral review is frequently the only means through which an accused can effectuate that right. Moreover, there is no merit to the contention that a defendant should not be allowed to vindicate through federal habeas review his right to effective assistance of counsel where counsel's primary error is failure to make a timely request for the exclusion of illegally seized evidence that is often the most probative information bearing on the defendant's guilt or innocence. The right to counsel is not conditioned upon actual innocence. Pp. 375-380. (c) Petitioners' prediction that every Fourth Amendment claim that fails in state court will be fully litigated in federal habeas proceedings in Sixth Amendment guise, and that, as a result, many state-court judgments will be disturbed, is incorrect because it ignores the rigorous standard which Strickland v. Washington, supra, erects for ineffective-assistance claims. Although a meritorious Fourth Amendment issue is necessary to the success of a Sixth Amendment claim like respondent's, a good Fourth Amendment claim alone will not earn a prisoner federal habeas relief. Only those habeas petitioners who can prove under Strickland that they have been denied a fair trial by the gross incompetence of their attorneys are entitled to the writ and to retrial without the challenged evidence. Pp. 380-382. 2. Respondent satisfied the incompetence prong of the test for ineffective assistance of counsel set forth in Strickland, and the Court of Appeals did not err in remanding the case to the District Court for a determination of prejudice under Strickland's standard. Pp. 383-391. (a) While the failure to file a suppression motion does not constitute per se ineffective assistance of counsel, the record clearly reveals that respondent's attorney failed to file a timely suppression motion, not due to trial strategy considerations, but because he was unaware of the search, and of the State's intention to introduce the bedsheet into evidence, due to his failure to conduct any pretrial discovery. Such failure here was not, as required under Strickland, reasonable and in accord with prevailing professional norms. Pp. 383-387. (b) With respect to the prejudice prong of the Strickland test, there is no merit to petitioners' contention that a statement made by the trial judge at a post-trial hearing on respondent's motion for bail pending appeal constituted a finding that even if the bedsheet had been excluded, he would have found respondent guilty, and that such finding was a subsidiary finding of historical fact that respondent was not prejudiced by his attorney's incompetence, entitled under 28 U.S.C. 2254(d) to a presumption of correctness in federal habeas proceedings. The record here is not sufficiently complete to enable this Court to apply Strickland's prejudice prong directly to the facts of the case, and the remand to the District Court for redetermination of prejudice was proper. Pp. 387-391. 752 F.2d 918, affirmed.BRENNAN, J., delivered the opinion of the Court, in which WHITE, MARSHALL, BLACKMUN, STEVENS, and O'CONNOR, JJ., joined. POWELL, J., filed an opinion concurring in the judgment, in which BURGER, C. J., and REHNQUIST, J., joined, post, p. 391.Allan J. Nodes argued the cause for petitioners. With him on the brief were Irwin I. Kimmelman, Attorney General of New Jersey, and Catherine A. Foddai, Mildred Vallerini Spiller, and Arlene R. Weiss, Deputy Attorneys General.William E. Staehle, by appointment of the Court , argued the cause and filed a brief for respondent.* [Footnote *] Leon Friedman, Charles S. Sims, and Burt Neuborne filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance. JUSTICE BRENNAN delivered the opinion of the Court.The question we address in this case is whether the restrictions on federal habeas review of Fourth Amendment claims announced in Stone v. Powell, , should be extended to Sixth Amendment claims of ineffective assistance of counsel where the principal allegation and manifestation of inadequate representation is counsel's failure to file a timely motion to suppress evidence allegedly obtained in violation of the Fourth Amendment.IRespondent, Neil Morrison, was convicted by the State of New Jersey of raping a 15-year-old-girl. The case presented by the State at respondent's bench trial consisted of scientific evidence and of the testimony of the victim, her mother, and the police officers who handled the victim's complaint.The victim testified that Morrison, who was her employer, had taken her to his apartment, where he forced her onto his bed and raped her. Upon returning home, the girl related the incident to her mother, who, after first summoning Morrison and asking for his account of events, phoned the police. The police came to the victim's home and transported her to the hospital, where she was examined and tested for indicia of a sexual assault.The State also called as a witness Detective Dolores Most, one of the officers who investigated the rape complaint. Most testified that she accompanied the victim to Morrison's apartment building a few hours after the rape. Morrison was not at home, but another tenant in the building let them into respondent's one-room apartment. While there, Most stated, she seized a sheet from respondent's bed.At this point in the testimony respondent's counsel objected to the introduction of the sheet and to any testimony concerning it on the ground that Most had seized it without a search warrant. New Jersey Court Rules, however, require that suppression motions be made within 30 days of indictment unless the time is enlarged by the trial court for good cause. N. J. Ct. Rule 3:5-7. Because the 30-day deadline had long since expired, the trial judge ruled that counsel's motion was late. Defense counsel explained to the court that he had not heard of the seizure until the day before, when trial began, and that his client could not have known of it because the police had not left a receipt for the sheet. The prosecutor responded that defense counsel, who had been on the case from the beginning, had never asked for any discovery. Had trial counsel done so, the prosecutor observed, police reports would have revealed the search and seizure. The prosecutor stated further that one month before trial he had sent defense counsel a copy of the laboratory report concerning the tests conducted on stains and hairs found on the sheets.Asked repeatedly by the trial court why he had not conducted any discovery, respondent's attorney asserted that it was the State's obligation to inform him of its case against his client, even though he made no request for discovery. The judge rejected this assertion and stated: "I hate to say it, but I have to say it, that you were remiss. I think this evidence was there and available to you for examination and inquiry." 2 Tr. 114. Defense counsel then attempted to justify his omission on the ground that he had not expected to go to trial because he had been told that the victim did not wish to proceed. The judge rejected this justification also, reminding counsel that once an indictment is handed down, the decision to go through with the complaint no longer belongs to the victim, and that it requires a court order to dismiss an indictment. Id., at 115. While the judge agreed that defense counsel had "br[ought] about a very valid basis ... for suppression ... if the motion had been brought and timely made," he refused "to entertain a motion to suppress in the middle of the trial." Id., at 110. The State then called a number of expert witnesses who had conducted laboratory tests on the stains and hairs found on the sheet, on a stain found on the victim's underpants, and on blood and hair samples provided by the victim and respondent. This testimony established that the bedsheet had been stained with semen from a man with type O blood, that the stains on the victim's underwear similarly exhibited semen from a man with type O blood, that the defendant had type O blood, that vaginal tests performed on the girl at the hospital demonstrated the presence of sperm, and that hairs recovered from the sheet were morphologically similar to head hair of both Morrison and the victim. Defense counsel aggressively cross-examined all of the expert witnesses.The defense called four friends and acquaintances of the defendant and the defendant himself in an attempt to establish a different version of the facts. The defense theory was that the girl and her mother fabricated the rape in order to punish respondent for being delinquent with the girl's wages. According to Morrison, the girl and her mother had not intended to go through with the prosecution, but ultimately they found it impossible to extricate themselves from their lies. Morrison admitted that he had taken the girl to his apartment, but denied having had intercourse with her. He claimed that his sexual activity with other women accounted for the stains on his sheet, and that a hair from the girl's head was on his sheet because she had seated herself on his bed. Defense counsel also implied that the girl's underwear and vaginal secretions tested positive for semen and sperm because she probably had recently engaged in relations with the father of her baby. Counsel did not, however, call the girl's boyfriend to testify or have him tested for blood type, an omission upon which the prosecution commented in closing argument.The trial judge, in rendering his verdict, noted: "As in most cases nothing is cut and dry. There are discrepancies in the State's case, there are discrepancies in the defense as it's presented." 6 Tr. 86. After pointing out some of the more troublesome inconsistencies in the testimony of several of the witnesses, the judge declared his conclusion that the State had proved its case beyond a reasonable doubt.After trial, respondent dismissed his attorney and retained new counsel for his appeal. On appeal, respondent alleged ineffective assistance of counsel and error in the trial court's refusal to entertain the suppression motion during trial. The appeals court announced summarily that it found no merit in either claim and affirmed respondent's conviction. The Supreme Court of New Jersey subsequently denied respondent's petition for discretionary review. Respondent then sought postconviction relief in the New Jersey Superior Court, from the same judge who had tried his case. There Morrison presented the identical issues he had raised on direct appeal. The court denied relief on the ground that it was bound by the appellate court's resolution of those issues against respondent.Respondent then sought a writ of habeas corpus in Federal District Court, again raising claims of ineffective assistance of counsel and erroneous admission of illegally seized evidence. The District Court ruled that because respondent did not allege that the State had denied him an opportunity to litigate his Fourth Amendment claim fully and fairly, direct consideration of this claim on federal habeas review was barred by Stone v. Powell, . 579 F. Supp. 796 (NJ 1984). The District Court did find respondent's ineffective-assistance claim meritorious.Because the District Court rendered its decision before this Court announced the standards to be applied to claims of constitutionally deficient representation in Strickland v. Washington, , the District Court relied on Third Circuit precedent for guidance, particularly United States v. Baynes, 687 F.2d 659 (1982), and Moore v. United States, 432 F.2d 730 (1970). Like Strickland, these cases required a two-pronged inquiry into counsel's competence and into the prejudicial effect of counsel's unprofessional errors. With respect to trial counsel's competence, the District Court used as its standard the "`customary skill and knowledge which normally prevails at the time and place.'" 579 F. Supp., at 802 (quoting Moore, supra, at 736). Noting that this standard "`entails a careful inquiry into the particular circumstances surrounding each case,'" 579 F. Supp., at 802 (quoting Baynes, supra, at 665), the court concluded:"[C]ounsel failed to conduct any meaningful pretrial discovery, and thus was totally unaware that certain damaging evidence might have been the appropriate subject for a suppression motion. Counsel seems to have acted on the misapprehension that the State was obligated to turn over anything that the defense might be interested in examining. Little else was offered by way of excuse by [Morrison's] lawyer in the face of repeated criticism by the state trial judge, except for counsel's rather remarkable attempt to justify his conduct by noting that up until trial he had been told that the victim `didn't want to go ahead with this case.' ... Based on the unmitigated negligence of petitioner's trial counsel in failing to conduct any discovery, combined with the likelihood of success of a suppression motion had it been timely made, we find that petitioner was deprived of effective representation." 579 F. Supp., at 802-803. The District Court then determined that, measured by the harmless-beyond-a-reasonable-doubt standard prescribed by Baynes, supra, respondent had been prejudiced by counsel's ineffectiveness and issued a conditional writ of habeas corpus ordering Morrison's release unless New Jersey should retry him.Although the District Court did not address the relevance of Stone, supra, to respondent's Sixth Amendment ineffective-assistance-of-counsel claim, the Court of Appeals did. Relying on both the language of Stone and the different natures of Fourth and Sixth Amendment claims, the Court of Appeals concluded that Stone should not be extended to bar federal habeas consideration of Sixth Amendment claims based on counsel's alleged failure competently to litigate Fourth Amendment claims. 752 F.2d 918 (1985). Because Strickland had recently been decided by this Court, the Court of Appeals reviewed the District Court's determination of ineffective assistance under Strickland's test. The Court of Appeals determined that respondent's trial counsel had been "grossly ineffective," 752 F.2d, at 922, but vacated and remanded for the District Court to consider whether, under the standards set forth in Strickland, supra, respondent had been prejudiced by his attorney's incompetence.Petitioners, the Attorney General of New Jersey and the Superintendent of Rahway State Prison, petitioned for certiorari. We granted their petition, , and now affirm.IIPetitioners urge that the Sixth Amendment veil be lifted from respondent's habeas petition to reveal what petitioners argue it really is - an attempt to litigate his defaulted Fourth Amendment claim. They argue that because respondent's claim is in fact, if not in form, a Fourth Amendment one, Stone directly controls here. Alternatively, petitioners maintain that even if Morrison's Sixth Amendment claim may legitimately be considered distinct from his defaulted Fourth Amendment claim, the rationale and purposes of Stone, are fully applicable to ineffective-assistance claims where the principal allegation of inadequate representation is counsel's failure to file a timely motion to suppress evidence allegedly obtained in violation of the Fourth Amendment. Stone, they argue, will be emasculated unless we extend its bar against federal habeas review to this sort of Sixth Amendment claim. Finally, petitioners maintain that consideration of defaulted Fourth Amendment claims in Sixth Amendment federal collateral proceedings would violate principles of comity and federalism and would seriously interfere with the State's interest in the finality of its criminal convictions.1 AWe do not share petitioners' perception of the identity between respondent's Fourth and Sixth Amendment claims. While defense counsel's failure to make a timely suppression motion is the primary manifestation of incompetence and source of prejudice advanced by respondent, the two claims are nonetheless distinct, both in nature and in the requisite elements of proof.Although it is frequently invoked in criminal trials, the Fourth Amendment is not a trial right; the protection it affords against governmental intrusion into one's home and affairs pertains to all citizens. The gravamen of a Fourth Amendment claim is that the complainant's legitimate expectation of privacy has been violated by an illegal search or seizure. See, e. g., Katz v. United States, . In order to prevail, the complainant need prove only that the search or seizure was illegal and that it violated his reasonable expectation of privacy in the item or place at issue. See, e. g., Rawlings v. Kentucky, .The right to counsel is a fundamental right of criminal defendants; it assures the fairness, and thus the legitimacy, of our adversary process. E. g., Gideon v. Wainwright, . The essence of an ineffective-assistance claim is that counsel's unprofessional errors so upset the adversarial balance between defense and prosecution that the trial was rendered unfair and the verdict rendered suspect. See, e. g., Strickland v. Washington, 466 U.S., at 686; United States v. Cronic, , 655-657 (1984). In order to prevail, the defendant must show both that counsel's representation fell below an objective standard of reasonableness, Strickland, 466 U.S., at 688, and that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Id., at 694. Where defense counsel's failure to litigate a Fourth Amendment claim competently is the principal allegation of ineffectiveness, the defendant must also prove that his Fourth Amendment claim is meritorious and that there is a reasonable probability that the verdict would have been different absent the excludable evidence in order to demonstrate actual prejudice. Thus, while respondent's defaulted Fourth Amendment claim is one element of proof of his Sixth Amendment claim, the two claims have separate identities and reflect different constitutional values.BWe also disagree with petitioners' contention that the reasoning and purposes of Stone are fully applicable to a Sixth Amendment claim which is based principally on defense counsel's failure to litigate a Fourth Amendment claim competently.At issue in Stone was the proper scope of federal collateral protection of criminal defendants' right to have evidence, seized in violation of the Fourth Amendment, excluded at trial in state court. In determining that federal courts should withhold habeas review where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Court found it crucial that the remedy for Fourth Amendment violations provided by the exclusionary rule "is not a personal constitutional right." 428 U.S., at 486; see also id., at 495, n. 37. The Court expressed the understanding that the rule "is not calculated to redress the injury to the privacy of the victim of the search or seizure," id., at 486; instead, the Court explained, the exclusionary rule is predominately a "`judicially created'" structural remedy "`designed to safeguard Fourth Amendment rights generally through its deterrent effect.'" Ibid. (quoting United States v. Calandra, ).The Court further noted that "[a]s in the case of any remedial device, `the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served,'" 428 U.S., at 486-487 (quoting Calandra, supra, at 348), and that the rule has not been extended to situations such as grand jury proceedings, 428 U.S., at 486-487, (citing Calandra, supra), and impeachment of a defendant who testifies broadly in his own behalf, 428 U.S., at 488 (citing Walder v. United States, ), where the rule's costs would outweigh its utility as a deterrent to police misconduct. Applying this "pragmatic analysis," 428 U.S., at 488, to the question whether prisoners who have been afforded a full and fair opportunity in state court to invoke the exclusionary rule may raise their Fourth Amendment claims on federal habeas review, the Court determined that they may not. While accepting that the exclusionary rule's deterrent effect outweighs its costs when enforced at trial and on direct appeal, the Court found any "additional contribution ... of the consideration of search-and-seizure claims ... on collateral review," id., at 493, to be too small in relation to the costs to justify federal habeas review. Id., at 492-495.In Stone the Court also made clear that its "decision ... [was] not concerned with the scope of the habeas corpus statute as authority for litigating constitutional claims generally." Id., at 495, n. 37 (emphasis in original). Rather, the Court simply "reaffirm[ed] that the exclusionary rule is a judicially created remedy rather than a personal constitutional right ... and ... emphasiz[ed] the minimal utility of the rule" in the context of federal collateral proceedings. Ibid. See also Rose v. Mitchell, ("In Stone v. Powell ... the Court carefully limited the reach of its opinion ... to cases involving the judicially created exclusionary rule, which had minimal utility when applied in a habeas corpus proceeding"); Jackson v. Virginia, (declining to extend Stone to claims by state prisoners that, in violation of the constitutional standard set forth in In re Winship, , the evidence in support of their convictions was not sufficient to permit a rational trier of fact to find guilt beyond a reasonable doubt).In contrast to the habeas petitioner in Stone, who sought merely to avail himself of the exclusionary rule, Morrison seeks direct federal habeas protection of his personal right to effective assistance of counsel.The right of an accused to counsel is beyond question a fundamental right. See, e. g., Gideon, 372 U.S., at 344 ("The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours"). Without counsel the right to a fair trial itself would be of little consequence, see, e. g., Cronic, supra, at 653; United States v. Ash, ; Argersinger v. Hamlin, ; Gideon, supra, at 343-345; Johnson v. Zerbst, ; Powell v. Alabama, , for it is through counsel that the accused secures his other rights. Maine v. Moulton, ; Cronic, supra, at 653; see also, Schaefer, Federalism and State Criminal Procedure, 70 Harv. L. Rev. 1, 8 (1956) ("Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have"). The constitutional guarantee of counsel, however, "cannot be satisfied by mere formal appointment," Avery v. Alabama, . "An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair." Strickland, supra, at 685. In other words, the right to counsel is the right to effective assistance of counsel. Evitts v. Lucey, ; Strickland, supra, at 686; Cronic, 466 U.S., at 654; Cuyler v. Sullivan, ; McMann v. Richardson, , n. 14 (1970).2 Because collateral review will frequently be the only means through which an accused can effectuate the right to counsel, restricting the litigation of some Sixth Amendment claims to trial and direct review would seriously interfere with an accused's right to effective representation. A layman will ordinarily be unable to recognize counsel's errors and to evaluate counsel's professional performance, cf. Powell v. Alabama, supra, at 69; consequently a criminal defendant will rarely know that he has not been represented competently until after trial or appeal, usually when he consults another lawyer about his case. Indeed, an accused will often not realize that he has a meritorious ineffectiveness claim until he begins collateral review proceedings, particularly if he retained trial counsel on direct appeal. Were we to extend Stone and hold that criminal defendants may not raise ineffective-assistance claims that are based primarily on incompetent handling of Fourth Amendment issues on federal habeas, we would deny most defendants whose trial attorneys performed incompetently in this regard the opportunity to vindicate their right to effective trial counsel. We would deny all defendants whose appellate counsel performed inadequately with respect to Fourth Amendment issues the opportunity to protect their right to effective appellate counsel. See Evitts, supra. Thus, we cannot say, as the Court was able to say in Stone, that restriction of federal habeas review would not severely interfere with the protection of the constitutional right asserted by the habeas petitioner.3 Furthermore, while the Court may be free, under its analysis in Stone, to refuse for reasons of prudence and comity4 to burden the State with the costs of the exclusionary rule in contexts where the Court believes the price of the rule to exceed its utility, the Constitution constrains our ability to allocate as we see fit the costs of ineffective assistance. The Sixth Amendment mandates that the State bear the risk of constitutionally deficient assistance of counsel. See Murray v. Carrier, post, at 488 (where a "procedural default is the result of ineffective assistance of counsel, the Sixth Amendment itself requires that responsibility for the default be imputed to the State"); Cuyler, supra, at 344 ("The right to counsel prevents the States from conducting trials at which persons who face incarceration must defend themselves without adequate legal assistance"); see also Evitts, supra, at 396 ("The constitutional mandate is addressed to the action of the State").We also reject the suggestion that criminal defendants should not be allowed to vindicate through federal habeas review their right to effective assistance of counsel where counsel's primary error is failure to make a timely request for the exclusion of illegally seized evidence - evidence which is "typically reliable and often the most probative information bearing on the guilt or innocence of the defendant." Stone, 428 U.S., at 490. While we have recognized that the "`premise of our adversary system of criminal justice ... that partisan advocacy ... will best promote the ultimate objective that the guilty be convicted and the innocent go free,'" Evitts, 469 U.S., at 394, quoting Herring v. New York, , underlies and gives meaning to the right to effective assistance, Cronic, supra, at 655-656, we have never intimated that the right to counsel is conditioned upon actual innocence. The constitutional rights of criminal defendants are granted to the innocent and the guilty alike. Consequently, we decline to hold either that the guarantee of effective assistance of counsel belongs solely to the innocent or that it attaches only to matters affecting the determination of actual guilt.5 Furthermore, petitioners do not suggest that an ineffective-assistance claim asserted on direct review would fail for want of actual prejudice whenever counsel's primary error is failure to make a meritorious objection to the admission of reliable evidence the exclusion of which might have affected the outcome of the proceeding. We decline to hold that the scope of the right to effective assistance of counsel is altered in this manner simply because the right is asserted on federal habeas review rather than on direct review.CStone's restriction on federal habeas review, petitioners warn, will be stripped of all practical effect unless we extend it to Sixth Amendment claims based principally on defense counsel's incompetent handling of Fourth Amendment issues. Petitioners predict that every Fourth Amendment claim that fails or is defaulted in state court will be fully litigated in federal habeas proceedings in Sixth Amendment guise and that, as a result, many state-court judgments will be disturbed. They seem to believe that a prisoner need only allege ineffective assistance, and if he has an underlying, meritorious Fourth Amendment claim, the writ will issue and the State will be obligated to retry him without the challenged evidence. Because it ignores the rigorous standard which Strickland erected for ineffective-assistance claims, petitioners' forecast is simply incorrect.In order to establish ineffective representation, the defendant must prove both incompetence and prejudice.6 466 U.S., at 688. There is a strong presumption that counsel's performance falls within the "wide range of professional assistance," id., at 689; the defendant bears the burden of proving that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. Id., at 688-689. The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances, and the standard of review is highly deferential. Id., at 689. The defendant shows that he was prejudiced by his attorney's ineffectiveness by demonstrating that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., at 694. See also, id., at 695 (Where a defendant challenges his conviction, he must show that there exists "a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt"). And, in determining the existence vel non of prejudice, the court "must consider the totality of the evidence before the judge or jury." Ibid. As is obvious, Strickland's standard, although by no means insurmountable, is highly demanding. More importantly, it differs significantly from the elements of proof applicable to a straightforward Fourth Amendment claim. Although a meritorious Fourth Amendment issue is necessary to the success of a Sixth Amendment claim like respondent's, a good Fourth Amendment claim alone will not earn a prisoner federal habeas relief. Only those habeas petitioners who can prove under Strickland that they have been denied a fair trial by the gross incompetence of their attorneys will be granted the writ and will be entitled to retrial without the challenged evidence.7 DIn summary, we reject petitioners' argument that Stone's restriction on federal habeas review of Fourth Amendment claims should be extended to Sixth Amendment ineffective-assistance-of-counsel claims which are founded primarily on incompetent representation with respect to a Fourth Amendment issue. Where a State obtains a criminal conviction in a trial in which the accused is deprived of the effective assistance of counsel, the "State ... unconstitutionally deprives the defendant of his liberty." Cuyler, 446 U.S., at 343. The defendant is thus "in custody in violation of the Constitution," 28 U.S.C. 2254(a), and federal courts have habeas jurisdiction over his claim. We hold that federal courts may grant habeas relief in appropriate cases, regardless of the nature of the underlying attorney error.IIIPetitioners also argue that respondent has not satisfied either the performance or the prejudice prong of the test for ineffective assistance of counsel set forth in Strickland. We address each component of that test in turn.AWith respect to the performance component of the Strickland test, petitioners contend that Morrison has not overcome the strong presumption of attorney competence established by Strickland. While acknowledging that this Court has said that a single, serious error may support a claim of ineffective assistance of counsel, Brief for Petitioners 33, n. 16 (citing Cronic, 466 U.S., at 657, n. 20),8 petitioners argue that the mere failure to file a timely suppression motion alone does not constitute a per se Sixth Amendment violation. They maintain that the record "amply reflects that trial counsel crafted a sound trial strategy" and that, "[v]iewed in its entirety, counsel's pretrial investigation, preparation and trial performance were professionally reasonable." Brief for Petitioners 33 (footnotes and citations omitted). While we agree with petitioners' view that the failure to file a suppression motion does not constitute per se ineffective assistance of counsel, we disagree with petitioners' assessment of counsel's performance.In Strickland we explained that "access to counsel's skill and knowledge is necessary to accord defendants the `ample opportunity to meet the case of the prosecution' to which they are entitled." 466 U.S., at 685 (quoting Adams v. United States ex rel. McCann, , 276 (1942)). "Counsel ... has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process." 466 U.S., at 688. Counsel's competence, however, is presumed, id., at 689, and the defendant must rebut this presumption by proving that his attorney's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy. Id., at 688-689. The reasonableness of counsel's performance is to be evaluated from counsel's perspective at the time of the alleged error and in light of all the circumstances. Id., at 689. In making the competency determination, the court "should keep in mind that counsel's function, as elaborated in prevailing professional norms, is to make the adversarial testing process work in the particular case." Id., at 690. Because that testing process generally will not function properly unless defense counsel has done some investigation into the prosecution's case and into various defense strategies, we noted that "counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id., at 691. But, we observed, "a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Ibid. The trial record in this case clearly reveals that Morrison's attorney failed to file a timely suppression motion, not due to strategic considerations, but because, until the first day of trial, he was unaware of the search and of the State's intention to introduce the bedsheet into evidence. Counsel was unapprised of the search and seizure because he had conducted no pretrial discovery. Counsel's failure to request discovery, again, was not based on "strategy," but on counsel's mistaken beliefs that the State was obliged to take the initiative and turn over all of its inculpatory evidence to the defense and that the victim's preferences would determine whether the State proceeded to trial after an indictment had been returned.Viewing counsel's failure to conduct any discovery from his perspective at the time he decided to forgo that stage of pretrial preparation and applying a "heavy measure of deference," ibid., to his judgment, we find counsel's decision unreasonable, that is, contrary to prevailing professional norms. The justifications Morrison's attorney offered for his omission betray a startling ignorance of the law - or a weak attempt to shift blame for inadequate preparation. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Ibid. Respondent's lawyer neither investigated, nor made a reasonable decision not to investigate, the State's case through discovery. Such a complete lack of pretrial preparation puts at risk both the defendant's right to an "`ample opportunity to meet the case of the prosecution,'" id., at 685 (quoting Adams, supra, at 275), and the reliability of the adversarial testing process. See 466 U.S., at 688.Petitioners attempt to minimize the seriousness of counsel's errors by asserting that the State's case turned far more on the credibility of witnesses than on the bedsheet and related testimony. Consequently, they urge, defense counsel's vigorous cross-examination, attempts to discredit witnesses, and effort to establish a different version of the facts lift counsel's performance back into the realm of professional acceptability.Strickland requires a reviewing court to "determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance." Id., at 690. It will generally be appropriate for a reviewing court to assess counsel's overall performance throughout the case in order to determine whether the "identified acts or omissions" overcome the presumption that counsel rendered reasonable professional assistance. Since "[t]here are countless ways to provide effective assistance in any given case," id., at 689, unless consideration is given to counsel's overall performance, before and at trial, it will be "all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable." Ibid.In this case, however, we deal with a total failure to conduct pretrial discovery, and one as to which counsel offered only implausible explanations. Counsel's performance at trial, while generally creditable enough, suggests no better explanation for this apparent and pervasive failure to "make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id., at 691. Under these circumstances, although the failure of the District Court and the Court of Appeals to examine counsel's overall performance was inadvisable, we think this omission did not affect the soundness of the conclusion both courts reached - that counsel's performance fell below the level of reasonable professional assistance in the respects alleged.Moreover, petitioners' analysis is flawed, however, by their use of hindsight to evaluate the relative importance of various components of the State's case. See, id., at 689 ("A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time"). At the time Morrison's lawyer decided not to request any discovery, he did not - and, because he did not ask, could not - know what the State's case would be. While the relative importance of witness credibility vis-a-vis the bedsheet and related expert testimony is pertinent to the determination whether respondent was prejudiced by his attorney's incompetence, it sheds no light on the reasonableness of counsel's decision not to request any discovery. We therefore agree with the District Court and the Court of Appeals that the assistance rendered respondent by his trial counsel was constitutionally deficient.B1Petitioners also argue that respondent suffered no prejudice from his attorney's failure to make a timely suppression motion and that the Third Circuit erred in remanding the case to the District Court for a determination of prejudice under Strickland's standard. The essence of petitioners' argument is that, at a post-trial hearing on respondent's motion for bail pending appeal, the same judge who presided at respondent's trial made a finding of historical fact, which is entitled to a presumption of correctness under 28 U.S.C. 2254(d). If that finding were presumed correct, petitioners contend that it would be dispositive of the prejudice issue - that is, no court could find that there exists "a reasonable probability that, absent [Morrison's attorney's] errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland, 466 U.S., at 695. Thus, petitioners conclude, no ground for a remand exists.In New Jersey, bail after conviction is appropriate where a substantial issue for review exists and where the defendant poses no threat to the community. N. J. Ct. Rule 2:9-4. At Morrison's bail hearing, the public defender representing him informed the judge that because he had not read the trial transcript and was not doing the appeal, he was not entirely sure on what grounds Morrison would appeal. Tr. of Motion for Bail Pending Appeal 7. He did, however, argue that the trial court had committed two legal errors that could present substantial issues for appellate review. Specifically, counsel contended that the court erred in refusing to entertain the midtrial motion to suppress the sheet and that respondent may have been prejudiced by the court's awareness of another pending indictment.With respect to the court's decision to admit the sheet, Morrison's attorney presented what is most accurately characterized as an abuse-of-discretion argument. He suggested that because trial counsel had been surprised by the introduction of the sheet, the court should have waived the pretrial filing requirement for suppression motions and should have permitted the midtrial motion. Id., at 5. The judge responded to this argument by noting:"The matter of the sheet and the tests that resulted therefrom obviously were important, they were not the most important phases of this case by any means. "Obviously, the most important phases of the case were direct testimony from the victim herself as well as from testimony of witnesses, police, medical examinations, and testimony from the defense, testimony by the defendant. The sheet was just one small phase in this whole case. I do not think that it is such a substantial issue for review by the Appellate Division which would cause or be likely to cause a reversal." Id., at 11. Petitioners direct our attention to the court's statement that "[t]he sheet was just one small phase in this whole case." Ibid. While acknowledging this Court's explanation in Strickland that both the performance and the prejudice components of the ineffectiveness test are mixed questions of fact and law and that therefore a state court's ultimate conclusions regarding competence and prejudice are not findings of fact binding on the federal court to the extent stated by 2254(d), see Strickland, 466 U.S., at 698, petitioners maintain that this statement constitutes a subsidiary finding of historical fact, entitled to 2254(d)'s presumption of correctness. See ibid. Further, petitioners construe the judge's remark to be a finding that even if the sheet had been excluded, he would have found respondent guilty. So construed and accorded the presumption of correctness, this finding of fact, they argue, prevents a federal court from determining that Morrison was prejudiced by his attorney's incompetence.We do not agree with petitioners that the statement made by the judge at respondent's bail hearing constitutes a finding of fact which is subject to 2254(d) deference in this case. Section 2254(d)(1) provides that "a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction ... shall be presumed to be correct" unless "the merits of the factual dispute were not resolved in the State court hearing."9 The issue respondent places before the federal habeas courts is substantially different from the issue he presented to the judge in the bail hearing. The question before the federal courts is whether a reasonable probability exists that the trial judge would have had a reasonable doubt concerning respondent's guilt if the sheet and related testimony had been excluded. By contrast, the state court was called upon simply to decide whether the argument that the court had abused its discretion in refusing to entertain respondent's suppression motion midtrial raised a substantial issue for appeal on which Morrison was likely to succeed.Not only was the judge not asked to answer the question presently before the federal courts, he did not answer it. He stated only that while the sheet was an important aspect of the case, it was not the most important aspect. We do not find his remark tantamount to a declaration that he would have found respondent guilty even if the sheet and related expert testimony had not been admitted. If, after saying what he did, the judge had been asked whether he would have had a reasonable doubt concerning Morrison's guilt had the sheet and related testimony been excluded, he could well have answered affirmatively without contradicting his earlier comment. Although the sheet may not have been as important as other components of the State's case, it may have tipped the balance. We simply do not know.Because it cannot fairly be said that the "merits of the factual dispute," 2254(d)(1), regarding the existence of prejudice were resolved in the bail hearing, we conclude that the statements of the judge regarding the relative importance of the sheet are not findings of fact subject to 2254(d) deference.10 2Respondent also criticizes the Court of Appeals' decision to remand for redetermination of prejudice. He argues that the record is sufficiently complete to enable this Court to apply Strickland's prejudice prong directly to the facts of his case and urges that we do so.We decline respondent's invitation. While the existing record proved adequate for our application of Strickland's competency standard, it is incomplete with respect to prejudice. No evidentiary hearing has ever been held on the merits of respondent's Fourth Amendment claim. Because the State has not conceded the illegality of the search and seizure, Tr. of Oral Arg. 11-12, it is entitled to an opportunity to establish that Officer Most's search came within one of the exceptions we have recognized to the Fourth Amendment's prohibition against warrantless searches. Even if not, respondent may be unable to show that absent the evidence concerning the bedsheet there is a reasonable probability that the trial judge would have had a reasonable doubt as to his guilt. If respondent could not make this showing, a matter on which we express no view, there would of course be no need to hold an evidentiary hearing on his Fourth Amendment claim.The judgment of the Court of Appeals is Affirmed.

Petitioner, sentenced to death, under Art. 118 of the Uniform Code of Military Justice, by a court-martial for murder, attacked the validity of a Presidential commutation to life imprisonment (under which petitioner had served 20 years) conditioned on petitioner's never being paroled. The District Court granted respondents' motion for summary judgment. The Court of Appeals affirmed, additionally rejecting petitioner's contention that this Court's intervening decision in Furman v. Georgia, , required that petitioner be resentenced to a life term with the possibility of parole, the alternative punishment for murder under Art. 118. Held: The conditional commutation of petitioner's death sentence was within the President's powers under Art. II, 2, cl. 1, of the Constitution to "grant Reprieves and Pardons for Offenses against the United States." Pp. 260-268. (a) The executive pardoning power under the Constitution, which has consistently adhered to the English common-law practice, historically included the power to commute sentences on conditions not specifically authorized by statute. United States v. Wilson, 7 Pet. 150; Ex parte Wells, 18 How. 307. Pp. 260-266. (b) Since the pardoning power derives from the Constitution alone, it cannot be modified, abridged, or diminished by any statute, including Art. 118, and Furman v. Georgia, supra, did not affect the conditional commutation of petitioner's sentence. Pp. 266-268. App. D.C. 263, 483 F.2d 1266, affirmed.BURGER, C. J., delivered the opinion of the Court, in which STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS and BRENNAN, JJ., joined, post, p. 268.Homer E. Moyer, Jr., argued the cause for petitioner pro hac vice. With him on the briefs was Robert N. Sayler. Louis F. Claiborne argued the cause for respondents. With him on the brief were Solicitor General Bork, Assistant Attorney General Petersen, and Harry R. Sachse.MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.In 1960, the President, acting under the authority of Art. II. 2, cl. 1, of the Constitution, commuted petitioner Maurice L. Schick's sentence from death to life imprisonment, subject to the condition that he would not thereafter be eligible for parole. The petitioner challenges the validity of the condition, and we granted certiorari to determine the enforceability of that commutation as so conditioned.The pertinent facts are undisputed. In 1954 petitioner, then a master sergeant in the United States Army stationed in Japan, was tried before a court-martial for the brutal murder of an eight-year-old girl. He admitted the killing, but contended that he was insane at the time that he committed it. Medical opinion differed on this point. Defense experts testified that petitioner could neither distinguish between right and wrong nor adhere to the right when he killed the girl; a board of psychiatrists testifying on behalf of the prosecution concluded that petitioner was suffering from a nonpsychotic behavior disorder and was mentally aware of and able to control his actions. The court-martial rejected petitioner's defense and he was sentenced to death on March 27, 1954, pursuant to Art. 118 of the Uniform Code of Military Justice, 10 U.S.C. 918. The conviction and sentence were affirmed by an Army Board of Review and, following a remand for consideration of additional psychiatric reports, by the Court of Military Appeals. 7 U.S.C. M. A. 419, 22 C. M. R. 209 (1956).The case was then forwarded to President Eisenhower for final review as required by Art. 71 (a) of the UCMJ, 10 U.S.C. 871 (a). The President acted on March 25, 1960:"[P]ursuant to the authority vested in me as President of the United States by Article II, Section 2, Clause 1, of the Constitution, the sentence to be put to death is hereby commuted to dishonorable discharge, forfeiture of all pay and allowances becoming due on and after the date of this action, and confinement at hard labor for the term of his [petitioner's] natural life. This commutation of sentence is expressly made on the condition that the said Maurice L. Schick shall never have any rights, privileges, claims, or benefits arising under the parole and suspension or remission of sentence laws of the United States and the regulations promulgated thereunder governing Federal prisoners confined in any civilian or military penal institution (18 U.S.C. 4201 et seq., 10 USC 3662 et seq., 10 USC 871, 874), or any acts amendatory or supplementary thereof." App. 35. The action of the President substituted a life sentence for the death sentence imposed in 1954, subject to the conditions described in the commutation. Petitioner was accordingly discharged from the Army and transferred to the Federal Penitentiary at Lewisburg, Pa. He has now served 20 years of his sentence. Had he originally received a sentence of life imprisonment he would have been eligible for parole consideration in March 1969; the condition in the President's order of commutation barred parole at any time.In 1971, while appeals challenging the validity of the death penalty were pending in this Court, petitioner filed suit in the United States District Court for the District of Columbia to require the members of the United States Board of Parole to consider him for parole. The District Court granted the Board of Parole's motion for summary judgment and the Court of Appeals affirmed, unanimously upholding the President's power to commute a sentence upon condition that the prisoner not be paroled. In addition, it rejected by a 2-1 vote petitioner's argument that Furman v. Georgia, , decided on June 29, 1972, requires that he be resentenced to a simple life term, the alternative punishment for murder under Art. 118. App. D.C. 263, 483 F.2d 1266. We affirm the judgment of the Court of Appeals.IWhen the death sentence was imposed in 1954 it was, as petitioner concedes, valid under the Constitution of the United States and subject only to final action by the President. Absent the commutation of March 25, 1960, the sentence could, and in all probability would, have been carried out prior to 1972. Only the President's action in commuting the sentence under his Art. II powers, on the conditions stipulated, prevented execution of the sentence imposed by the court-martial.The essence of petitioner's case is that, in light of this Court's holding in Furman v. Georgia, supra, which he could not anticipate, he made a "bad bargain" by accepting a no-parole condition in place of a death sentence. He does not cast his claim in those terms, of course. Rather, he argues that the conditions attached to the commutation put him in a worse position than he would have been in had he contested his death sentence - and remained alive - until the Furman case was decided 18 years after that sentence was originally imposed.It is correct that pending death sentences not carried out prior to Furman were thereby set aside without conditions such as were attached to petitioner's commutation. However, petitioner's death sentence was not pending in 1972 because it had long since been commuted. The question here is whether Furman must now be read as nullifying the condition attached to that commutation when it was granted in 1960. Alternatively, petitioner argues that even in 1960 President Eisenhower exceeded his powers under Art. II by imposing a condition not expressly authorized by the Uniform Code of Military Justice.In sum, petitioner's claim gives rise to three questions: First, was the conditional commutation of his death sentence lawful in 1960; second, if so, did Furman retroactively void such conditions; and third, does that case apply to death sentences imposed by military courts where the asserted vagaries of juries are not present as in other criminal cases? Our disposition of the case will make it unnecessary to reach the third question.IIThe express power of Art. II, 2, cl. 1, from which the Presidential power to commute criminal sentences derives, is to "grant Reprieves and Pardons ... except in Cases of Impeachment." Although the authors of this clause surely did not act thoughtlessly, neither did they devote extended debate to its meaning. This can be explained in large part by the fact that the draftsmen were well acquainted with the English Crown authority to alter and reduce punishments as it existed in 1787. The history of that power, which was centuries old, reveals a gradual contraction to avoid its abuse and misuse.1 Changes were made as potential or actual abuses were perceived; for example, Parliament restricted the power to grant a pardon to one who transported a prisoner overseas to evade the Habeas Corpus Act, because to allow such pardons would drain the Great Writ of its vitality. There were other limits, but they were few in number and similarly specifically defined.2 At the time of the drafting and adoption of our Constitution it was considered elementary that the prerogative of the English Crown could be exercised upon conditions: "It seems agreed, That the king may extend his mercy on what terms he pleases, and consequently may annex to his pardon any condition that he thinks fit, whether precedent or subsequent, on the performance whereof the validity of the pardon will depend." 2 W. Hawkins, Pleas of the Crown 557 (6th ed. 1787). Various types of conditions, both penal and nonpenal in nature, were employed.3 For example, it was common for a pardon or commutation to be granted on condition that the felon be transported to another place, and indeed our own Colonies were the recipients of numerous subjects of "banishment." This practice was never questioned despite the fact that British subjects generally could not be forced to leave the realm without an Act of Parliament and banishment was rarely authorized as a punishment for crime. The idea later developed that the subject's consent to transportation was necessary, but in most cases he was simply "agreeing" that his life should be spared. Thus, the requirement of consent was a legal fiction at best; in reality, by granting pardons or commutations conditional upon banishment, the Crown was exercising a power that was the equivalent and completely independent of legislative authorization.4 11 W. Holdsworth, History of English Law 569-575 (1938). In short, by 1787 the English prerogative to pardon was unfettered except for a few specifically enumerated limitations.The history of our executive pardoning power reveals a consistent pattern of adherence to the English commonlaw practice. The records of the Constitutional Convention, as noted earlier, reveal little discussion or debate on 2, cl. 1, of Art. II. The first report of the Committee on Detail proposed that the pertinent clause read: "He [the President] shall have power to grant reprieves and pardons; but his pardon shall not be pleadable in bar of an impeachment."5 This limitation as to impeachments tracked a similar restriction upon the English royal prerogative which existed in 1787. 4 W. Blackstone, Commentaries *399-400. An effort was made in the Convention to amend what finally emerged as 2, cl. 1, and is reflected in James Madison's Journal for August 25, 1787, where the following note appears: "Mr. Sherman moved to amend the `power to grant reprieves and pardons' so as to read `to grant reprieves until the next session of the Senate, and pardons with consent of the Senate.'" 2 M. Farrand, Records of the Federal Convention of 1787, p. 419 (1911). The proposed amendment was rejected by a vote of 8-1. Ibid. This action confirms that, as in England in 1787, the pardoning power was intended to be generally free from legislative control.Later Edmund Randolph proposed to add the words "`except cases of treason.'" Madison's description of Randolph's argument reflects familiarity with the English form and practice: "The prerogative of pardon in these [treason] cases was too great a trust." Id., at 626 (emphasis added). Randolph's proposal was rejected by a vote of 8-2, and the clause was adopted in its present form. Thereafter, Hamilton's Federalist No. 69 summarized the proposed 2 powers, including the power to pardon, as "resembl[ing] equally that of the King of Great-Britain and the Governor of New-York." The Federalist No. 69, p. 464 (J. Cooke ed. 1961).6 We see, therefore, that the draftsmen of Art. II, 2, spoke in terms of a "prerogative" of the President, which ought not be "fettered or embarrassed." In light of the English common law from which such language was drawn, the conclusion is inescapable that the pardoning power was intended to include the power to commute sentences on conditions which do not in themselves offend the Constitution, but which are not specifically provided for by statute.The few cases decided in this area are consistent with the view of the power described above. In United States v. Wilson, 7 Pet. 150 (1833), this Court was confronted with the question of whether a pardon must be pleaded in order to be effective. Mr. Chief Justice Marshall held for the Court that it must, because that was the English common-law practice: "As this power had been exercised from time immemorial by the executive of that nation whose language is our language, and to whose judicial institutions ours bear a close resemblance; we adopt their principles respecting the operation and effect of a pardon, and look into their books for the rules prescribing the manner in which it is to be used by the person who would avail himself of it." Id., at 160. Similarly, in Ex parte Wells, 18 How. 307 (1856), the petitioner had been convicted of murder and sentenced to be hanged. President Fillmore granted a pardon "`upon condition that he be imprisoned during his natural life; that is, the sentence of death is hereby commuted to imprisonment for life in the penitentiary of Washington.'" Id., at 308. Later, Wells sought release by habeas corpus, contending that the condition annexed to the pardon and accepted by him was illegal. His argument was remarkably similar to that made by petitioner here:"[A] President granting such a pardon assumes a power not conferred by the constitution - that he legislates a new punishment into existence, and sentences the convict to suffer it; in this way violating the legislative and judicial powers of the government, it being the province of the first, to enact laws for the punishment of offences ..., and that of the judiciary, to sentence ... according to them." Id., at 309. However, the Court was not persuaded. After an extensive review of the English common law and that of the States, which need not be repeated here, it concluded:"The real language of [Art. II, 2, cl. 1] is general, that is, common to the class of pardons, or extending the power to pardon to all kinds of pardons known in the law as such, whatever may be their denomination. We have shown that a conditional pardon is one of them... . "In this view of the constitution, by giving to its words their proper meaning, the power to pardon conditionally is not one of inference at all, but one conferred in terms. ... . . "... [T]he power to offer a condition, without ability to enforce its acceptance, when accepted by the convict, is the substitution, by himself, of a lesser punishment than the law has imposed upon him, and he cannot complain if the law executes the choice he has made. "`... And a man condemned to be hung cannot be permitted to escape the punishment altogether, by pleading that he had accepted his life by duress per minas.'" Id., at 314-315. In other words, this Court has long read the Constitution as authorizing the President to deal with individual cases by granting conditional pardons. The very essence of the pardoning power is to treat each case individually. The teachings of Wilson and Wells have been followed consistently by this Court. See, e. g., Ex parte Grossman, (upholding a Presidential pardon of a contempt of court against an argument that it violated the principle of separation of powers); Ex parte Garland, 4 Wall. 333 (1867). Additionally, we note that Presidents throughout our history as a Nation have exercised the power to pardon or commute sentences upon conditions that are not specifically authorized by statute. Such conditions have generally gone unchallenged and, as in the Wells case, attacks have been firmly rejected by the courts. See 41 Op. Atty. Gen. 251 (1955). These facts are not insignificant for our interpretation of Art. II, 2, cl. 1, because, as observed by Mr. Justice Holmes: "If a thing has been practised for two hundred years by common consent, it will need a strong case" to overturn it. Jackman v. Rosenbaum Co., .IIIA fair reading of the history of the English pardoning power, from which our Art. II, 2, cl. 1, derives, of the language of that clause itself, and of the unbroken practice since 1790 compels the conclusion that the power flows from the Constitution alone, not from any legislative enactments, and that it cannot be modified, abridged, or diminished by the Congress. Additionally, considerations of public policy and humanitarian impulses support an interpretation of that power so as to permit the attachment of any condition which does not otherwise offend the Constitution. The plain purpose of the board power conferred by 2, cl. 1, was to allow plenary authority in the President to "forgive" the convicted person in part or entirely, to reduce a penalty in terms of a specified number of years, or to alter it with conditions which are in themselves constitutionally unobjectionable. If we were to accept petitioner's contentions, a commutation of his death sentence to 25 or 30 years would be subject to the same challenge as is now made, i. e., that parole must be available to petitioner because it is to others. That such an interpretation of 2, cl. 1, would in all probability tend to inhibit the exercise of the pardoning power and reduce the frequency of commutations is hardly open to doubt. We therefore hold that the pardoning power is an enumerated power of the Constitution and that its limitations, if any, must be found in the Constitution itself. It would be a curious logic to allow a convicted person who petitions for mercy to retain the full benefit of a lesser punishment with conditions, yet escape burdens readily assumed in accepting the commutation which he sought.Petitioner's claim must therefore fail. The no-parole condition attached to the commutation of his death sentence is similar to sanctions imposed by legislatures such as mandatory minimum sentences or statutes otherwise precluding parole;7 it does not offend the Constitution. Similarly, the President's action derived solely from his Art. II powers; it did not depend upon Art. 118 of the UCMJ or any other statute fixing a death penalty for murder. It is not correct to say that the condition upon petitioner's commutation was "made possible only through the court-martial's imposition of the death sentence." Post, at 269-270. Of course, the President may not aggravate punishment; the sentence imposed by statute is therefore relevant to a limited extent. But, as shown, the President has constitutional power to attach conditions to his commutation of any sentence. Thus, even if Furman v. Georgia applies to the military, a matter which we need not and do not decide, it could not affect a conditional commutation which was granted 12 years earlier.We are not moved by petitioner's argument that it is somehow "unfair" that he be treated differently from persons whose death sentences were pending at the time that Furman was decided. Individual acts of clemency inherently call for discriminating choices because no two cases are the same. Indeed, as noted earlier, petitioner's life was undoubtedly spared by President Eisenhower's commutation order of March 25, 1960. Nor is petitioner without further remedies since he may, of course, apply to the present President or future Presidents for a complete pardon, commutation to time served, or relief from the no-parole condition. We hold only that the conditional commutation of his death sentence was lawful when made and that intervening events have not altered its validity. Affirmed.

[Footnote *] Together with No. 79-148, Sanders et al. v. United States, also on certiorari to the same court. When an interstate shipment of several securely sealed packages containing 8-millimeter films depicting homosexual activities was mistakenly delivered by a private carrier to a third party rather than to the consignee, employees of the third party opened each of the packages, finding individual film boxes, on one side of which were suggestive drawings, and on the other were explicit descriptions of the contents. One employee opened one or two of the boxes and attempted without success to view portions of the film by holding it up to the light. After the Federal Bureau of Investigation was notified and picked up the packages, agents viewed the films with a projector without first making any effort to obtain a warrant or to communicate with the consignor or the consignee of the shipment. Thereafter, petitioners were indicted on federal obscenity charges relating to the interstate transportation of certain of the films in the shipment, a motion to suppress and return the films was denied, and petitioners were convicted. The Court of Appeals affirmed, and rehearing was denied.Held: The judgments are reversed. Pp. 653-660; 660-662. Certiorari dismissed in part; 592 F.2d 788 and 597 F.2d 63, reversed. MR. JUSTICE STEVENS, joined by MR. JUSTICE STEWART, concluded that even though the nature of the contents of the films was indicated by descriptive material on their individual containers, the Government's unauthorized screening of the films constituted an unreasonable invasion of their owner's constitutionally protected interest in privacy. It was a search; there was no warrant; the owner had not consented; and there were no exigent circumstances. Cf. Stanley v. Georgia, (STEWART, J., concurring in result). Pp. 653-660. (a) The fact that FBI agents were lawfully in possession of the boxes of film did not give them authority to search their contents. An officer's authority to possess a package is distinct from his authority to examine its contents, and when the contents of the package are books or other materials arguably protected by the First Amendment, and the basis for the seizure is disapproval of the message contained therein, it is especially important that the Fourth Amendment's warrant requirement be scrupulously observed. Pp. 654-655. (b) Nor does the fact that the packages and one or more of the boxes had been opened by a private party before they were acquired by the FBI excuse the failure to obtain a search warrant. Even though some circumstances - for example, if the results of the private search are in plain view when materials are turned over to the Government - may justify the Government's re-examination of the materials, the Government may not exceed the scope of the private search unless it has the right to make an independent search. Here, the private party had not actually viewed the films, and prior to the Government screening one could only draw inferences about what was on the films. Thus, the projection of the films was a significant expansion of the previous search by a private party and therefore must be characterized as a separate search, which was not supported by any exigency or by a warrant even though one could have easily been obtained. Pp. 656-657. (c) The fact that the cartons of film boxes, which cartons were securely wrapped and had no markings indicating the character of their contents, were unexpectedly opened by a third party before the shipment was delivered to its intended consignee, thus uncovering the descriptive labels on the film boxes, does not alter the consignor's legitimate expectation of privacy in the films. The private search merely frustrated that expectation in part and did not strip the remaining unfrustrated portion of that expectation of all Fourth Amendment protection. Pp. 658-659. MR. JUSTICE WHITE, joined by MR. JUSTICE BRENNAN, concurring in part and in the judgment, agreed that the Government's warrantless projection of the films constituted a search that infringed petitioners' Fourth Amendment interests even though the Government had acquired the films from a private party, but disagreed with the suggestion that it is an open question whether the Government's projection of the films would have infringed any Fourth Amendment interest if private parties had projected the films before turning them over to the Government. The notion that private searches insulate from Fourth Amendment scrutiny subsequent governmental searches of the same or lesser scope is inconsistent with traditional Fourth Amendment principles, and even if the private parties in this action had projected the films before turning them over to the Government, the Government still would have been required to obtain a warrant for its subsequent screening of them. Pp. 660-662. MR. JUSTICE MARSHALL concurred in the judgment. STEVENS, J., announced the judgment of the Court and delivered an opinion, in which STEWART, J., joined. WHITE, J., filed an opinion concurring in part and in the judgment, in which BRENNAN, J., joined, post, p. 660. MARSHALL, J., concurred in the judgment. BLACKMUN, J., filed a dissenting opinion, in which BURGER, C. J., and POWELL and REHNQUIST, JJ., joined, post, p. 662.W. Michael Mayock argued the cause and filed a brief for petitioner in No. 79-67. Glenn Zell argued the cause and filed a brief for petitioners in No. 79-148.Elliott Schulder argued the cause for the United States in both cases. With him on the brief were Solicitor General McCree, Assistant Attorney General Heymann, Jerome M. Feit, and Patty Merkamp Stemler.MR. JUSTICE STEVENS announced the judgment of the Court and delivered an opinion, in which MR. JUSTICE STEWART joined.Having lawfully acquired possession of a dozen cartons of motion pictures, law enforcement officers viewed several reels of 8-millimeter film on a Government projector. Labels on the individual film boxes indicated that they contained obscene pictures. The question is whether the Fourth Amendment required the agents to obtain a warrant before they screened the films.Only a few of the bizarre facts need be recounted. On September 25, 1975, 12 large, securely sealed packages containing 871 boxes of 8-millimeter film depicting homosexual activities were shipped by private carrier from St. Petersburg, Fla., to Atlanta, Ga. The shipment was addressed to "Leggs, Inc.,"1 but was mistakenly delivered to a substation in the suburbs of Atlanta, where "L'Eggs Products, Inc.," regularly received deliveries. Employees of the latter company opened each of the packages, finding the individual boxes of film. They examined the boxes, on one side of which were suggestive drawings, and on the other were explicit descriptions of the contents. One employee opened one or two of the boxes, and attempted without success to view portions of the film by holding it up to the light.2 Shortly thereafter, they called a Federal Bureau of Investigation agent who picked up the packages on October 1, 1975.Thereafter, without making any effort to obtain a warrant or to communicate with the consignor or the consignee of the shipment, FBI agents viewed the films with a projector. The record does not indicate exactly when they viewed the films, but at least one of them was not screened until more than two months after the FBI had taken possession of the shipment.3 On April 6, 1977, petitioners were indicted on obscenity charges relating to the interstate transportation of 5 of the 871 films in the shipment. A motion to suppress and return the films was denied, and petitioners were convicted on multiple counts of violating 18 U.S.C. 371, 1462, and 1465. Over Judge Wisdom's dissent, the Court of Appeals for the Fifth Circuit affirmed, 592 F.2d 788, and rehearing was denied, 597 F.2d 63 (1979). We granted certiorari, ,4 and now reverse. In his concurrence in Stanley v. Georgia, , MR. JUSTICE STEWART expressed the opinion that the warrantless projection of motion picture films was an unconstitutional invasion of the privacy of the owner of the films. After noting that the agents in that case were lawfully present in the defendant's home pursuant to a warrant to search for wagering paraphernalia, MR. JUSTICE STEWART wrote: "This is not a case where agents in the course of a lawful search came upon contraband, criminal activity, or criminal evidence in plain view. For the record makes clear that the contents of the films could not be determined by mere inspection... . After finding them, the agents spent some 50 minutes exhibiting them by means of the appellant's projector in another upstairs room. Only then did the agents return downstairs and arrest the appellant. "Even in the much-criticized case of United States v. Rabinowitz, , the Court emphasized that `exploratory searches ... cannot be undertaken by officers with or without a warrant.' Id., at 62. This record presents a bald violation of that basic constitutional rule. To condone what happened here is to invite a government official to use a seemingly precise and legal warrant only as a ticket to get into a man's home, and, once inside, to launch forth upon unconfined searches and indiscriminate seizures as if armed with all the unbridled and illegal power of a general warrant. "Because the films were seized in violation of the Fourth and Fourteenth Amendments, they were inadmissible in evidence at the appellant's trial." Id., at 571-572 (footnote omitted). Even though the cases before us involve no invasion of the privacy of the home, and notwithstanding that the nature of the contents of these films was indicated by descriptive material on their individual containers, we are nevertheless persuaded that the unauthorized exhibition of the films constituted an unreasonable invasion of their owner's constitutionally protected interest in privacy. It was a search; there was no warrant; the owner had not consented; and there were no exigent circumstances.It is perfectly obvious that the agents' reason for viewing the films was to determine whether their owner was guilty of a federal offense. To be sure, the labels on the film boxes gave them probable cause to believe that the films were obscene and that their shipment in interstate commerce had offended the federal criminal code. But the labels were not sufficient to support a conviction and were not mentioned in the indictment. Further investigation - that is to say, a search of the contents of the films - was necessary in order to obtain the evidence which was to be used at trial.The fact that FBI agents were lawfully in possession of the boxes of film did not give them authority to search their contents. Ever since 1878 when Mr. Justice Field's opinion for the Court in Ex parte Jackson, , established that sealed packages in the mail cannot be opened without a warrant, it has been settled that an officer's authority to possess a package is distinct from his authority to examine its contents.5 See Arkansas v. Sanders, ; United States v. Chadwick, . When the contents of the package are books or other materials arguably protected by the First Amendment, and when the basis for the seizure is disapproval of the message contained therein, it is especially important that this requirement be scrupulously observed.6 Nor does the fact that the packages and one or more of the boxes had been opened by a private party before they were acquired by the FBI excuse the failure to obtain a search warrant. It has, of course, been settled since Burdeau v. McDowell, , that a wrongful search or seizure conducted by a private party does not violate the Fourth Amendment and that such private wrongdoing does not deprive the government of the right to use evidence that it has acquired lawfully. See Coolidge v. New Hampshire, . In these cases there was nothing wrongful about the Government's acquisition of the packages or its examination of their contents to the extent that they had already been examined by third parties. Since that examination had uncovered the labels, and since the labels established probable cause to believe the films were obscene, the Government argues that the limited private search justified an unlimited official search. That argument must fail, whether we view the official search as an expansion of the private search or as an independent search supported by its own probable cause.When an official search is properly authorized - whether by consent or by the issuance of a valid warrant - the scope of the search is limited by the terms of its authorization.7 Consent to search a garage would not implicitly authorize a search of an adjoining house; a warrant to search for a stolen refrigerator would not authorize the opening of desk drawers. Because "indiscriminate searches and seizures conducted under the authority of `general warrants' were the immediate evils that motivated the framing and adoption of the Fourth Amendment," Payton v. New York, , that Amendment requires that the scope of every authorized search be particularly described.8 If a properly authorized official search is limited by the particular terms of its authorization, at least the same kind of strict limitation must be applied to any official use of a private party's invasion of another person's privacy. Even though some circumstances - for example, if the results of the private search are in plain view when materials are turned over to the Government - may justify the Government's re-examination of the materials, surely the Government may not exceed the scope of the private search unless it has the right to make an independent search. In these cases, the private party had not actually viewed the films. Prior to the Government screening, one could only draw inferences about what was on the films.9 The projection of the films was a significant expansion of the search that had been conducted previously by a private party and therefore must be characterized as a separate search. That separate search was not supported by any exigency, or by a warrant even though one could have easily been obtained.10 The Government claims, however, that because the packages had been opened by a private party, thereby exposing the descriptive labels on the boxes, petitioners no longer had any reasonable expectation of privacy in the films, and that the warrantless screening therefore did not invade any privacy interest protected by the Fourth Amendment. But petitioners expected no one except the intended recipient either to open the 12 packages or to project the films. The 12 cartons were securely wrapped and sealed, with no labels or markings to indicate the character of their contents.11 There is no reason why the consignor of such a shipment would have any lesser expectation of privacy than the consignor of an ordinary locked suitcase.12 The fact that the cartons were unexpectedly opened by a third party before the shipment was delivered to its intended consignee does not alter the consignor's legitimate expectation of privacy. The private search merely frustrated that expectation in part.13 It did not simply strip the remaining unfrustrated portion of that expectation of all Fourth Amendment protection.14 Since the additional search conducted by the FBI - the screening of the films - was not supported by any justification, it violated that Amendment.We therefore conclude that the rationale of MR. JUSTICE STEWART'S concurrence in Stanley v. Georgia, , is applicable to these cases and that it requires that the judgments of the Court of Appeals be reversed. It is so ordered.MR. JUSTICE MARSHALL concurs in the judgment.

Petitioner's claim that his guilty plea was not voluntarily and intelligently made because of an alleged conflict of interest on the part of his counsel has no merit, and that alleged conflict of interest is therefore not a reason for vacating his plea. Pp. 251-257. 161 Conn. 337, 288 A. 2d 58, affirmed.BRENNAN, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEWART, J., filed a concurring opinion, post, p. 257. MARSHALL, J., filed a dissenting opinion, in which DOUGLAS, J., joined, post, p. 259.James A. Wade argued the cause and filed briefs for petitioner.John D. LaBelle argued the cause and filed a brief for respondent.MR. JUSTICE BRENNAN delivered the opinion of the Court.On May 16, 1967, petitioner, on advice of counsel, pleaded guilty in the Superior Court of Hartford County, Connecticut, to charges of narcotics violation and larceny of goods. On June 16, 1967, before being sentenced, he informed the court that he had retained new counsel and desired to withdraw his plea and stand trial. The court refused to permit him to withdraw his plea and sentenced him to a term of five to 10 years on the narcotics charge and to a term of two years on the larceny charge. The Connecticut Supreme Court affirmed this conviction on his direct appeal challenging the voluntariness of his plea, State v. Dukes, 157 Conn. 498, 255 A. 2d 614 (1969), and the United States District Court for the District of Connecticut denied his application for federal habeas corpus relief sought in Civil Action No. 13029. He then brought this state habeas corpus action in the Superior Court for Hartford County, and attacked the voluntariness of his plea under the Federal Constitution on a ground not raised either on his direct appeal or in his action for federal habeas corpus relief. He alleged that a conflict of interest arising from his lawyer's representation of two girls with whom petitioner had been charged in an unrelated false pretenses case was known to the judge who sentenced him and rendered his plea involuntary and unintelligent. After a full hearing, the Superior Court denied relief. The Supreme Court of Connecticut affirmed, 161 Conn. 337, 288 A. 2d 58 (1971). The Supreme Court stated that, although the petition for state habeas relief alleged that the guilty plea was not voluntary and intelligent on several grounds, "[o]n appeal, however, [petitioner] has asserted in essence only that he was denied the effective assistance of counsel, which rendered his plea involuntary ... ." 161 Conn., at 339, 288 A. 2d, at 60. We granted certiorari. .The two girls were represented by Mr. Zaccagnino of the firm of Zaccagnino, Linardos, & Delaney in the false pretenses case, and petitioner by another lawyer, when petitioner retained the firm to defend him in the narcotics and larceny case. There were also charges pending against petitioner in New Haven and Fairfield counties. He also faced the possibility of prosecution as a second offender, having been convicted in state court in 1961 of breaking and entry and assault.Petitioner, accompanied by Mr. Zaccagnino, appeared on May 9, 1967, to plead to the narcotics and larceny charges. The lawyer advised him to plead guilty if a plea bargain could be negotiated whereby the State's Attorney would consolidate all outstanding charges in and out of Hartford County and agree not to prosecute petitioner as a second offender, but to recommend a sentence of five to 10 years on the narcotics charge, two years on the larceny charge, and concurrent sentences on all the other charges. Under Conn. Gen. Stat. Rev. 54-17a (1958) the New Haven County and Fairfield County charges would be transferred to Hartford County for disposition only if the State's Attorney of the counties consented and petitioner pleaded guilty to the charges. When petitioner refused to accept this advice, Mr. Zaccagnino asked the court to be relieved as petitioner's counsel. The court denied the request but accepted petitioner's plea of not guilty and continued the trial to the next day so that petitioner might try to retain another lawyer. As petitioner went to the corridor outside the courtroom, however, Hartford police officers arrested him on still another charge. Petitioner attempted suicide at the police station to which he was taken and was hospitalized for several days. Accordingly the trial date was postponed to May 16.Petitioner did not engage new counsel but appeared for trial on May 16 represented by Mr. Delaney, partner of Mr. Zaccagnino who was engaged in another court. Petitioner now showed interest in a plea bargain, and Mr. Delaney and the State's Attorney engaged in negotiations, which were interrupted from time to time while Mr. Delaney consulted with petitioner. A plea bargain on the terms Mr. Zaccagnino had urged petitioner on May 9 to accept was finally struck, and petitioner withdrew his not-guilty plea and entered the guilty plea he now attacks. The State's Attorney had misgivings because of petitioner's expressed dissatisfaction with Mr. Zaccagnino the week before, and the following occurred: "[State's Attorney]: ... The record also ought to appear that Mr. Delaney is here with him today and he is in the office of Mr. Zaccagnino. I think the Court might inquire with respect to the representation since there had been some indication that counsel had asked to withdraw the other day. "The Court: Well now, Mr. Dukes, I want to be sure that everything is in order here... . Now I want, now Mr. Delaney is here, are you fully satisfied with the services he is rendering you, Mr. Dukes? "The Accused: Yes, sir. "The Court: You are. And now you know of course, Mr. Dukes, that - you know of course that the State of Connecticut has the burden of proving you guilty on the charge and you are free to go to trial but you still wish to change your plea, is that correct? "The Accused: Yes, sir. "The Court: And do you do this of your own free will, Mr. Dukes? "The Accused: Yes, sir. "The Court: And you know the probable consequences of it? "The Accused: Yes, sir. "The Court: Very well, and no one has induced you to do this, influenced you one way or the other? You are doing this of your own free will? "The Accused: Yes. "The Court: Very well then. We will accept the change of plea." The court set June 2, 1967, for sentencing petitioner. But the documents transferring the New Haven County and Fairfield County charges had not arrived, and the presentence report had not been completed, on that day, and the date was therefore continued to June 16, 1967. By coincidence, however, the judge's calendar for June 2 also listed the case of the two girls who, on Mr. Zaccagnino's advice, had pleaded guilty to the false pretenses charges and were to be sentenced. That proceeding did not involve petitioner because the disposition of the charges as to him was part of the plea bargain. In urging leniency for the two girls, Mr. Zaccagnino made statements putting the blame on petitioner for the girls' plight. These statements are the primary basis of petitioner's claim of divided loyalty on the part of Mr. Zaccagnino that he alleges rendered his guilty plea of May 16 involuntary and unintelligent. Mr. Zaccagnino said:"[B]oth of them came under the influence of Charles Dukes. Now how they could get in a position to come under the influence of somebody like him, if Your Honor pleases, creates the problem here that I think is the cause of the whole situation. "Both these girls left their homes, came under the influence of Dukes and got involved. I think, Your Honor, though, that the one thing ... that should stand in their good stead, as a result of their willingness to cooperate with the State Police they capitulated Dukes into making a plea. I think, Your Honor, since I was on both sides of the case, having been on the other side on the other case I can tell Your Honor that it was these girls that because of their refusal ... to cooperate with Dukes and to testify against him that capitulated him into taking a plea on which he will shortly be removed from society ... ." Mr. Zaccagnino appeared on June 16 to represent petitioner in the proceedings to complete the plea bargain. He was surprised to be told by petitioner that petitioner had obtained new counsel and intended to withdraw his guilty plea and stand trial. It appears from petitioner's cross-examination at the state habeas hearing that he had learned on June 2 of Mr. Zaccagnino's statements about him when the girls were sentenced.1 Yet he did not tell Mr. Zaccagnino that this was why he was changing lawyers, nor did he tell the court that this was why he wanted to withdraw his plea. When pressed by the court to give a reason, he answered, "At the time I pleaded, I just came out of the hospital, I think it was a day, and I was unconscious for three days, and I didn't realize at the time actually what I was pleading to."2 His explanation for wanting another lawyer was that he thought an out-of-town lawyer would give him better service: "I would rather have an attorney out of town for certain reasons of the case." The court refused to permit petitioner to withdraw the plea and heard counsel on the question of the sentence to be imposed. The State's attorney, despite the collapse of the plea bargain, recommended, and the court imposed, a first offender's sentence of five to 10 years on the narcotics count and two years on the larceny count; that is the precise sentence the State's Attorney had agreed to recommend as part of the plea bargain. Mr. Zaccagnino, however, was concerned that petitioner's unwillingness to go through with the plea bargain left petitioner vulnerable to the prosecution on the outstanding charges in the various counties: "[I]t was a matter that Your Honor would normally ..., in a situation like this, enter concurrent sentences, if, in fact, it was so recommended by the State's Attorney; but since [petitioner] doesn't want to plea to these other matters, I would like to make that note for the record, because I feel at some later date he may have to come back to this court and see Your Honor or see another judge on these other matters now pending before it."3 On this state of facts, the Connecticut Supreme Court concluded that petitioner had not sustained his claim that a conflict of interest on the part of Mr. Zaccagnino rendered his plea involuntary and unintelligent. The court said, 161 Conn., at 344-345, 288 A. 2d, at 62: "There is nothing in the record before us which would indicate that the alleged conflict resulted in ineffective assistance of counsel and did in fact render the plea in question involuntary and unintelligent. [Petitioner] does not claim, and it is nowhere indicated in the finding, nor could it be inferred from the finding, that either Attorney Zaccagnino or Attorney Delaney induced [petitioner] to plead guilty in furtherance of a plan to obtain more favorable consideration from the court for other clients... . Neither does the finding in any way disclose, nor is it claimed, that [petitioner] received misleading advice from Attorney Zaccagnino or Attorney Delaney which led him to plead guilty... . Moreover, the trial court specifically found that when [petitioner] engaged Zaccagnino as his counsel, he knew that Zaccagnino was representing two defendants in the unrelated case in which he was a codefendant, that he never complained to the court that he was not satisfied with Attorney Zaccagnino because of this dual representation, that he was not represented at the entry of his plea by Attorney Zaccagnino, that he was represented by Attorney Delaney at the entry of his plea, that he had a lengthy conversation with Attorney Delaney prior to entering his plea which he recalled completely, and that on specific inquiry by the court before he pleaded guilty, he told the court that he was satisfied with the representation by Attorney Delaney. The court did not err in concluding that [petitioner's] plea was not rendered involuntary and unintelligent by the alleged conflict of interest." We fully agree with this reasoning and conclusion of the Connecticut Supreme Court. Since there is thus no merit in petitioner's sole contention in this proceeding - that Mr. Zaccagnino's alleged conflict of interest affected his plea - that conflict of interest is not "a reason for vacating his plea." Santobello v. New York, (MARSHALL, J., concurring and dissenting). Affirmed.

Petitioner Mu'Min, a Virginia inmate serving time for first-degree murder, committed another murder while out of prison on work detail. The case engendered substantial publicity in the local news media. The trial judge denied his motion for individual voir dire and refused to ask any of his proposed questions relating to the content of news items that potential jurors might have seen or read. Initially, the judge questioned the prospective jurors as a group, asking four separate questions about the effect on them of pretrial publicity or information about the case obtained by other means. One juror who admitted to having formed a belief as to Mu'Min's guilt was excused for cause. The judge then conducted further voir dire in panels of four, and each time a juror indicated that he had acquired knowledge about the case from outside sources, he was asked whether he had formed an opinion. One juror who equivocated as to her impartiality was excused by the judge sua sponte, and several others were excused for various reasons. Although 8 of the 12 eventually sworn admitted that they had read or heard something about the case, none indicated that they had formed an opinion based on the outside information or would be biased in any way. The jury found Mu'Min guilty of capital murder, and the judge sentenced him to death. The Supreme Court of Virginia affirmed, finding that, while a criminal defendant may properly ask on voir dire whether a juror has previously acquired any information about the case, the defendant does not have a constitutional right to explore the content of the acquired information, but is only entitled to know whether the juror can remain impartial in light of the previously obtained information.Held: The trial judge's refusal to question prospective jurors about the specific contents of the news reports to which they had been exposed did not violate Mu'Min's Sixth Amendment right to an impartial jury or his right to due process under the Fourteenth Amendment. Pp. 422-432. (a) This Court's cases have stressed the wide discretion granted to trial courts in conducting voir dire in the area of pretrial publicity and in other areas that might tend to show juror bias. For example, in holding that a trial court's voir dire questioning must "cover the subject" of possible juror racial bias, Aldridge v. United States, , the Court was careful not to specify the particulars by which this could be done. Pp. 422-424. (b) Mu'Min's assertion that voir dire must do more than merely "cover the subject" of pretrial publicity is not persuasive. Although precise inquiries about the contents of any news reports that a potential juror has read might reveal a sense of the juror's general outlook on life that would be of some use in exercising peremptory challenges, this benefit cannot be a basis for making "content" questions about pretrial publicity a constitutional requirement, since peremptory challenges are not required by the Constitution. Ross v. Oklahoma, . Moreover, although content questions might be helpful in assessing whether a juror is impartial, such questions are constitutionally compelled only if the trial court's failure to ask them renders the defendant's trial fundamentally unfair. See Murphy v. Florida, . Furthermore, contrary to the situation in Aldridge, supra, at 311-313, there is no judicial consensus, or even weight of authority, favoring Mu'Min's position. Even the Federal Courts of Appeals that have required content inquiries have not expressly done so on constitutional grounds. Pp. 424-427. (c) Mu'Min misplaces his reliance on Irvin v. Dowd, , in which the Court held that pretrial publicity in connection with a capital trial had so tainted the particular jury pool that the defendant was entitled as a matter of federal constitutional law to a change of venue. That case did not deal with any constitutional requirement of voir dire inquiry, and it is not clear from the Court's opinion how extensive an inquiry the trial court made. Moreover, the pretrial publicity here, although substantial, was not nearly as damaging or extensive as that found to exist in Irvin. While adverse pretrial publicity can create such a presumption of prejudice that the jurors' claims that they can be impartial should not be believed, Patton v. Yount, , this is not such a case. Pp. 427-430. (d) Mu'Min also misplaces his reliance on the American Bar Association's Standards For Criminal Justice, which require interrogation of each juror individually with respect to "what [he] has read and heard about the case," "[i]f there is a substantial possibility that [he] will be ineligible to serve because of exposure to potentially prejudicial material." These standards leave to the trial court the initial determination of whether there is such a substantial possibility; are based on a substantive for-cause eligibility standard that is stricter than the impartiality standard required by the Constitution, see Patton, supra, at 1035; and have not commended themselves to a majority of the courts that have considered the question. Pp. 430-431. (e) The two-part voir dire examination conducted by the trial court in this case was by no means perfunctory and adequately covered the subject of possible bias by pretrial publicity. Pp. 431-432. 239 Va. 433, 389 S.E.2d 886, affirmed. REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and SOUTER, JJ., joined. O'CONNOR, J., filed a concurring opinion, post, p. 432. MARSHALL, J., filed a dissenting opinion, in all but Part IV of which BLACKMUN and STEVENS, JJ., joined, post, p. 433. KENNEDY, J., filed a dissenting opinion, post, p. 448.John H. Blume, by appointment of the Court, , argued the cause for petitioner. With him on the briefs was Mark E. Olive.John H. McLees, Jr., Assistant Attorney General of Virginia, argued the cause for respondent. With him on the brief were Mary Sue Terry, Attorney General, H. Lane Kneedler, Chief Deputy Attorney General, Stephen D. Rosenthal, Deputy Attorney General, Jerry P. Slonaker, Senior Assistant Attorney General, and Thomas C. Daniel, Assistant Attorney General.* [Footnote *] Kenneth M. Mogill filed a brief for the National Jury Project as amicus curiae urging reversal.CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.Petitioner Dawud Majid Mu'Min was convicted of murdering a woman in Prince William County, Virginia, while out of prison on work detail, and was sentenced to death. The case engendered substantial publicity, and 8 of the 12 venirepersons eventually sworn as jurors answered on voir dire that they had read or heard something about the case. None of those who had read or heard something indicated that they had formed an opinion based on the outside information, or that it would affect their ability to determine petitioner's guilt or innocence based solely on the evidence presented at trial. Petitioner contends, however, that his Sixth Amendment right to an impartial jury and his right to due process under the Fourteenth Amendment were violated because the trial judge refused to question further prospective jurors about the specific contents of the news reports to which they had been exposed. We reject petitioner's submission. Mu'Min was an inmate at the Virginia Department of Corrections' Haymarket Correctional Unit serving a 48-year sentence for a 1973 first-degree murder conviction. On September 22, 1988, he was transferred to the Virginia Department of Transportation (VDOT) Headquarters in Prince William County and assigned to a work detail supervised by a VDOT employee. During his lunch break, he escaped over a perimeter fence at the VDOT facility and made his way to a nearby shopping center. Using a sharp instrument that he had fashioned at the VDOT shop, Mu'Min murdered and robbed Gladys Nopwasky, the owner of a retail carpet and flooring store. Mu'Min then returned to his prison work crew at the VDOT, discarding his bloodied shirt and the murder weapon near the highway.About three months before trial, petitioner submitted to the trial court, in support of a motion for a change of venue, 47 newspaper articles relating to the murder.1 One or more of the articles discussed details of the murder and investigation, and included information about petitioner's prior criminal record, (App. 963-969), the fact that he had been rejected for parole six times, id., at 923, 942, accounts of alleged prison infractions, id., at 921, 931, 942, details about the prior murder for which Mu'Min was serving his sentence at the time of this murder, id., at 948, 951, a comment that the death penalty had not been available when Mu'Min was convicted for this earlier murder, id., at 948, and indications that Mu'Min had confessed to killing Gladys Nopwasky, id., at 975. Several articles focused on the alleged laxity in the supervision of work gangs, id., at 922-924, 930-931, and argued for reform of the prison work-crew system, id., at 974. The trial judge deferred ruling on the venue motion until after making an attempt to seat a jury Joint Appendix 8-15 (J.A.).Shortly before the date set for trial, petitioner submitted to the trial judge 64 proposed voir dire questions,2 (id., at 2-7), and filed a motion for individual voir dire. The trial court denied the motion for individual voir dire; it ruled that voir dire would begin with collective questioning of the venire, but the venire would be broken down into panels of four, if necessary, to deal with issues of publicity, id., at 16-17. The trial court also refused to ask any of petitioner's proposed questions relating to the content of news items that potential jurors might have read or seen.Twenty-six prospective jurors were summoned into the courtroom and questioned as a group, id., at 42-66. When asked by the judge whether anyone had acquired any information about the alleged offense or the accused from the news media or from any other source, 16 of the potential jurors replied that they had, id., at 46-47. The prospective jurors were not asked about the source or content of prior knowledge, but the court then asked the following questions: "Would the information that you heard, received, or read from whatever source, would that information affect your impartiality in this case? "Is there anyone that would say what you've read, seen, heard, or whatever information you may have acquired from whatever the source would affect your impartiality so that you could not be impartial? ... . . "Considering what the ladies and gentlemen who have answered in the affirmative have heard or read about this case, do you believe that you can enter the Jury box with an open mind and await until the entire case is presented before reaching a fixed opinion or conclusion as to the guilt or innocence of the accused? ... . . "... In view of everything that you've seen, heard, or read, or any information from whatever source that you've acquired about this case, is there anyone who believes that you could not become a Juror, enter the Jury box with an open mind and wait until the entire case is presented before reaching a fixed opinion or a conclusion as to the guilt or innocence of the accused?" Id., at 47-48. One of the 16 panel members who admitted to having prior knowledge of the case answered in response to these questions that he could not be impartial, and was dismissed for cause, id., at 48-49). Petitioner moved that all potential jurors who indicated that they had been exposed to pretrial publicity be excused for cause, id., at 68. This motion was denied, id., at 69, as was petitioner's renewed motion for a change of venue based on the pretrial publicity, id., at 71.The trial court then conducted further voir dire of the prospective jurors in panels of four, id., at 72-94. Whenever a potential juror indicated that he had read or heard something about the case, the juror was then asked whether he had formed an opinion, and whether he could nonetheless be impartial. None of those eventually seated stated that he had formed an opinion, or gave any indication that he was biased or prejudiced against the defendant. All swore that they could enter the jury box with an open mind and wait until the entire case was presented before reaching a conclusion as to guilt or innocence.If any juror indicated that he had discussed the case with anyone, the court asked follow-up questions to determine with whom the discussion took place, and whether the juror could have an open mind despite the discussion. One juror who equivocated as to whether she could enter the jury box with an open mind was removed sua sponte by the trial judge, id., at 90. One juror was dismissed for cause because she was not "as frank as she could [be]" concerning the effect of her feelings toward members of the Islamic Faith and toward defense counsel, id., at 81. One juror was dismissed because of her inability to impose the death penalty, id., at 86-87, while another was removed based upon his statement that upon a finding of capital murder, he could not consider a penalty less than death, App. 339-341. The prosecution and the defense each peremptorily challenged 6 potential jurors, and the remaining 14 were seated and sworn as jurors (two as alternates). Petitioner did not renew his motion for change of venue or make any other objection to the composition of the jury. Of the 12 jurors who decided petitioner's case, 8 had at one time or another read or heard something about the case. None had indicated that he had formed an opinion about the case or would be biased in any way.The jury found petitioner guilty of capital murder and recommended that he be sentenced to death. After taking the matter under advisement and reviewing a presentence report, the trial judge accepted the jury's recommendation and sentenced Mu'Min to death. Mu'Min appealed, contending that he was entitled to a new trial as a result of the judge's failure to permit the proposed voir dire questions. By a divided vote, the Supreme Court of Virginia affirmed his conviction and sentence, finding that, while a criminal defendant may properly ask on voir dire whether a juror has previously acquired any information about the case, the defendant does not have a constitutional right to explore the content of the acquired information. Rather, an accused is only entitled to know whether the juror can remain impartial in light of the previously obtained information. 239 Va. 433, 443, 389 S.E.2d 886, 893 (1990). We granted certiorari, , and now affirm.Our cases dealing with the requirements of voir dire are of two kinds: those that were tried in federal courts, and are therefore subject to this Court's supervisory power, see Rosales-Lopez v. United States, ; Aldridge v. United States, ; and Connors v. United States, ; and those that were tried in state courts, with respect to which our authority is limited to enforcing the commands of the United States Constitution. See Turner v. Murray, ; Ristaino v. Ross, ; and Ham v. South Carolina, .A brief review of these cases is instructive. In Connors, we said: "[A] suitable inquiry is permissible in order to ascertain whether the juror has any bias, opinion, or prejudice that would affect or control the fair determination by him of the issues to be tried. That inquiry is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion. This is the rule in civil cases, and the same rule must be applied in criminal cases." 158 U.S., at 413. In Aldridge v. United States, counsel for a black defendant sought to have the Court put a question to the jury as to whether any of them might be prejudiced against the defendant because of his race. We held that it was reversible error for the Court not to have put such a question, saying "[t]he Court failed to ask any question which could be deemed to cover the subject." Id., at 311. More recently, in Rosales-Lopez v. United States, supra, we held that such an inquiry as to racial or ethnic prejudice need not be made in every case, but only where the defendant was accused of a violent crime and the defendant and the victim were members of different racial or ethnic groups. We said: "Because the obligation to empanel an impartial jury lies in the first instance with the trial judge, and because he must rely largely on his immediate perceptions, federal judges have been accorded ample discretion in determining how best to conduct the voir dire." Id., at 189. Three of our cases dealing with the extent of voir dire examination have dealt with trials in state courts. The first of these was Ham v. South Carolina, supra. In that case, the defendant was black and had been active in the civil rights movement in South Carolina; his defense at trial was that enforcement officers were "out to get him" because of his civil rights activities, and that he had been framed on the charge of marijuana possession of which he was accused. He requested that two questions be asked regarding racial prejudice and one question be asked regarding prejudice against persons, such as himself, who wore beards. We held that the Due Process Clause of the Fourteenth Amendment required the court to ask "either of the brief, general questions urged by the petitioner" with respect to race, id., at 527, but rejected his claim that an inquiry as to prejudice against persons with beards be made, "[g]iven the traditionally broad discretion accorded to the trial judge in conducting voir dire ... ." Id., at 528.In Ristaino v. Ross, supra, we held that the Constitution does not require a state-court trial judge to question prospective jurors as to racial prejudice in every case where the races of the defendant and the victim differ, but in Turner v. Murray, supra, we held that, in a capital case involving a charge of murder of a white person by a black defendant, such questions must be asked.We enjoy more latitude in setting standards for voir dire in federal courts under our supervisory power than we have in interpreting the provisions of the Fourteenth Amendment with respect to voir dire in state courts. But two parallel themes emerge from both sets of cases: First, the possibility of racial prejudice against a black defendant charged with a violent crime against a white person is sufficiently real that the Fourteenth Amendment requires that inquiry be made into racial prejudice; second, the trial court retains great latitude in deciding what questions should be asked on voir dire. As we said in Rosales-Lopez, supra: "Despite its importance, the adequacy of voir dire is not easily subject to appellate review. The trial judge's function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions." Id., at 188. Petitioner asserts that the Fourteenth Amendment requires more in the way of voir dire with respect to pretrial publicity than our cases have held that it does with respect to racial or ethnic prejudice. Not only must the court "cover the subject," Aldridge, supra, at 311, but it must make precise inquiries about the contents of any news reports that potential jurors have read. Petitioner argues that these "content" questions would materially assist in obtaining a jury less likely to be tainted by pretrial publicity than one selected without such questions. There is a certain commonsense appeal to this argument.Undoubtedly, if counsel were allowed to see individual jurors answer questions about exactly what they had read, a better sense of the juror's general outlook on life might be revealed, and such a revelation would be of some use in exercising peremptory challenges. But since peremptory challenges are not required by the Constitution, Ross v. Oklahoma, , this benefit cannot be a basis for making "content" questions about pretrial publicity a constitutional requirement. Such questions might also have some effect in causing jurors to reevaluate their own answers as to whether they had formed any opinion about the case, but this is necessarily speculative.Acceptance of petitioner's claim would require that each potential juror be interrogated individually; even were the interrogation conducted in panels of four jurors, as the trial court did here, descriptions of one juror about pretrial publicity would obviously be communicated to the three other members of the panel being interrogated, with the prospect that more harm than good would be done by the interrogation. Petitioner says that the questioning can be accomplished by juror questionnaires submitted in advance at trial, but such written answers would not give counsel or the court any exposure to the demeanor of the juror in the course of answering the content questions. The trial court in this case expressed reservations about interrogating jurors individually because it might make the jurors feel that they themselves were on trial. While concern for the feelings and sensibilities of potential jurors cannot be allowed to defeat inquiry necessary to protect a constitutional right, we do not believe that "content" questions are constitutionally required.Whether a trial court decides to put questions about the content of publicity to a potential juror or not, it must make the same decision at the end of the questioning: is this juror to be believed when he says he has not formed an opinion about the case? Questions about the content of the publicity to which jurors have been exposed might be helpful in assessing whether a juror is impartial. To be constitutionally compelled, however, it is not enough that such questions might be helpful. Rather, the trial court's failure to ask these questions must render the defendant's trial fundamentally unfair. See Murphy v. Florida, .Aldridge was this Court's seminal case requiring inquiry as to racial prejudice, and the opinion makes clear that in reaching that result we relied heavily on a unanimous body of state-court precedents holding that such an inquiry should be made. 283 U.S., at 311-313. On the subject of pretrial publicity, however, there is no similar consensus, or even weight of authority, favoring petitioner's position. Among the state-court decisions cited to us by the parties, not only Virginia, but South Carolina, State v. Lucas, 285 S.C. 37, 39-40, 328 S.E.2d 63, 64-65, cert. denied, , Massachusetts, Commonwealth v. Burden, 15 Mass. App. 666, 674, 448 N.E.2d 387, 393 (1983), and Pennsylvania, Commonwealth v. Dolhancryk, 273 Pa. Super. 217, 222, 417 A.2d 246, 248 (1979), have refused to adopt such a rule. The Courts of Appeals for the Fifth Circuit, United States v. Davis, 583 F.2d 190, 196 (1978), the Seventh Circuit, United States v. Dellinger, 472 F.2d 340, 375-376 (1972), cert. denied, , and the Ninth Circuit, Silverthorne v. United States, 400 F.2d 627, 639 (1968),3 have held that in some circumstances such an inquiry is required. The Court of Appeals for the Eleventh Circuit has held that it is not. United States v. Montgomery, 772 F.2d 733, 735-736 (1985). The Courts of Appeals for the Eight and District of Columbia Circuits appear to take an intermediate position. United States v. Poludniak, 657 F.2d 948, 956 (CA8 1981), cert. denied sub nom. Weigand v. United States, ; United States v. HaldemanApp. D.C. 254, 288-289, 559 F.2d 31, 65-66 (1976), cert. denied sub nom. Ehrlichman v. United States, . Even those Federal Courts of Appeals that have required such an inquiry to be made have not expressly placed their decision on constitutional grounds.As noted above, our own cases have stressed the wide discretion granted to the trial court in conducting voir dire in the area of pretrial publicity and in other areas of inquiry that might tend to show juror bias. Particularly with respect to pretrial publicity, we think this primary reliance on the judgment of the trial court makes good sense. The judge of that court sits in the locale where the publicity is said to have had its effect and brings to his evaluation of any such claim his own perception of the depth and extent of news stories that might influence a juror. The trial court, of course, does not impute his own perceptions to the jurors who are being examined, but these perceptions should be of assistance to it in deciding how detailed an inquiry to make of the members of the jury venire.Petitioner relies heavily on our opinion in Irvin v. Dowd, , to support his position. In that case, we held that pretrial publicity in connection with a capital trial had so tainted the jury pool in Gibson County, Indiana, that the defendant was entitled as a matter of federal constitutional law to a change of venue to another county. Our opinion in that case details at great length the extraordinary publicity that attended the defendant's prosecution and conviction for murder. "[A] barrage of newspaper headlines, articles, cartoons and pictures was unleashed against [the defendant] during the six or seven months preceding his trial... . [T]he newspapers in which the stories appeared were delivered regularly to approximately 95% of the dwellings in Gibson County, and ... the Evansville radio and TV stations, which likewise blanketed that county, also carried extensive newscasts covering the same incidents." Id., at 725. Two-thirds of the jurors actually seated had formed an opinion that the defendant was guilty, and acknowledged familiarity with material facts and circumstances of the case. Id., at 728. Although each of these jurors said that he could be impartial, we concluded: "With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two-thirds of the members admit, before hearing any testimony, to possessing a belief in his guilt." Ibid. We believe that this case is instructive, but not in the way petitioner employs it. It did not deal with any constitutional requirement of voir dire inquiry, and it is not clear from our opinion how extensive an inquiry the trial court made. But the contrast between that case and the present one is marked. In Irvin, the trial court excused over half of a panel of 430 persons because their opinions of the defendant's guilt were so fixed that they could not be impartial, and 8 of the 12 jurors who sat had formed an opinion as to guilt. In the present case, 8 of the 12 jurors who sat answered that they had read or heard something about the case, but none of those 8 indicated that he had formed an opinion as to guilt, or that the information would affect his ability to judge petitioner solely on the basis of the evidence presented at trial.A trial court's findings of juror impartiality may "be overturned only for `manifest error.'" Patton v. Yount, (quoting Irvin v. Dowd, supra, at 723). In Patton, we acknowledged that "adverse pretrial publicity can create such a presumption of prejudice in a community that the jurors' claims that they can be impartial should not be believed," at 1031, but this is not such a case. Had the trial court in this case been confronted with the "wave of public passion" engendered by pretrial publicity that occurred in connection with Irvin's trial, the Due Process Clause of the Fourteenth Amendment might well have required more extensive examination of potential jurors than it undertook here. But the showings are not comparable; the cases differ both in the kind of community in which the coverage took place and in extent of media coverage. Unlike the community involved in Irvin, the county in which petitioner was tried, Prince William, had a population in 1988 of 182,537, and this was one of nine murders committed in the county that year. It is a part of the metropolitan Washington statistical area, which has a population of over 3 million, and in which, unfortunately, hundreds of murders are committed each year. In Irvin, news accounts included details of the defendant's confessions to 24 burglaries and six murders, including the one for which he was tried, as well as his unaccepted offer to plead guilty in order to avoid the death sentence. They contained numerous opinions as to his guilt, as well as opinions about the appropriate punishment. While news reports about Mu'Min were not favorable, they did not contain the same sort of damaging information. Much of the pretrial publicity was aimed at the Department of Corrections and the criminal justice system in general, criticizing the furlough and work-release programs that made this and other crimes possible. Any killing that ultimately results in a charge of capital murder will engender considerable media coverage, and this one may have engendered more than most because of its occurrence during the 1988 Presidential campaign, when a similar crime committed by a Massachusetts inmate became a subject of national debate. But while the pretrial publicity in this case appears to have been substantial, it was not of the same kind or extent as that found to exist in Irvin.Petitioner also relies on the Standards for Criminal Justice 8-3.5 (2d ed. 1980) promulgated by the American Bar Association. These standards require interrogation of each juror individually with respect to "what the prospective juror has read and heard about the case," "[i]f there is a substantial possibility that individual jurors will be ineligible to serve because of exposure to potentially prejudicial material." These standards, of course, leave to the trial court the initial determination of whether there is such a substantial possibility. But, more importantly, the Standards relating to voir dire are based on a substantive rule that renders a potential juror subject to challenge for cause, without regard to his state of mind, if he has been exposed to and remembers "highly significant information" or "other incriminating matters that may be inadmissible in evidence." That is a stricter standard of juror eligibility than that which we have held the Constitution to require. Under the ABA Standard, answers to questions about content, without more, could disqualify the juror from sitting. Under the constitutional standard, on the other hand, "[t]he relevant question is not whether the community remembered the case, but whether the jurors ... had such fixed opinions that they could not judge impartially the guilt of the defendant." Patton, supra, at 1035. Under this constitutional standard, answers to questions about content alone, which reveal that a juror remembered facts about the case, would not be sufficient to disqualify a juror. "It is not required ... that the jurors be totally ignorant of the facts and issues involved." Irvin, 366 U.S., at 722.The ABA Standards, as indicated in our previous discussion of state and federal court decisions, have not commended themselves to a majority of the courts that have considered the question. The fact that a particular rule may be thought to be the "better" view does not mean that it is incorporated into the Fourteenth Amendment. Cupp v. Naughten, .The voir dire examination conducted by the trial court in this case was by no means perfunctory. The court asked the entire venire of jurors four separate questions about the effect on them of pretrial publicity or information about the case obtained by other means. One juror admitted to having formed a belief as to petitioner's guilt and was excused for cause. The trial court then conducted further voir dire in panels of four, and each time an individual juror indicated that he had acquired knowledge about the case from outside sources, he was asked whether he had formed an opinion; none of the jurors seated indicated that he had formed an opinion. One juror who equivocated as to her impartiality was excused by the trial court on its own motion. Several other jurors were excused for other reasons. It is quite possible that if voir dire interrogation had revealed one or more jurors who had formed an opinion about the case, the trial court might have decided to question succeeding jurors more extensively.Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges. In Aldridge and Ham we held that the subject of possible racial bias must be "covered" by the questioning of the trial court in the course of its examination of potential jurors, but we were careful not to specify the particulars by which this could be done. We did not, for instance, require questioning of individual jurors about facts or experiences that might have led to racial bias. Petitioner in this case insists, as a matter of constitutional right, not only that the subject of possible bias from pretrial publicity be covered - which it was - but that questions specifically dealing with the content of what each juror has read be asked. For the reasons previously stated, we hold that the Due Process Clause of the Fourteenth Amendment does not reach this far, and that the voir dire examination conducted by the trial court in this case was consistent with that provision. The judgment of the Supreme Court of Virginia is accordingly Affirmed.

When, by reason of the contractor's default, a surety on a payment bond given by a contractor under the Miller Act, 49 Stat. 793, has been compelled to pay debts of the contractor for labor and materials, the surety is entitled by subrogation to reimbursement from a fund otherwise due to the contractor but withheld by the Government pursuant to the terms of the contract - even though the contractor has become bankrupt and the Government has turned the withheld fund over to the contractor's trustee in bankruptcy. Pp. 133-142. (a) This fund never became a part of the bankruptcy estate and its disposition is not controlled by the Bankruptcy Act. Pp. 135-136. (b) Prairie State Bank v. United States, , and Henningsen v. United States Fid. & Guar. Co., , followed. Pp. 137-139. (c) The Miller Act, which requires separate performance and payment bonds on Government contracts, did not change the law as declared in the Prairie State Bank and Henningsen cases. Pp. 139-140. (d) The Prairie State Bank and Henningsen cases were not overruled by United States v. Munsey Trust Co., . Pp. 140-142. 298 F.2d 655, affirmed.Raymond T. Miles argued the cause for petitioner. With him on the briefs was Lowell Grosse.Mark N. Turner argued the cause and filed briefs for respondent.John G. Street, Jr. and Edward M. Murphy filed briefs as amici curiae, urging reversal. David Morgulas filed a brief for the Association of Casualty & Surety Companies, as amicus curiae, urging affirmance.MR. JUSTICE BLACK delivered the opinion of the Court.This is a dispute between the trustee in bankruptcy of a government contractor and the contractor's payment bond surety over which has the superior right and title to a fund withheld by the Government out of earnings due the contractor.The petitioner, Pearlman, is trustee of the bankrupt estate of the Dutcher Construction Corporation, which in April 1955 entered into a contract with the United States to do work on the Government's St. Lawrence Seaway project. At the same time the respondent, Reliance Insurance Company,1 executed two surety bonds required of the contractor by the Miller Act, one to guarantee performance of the contract, the other to guarantee payment to all persons supplying labor and material for the project.2 Under the terms of the contract, which was attached to and made a part of the payment bond, the United States was authorized to retain and hold a percentage of estimated amounts due monthly until final completion and acceptance of all work covered by the contract. Before completion Dutcher had financial trouble and the United States terminated its contract by agreement. Another contractor completed the job, which was finally accepted by the Government. At this time there was left in the Government's withheld fund $87,737.35, which would have been due to be paid to Dutcher had it carried out its obligation to pay its laborers and materialmen. Since it had not met this obligation, its surety had been compelled to pay about $350,000 to discharge debts of the contractor for labor and materials. In this situation the Government was holding over $87,000 which plainly belonged to someone else, and the fund was turned over to the bankrupt's trustee, who held it on the assumption that it had been property of the bankrupt at the time of adjudication and therefore had vested in the trustee "by operation of law" under 70 of the Bankruptcy Act.3 The surety then filed a petition in the District Court denying that the fund had vested in the trustee, alleging that it, the surety, was "the owner of said sum" of $87,737.35 "free and clear of the claims of the Trustee in Bankruptcy or any other person, firm or corporation," and seeking an order directing the trustee to pay over the fund to the surety forthwith.4 The referee in bankruptcy, relying chiefly on this Court's opinion in United States v. Munsey Trust Co., , held that the surety had no superior rights in the fund, refused to direct payment to the surety, and accordingly ordered the surety's claim to be allowed as that of a general creditor only to share on an equality with the general run of unsecured creditors.5 The District Court vacated the referee's order and held that cases decided prior to Munsey had established the right of a surety under circumstances like this to be accorded priority over general creditors and that Munsey had not changed that rule.6 The Second Circuit affirmed.7 Other federal courts have reached a contrary result,8 and as the question is an important and recurring one, we granted certiorari to decide it.9 One argument against the surety's claim is that this controversy is governed entirely by the Bankruptcy Act and that 64, 11 U.S.C. 104, which prescribes priorities for different classes of creditors, gives no priority to a surety's claim for reimbursement. But the present dispute - who has the property interests in the fund, and how much - is not so simply solved. Ownership of property rights before bankruptcy is one thing; priority of distribution in bankruptcy of property that has passed unencumbered into a bankrupt's estate is quite another. Property interests in a fund not owned by a bankrupt at the time of adjudication, whether complete or partial, legal or equitable, mortgages, liens, or simple priority of rights, are of course not a part of the bankrupt's property and do not vest in the trustee. The Bankruptcy Act simply does not authorize a trustee to distribute other people's property among a bankrupt's creditors.10 So here if the surety at the time of adjudication was, as it claimed, either the outright legal or equitable owner of this fund, or had an equitable lien or prior right to it, this property interest of the surety never became a part of the bankruptcy estate to be administered, liquidated, and distributed to general creditors of the bankrupt. This Court has recently reaffirmed that such property rights existing before bankruptcy in persons other than the bankrupt must be recognized and respected in bankruptcy.11 Consequently our question is not who was entitled to priority in distributions under 64, but whether the surety had, as it claimed, ownership of, an equitable lien on, or a prior right to this fund before bankruptcy adjudication.Since there is no statute which expressly declares that a surety does acquire a property interest in a fund like this under the circumstances here, we must seek an answer in prior judicial decisions. Some of the relevant factors in determining the question are beyond dispute. Traditionally sureties compelled to pay debts for their principal have been deemed entitled to reimbursement, even without a contractual promise such as the surety here had.12 And probably there are few doctrines better established than that a surety who pays the debt of another is entitled to all the rights of the person he paid to enforce his right to be reimbursed.13 This rule, widely applied in this country14 and generally known as the right of subrogation, was relied on by the Court of Appeals in this case. It seems rather plain that at least two prior decisions of this Court have held that there is a security interest in a withheld fund like this to which the surety is subrogated, unless, as is argued, the rule laid down in those cases has been changed by passage of the Miller Act or by our holding in the Munsey case. Those two cases are Prairie State Bank v. United States, , and Henningsen v. United States Fid. & Guar. Co., .In the Prairie Bank case a surety who had been compelled to complete a government contract upon the contractor's default in performance claimed that he was entitled to be reimbursed for his expenditure out of a fund that arose from the Government's retention of 10% of the estimated value of the work done under the terms of the contract between the original contractor and the Government. That contract contained almost the same provisions for retention of the fund as the contract presently before us. The Prairie Bank, contesting the surety's claim, asserted that it had a superior equitable lien arising from moneys advanced by the bank to the contractor before the surety began to complete the work. The Court, in a well-reasoned opinion by Mr. Justice White, held that this fund materially tended to protect the surety, that its creation raised an equity in the surety's favor, that the United States was entitled to protect itself out of the fund, and that the surety, by asserting the right of subrogation, could protect itself by resort to the same securities and same remedies which had been available to the United States for its protection against the contractor. The Court then went on to quote with obvious approval this statement from a state case:"The law upon this subject seems to be, the reserved per cent to be withheld until the completion of the work to be done is as much for the indemnity of him who may be a guarantor of the performance of the contract as for him for whom it is to be performed. And there is great justness in the rule adopted. Equitably, therefore, the sureties in such cases are entitled to have the sum agreed upon held as a fund out of which they may be indemnified, and if the principal releases it without their consent it discharges them from their undertaking." 164 U.S., at 239, quoting from Finney v. Condon, 86 Ill. 78, 81 (1877). The Prairie Bank case thus followed an already established doctrine that a surety who completes a contract has an "equitable right" to indemnification out of a retained fund such as the one claimed by the surety in the present case. The only difference in the two cases is that here the surety incurred his losses by paying debts for the contractor rather than by finishing the contract.The Henningsen case, decided 12 years later in 1908, carried the Prairie Bank case still closer to ours. Henningsen had contracts with the United States to construct public buildings. His surety stipulated not only that the contractor would perform and construct the buildings, but also, as stated by the Court, that he would "pay promptly and in full all persons supplying labor and material in the prosecution of the work contracted for."15 Henningsen completed the buildings according to contract but failed to pay his laborers and materialmen. The surety paid. This Court applied the equitable principles declared in the Prairie Bank case so as to entitle the surety to the same equitable claim to the retained fund that the surety in the Prairie Bank case was held to have. Thus the same equitable rules as to subrogation and property interests in a retained fund were held to exist whether a surety completes a contract or whether, though not called upon to complete the contract, it pays the laborers and materialmen. These two cases therefore, together with other cases that have followed them,16 establish the surety's right to subrogation in such a fund whether its bond be for performance or payment. Unless this rule has been changed, the surety here has a right to this retained fund.It is argued that the Miller Act17 changed the law as declared in the Prairie Bank and Henningsen cases. We think not. Certainly no language of the Act does, and we have been pointed to no legislative history that indicates such a purpose. The suggestion is, however, that a congressional purpose to repudiate the equitable doctrine of the two cases should be implied from the fact that the Miller Act required a public contract surety to execute two bonds instead of the one formerly required. It is true that the Miller Act did require both a performance bond and an additional payment bond, that is, one to assure completion of the contract and one to assure payments by the contractor for materials and labor. But the prior Acts on this subject, while requiring only one bond, made it cover both performance and payment.18 Neither this slight difference in the new and the old Acts nor any other argument presented persuades us that Congress in passing the Miller Act intended to repudiate equitable principles so deeply imbedded in our commercial practices, our economy, and our law as those spelled out in the Prairie Bank and Henningsen cases.19 The final argument is that the Prairie Bank and Henningsen cases were in effect overruled by our holding and opinion in United States v. Munsey Trust Co., supra. The point at issue in that case was whether the United States while holding a fund like the one in this case could offset against the contractor a claim bearing no relationship to the contractor's claim there at issue. We held that the Government could exercise the well-established common-law right of debtors to offset claims of their own against their creditors. This was all we held. The opinion contained statements which some have interpreted20 as meaning that we were abandoning the established legal and equitable principles of the Prairie Bank and Henningsen cases under which sureties can indemnify themselves against losses. But the equitable rights of a surety declared in the Prairie Bank case as to sureties who complete the performance of a contract were expressly recognized and approved in Munsey,21 and the Henningsen rule as to sureties who had not completed the contract but had paid laborers was not mentioned. Henningsen was not even cited in the Munsey opinion. We hold that Munsey left the rule in Prairie Bank and Henningsen undisturbed. We cannot say that such a firmly established rule was so casually overruled.22 We therefore hold in accord with the established legal principles stated above that the Government had a right to use the retained fund to pay laborers and materialmen; that the laborers and materialmen had a right to be paid out of the fund; that the contractor, had he completed his job and paid his laborers and materialmen, would have become entitled to the fund; and that the surety, having paid the laborers and materialmen, is entitled to the benefit of all these rights to the extent necessary to reimburse it.23 Consequently, since the surety in this case has paid out more than the amount of the existing fund, it has a right to all of it. On this basis the judgment of the Court of Appeals is Affirmed.MR. JUSTICE WHITE dissents.

In adopting a multimember reapportionment plan for a Louisiana parish calling for the at-large election of certain parish officials to remedy malapportionment among the parish wards, the District Court, in the absence of special circumstances dictating the use of such a multimember arrangement, abused its discretion in not initially ordering a single-member reapportionment plan. 485 F.2d 1297, affirmed.John F. Ward, Jr., argued the cause and filed a brief for petitioners.Stanley A. Halpin, Jr., argued the cause for respondent. With him on the brief were Jack Greenberg and Eric Schnapper.Brian K. Landsberg argued the cause for the United States as amicus curiae. With him on the brief were Solicitor General Bork, Assistant Attorney General Pottinger, John C. Hoyle, and Jessica Dunsay Silver.* [Footnote *] Paul R. Dimond and William E. Caldwell filed a brief for the Lawyers' Committee for Civil Rights Under Law as amicus curiae.PER CURIAM.The sole issue raised by this case is how compliance with the one-man, one-vote principle should be achieved in a parish (county) that is admittedly malapportioned.Plaintiff Zimmer, a white resident of East Carroll Parish, La., brought suit in 1968 alleging that population disparities among the wards of the parish had unconstitutionally denied him the right to cast an effective vote in elections for members of the police jury1 and the school board. See Avery v. Midland County, . After a hearing the District Court agreed that the wards were unevenly apportioned and adopted a reapportionment plan suggested by the East Carroll police jury calling for the at-large election of members of both the police jury and the school board.2 The 1969 and 1970 elections were held under this plan.The proceedings were renewed in 1971 after the District Court, apparently sua sponte, instructed the East Carroll police jury and school board to file reapportionment plans revised in accordance with the 1970 census. In response, the jury and board resubmitted the at-large plan. Respondent Marshall was permitted to intervene on behalf of himself and all other black voters in East Carroll. Following a hearing the District Court again approved the multimember arrangement. The intervenor appealed,3 contending that at-large elections would tend to dilute the black vote in violation of the Fourteenth and Fifteenth Amendments and the Voting Rights Act of 1965.Over a dissent, a panel of the Court of Appeals affirmed,4 but on rehearing en banc, the court reversed.5 It found clearly erroneous the District Court's ruling that at-large elections would not diminish the black voting strength of East Carroll Parish. Relying upon White v. Regester, , it seemingly held that multimember districts were unconstitutional, unless their use would afford a minority greater opportunity for political participation, or unless the use of single-member districts would infringe protected rights.We granted certiorari, , and now affirm the judgment below, but without approval of the constitutional views expressed by the Court of Appeals.6 See Ashwander v. TVA, (Brandeis, J., concurring).The District Court, in adopting the multimember, at-large reapportionment plan, was silent as to the relative merits of a single-member arrangement. And the Court of Appeals, inexplicably in our view, declined to consider whether the District Court erred under Connor v. Johnson, , in endorsing a multimember plan, resting its decision instead upon constitutional grounds. We have frequently reaffirmed the rule that when United States district courts are put to the task of fashioning reapportionment plans to supplant concededly invalid state legislation, single-member districts are to be preferred absent unusual circumstances. Chapman v. Meier, ; Mahan v. Howell, ; Connor v. Williams, ; Connor v. Johnson, supra, at 692. As the en banc opinion of the Court of Appeals amply demonstrates, no special circumstances here dictate the use of multimember districts. Thus, we hold that in shaping remedial relief the District Court abused its discretion in not initially ordering a single-member reapportionment plan.On this basis, the judgment is Affirmed.

Certiorari dismissed.John H. Lederer argued the cause for petitioner. With him on the briefs were John Duncan Varda, Anthony R. Varda, and William C. Lewis, Jr.Mark E. Schantz, Solicitor General of Iowa, argued the cause for respondents. With him on the brief were Thomas J. Miller, Attorney General, Robert W. Goodwin, Special Assistant Attorney General, and Lester A. Paff, Assistant Attorney General.PER CURIAM.The writ of certiorari is dismissed as improvidently granted.JUSTICE O'CONNOR took no part in the consideration or decision of this case.JUSTICE WHITE, dissenting.We granted certiorari in this case to decide one very narrow question: "May a court, without articulating its rationale, summarily deny an application for attorneys' fees under 42 U.S.C. 1988?" Petitioner concedes that "not ... all cases require opinions," Brief for Petitioner 6, n. 6, but argues that with respect to an application for fees under 1988 "[t]he combination of discretion and a standard for the exercise of that discretion necessitates a statement of reasons to determine whether the decision is proper." Id, at 12. In my view, such an application is not sufficiently distinguishable from numerous other motions and applications that a court may concededly decide without opinion. Whether this is a good or bad method of exercising discretion in a particular case, or even in general, is not at issue in this case. Because I do not believe that there is any per se rule that a court may never summarily deny an application for fees, I would affirm the decision below.Accordingly, I dissent from the majority's disposition of this case.

Petitioners' powerplants have "cooling water intake structures" that threaten the environment by squashing against intake screens ("impingement") or suctioning into the cooling system ("entrainment") aquatic organisms from the water sources tapped to cool the plants. Thus, the facilities are subject to regulation under the Clean Water Act, which mandates that "[a]ny standard established pursuant to section 1311 ... or section 1316 ... and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." 33 U. S. C. §1326(b). Sections 1311 and 1316, in turn, employ a variety of "best technology" standards to regulate effluent discharge into the Nation's waters. The Environmental Protection Agency (EPA) promulgated the §1326(b) regulations at issue after nearly three decades of making the "best technology available" determination on a case-by-case basis. Its "Phase I" regulations govern new cooling water intake structures, while the "Phase II" rules at issue apply to certain large existing facilities. In the latter rules, the EPA set "national performance standards," requiring most Phase II facilities to reduce "impingement mortality for [aquatic organisms] by 80 to 95 percent from the calculation baseline," and requiring a subset of facilities to reduce entrainment of such organisms by "60 to 90 percent from [that] baseline." 40 CFR §125.94(b)(1), (2). However, the EPA expressly declined to mandate closed-cycle cooling systems, or equivalent reductions in impingement and entrainment, as it had done in its Phase I rules, in part because the cost of rendering existing facilities closed-cycle compliant would be nine times the estimated cost of compliance with the Phase II performance standards, and because other technologies could approach the performance of closed-cycle operation. The Phase II rules also permit site-specific variances from the national performance standards, provided that the permit-issuing authority imposes remedial measures that yield results "as close as practicable to the applicable performance standards." §125.94(a)(5)(i), (ii). Respondents — environmental groups and various States — challenged the Phase II regulations. Concluding that cost-benefit analysis is impermissible under 33 U. S. C. §1326(b), the Second Circuit found the site-specific cost-benefit variance provision unlawful and remanded the regulations to the EPA for it to clarify whether it had relied on cost-benefit analysis in setting the national performance standards. Held: The EPA permissibly relied on cost-benefit analysis in setting the national performance standards and in providing for cost-benefit variances from those standards as part of the Phase II regulations. Pp. 7-16. (a) The EPA's view that §1326(b)'s "best technology available for minimizing adverse environmental impact" standard permits consideration of the technology's costs and of the relationship between those costs and the environmental benefits produced governs if it is a reasonable interpretation of the statute — not necessarily the only possible interpretation, nor even the interpretation deemed most reasonable by the courts. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843-844. The Second Circuit took "best technology" to mean the technology that achieves the greatest reduction in adverse environmental impacts at a reasonable cost to the industry, but it may also describe the technology that most efficiently produces a good, even if it produces a lesser quantity of that good than other available technologies. This reading is not precluded by the phrase "for minimizing adverse environmental impact." Minimizing admits of degree and is not necessarily used to refer exclusively to the "greatest possible reduction." Other Clean Water Act provisions show that when Congress wished to mandate the greatest feasible reduction in water pollution, it used plain language, e.g., "elimination of discharges of all pollutants," §1311(b)(2)(A). Thus, §1326(b)'s use of the less ambitious goal of "minimizing adverse environmental impact" suggests that the EPA has some discretion to determine the extent of reduction warranted under the circumstances, plausibly involving a consideration of the benefits derived from reductions and the costs of achieving them. Pp. 7-9. (b) Considering §1326(b)'s text, and comparing it with the text and statutory factors applicable to parallel Clean Water Act provisions, prompts the conclusion that it was well within the bounds of reasonable interpretation for the EPA to conclude that cost-benefit analysis is not categorically forbidden. In the Phase II rules the EPA sought only to avoid extreme disparities between costs and benefits, limiting variances from Phase II's "national performance standards" to circumstances where the costs are "significantly greater than the benefits" of compliance. 40 CFR §125.94(a)(5)(ii). In defining "national performance standards" the EPA assumed the application of technologies whose benefits approach those estimated for closed-cycle cooling systems at a fraction of the cost. That the EPA has for over thirty years interpreted §1326(b) to permit a comparison of costs and benefits, while not conclusive, also tends to show that its interpretation is reasonable and hence a legitimate exercise of its discretion. Even respondents and the Second Circuit ultimately recognize that some comparison of costs and benefits is permitted. The Second Circuit held that §1326(b) mandates only those technologies whose costs can be reasonably borne by the industry. But whether it is reasonable to bear a particular cost can very well depend on the resulting benefits. Likewise, respondents concede that the EPA need not require that industry spend billions to save one more fish. This concedes the principle, and there is no statutory basis for limiting the comparison of costs and benefits to situations where the benefits are de minimis rather than significantly disproportionate. Pp. 9-16.475 F. 3d 83, reversed and remanded. Scalia, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Thomas, and Alito, JJ., joined. Breyer, J., filed an opinion concurring in part and dissenting in part. Stevens, J., filed a dissenting opinion, in which Souter and Ginsburg, JJ., joined.ENTERGY CORPORATION, PETITIONER07-588 v.RIVERKEEPER, INC., et al.PSEG FOSSIL LLC, et al., PETITIONERS07-589 v.RIVERKEEPER, INC., et al.UTILITY WATER ACT GROUP, PETITIONER07-597 v.RIVERKEEPER, INC., et al.on writs of certiorari to the united states court of appeals for the second circuit[April 1, 2009] Justice Scalia delivered the opinion of the Court. These cases concern a set of regulations adopted by the Environmental Protection Agency (EPA or agency) under §316(b) of the Clean Water Act, 33 U. S. C. §1326(b). 69 Fed. Reg. 41576 (2004). Respondents — environmental groups and various States1 — challenged those regulations, and the Second Circuit set them aside. Riverkeeper, Inc. v. EPA, 475 F. 3d 83, 99-100 (2007). The issue for our decision is whether, as the Second Circuit held, the EPA is not permitted to use cost-benefit analysis in determining the content of regulations promulgated under §1326(b).I Petitioners operate — or represent those who operate — large powerplants. In the course of generating power, those plants also generate large amounts of heat. To cool their facilities, petitioners employ "cooling water intake structures" that extract water from nearby water sources. These structures pose various threats to the environment, chief among them the squashing against intake screens (elegantly called "impingement") or suction into the cooling system ("entrainment") of aquatic organisms that live in the affected water sources. See 69 Fed. Reg. 41586. Accordingly, the facilities are subject to regulation under the Clean Water Act, 33 U. S. C. §1251 et seq., which mandates: "Any standard established pursuant to section 1311 of this title or section 1316 of this title and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." §1326(b).Sections 1311 and 1316, in turn, employ a variety of "best technology" standards to regulate the discharge of effluents into the Nation's waters. The §1326(b) regulations at issue here were promulgated by the EPA after nearly three decades in which the determination of the "best technology available for minimizing [cooling water intake structures'] adverse environmental impact" was made by permit-issuing authorities on a case-by-case basis, without benefit of a governing regulation. The EPA's initial attempt at such a regulation came to nought when the Fourth Circuit determined that the agency had failed to adhere to the procedural requirements of the Administrative Procedure Act. Appalachian Power Co. v. Train, 566 F. 2d 451, 457 (1977). The EPA withdrew the regulation, 44 Fed. Reg. 32956 (1979), and instead published "draft guidance" for use in implementing §1326(b)'s requirements via site-specific permit decisions under §1342. See EPA, Office of Water Enforcement Permits Div., Draft Guidance for Evaluating the Adverse Impact of Cooling Water Intake Structures on the Aquatic Environment: Section 316(b) P. L. 92-500, (May 1, 1977), at http://www.epa.gov/waterscience/316b/files/1977AEIguid.pdf, (all Internet materials as visited Mar. 30, 2009, and available in Clerk of Court's case file); 69 Fed. Reg. 41584 (describing system of case-by-case permits under the draft guidance). In 1995, the EPA entered into a consent decree which, as subsequently amended, set a multiphase timetable for the EPA to promulgate regulations under §1326(b). See Riverkeeper, Inc. v. Whitman, No. 93 Civ. 0314 (AGS), 2001 WL 1505497, *1 (SDNY, Nov. 27, 2001). In the first phase the EPA adopted regulations governing certain new, large cooling water intake structures. 66 Fed. Reg. 65256 (2001) (Phase I rules); see 40 CFR §§125.80(a), 125.81(a) (2008). Those rules require new facilities with water-intake flow greater than 10 million gallons per day to, among other things, restrict their inflow "to a level commensurate with that which can be attained by a closed-cycle recirculating cooling water system."2 §125.84(b)(1). New facilities with water-intake flow between 2 million and 10 million gallons per day may alternatively comply by, among other things, reducing the volume and velocity of water removal to certain levels. §125.84(c). And all facilities may alternatively comply by demonstrating, among other things, "that the technologies employed will reduce the level of adverse environmental impact ... to a comparable level" to what would be achieved by using a closed-cycle cooling system. §125.84(d). These regulations were upheld in large part by the Second Circuit in Riverkeeper, Inc. v. EPA, 358 F. 3d 174 (2004). The EPA then adopted the so-called "Phase II" rules at issue here.3 69 Fed. Reg. 41576. They apply to existing facilities that are point sources, whose primary activity is the generation and transmission (or sale for transmission) of electricity, and whose water-intake flow is more than 50 million gallons of water per day, at least 25 percent of which is used for cooling purposes. Ibid. Over 500 facilities, accounting for approximately 53 percent of the Nation's electric-power generating capacity, fall within Phase II's ambit. See EPA, Economic and Benefits Analysis for the Final Section 316(b) Phase II Existing Facilities Rule, A3-13, Table A3-4 (Feb. 2004), online at http://www. epa.gov/waterscience/316b/phase2/econbenefits/final/a3.pdf. Those facilities remove on average more than 214 billion gallons of water per day, causing impingement and entrainment of over 3.4 billion aquatic organisms per year. 69 Fed. Reg. 41586. To address those environmental impacts, the EPA set "national performance standards," requiring Phase II facilities (with some exceptions) to reduce "impingement mortality for all life stages of fish and shellfish by 80 to 95 percent from the calculation baseline"; a subset of facilities must also reduce entrainment of such aquatic organisms by "60 to 90 percent from the calculation baseline." 40 CFR §125.94(b)(1), (2); see §125.93 (defining "calculation baseline"). Those targets are based on the environmental improvements achievable through deployment of a mix of remedial technologies, 69 Fed. Reg. 41599, which the EPA determined were "commercially available and economically practicable," id., at 41602. In its Phase II rules, however, the EPA expressly declined to mandate adoption of closed-cycle cooling systems or equivalent reductions in impingement and entrainment, as it had done for new facilities subject to the Phase I rules. Id., at 41601. It refused to take that step in part because of the "generally high costs" of converting existing facilities to closed-cycle operation, and because "other technologies approach the performance of this option." Id., at 41605. Thus, while closed-cycle cooling systems could reduce impingement and entrainment mortality by up to 98 percent, id., at 41601, (compared to the Phase II targets of 80 to 95 percent impingement reduction), the cost of rendering all Phase II facilities closed-cycle-compliant would be approximately $3.5 billion per year, id., at 41605, nine times the estimated cost of compliance with the Phase II performance standards, id., at 41666. Moreover, Phase II facilities compelled to convert to closed-cycle cooling systems "would produce 2.4 percent to 4.0 percent less electricity even while burning the same amount of coal," possibly requiring the construction of "20 additional 400-MW plants ... to replace the generating capacity lost." Id., at 41605. The EPA thus concluded that "[a]lthough not identical, the ranges of impingement and entrainment reduction are similar under both options... . [Benefits of compliance with the Phase II rules] can approach those of closed-cycle recirculating at less cost with fewer implementation problems." Id., at 41606. The regulations permit the issuance of site-specific variances from the national performance standards if a facility can demonstrate either that the costs of compliance are "significantly greater than" the costs considered by the agency in setting the standards, 40 CFR §125.94(a)(5)(i), or that the costs of compliance "would be significantly greater than the benefits of complying with the applicable performance standards," §125.94(a)(5)(ii). Where a variance is warranted, the permit-issuing authority must impose remedial measures that yield results "as close as practicable to the applicable performance standards." §125.94(a)(5)(i), (ii). Respondents challenged the EPA's Phase II regulations, and the Second Circuit granted their petition for review and remanded the regulations to the EPA. The Second Circuit identified two ways in which the EPA could permissibly consider costs under 33 U. S. C. §1326(b): (1) in determining whether the costs of remediation "can be 'reasonably borne' by the industry," and (2) in determining which remedial technologies are the most cost-effective, that is, the technologies that reach a specified level of benefit at the lowest cost. 475 F. 3d, at 99-100. See also id., at 98, and n. 10. It concluded, however, that cost-benefit analysis, which "compares the costs and benefits of various ends, and chooses the end with the best net benefits," id., at 98, is impermissible under §1326(b), id., at 100. The Court of Appeals held the site-specific cost-benefit variance provision to be unlawful. Id., at 114. Finding it unclear whether the EPA had relied on cost-benefit analysis in setting the national performance standards, or had only used cost-effectiveness analysis, it remanded to the agency for clarification of that point. Id., at 104-105. (The remand was also based on other grounds which are not at issue here.) The EPA suspended operation of the Phase II rules pending further rulemaking. 72 Fed. Reg. 37107 (2007). We then granted certiorari limited to the following question: "Whether [§1326(b)] ... authorizes the [EPA] to compare costs with benefits in determining 'the best technology available for minimizing adverse environmental impact' at cooling water intake structures." ___ (2008).II In setting the Phase II national performance standards and providing for site-specific cost-benefit variances, the EPA relied on its view that §1326(b)'s "best technology available" standard permits consideration of the technology's costs, 69 Fed. Reg. 41626, and of the relationship between those costs and the environmental benefits produced, id., at 41603. That view governs if it is a reasonable interpretation of the statute — not necessarily the only possible interpretation, nor even the interpretation deemed most reasonable by the courts. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 843-844 (1984).4 As we have described, §1326(b) instructs the EPA to set standards for cooling water intake structures that reflect "the best technology available for minimizing adverse environmental impact." The Second Circuit took that language to mean the technology that achieves the greatest reduction in adverse environmental impacts at a cost that can reasonably be borne by the industry. 475 F. 3d, at 99-100. That is certainly a plausible interpretation of the statute. The "best" technology — that which is "most advantageous," Webster's New International Dictionary 258 (2d ed. 1953)--may well be the one that produces the most of some good, here a reduction in adverse environmental impact. But "best technology" may also describe the technology that most efficiently produces some good. In common parlance one could certainly use the phrase "best technology" to refer to that which produces a good at the lowest per-unit cost, even if it produces a lesser quantity of that good than other available technologies. Respondents contend that this latter reading is precluded by the statute's use of the phrase "for minimizing adverse environmental impact." Minimizing, they argue, means reducing to the smallest amount possible, and the "best technology available for minimizing adverse environmental impacts," must be the economically feasible technology that achieves the greatest possible reduction in environmental harm. Brief for Respondents Riverkeeper, Inc. et al. 25-26. But "minimize" is a term that admits of degree and is not necessarily used to refer exclusively to the "greatest possible reduction." For example, elsewhere in the Clean Water Act, Congress declared that the procedures implementing the Act "shall encourage the drastic minimization of paperwork and interagency decision procedures." 33 U. S. C. §1251(f). If respondents' definition of the term "minimize" is correct, the statute's use of the modifier "drastic" is superfluous. Other provisions in the Clean Water Act also suggest the agency's interpretation. When Congress wished to mandate the greatest feasible reduction in water pollution, it did so in plain language: The provision governing the discharge of toxic pollutants into the Nation's waters requires the EPA to set "effluent limitations [which] shall require the elimination of discharges of all pollutants if the Administrator finds ... that such elimination is technologically and economically achievable," §1311(b)(2)(A) (emphasis added). See also §1316(a)(1) (mandating "where practicable, a standard [for new point sources] permitting no discharge of pollutants" (emphasis added)). Section 1326(b)'s use of the less ambitious goal of "minimizing adverse environmental impact" suggests, we think, that the agency retains some discretion to determine the extent of reduction that is warranted under the circumstances. That determination could plausibly involve a consideration of the benefits derived from reductions and the costs of achieving them. Cf. 40 CFR §125.83 (defining "minimize" for purposes of the Phase I regulations as "reduc[ing] to the smallest amount, extent, or degree reasonably possible"). It seems to us, therefore, that the phrase "best technology available," even with the added specification "for minimizing adverse environmental impact," does not unambiguously preclude cost-benefit analysis.5 Respondents' alternative (and, alas, also more complex) argument rests upon the structure of the Clean Water Act. The Act provided that during its initial implementation period existing "point sources"--discrete conveyances from which pollutants are or may be discharged, 33 U. S. C. §1362(14)--were subject to "effluent limitations ... which shall require the application of the best practicable control technology currently available." §1311(b)(1)(A) (emphasis added). (We shall call this the "BPT" test.) Following that transition period, the Act initially mandated adoption, by July 1, 1983 (later extended to March 31, 1989), of stricter effluent limitations requiring "application of the best available technology economically achievable for such category or class, which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants." §1311(b)(2)(A) (emphasis added); see EPA v. National Crushed Stone Assn., 449 U. S. 64, 69-70 (1980). (We shall call this the "BATEA" test.) Subsequent amendment limited application of this standard to toxic and nonconventional pollutants, and for the remainder established a (presumably laxer) test of "best conventional-pollutant control technology." §1311(b)(2)(E).6 (We shall call this "BCT.") Finally, §1316 subjected certain categories of new point sources to "the greatest degree of effluent reduction which the Administrator determines to be achievable through application of the best available demonstrated control technology." §1316(a)(1) (emphasis added); §1316(b)(1)(B). (We shall call this the "BADT" test.) The provision at issue here, applicable not to effluents but to cooling water intake structures, requires, as we have described, "the best technology available for minimizing adverse environmental impact," §1326(b) (emphasis added). (We shall call this the "BTA" test.) The first four of these tests are elucidated by statutory factor lists that guide their implementation. To take the standards in (presumed) order of increasing stringency, see Crushed Stone, supra, at 69-70: In applying the BPT test the EPA is instructed to consider, among other factors, "the total cost of application of technology in relation to the effluent reduction benefits to be achieved." §1314(b)(1)(B). In applying the BCT test it is instructed to consider "the reasonableness of the relationship between the costs of attaining a reduction in effluents and the effluent reduction benefits derived." §1314(b)(4)(B) (emphasis added). And in applying the BATEA and BADT tests the EPA is instructed to consider the "cost of achieving such effluent reduction." §§1314(b)(2)(B), 1316(b)(1)(B). There is no such elucidating language applicable to the BTA test at issue here. To facilitate comparison, the texts of these five tests, the clarifying factors applicable to them, and the entities to which they apply are set forth in the Appendix, infra. The Second Circuit, in rejecting the EPA's use of cost-benefit analysis, relied in part on the propositions that (1) cost-benefit analysis is precluded under the BATEA and BADT tests; and (2) that, insofar as the permissibility of cost-benefit analysis is concerned, the BTA test (the one at issue here) is to be treated the same as those two. See 475 F. 3d, at 98. It is not obvious to us that the first of these propositions is correct, but we need not pursue that point, since we assuredly do not agree with the second. It is certainly reasonable for the agency to conclude that the BTA test need not be interpreted to permit only what those other two tests permit. Its text is not identical to theirs. It has the relatively modest goal of "minimizing adverse environmental impact" as compared with the BATEA's goal of "eliminating the discharge of all pollutants." And it is unencumbered by specified statutory factors of the sort provided for those other two tests, which omission can reasonably be interpreted to suggest that the EPA is accorded greater discretion in determining its precise content. Respondents and the dissent argue that the mere fact that §1326(b) does not expressly authorize cost-benefit analysis for the BTA test, though it does so for two of the other tests, displays an intent to forbid its use. This surely proves too much. For while it is true that two of the other tests authorize cost-benefit analysis, it is also true that all four of the other tests expressly authorize some consideration of costs. Thus, if respondents' and the dissent's conclusion regarding the import of §1326(b)'s silence is correct, it is a fortiori true that the BTA test permits no consideration of cost whatsoever, not even the "cost-effectiveness" and "feasibility" analysis that the Second Circuit approved, see supra, at 6, that the dissent would approve, post, at 1-2, and that respondents acknowledge. The inference that respondents and the dissent would draw from the silence is, in any event, implausible, as §1326(b) is silent not only with respect to cost-benefit analysis but with respect to all potentially relevant factors. If silence here implies prohibition, then the EPA could not consider any factors in implementing §1326(b)--an obvious logical impossibility. It is eminently reasonable to conclude that §1326(b)'s silence is meant to convey nothing more than a refusal to tie the agency's hands as to whether cost-benefit analysis should be used, and if so to what degree. Contrary to the dissent's suggestion, see post, at 3-4, our decisions in Whitman v. American Trucking Assns., Inc., 531 U. S. 457 (2001), and American Textile Mfrs. Institute, Inc. v. Donovan, 452 U. S. 490 (1981), do not undermine this conclusion. In American Trucking, we held that the text of §109 of the Clean Air Act, "interpreted in its statutory and historical context ... unambiguously bars cost considerations" in setting air quality standards under that provision. 531 U. S., at 471. The relevant "statutory context" included other provisions in the Clean Air Act that expressly authorized consideration of costs, whereas §109 did not. Id., at 467-468. American Trucking thus stands for the rather unremarkable proposition that sometimes statutory silence, when viewed in context, is best interpreted as limiting agency discretion. For the reasons discussed earlier, §1326(b)'s silence cannot bear that interpretation. In American Textile, the Court relied in part on a statute's failure to mention cost-benefit analysis in holding that the relevant agency was not required to engage in cost-benefit analysis in setting certain health and safety standards. 452 U. S., at 510-512. But under Chevron, that an agency is not required to do so does not mean that an agency is not permitted to do so. This extended consideration of the text of §1326(b), and comparison of that with the text and statutory factors applicable to four parallel provisions of the Clean Water Act, lead us to the conclusion that it was well within the bounds of reasonable interpretation for the EPA to conclude that cost-benefit analysis is not categorically forbidden. Other arguments may be available to preclude such a rigorous form of cost-benefit analysis as that which was prescribed under the statute's former BPT standard, which required weighing "the total cost of application of technology" against "the ... benefits to be achieved." See, supra, at 10. But that question is not before us. In the Phase II requirements challenged here the EPA sought only to avoid extreme disparities between costs and benefits. The agency limited variances from the Phase II "national performance standards" to circumstances where the costs are "significantly greater than the benefits" of compliance. 40 CFR §125.94(a)(5)(ii). In defining the "national performance standards" themselves the EPA assumed the application of technologies whose benefits "approach those estimated" for closed-cycle cooling systems at a fraction of the cost: $389 million per year, 69 Fed. Reg. 41666, as compared with (1) at least $3.5 billion per year to operate compliant closed-cycle cooling systems, id., at 41605 (or $1 billion per year to impose similar requirements on a subset of Phase II facilities, id., at 41606), and (2) significant reduction in the energy output of the altered facilities, id., at 41605. And finally, EPA's assessment of the relatively meager financial benefits of the Phase II regulations that it adopted — reduced impingement and entrainment of 1.4 billion aquatic organisms, id., at 41661, Exh. XII-6, with annualized use-benefits of $83 million, id., at 41662, and non-use benefits of indeterminate value, id., at 41660-41661 — when compared to annual costs of $389 million, demonstrates quite clearly that the agency did not select the Phase II regulatory requirements because their benefits equaled their costs. While not conclusive, it surely tends to show that the EPA's current practice is a reasonable and hence legitimate exercise of its discretion to weigh benefits against costs that the agency has been proceeding in essentially this fashion for over 30 years. See Alaska Dept. of Environmental Conservation v. EPA, 540 U. S. 461, 487 (2004); Barnhart v. Walton, 535 U. S. 212, 219-220 (2002). As early as 1977, the agency determined that, while §1326(b) does not require cost-benefit analysis, it is also not reasonable to "interpret Section [1326(b)] as requiring use of technology whose cost is wholly disproportionate to the environmental benefit to be gained." In re Public Service Co. of New Hampshire, 1 E. A. D. 332, 340 (1977). See also In re Central Hudson Gas and Electric Corp., EPA Decision of the General Counsel, NPDES Permits, No. 63, pp. 371, 381 (July 29, 1977) ("EPA ultimately must demonstrate that the present value of the cumulative annual cost of modifications to cooling water intake structures is not wholly out of proportion to the magnitude of the estimated environmental gains"); Seacoast Anti-Pollution League v. Costle, 597 F. 2d 306, 311 (CA1 1979) (rejecting challenge to an EPA permit decision that was based in part on the agency's determination that further restrictions would be " 'wholly disproportionate to any environmental benefit' "). While the EPA's prior "wholly disproportionate" standard may be somewhat different from its current "significantly greater than" standard, there is nothing in the statute that would indicate that the former is a permissible interpretation while the latter is not. Indeed, in its review of the EPA's Phase I regulations, the Second Circuit seemed to recognize that §1326(b) permits some form of cost-benefit analysis. In considering a challenge to the EPA's rejection of dry cooling systems7 as the "best technology available" for Phase I facilities the Second Circuit noted that "while it certainly sounds substantial that dry cooling is 95 percent more effective than closed-cycle cooling, it is undeniably relevant that that difference represents a relatively small improvement over closed-cycle cooling at a very significant cost." Riverkeeper, 358 F. 3d, at 194, n. 22. And in the decision below rejecting the use of cost-benefit analysis in the Phase II regulations, the Second Circuit nonetheless interpreted "best technology available" as mandating only those technologies that can "be reasonably borne by the industry." 475 F. 3d, at 99. But whether it is "reasonable" to bear a particular cost may well depend on the resulting benefits; if the only relevant factor was the feasibility of the costs, their reasonableness would be irrelevant. In the last analysis, even respondents ultimately recognize that some form of cost-benefit analysis is permissible. They acknowledge that the statute's language is "plainly not so constricted as to require EPA to require industry petitioners to spend billions to save one more fish or plankton." Brief for Respondents Riverkeeper, Inc. et al. 29. This concedes the principle — the permissibility of at least some cost-benefit analysis — and we see no statutory basis for limiting its use to situations where the benefits are de minimis rather than significantly disproportionate.* * * We conclude that the EPA permissibly relied on cost-benefit analysis in setting the national performance standards and in providing for cost-benefit variances from those standards as part of the Phase II regulations. The Court of Appeals' reliance in part on the agency's use of cost-benefit analysis in invalidating the site-specific cost-benefit variance provision, 475 F. 3d, at 114, was therefore in error, as was its remand of the national performance standards for clarification of whether cost-benefit analysis was impermissibly used, id., at 104-105. We of course express no view on the remaining bases for the Second Circuit's remand which did not depend on the permissibility of cost-benefit analysis. See id., at 108, 110, 113, 115, 117, 120.8 The judgment of the Court of Appeals is reversed, and the cases are remanded for further proceedings consistent with this opinion.It is so ordered.APPENDIX TO OPINION OF THE COURTStatutoryStandardStatutorily Mandated FactorsEntitiesSubject to RegulationBPT:"[E]ffluent limitations ... which shall require the application of the best practicable control technology currently available." 33 U. S. C. §1311(b)(1)(A) (emphasis added)."Factors relating to the assessment of best practicable control technology currently available ... shall include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved." 33 U. S. C. §1314(b)(1)(B).Existing point sources during the Clean Water Act's initial implementation phase.BCT:"[E]ffluent limitations ... which shall require application of the best conventional pollutant control technology." 33 U. S. C. §1311(b)(2)(E) (emphasis added)."Factors relating to the assessment of best conventional pollutant control technology ... shall include consideration of the reasonableness of the relationship between the costs of attaining a reduction in effluents and the effluent reduction benefits derived." 33 U. S. C. §1314(b)(4)(B).Existing point sources that discharge "conventional pollutants" as defined by the EPA under 33 U. S. C. §1314(a)(4).BATEA:"[E]ffluent limitations ... which ... shall require application of the best available technology economically achievable ... which will result in reasonable further progress toward the national goal of eliminating the discharge of all pollutants." 33 U. S. C. §1311(b)(2)(A) (emphasis added)."Factors relating to the assessment of best available technology shall take into account ... the cost of achieving such effluent reduction." 33 U. S. C. §1314(b)(2)(B).Existing point sources that discharge toxic pollutants and non-conventional pollutants.BADT:"[A] standard for the control of the discharge of pollutants which reflects the greatest degree of effluent reduction with the Administrator determines to be achievable through application of the best available demonstrated control technology." 33 U. S. C. §1316(a)(1) (emphasis added)."[T]he Administrator shall take into consideration the cost of achieving such effluent reduction, and any non-water quality environmental impact and energy requirements." 33 U. S. C. §1316(b)(1)(B).New point sources within the categories of sources identified by the EPA under 33 U. S. C. §1316(b)(1)(A).BTA:"Any standard ... applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." 33 U. S. C. §1326(b).N/APoint sources that operate cooling water intake structures.ENTERGY CORPORATION, PETITIONER07-588 v.RIVERKEEPER, INC., et al.PSEG FOSSIL LLC, et al., PETITIONERS07-589 v.RIVERKEEPER, INC., et al.UTILITY WATER ACT GROUP, PETITIONER07-597 v.RIVERKEEPER, INC., et al.on writs of certiorari to the united states court of appeals for the second circuit[April 1, 2009] Justice Stevens, with whom Justice Souter and Justice Ginsburg join, dissenting. Section 316(b) of the Clean Water Act (CWA), 33 U. S. C. §1326(b), which governs industrial powerplant water intake structures, provides that the Environmental Protection Agency (EPA or Agency) "shall require" that such structures "reflect the best technology available for minimizing adverse environmental impact." The EPA has interpreted that mandate to authorize the use of cost-benefit analysis in promulgating regulations under §316(b). For instance, under the Agency's interpretation, technology that would otherwise qualify as the best available need not be used if its costs are "significantly greater than the benefits" of compliance. 40 CFR §125.94(a)(5)(ii) (2008). Like the Court of Appeals, I am convinced that the EPA has misinterpreted the plain text of §316(b). Unless costs are so high that the best technology is not "available," Congress has decided that they are outweighed by the benefits of minimizing adverse environmental impact. Section 316(b) neither expressly nor implicitly authorizes the EPA to use cost-benefit analysis when setting regulatory standards; fairly read, it prohibits such use.I As typically performed by the EPA, cost-benefit analysis requires the Agency to first monetize the costs and benefits of a regulation, balance the results, and then choose the regulation with the greatest net benefits. The process is particularly controversial in the environmental context in which a regulation's financial costs are often more obvious and easier to quantify than its environmental benefits. And cost-benefit analysis often, if not always, yields a result that does not maximize environmental protection. For instance, although the EPA estimated that water intake structures kill 3.4 billion fish and shellfish each year,1 see 69 Fed. Reg. 41586, the Agency struggled to calculate the value of the aquatic life that would be protected under its §316(b) regulations, id., at 41661. To compensate, the EPA took a shortcut: Instead of monetizing all aquatic life, the Agency counted only those species that are commercially or recreationally harvested, a tiny slice (1.8 percent to be precise) of all impacted fish and shellfish. This narrow focus in turn skewed the Agency's calculation of benefits. When the EPA attempted to value all aquatic life, the benefits measured $735 million.2 But when the EPA decided to give zero value to the 98.2 percent of fish not commercially or recreationally harvested, the benefits calculation dropped dramatically — to $83 million. Id., at 41666. The Agency acknowledged that its failure to monetize the other 98.2 percent of affected species " 'could result in serious misallocation of resources,' " id., at 41660, because its "comparison of complete costs and incomplete benefits does not provide an accurate picture of net benefits to society."3 Because benefits can be more accurately monetized in some industries than in others, Congress typically decides whether it is appropriate for an agency to use cost-benefit analysis in crafting regulations. Indeed, this Court has recognized that "[w]hen Congress has intended that an agency engage in cost-benefit analysis, it has clearly indicated such intent on the face of the statute." American Textile Mfrs. Institute, Inc. v. Donovan, 452 U. S. 490, 510 (1981). Accordingly, we should not treat a provision's silence as an implicit source of cost-benefit authority, particularly when such authority is elsewhere expressly granted and it has the potential to fundamentally alter an agency's approach to regulation. Congress, we have noted, "does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions — it does not, one might say, hide elephants in mouseholes." Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 467-468 (2001). When interpreting statutory silence in the past, we have sought guidance from a statute's other provisions. Evidence that Congress confronted an issue in some parts of a statute, while leaving it unaddressed in others, can demonstrate that Congress meant its silence to be decisive. We concluded as much in American Trucking. In that case, the Court reviewed the EPA's claim that §109 of the Clean Air Act (CAA), 42 U. S. C. §7409(a) (2000 ed.), authorized the Agency to consider implementation costs in setting ambient air quality standards. We read §109, which was silent on the matter, to prohibit Agency reliance on cost considerations. After examining other provisions in which Congress had given the Agency authority to consider costs, the Court "refused to find implicit in ambiguous sections of the CAA an authorization to consider costs that has elsewhere, and so often, been expressly granted." 531 U. S., at 467. Studied silence, we thus concluded, can be as much a prohibition as an explicit "no." Further motivating the Court in American Trucking was the fact that incorporating implementation costs into the Agency's calculus risked countermanding Congress' decision to protect public health. The cost of implementation, we said, "is both so indirectly related to public health and so full of potential for canceling the conclusions drawn from direct health effects that it would surely have been expressly mentioned in [the text] had Congress meant it to be considered." Id., at 469. American Trucking's approach should have guided the Court's reading of §316(b). Nowhere in the text of §316(b) does Congress explicitly authorize the use of cost-benefit analysis as it does elsewhere in the CWA. And the use of cost-benefit analysis, like the consideration of implementation costs in American Trucking, "pad[s]" §316(b)'s environmental mandate with tangential economic efficiency concerns. Id., at 468. Yet the majority fails to follow American Trucking despite that case's obvious relevance to our inquiry.II In 1972, Congress amended the CWA to strike a careful balance between the country's energy demands and its desire to protect the environment. The Act required industry to adopt increasingly advanced technology capable of mitigating its detrimental environmental impact. Not all point sources were subject to strict rules at once. Existing plants were granted time to retrofit with the best technology while new plants were required to incorporate such technology as a matter of design. Although Congress realized that technology standards would necessarily put some firms out of business, see EPA v. National Crushed Stone Assn., 449 U. S. 64, 79 (1980), the statute's steady march was toward stricter rules and potentially higher costs. Section §316(b) was an integral part of the statutory scheme. The provision instructs that "[a]ny standard established pursuant to section 1311 of this title or section 1316 of this title and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact." 33 U. S. C. §1326(b) (2006 ed.) (emphasis added).4 The "best technology available," or "BTA," standard delivers a clear command: To minimize the adverse environmental impact of water intake structures, the EPA must require industry to adopt the best technology available. Based largely on the observation that §316(b)'s text offers little guidance and therefore delegates some amount of gap-filling authority to the EPA, the Court concludes that the Agency has discretion to rely on cost-benefit analysis. See ante, at 11-12. The Court assumes that, by not specifying how the EPA is to determine BTA, Congress intended to give considerable discretion to the EPA to decide how to proceed. Silence, in the majority's view, represents ambiguity and an invitation for the Agency to decide for itself which factors should govern its regulatory approach. The appropriate analysis requires full consideration of the CWA's structure and legislative history to determine whether Congress contemplated cost-benefit analysis and, if so, under what circumstances it directed the EPA to utilize it. This approach reveals that Congress granted the EPA authority to use cost-benefit analysis in some contexts but not others, and that Congress intend to control, not delegate, when cost-benefit analysis should be used. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-843 (1984).5 Powerful evidence of Congress' decision not to authorize cost-benefit analysis in the BTA standard lies in the series of standards adopted to regulate the outflow, or effluent, from industrial powerplants. Passed at the same time as the BTA standard at issue here, the effluent limitation standards imposed increasingly strict technology requirements on industry. In each effluent limitation provision, Congress distinguished its willingness to allow the EPA to consider costs from its willingness to allow the Agency to conduct a cost-benefit analysis. And to the extent Congress permitted cost-benefit analysis, its use was intended to be temporary and exceptional. The first tier of technology standards applied to existing plants — facilities for which retrofitting would be particularly costly. Congress required these plants to adopt "effluent limitations ... which shall require the application of the best practicable control technology currently available." 33 U. S. C. §1311(b)(1)(A). Because this "best practicable," or "BPT," standard was meant to ease industry's transition to the new technology-based regime, Congress gave BPT two unique features: First, it would be temporary, remaining in effect only until July 1, 1983.6 Second, it specified that the EPA was to conduct a cost-benefit analysis in setting BPT requirements by considering "the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application."7 §1314(b)(1)(B). Permitting cost-benefit analysis in BPT gave the EPA the ability to cushion the new technology requirement. For a limited time, a technology with costs that exceeded its benefits would not be considered "best." The second tier of technology standards required existing powerplants to adopt the "best available technology economically achievable" to advance "the national goal of eliminating the discharge of all pollutants." §1311(b)(2)(A). In setting this "best available technology," or "BAT,"8 standard, Congress gave the EPA a notably different command for deciding what technology would qualify as "best": The EPA was to consider, among other factors, "the cost of achieving such effluent reduction," but Congress did not grant it authority to balance costs with the benefits of stricter regulation. §1314(b)(2)(B). Indeed, in Crushed Stone this Court explained that the difference between BPT and BAT was the existence of cost-benefit authority in the first and the absence of that authority in the second. See 449 U. S., at 71 ("Similar directions are given the Administrator for determining effluent reductions attainable from the BAT except that in assessing BAT total cost is no longer to be considered in comparison to effluent reduction benefits"). The BAT standard's legislative history strongly supports the view that Congress purposefully withheld cost-benefit authority for this tier of regulation. See ibid., n. 10. The House of Representatives and the Senate split over the role cost-benefit analysis would play in the BAT provision. The House favored the tool, see H. R. Rep. No. 92-911, p. 107 (1972), 1 Leg. Hist. 794, while the Senate rejected it, see 2 id., at 1183; id., at 1132. The Senate view ultimately prevailed in the final legislation, resulting in a BAT standard that was "not subject to any test of cost in relation to effluent reduction benefits or any form of cost/benefit analysis." 3 Legislative History of the Clean Water Act of 1977: A Continuation of the Legislative History of the Federal Water Pollution Control Act (Committee Print compiled for the Senate Committee on Environment and Public Works by the Library of Congress), Ser. No. 95-14, p. 427 (1978). The third and strictest regulatory tier was reserved for new point sources — facilities that could incorporate technology improvements into their initial design. These new facilities were required to adopt "the best available demonstrated control technology," or "BADT," which Congress described as "a standard ... which reflect[s] the greatest degree of effluent reduction." §1316(a)(1). In administering BADT, Congress directed the EPA to consider "the cost of achieving such effluent reduction." §1316(b)(1)(B). But because BADT was meant to be the most stringent standard of all, Congress made no mention of cost-benefit analysis. Again, the silence was intentional. The House's version of BADT originally contained an exemption for point sources for which "the economic, social, and environmental costs bear no reasonable relationship to the economic, social, and environmental benefit to be obtained." 1 Leg. Hist. 798. That this exemption did not appear in the final legislation demonstrates that Congress considered, and rejected, reliance on cost-benefit analysis for BADT. It is in this light that the BTA standard regulating water intake structures must be viewed. The use of cost-benefit analysis was a critical component of the CWA's structure and a key concern in the legislative process. We should therefore conclude that Congress intended to forbid cost-benefit analysis in one provision of the Act in which it was silent on the matter when it expressly authorized its use in another.9 See, e.g., Allison Engine Co. v. United States ex rel. Sanders, 553 U. S. ___, ___ (2008) (slip op., at 7-8); Russello v. United States, 464 U. S. 16, 23 (1983) ("[W]here Congress includes particular language in one section of a statute but omits it in another ... , it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion" (internal quotation marks omitted)). This is particularly true given Congress' decision that cost-benefit analysis would play a temporary and exceptional role in the CWA to help existing plants transition to the Act's ambitious environmental standards.10 Allowing cost-benefit analysis in the BTA standard, a permanent mandate applicable to all powerplants, serves no such purpose and instead fundamentally weakens the provision's mandate.11 Accordingly, I would hold that the EPA is without authority to perform cost-benefit analysis in setting BTA standards. To the extent the EPA relied on cost-benefit analysis in establishing its BTA regulations,12 that action was contrary to law, for Congress directly foreclosed such reliance in the statute itself.13 Chevron, 467 U. S., at 843. Because we granted certiorari to decide only whether the EPA has authority to conduct cost-benefit analysis, there is no need to define the universe of considerations upon which the EPA can properly rely in administering the BTA standard. I would leave it to the Agency to decide how to proceed in the first instance.III Because the Court unsettles the scheme Congress established, I respectfully dissent.ENTERGY CORPORATION, PETITIONER07-588 v.RIVERKEEPER, INC., et al.PSEG FOSSIL LLC, et al., PETITIONERS07-589 v.RIVERKEEPER, INC., et al.UTILITY WATER ACT GROUP, PETITIONER07-597 v.RIVERKEEPER, INC., et al.on writs of certiorari to the united states court of appeals for the second circuit[April 1, 2009] Justice Breyer, concurring in part and dissenting in part. I agree with the Court that the relevant statutory language authorizes the Environmental Protection Agency (EPA) to compare costs and benefits. Ante, at 7-13. Nonetheless the drafting history and legislative history of related provisions, Pub. L. 92-500, §§301, 304, 86 Stat. 844, 850, as amended, 33 U. S. C. §§1311, 1314, makes clear that those who sponsored the legislation intended the law's text to be read as restricting, though not forbidding, the use of cost-benefit comparisons. And I would apply that text accordingly. I Section 301 provides that, not later than 1977, effluent limitations for point sources shall require the application of "best practicable control technology," §301(b)(1)(A), 86 Stat. 845 (emphasis added); and that, not later than 1983 (later extended to 1989), effluent limitations for categories and classes of point sources shall require application of the "best available technology economically achievable," §301(b)(2)(A), ibid. (emphasis added). Section 304(b), in turn, identifies the factors that the Agency shall take into account in determining (1) "best practicable control technology" and (2) "best available technology." 86 Stat. 851 (emphasis added). With respect to the first, the statute provides that the factors taken into account by the Agency "shall include consideration of the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application ... and such other factors as the Administrator deems appropriate." §304(b)(1)(B), ibid. With respect to the second, the statute says that the Agency "shall take into account ... the cost of achieving such effluent reduction" and "such other factors as the Administrator deems appropriate." §304(b)(2)(B), ibid. The drafting history makes clear that the statute reflects a compromise. In the House version of the legislation, the Agency was to consider "the cost and the economic, social, and environmental impact of achieving such effluent reduction" when determining both "best practicable" and "best available" technology. H. R. 11896, 92d Cong., 2d Sess., §§304(b)(1)(B), (b)(2)(B) (1972) (as reported from committee). The House Report explained that the "best available technology" standard was needed — as opposed to mandating the elimination of discharge of pollutants — because "the difference in the cost of 100 percent elimination of pollutants as compared to the cost of removal of 97-99 percent of the pollutants in an effluent can far exceed any reasonable benefit to be achieved. In most cases, the cost of removal of the last few percentage points increases expo[n]entially." H. R. Rep. No. 92-911, p. 103 (1972). In the Senate version, the Agency was to consider "the cost of achieving such effluent reduction" when determining both "best practicable" and "best available" technology. S. 2770, 92d Cong., 1st Sess., §§304(b)(1)(B), (b)(2)(B) (1971) (as reported from committee). The Senate Report explains that "the technology must be available at a cost ... which the Administrator determines to be reasonable." S. Rep. No. 92-414, p. 52 (1971) (hereinafter S. Rep.). But it said nothing about comparing costs and benefits. The final statute reflects a modification of the House's language with respect to "best practicable," and an adoption of the Senate's language with respect to "best available." S. Conf. Rep. No. 92-1236, pp. 124-125 (1972). The final statute does not require the Agency to compare costs to benefits when determining "best available technology," but neither does it expressly forbid such a comparison. The strongest evidence in the legislative history supporting the respondents' position — namely, that Congress intended to forbid comparisons of costs and benefits when determining the "best available technology"--can be found in a written discussion of the Act's provisions distributed to the Senate by Senator Edmund Muskie, the Act's principal sponsor, when he submitted the Conference Report for the Senate's consideration. 118 Cong. Rec. 33693 (1972). The relevant part of that discussion points out that, as to "best practicable technology," the statute requires application of a "balancing test between total cost and effluent reduction benefits." Id., at 33696; see §304(b)(1)(B). But as to "best available technology," it states: "While cost should be a factor in the Administrator's judgment, no balancing test will be required." Ibid.; see §304(b)(2)(B). And Senator Muskie's discussion later speaks of the agency "evaluat[ing] ... what needs to be done" to eliminate pollutant discharge and "what is achievable," both "without regard to cost." Ibid. As this language suggests, the Act's sponsors had reasons for minimizing the EPA's investigation of, and reliance upon, cost-benefit comparisons. The preparation of formal cost-benefit analyses can take too much time, thereby delaying regulation. And the sponsors feared that such analyses would emphasize easily quantifiable factors over more qualitative factors (particularly environmental factors, for example, the value of preserving non-marketable species of fish). See S. Rep., at 47. Above all, they hoped that minimizing the use of cost-benefit comparisons would force the development of cheaper control technologies; and doing so, whatever the initial inefficiencies, would eventually mean cheaper, more effective cleanup. See id., at 50-51. Nonetheless, neither the sponsors' language nor the underlying rationale requires the Act to be read in a way that would forbid cost-benefit comparisons. Any such total prohibition would be difficult to enforce, for every real choice requires a decisionmaker to weigh advantages against disadvantages, and disadvantages can be seen in terms of (often quantifiable) costs. Moreover, an absolute prohibition would bring about irrational results. As the respondents themselves say, it would make no sense to require plants to "spend billions to save one more fish or plankton." Brief for Respondents Riverkeeper, Inc., et al. 29. That is so even if the industry might somehow afford those billions. And it is particularly so in an age of limited resources available to deal with grave environmental problems, where too much wasteful expenditure devoted to one problem may well mean considerably fewer resources available to deal effectively with other (perhaps more serious) problems. Thus Senator Muskie used nuanced language, which one can read as leaving to the Agency a degree of authority to make cost-benefit comparisons in a manner that is sensitive both to the need for such comparisons and to the concerns that the law's sponsors expressed. The relevant statement begins by listing various factors that the statute requires the Administrator to take into account when applying the phrase "practicable" to "classes and categories." 118 Cong. Rec. 33696. It states that, when doing so, the Administrator must apply (as the statute specifies) a "balancing test between total cost and effluent reduction benefits." Ibid. At the same time, it seeks to reduce the likelihood that the Administrator will place too much weight upon high costs by adding that the balancing test "is intended to limit the application of technology only where the additional degree of effluent reduction is wholly out of proportion to the costs of achieving" a "marginal level of reduction." Ibid. Senator Muskie's statement then considers the "different test" that the statute requires the Administrator to apply when determining the " 'best available' " technology. Ibid. (emphasis added). Under that test, the Administrator "may consider a broader range of technological alternatives." Ibid. And in determining what is " 'best available' for a category or class, the Administrator is expected to apply the same principles involved in making the determination of 'best practicable' ... except as to cost-benefit analysis." Ibid. (emphasis added). That is, "[w]hile cost should be a factor ... no balancing test will be required." Ibid. (emphasis added). Rather, "[t]he Administrator will be bound by a test of reasonableness." Ibid. (emphasis added). The statement adds that the " 'best available' " standard "is intended to reflect the need to press toward increasingly higher levels of control." Ibid. (emphasis added). And "the reasonableness of what is 'economically achievable' should reflect an evaluation of what needs to be done to move toward the elimination of the discharge of pollutants and what is achievable through the application of available technology — without regard to cost." Ibid. (emphasis added). I believe, as I said, that this language is deliberately nuanced. The statement says that where the statute uses the term "best practicable," the statute requires comparisons of costs and benefits; but where the statute uses the term "best available," such comparisons are not "required." Ibid. (emphasis added). Senator Muskie does not say that all efforts to compare costs and benefits are forbidden. Moreover, the statement points out that where the statute uses the term "best available," the Administrator "will be bound by a test of reasonableness." Ibid. (emphasis added). It adds that the Administrator should apply this test in a way that reflects its ideal objective, moving as closely as is technologically possible to the elimination of pollution. It thereby says the Administrator should consider, i.e., take into account, how much pollution would still remain if the best available technology were to be applied everywhere--"without regard to cost." Ibid. It does not say that the Administrator must set the standard based solely on the result of that determination. (It would be difficult to reconcile the alternative, more absolute reading of this language with the Senator's earlier "test of reasonableness.") I say that one may, not that one must, read Senator Muskie's statement this way. But to read it differently would put the Agency in conflict with the test of reasonableness by threatening to impose massive costs far in excess of any benefit. For 30 years the EPA has read the statute and its history in this way. The EPA has thought that it would not be "reasonable to interpret Section 316(b) as requiring use of technology whose cost is wholly disproportionate to the environmental benefit to be gained." In re Pub. Serv. Co. of N. H. (Seabrook Station, Units 1 and 2), 1 E. A. D. 332, 340 (1977), remanded on other grounds, Seacoast Anti-Pollution League v. Costle, 572 F. 2d 872 (CA1 1978) (emphasis added); see also In re Central Hudson Gas & Elec. Corp., EPA Decision of the General Counsel, NPDES Permits, No. 63, p. 371 (July 29, 1977) (also applying a "wholly disproportionate" test); In re Pub. Serv. Co. of N. H., 1 E. A. D. 455 (1978) (same). "[T]his Court will normally accord particular deference to an agency interpretation of 'longstanding' duration." Barnhart v. Walton, 535 U. S. 212, 220 (2002). And for the last 30 years, the EPA has given the statute a permissive reading without suggesting that in doing so it was ignoring or thwarting the intent of the Congress that wrote the statute. The EPA's reading of the statute would seem to permit it to describe environmental benefits in non-monetized terms and to evaluate both costs and benefits in accordance with its expert judgment and scientific knowledge. The Agency can thereby avoid lengthy formal cost-benefit proceedings and futile attempts at comprehensive monetization, see 69 Fed. Reg. 41661-41662; take account of Congress' technology-forcing objectives; and still prevent results that are absurd or unreasonable in light of extreme disparities between costs and benefits. This approach, in my view, rests upon a "reasonable interpretation" of the statute — legislative history included. Hence it is lawful. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 844 (1984). Most of what the majority says is consistent with this view, and to that extent I agree with its opinion.II The cases before us, however, present an additional problem. We here consider a rule that permits variances from national standards if a facility demonstrates that its costs would be "significantly greater than the benefits of complying." 40 CFR §125.94(a)(5)(ii) (2008). The words "significantly greater" differ from the words the EPA has traditionally used to describe its standard, namely, "wholly disproportionate." Perhaps the EPA does not mean to make much of that difference. But if it means the new words to set forth a new and different test, the EPA must adequately explain why it has changed its standard. Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 42-43 (1983); National Cable & Telecommunications Assn. v. Brand X Internet, 545 U. S. 967, 981 (2005); Thomas Jefferson Univ. v. Shalala, 512 U. S. 504, 524, n. 3 (1994) (Thomas, J., dissenting). I am not convinced the EPA has successfully explained the basis for the change. It has referred to the fact that existing facilities have less flexibility than new facilities with respect to installing new technologies, and it has pointed to special, energy-related impacts of regulation. 68 Fed. Reg. 13541 (2003) (proposed rule). But it has not explained why the traditional "wholly disproportionate" standard cannot do the job now, when the EPA has used that standard (for existing facilities and otherwise) with apparent success in the past. See, e.g., Central Hudson, supra. Consequently, like the majority, I would remand these cases to the Court of Appeals. But unlike the majority I would permit that court to remand the cases to the EPA so that the EPA can either apply its traditional "wholly disproportionate" standard or provide an adequately reasoned explanation for the change.FOOTNOTESFootnote * Together with No. 07-589, PSEG Fossil LLC et al. v. Riverkeeper, Inc., et al., and No. 07-597, Utility Water Act Group v. Riverkeeper, Inc., et al., also on certiorari to the same court.FOOTNOTESFootnote 1 The EPA and its Administrator appeared as respondents in support of petitioners. See Brief for Federal Parties as Respondents Supporting Petitioners. References to "respondents" throughout the opinion refer only to those parties challenging the EPA rules at issue in these cases.Footnote 2 Closed-cycle cooling systems recirculate the water used to cool the facility, and consequently extract less water from the adjacent waterway, proportionately reducing impingement and entrainment. Riverkeeper, Inc. v. EPA, 358 F. 3d 174, 182, n. 5 (CA2 2004); 69 Fed. Reg. 41601, and n. 44 (2004).Footnote 3 The EPA has also adopted Phase III rules for facilities not subject to the Phase I and Phase II regulations. 71 Fed. Reg. 35006 (2006). A challenge to those regulations is currently before the Fifth Circuit, where proceedings have been stayed pending disposition of these cases. See ConocoPhillips Co. v. EPA, No. 06-60662.Footnote 4 The dissent finds it "puzzling" that we invoke this proposition (that a reasonable agency interpretation prevails) at the "outset," omitting the supposedly prior inquiry of " 'whether Congress has directly spoken to the precise question at issue.' " Post, at 6, n. 5 (opinion of Stevens, J.) (quoting Chevron, 467 U. S., at 842). But surely if Congress has directly spoken to an issue then any agency interpretation contradicting what Congress has said would be unreasonable. What is truly "puzzling" is the dissent's accompanying charge that the Court's failure to conduct the Chevron step-one inquiry at the outset "reflects [its] reluctance to consider the possibility ... that Congress' silence may have meant to foreclose cost-benefit analysis." Post, at 6, n. 5. Our discussion of that issue, infra, at 11, speaks for itself.Footnote 5 Respondents concede that the term "available" is ambiguous, as it could mean either technologically feasible or economically feasible. But any ambiguity in the term "available" is largely irrelevant. Regardless of the criteria that render a technology "available," the EPA would still have to determine which available technology is the "best" one. And as discussed above, that determination may well involve consideration of the technology's relative costs and benefits.Footnote 6 The statute does not contain a hyphen between the words "conventional" and "pollutant." "Conventional pollutant" is a statutory term, however, see 33 U. S. C. §1314(a)(4), and it is clear that in §1311(b)(2)(E) the adjective modifies "pollutant" rather than "control technology." The hyphen makes that clear.Footnote 7 Dry cooling systems use air drafts to remove heat, and accordingly remove little or no water from surrounding water sources. See 66 Fed. Reg. 65282 (2001). Footnote 8 Justice Breyer would remand for the additional reason of what he regards as the agency's inadequate explanation of the change in its criterion for variances — from a relationship of costs to benefits that is " 'wholly disproportionate' " to one that is " 'significantly greater.' " Post, at 7-8 (opinion concurring in part and dissenting in part). That question can have no bearing upon whether the EPA can use cost-benefit analysis, which is the only question presented here. It seems to us, in any case, that the EPA's explanation was ample. It explained that the "wholly out of proportion" standard was inappropriate for the existing facilities subject to the Phase II rules because those facilities lack "the greater flexibility available to new facilities for selecting the location of their intakes and installing technologies at lower costs relative to the costs associated with retrofitting existing facilities," and because "economically impracticable impacts on energy prices, production costs, and energy production ... could occur if large numbers of Phase II existing facilities incurred costs that were more than 'significantly greater' than but not 'wholly out of proportion' to the costs in the EPA's record." 68 Fed. Reg. 13541 (2003).FOOTNOTESFootnote 1 To produce energy, industrial powerplants withdraw billions of gallons of water daily from our Nation's waterways. Thermoelectric powerplants alone demand 39 percent of all freshwater withdrawn nationwide. See Dept. of Energy, Addressing the Critical Link Between Fossil Energy and Water 2 (Oct. 2005), http:// www.netl.doe.gov/technologies/coalpower/ewr/pubs/NETL_Water_Paper_Final_Oct.2005.pdf (all Internet materials as visited Mar. 18, 2009, and available in Clerk of Court's case file). The fish and shellfish are killed by "impingement" or "entrainment." Impingement occurs when aquatic organisms are trapped against the screens and grills of water intake structures. Entrainment occurs when these organisms are drawn into the intake structures. See Riverkeeper, Inc. v. EPA, 475 F. 3d 83, 89 (CA2 2007); 69 Fed. Reg. 41586 (2004).Footnote 2 EPA, Economic and Benefits Analysis for the Proposed Section 316(b) Phase II Existing Facilities Rule, p. D1-4 (EPA-821-R-02-001, Feb. 2002), http://www.epa.gov/waterscience/316b/phase2/econbenefits.Footnote 3 EPA, Economic and Benefits Analysis for the Final Section 316(b) Phase II Existing Facilities Rule, p. D1-5 (EPA-821-R-04-005, Feb. 2004), http://www.epa.gov/waterscience/316b/phase2/econbenefits/final. htm.Footnote 4 The two cross-referenced provisions, §§1311 and 1316, also establish "best technology" standards, the first applicable to existing point sources and the second to new facilities. The reference to these provisions in §316(b) merely requires any rule promulgated under those provisions, when applied to a point source with a water intake structure, to incorporate §316(b) standards.Footnote 5 The majority announces at the outset that the EPA's reading of the BTA standard "governs if it is a reasonable interpretation of the statute — not necessarily the only possible interpretation, nor even the interpretation deemed most reasonable by the courts." Ante, at 7. This observation is puzzling in light of the commonly understood practice that, as a first step, we ask "whether Congress has directly spoken to the precise question at issue." Chevron, 467 U. S., at 842. Only later, if Congress' intent is not clear, do we consider the reasonableness of the agency's action. Id., at 843. Assuming ambiguity and moving to the second step reflects the Court's reluctance to consider the possibility, which it later laments is "more complex," ante, at 9, that Congress' silence may have meant to foreclose cost-benefit analysis.Footnote 6 Congress later extended the deadline to March 31, 1989.Footnote 7 Senator Muskie, the Senate sponsor of the legislation, described the cost-benefit analysis permitted under BPT as decidedly narrow, asserting that "[t]he balancing test between total cost and effluent reduction benefits is intended to limit the application of technology only where the additional degree of effluent reduction is wholly out of proportion to the costs of achieving such marginal level of reduction for any class or category of sources." 1 Legislative History of the Water Pollution Control Act Amendments of 1972 (Committee Print compiled for the Senate Committee on Public Works by the Library of Congress), Ser. No. 93-1, p. 170 (1973) (hereinafter Leg. Hist.)Footnote 8 Although the majority calls this "BATEA," the parties refer to the provision as "BAT," and for simplicity, so will I.Footnote 9 The Court argues that, if silence in §316(b) signals the prohibition of cost-benefit analysis, it must also foreclose the consideration of all other potentially relevant discretionary factors in setting BTA standards. Ante, at 12. This all-or-nothing reasoning rests on the deeply flawed assumption that Congress treated cost-benefit analysis as just one among many factors upon which the EPA could potentially rely to establish BTA. Yet, as explained above, the structure and legislative history of the CWA demonstrate that Congress viewed cost-benefit analysis with special skepticism and controlled its use accordingly. The Court's assumption of equivalence is thus plainly incorrect. Properly read, Congress' silence in §316(b) forbids reliance on the cost-benefit tool but does not foreclose reliance on all other considerations, such as a determination whether a technology is so costly that it is not "available" for industry to adopt. Footnote 10 In 1977, Congress established an additional technology-based standard, commonly referred to as "best conventional pollutant control technology," or "BCT," to govern conventional pollutants previously covered by the BAT standard. See 33 U. S. C. §1311(b)(2)(E). The BCT standard required the EPA to consider, among other factors, "the relationship between the costs of attaining a reduction in effluents and the effluent reduction benefits derived." §1314(b)(4)(B). That Congress expressly authorized cost-benefit analysis in BCT further confirms that Congress treated cost-benefit analysis as exceptional and reserved for itself the authority to decide when it would be used in the Act. Footnote 11 The Court attempts to cabin its holding by suggesting that a "rigorous form of cost-benefit analysis," such as the form "prescribed under the statute's former BPT standard," may not be permitted for setting BTA regulations. Ante, at 13. Thus the Court has effectively instructed the Agency that it can perform a cost-benefit analysis so long as it does not resemble the kind of cost-benefit analysis Congress elsewhere authorized in the CWA. The majority's suggested limit on the Agency's discretion can only be read as a concession that cost-benefit analysis, as typically performed, may be inconsistent with the BTA mandate.Footnote 12 The "national performance standards" the EPA adopted were shaped by economic efficiency concerns at the expense of finding the technology that best minimizes adverse environmental impact. In its final rulemaking, the Agency declined to require industrial plants to adopt closed-cycle cooling technology, which by recirculating cooling water requires less water to be withdrawn and thus fewer aquatic organisms to be killed. Riverkeeper, Inc. v. EPA, 358 F. 3d 174, 182, n. 5 (CA2 2004); 69 Fed. Reg. 41601, and n. 44. This the Agency decided despite its acknowledgment that "closed-cycle, recirculating cooling systems ... can reduce mortality from impingement by up to 98 percent and entrainment by up to 98 percent." Id., at 41601. The EPA instead permitted individual plants to resort to a "suite" of options so long as the method used reduced impingement and entrainment by the more modest amount of 80 and 60 percent, respectively. See 40 CFR §125.94(b). The Agency also permitted individual plants to obtain a site-specific variance from the national performance standards if they could prove (1) that compliance costs would be "significantly greater than" those the Agency considered when establishing the standards, or (2) that compliance costs "would be significantly greater than the benefits of complying with the applicable performance standards," §125.94(a)(5).Footnote 13 Thus, the Agency's past reliance on a "wholly disproportionate" standard, a mild variant of cost-benefit analysis, is irrelevant. See ante, at 14. Because "Congress has directly spoken to the precise question at issue," Chevron, 467 U. S., at 842, longstanding yet impermissible agency practice cannot ripen into permissible agency practice.

Basing jurisdiction solely on diversity of citizenship, an Illinois railroad corporation brought suit in a federal district court in Kentucky against an Indiana owner of a truck which, while on temporary business in Kentucky, collided with an overpass of the railroad, causing a derailment. The defendant was apprised of the action through service of process on the Secretary of State of Kentucky, in accordance with a Kentucky statute. The Kentucky statute did not require the designation of an agent for the service of process, and the defendant had made no such designation. Held: Under 28 U.S.C. 1391 (a), the defendant's motion that the case be dismissed on the ground of improper venue should have been granted. Pp. 339-342. (a) The defendant did not impliedly consent to be sued in a federal court in Kentucky simply by driving his motor vehicle on the highways of that State. Pp. 340-341. (b) The fact that a nonresident motorist who comes into Kentucky can, consistent with the Due Process Clause of the Fourteenth Amendment, be subjected to suit in the appropriate Kentucky state court is irrelevant to his rights under 28 U.S.C. 1391 (a). P. 341. (c) Neirbo Co. v. Bethlehem Corp., , distinguished. Pp. 341-342. 201 F.2d 582, reversed. In a suit in a federal district court based solely on diversity of citizenship, the defendant's motion that the case be dismissed on the ground of improper venue was overruled and there was a verdict for the plaintiff. The Court of Appeals affirmed. 201 F.2d 582. This Court granted certiorari. . Reversed, p. 342.William L. Mitchell argued the cause for petitioners. With him on the brief were William C. Welborn and Milford M. Miller. James G. Wheeler argued the cause for respondent. With him on the brief were Joseph H. Wright, Chas. A. Helsell, John W. Freels and Thomas J. Marshall, Jr.MR. JUSTICE FRANKFURTER delivered the opinion of the Court.For present purposes the facts may be briefly stated. The railroad brought suit in the United States District Court for the Western District of Kentucky against Olberding, the owner of a truck, which, while on temporary business in Kentucky, collided with an overpass of the railroad, causing a subsequent derailment. Jurisdiction was based on diversity of citizenship, plaintiff being an Illinois corporation and Olberding a citizen of Indiana. Olberding was apprised of the action through service of process on the Secretary of State in Frankfort, Kentucky, according to the Kentucky Non-resident Motorist Statute.* He entered a special appearance and moved that the case be dismissed on the ground of improper venue. The motion was overruled and the case went to trial, resulting in a verdict for the plaintiff. The Court of Appeals for the Sixth Circuit affirmed, 201 F.2d 582. Its ruling on venue, in the situation here presented, is in direct conflict with that of the First Circuit in Martin v. Fischbach Trucking Co., 183 F.2d 53, with which the Third Circuit has recently agreed, McCoy v. Siler, 205 F.2d 498. To resolve the conflict, we granted certiorari. .This is a horse soon curried. Congress, in conferring jurisdiction on the district courts in cases based solely on diversity of citizenship, has been explicit to confine such suits to "the judicial district where all plaintiffs or all defendants reside." 28 U.S.C. 1391 (a). This is not a qualification upon the power of the court to adjudicate, but a limitation designed for the convenience of litigants, and, as such, may be waived by them. The plaintiff, by bringing the suit in a district other than that authorized by the statute, relinquished his right to object to the venue. But unless the defendant has also consented to be sued in that district, he has a right to invoke the protection which Congress has afforded him. The requirement of venue is specific and unambiguous; it is not one of those vague principles which, in the interest of some overriding policy, is to be given a "liberal" construction.It is not claimed that either the corporate plaintiff or the individual defendant here was a "resident" of Kentucky. The sole reason why the plaintiff was allowed to bring this action in the federal court of Kentucky was that a consent to be sued in that state was attributed to the defendant. And this attribution was then made the basis of a waiver of his rights under the federal venue provision. Concededly the defendant did not in fact consent. He impliedly consented, so the argument runs, to be sued in the federal court of Kentucky simply by driving his automobile on the highways of Kentucky, which has the familiar statute holding non-resident motorists amenable to suit for accidents caused by their negligent operations within the State.It is true that in order to ease the process by which new decisions are fitted into pre-existing modes of analysis there has been some fictive talk to the effect that the reason why a non-resident can be subjected to a state's jurisdiction is that the non-resident has "impliedly" consented to be sued there. In point of fact, however, jurisdiction in these cases does not rest on consent at all. See Scott, Jurisdiction over Nonresident Motorists, 39 Harv. L. Rev. 563. The defendant may protest to high heaven his unwillingness to be sued and it avails him not. The liability rests on the inroad which the automobile has made on the decision of Pennoyer v. Neff, , as it has on so many aspects of our social scene. The potentialities of damage by a motorist, in a population as mobile as ours, are such that those whom he injures must have opportunities of redress against him provided only that he is afforded an opportunity to defend himself. We have held that this is a fair rule of law as between a resident injured party (for whose protection these statutes are primarily intended) and a non-resident motorist, and that the requirements of due process are therefore met. Hess v. Pawloski, . But to conclude from this holding that the motorist, who never consented to anything and whose consent is altogether immaterial, has actually agreed to be sued and has thus waived his federal venue rights is surely to move in the world of Alice in Wonderland. The fact that a non-resident motorist who comes into Kentucky can, consistent with the Due Process Clause of the Fourteenth Amendment, be subjected to suit in the appropriate Kentucky state court has nothing whatever to do with his rights under 28 U.S.C. 1391 (a).This conclusion is entirely loyal to the decision and reasoning of Neirbo Co. v. Bethlehem Corp., . There the defendant, a Delaware corporation, was sued by a non-resident of New York in the United States District Court for the Southern District of New York, and we found the venue requirements of what is now 28 U.S.C. 1391 (a) satisfied because Bethlehem had designated an agent in New York "upon whom a summons may be served within the State of New York." 308 U.S., at 175. We held that this constituted an "actual consent" to be sued in New York, not the less so because it was "part of the bargain by which Bethlehem enjoys the business freedom of the State of New York." Ibid. We further held, following Ex parte Schollenberger, , that this consent extended to all courts sitting in New York, both federal and state. Of course this doctrine would equally apply to an individual defendant in situations where a state may validly require the designation of an agent for service of process as a condition of carrying on activities within its borders, and such designation has in fact been made. See Kane v. New Jersey, . But here no such designation was required or made, and hence the Neirbo case has no applicability.The judgment is Reversed.MR. JUSTICE DOUGLAS concurs in the result.[Footnote *] Ky. Rev. Stat., 1953, 188.020-188.030. The Kentucky statute, like the one upheld in Hess v. Pawloski, , in substance provides that a non-resident motorist who operates his automobile on the state's highways makes the Secretary of State his agent for service of process in any civil action arising out of such operation. There is also set up a procedure for serving the summons on the Secretary of State, who in turn is to notify the non-resident defendant by registered mail.On the other hand, the statute under consideration in Kane v. New Jersey, , specifically required the non-resident motorist to register his vehicle annually and formally to designate the Secretary of State an agent upon whom process might be served. Penalties were provided for use of the state's roads without complying with these requirements.MR. JUSTICE REED, with whom MR. JUSTICE MINTON joins, dissenting.The unfortunate effect of this decision on federal venue, its uniformity and availability, in so important a field as torts by out-of-state motorists, causes me to dissent from the views of the Court. Under Neirbo Co. v. Bethlehem Corp., , a different doctrine of venue would be applied to motor torts committed by foreign corporations doing business in a state than is applied to an individual motorist driving his own car through a state. From the opinion I would assume that a corporation not doing business in a state but causing a car to be driven therein would be immune from suits for torts in the federal courts in that state. The decision bars a nonresident injured party from seeking damages, on allegation of diversity, from a nonresident motor operator or owner in the United States District Court having jurisdiction over the place of the accident in which the motor vehicle is involved.No question is or can now be raised against the constitutionality of the Kentucky statute to secure the presence of an out-of-state motorist in the state courts to respond to damages. It is the form generally approved for protection against out-of-state wrongdoers by motor operation, and is not subject to attack for lack of due process.1 The single issue decided by the Court is that such process does not waive venue under 28 U.S.C. 1391 (a): "A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside." The provision was substantially the same when the Neirbo case was decided. The clause then read:"... but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suits shall be brought only in the district of the residence of either the plaintiff or the defendant." 28 U.S.C. (1946 ed.) 112. In Neirbo we held that since the foreign corporation had consented to be sued in the courts of the state, the consent extended to the federal courts sitting in the state. 308 U.S., at 171, 175. The same reasoning that led to the subjection of foreign corporations to federal litigation in the Neirbo case leads me to the conclusion that the out-of-state motorist should likewise be so held. The motor car has lengthened the radius of the individual's activities. We have upheld the constitutional power of the states to compel redress of wrongs, through the use of the automobile, at the place of their happening. It is done through the consent of the party benefiting from his privilege to use the highways of the state. The District Courts have consistently ruled that the appointment of an agent for service of process by driving on state highways is a waiver of federal venue.2 I see no difference of substance between the signing of a paper under the New York statute upon which Neirbo is based and the acceptance, by action in driving a motor car, of the privilege of using state highways under the Kentucky statute. In each case there was no federal venue except by waiver and consent. Both the Bethlehem Corporation and this out-of-state motorist, in my opinion, waived objection to federal venue. The Hess case determined that the difference between the "formal and implied appointment" of an agent for service "is not substantial" under the Due Process Clause. 274 U.S., at 357.3 The Neirbo case held that consent to service on an agent for service of process waived objection to federal venue. The same rule if applied to this situation would achieve a like desirable result, trial at the logical place, the location of the incident that gives rise to the cause of action.I would affirm the judgment.

In a civil action brought by the United States against appellant, a domestic corporation, to enjoin alleged violations of the Sherman Act, the complaint charged that appellant had combined and conspired with a British corporation and a French corporation, in each of which it had a financial interest, to restrain interstate and foreign commerce in the manufacture and sale of antifriction bearings. The District Court found that under agreements between them the corporations had allocated trade territories among themselves; fixed prices on products of one sold in the territory of the others; cooperated to protect each other's markets and to eliminate outside competition; and participated in cartels to restrict imports to, and exports from, the United States. The court concluded that appellant had violated the Sherman Act as charged, and entered a comprehensive decree designed to bar future violations. Held: 1. The District Court's material findings of fact are not "clearly erroneous," and are accepted here. Fed. Rules Civ. Proc., 52 (a). Pp. 596-597. 2. The opinion of the District Court sufficiently complies with the requirements of Rule 52 (a) relative to findings of fact and conclusions of law. P. 597, n. 7. 3. Agreements between legally separate persons and companies to suppress competition among themselves cannot be justified by characterizing the project as a "joint venture." Pp. 597-598. (a) Agreements providing for an aggregation of trade restraints such as those existing in this case are prohibited by the Act, whether or not incidental to a "joint venture." P. 598. (b) Common ownership or control of the contracting corporations does not liberate them from the impact of the antitrust laws. P. 598. 4. Nor can the restraints be justified as reasonable steps taken to implement a valid trademark licensing system, since the trademark provisions of the agreements were secondary to the central purpose of allocating trade territory, and since the agreements provided for control of the manufacture and sale of antifriction bearings whether carrying the trademark or not. Pp. 598-599. (a) A trademark cannot lawfully be used as a device for violating the Sherman Act, and its use therefor is penalized by the Trade Mark Act of 1946. P. 599. 5. The suggestion that what appellant has done is reasonable in view of current foreign trade conditions, and that therefore the Sherman Act should not be enforced in this case, is rejected. P. 599. 6. The decree of the District Court properly enjoined continuation or repetition of the conduct which it found to be illegal. P. 600. 7. The relief which a district court may grant in a Sherman Act case need not be confined to the narrow limits of the proven violation. P. 600. 8. The District Court should not have ordered appellant to divest itself of its stockholdings and all other financial interests in the British and French corporations, and the decree is modified so as to eliminate provisions directed to that end. Pp. 600-601. 83 F. Supp. 284, modified and affirmed. In a civil action brought by the United States against appellant, to restrain alleged violations of the Sherman Act, the District Court found that appellant had violated the Act and a decree of injunction was entered. 83 F. Supp. 284. On direct appeal to this Court, the decree is modified and, as modified, affirmed, p. 601.Luther Day and John G. Ketterer argued the cause and filed a brief for appellant.W. Perry Epes argued the cause for the United States. With him on the brief were Solicitor General Perlman, Assistant Attorney General Morison, Charles H. Weston and J. Roger Wollenberg.MR. JUSTICE BLACK delivered the opinion of the Court.The United States brought this civil action to prevent and restrain violations of the Sherman Act1 by appellant, Timken Roller Bearing Co., an Ohio corporation. The complaint charged that appellant, in violation of 1 and 3 of the Act,2 combined, conspired and acted with British Timken, Ltd. (British Timken), and Societe Anonyme Francaise Timken (French Timken) to restrain interstate and foreign commerce by eliminating competition in the manufacture and sale of antifriction bearings in the markets of the world. After a trial of more than a month the District Court made detailed findings of fact which may be summarized as follows:As early as 1909 appellant and British Timken's predecessor had made comprehensive agreements providing for a territorial division of the world markets for antifriction bearings. These arrangements were somewhat modified and extended in 1920, 1924 and 1925. Again in 1927 the agreements were substantially renewed in connection with a transaction by which appellant and one Dewar, an English businessman, cooperated in purchasing all the stock of British Timken. Later some British Timken stock was sold to the public with the result that appellant now holds about 30% of the outstanding shares while Dewar owns about 24%.3 In 1928 appellant and Dewar organized French Timken and since that date have together owned all the stock in the French company. Beginning in that year, appellant, British Timken and French Timken have continuously kept operative "business agreements" regulating the manufacture and sale of antifriction bearings by the three companies and providing for the use by the British and French corporations of the trademark "Timken."4 Under these agreements the contracting parties have (1) allocated trade territories among themselves; (2) fixed prices on products of one sold in the territory of the others; (3) cooperated to protect each other's markets and to eliminate outside competition; and (4) participated in cartels to restrict imports to, and exports from, the United States.On these findings, the District Court concluded that appellant had violated the Sherman Act as charged, and entered a comprehensive decree designed to bar future violations. 83 F. Supp. 284. The case is before us on appellant's direct appeal under 15 U.S.C. 29.Although appellant has indiscriminately challenged the District Court's judgment and decree in over 200 separate assignments of error, the real grounds relied on for reversal are only a few in number.5 In the first place, appellant contends that most of the District Court's material findings of fact are without evidential support, that they "ignore or fail properly to evaluate" evidence supporting appellant's position, and that it was error for the court to refuse to make additional findings. For the most part, this shotgun approach is actually only a dispute as to the proper inferences to be drawn from the evidence in the record;6 in effect, it is an invitation for us to try the case de novo. This Court must decline such an invitation just as it does when the Government makes the same request. United States v. Yellow Cab Co., . In the present case, the trial judge after a patient hearing carefully analyzed the evidence in an opinion prepared with obvious care.7 Appellant's lengthy brief has failed to establish that there was error in making any crucial, or even important, ultimate or subsidiary finding. Since we cannot say the findings are "clearly erroneous," we accept them. Fed. Rules Civ. Proc., 52 (a).Appellant next contends that the restraints of trade so clearly revealed by the District Court's findings can be justified as "reasonable," and therefore not in violation of the Sherman Act, because they are "ancillary" to allegedly "legal main transactions," namely, (1) a "joint venture" between appellant and Dewar, and (2) an exercise of appellant's right to license the trademark "Timken."We cannot accept the "joint venture" contention. That the trade restraints were merely incidental to an otherwise legitimate "joint venture" is, to say the least, doubtful. The District Court found that the dominant purpose of the restrictive agreements into which appellant, British Timken and French Timken entered was to avoid all competition either among themselves or with others. Regardless of this, however, appellant's argument must be rejected. Our prior decisions plainly establish that agreements providing for an aggregation of trade restraints such as those existing in this case are illegal under the Act. Kiefer-Stewart Co. v. Seagram & Sons, ; United States v. Socony-Vacuum Oil Co., and note 59; United States v. National Lead Co., 63 F. Supp. 513, affirmed, ; United States v. American Tobacco Co., ; Associated Press v. United States, . See also United States v. Aluminum Co. of America, 148 F.2d 416, 439-445. The fact that there is common ownership or control of the contracting corporations does not liberate them from the impact of the antitrust laws. E. g., Keifer-Stewart Co. v. Seagram & Sons, supra at 215. Nor do we find any support in reason or authority for the proposition that agreements between legally separate persons and companies to suppress competition among themselves and others can be justified by labeling the project a "joint venture." Perhaps every agreement and combination to restrain trade could be so labeled.Nor can the restraints of trade be justified as reasonable steps taken to implement a valid trademark licensing system, even if we assume with appellant that it is the owner of the trademark "Timken" in the trade areas allocated to the British and French corporations. Appellant's premise that the trade restraints are only incidental to the trademark contracts is refuted by the District Court's finding that the "trade mark provisions [in the agreements] were subsidiary and secondary to the central purpose of allocating trade territories." Furthermore, while a trademark merely affords protection to a name, the agreements in the present case went far beyond protection of the name "Timken" and provided for control of the manufacture and sale of antifriction bearings whether carrying the mark or not. A trademark cannot be legally used as a device for Sherman Act violation. Indeed, the Trade Mark Act of 1946 itself penalizes use of a mark "to violate the antitrust laws of the United States."8 We also reject the suggestion that the Sherman Act should not be enforced in this case because what appellant has done is reasonable in view of current foreign trade conditions. The argument in this regard seems to be that tariffs, quota restrictions and the like are now such that the export and import of antifriction bearings can no longer be expected as a practical matter; that appellant cannot successfully sell its American-made goods abroad; and that the only way it can profit from business in England, France and other countries is through the ownership of stock in companies organized and manufacturing there. This position ignores the fact that the provisions in the Sherman Act against restraints of foreign trade are based on the assumption, and reflect the policy, that export and import trade in commodities is both possible and desirable. Those provisions of the Act are wholly inconsistent with appellant's argument that American business must be left free to participate in international cartels, that free foreign commerce in goods must be sacrificed in order to foster export of American dollars for investment in foreign factories which sell abroad. Acceptance of appellant's view would make the Sherman Act a dead letter insofar as it prohibits contracts and conspiracies in restraint of foreign trade. If such a drastic change is to be made in the statute, Congress is the one to do it. Finally, appellant attacks the District Court's decree as being too broad in scope. The decree enjoins continuation or repetition of the conduct found illegal. This is clearly correct. Ethyl Gasoline Corp. v. United States, . It also contains certain other restraining provisions which were within the court's discretion because "relief, to be effective, must go beyond the narrow limits of the proven violation." United States v. United States Gypsum Co., . The most vigorous objection, however, is made to those portions of the decree relating to divestiture of appellant's stockholdings and other financial interests in British and French Timken.MR. JUSTICE DOUGLAS, MR. JUSTICE MINTON and I believe that the decree properly ordered divestiture. Our views on this point are as follows: Appellant's interests in the British and French companies were obtained as part of a plan to promote the illegal trade restraints. If not severed, the intercompany relationships will provide in the future, as they have in the past, the temptation and means to engage in the prohibited conduct. These considerations alone should be enough to support the divestiture order. United States v. Paramount Pictures, Inc., ; United States v. National Lead Co., . But there are other considerations as well. The decree should not be overturned unless we can say that the District Court abused its discretion. Absent divestiture, it is difficult to see where other parts of the decree forbidding trade restraints would add much to what the Sherman Act by itself already prohibits.9 And obviously the most effective way to suppress further Sherman Act violations is to end the intercorporate relationship which has been the core of the conspiracy. For these reasons, MR. JUSTICE DOUGLAS, MR. JUSTICE MINTON and I cannot say that the District Court abused its discretion in ordering divestiture.10 Nevertheless, a majority of this Court, for reasons set forth in other opinions filed in this case, believe that divestiture should not have been ordered by the District Court. Therefore, it becomes necessary to strike from the decree VIII, IVB, and the phrase "or B" in IVC. As so modified, the judgment of the District Court is affirmed. It is so ordered.MR. JUSTICE BURTON and MR. JUSTICE CLARK took no part in the consideration or decision of this case.

Petitioner corporation, which operates a 49-bed proprietary hospital (Mary Elizabeth) in Raleigh, N.C., brought this antitrust action alleging that respondents, a private, tax-exempt hospital (Rex) in Raleigh, two of its officers, and a health planning officer, had violated the Sherman Act by conspiring along with others to block the relocation and expansion within Raleigh of Mary Elizabeth, for the purpose of enabling Rex to monopolize the business of providing hospital services in Raleigh. Petitioner alleged that a substantial portion of its medicines and supplies comes from out-of-state sellers; that a large portion of its revenue comes from out-of-state insurance companies or the Federal Government; that it pays a management service fee to its parent company, a Georgia-based Delaware corporation; and that the planned expansion would be largely financed through out-of-state lenders. Concluding that petitioner's business was strictly local, and that respondents' alleged conduct only incidentally and insubstantially affected interstate commerce, the District Court granted respondents' motion to dismiss the complaint. The Court of Appeals affirmed. Held: Petitioner's complaint states a cause of action upon which relief can be granted under the Sherman Act, the combination of factors involving petitioner in interstate commerce being sufficient to establish a "substantial effect" on interstate commerce, within the meaning of the Sherman Act, as a result of respondents' alleged conduct. Pp. 743-747. (a) That respondents may not have had the intentional goal of affecting interstate commerce does not exempt their conduct from Sherman Act coverage. Burke v. Ford, . Pp. 744-745. (b) The "substantial effect" test can be satisfied even if the impact on interstate commerce of the conduct alleged falls short of causing petitioner's out-of-state suppliers to go out of business or the market price to be affected by the conspiracy. Pp. 745-746. 511 F.2d 678, reversed and remanded. MARSHALL, J., delivered the opinion for a unanimous Court.John K. Train III argued the cause for petitioner. With him on the brief were Timothy S. Perry and John R. Jordan, Jr.Ray S. Bolze argued the cause for respondents. With him on the brief were John H. Anderson and Lillard Mount.* [Footnote *] Briefs of amici curiae urging reversal were filed by Solicitor General Bork, Assistant Attorney General Kauper, Barry Grossman, Robert B. Nicholson, and John J. Powers III for the United States; and by Carl Weissburg and Lyle R. Mink for the Federation of American Hospitals.MR. JUSTICE MARSHALL delivered the opinion of the Court.This is a suit brought under 1 and 2 of the Sherman Act, 26 Stat. 209, as amended, 15 U.S.C. 1-2. Petitioner has alleged that respondents are engaged in an unlawful conspiracy to restrain trade and commerce in the furnishing of medical and surgical hospital services, and that they are attempting to monopolize the hospital business in the Raleigh, N.C., metropolitan area. The District Court dismissed petitioner's amended complaint on the pleadings, finding that petitioner had not alleged a sufficient nexus between the alleged violations of the Sherman Act and interstate commerce. The Court of Appeals for the Fourth Circuit, sitting en banc, affirmed the judgment of the District Court, holding that the provision of hospital services is only a "local" activity, 511 F.2d 678, 682 (1975), and that the amended complaint did not adequately allege a "substantial effect" id., at 684, on interstate commerce. We granted certiorari, , and now reverse. We hold that the amended complaint, fairly read, adequately alleges a restraint of trade substantially affecting interstate commerce and that dismissal on the pleadings of petitioner's amended complaint was therefore inappropriate.IASince we are reviewing a dismissal on the pleadings, we must, of course, take as true the material facts alleged in petitioner's amended complaint. See, e. g., Mandeville Island Farms, Inc. v. American Crystal Sugar Co., . Petitioner is a corporation organized for profit under the laws of North Carolina. It operates the Mary Elizabeth Hospital, a 49-bed proprietary hospital in Raleigh, N.C., which offers a general range of medical and surgical services to the public. Respondent Trustees of Rex Hospital (Rex) is a North Carolina corporation which operates Rex Hospital, a private, tax-exempt hospital also located in Raleigh. The other three respondents are the administrator of Rex, one of its individual trustees, and the executive secretary of the local agency responsible for making recommendations to state officials concerning the Raleigh community's need for additional hospital beds. The amended complaint alleges that respondents, along with several co-conspirators not named as defendants in this action, have acted in concert to block the planned relocation of Mary Elizabeth Hospital within the city of Raleigh and its expansion from 49 beds to 140 beds. According to the amended complaint, respondents and their co-conspirators orchestrated a plan to delay and, if possible, prevent the issuance of the state authorization that was a necessary prerequisite to the expansion of Mary Elizabeth. After a delay of some months, the authorization was finally granted, but since then, it is alleged, respondents and their co-conspirators have employed a series of bad-faith tactics, including the bringing of frivolous litigation, to block the implementation of the expansion. The amended complaint also alleges that respondents have maliciously instigated the publication of adverse information about petitioner's expansion plan in order to block the expansion. All these actions, it is contended, have been taken as part of an attempt by Rex to monopolize the business of providing compensated medical and surgical services in the Raleigh area.Petitioner identifies several areas of interstate commerce in which it is involved. According to the amended complaint, petitioner purchases a substantial proportion - up to 80% - of its medicines and supplies from out-of-state sellers. In 1972, it spent $112,000 on these items. A substantial number of the patients at Mary Elizabeth Hospital, it is alleged, come from out of State. Moreover, petitioner claims that a large proportion of its revenue comes from insurance companies outside of North Carolina or from the Federal Government through the Medicaid and Medicare programs. Petitioner also pays a management service fee based on its gross receipts to its parent company, a Delaware corporation based in Georgia. Finally, petitioner has developed plans to finance a large part of the planned $4 million expansion through out-of-state lenders. All these involvements with interstate commerce, the amended complaint claims, have been and are continuing to be adversely affected by respondents' anticompetitive conduct.BRespondents' motion to dismiss asserted both that the District Court had no jurisdiction over the subject matter of the amended complaint, Fed. Rule Civ. Proc. 12 (b) (1), and that the amended complaint failed to state a claim upon which relief could be granted. Rule 12 (b) (6). Critical to respondents' motion was their contention that the amended complaint failed "to allege facts sufficient to state the requisite effect upon interstate commerce as required under the Sherman Act." App. 32. The District Court granted the motion to dismiss, concluding that the provision of hospital and medical services "is strictly a local, intra-state business," Pet. for Cert., App. D-3, and that "the conduct of the defendants complained of in this case directly affects only a local activity of the plaintiff, and only incidentally and insubstantially does it affect interstate commerce." Id., at D-3 - D-4.A three-judge division of the Court of Appeals for the Fourth Circuit affirmed the ruling of the District Court. Thereupon, petitioner filed a motion for rehearing en banc, which was granted, and the division opinion was withdrawn. On rehearing en banc, the ruling of the District Court was again affirmed. 511 F.2d 678 (1975). While the Court of Appeals perceived some ambiguity as to whether the District Court decision was grounded on Rule 12 (b) (1) or Rule 12 (b) (6), it treated the decision as holding that under Rule 12 (b) (6) petitioner had failed to state a claim upon which relief could be granted.1 The court then held that the allegations in the amended complaint, even if true, were inadequate to support a conclusion that the alleged anticompetitive conduct was occurring in interstate commerce, or that it had or would have a substantial effect on interstate commerce. IIThe Sherman Act prohibits every contract, combination, or conspiracy "in restraint of trade or commerce among the several States," 15 U.S.C. 1, and also prohibits monopolizing "any part of the trade or commerce among the several States." 15 U.S.C. 2. It is settled that the Act encompasses far more than restraints on trade that are motivated by a desire to limit interstate commerce or that have their sole impact on interstate commerce. "[W]holly local business restraints can produce the effects condemned by the Sherman Act." United States v. Employing Plasterers Assn., . As long as the restraint in question "substantially and adversely affects interstate commerce," Gulf Oil Corp. v. Copp Paving Co., ; Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U.S., at 234, the interstate commerce nexus required for Sherman Act coverage is established. "`If it is interstate commerce that feels the pinch, it does not matter how local the operation which applies the squeeze.'" Gulf Oil Corp. v. Copp Paving Co., supra, at 195, quoting United States v. Women's Sportswear Assn., .2 In this case, the Court of Appeals, while recognizing that Sherman Act coverage requires only that the conduct complained of have a substantial effect on interstate commerce, concluded that the conduct at issue did not meet that standard. We disagree. The complaint, fairly read, alleges that if respondents and their co-conspirators were to succeed in blocking petitioner's planned expansion, petitioner's purchases of out-of-state medicines and supplies as well as its revenues from out-of-state insurance companies would be thousands and perhaps hundreds of thousands of dollars less than they would otherwise be. Similarly, the management fees that petitioner pays to its out-of-state parent corporation would be less if the expansion were blocked. Moreover, the multimillion-dollar financing for the expansion, a large portion of which would be from out of State, would simply not take place if the respondents succeeded in their alleged scheme. This combination of factors is certainly sufficient to establish a "substantial effect" on interstate commerce under the Act.The Court of Appeals found two considerations crucial in its refusal to find that the complaint alleged a substantial effect on interstate commerce. The Court's reliance on neither was warranted. First, the Court observed: "The effect [on interstate commerce] here seems to us the indirect and fortuitous consequence of the restraint of the intrastate Raleigh area hospital market, rather than the result of activity purposely directed toward interstate commerce." 511 F.2d, at 684 (footnote omitted). But the fact that an effect on interstate commerce might be termed "indirect" because the conduct producing it is not "purposely directed" toward interstate commerce does not lead to a conclusion that the conduct at issue is outside the scope of the Sherman Act. For instance, in Burke v. Ford, , Oklahoma liquor retailers brought a Sherman Act action against liquor wholesalers in the state, alleging that the wholesalers had restrained commerce by dividing up the state market into exclusive territories. While the market division was patently not "purposely directed" toward interstate commerce, we held that it nevertheless substantially affected interstate commerce because as a matter of practical economics3 that division could be expected to reduce significantly the magnitude of purchases made by the wholesalers from out-of-state distillers. "The wholesalers' territorial division ... almost surely resulted in fewer sales to retailers - hence fewer purchases from out-of-state distillers - than would have occurred had free competition prevailed among the wholesalers." Id., at 322 (footnote omitted). Whether the wholesalers intended their restraint to affect interstate commerce was simply irrelevant to our holding. See also United States v. McKesson & Robbins, . In the same way, the fact that respondents in the instant case may not have had the purposeful goal of affecting interstate commerce does not lead us to exempt that conduct from coverage under the Sherman Act.The Court of Appeals further justified its holding of "no substantial effect" by arguing that "no source of supply or insurance company or lending institution can be expected to go under if Mary Elizabeth doesn't expand, and no market price likely will be affected." 511 F.2d, at 684. While this may be true, it is not of great relevance to the issue of whether the "substantial effect" test is satisfied. An effect can be "substantial" under the Sherman Act even if its impact on interstate commerce falls far short of causing enterprises to fold or affecting market price. For instance in United States v. Employing Plasterers Assn., supra, we considered a Sherman Act challenge to an alleged conspiracy between a trade association and union officials to restrain competition among Chicago plastering contractors. As in the instant case, the District Court dismissed the action on the pleadings. It did so on the ground that the complaint amounted to no more than charges of "local restraint and monopoly," 347 U.S., at 188, not reached by the Sherman Act. The United States appealed directly to this Court under 2 of the Expediting Act, 32 Stat. 823, as amended, 15 U.S.C. 29, and we reversed. It was sufficient for us that the allegations in the complaint, if proved, could show that the conspiracy resulted in "unreasonable burdens on the free and uninterrupted flow of plastering materials into Illinois." 347 U.S., at 189 (emphasis added). We did not demand allegations, either express or implied, that the conspiracy threaten the demise of out-of-state businesses or that the conspiracy affect market prices.4 Thus, since in this case the allegations fairly claim that the alleged conspiracy, to the extent it is successful, will place "unreasonable burdens on the free and uninterrupted flow" of interstate commerce, they are wholly adequate to state a claim.We have held that "a complaint should not be dismissed for failure to state a claim 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, (footnote omitted). And in antitrust cases, where "the proof is largely in the hands of the alleged conspirators," Poller v. Columbia Broadcasting, , dismissals prior to giving the plaintiff ample opportunity for discovery should be granted very sparingly. Applying this concededly rigorous standard, we conclude that the instant case is not one in which dismissal should have been granted. Petitioner's complaint states a claim upon which relief can be granted under the Sherman Act.5 Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. So ordered.

Petitioner Samuel Ocasio, a former police officer, participated in a kickback scheme in which he and other officers routed damaged vehicles from accident scenes to an auto repair shop in exchange for payments from the shopowners. Petitioner was charged with obtaining money from the shopowners under color of official right, in violation of the Hobbs Act, 18 U. S. C. §1951, and of conspiring to violate the Hobbs Act, in violation of 18 U. S. C. §371. At trial, the District Court rejected petitioner's argument that — because the Hobbs Act prohibits the obtaining of property "from another"--a Hobbs Act conspiracy requires proof that the alleged conspirators agreed to obtain property from someone outside the conspiracy. Petitioner was convicted on all counts, and the Fourth Circuit affirmed. Petitioner now challenges his conspiracy conviction, contending that he cannot be convicted of conspiring with the shopowners to obtain money from them under color of official right. Held: A defendant may be convicted of conspiring to violate the Hobbs Act based on proof that he reached an agreement with the owner of the property in question to obtain that property under color of official right. Pp. 5-18. (a) The general federal conspiracy statute, under which petitioner was convicted, makes it a crime to "conspire . . . to commit any offense against the United States." 18 U. S. C. §371. Section 371's use of the term "conspire" incorporates age-old principles of conspiracy law. And under established case law, the fundamental characteristic of a conspiracy is a joint commitment to an "endeavor which, if completed, would satisfy all of the elements of [the underlying substantive] criminal offense." Salinas v. United States. A conspirator need not agree to commit the substantive offense — or even be capable of committing it — in order to be convicted. It is sufficient that the conspirator agreed that the underlying crime be committed by a member of the conspiracy capable of committing it. See id., at 63-65; United States v. Holte, 236 U. S. 140; Gebardi v. United States, 287 U. S. 112. Pp. 5-10. (b) These basic principles of conspiracy law resolve this case. To establish the alleged Hobbs Act conspiracy, the Government only needed to prove an agreement that some conspirator commit each element of the substantive offense. Petitioner and the shopowners reached just such an agreement: They shared a common purpose that petitioner and other police officers would obtain property "from another"--that is, from the shopowners — under color of official right. Pp. 10-14. (c) Contrary to petitioner's claims, this decision does not dissolve the distinction between extortion and conspiracy to commit extortion. Nor does it transform every bribe of a public official into a conspiracy to commit extortion. And while petitioner exaggerates the impact of this decision, his argument would create serious practical problems. Under his approach, the validity of a charge of Hobbs Act conspiracy would often depend on difficult property-law questions having little to do with culpability. Pp. 14-18.750 F. 3d 399, affirmed. Alito, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Breyer, and Kagan, JJ., joined. Breyer, J., filed a concurring opinion. Thomas, J., filed a dissenting opinion. Sotomayor, J., filed a dissenting opinion, in which Roberts, C. J., joined.Opinion of the Court 578 U. S. ____ (2016)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. 14-361SAMUEL OCASIO, PETITIONER v. UNITED STATESon writ of certiorari to the united states court of appeals for the fourth circuit[May 2, 2016] Justice Alito delivered the opinion of the Court. Petitioner Samuel Ocasio, a former officer in the Baltimore Police Department, participated in a kickback scheme with the owners of a local auto repair shop. When petitioner and other Baltimore officers reported to the scene of an auto accident, they persuaded the owners of damaged cars to have their vehicles towed to the repair shop, and in exchange for this service the officers received payments from the shopowners. Petitioner was convicted of obtaining money from the shopowners under color of official right, in violation of the Hobbs Act, 18 U. S. C. §1951, and of conspiring to violate the Hobbs Act, in violation of C. §371. He now challenges his conspiracy conviction, contending that, as a matter of law, he cannot be convicted of conspiring with the shopowners to obtain money from them under color of official right. We reject this argument because it is contrary to age-old principles of conspiracy law.I Hernan Alexis Moreno Mejia (known as Moreno) and Edwin Javier Mejia (known as Mejia) are brothers who co-owned and operated the Majestic Auto Repair Shop (Majestic). In 2008, Majestic was struggling to attract customers, so Moreno and Mejia made a deal with a Baltimore police officer, Jhonn Corona. In exchange for kickbacks, Officer Corona would refer motorists whose cars were damaged in accidents to Majestic for towing and repairs. Officer Corona then spread the word to other members of the force, and eventually as many as 60 other officers sent damaged cars to Majestic in exchange for payments of $150 to $300 per referral. Petitioner began to participate in this scheme in 2009. On several occasions from 2009 to 2011, he convinced accident victims to have their cars towed to Majestic. Often, before sending a car to Majestic, petitioner called Moreno from the scene of an accident to ensure that the make and model of the car, the extent of the damage, and the car's insurance coverage would allow the shopowners to turn a profit on the repairs. After directing a vehicle to Majestic, petitioner would call Moreno and request his payment. Because police are often among the first to arrive at the scene of an accident, the Baltimore officers were well positioned to route damaged vehicles to Majestic. As a result, the kickback scheme was highly successful: It substantially increased Majestic's volume of business and profits, and by early 2011 it provided Majestic with at least 90% of its customers. Moreno, Mejia, petitioner, and nine other Baltimore officers were indicted in 2011. The shopowners and most of the other officers eventually pleaded guilty pursuant to plea deals, but petitioner did not. In a superseding indictment, petitioner was charged with three counts of violating the Hobbs Act, 18 U. S. C. §1951, by extorting money from Moreno with his consent and under color of official right. As all parties agree, the type of extortion for which petitioner was convicted — obtaining property from another with his consent and under color of official right — is the "rough equivalent of what we would now describe as 'taking a bribe.' " Evans v. United States, 504 U. S. 255, 260 (1992). To prove this offense, the Government "need only show that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts." Id., at 268. Petitioner and another Baltimore officer, Kelvin Quade Manrich, were also charged with violating the general federal conspiracy statute, 18 U. S. C. §371. The indictment alleged that petitioner and Manrich conspired with Moreno, Mejia, and other Baltimore officers to bring about the same sort of substantive violations with which petitioner was charged. Before trial, petitioner began to raise a variant of the legal argument that has brought his case to this Court. He sought a jury instruction stating that "[i]n order to convict a defendant of conspiracy to commit extortion under color of official right, the government must prove beyond a reasonable doubt that the conspiracy was to obtain money or property from some person who was not a member of the conspiracy." App. 53. In support of this instruction, petitioner relied on the Sixth Circuit's decision in United States v. Brock, 501 F. 3d 762 (2007), which concerned two bail bondsmen who made payments to a court clerk in exchange for the alteration of court records. The Sixth Circuit held that "[t]o be covered by the [Hobbs Act], the alleged conspirators . . . must have formed an agreement to obtain 'property from another,' which is to say, formed an agreement to obtain property from someone outside the conspiracy." Id., at 767. The District Court did not rule on this request prior to trial. Petitioner's codefendant, Manrich, pleaded guilty during the trial, and at the close of the prosecution's case and again at the close of all evidence, petitioner moved for a judgment of acquittal on the conspiracy count based on Brock. The District Court denied these motions, concluding that the Fourth Circuit had already rejected Brock's holding in United States v. Spitler, 800 F. 2d 1267 (1986). The District Court also refused to give petitioner's proposed instruction. Instead, the court adopted the sort of standard instructions that are typically used in conspiracy cases. See generally L. Sand et al., Modern Federal Jury Instructions: Criminal §19.01 (2015). In order to convict petitioner of the conspiracy charge, the jury was told, the prosecution was required to prove (1) that two or more persons entered into an unlawful agreement; (2) that petitioner knowingly and willfully became a member of the conspiracy; (3) that at least one member of the conspiracy knowingly committed at least one overt act; and (4) that the overt act was committed to further an objective of the conspiracy. The court "caution[ed]" "that mere knowledge or acquiescence, without participation in the unlawful plan, is not sufficient" to demonstrate membership in the conspiracy. App. 195. Rather, the court explained, the conspirators must have had "a mutual understanding . . . to cooperate with each other to accomplish an unlawful act," and petitioner must have joined the conspiracy "with the intention of aiding in the accomplishment of those unlawful ends." Id., at 192, 195. The jury found petitioner guilty on both the conspiracy count and the three substantive extortion counts, and the District Court sentenced him to concurrent terms of 18 months in prison on all four counts. On appeal to the Fourth Circuit, petitioner's primary argument was the same one he had pressed before the District Court: that his conspiracy conviction was fatally flawed because the conspirators had not agreed to obtain money from a person who was not a member of the conspiracy. The Fourth Circuit rejected petitioner's argument and affirmed his convictions. 750 F. 3d 399 (2014). We then granted certiorari, 574 U. S. ___ (2015), and we now affirm.II Under longstanding principles of conspiracy law, a defendant may be convicted of conspiring to violate the Hobbs Act based on proof that he entered into a conspiracy that had as its objective the obtaining of property from another conspirator with his consent and under color of official right.A In analyzing petitioner's arguments, we begin with the text of the statute under which he was convicted, namely, the general federal conspiracy statute, which makes it a crime to "conspire . . . to commit any offense against the United States." 18 U. S. C. §371 (emphasis added). Section 371's use of the term "conspire" incorporates long-recognized principles of conspiracy law. And under established case law, the fundamental characteristic of a conspiracy is a joint commitment to an "endeavor which, if completed, would satisfy all of the elements of [the underlying substantive] criminal offense." Salinas v. United States, 522 U. S. 52, 65 (1997); see 2 J. Bishop, Commentaries on the Criminal Law §175, p. 100 (rev. 7th ed. 1882) ("Conspiracy, in the modern law, is generally defined as a confederacy of two or more persons to accomplish some unlawful purpose"); J. Hawley & M. McGregor, The Criminal Law 99-100 (3d ed. 1899) (similar); W. LaFave, Criminal Law 672 (5th ed. 2010) (similar). Although conspirators must "pursue the same criminal objective," "a conspirator [need] not agree to commit or facilitate each and every part of the substantive offense." Salinas, supra, at 63. A defendant must merely reach an agreement with the "specific intent that the underlying crime be committed" by some member of the conspiracy. 2 K. O'Malley, J. Grenig, & W. Lee, Federal Jury Practice and Instructions: Criminal §31:03, p. 225 (6th ed. 2008) (emphasis added); see also id., §31:02, at 220 (explaining that a defendant must "intend to agree and must intend that the substantive offense be committed" (emphasis added)). "The government does not have to prove that the defendant intended to commit the underlying offense himself/herself." Id., §31:03, at 226. Instead, "[i]f conspirators have a plan which calls for some conspirators to perpetrate the crime and others to provide support, the supporters are as guilty as the perpetrators." Salinas, supra, at 64; see Sand, supra, §19.01, at 19-54 ("[W]hen people enter into a conspiracy to accomplish an unlawful end, each and every member becomes an agent for the other conspirators in carrying out the conspiracy"). A few simple examples illustrate this important point. Entering a dwelling is historically an element of burglary, see, e.g., LaFave, supra, at 1069, but a person may conspire to commit burglary without agreeing to set foot inside the targeted home. It is enough if the conspirator agrees to help the person who will actually enter the dwelling, perhaps by serving as a lookout or driving the getaway car. Likewise, "[a] specific intent to distribute drugs oneself is not required to secure a conviction for participating in a drug-trafficking conspiracy." United States v. Piper, 35 F. 3d 611, 614 (CA1 1994). Agreeing to store drugs at one's house in support of the conspiracy may be sufficient. Ibid. Not only is it unnecessary for each member of a conspiracy to agree to commit each element of the substantive offense, but also a conspirator may be convicted "even though he was incapable of committing the substantive offense" himself. Salinas, supra, at 64; see United States v. Rabinowich, 238 U. S. 78, 86 (1915) ("A person may be guilty of conspiring although incapable of committing the objective offense"); Sand, supra, §19.01, at 19-3 ("[ Y ]ou may find the defendant guilty of conspiracy despite the fact that he himself was incapable of committing the substantive crime"). The Court applied these principles in two cases involving the Mann Act. See Act of June 25, 1910, ch. 395, 36 Stat. 825. Section 2 of the Mann Act made it a crime to transport a woman or cause her to be transported across state lines for an immoral purpose.1 In United States v. Holte, 236 U. S. 140 (1915), a federal grand jury charged a woman, Clara Holte, with conspiring with a man named Chester Laudenschleger to violate this provision. The District Court dismissed the charge against Holte, holding that because a woman such as Holte could not be convicted for the substantive offense of transporting herself or causing herself to be transported across state lines, she also could not be convicted of conspiring to commit that offense. In a succinct opinion by Justice Holmes, the Court rejected this argument, stating that "plainly a person may conspire for the commission of a crime by a third person," even if "she could not commit the substantive crime" herself. Id., at 144-145.2 The dissent argued that this holding effectively turned every woman who acquiesced in a covered interstate trip into a conspirator, see id., at 148 (opinion of Lamar, J.), but the Court disagreed. The Court acknowledged that "there may be a degree of coöperation" insufficient to make a woman a conspirator, but it refused to rule out the possibility that a woman could conspire to cause herself to be transported. Id., at 144. To illustrate this point, the Court provided the example of a woman who played an active role in planning and carrying out the trip.3 The Court expanded on these points in Gebardi v. United States, 287 U. S. 112 (1932), another Mann Act conspiracy case. A man and a woman were convicted for conspiring to transport the woman from one state to another for an immoral purpose. Id., at 115-116. In deciding the case, the Gebardi Court explicitly reaffirmed the longstanding principle that "[i]ncapacity of one to commit the substantive offense does not necessarily imply that he may with impunity conspire with others who are able to commit it." Id., at 120. Moreover, the Court fully accepted Holte's holding that a woman could be convicted of conspiring to cause herself to be transported across state lines. See 287 U. S., at 116-117. But the Court held that the evidence before it was insufficient to support the conspiracy convictions because it "show[ed] no more than that [the woman] went willingly upon the journeys for the purposes alleged." Id., at 117. Noting that there was no evidence that the woman was "the active or moving spirit in conceiving or carrying out the transportation," the Court held that the evidence of her "mere consent" or "acquiescence" was not enough. Id., at 117, 123.4 Holte and Gebardi make perfectly clear that a person may be convicted of conspiring to commit a substantive offense that he or she cannot personally commit. They also show that when that person's consent or acquiescence is inherent in the underlying substantive offense, something more than bare consent or acquiescence may be needed to prove that the person was a conspirator.B These basic principles of conspiracy law resolve this case. In order to establish the existence of a conspiracy to violate the Hobbs Act, the Government has no obligation to demonstrate that each conspirator agreed personally to commit — or was even capable of committing — the substantive offense of Hobbs Act extortion. It is sufficient to prove that the conspirators agreed that the underlying crime be committed by a member of the conspiracy who was capable of committing it. In other words, each conspirator must have specifically intended that some conspirator commit each element of the substantive offense.5 That is exactly what happened here: Petitioner, Moreno, and Mejia "share[d] a common purpose," namely, that petitioner and other police officers would commit every element of the substantive extortion offense. Salinas, 522 U. S., at 63-64. Petitioner and other officers would obtain property "under color of official right," something that Moreno and Mejia were incapable of doing because they were not public officials. And petitioner and other officers would obtain that money from "another," i.e., from Moreno, Mejia, or Majestic. Although Moreno and Mejia were incapable of committing the underlying substantive offense as principals,6 they could, under the reasoning of Holte and Gebardi, conspire to commit Hobbs Act extortion by agreeing to help petitioner and other officers commit the substantive offense. See Holte, 236 U. S., at 145 ("[A] conspiracy with an officer or employé of the government or any other for an offence that only he could commit has been held for many years to fall within the conspiracy section ... of the penal code"); see also Salinas, supra, at 63-64; Gebardi, supra, at 120-121; Rabinowich, 238 U. S., at 86. For these reasons, it is clear that petitioner could be convicted of conspiring to obtain property from the shopowners with their consent and under color of official right.C In an effort to escape this conclusion, petitioner argues that the usual rules do not apply to the type of Hobbs Act conspiracy charged in this case. His basic argument, as ultimately clarified,7 is as follows. All members of a conspiracy must share the same criminal objective. The objective of the conspiracy charged in this case was to obtain money "from another, with his consent . . . under color of official right." But Moreno and Mejia did not have the objective of obtaining money "from another" because the money in question was their own. Accordingly, they were incapable of being members of the conspiracy charged in this case. And since there is insufficient evidence in the record to show that petitioner conspired with anyone other than Moreno and Mejia, he must be acquitted. See Reply Brief 3-11, 17-20. This argument fails for a very simple reason: Contrary to petitioner's claim, he and the shopowners did have a common criminal objective. The objective was not that each conspirator, including Moreno and Mejia, would obtain money from "another" but rather that petitioner and other Baltimore officers would do so. See App. 36-37, Superseding Indictment ¶11 ("It was a purpose of the conspiracy for Moreno and Mejia to enrich over 50 BPD [Baltimore Police Department] Officers . . . in exchange for the BPD Officers' exercise of their official positions and influence to cause vehicles to be towed or otherwise delivered to Majestic"). Petitioner does not dispute that he was properly convicted for three substantive Hobbs Act violations based on proof that he obtained money "from another." The criminal objective on which petitioner, Moreno, and Mejia agreed was that petitioner and other Baltimore officers would commit substantive violations of this nature. Thus, under well-established rules of conspiracy law, petitioner was properly charged with and convicted of conspiring with the shopowners. Nothing in the text of the Hobbs Act even remotely undermines this conclusion, and petitioner's invocation of the rule of lenity8 and principles of federalism9 is unavailing.1 Petitioner argues that our interpretation makes the Hobbs Act sweep too broadly, creating a national antibribery law and displacing a carefully crafted network of state and federal statutes. He contends that a charge of conspiring to obtain money from a conspirator with his consent and under color of official right is tantamount to a charge of soliciting or accepting a bribe and that allowing such a charge undermines 18 U. S. C. §666 (a federal bribery statute applicable to state and local officials) and state bribery laws. He also argues that extortion conspiracies of this sort were not known prior to the enactment of the Hobbs Act and that there is no evidence that Congress meant for that Act to plow this new ground. The subtext of these arguments is that it seems unnatural to prosecute bribery on the basis of a statute prohibiting "extortion," but this Court held in Evans that Hobbs Act extortion "under color of official right" includes the "rough equivalent of what we would now describe as 'taking a bribe.' " 504 U. S., at 260. Petitioner does not ask us to overturn Evans, see, e.g., Brief for Petitioner 1; Tr. of Oral Arg. 4-5, 12-13, and we have no occasion to do so. Having already held that §1951 prohibits the "rough equivalent" of bribery, we have no principled basis for precluding the prosecution of conspiracies to commit that same offense.10 Petitioner also exaggerates the reach of our decision. It does not, as he claims, dissolve the distinction between extortion and conspiracy to commit extortion. Because every act of extortion under the Hobbs Act requires property to be obtained with "consent," petitioner argues, proof of that consent will always or nearly always establish the existence of a conspiratorial agreement and thus allow the Government to turn virtually every such extortion case into a conspiracy case. But there are plenty of instances in which the "consent" required under the Hobbs Act will not be enough to constitute the sort of agreement needed under the law of conspiracy. As used in the Hobbs Act, the phrase "with his consent" is designed to distinguish extortion ("obtaining of property from another, with his consent," 18 U. S. C. §1951(b)(2) (emphasis added)) from robbery ("obtaining of personal property from the person or in the presence of another, against his will," §1951(b)(1) (emphasis added)). Thus, "consent" simply signifies the taking of property under circumstances falling short of robbery, and such "consent" is quite different from the mens rea necessary for a conspiracy. This conclusion is clear from the language of §1951 prohibiting the obtaining of property "from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear." §1951(b)(2) (emphasis added). This language applies when, for example, a store owner makes periodic protection payments to gang members out of fear that they will otherwise trash the store. While these payments are obtained with the store owner's grudging consent, the store owner, simply by making the demanded payments, does not enter into a conspiratorial agreement with the gang members conducting the shakedown. See Salinas, 522 U. S., at 63-65 (conspirators must pursue "the same criminal objective"); United States v. Bailey, 444 U. S. 394, 405 (1980) (conspiracy requires "a heightened mental state"); Anderson v. United States, 417 U. S. 211, 223 (1974) ("the prosecution must show that the offender acted with a specific intent"). Just as mere acquiescence in a Mann Act violation is insufficient to create a conspiracy, see Gebardi, 287 U. S., at 121-123; Holte, 236 U. S., at 145, the minimal "consent" required to trigger §1951 is insufficient to form a conspiratorial agreement. Our interpretation thus does not turn virtually every act of extortion into a conspiracy. Nor does our reading transform every bribe of a public official into a conspiracy to commit extortion. The "consent" required to pay a bribe does not necessarily create a conspiratorial agreement. In cases where the bribe payor is merely complying with an official demand, the payor lacks the mens rea necessary for a conspiracy. See Sa- linas, supra, at 63-65; Bailey, supra, at 405; Anderson, supra, at 223; Gebardi, supra, at 121-123. For example, imagine that a health inspector demands a bribe from a restaurant owner, threatening to close down the restaurant if the owner does not pay. If the owner reluctantly pays the bribe in order to keep the business open, the owner has "consented" to the inspector's demand, but this mere acquiescence in the demand does not form a conspiracy.112 While petitioner exaggerates the impact of our decision, his argument would create serious practical problems. The validity of a charge of Hobbs Act conspiracy would often depend on difficult property-law questions having little to do with criminal culpability. In this case, for example, ownership of the money obtained by petitioner is far from clear. It appears that the funds came from Majestic's account, App. 97-98, 149, and there is evidence that during the period of petitioner's membership in the conspiracy, Majestic was converted from a limited liability company to a regular business corporation, id., at 145; App. in No. 12-4462 (CA4), pp. 655-656, 736. After that transformation, the money obtained by petitioner may have come from corporate funds. A corporation is an entity distinct from its shareholders, and therefore, even under petitioner's interpretation of the applicable law, Moreno and Mejia would have agreed that petitioner would obtain money "from another," not from them. Suppose that Moreno or Mejia had made the payments by taking money from a personal bank account. Would that dictate a different outcome? Or suppose that Majestic was a partnership and the payments came from a company account. Would that mean that Moreno agreed that officers would obtain money "from another" insofar as they would obtain Mejia's share of the partnership funds and that Mejia similarly agreed that officers would obtain money "from another" insofar as they would obtain the share belonging to Moreno? Or consider this example. Suppose that the owner and manager of a nightclub reach an agreement with a public official under which the owner will bribe the official to approve the club's liquor license application. Under petitioner's approach, the public official and the club manager may be guilty of conspiring to commit extortion, because they agreed that the official would obtain property "from another"--that is, the owner. But as "the 'another' from whom the property is obtained," Reply Brief 10, the owner could not be prosecuted. There is no apparent reason, however, why the manager but not the owner should be culpable in this situation.III A defendant may be convicted of conspiring to violate the Hobbs Act based on proof that he reached an agreement with the owner of the property in question to obtain that property under color of official right. Because petitioner joined such an agreement, his conspiracy conviction must stand. The judgment of the United States Court of Appeals for the Fourth Circuit is affirmed.It is so ordered.Breyer, J., concurring 578 U. S. ____ (2016)No. 14-361SAMUEL OCASIO, PETITIONER v. UNITED STATESon writ of certiorari to the united states court of appeals for the fourth circuit[May 2, 2016] Justice Breyer, concurring. I agree with the sentiment expressed in the dissenting opinion of Justice Thomas that Evans v. United States, 504 U. S. 255 (1992), may well have been wrongly decided. See post, at 1-2. I think it is an exceptionally difficult question whether "extortion" within the meaning of the Hobbs Act is really "the rough equivalent of . . . taking a bribe," Evans, 504 U. S., at 260 (internal quotation marks omitted)--especially when we admittedly decided that question in that case without the benefit of full briefing on extortion's common-law history, see id., at 272 (O'Connor, J., concurring in part and concurring in judgment) ("Neither party in this case has briefed or argued the question"). The present case underscores some of the problems that Evans raises. For example, as in the scenario presented by today's Court, where the public health inspector asks for money from a restaurant owner in exchange for favorable reports, see ante, at 16, courts (and juries) will have to draw the difficult distinction between the somewhat involuntary behavior of the bribe payor and the voluntary behavior of the same bribe payor, which may determine whether there is or is not a conspiracy. Compare United States v. Holte, 236 U. S. 140, 144-145 (1915) (finding that a transported woman could conspire to violate the Mann Act), with Gebardi v. United States, 287 U. S. 112, 117, 123 (1932) (finding no such conspiracy). Nonetheless, we must in this case take Evans as good law. See Tr. of Oral Arg. 20 (Petitioner "take[s] th[e] holding [in Evans] as a given"). That being so, I join the majority's opinion in full.Thomas, J., dissenting 578 U. S. ____ (2016)No. 14-361SAMUEL OCASIO, PETITIONER v. UNITED STATESon writ of certiorari to the united states court of appeals for the fourth circuit[May 2, 2016] Justice Thomas, dissenting. Today the Court holds that an extortionist can conspire to commit extortion with the person whom he is extorting. See ante, at 18. This holding further exposes the flaw in this Court's understanding of extortion. In my view, the Court started down the wrong path in Evans v. United States, 504 U. S. 255 (1992), which wrongly equated extortion with bribery. In so holding, Evans made it seem plausible that an extortionist could conspire with his victim. Rather than embrace that view, I would not extend Evans' errors further. Accordingly, I respectfully dissent.I The Hobbs Act makes it a crime to "obstruc[t], dela[y], or affec[t] commerce . . . by . . . extortion." 18 U. S. C. §1951(a). The Act defines "extortion" as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." §1951(b)(2). In Evans, this Court held that, to obtain a conviction for extortion "under color of official right," the Government need show only "that a public official has obtained a payment to which he was not entitled, knowing that the payment was made in return for official acts." 504 U. S., at 268. The Court therefore interpreted "extortion" under the Hobbs Act to be "the rough equivalent of . . . 'taking a bribe.' " Id., at 260. I dissented in Evans because the Court's holding disregarded the "definite and well-established meaning" of the "under color of official right" element of extortion. Id., at 279 (internal quotation marks omitted). " 'At common law it was essential that . . . money or property be obtained under color of office, that is, under the pretense that the officer was entitled thereto by virtue of his office. The money or thing received must have been claimed or accepted in right of office, and the person paying must have yielded to official authority.' " Ibid. (quoting 3 R. Anderson, Wharton's Criminal Law and Procedure §1393, pp. 790-791 (1957); emphasis deleted). When Congress enacted the Hobbs Act in 1946, "the offense was [thus] understood to involve not merely a wrongful taking by a public official, but a wrongful taking under a false pretense of official right." 504 U. S., at 281 (emphasis deleted). Given the established meaning of under-color-of-official-right extortion adopted in the Hobbs Act, the Court in Evans erred in equating common-law extortion with taking a bribe. Id., at 283. Bribery and extortion are different crimes. Ibid. With extortion, "the public official is the sole wrongdoer." Ibid. Because the official "acts 'under color of office,' the law regards the payor as an innocent victim and not an accomplice." Ibid. An official who solicits or takes a bribe, by contrast, does not do so "under color of office"--that is, "under [a] pretense of official entitlement." Ibid. With bribery, "the payor knows the recipient official is not entitled to the payment," and "he, as well as the official, may be punished for the offense." Ibid. (emphasis deleted).II Relying on Evans' definition of Hobbs Act extortion, see ante, at 2-3, 14, the Court holds that an extortionist can conspire to commit extortion with the person whom he is extorting. Ante, at 10-11, 18. That holding is irreconcilable with a correct understanding of Hobbs Act extortion and needlessly extends Evans' error to the conspiracy context. The general federal conspiracy statute makes it a crime for "two or more persons [to] conspire ... to commit any offense against the United States." 18 U. S. C. §371. To be guilty of conspiracy to commit under-color-of-official-right extortion, then, two or more persons must conspire to "obtai[n] . . . property from another, with his consent, induced . . . under color of official right." §1951(b)(2). Under a correct understanding of Hobbs Act extortion, it is illogical and wrong to say that two people conspired to extort one of themselves. As explained, in a Hobbs Act extortion case, the only perpetrator is the public official; the payor is a victim and not a participant. See Evans, 504 U. S., at 283 (Thomas, J., dissenting). That understanding is irreconcilable with the view that an extortionist and his payor-victim can be co-conspirators to extortion of the payor. If a payor conspires with a public official for the payor to pay that official, then — whatever the two can be said to have done — they have not conspired to obtain payments to that official "under . . . pretense of official entitlement." Ibid. The extortionist and payor both know that the official is not entitled to the payments as a matter of his office. They have not conspired to commit Hobbs Act extortion. The record confirms that the scheme here did not involve extortion as the common law understood that crime. Far from victimizing repair-shop owners Alexis Moreno and Edwin Mejia, the allegedly extortionate scheme benefited them and their repair shop. Over time, 90% or more of the shop's business came from paid-for referrals from police officers. Moreno and Mejia worked with Ocasio and other officers to maximize the shop's profits from the scheme. Moreno and Mejia both pleaded guilty to Hobbs Act extortion and conspiracy — belying any claim that they were innocent victims. The Government itself does not maintain that the repair-shop owners paid Ocasio based on his assertion of "a false pretense of official right to the payment[s]." Id., at 282 (Thomas, J., dissenting). The Government is instead emphatic that Moreno and Mejia "participated as full partners" in the scheme and that "[t]he record . . . refutes any suggestion that [they] were the 'victims' of th[e] scheme." Brief for United States 41. Whatever crime Ocasio may have committed, it was not a conspiracy to commit extortion. To be sure, the Court's conclusion is plausible under Evans' redefinition of extortion. But that is a reason not to extend Evans' error. Only by blurring the distinction between bribery and extortion could Evans make it seem plausible that an extortionist and a victim can conspire to extort the victim. The Court today takes another step away from the common-law understanding of extortion that the Hobbs Act adopted.III The Court's decision is unfortunate because it expands federal criminal liability in a way that conflicts with principles of federalism. Even when Evans was decided nearly 25 years ago, the Hobbs Act had already "served as the engine for a stunning expansion of federal criminal jurisdiction into a field traditionally policed by state and local laws — acts of public corruption by state and local officials." 504 U. S., at 290 (Thomas, J., dissenting). By disregarding the distinction between extortion and bribery, Evans expanded the Hobbs Act to allow federal prosecutors to reach more conduct by state and local government officials. See id., at 291-294. That expansion was unwarranted. Congress had not made its intent to regulate state officials "unmistakably clear in the language of the" Hobbs Act, Gregory v. Ashcroft, 501 U. S. 452, 460 (1991) (internal quotation marks omitted), so this Court had no basis for reading the Hobbs Act so expansively. Evans, supra, at 291-292 (Thomas, J., dissenting); see Jones v. United States, 529 U. S. 848, 858 (2000) ("[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance in the prosecution of crimes" (internal quotation marks omitted)). Today the Court again broadens the Hobbs Act's reach to enable federal prosecutors to punish for conspiracy all participants in a public-official bribery scheme. The invasion of state sovereign functions is again substantial. The Federal Government can now more expansively charge state and local officials. And it can now more easily obtain pleas or convictions from these officials: Because the Government can prosecute bribe-payors with sweeping conspiracy charges, it will be easier to induce those payors to plead out and testify against state and local officials. The Court thus further wrenches from States the presumptive control that they should have over their own officials' wrongdoing. As in Evans, the Court cites no statutory text "clearly" authorizing this intrusion into matters presumptively left to the States. Jones, supra, at 858. As in Evans, there is no need for the Court's overreach because state law already punishes the conduct at issue here. See Md. Crim. Law Code Ann. §9-201 (2012) (punishing bribery of and bribery by a public official); cf. United States v. Brock, 501 F. 3d 762, 769 (CA6 2007) ("No one doubts that the States have criminal laws prohibiting their citizens from bribing public officials. [We cannot think of] any reason to doubt the States' willingness to invoke these laws when their citizens engage in [a brazen bribery scheme]"). And, as in Evans, the Court reaches its decision with barely a nod to the sovereignty interests that it tramples. See ante, at 13-14, and n. 9 (summarily dismissing as "unavailing" Ocasio's "invocation of . . . principles of federalism"). As in Evans, I cannot agree.* * * Consistent with the Hobbs Act's text, I would hold that an extortionist cannot conspire to commit extortion with the person whom he is extorting. Accordingly, I would reverse the Court of Appeals' judgment upholding Ocasio's conspiracy conviction. For these reasons, I respectfully dissent.Sotomayor, J., dissenting 578 U. S. ____ (2016)No. 14-361SAMUEL OCASIO, PETITIONER v. UNITED STATESon writ of certiorari to the united states court of appeals for the fourth circuit[May 2, 2016] Justice Sotomayor, with whom The Chief Justice joins, dissenting. If a group of conspirators sets out to extort "another" person, we ordinarily think that they are proposing to extort money or property from a victim outside their group, not one of themselves. Their group is the conspiratorial entity and the victim is "another" person. But in upholding the conspiracy conviction here, the Court interprets the phrase extorting property "from another" in the Hobbs Act contrary to that natural un-derstanding. It holds that a group of conspirators can agree to obtain property "from another" in violation of the Act even if they agree only to transfer property among themselves. That is not a natural or logical way to interpret the phrase "from another." I respectfully dissent.I The indictment here charged Ocasio, a former Baltimore police officer, with participating in a kickback scheme engineered by the owners of a local auto repair shop, brothers Herman Moreno and Edwin Mejia. Ocasio and other Baltimore officers referred car-accident victims to the brothers' shop for body repair work. In exchange, Moreno and Mejia paid Ocasio between $150 and $300 for each referral. The indictment pleaded that Ocasio, other officers, and the brothers conspired in violation of the federal conspiracy statute, 18 U. S. C. §371, to commit extortion in violation of the Hobbs Act, §1951. The federal conspiracy statute applies whenever "two or more persons conspire" to commit a federal offense and at least one of them acts in furtherance of the offense. §371. The Hobbs Act, a federal offense, punishes "[w]hoever" commits "extortion," §1951(a), and defines "extortion" as "the obtaining of property from another, with his consent, . . . under color of official right," §1951(b)(2). "Extortion" includes taking a bribe. See Evans v. United States, 504 U. S. 255 (1992).1 Putting this all together, in charging Ocasio with conspiring to commit extortion, prosecutors charged him with agreeing to take bribes "from another" person. §1951(b)(2). At trial, rather than attempt to prove that Ocasio agreed with other officers to take bribes from Moreno and Mejia, the Government contended that when Ocasio agreed to take the brothers' bribes, he and the brothers agreed that Ocasio would obtain property "from another" person, i.e., someone other than himself. Ocasio argued, by contrast, that it is impossible for a group of people to agree to obtain property "from another" without evidence that "another" person outside the conspiratorial agreement gave up their property. Ocasio conceded that he alone could violate the Hobbs Act by taking a bribe from one of the brothers, but maintained that he and the brothers as a group could not also violate the conspiracy statute by agreeing that one of them would take a bribe from themselves. This Court now rejects Ocasio's interpretation.II The Hobbs Act criminalizes extortion where a public official obtains property "from another." §1951(b)(2). The question here is how to define "another" in the context of a conspiracy to commit extortion. "Another" is a relational word. It describes how one entity is connected to a different entity. In particular, it describes an entity "different or distinct from the one first considered." Merriam-Webster's Collegiate Dictionary 51 (11th ed. 2003).2 In this case — a conspiracy to violate the Hobbs Act by obtaining property "from another"--the relevant entity to consider is the conspiratorial group. The federal generic conspiracy statute makes it a crime for two or more people to "conspire." §371. This Court gives the word "conspire" its conventional meaning. See Salinas v. United States, 522 U. S. 52, 63 (1997). To "conspire" is to agree, and the crux of a "conspiracy" is a "collective criminal agreement--[a] partnership in crime." Callanan v. United States, 364 U. S. 587, 593 (1961). The most natural reading of "conspiring" to obtain property "from another," then, is a collective agreement to obtain property from an entity different or distinct from the conspiracy. But Ocasio, Moreno, and Mejia did not agree that Ocasio would obtain property from a person different or distinct from the conspirators as a group. They agreed only that Ocasio would take property from Moreno and Mejia — people who are part of rather than distinct from the conspiracy. "These three people did not agree, and could not have agreed, to obtain property from 'another' when no other person was involved." United States v. Brock, 501 F. 3d 762, 767 (CA6 2007). This understanding of "another"--that it refers to someone outside the conspiracy — is consistent not only with the plain meaning of the Hobbs Act, but also with this Court's precedent explaining that the purpose of conspiracy law is to target the conduct of group crimes. Conspiracy law punishes the "collective criminal agreement," because a "[c]ombination" or "[g]roup association for criminal purposes" is more dangerous than separate individuals acting alone. Callanan, 364 U. S., at 593. A conspiracy is "a partnership in crime," a "confederation," a "scheme," and an "enterprise." Pinkerton v. United States, 328 U. S. 640, 644, 646-647 (1946). Accordingly, the law treats a conspiracy, at least in some ways, as an entity distinct from its individual members. A defendant is guilty of conspiracy only if he agrees that the conspiratorial group intends to commit all the elements of the criminal offense. Salinas, 522 U. S., at 65 ("A conspirator must intend to further an endeavor which, if completed, would satisfy all of the elements of a substantive criminal offense"). Because the focus is on the group's conduct — what "endeavor" they have agreed to commit collectively — when individual members of a conspiracy act to advance the conspiratorial endeavor, they act not on behalf of themselves, but as "agents for [the conspiracy's] performance." Hyde v. United States, 225 U. S. 347, 369 (1912). It does not matter if a single member of the group undertakes to commit every element of the offense. Sa- linas, 522 U. S., at 63-64 ("The partners in the criminal plan must agree to pursue the same criminal objective and may divide up the work, yet each is responsible for the acts of each other"). When that one member acts as an agent for the conspiracy in furthering their collective endeavor, his actions are "attributable to the others," not just the individual agent alone. Pinkerton, 328 U. S., at 647; see also id., at 646 ("[S]o long as the partnership in crime continues, the partners act for each other in carrying it forward"). Accordingly, whether a criminal conspiracy exists depends on what the conspirators agreed to do as a group. This principle confirms that "from another" is best understood as relating the conspiratorial enterprise to another person outside the conspiracy. A conspiracy to obtain property "from another," then, is the group agreement that at least one member of the group will obtain property from someone who is not a part of their endeavor. Departing from this natural reading of the text, the Court holds that Ocasio can be punished for conspiracy because Ocasio obtained property "from another" (Moreno and Mejia) and Ocasio, Moreno, and Mejia agreed that Ocasio would engage in that conduct. In order to reach this conclusion, the Court implicitly assumes that the Hobbs Act's use of "from another" takes as its reference point only a single member of the conspiracy, here, Ocasio, rather than the group of conspirators as a whole. See ante, at 5. But what is the basis for that assumption? The Court never explains. It is not based on the plain language of the Hobbs Act. A natural reading of the text seems to foreclose it — Moreno and Mejia are not "distinct or different from" the group that formed the "collective criminal agreement." And the Court's assumption does not follow from prior precedent or any first principles of conspiracy law. See Part III, infra. Both the plain meaning of the statute and general principles of conspiracy law lead to the same conclusion: A conspiracy to commit extortion by obtaining property "from another" in violation of the Hobbs Act should exist only when the conspirators agree to obtain property from someone outside the conspiracy.III The Court does not ground its decision in the Hobbs Act's use of the language "from another." It instead relies on what it says are "age-old principles of conspiracy law." Ante, at 1. But it does so to no avail. Most of these so-called principles are derived from decisions that turn on interpreting the text of another federal statute — the Mann Act. And the remaining generic principles the Court cites do not resolve the precise question in this case: whether the Hobbs Act's use of the phrase obtain property "from another" adopts the perspective of an individual conspirator or the conspiratorial group as a collective. The Court's best support comes from cases interpreting the Mann Act, which made it a crime for "any person [to] knowingly transport . . . in interstate or foreign commerce . . . any woman or girl for the purpose of prostitution or debauchery." Ante, at 7-11 (quoting ch. 395, 36 Stat. 825) (emphasis deleted). In one of its decisions, this Court held that even though the transported "woman or girl" was ostensibly the victim of the crime, nothing in the statute precluded prosecutors from also convicting the woman for conspiring with another person to transport herself illegally. United States v. Holte, 236 U. S. 140, 144 (1915). From this, the Court derives a generic principle of conspiracy law that a victim of Hobbs Act extortion can also be liable as a co-conspirator, just like the victim of a Mann Act violation can. Ante, at 8-11. The Court stretches this Mann Act case beyond its tethers. The Court in Holte based its analysis entirely on the text of the Act, not generic principles of conspiracy law. Unlike the Hobbs Act's use of "another person," the Mann Act prohibits transporting "any woman." Based on this language, the Court concluded that a woman could be held liable for conspiring with others to violate the Act. Holte, 236 U. S., at 144-45. For example, a "professional prostitute" could "suggest and carry out a journey" and "buy the railroad tickets." Id., at 145; see also 36 Stat. 825 (Mann Act) (specifying that "procuring or obtaining, any ticket or tickets" was assistance of a criminal sort). Thus, the Court held, "she would be within the letter of the act . . . , and we see no reason why the act should not be held to apply." 236 U. S., at 145 (emphasis added). Moreover, because Holte based its holding on the text of the relevant substantive offense, its reasoning is consistent with this Court's actual principles of conspiracy, which adopt the perspective of the conspiratorial group to determine if their agreed-upon conduct violated the text of the statute. If the members of an alleged Mann Act conspiracy agree to transport illegally "any woman," the group enterprise can logically and naturally intend to transport a female member of the group. But that logic does not hold in this case, where the Hobbs Act requires the conspirators to agree to obtain property "from another." "Any," unlike "another," is not a relational word that requires determining who is in the group and who is out. The Court similarly attempts to create a generic conspiracy principle when it cites Gebardi v. United States, 287 U. S. 112 (1932), another Mann Act case that relies on the Act's text. In Gebardi, the Court considered the question whether a woman who merely acquiesced to being transported could be held liable for conspiring to violate the Act. The Court held that a conspiracy could exist only if the woman aided and assisted in her own transportation — something more than "mere agreement" or "mere acquiescence" to being transported. Id., at 119, 123. The Court based this decision explicitly on the language of the Mann Act, which "does not punish the woman for transporting herself . . . . For the woman to fall within the ban of the statute she must, at the least, 'aid or assist' someone else in transporting or in procuring transportation for herself." Id., at 118-119. Accordingly, the Court reasoned, the "necessary implication" of Congress' decision not to include a woman who merely consents in the scope of the Act was "that when the Mann Act and the conspiracy statute came to be construed together, as they necessarily would be," Congress did not intend for that woman to nevertheless always be held liable as a conspirator. Id., at 123. This Court later characterized Gebardi's holding as an "exceptio[n] of a limited character" to ordinary conspiracy law based on the "definition of the substantive offense," i.e., the text of the statute. Pinkerton, 328 U. S., at 643. Whatever ordinary conspiracy principles might dictate, it was clear what Congress intended the outcome to be in that case. The Court tries to elicit a general principle of conspiracy law from Gebardi: that while the ostensible victim of the statute — there a woman transported, here a person paying a bribe — cannot be convicted as a co-conspirator if she merely acquiesces to the transportation or bribe, an active participant in the conspiratorial group can nevertheless be found guilty of conspiracy. Ante, at 15-16. The Court draws this rough analogy in an attempt to cabin the scope of future Hobbs Act conspiracy charges to exclude potential defendants whose participation in extortion amounts to no more than "mere acquiescence." But this ignores the reasoning of Gebardi — the Court's reliance on the express terms of the Mann Act, not any generic conspiracy principles, led the Court to exclude a woman who "merely acquiesces" to being transported. In addition to the Mann Act, the Court argues that its interpretation is correct because Mejia and Moreno can be held liable for conspiring to commit extortion even though they were incapable of committing the substantive crime themselves. (Because they are not public officials, Mejia and Moreno cannot obtain property "under color of official right." Ante, at 5-7.) True enough. But this principle does not lead to the conclusion that "from another" takes the perspective of Ocasio as its reference point, as opposed to the conspiratorial group. For example, suppose a politician and a lobbyist conspire to have the lobbyist tell his clients to pay the politician bribes in exchange for official acts. The lobbyist cannot obtain those bribes under color of official right and so could not be charged with a substantive Hobbs Act extortion violation. But the conspiracy would still violate the Hobbs Act, see Evans, 504 U. S., at 268, because the conspiratorial group obtained property "from another," i.e., from the clients who are outside the conspiracy that exists between the lobbyist and the politician. Now suppose the lobbyist instead agrees to pay the bribe himself. We would be back to the question at the heart of this case. The Court's incapable-of-committing-the-substantive-offense principle therefore cannot do the work the Court thinks it does. It is entirely consistent to say obtaining property "from another" in violation of the Hobbs Act requires the conspirators to agree to obtain property from someone outside the conspiracy, and to say that every conspirator who enters into that agreement need not be capable of committing the substantive offense himself. Finally, the Court raises policy concerns: It mentions that it would be odd to immunize the ostensible victims of a conspiracy to commit extortion — here, Mejia and Moreno — if they play just as active a role in the conspiracy as other members. Ante, at 18. While perhaps odd, that concern does not warrant the Court's contortion of conspiracy law where there are other criminal statutes — like federal antibribery laws and state laws — that reach similar conduct. See, e.g., 18 U. S. C. §666 (criminalizing bribery of state, local, or tribal officials in specified circumstances); Md. Crim. Law Code Ann. §9-201 (2012) (criminalizing bribery of public employee).3 Of course, the Government could have attempted to convict Ocasio for conspiracy on these facts without relying on the Court's odd theory — for example, by proving that Ocasio conspired with other Baltimore police officers to extort property from the brothers. And, in its effort to make sure Ocasio, Moreno, and Mejia get their just deserts, the Court's atextual interpretation of the Hobbs Act exposes innocent victims of extortion to charges that they "conspired" with their extorter whenever they agree to pay a bribe. The Court says not to worry, it will limit the scope of a conspiracy to exclude potential defendants whose participation in the extortion amounts to no more than "mere acquiescence," analogizing to Gebardi. Ante, at 15-16. But Gebardi grounded its "mere acquiescence" standard in the text of the Mann Act. See supra, at 8-9. Here, without any textual hook in the Hobbs Act, the Court rests on no more than intuitions drawn from basic examples. If a restaurant owner threatened with closure by a health official reluctantly pays a bribe, the Court says that the owner is not guilty of conspiracy. Ante, at 16. According to the Court, he "consented" to extortion, but his mere acquiescence to an "official demand" did not create a conspiratorial agreement. Ibid. By contrast, the Court says, if a nightclub owner pursues a liquor license by asking his manager to bribe a public official, he is clearly guilty of conspiracy. Ante, at 18. He agreed with the public official that the official would obtain property "from another," i.e., from him, in exchange for a license. Ibid. These examples raise more questions than answers. When does mere "consent" tip over into conspiracy? Does it depend on whose idea it was? Whether the bribe was floated as an "official demand" or a suggestion? How happy the citizen is to pay off the public official? How much money is involved? Whether the citizen gained a benefit (a liquor license) or avoided a loss (closing the restaurant)? How many times the citizen paid the bribes? Whether he ever resisted paying or called the police? The Court does not say. It leaves it for federal prosecutors to answer those questions in the first instance, raising the specter of potentially charging everybody with conspiracy and seeing what sticks and who flips.* * * When three people agree to obtain property "from another," the everyday understanding of their agreement is that they intend to obtain property from someone outside of their conspiracy. The Court reaches the opposite conclusion, based entirely on an assumption that the Hobbs Act's use of "from another" takes as its reference point the vantage of Ocasio alone, rather than the group endeavor that constitutes conspiracy. The Court offers no explanation — grounded in either the text of the statute or so-called "age-old principles of conspiracy law"--for why that assumption is correct. Conspiracy has long been criticized as vague and elastic, fitting whatever a prosecutor needs in a given case. See, e.g., Krulewitch v. United States, 336 U. S. 440, 445-457 (1949) (Jackson, J., concurring). This Court has warned that "we will view with disfavor attempts to broaden the already pervasive and wide-sweeping nets of conspiracy prosecutions." Grunewald v. United States, 353 U. S. 391, 404 (1957). Today, in reaching an unnatural outcome predicated on an unsupported assumption, the Court says never mind. I respectfully dissent.FOOTNOTESFootnote 1 In full, §2 provided as follows: "That any person who shall knowingly transport or cause to be transported, or aid or assist in obtaining transportation for, or in transporting, in interstate or foreign commerce, or in any Territory or in the District of Columbia, any woman or girl for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent and purpose to induce, entice, or compel such woman or girl to become a prostitute or to give herself up to debauchery, or to engage in any other immoral practice; or who shall knowingly procure or obtain, or cause to be procured or obtained, or aid or assist in procuring or obtaining, any ticket or tickets, or any form of transportation or evidence of the right thereto, to be used by any woman or girl in interstate or foreign commerce, or in any Territory or the District of Columbia, in going to any place for the purpose of prostitution or debauchery, or for any other immoral purpose, or with the intent or purpose on the part of such person to induce, entice, or compel her to give herself up to the practice of prostitution, or to give herself up to debauchery, or any other immoral practice, whereby any such woman or girl shall be transported in interstate or foreign commerce, or in any Territory or the District of Columbia, shall be deemed guilty of a felony, and upon conviction thereof shall be punished by a fine not exceeding five thousand dollars, or by imprisonment of not more than five years, or by both such fine and imprisonment, in the discretion of the court." Act of June 25, 1910, ch. 395, 36 Stat. 825 (emphasis added).Footnote 2 The Court assumed that Holte could not be convicted as a principal for the substantive offense of causing herself to be transported across state lines. But the Court noted that it might be possible for a woman to violate §2 of the Mann Act in a different way: by "aiding in procuring any form of transportation for" a covered interstate trip. Holte, 236 U. S., at 144; see 36 Stat. 825 ("aid or assist in obtaining transportation"). If a woman could commit that substantive §2 violation, the Court explained, there is no reason why she could not also be convicted of conspiring to commit that offense. See 236 U. S., at 145. The Court, however, refused to hold that this was the only ground on which a woman like Holte could be convicted for conspiring to violate §2. Id., at 144-145. It thus addressed the broader question of whether it was possible for a woman in Holte's position to commit the offense of conspiring "that Laudenschleger should procure transportation and should cause [Holte] to be transported." Id., at 144.Footnote 3 The Court wrote: "Suppose, for instance, that a professional prostitute, as well able to look out for herself as was the man, should suggest and carry out a journey within the act of 1910 in the hope of blackmailing the man, and should buy the railroad tickets, or should pay the fare from Jersey City to New York, she would be within the letter of the act of 1910, and we see no reason why the act should not be held to apply." Id., at 145. Footnote 4 The path of reasoning by which the Gebardi Court reached these conclusions was essentially as follows: First, the Court perceived in §2 of the Mann Act a congressional judgment that a woman should not be convicted for the offense created by that provision if she did no more than consent to or acquiesce in the interstate trip. Gebardi, 287 U. S., at 123. The Court concluded that the transported woman could never be convicted under the language prohibiting a person from transporting a woman or causing a woman to be transported across state lines for an immoral purpose. See id., at 118-119 ("The Act does not punish the woman for transporting herself "). And with respect to the statutory language making it a crime to " 'aid or assist' someone else in transporting or in procuring transportation for herself," the Court held that aiding and assisting requires more than mere "consent" or "acquiescence." Id., at 119; see also Rosemond v. United States, 572 U. S. ___, ___-___ (2014) (slip op., at 7-9) (aiding and abetting requires intent to facilitate commission of offense). Second, turning to the issue of conspiracy, the Court reasoned that something more than the woman's mere consent or acquiescence was needed to avoid undermining the congressional judgment that it saw in §2. The Court framed its holding as follows: "[W]e perceive in the failure of the Mann Act to condemn the woman's participation in those transportations which are effected with her mere consent, evidence of an affirmative legislative policy to leave her acquiescence unpunished." Gebardi, supra, at 123 (emphasis added).Footnote 5 Section 371 also requires that one of the conspirators commit an overt act in furtherance of the offense. Petitioner does not dispute that this element was satisfied. Footnote 6 The Government argues that the lower courts have long held that a private person may be guilty of this type of Hobbs Act extortion as an aider and abettor. See Brief for United States 36-37. We have no occasion to reach that question here.Footnote 7 Petitioner's position has evolved over the course of this litigation. As noted, petitioner requested a jury instruction stating that "[i]n order to convict a defendant of conspiracy to commit extortion under color of official right, the government must prove beyond a reasonable doubt that the conspiracy was to obtain money or property from some person who was not a member of the conspiracy." App. 53. Under this instruction, as long as the shopowners were named as conspirators, petitioner could not have been convicted even if there was ample evidence to prove that he conspired with other Baltimore officers to obtain money from the shopowners. (And, indeed, when he first raised his Brock argument, see United States v. Brock, 501 F. 3d 762 (CA6 2007), another officer, Manrich, was still in the case and was charged with the same conspiracy.) The petition for a writ of certiorari appears to have been based on this same broad argument. The question presented was phrased as follows: "Does a conspiracy to commit extortion require that the conspirators agree to obtain property from someone outside the conspiracy?" Pet. for Cert. i. And the argument in petitioner's opening brief was similar. See Brief for Petitioner 1 (arguing that "a Hobbs Act conspiracy requires that the conspirators agree among themselves to wrongly obtain property from someone outside the ring of conspiracy"). As the Government's brief pointed out, this argument has strange implications. See Brief for United States 27. Assume that there was sufficient evidence to prove that petitioner conspired with other Baltimore officers to obtain money from Moreno and Mejia. Under petitioner's original, broad argument, this charge would be valid so long as Moreno and Mejia were not named as conspirators, but naming them in the indictment would render the charge invalid. Indictments, however, very often do not attempt to name all the conspirators, and the indictment in this case did not do so. See App. 36 (charging that petitioner and Manrich conspired with, among others, persons unknown). It would be very strange if the decision to name Moreno and Mejia rendered an otherwise valid charge defective. (Of course, petitioner might make the even broader argument that the conspiracy charge would fail if Moreno and Mejia, although not named as conspirators in the indictment, were later listed as conspirators in response to a bill of particulars or if the Government took that position at trial, perhaps by seeking to introduce their out-of-court statements under the co-conspirator exemption from the hearsay rule.) In response to the Government's argument, petitioner's reply brief claimed that his argument is actually the narrower one that we now consider, i.e., that, as a matter of law, Moreno and Mejia cannot be members of a conspiracy that has as its aim the obtaining of money from them with their consent and under color of official right. See Reply Brief 17-20. The reply brief contends that acceptance of this narrower argument requires his acquittal because there is insufficient evidence to show that he conspired with anyone other than Moreno and Mejia. Ibid. The Court of Appeals, however, concluded otherwise. See 750 F. 3d 399, 412, n. 14 (CA4 2014). Nevertheless, because that court's decision was based primarily on other grounds, we address petitioner's argument as ultimately refined. Footnote 8 That rule applies only when a criminal statute contains a "grievous ambiguity or uncertainty," and "only if, after seizing everything from which aid can be derived," the Court "can make no more than a guess as to what Congress intended." Muscarello v. United States (internal quotation marks omitted).Footnote 9 We are not unmindful of the federalism concerns implicated by this case, but those same concerns were raised — and rejected — in Evans v. United States, 504 U. S. 255 (1992), see id., at 290 (Thomas, J., dissenting) ("The Court's construction of the Hobbs Act is repugnant . . . to basic tenets of federalism"), which we accept as controlling here, see Part II-C-1, infra. Footnote 10 Justice Thomas argues that Evans was wrongly decided, and his position makes sense to the extent that he simply refuses to accept that case. But it founders insofar as it suggests that even if Evans is accepted in relation to substantive Hobbs Act charges, it should not be extended to conspiracy cases. See post, at 1 (dissenting opinion) ("I would not extend Evans' errors further"); post, at 3 ("[The Court's] holding . . . needlessly extends Evans' error to the conspiracy context"); post, at 4 ("The Court today takes another step away from the common-law understanding of extortion that the Hobbs Act adopted"). It would be very strange if a provision of the criminal code meant one thing with respect to charges of a substantive violation but something very different in cases involving a conspiracy to commit the same offense.Footnote 11 Petitioner also claims that naming Moreno and Mejia as conspirators opened the door for prosecutors to employ the potent party-joinder and evidentiary rules that conspiracy charges make available. See Brief for Petitioner 10-11, 18, 26-27, 37. But the naming of the shopowners had no effect on joinder. The only other defendant named in the superseding indictment, Manrich, could have been joined even if the shopowners had not been named. Nor did naming Moreno and Mejia have any effect on the admissibility of evidence of overt acts committed by the Baltimore officers named as petitioner's co-conspirators.FOOTNOTESFootnote 1 Justice Thomas sets forth why he believes Evans was wrongly decided. Ante, at 1 (dissenting opinion). No party asks us to overrule Evans in this case and so that question is not considered here.Footnote 2 See also Oxford English Dictionary 348 (1st ed. 1933) ("One more, one further, originally a second of two things; subsequently extended to anything additional or remaining beyond those already considered; an additional" (emphasis deleted)); Oxford English Dictionary 495 (2d ed. 1989) (same); Webster's New International Dictionary 110 (2d ed. 1950) ("A different, distinct, or separate (one) from the one considered"); New Oxford American Dictionary 65 (3d ed. 2010) ("used to refer to a different person or thing from one already mentioned or known about"); American Heritage Dictionary 74 (4th ed. 2000) ("Distinctly different from the first").Footnote 3 Moreover, any oddity in the Hobbs Act's failure to punish the bribe payors for conspiring with the bribe takers may be partly explained by this Court's decision to hold that extortion under the Hobbs Act reaches a public official who accepts a bribe in the first place. See ante, at 1-2 (Thomas, J., dissenting).

Respondent Texaco Inc., one of the country's largest petroleum companies, made an agreement with respondent Goodrich to promote the sale of Goodrich tires, batteries, and accessories (TBA) to Texaco's service station dealers. The Federal Trade Commission (FTC) in this proceeding and two related proceedings, each of which involved a major oil company and a major tire manufacturer, challenged the sales-commission arrangements as an unfair method of competition in violation of 5 of the Federal Trade Commission Act. Relying on this Court's decision upholding invalidation of such an arrangement in one of these cases, Atlantic Refining Co. v. FTC, , the FTC on remand reaffirmed its conclusion that the Texaco-Goodrich arrangement violated 5 of the Act. The Court of Appeals reversed on the ground that the evidence did not support the FTC's conclusions. Respondents contend, inter alia, that the absence here of "overt economic practices" distinguishes this case from Atlantic. Held: 1. The FTC's determinations of "unfair methods of competition" under 5 of the Act are entitled to great weight. Pp. 225-226. 2. Texaco, as the record clearly shows and respondents do not dispute, holds dominant economic power over its dealers. Pp. 226-227. 3. The sales-commission system for marketing TBA is inherently coercive, and, despite the absence here of the kind of overtly coercive acts shown in Atlantic, Texaco exerted its dominant economic power over its dealers. Pp. 228-229. 4. The FTC correctly determined that the Texaco-Goodrich arrangement adversely affected competition in marketing TBA, the TBA manufacturer having purchased the oil company's economic power and used it as a partial substitute for competitive merit in gaining a major share of the substantial TBA market. Pp. 229-231. App. D.C. 349, 383 F.2d 942, reversed and remanded. Daniel M. Friedman argued the cause for petitioner. On the brief were Solicitor General Griswold, Assistant Attorney General Turner, Lawrence G. Wallace, James McI. Henderson, and Alvin L. Berman.Milton Handler and Edgar E. Barton argued the cause for respondents. With them on the brief were Stanley D. Robinson and Macdonald Flinn.MR. JUSTICE BLACK delivered the opinion of the Court.The question presented by this case is whether the FTC was warranted in finding that it was an unfair method of competition in violation of 5 of the Federal Trade Commission Act, 38 Stat. 719, as amended, 15 U.S.C. 45, for respondent Texaco to undertake to induce its service station dealers to purchase Goodrich tires, batteries, and accessories (hereafter referred to as TBA) in return for a commission paid by Goodrich to Texaco. In three related proceedings instituted in 1961, the Commission challenged the sales-commission method of distributing TBA and in each case named as a respondent a major oil company and a major tire manufacturer. After extensive hearings, the Commission concluded that each of the arrangements constituted an unfair method of competition and ordered each tire company and each oil company to refrain from entering into any such commission arrangements. In one of these cases, Atlantic Refining Co. v. FTC, , this Court affirmed the decision of the Court of Appeals for the Seventh Circuit sustaining the Commission's order against Atlantic Refining Company and the Goodyear Tire & Rubber Company. In a second case, Shell Oil Co. v. FTC, 360 F.2d 470, cert. denied, , the Court of Appeals for the Fifth Circuit, following this Court's decision in Atlantic, sustained the Commission's order against the Shell Oil Company and the Firestone Tire & Rubber Company. In contrast to the decisions of these two Courts of Appeals, the Court of Appeals for the District of Columbia Circuit set aside the Commission's order in this, the third of the three cases, involving respondents Goodrich and Texaco. App. D.C. 366, 336 F.2d 754 (1964).1 The Commission petitioned this Court for review and, one week following our Atlantic decision, we granted certiorari and remanded for further consideration in light of that opinion. . The Commission, on remand, reaffirmed its conclusion that the Texaco-Goodrich arrangement, like that involved in the other two cases, violated 5 of the Federal Trade Commission Act. The Court of Appeals for the District of Columbia Circuit again reversed, this time holding that the Commission had failed to establish that Texaco had exercised its dominant economic power over its dealers or that the Texaco-Goodrich arrangement had an adverse effect on competition. App. D.C. 349, 383 F.2d 942. We granted certiorari to determine whether the court below had correctly applied the principles of our Atlantic decision. .Congress enacted 5 of the Federal Trade Commission Act to combat in their incipiency trade practices that exhibit a strong potential for stifling competition. In large measure the task of defining "unfair methods of competition" was left to the Commission. The legislative history shows that Congress concluded that the best check on unfair competition would be "an administrative body of practical men ... who will be able to apply the rule enacted by Congress to particular business situations, so as to eradicate evils with the least risk of interfering with legitimate business operations." H. R. Conf. Rep. No. 1142, 63d Cong., 2d Sess., 19. Atlantic Refining Co. v. FTC, . While the ultimate responsibility for the construction of this statute rests with the courts, we have held on many occasions that the determinations of the Commission, an expert body charged with the practical application of the statute, are entitled to great weight. FTC v. Motion Picture Advertising Serv. Co., ; FTC v. Cement Institute, . This is especially true here, where the Commission has had occasion in three related proceedings to study and assess the effects on competition of the sales-commission arrangement for marketing TBA. With this in mind, we turn to the facts of this case.The Commission and the respondents agree that the Texaco-Goodrich arrangement for marketing TBA will fall under the rationale of our Atlantic decision if the Commission was correct in its three ultimate conclusions (1) that Texaco has dominant economic power over its dealers; (2) that Texaco exercises that power over its dealers in fulfilling its agreement to promote and sponsor Goodrich products; and (3) that anticompetitive effects result from the exercise of that power.That Texaco holds dominant economic power over its dealers is clearly shown by the record in this case. In fact, respondents do not contest the conclusion of the Court of Appeals below and the Court of Appeals for the Fifth Circuit in Shell that such power is "inherent in the structure and economics of the petroleum distribution system." App. D.C. 349, 353, 383 F.2d 942, 946; 360 F.2d 470, 481 (C. A. 5th Cir.). Nearly 40% of the Texaco dealers lease their stations from Texaco. These dealers typically hold a one-year lease on their stations, and these leases are subject to termination at the end of any year on 10 days' notice. At any time during the year a man's lease on his service station may be immediately terminated by Texaco without advance notice if in Texaco's judgment any of the "housekeeping" provisions of the lease, relating to the use and appearance of the station, are not fulfilled. The contract under which Texaco dealers receive their vital supply of gasoline and other petroleum products also runs from year to year and is terminable on 30 days' notice under Texaco's standard form contract. The average dealer is a man of limited means who has what is for him a sizable investment in his station. He stands to lose much if he incurs the ill will of Texaco. As Judge Wisdom wrote in Shell, "A man operating a gas station is bound to be overawed by the great corporation that is his supplier, his banker, and his landlord." 360 F.2d 470, 487.It is against the background of this dominant economic power over the dealers that the sales-commission arrangement must be viewed. The Texaco-Goodrich agreement provides that Goodrich will pay Texaco a commission of 10% on all purchases by Texaco retail service station dealers of Goodrich TBA. In return, Texaco agrees to "promote the sale of Goodrich products" to Texaco dealers. During the five-year period studied by the Commission (1952-1956) $245,000,000 of the Goodrich and Firestone TBA sponsored by Texaco was purchased by Texaco dealers, for which Texaco received almost $22,000,000 in retail and wholesale commissions. Evidence before the Commission showed that Texaco carried out its agreement to promote Goodrich products through constantly reminding its dealers of Texaco's desire that they stock and sell the sponsored Goodrich TBA. Texaco emphasizes the importance of TBA and the recommended brands as early as its initial interview with a prospective dealer and repeats its recommendation through a steady flow of campaign materials utilizing Goodrich products. Texaco salesmen, the primary link between Texaco and the dealers, promote Goodrich products in their day-to-day contact with the Texaco dealers. The evaluation of a dealer's station by the Texaco salesman is often an important factor in determining whether a dealer's contract or lease with Texaco will be renewed. Thus the Texaco salesmen, whose favorable opinion is so important to every dealer, are the key men in the promotion of Goodrich products, and on occasion accompany the Goodrich salesmen in their calls on the dealers. Finally, Texaco receives regular reports on the amount of sponsored TBA purchased by each dealer. Respondents contend, however, that these reports are used only for maintaining Texaco's accounts with Goodrich and not for policing dealer purchases.Respondents urge that the facts of this case are fundamentally different from those involved in Atlantic because of the presence there, and the absence here, of "overt coercive practices" designed to force the dealers to purchase the sponsored brand of TBA. We agree, as the Government concedes, that the evidence in this case regarding coercive practices is considerably less substantial than the evidence presented in Atlantic. The Atlantic record contained direct evidence of dealers threatened with cancellation of their leases, the setting of dealer quotas for purchase of certain amounts of sponsored TBA, the requirement that dealers purchase TBA from single assigned supply points, refusals by Atlantic to honor credit card charges for nonsponsored TBA, and policing of Atlantic dealers by "phantom inspectors." While the evidence in the present case fails to establish the kind of overt coercive acts shown in Atlantic, we think it clear nonetheless that Texaco's dominant economic power was used in a manner which tended to foreclose competition in the marketing of TBA. The sales-commission system for marketing TBA is inherently coercive. A service station dealer whose very livelihood depends upon the continuing good favor of a major oil company is constantly aware of the oil company's desire that he stock and sell the recommended brand of TBA. Through the constant reminder of the Texaco salesman, through demonstration projects and promotional materials, through all of the dealer's contacts with Texaco, he learns the lesson that Texaco wants him to purchase for his station the brand of TBA which pays Texaco 10% on every retail item the dealer buys. With the dealer's supply of gasoline, his lease on his station, and his Texaco identification subject to continuing review, we think it flies in the face of common sense to say, as Texaco asserts, that the dealer is "perfectly free" to reject Texaco's chosen brand of TBA. Equally applicable here is this Court's judgment in Atlantic that "[i]t is difficult to escape the conclusion that there would have been little point in paying substantial commissions to oil companies were it not for their ability to exert power over their wholesalers and dealers." 381 U.S., at 376.We are similarly convinced that the Commission was correct in determining that this arrangement has an adverse effect on competition in the marketing of TBA. Service stations play an increasingly important role in the marketing of tires, batteries, and other automotive accessories. With five major companies supplying virtually all of the tires that come with new cars, only in the replacement market can the smaller companies hope to compete. Ideally, each service station dealer would stock the brands of TBA that in his judgment were most favored by customers for price and quality. To the extent that dealers are induced to select the sponsored brand in order to maintain the good favor of the oil company upon which they are dependent, the operation of the competitive market is adversely affected. As we noted in Atlantic, the essential anticompetitive vice of such an arrangement is "the utilization of economic power in one market to curtail competition in another." . Here the TBA manufacturer has purchased the oil company's economic power and used it as a partial substitute for competitive merit in gaining a major share of the TBA market.2 The nonsponsored brands do not compete on the even terms of price and quality competition; they must overcome, in addition, the influence of the dominant oil company that has been paid to induce its dealers to buy the recommended brand. While the success of this arrangement in foreclosing competitors from the TBA market has not matched that of the direct coercion employed by Atlantic, we feel that the anticompetitive tendencies of such a system are clear, and that the Commission was properly fulfilling the task that Congress assigned it in halting this practice in its incipiency. The Commission is not required to show that a practice it condemns has totally eliminated competition in the relevant market. It is enough that the Commission found that the practice in question unfairly burdened competition for a not insignificant volume of commerce. International Salt Co. v. United States, ; United States v. Loew's, Inc., , n. 4 (1962); Atlantic Refining Co. v. FTC, .The Commission was justified in concluding that more than an insubstantial amount of commerce was involved. Texaco is one of the Nation's largest petroleum companies. It sells its products to approximately 30,000 service stations, or about 16.5% of all service stations in the United States. The volume of sponsored TBA purchased by Texaco dealers in the five-year period 1952-1956 was $245,000,000, almost five times the amount involved in the Atlantic case.For the reasons stated above, we reverse the judgment below and remand to the Court of Appeals for enforcement of the Commission's order with the exception of paragraphs five and six of the order against Texaco, the setting aside of which by the Court of Appeals the Government does not contest. Reversed and remanded.

Respondent Shabani was convicted of conspiracy to distribute cocaine in violation of 21 U.S.C. 846 after the District Court refused to instruct the jury that proof of an overt act in furtherance of a narcotics conspiracy is required for conviction under 846. The Court of Appeals reversed, holding that, under its precedent, the Government must prove at trial that a defendant has committed such an overt act.Held: In order to establish a violation of 846, the Government need not prove the commission of any overt acts in furtherance of the conspiracy. The statute's plain language does not require an overt act, and such a requirement has not been inferred from congressional silence in other conspiracy statutes, see, e.g, Nash v. United States. Thus, absent contrary indications, it is presumed that Congress intended to adopt the common law definition of conspiracy, which "does not make the doing of any act other than the act of conspiring a condition of liability," id., at 378. Moreover, since the general conspiracy statute and the conspiracy provision of the Organized Crime Control Act of 1970 both require an overt act, it appears that Congress' choice in 846 was quite deliberate. United States v. Felix___, distinguished. While Shabani correctly asserts that the law does not punish criminal thoughts, in a criminal conspiracy the criminal agreement itself is the actus reus. The rule of lenity cannot be invoked here, since the statute is not ambiguous. Pp. 3-8. 993 F.2d 1419, reversed.O'CONNOR, J., delivered the opinion for a unanimous Court. [ UNITED STATES v. SHABANI, ___ U.S. ___ (1994), 1] JUSTICE O'CONNOR delivered the opinion of the Court. This case asks us to consider whether 21 U.S.C. 846, the drug conspiracy statute, requires the Government to prove that a conspirator committed an overt act in furtherance of the conspiracy. We conclude that it does not.I According to the grand jury indictment, Reshat Shabani participated in a narcotics distribution scheme in Anchorage, Alaska, with his girlfriend, her family, and other associates. Shabani was allegedly the supplier of drugs, which he arranged to be smuggled from California. In an undercover operation, federal agents purchased cocaine from distributors involved in the conspiracy. Shabani was charged with conspiracy to distribute cocaine in violation of 21 U.S.C. 846. He moved to dismiss the indictment because it did not allege the commission of an overt act in furtherance of the conspiracy, which act, he argued, was an essential element of the offense. The United States District Court for the District of Alaska, Hon. H. Russel Holland, denied the motion, and the case proceeded to trial. At the close of evidence, Shabani again raised the issue and asked the [ UNITED STATES v. SHABANI, ___ U.S. ___ (1994), 2] court to instruct the jury that proof of an overt act was required for conviction. The District Court noted that Circuit precedent did not require the allegation of an overt act in the indictment but did require proof of such an act at trial in order to state a violation of 846. Recognizing that such a result was "totally illogical," App. 29, and contrary to the language of the statute, Judge Holland rejected Shabani's proposed jury instruction, id., at 36. The jury returned a guilty verdict, and the court sentenced Shabani to 160 months imprisonment. The United States Court of Appeals for the Ninth Circuit reversed. 993 F.2d 1419 (1993). The court acknowledged an inconsistency between its cases holding that an indictment under 846 need not allege an overt act and those requiring proof of such an act at trial, and it noted that the latter cases "stand on weak ground." 993 F.2d, at 1420. Nevertheless, the court felt bound by precedent and attempted to reconcile the two lines of cases. The Court of Appeals reasoned that, although the Government must prove at trial that the defendant has committed an overt act in furtherance of a narcotics conspiracy, the act need not be alleged in the indictment because "`[c]ourts do not require as detailed a statement of an offense's elements under a conspiracy count as under a substantive count.'" Id., at 1422, quoting United States v. Tavelman, 650 F.2d 1133, 1137 (CA9 1981). Chief Judge Wallace wrote separately to point out that in no other circumstance could the Government refrain from alleging in the indictment an element it had to prove at trial. He followed the Circuit precedent but invited the Court of Appeals to consider the question en banc because the Ninth Circuit, "contrary to every other circuit, clings to a problematic gloss on 21 U.S.C. 846, insisting, despite a complete lack of textual support in the statute, that in order to convict under this section [ UNITED STATES v. SHABANI, ___ U.S. ___ (1994), 3] the government must prove the commission of an overt act in furtherance of the conspiracy." 993 F.2d, at 1422 (Wallace, C.J., concurring). For reasons unknown, the Court of Appeals did not grant en banc review. We granted certiorari___ (1994), to resolve the conflict between the Ninth Circuit and the 11 other Circuits that have addressed the question, all of which have held that 846 does not require proof of an overt act.* II Congress passed the drug conspiracy statute as 406 of the Comprehensive Drug Abuse Prevention and Control Act of 1970, Pub. L. 91-513, 84 Stat. 1236. It provided: "Any person who attempts or conspires to commit any offense defined in this title is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy." Id., at 1265. As amended by the Anti-Drug Abuse Act of 1988, Pub. L. 100-690, 6470(a), 102 Stat. 4377, the statute currently provides: "Any person who attempts or conspires to commit any offense defined in this subchapter shall be subject to the same penalties as those prescribed for the offense, the commission of which [ UNITED STATES v. SHABANI, ___ U.S. ___ (1994), 4] was the object of the attempt or conspiracy." 21 U.S.C. 846. The language of neither version requires that an overt act be committed to further the conspiracy, and we have not inferred such a requirement from congressional silence in other conspiracy statutes. In Nash v. United States, Justice Holmes wrote, "[W]e can see no reason for reading into the Sherman Act more than we find there," id., at 378, and the Court held that an overt act is not required for antitrust conspiracy liability. The same reasoning prompted our conclusion in Singer v. United States, , that the Selective Service Act "does not require an overt act for the offense of conspiracy." Id., at 340. Nash and Singer follow the settled principle of statutory construction that, absent contrary indications, Congress intends to adopt the common law definition of statutory terms. See Molzof v. United States, . We have consistently held that the common law understanding of conspiracy "does not make the doing of any act other than the act of conspiring a condition of liability." Nash, supra, at 378; see also Collins v. Hardyman, ; Bannon v. United States ("At common law it was neither necessary to aver nor prove an overt act in furtherance of the conspiracy ..."). Petitioner contends that these decisions were rendered in a period of unfettered expansion in the law of conspiracy, a period which allegedly ended when the Court declared that "we will view with disfavor attempts to broaden the already pervasive and wide-sweeping nets of conspiracy prosecutions." Grunewald v. United States, (citations omitted). Grunewald, however, was a statute of limitations case, and whatever exasperation with conspiracy prosecutions the opinion may have expressed in dictum says little about the views of Congress when it enacted 846. [ UNITED STATES v. SHABANI, ___ U.S. ___ (1994), 5] As to those views, we find it instructive that the general conspiracy statute, 18 U.S.C. 371, contains an explicit requirement that a conspirator "do any act to effect the object of the conspiracy." In light of this additional element in the general conspiracy statute, Congress' silence in 846 speaks volumes. After all, the general conspiracy statute preceded and presumably provided the framework for the more specific drug conspiracy statute. "Nash and Singer give Congress a formulary: by choosing a text modeled on 371, it gets an overt-act requirement; by choosing a text modeled on the Sherman Act, 15 U.S.C. 1, it dispenses with such a requirement." United States v. Sassi, 966 F.2d 283, 284 (CA7 1992). Congress appears to have made the choice quite deliberately with respect to 846; the same Congress that passed this provision also enacted the Organized Crime Control Act of 1970, Pub. L. 91-452, 84 Stat. 922, 802 (a) of which contains an explicit requirement that "one or more of [the conspirators] does any act to effect the object of such a conspiracy." Id, at 936, codified at 18 U.S.C. 1511 (a). Early opinions in the Ninth Circuit dealing with the drug conspiracy statute simply relied on our precedents interpreting the general conspiracy statute and ignored the textual variations between the two provisions. See United States v. Monroe, 552 F.2d 860, 862 (CA9), cert. denied, , citing United States v. Feola, ; United States v. Thompson, 493 F.2d 305, 310 (CA9), cert. denied, , citing United States v. Rabinowich. Two other Courts of Appeals were led down the same path, see United States v. King, 521 F.2d 61, 63 (CA10 1975); United States v. Hutchinson, 488 F.2d 484, 490 (CA8 1973), but both subsequently recognized the misstep and rejected their early interpretations, see United States v. Covos, 872 F.2d 805, 810 [ UNITED STATES v. SHABANI, ___ U.S. ___ (1994), 6] (CA8 1989); United States v. Savaiano, 843 F.2d 1280, 1294 (CA10 1988). What the Ninth Circuit failed to recognize we now make explicit: In order to establish a violation of 21 U.S.C. 846, the Government need not prove the commission of any overt acts in furtherance of the conspiracy. United States v. Felix___ (1992), is not to the contrary. In that case, an indictment under 846 alleged two overt acts which had formed the basis of the defendant's prior conviction for attempting to manufacture drugs. The defendant argued that the Government had violated the Double Jeopardy Clause and Grady v. Corbin, , overruled, United States v. Dixon___ (1993), by using evidence underlying the prior conviction "to prove an essential element of an offense" charged in the second prosecution. We held that the Double Jeopardy Clause did not bar the conspiracy charge. JUSTICE STEVENS, writing separately, thought that our double jeopardy discussion was unnecessary partly because "there is no overt act requirement in the federal drug conspiracy statute," Felix, supra, at ___ (STEVENS, J., concurring in part and concurring in judgment). Shabani argues that, by not responding to this point, the Court implicitly held that 846 requires proof of overt acts; otherwise, the double jeopardy discussion would have been merely advisory. The procedural history of Felix, however, belies this contention. The disputed evidence was offered not to prove overt acts qua overt acts, but to prove the existence of a conspiracy. The lower court in Felix noted that it was "mindful that 21 U.S.C. 846 does not require proof of an overt act... ." United States v. Felix, 926 F.2d 1522, 1529, n. 7 (CA10 1991). Nevertheless, evidence of such acts raised double jeopardy concerns because it "tended to show the criminal agreement for the conspiracy," an indisputably essential element of the offense. Ibid. Indeed, JUSTICE [ UNITED STATES v. SHABANI, ___ U.S. ___ (1994), 7] STEVENS also argued that "the overt acts did not establish an agreement between Felix and his coconspirators." Felix, 503 U.S., at ___. In light of the lower court opinion, it is apparent that we rejected this point - rather than JUSTICE STEVENS' construction of 846 - before reaching the double jeopardy issue. In any event, Shabani's strained reading of Felix is of little consequence for precedential purposes, since "[q]uestions which `merely lurk in the record' are not resolved, and no resolution of them may be inferred." Illinois Bd. of Elections v. Socialist Workers Party, , quoting Webster v. Fall. Shabani reminds us that the law does not punish criminal thoughts and contends that conspiracy without an overt act requirement violates this principle because the offense is predominantly mental in composition. The prohibition against criminal conspiracy, however, does not punish mere thought; the criminal agreement itself is the actus reus and has been so viewed since Regina v. Bass, 11 Mod. 55, 88 Eng. Rep. 881, 882 (K. B. 1705) ("[T]he very assembling together was an overt act"); see also Iannelli v. United States, ("Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act") (citations omitted). Finally, Shabani invokes the rule of lenity, arguing that the statute is unclear because it neither requires an overt act nor specifies that one is not necessary. The rule of lenity, however, applies only when, after consulting traditional canons of statutory construction, we are left with an ambiguous statute. See, e.g., Beecham v. United States___, ___ (1994); Smith v. United States___, ___ (1993). That is not the case here. To require that Congress explicitly state its intention not to adopt petitioner's reading would make the rule applicable with the "mere possibility of articulating [ UNITED STATES v. SHABANI, ___ U.S. ___ (1994), 8] a narrower construction," id., at ___, a result supported by neither lenity nor logic. As the District Court correctly noted in this case, the plain language of the statute and settled interpretive principles reveal that proof of an overt act is not required to establish a violation of 21 U.S.C. 846. Accordingly, the judgment of the Court of Appeals is Reversed.[Footnote *] See United States v. Sassi, 966 F.2d 283, 285 (CA7), cert. denied___(1992); United States v. Clark, 928 F.2d 639, 641 (CA4 1991); United States v. Figueroa, 900 F.2d 1211, 1218 (CA8), cert. denied, ; United States v. Paiva, 892 F.2d 148, 155 (CA1 1989); United States v. Onick, 889 F.2d 1425, 1432 (CA5 1989); United States v. Cochran, 883 F.2d 1012, 1017-1018 (CA11 1989); United States v. Savaiano, 843 F.2d 1280, 1294 (CA10 1988); United States v. Pumphrey, 831 F.2d 307, 308-309 (CADC 1987); United States v. Bey, 736 F.2d 891, 894 (CA3 1984); United States v. Dempsey, 733 F.2d 392, 396 (CA6), cert. denied, ; United States v. Knuckles, 581 F.2d 305, 311 (CA2), cert. denied, . Page I

[Footnote *] Together with No. 70-37, United States et al. v. Pullman Co., also on certiorari to the same court. Procedure whereby the Equal Employment Opportunity Commission (EEOC), after having received a written charge from a complainant of discrimination in violation of Title VII of the Civil Rights Act of 1964, orally referred it to the appropriate state agency, waited until that agency had terminated its jurisdiction, and then formally filed the charge on behalf of the complainant without having obtained an additional written charge within 30 days of the termination of the state proceedings held to satisfy the requirements of 706 (b) and (d) of the Act, which have the purpose of affording state agencies prior opportunity to consider discrimination complaints and ensuring their prompt filing and disposition by the EEOC on exhaustion of the state remedy. Pp. 523-527. 430 F.2d 49, reversed.STEWART, J., delivered the opinion of the Court, in which all members joined except POWELL and REHNQUIST, JJ., who took no part in the consideration or decision of the cases.Hugh J. McClearn argued the cause for petitioner in No. 70-5033. With him on the brief was Gail L. Ireland. Deputy Solicitor General Wallace argued the cause for the United States et al. With him on the brief were Solicitor General Griswold, Acting Assistant Attorney General Norman, David L. Rose, Stanley Hebert, and Julia P. Cooper.Edward C. Eppich argued the cause and filed a brief for respondent in both cases. Nathaniel R. Jones filed a brief for the National Association for the Advancement of Colored People as amicus curiae urging reversal in No. 70-5033.MR. JUSTICE STEWART delivered the opinion of the Court.A person claiming to be aggrieved by a violation of Title VII of the Civil Rights Act of 1964, 78 Stat. 253,1 may not maintain a suit for redress in federal district court until he has first unsuccessfully pursued certain avenues of potential administrative relief. In this litigation the petitioner employee filed a complaint in the United States District Court for the District of Colorado, alleging that his employer, the respondent Pullman Company, had engaged in employment practices violative of Title VII. The court dismissed the complaint, holding that the statutory prerequisites to the maintenance of the suit had not been met. The Court of Appeals affirmed, 430 F.2d 49, and we granted certiorari to consider the question of federal law presented. .The petitioner was employed by the Pullman Company as a "porter-in-charge." In 1963 and again in 1965, he complained to the Colorado Civil Rights Commission, alleging that the porters-in-charge, most of whom, like the petitioner, were Negroes, performed the same functions as conductors, most of whom were white, yet at lower pay. The proceedings of the Colorado Commission terminated in 1965 without reaching a resolution of the controversy satisfactory to the petitioner. On May 23, 1966, the Equal Employment Opportunity Commission received from the petitioner a "letter of inquiry" which complained of this same alleged discrimination. In accord with its usual practice,2 the Commission treated this letter as a complaint but did not formally file it. Instead, to insure compliance with Title VII's procedural requirements, EEOC orally advised the Colorado Commission that it had received a complaint from the petitioner. By letter of June 1, 1966, the Colorado Commission informed EEOC that it waived the opportunity to take further action on the petitioner's grievance, and the EEOC then proceeded with its own investigation. The investigation resulted in a finding of probable cause to believe that the charge of discrimination was true, but the EEOC was unsuccessful in its attempts to obtain Pullman's voluntary compliance. This lawsuit followed.The basis for the holding of the Court of Appeals was its finding that the charge of discrimination had not been "filed" with EEOC by the petitioner in conformity with the requirements of the Act.3 Two such requirements are critical here. Section 706 (b) of the Act, 42 U.S.C. 2000e-5 (b), provides that where there exists a state or local agency authorized to grant or seek relief against employment discrimination, "no charge may be filed [with the EEOC] by the person aggrieved before the expiration of sixty days after proceedings have been commenced under the State or local law, unless such proceedings have been earlier terminated ... ." Section 706 (d), 42 U.S.C. 2000e-5 (d), requires that the complaint to the EEOC "shall be filed by the person aggrieved within two hundred and ten days after the alleged unlawful employment practice occurred, or within thirty days after receiving notice that the State or local agency has terminated the proceedings under the State or local law, whichever is earlier ... ."The EEOC takes the position that these requirements were fulfilled by the procedure followed here, whereby a charge filed with the EEOC prior to exhaustion of the state remedy was referred by it to the state agency, and then formally filed once the state agency indicated that it would decline to take action. The Court of Appeals, on the other hand, regarded this procedure as a "manipulation of the filing date," not contemplated or permitted by the statute or by the EEOC regulations then in force.We hold that the filing procedure followed here fully complied with the intent of the Act, and we thus reverse the judgment of the Court of Appeals. Nothing in the Act suggests that the state proceedings may not be initiated by the EEOC acting on behalf of the complainant rather than by the complainant himself, nor is there any requirement that the complaint to the state agency be made in writing rather than by oral referral.4 Further, we cannot agree with the respondent's claim that the EEOC may not properly hold a complaint in "suspended animation," automatically filing it upon termination of the state proceedings.5 We see no reason why further action by the aggrieved party should be required. The procedure complies with the purpose both of 706 (b), to give state agencies a prior opportunity to consider discrimination complaints, and of 706 (d), to ensure expedition in the filing and handling of those complaints. The respondent makes no showing of prejudice to its interests. To require a second "filing" by the aggrieved party after termination of state proceedings would serve no purpose other than the creation of an additional procedural technicality.6 Such technicalities are particularly inappropriate in a statutory scheme in which laymen, unassisted by trained lawyers, initiate the process.The judgment is Reversed.MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of these cases.

Per Curiam. We granted certiorari, 562 U. S.___(2010), on the questions "whether tribal sovereign immunity from suit, to the extent it should continue to be recognized, bars taxing authorities from foreclosing to collect lawfully imposed property taxes" and "whether the ancient Oneida reservation in New York was disestablished or diminished." Pet. for Cert. i. Counsel for respondent Oneida Indian Nation advised the Court through a letter on November 30, 2010, that the Nation had, on November 29, 2010, passed a tribal declaration and ordinance waiving "its sovereign immunity to enforcement of real property taxation through foreclosure by state, county and local governments within and throughout the United States." Oneida Indian Nation, Ordinance No. O-10-1 (2010). Petitioners Madison and Oneida Counties responded in a December 1, 2010 letter, questioning the validity, scope, and permanence of that waiver; the Nation addressed those concerns in a December 2, 2010 letter. We vacate the judgment and remand the case to the United States Court of Appeals for the Second Circuit. That court should address, in the first instance, whether to revisit its ruling on sovereign immunity in light of this new factual development, and — if necessary — proceed to address other questions in the case consistent with its sovereign immunity ruling. See Kiyemba v. Obama___ (2010) (per curiam). Petitioners are awarded costs in this Court pursuant to this Court's Rule 43.2.It is so ordered. Justice Sotomayor took no part in the consideration or decision of this case.

In the circumstances of this case, in which two different suits under the Miller Act were brought in two different District Courts by the same subcontractor against the same general contractor and its surety, based on separate projects in the two Districts, Federal Rule of Civil Procedure 13 (a) did not compel a counterclaim, which involved a payment that had not been allocated as between the projects, to be made in whichever of the two suits the first responsive pleading was filed. Its assertion in the later of the two suits, to which the general contractor, not without reason, considered it more appurtenant, did not violate Rule 13 (a). Pp. 57-61. 293 F.2d 493, reversed in part and case remanded.William J. Harbison argued the cause for petitioners. On the briefs were Charles C. Trabue, Jr. and Harry S. McCowen.Edward Gallagher argued the cause and filed briefs for respondent.PER CURIAM.Southern Construction Company, one of the petitioners here, was the prime contractor on contracts with the United States for the rehabilitation of certain barracks at Fort Campbell, Tennessee, and Fort Benning, Georgia. There were three contracts covering the Georgia project and one covering the Tennessee project. Pursuant to the provisions of the Miller Act, 49 Stat. 793, as amended, 40 U.S.C. 270a-270d, Southern furnished performance and payment bonds, with Continental Casualty Company, co-petitioner here, as surety. The plumbing and heating subcontractor on both projects was the respondent Samuel J. Pickard, doing business as Pickard Engineering Company. Pickard's primary supplier on both projects was the Atlas Supply Company.In December 1955, Pickard's men left the Tennessee job before it was fully completed, and shortly thereafter left the Georgia project. Atlas, Pickard's supplier, claimed that $34,520 was due it for materials furnished on the Tennessee job and $104,000 for materials furnished on the Georgia project. Following a conference in August 1956 between Southern officials and representatives of Atlas, Southern paid Atlas $35,000 in exchange for a complete release of all liability of Southern on Pickard's accounts with respect to both the Georgia and Tennessee projects.1 In December 1956, acting under the provisions of the Miller Act, Pickard brought suit, in the name of the United States, in the United States District Court for the Middle District of Georgia against Southern and Continental for recovery of amounts allegedly owing on both the Georgia and Tennessee jobs. In January 1957, Southern filed an answer and a counterclaim in which it alleged that Southern had paid out more than the contract price on both jobs and in which recovery of the excess was sought. The $35,000 payment to Atlas was at that time included in the counterclaim.The Miller Act, however, requires that suits instituted under its provisions "shall be brought ... in the United States District Court for any district in which the contract was to be performed and executed and not elsewhere ... ." 40 U.S.C. 270b (b). Since this statute appeared to prohibit an action in the Georgia District Court on the Tennessee project, Pickard in April 1957 filed the present action against petitioners in the United States District Court for the Middle District of Tennessee relating to the Tennessee project only, and by amendment eliminated this part of his claim from the Georgia action.The Georgia action proceeded to trial in 1959, and according to the findings of the District Court in the present case the $35,000 payment to Atlas was "dropped" prior to trial from the counterclaim originally asserted in that action. The Georgia suit has not yet proceeded to final judgment, the Georgia District Court in September 1961 having granted Southern's motion for a new trial on its counterclaim.In the Tennessee action here involved Southern included the $35,000 payment as part of its counterclaim for affirmative relief, and Pickard answered that the counterclaim was barred by "res judicata." Southern later waived any claim to affirmative relief in this action and sought only a credit of $34,520 against Pickard's contract claim on the Tennessee project. This figure was the precise amount that had been claimed by Atlas to be due it for materials supplied on this job.The District Court, in deciding that Pickard was not entitled to any recovery, allowed this $34,520 item as a credit against Pickard's claim, but on this point the Court of Appeals for the Sixth Circuit reversed. 293 F.2d 493. It held that since there had been no allocation of the $35,000 payment as between the Georgia and Tennessee projects the item, under Rule 13 (a) of the Federal Rules of Civil Procedure, was a "potential compulsory counterclaim" in either of the two suits;2 that when the responsive pleading in the Georgia suit was filed the counterclaim was not the subject of any other pending action and was therefore "compulsory" in that suit; and, accordingly, that such counterclaim could not later be asserted in the present action. We granted certiorari to consider the applicability of Rule 13 (a) in these unusual circumstances. .We accept for present purposes the ruling below that the $35,000 payment had not been allocated as between the Tennessee and Georgia projects and that it therefore could have been asserted in either action. Nevertheless, we do not believe that Rule 13 (a) operates to prohibit its use in the later Tennessee action. The requirement that counterclaims arising out of the same transaction or occurrence as the opposing party's claim "shall" be stated in the pleadings was designed to prevent multiplicity of actions and to achieve resolution in a single lawsuit of all disputes arising out of common matters. The Rule was particularly directed against one who failed to assert a counterclaim in one action and then instituted a second action in which that counterclaim became the basis of the complaint. See, e. g., United States v. Eastport S. S. Corp., 255 F.2d 795, 801-802.It is readily apparent that this policy has no application here. In this instance, the plaintiff-respondent, who originally sought to combine all his claims in a single suit, correctly concluded that he was required by statute to split those claims and to bring two separate actions in two different districts. The fragmentation of these claims, therefore, was compelled by federal law, and the primary defendant in both actions was thus for the first time confronted with the choice of which of the two pending suits should be resorted to for the assertion of a counterclaim common to both. Under these circumstances, we hold that Rule 13 (a) did not compel this counterclaim to be made in whichever of the two suits the first responsive pleading was filed.3 Its assertion in the later suit, to which Southern, not without reason, considered it more appurtenant (pp. 58-59, supra), by no means involved the circuity of action that Rule 13 (a) was aimed at preventing. Accordingly, the judgment of the Court of Appeals insofar as it related to this counterclaim is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered.

___ Tenn. ___, 414 S. W. 2d 638, reversed.Longstreet Heiskell for appellant.George F. McCanless, Attorney General of Tennessee, and Thomas E. Fox, Deputy Attorney General, for appellee.PER CURIAM.The judgment of the Supreme Court of Tennessee is reversed. Redrup v. New York, .THE CHIEF JUSTICE would affirm.MR. JUSTICE HARLAN would affirm for the reasons set forth in his separate opinion in Roth v. United States, , 500-503, and in his dissenting opinion in Memoirs v. Massachusetts, .

Under North Dakota statutes, thinly populated school districts are authorized to "reorganize" themselves into larger districts so that education can be provided more efficiently. Reorganization proposals must include provisions for transporting students to and from their homes. Appellee Dickinson Public Schools, which is relatively populous, has chosen not to participate in such a reorganization. In 1973 Dickinson's School Board instituted door-to-door bus service and began charging a fee for such transportation. In 1979, the State enacted a statute authorizing nonreorganized school districts like Dickinson to charge a fee for school-bus service, not to exceed the district's estimated cost of providing the service. Appellants are a Dickinson schoolchild (Sarita Kadrmas) and her mother. In 1985, when the Kadrmas family refused to agree to the busing fee and began transporting Sarita to school privately, appellants filed a state-court action seeking to enjoin appellees from collecting any fee for the bus service. The action was dismissed on the merits, and the Supreme Court of North Dakota affirmed, holding that the 1979 statute does not violate state law or the Equal Protection Clause of the Fourteenth Amendment. The court rejected appellants' contention that the statute unconstitutionally discriminates on the basis of wealth. It also rejected the contention that the distinction drawn by the statute between reorganized and nonreorganized school districts violates the Equal Protection Clause.Held: 1. There is no merit to appellees' contention that, because Mrs. Kadrmas signed contracts for schoolbus service, and made partial payments thereon, after the State Supreme Court's decision, and because Sarita has since been "enjoying the benefits" of the bus service, appellants are estopped from pursuing this appeal. The school board's authority to offer the benefit of subsidized bus transportation is not given by the challenged statute, but by other provisions of state law. The fee that Dickinson is permitted to charge under the 1979 statute is a burden rather than a benefit to appellants, and they are not estopped from raising an equal protection challenge to the statute that imposes that burden on them. Fahey v. Mallonee, , distinguished. Nor is there any merit to appellees' suggestion that an Article III "case or controversy" is lacking because execution of the bus service contracts rendered this case "moot." A decision in appellants' favor may relieve them from paying the balance owing under the bus service contracts, and would relieve them of future assessments under the authority of the 1979 statute. Because Sarita was only nine years old at the time of trial, and because there are younger children in the family, the ongoing and concrete nature of the controversy is readily apparent. Pp. 456-457. 2. The 1979 statute does not violate the Equal Protection Clause. Pp. 457-465. (a) Applying a form of strict or "heightened" scrutiny to the North Dakota statute would not be supported by precedent. Statutes having different effects on the wealthy and the poor are not, on that account alone, subject to strict equal protection scrutiny. Nor is education a "fundamental right" that triggers strict scrutiny when government interferes with an individual's access to it. The "heightened scrutiny" standard of review - which is less demanding than "strict scrutiny" but more demanding that the standard rational relation test - has generally been applied only in cases that involved discriminatory classifications based on sex or illegitimacy. Plyler v. Doe, , where a heightened scrutiny standard was used to invalidate a State's denial to the children of illegal aliens of the free public education that it made available to other residents, has not been extended beyond its unique circumstances, and does not control here. Moreover, decisions invalidating laws that barred indigent litigants from using the judicial process in circumstances where they had no alternative to that process are inapposite here. Applying the rational relation test, a State's decision to allow local school boards the option of charging patrons a user fee for bus service is constitutionally permissible. The Constitution does not require that such service be provided at all, and choosing to offer the service does not entail a constitutional obligation to offer it for free. Encouraging local school districts to provide bus service is a legitimate state purpose, and it is rational for the State to refrain from undermining its objective with a rule requiring that general revenues be used to subsidize an optional service that will benefit a minority of the district's families. Pp. 457-462. (b) The distinction drawn in the 1979 statute between reorganized and nonreorganized school districts does not create an equal protection violation. Social and economic legislation like the 1979 statute carries with it a presumption of constitutionality that can only be overcome by a clear showing of arbitrariness and irrationality. The explanation of the statute offered by appellees and the State - which relates to encouraging school district reorganization and more effective school systems - is adequate to justify the distinction it draws among districts. Appellants have failed to carry the heavy burden of demonstrating that the statute is both arbitrary and irrational. Pp. 462-465. 402 N. W. 2d 897, affirmed.O'CONNOR, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and WHITE, SCALIA, and KENNEDY, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 466. STEVENS, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 472.Duane Houdek argued the cause for appellants. With him on the briefs was Edward B. Reinhardt, Jr.George T. Dynes argued the cause and filed a brief for appellees.Nicholas J. Spaeth, Attorney General, argued the cause for the State of North Dakota as amicus curiae urging affirmance. With him on the brief was Laurie J. Loveland, Assistant Attorney General.* [Footnote *] Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union Foundation et al. by C. Edwin Baker, John A. Powell, Helen Hershkoff, Steven R. Shapiro, and Robert Vogel; and for the Children's Defense Fund et al. by Julius L. Chambers and John Charles Boger.Solicitor General Fried, Assistant Attorney General Reynolds, Deputy Solicitor General Ayer, Deputy Assistant Attorney General Clegg, Paul J. Larkin, Jr., and David K. Flynn filed a brief for the United States as amicus curiae urging affirmance.JUSTICE O'CONNOR delivered the opinion of the Court.Appellants urge us to hold that the Equal Protection Clause forbids a State to allow some local school boards, but not others, to assess a fee for transporting pupils between their homes and the public schools. Applying well-established equal protection principles, we reject this claim and affirm the constitutionality of the challenged statute.INorth Dakota is a sparsely populated State, with many people living on isolated farms and ranches. One result has been that some children, as late as the mid-20th century, were educated in "the one-room school where, in many cases, there [we]re twenty or more pupils with one teacher attempting in crowded conditions and under other disadvantages to give instructions in all primary grades." Herman v. Medicine Lodge School Dist. No. 8, 71 N. W. 2d 323, 328 (N. D. 1955). The State has experimented with various ameliorative devices at different times in its history. Beginning in 1907, for example, it has adopted a series of policies that "in certain circumstances required and in other circumstances merely authorized [local public] school districts to participate in transporting or providing compensation for transporting students to school." 402 N. W. 2d 897, 900 (N. D. 1987) (opinion below).Since 1947, the legislature has authorized and encouraged thinly populated school districts to consolidate or "reorganize" themselves into larger districts so that education can be provided more efficiently. See Herman, supra, at 328; N. D. Cent. Code, ch. 15-27.3 (Supp. 1987). Reorganization proposals, which obviously must contemplate an increase in the distance that some children travel to school, are required by law to include provisions for transporting students back and forth from their homes. See 15-27.3-10. The details of these provisions may vary from district to district, but once a reorganization plan is adopted the transportation provisions can be changed only with the approval of the voters. See 15-27.3-10 and 15-27.3-19.Appellee Dickinson Public Schools, which serves a relatively populous area, has chosen not to participate in such a reorganization. Until 1973, this school system provided free bus service to students in outlying areas, but the "pickup points" for this service were often at considerable distances from the students' homes. After a plebiscite of the bus users, Dickinson's School Board instituted door-to-door bus service and began charging a fee. During the period relevant to this case, about 13% of the students rode the bus; their parents were charged $97 per year for one child or $150 per year for two children. 402 N. W. 2d, at 898. Such fees covered approximately 11% of the cost of providing the bus service, and the remainder was provided from state and local tax revenues. Ibid.In 1979, the State enacted the legislation at issue in this case. This statute expressly indicates that nonreorganized school districts, like Dickinson, may charge a fee for transporting students to school; such fees, however, may not exceed the estimated cost to the school district of providing the service. See N. D. Cent. Code 15-34.2-06.1 (1981 and Supp. 1987). The current version of this provision, which for convenience will be referred to as the "1979 statute," states in full: "Charge for bus transportation optional. The school board of any school district which has not been reorganized may charge a fee for schoolbus service provided to anyone riding on buses provided by the school district. For schoolbus service which was started prior to July 1, 1981, the total fees collected may not exceed an amount equal to the difference between the state transportation payment and the state average cost for transportation or the local school district's cost, whichever is the lesser amount. For schoolbus service started on or after July 1, 1981, the total fees collected may not exceed an amount equal to the difference between the state transportation payment and the local school district's cost for transportation during the preceding school year. Any districts that have not previously provided transportation for pupils may establish charges based on costs estimated by the school board during the first year that transportation is provided." Appellants are a Dickinson schoolchild, Sarita Kadrmas, and her mother, Paula. The Kadrmas family, which also includes Mrs. Kadrmas' husband and two preschool children, lives about 16 miles from Sarita's school. Mr. Kadrmas works sporadically in the North Dakota oil fields, and the family's annual income at the time of trial was at or near the officially defined poverty level. Until 1985, the Kadrmas family had agreed each year to pay the fee for busing Sarita to school. Having fallen behind on these and other bills, however, the family refused to sign a contract obligating them to pay $97 for the 1985 school year. Accordingly, the school bus no longer stopped for Sarita, and the family arranged to transport her to school privately. The costs they incurred that year for Sarita's transportation exceeded $1,000, or about 10 times the fee charged by the school district for bus service. This arrangement continued until the spring of 1987, when Paula Kadrmas signed a bus service contract for the remainder of the 1986 school year and paid part of the fee. Mrs. Kadrmas later signed another contract for the 1987 school year, and paid about half of the fee for that period.In September 1985, appellants, along with others who have since withdrawn from the case, filed an action in state court seeking to enjoin appellees - the Dickinson Public Schools and various school district officials - from collecting any fee for the bus service. The action was dismissed on the merits, and an appeal was taken to the Supreme Court of North Dakota. After rejecting a state-law challenge, which is not at issue here, the court considered appellants' claim that the busing fee violates the Equal Protection Clause of the Fourteenth Amendment. The court characterized the 1979 statute as "purely economic legislation," which "must be upheld unless it is patently arbitrary and fails to bear a rational relationship to any legitimate government purpose." 402 N. W. 2d, at 902. The court then concluded "that the charges authorized [by the statute] are rationally related to the legitimate governmental objective of allocating limited resources and that the statute does not discriminate on the basis of wealth so as to violate federal or state equal protection rights." Id., at 903. The court also rejected the contention that the distinction drawn by the statute between reorganized and nonreorganized school districts violates the Equal Protection Clause. The distinction, the court found, serves the legitimate objective of promoting reorganization "by alleviating parental concerns regarding the cost of student transportation in the reorganized district." Ibid. Three justices dissented on state-law grounds. We noted probable jurisdiction, , and now affirm.IIABefore addressing the merits, we must consider appellees' suggestion that this appeal should be dismissed on procedural grounds. After the decision of the Supreme Court of North Dakota in this case, Mrs. Kadrmas signed two bus service contracts and made partial payment on each. Since the execution of the first contract on April 6, 1987, Sarita has been riding the bus to school, or as appellees put it, "has been continuously enjoying the benefits of such bus service." Motion to Dismiss 1. Relying on Fahey v. Mallonee, , appellees contend that appellants are "estopped" from pursuing their constitutional claims because "[i]t is well established that one may not retain benefits of an act while attacking the constitutionality of the same act." Motion to Dismiss 1-3.Fahey was a shareholders' derivative suit in which a savings and loan association created under an Act of Congress sought to challenge the constitutionality of that same Act. This Court refused to consider the challenge, saying: "It would be difficult to imagine a more appropriate situation in which to apply the doctrine that one who utilizes an Act to gain advantages of corporate existence is estopped from questioning the validity of its vital conditions." 332 U.S., at 256 (emphasis added). The case before us today is not analogous. Appellants obviously are not creatures of any statute, and we doubt that plaintiffs are generally forbidden to challenge a statute simply because they are deriving some benefit from it. Cf. United States v. San Francisco, ; Arnett v. Kennedy, (plurality opinion). The "benefit" derived by appellants from the challenged statute, moreover, is inapparent. The Dickinson School Board's authority to provide bus transportation is not given by the challenged statute, but by a different provision of state law. See N. D. Cent. Code 15-34.2-01 (1981). Nor does the 1979 statute itself authorize the tax-supported subsidies that make the Dickinson school bus particularly attractive to parents in outlying areas. The fee that Dickinson is permitted to charge under the 1979 statute is itself a burden rather than a benefit to appellants, and they are not estopped from raising an equal protection challenge to the statute that imposes that burden on them.Appellees also assert that execution of the bus service contracts rendered this case "moot." Brief for Appellees 32. Although appellees do not elaborate this contention or distinguish it from the estoppel argument just considered, they may be suggesting the absence of an Article III "case or controversy." If so, they are mistaken. Appellants claim that the 1979 statute is unconstitutional to the extent that it authorizes Dickinson to charge a fee for bus service, and they seek to prevent such fees from being collected. A decision in their favor might relieve them from paying the balance still owing under the two contracts that were executed in 1987, and would certainly relieve them from future assessments for bus service under the authority of the challenged statute. Because Sarita was only nine years old at the time of trial, and because there are two younger children in the family, the ongoing and concrete nature of the controversy between appellants and the Dickinson Public Schools is readily apparent.BUnless a statute provokes "strict judicial scrutiny" because it interferes with a "fundamental right" or discriminates against a "suspect class," it will ordinarily survive an equal protection attack so long as the challenged classification is rationally related to a legitimate governmental purpose. See, e. g., San Antonio Independent School Dist. v. Rodriguez, ; Plyler v. Doe, ; Lyng v. Automobile Workers, . Appellants contend that Dickinson's user fee for bus service unconstitutionally deprives those who cannot afford to pay it of "minimum access to education." See Brief for Appellants i. Sarita Kadrmas, however, continued to attend school during the time that she was denied access to the school bus. Appellants must therefore mean to argue that the busing fee unconstitutionally places a greater obstacle to education in the path of the poor than it does in the path of wealthier families. Alternatively, appellants may mean to suggest that the Equal Protection Clause affirmatively requires government to provide free transportation to school, at least for some class of students that would include Sarita Kadrmas. Under either interpretation of appellants' position, we are evidently being urged to apply a form of strict or "heightened" scrutiny to the North Dakota statute. Doing so would require us to extend the requirements of the Equal Protection Clause beyond the limits recognized in our cases, a step we decline to take.We have previously rejected the suggestion that statutes having different effects on the wealthy and the poor should on that account alone be subjected to strict equal protection scrutiny. See, e. g., Harris v. McRae, ; Ortwein v. Schwab, . Nor have we accepted the proposition that education is a "fundamental right," like equality of the franchise, which should trigger strict scrutiny when government interferes with an individual's access to it. See Papasan v. Allain, ; Plyler v. Doe, supra, at 223; San Antonio Independent School Dist. v. Rodriguez, supra, at 16, 33-36. Relying primarily on Plyler v. Doe, supra, however, appellants suggest that North Dakota's 1979 statute should be subjected to "heightened" scrutiny. This standard of review, which is less demanding than "strict scrutiny" but more demanding than the standard rational relation test, has generally been applied only in cases that involved discriminatory classifications based on sex or illegitimacy. See, e. g., Clark v. Jeter, ; Mississippi University for Women v. Hogan, , and n. 9 (1982); Mills v. Habluetzel, , and n. 8 (1982); Craig v. Boren, . In Plyler, which did not fit this pattern, the State of Texas had denied to the children of illegal aliens the free public education that it made available to other residents. Applying a heightened level of equal protection scrutiny, the Court concluded that the State had failed to show that its classification advanced a substantial state interest. 457 U.S., at 217-218, and n. 16, 224, 230. We have not extended this holding beyond the "unique circumstances," id., at 239 (Powell, J., concurring), that provoked its "unique confluence of theories and rationales," id., at 243 (Burger, C. J., dissenting). Nor do we think that the case before us today is governed by the holding in Plyler. Unlike the children in that case, Sarita Kadrmas has not been penalized by the government for illegal conduct by her parents. See id., at 220; id., at 238 (Powell, J., concurring). On the contrary, Sarita was denied access to the school bus only because her parents would not agree to pay the same user fee charged to all other families that took advantage of the service. Nor do we see any reason to suppose that this user fee will "promot[e] the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime." Id., at 230; see also id., at 239 (Powell, J., concurring). Cf. N. D. Cent. Code 15-43-11.2 (1981) ("A [school] board may waive any fee if any pupil or his parent or guardian shall be unable to pay such fees. No pupil's rights or privileges, including the receipt of grades or diplomas, may be denied or abridged for nonpayment of fees"). The case before us does not resemble Plyler, and we decline to extend the rationale of that decision to cover this case.Appellants contend, finally, that whatever label is placed on the standard of review, this case is analogous to decisions in which we have held that government may not withhold certain especially important services from those who are unable to pay for them. Appellants cite Griffin v. Illinois, (right to appellate review of a criminal conviction conditioned on the purchase of a trial transcript); Smith v. Bennett, (application for writ of habeas corpus accepted only when accompanied by a filing fee); Boddie v. Connecticut, (action for dissolution of marriage could be pursued only upon payment of court fees and costs for service of process); Lindsey v. Normet, (appeal from civil judgments in certain landlord-tenant disputes conditioned on the posting of a bond for twice the amount of rent expected to accrue during the appellate process); and Little v. Streater, (fee for blood test in quasi-criminal paternity action brought against the putative father of a child receiving public assistance). See Brief for Appellants 22-23.Leaving aside other distinctions that might be found between these cases and the one before us today, each involved a rule that barred indigent litigants from using the judicial process in circumstances where they had no alternative to that process. Decisions invalidating such rules are inapposite here. In contrast to the "utter exclusiveness of court access and court remedy," United States v. Kras, , North Dakota does not maintain a legal or a practical monopoly on the means of transporting children to school. Thus, unlike the complaining parties in all the cases cited by appellants, the Kadrmas family could and did find a private alternative to the public school bus service for which Dickinson charged a fee. That alternative was more expensive, to be sure, and we have no reason to doubt that genuine hardships were endured by the Kadrmas family when Sarita was denied access to the bus. Such facts, however, do not imply that the Equal Protection Clause has been violated. In upholding a filing fee for voluntary bankruptcy actions, for example, we observed: "[B]ankruptcy is not the only method available to a debtor for the adjustment of his legal relationship with his creditors... . However unrealistic the remedy may be in a particular situation, a debtor, in theory, and often in actuality, may adjust his debts by negotiated agreement with his creditors." Ibid. Similarly, we upheld a statute that required indigents to pay a filing fee for appellate review of adverse welfare benefits decisions. Ortwein v. Schwab, . Noting that the case did not involve a "suspect classification," we held that the "applicable standard is that of rational justification." Id., at 660. It is plain that the busing fee in this case more closely resembles the fees that were upheld in Kras and Ortwein than it resembles the fees that were invalidated in the cases on which appellants rely. Those cases therefore do not support the suggestion that North Dakota's 1979 statute violates the Equal Protection Clause.* Applying the appropriate test - under which a statute is upheld if it bears a rational relation to a legitimate government objective - we think it is quite clear that a State's decision to allow local school boards the option of charging patrons a user fee for bus service is constitutionally permissible. The Constitution does not require that such service be provided at all, and it is difficult to imagine why choosing to offer the service should entail a constitutional obligation to offer it for free. No one denies that encouraging local school districts to provide school bus service is a legitimate state purpose or that such encouragement would be undermined by a rule requiring that general revenues be used to subsidize an optional service that will benefit a minority of the district's families. It is manifestly rational for the State to refrain from undermining its legitimate objective with such a rule.CAppellants contend that, even without the application of strict or heightened scrutiny, the 1979 statute violates equal protection because it permits user fees for bus service only in nonreorganized school districts. This distinction, they say, can be given no rational justification whatsoever. Brief for Appellants 19-22. The principles governing our review of this claim are well established. "`The Fourteenth Amendment does not prohibit legislation merely because it is special, or limited in its application to a particular geographical or political subdivision of the state.' Fort Smith Light Co. v. Paving Dist., . Rather, the Equal Protection Clause is offended only if the statute's classification `rests on grounds wholly irrelevant to the achievement of the State's objective.' McGowan v. Maryland, ; Kotch v. Board of River Port Pilot Comm'rs, ." Holt Civic Club v. Tuscaloosa, . Social and economic legislation like the statute at issue in this case, moreover, "carries with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality." Hodel v. Indiana, . "[W]e will not overturn such a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature's actions were irrational." Vance v. Bradley, . In performing this analysis, we are not bound by explanations of the statute's rationality that may be offered by litigants or other courts. Rather, those challenging the legislative judgment must convince us "that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker." Id., at 111.Applying these principles to the present case, we conclude that appellants have failed to carry the "heavy burden" of demonstrating that the challenged statute is both arbitrary and irrational. Hodel v. Indiana, supra, at 332. The court below offered the following justification for the distinction drawn between reorganized and nonreorganized districts:"The obvious purpose of [statutes treating reorganized and nonreorganized schools differently] is to encourage school district reorganization with a concomitant tax base expansion and an enhanced and more effective school system. The legislation provides incentive for the people to approve school district reorganization by alleviating parental concerns regarding the cost of student transportation in the reorganized district." 402 N. W. 2d, at 903. Appellees offer a more elaborate, but not incompatible, explanation:"[T]he authorization of the bus fee to be charged by districts such as Dickinson has nothing to do with the reorganization of school districts. The reasoning for it is to simply have the few that use the service pay a small portion of that cost in exchange for the substantial benefits received. "The only reason that the fee authorization was not extended to reorganized districts is that those districts, prior to the passage of the statute permitting fees, were already committed on an individual district basis to some type of transportation system which had been submitted to and approved by the voters in each separate district. To permit the 1979 statute authorizing fees to be retroactively effective in reorganized districts would have been an obvious impairment of existing legal relationships since the already established transportation systems in the various reorganized districts did not include any authority to charge a fee." Brief for Appellees 16. The State of North Dakota informs us that the 1979 legislation was proposed to the legislature by the Dickinson School District itself, which had for several years been charging transportation fees and which "became concerned when it appeared that the 1979 Legislature would enact a statute prohibiting charging the fee." Brief for State of North Dakota as Amicus Curiae 6-7 (citations to legislative history omitted). The State's account of the reason for confining the express authorization of fees to nonreorganized schools districts is the same as the account offered by appellees. Id., at 9.The explanation offered by appellees and the State is adequate to rebut appellants' contention that the distinction drawn between reorganized and nonreorganized districts is arbitrary and irrational. The Supreme Court of North Dakota has said, and the State agrees, that all reorganized school districts are presently required to furnish or pay for transportation for students living as far away from school as Sarita Kadrmas does. See 402 N. W. 2d, at 903 (citing N. D. Cent. Code 15-27.3-10 (Supp. 1987)); Tr. of Oral Arg. 32. This requirement, however, is not imposed directly by statute, but rather by the reorganization plans that are statutorily required in the reorganization process. With certain specified exceptions (not including the transportation provisions), those reorganization plans may be changed by the voters in the affected districts. N. D. Cent. Code 15-27.3-19 (Supp. 1987). Although it appears that no reorganized district has ever used this mechanism to adopt a user fee like Dickinson's, we have not been informed that such a step could not legally be taken. Thus, the one definitely established difference between reorganized and nonreorganized districts is this: in the latter, local school boards may impose a bus service user fee on their own authority, while the direct approval of the voters would be required in reorganized districts. That difference, however, simply reflects voluntary agreements made during the history of North Dakota's reorganization process, and it could scarcely be thought to make the State's laws arbitrary or irrational.Even if we assume, as appellants apparently do, that the State has forbidden reorganized school districts to charge user fees for bus service under any circumstances, it is evident that the legislature could conceivably have believed that such a policy would serve the legitimate purpose of fulfilling the reasonable expectations of those residing in districts with free busing arrangements imposed by reorganization plans. Because this purpose could have no application to nonreorganized districts, the legislature could just as rationally conclude that those districts should have the option of imposing user fees on those who take advantage of the service they are offered.In sum, the statute challenged in this case discriminates against no suspect class and interferes with no fundamental right. Appellants have failed to carry the heavy burden of demonstrating that the statute is arbitrary and irrational. The Supreme Court of North Dakota correctly concluded that the statute does not violate the Equal Protection Clause of the Fourteenth Amendment, and its judgment is Affirmed.[Footnote *] Appellants also suggest that their position is supported by Bearden v. Georgia, . We disagree. In Bearden, we held that a trial court erred "in automatically revoking probation because the [offender] could not pay his fine, without determining that [he] had not made sufficient bona fide efforts to pay or that adequate alternative forms of punishment did not exist." Id., at 662. Whether this decision is considered under equal protection or due process principles, see id., at 664-667, the criminal-sentencing decision at issue in Bearden is not analogous to the user fee at issue in the case before us. JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.In San Antonio Independent School Dist. v. Rodriguez, , I wrote that the Court's holding was a "retreat from our historic commitment to equality of educational opportunity and [an] unsupportable acquiescence in a system which deprives children in their earliest years of the chance to reach their full potential." Id., at 71 (dissenting). Today, the Court continues the retreat from the promise of equal educational opportunity by holding that a school district's refusal to allow an indigent child who lives 16 miles from the nearest school to use a school-bus service without paying a fee does not violate the Fourteenth Amendment's Equal Protection Clause. Because I do not believe that this Court should sanction discrimination against the poor with respect to "perhaps the most important function of state and local governments," Brown v. Board of Education, , I dissent.The Court's opinion suggests that this case does not concern state action that discriminates against the poor with regard to the provision of a basic education. The Court notes that the particular governmental action challenged in this case involves the provision of transportation, rather than the provision of educational services. See ante, at 459-460, 460-461. Moreover, the Court stresses that the denial of transportation to Sarita Kadrmas did not in fact prevent her from receiving an education; notwithstanding the denial of bus service, Sarita's family ensured that she attended school each day. See ante, at 458, 460-461.1 To the Court, then, this case presents no troublesome questions; indeed, the Court's facile analysis suggests some perplexity as to why this case ever reached this Court.I believe the Court's approach forgets that the Constitution is concerned with "sophisticated as well as simple-minded modes of discrimination." Lane v. Wilson, . This case involves state action that places a special burden on poor families in their pursuit of education. Children living far from school can receive a public education only if they have access to transportation; as the state court noted in this case, "a child must reach the schoolhouse door as a prerequisite to receiving the educational opportunity offered therein." 402 N. W. 2d 897, 901 (N. D. 1987). Indeed, for children in Sarita's position, imposing a fee for transportation is no different in practical effect from imposing a fee directly for education. Moreover, the fee involved in this case discriminated against Sarita's family because it necessarily fell more heavily upon the poor than upon wealthier members of the community.2 Cf. Bullock v. Carter, (voting system based on flat fees "falls with unequal weight on voters, as well as candidates, according to their economic status"); Griffin v. Illinois, . n. 11 (1956) (opinion of Black, J.) (state law imposing flat fee for trial transcript is "nondiscriminatory on its face," but "grossly discriminatory in its operation"). This case therefore presents the question whether a State may discriminate against the poor in providing access to education. I regard this question as one of great urgency.As I have stated on prior occasions, proper analysis of equal protection claims depends less on choosing the "formal label" under which the claim should be reviewed than upon identifying and carefully analyzing the real interests at stake. Cleburne v. Cleburne Living Center, Inc., (MARSHALL, J., dissenting); see Selective Service System v. Minnesota Public Interest Research Group, (MARSHALL, J., dissenting). In particular, the Court should focus on "the character of the classification in question, the relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive, and the asserted state interests in support of the classification." Dandridge v. Williams, (MARSHALL, J., dissenting); see San Antonio Independent School Dist. v. Rodriguez, supra, at 98-99 (MARSHALL, J., dissenting). Viewed from this perspective, the discrimination inherent in the North Dakota statute fails to satisfy the dictates of the Equal Protection Clause.The North Dakota statute discriminates on the basis of economic status. This Court has determined that classifications based on wealth are not automatically suspect. See, e. g., Maher v. Roe, . Such classifications, however, have a measure of special constitutional significance. See, e. g., McDonald v. Board of Election Comm'rs of Chicago, ("[A] careful examination on our part is especially warranted where lines are drawn on the basis of wealth ..."); Harper v. Virginia Bd. of Elections, ("Lines drawn on the basis of wealth or property ... are traditionally disfavored"). This Court repeatedly has invalidated statutes, on their face or as applied, that discriminated against the poor. See, e. g., Little v. Streater, ; Bullock v. Carter, supra; Harper v. Virginia Bd. of Elections, supra; Griffin v. Illinois, supra. The Court has proved most likely to take such action when the laws in question interfered with the access of the poor to the political and judicial processes. One source of these decisions, in my view, is a deep distrust of policies that specially burden the access of disadvantaged persons to the governmental institutions and processes that offer members of our society an opportunity to improve their status and better their lives. The intent of the Fourteenth Amendment was to abolish caste legislation. See Plyler v. Doe, . When state action has the predictable tendency to entrap the poor and create a permanent underclass, that intent is frustrated. See id., at 234 (BLACKMUN, J., concurring). Thus, to the extent that a law places discriminatory barriers between indigents and the basic tools and opportunities that might enable them to rise, exacting scrutiny should be applied.The statute at issue here burdens a poor person's interest in an education. The extraordinary nature of this interest cannot be denied. This Court's most famous statement on the subject is contained in Brown v. Board of Education, 347 U.S., at 493:"[E]ducation is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education." Since Brown, we frequently have called attention to the vital role of education in our society. We have noted that "education is necessary to prepare citizens to participate effectively and intelligently in our open political system ... ." Wisconsin v. Yoder, ; see San Antonio Independent School Dist. v. Rodriguez, 411 U.S., at 112-115 (MARSHALL, J., dissenting). We also have recognized that education prepares individuals to become self-reliant participants in our economy. See Plyler v. Doe, supra, at 221-222; Wisconsin v. Yoder, supra, at 221. A statute that erects special obstacles to education in the path of the poor naturally tends to consign such persons to their current disadvantaged status. By denying equal opportunity to exactly those who need it most, the law not only militates against the ability of each poor child to advance herself or himself, but also increases the likelihood of the creation of a discrete and permanent underclass. Such a statute is difficult to reconcile with the framework of equality embodied in the Equal Protection Clause.This Court's decision in Plyler v. Doe, supra, supports these propositions. The Court in Plyler upheld the right of the children of illegal aliens to receive the free public education that the State of Texas made available to other residents. The Court in that case engaged in some discussion of alienage, a classification not relevant here. The decision, however, did not rest upon this basis. Rather, the Court made clear that the infirmity of the Texas law stemmed from its differential treatment of a discrete and disadvantaged group of children with respect to the provision of education. The Court stated that education is not "merely some governmental `benefit' indistinguishable from other forms of social welfare legislation." Id., at 221. The Court further commented that the state law "poses an affront to one of the goals of the Equal Protection Clause: the abolition of governmental barriers presenting unreasonable obstacles to advancement on the basis of individual merit." Id., at 221-222. Finally, the Court called attention to the tendency of the Texas law to create a distinct underclass of impoverished illiterates who would be unable to participate in and contribute to society. See id., at 222-224. The Plyler Court's reasoning is fully applicable here. As in Plyler, the State in this case has acted to burden the educational opportunities of a disadvantaged group of children, who need an education to become full participants in society.The State's rationale for this policy is based entirely on fiscal considerations. The State has allowed Dickinson and certain other school districts to charge a nonwaivable flat fee for bus service so that these districts may recoup part of the costs of the service. The money that Dickinson collects from applying the busing fee to indigent families, however, represents a minuscule proportion of the costs of the bus service. As the Court notes, ante, at 454, all of the fees collected by Dickinson amount to only 11% of the cost of providing the bus service, and the fees collected from poor families represent a small fraction of the total fees. Exempting indigent families from the busing fee therefore would not require Dickinson to make any significant adjustments in either the operation or the funding of the bus service. Indeed, as the Court states, most school districts in the State provide full bus service without charging any fees at all. See ante, at 465. The state interest involved in this case is therefore insubstantial; it does not begin to justify the discrimination challenged here.The Court's decision to the contrary "demonstrates once again a `callous indifference to the realities of life for the poor.'" Selective Service System v. Minnesota Public Interest Research Group, 468 U.S., at 876 (MARSHALL, J., dissenting), quoting Flagg Bros., Inc. v. Brooks, (MARSHALL, J., dissenting). These realities may not always be obvious from the Court's vantage point, but the Court fails in its constitutional duties when it refuses, as it does today, to make even the effort to see. For the poor, education is often the only route by which to become full participants in our society. In allowing a State to burden the access of poor persons to an education, the Court denies equal opportunity and discourages hope. I do not believe the Equal Protection Clause countenances such a result. I therefore dissent.

1. Venue in patent infringement actions is governed exclusively by 28 U.S.C. 1400 (b), which provides that any such action may be brought "in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business"; and 28 U.S.C. 1391 (c) has no application to such actions. Stonite Products Co. v. Melvin Lloyd Co., . Pp. 222-229.2. A patent infringement action may not be brought against a corporation in a judicial district in which it is not shown to have committed any of the alleged acts of infringement and which is outside the State where it was incorporated, though it has a regularly established place of business in such judicial district. Pp. 222-229.3. The 1948 revision and recodification of the Judicial Code, 62 Stat. 869, made no substantive change in 48 of the Judicial Code when it recodified it as 28 U.S.C. 1400 (b). Pp. 225-228. 233 F.2d 885, reversed and remanded.Edward S. Irons argued the cause for petitioner. With him on the brief was Harold J. Birch.W. R. Hulbert argued the cause for respondents. With him on the brief was William W. Rymer, Jr.MR. JUSTICE WHITTAKER delivered the opinion of the Court.The question presented is whether 28 U.S.C. 1400 (b) is the sole and exclusive provision governing venue in patent infringement actions, or whether that section is supplemented by 28 U.S.C. 1391 (c). Section 1400 is titled "Patents and copyrights," and subsection (b) reads: "(b) Any civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business." Section 1391 is titled "Venue generally," and subsection (c) reads: "(c) A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as the residence of such corporation for venue purposes." Petitioner, Fourco Glass Company, a West Virginia corporation, was sued for patent infringement in the Southern District of New York. It moved to dismiss for lack of venue,1 because, although it had a regularly established place of business in the district of suit, there was no showing that it had committed any of the alleged acts of infringement there. The District Court held that there had been no showing of any acts of infringement in the district of suit and that venue in patent infringement actions is solely and exclusively governed by 1400 (b), as a special and specific venue statute applicable to that species of litigation. It accordingly granted the motion and dismissed the action. 133 F. Supp. 531. The Court of Appeals, without passing on the District Court's ruling that there had been no showing of acts of infringement in the district of suit, reversed, 233 F.2d 885, 886, holding that proper construction "requires ... the insertion in" 1400 (b) "of the definition of corporate residence from" 1391 (c), and that the two sections, when thus "read together," mean "that this defendant may be sued in New York, where it `is doing business.'" We granted certiorari2 because of an asserted conflict with this Court's decision in Stonite Products Co. v. Melvin Lloyd Co., , and to resolve a conflict among the circuits3 upon the question of venue in patent infringement litigation.We start our considerations with the Stonite case. The question there - not legally distinguishable from the question here - was whether the venue statute applying specifically to patent infringement litigation (then 48 of the Judicial Code, 28 U.S.C. (1940 ed.) 109), was the sole provision governing venue in those cases, or whether that section was to be supplemented by what was then 52 of the Judicial Code (28 U.S.C. (1940 ed.) 113), which authorized - just as its recodified counterpart, 28 U.S.C. 1392 (a), does now - an action, not of a local nature, against two or more defendants residing in different judicial districts within the same state, to be brought in either district. That supplementation, if permissible, would have fixed venue over Stonite Products Company (an inhabitant of the Eastern District of Pennsylvania) in the District Court for the Western District of Pennsylvania, where the suit was brought, because its codefendant was an inhabitant of that district.After reviewing the history of, and the reasons and purposes for, the adoption by Congress of the venue statute applying specifically to patent infringement suits - ground wholly unnecessary to replow here - this Court held "that 48 is the exclusive provision controlling venue in patent infringement proceedings" and "that Congress did not intend the Act of 1897 [which had become 48 of the Judicial Code, 28 U.S.C. (1940 ed.) 109] to dovetail with the general provisions relating to the venue of civil suits, but rather that it alone should control venue in patent infringement proceedings."4 The soundness of the Stonite case is not here assailed, and, unless there has been a substantive change in what was 48 of the Judicial Code at the time the Stonite case was decided, on March 9, 1942, it is evident that that statute would still constitute "the exclusive provision controlling venue in patent infringement proceedings."The question here, then, is simply whether there has been a substantive change in that statute since the Stonite case. If there has been such change, it occurred in the 1948 revision and recodification of the Judicial Code.5 At the time of the Stonite case the venue provisions of that statute ( 48 of the 1911 Judicial Code. 28 U.S.C. (1940 ed.) 109) read: "In suits brought for the infringement of letters patent the district courts of the United States shall have jurisdiction, in law or in equity, in the district of which the defendant is an inhabitant, or in any district in which the defendant, whether a person, partnership, or corporation, shall have committed acts of infringement and have a regular and established place of business." The reports of the Committee on the Judiciary of the Senate,6 and of the House,7 respecting the 1948 revision and recodification of the Judicial Code, make plain that every change made in the text is explained in detail in the Revisers' Notes. As shown by their notes on 1400 (b), the Revisers placed the venue provisions (quoted above) of old 48 (28 U.S.C. (1940 ed.) 109), with word changes and omissions later noted, in 1400 (b), and placed the remainder, or process provisions, with certain word changes, in 1694 of the 1948 Code. The Revisers' Notes on 1400 (b) point out that "Subsection (b) is based on section 109 of title 28, U.S.C., 1940 ed., with the following changes:" (1) "Words `civil action' were substituted for `suit,' and words `in law or in equity,' after `shall have jurisdiction' were deleted, in view of Rule 2 of the Federal Rules of Civil Procedure"; (2) "Words in subsection (b) `where the defendant resides' were substituted for `of which the defendant is an inhabitant'" because the "Words `inhabitant' and `resident,' as respects venue, are synonymous" [we pause here to observe that this treatment, and the expressed reason for it, seems to negative any intention to make corporations suable, in patent infringement cases, where they are merely "doing business," because those synonymous words mean domicile, and, in respect of corporations, mean the state of incorporation only. See Shaw v. Quincy Mining Co., ; and (3) "Words `whether a person, partnership, or corporation' before `has committed' were omitted as surplusage." Statements made by several of the persons having importantly to do with the 1948 revision are uniformly clear that no changes of law or policy are to be presumed from changes of language in the revision unless an intent to make such changes is clearly expressed.8 "The change of arrangement, which placed portions of what was originally a single section in two separated sections cannot be regarded as altering the scope and purpose of the enactment. For it will not be inferred that Congress, in revising and consolidating the laws, intended to change their effect unless such intention is clearly expressed. United States v. Ryder, ; United States v. LeBris, ; Logan v. United States, ; United States v. Mason, ." Anderson v. Pacific Coast S. S. Co., . In the light of the fact that the Revisers' Notes do not express any substantive change, and of the fact that several of those having importantly to do with the revision say no change is to be presumed unless clearly expressed, and no substantive change being otherwise apparent, we hold that 28 U.S.C. 1400 (b) made no substantive change from 28 U.S.C. (1940 ed.) 109 as it stood and was dealt with in the Stonite case.The main thrust of respondents' argument is that 1391 (c) is clear and unambiguous and that its terms include all actions - including patent infringement actions - against corporations, and, therefore, that the statute should be read with, and as supplementing, 1400 (b) in patent infringement actions. That argument is not persuasive, as it merely points up the question and does nothing to answer it. For it will be seen that 1400 (b) is equally clear and, also, that it deals specially and specifically with venue in patent infringement actions. Moreover, it will be remembered that old 52 of the Judicial Code (28 U.S.C. (1940 ed.) 113) was likewise clear and generally embracive, yet the Stonite case held that it did not supplement the specific patent infringement venue section (then 48 of the Judicial Code, 28 U.S.C. (1940 ed.) 109). The question is not whether 1391 (c) is clear and general, but, rather, it is, pointedly, whether 1391 (c) supplements 1400 (b), or, in other words, whether the latter is complete, independent and alone controlling in its sphere as was held in Stonite, or is, in some measure, dependent for its force upon the former.We think it is clear that 1391 (c) is a general corporation venue statute, whereas 1400 (b) is a special venue statute applicable, specifically, to all defendants in a particular type of actions, i. e., patent infringement actions. In these circumstances the law is settled that "However inclusive may be the general language of a statute, it `will not be held to apply to a matter specifically dealt with in another part of the same enactment... . Specific terms prevail over the general in the same or another statute which otherwise might be controlling.' Ginsberg & Sons v. Popkin, ." MacEvoy Co. v. United States, .We hold that 28 U.S.C. 1400 (b) is the sole and exclusive provision controlling venue in patent infringement actions, and that it is not to be supplemented by the provisions of 28 U.S.C. 1391 (c). The judgment of the Court of Appeals must therefore be reversed and the cause remanded for that court to pass upon the District Court's ruling that there had been no showing of acts of infringement in the district of suit. Reversed and remanded.MR. JUSTICE HARLAN, believing that the Revisers' Notes have been given undue weight, Ex parte Collett, , and that they are in any event unclear, dissents for the reasons given by the Court of Appeals, 233 F.2d 885. See also Dalton v. Shakespeare Co., 196 F.2d 469; Lindley, C. J., dissenting in C-O-Two Fire Equipment Co. v. Barnes, 194 F.2d 410, 415; Denis v. Perfect Parts, Inc., 142 F. Supp. 259; Moore, Commentary on the U.S. Judicial Code, 184-185, 193-194.

Petitioner Hildwin was convicted of first-degree murder by a Florida jury. Since this crime is punishable by death or life imprisonment, state law requires that a separate sentencing proceeding be conducted, in which a jury makes an advisory recommendation but the court makes the ultimate decision whether to impose a death sentence, which it may impose after finding at least one aggravating factor. The court must make written findings to support its imposition of a death sentence. In Hildwin's case, the jury rendered a unanimous advisory sentence of death, and the judge imposed the death sentence, finding four aggravating circumstances and nothing in mitigation. The State Supreme Court affirmed the sentence, rejecting Hildwin's argument that the sentencing scheme violates the Sixth Amendment because it permits the imposition of death without a specific finding by the jury that sufficient aggravating circumstances exist to qualify the defendant for capital punishment.Held: The Sixth Amendment does not require that the specific findings authorizing the imposition of the death sentence be made by a jury. Since the Court has held that the Amendment permits a judge to impose a death sentence when the jury recommends life imprisonment, Spaziano v. Florida, , it follows that the Amendment does not forbid the judge to make written findings authorizing the imposition of a death sentence when the jury unanimously makes such a recommendation. There is no Sixth Amendment right to jury sentencing, even where the sentence turns upon specific aggravating circumstances. McMillan v. Pennsylvania, . The existence of an aggravating factor is not an element of the offense but is a sentencing factor that comes into play only after a defendant has been found guilty. Certiorari granted; 531 So.2d 124, affirmed.PER CURIAM.This case presents us once again with the question whether the Sixth Amendment requires a jury to specify the aggravating factors that permit the imposition of capital punishment in Florida. Petitioner, Paul C. Hildwin, Jr., was indicted for, and convicted of, first-degree murder. Under Florida law, that offense is a capital felony punishable by death or life imprisonment. Fla. Stat. 782.04(1)(a) (1987). Upon a defendant's conviction of a capital felony, the court conducts a separate sentencing proceeding after which the jury renders an advisory verdict. Fla. Stat. 921.141 (Supp. 1988). The ultimate decision to impose a sentence of death, however, is made by the court after finding at least one aggravating circumstance. Ibid. If the court imposes a sentence of death, it must "set forth in writing its findings upon which the sentence of death is based." Ibid. In petitioner's case, the jury returned a unanimous advisory verdict of death, and the judge imposed the death sentence. In the order imposing the death sentence, the trial judge found four aggravating circumstances: petitioner had previous convictions for violent felonies, he was under a sentence of imprisonment at the time of the murder, the killing was committed for pecuniary gain, and the killing was especially heinous, atrocious, and cruel. The trial judge found nothing in mitigation.On appeal to the Florida Supreme Court, petitioner argued that the Florida capital sentencing scheme violates the Sixth Amendment because it permits the imposition of death without a specific finding by the jury that sufficient aggravating circumstances exist to qualify the defendant for capital punishment. The court rejected this argument without discussion and affirmed petitioner's conviction and sentence of death. 531 So.2d 124 (1988).* In Spaziano v. Florida, , we rejected the claim that the Sixth Amendment requires a jury trial on the sentencing issue of life or death. In that case, we upheld against Sixth Amendment challenge the trial judge's imposition of a sentence of death notwithstanding that the jury had recommended a sentence of life imprisonment. We stated: "The fact that a capital sentencing is like a trial in the respects significant to the Double Jeopardy Clause ... does not mean that it is like a trial in respects significant to the Sixth Amendment's guarantee of a jury trial." Id., at 459. We did not specifically note that the death sentence may only be imposed if the judge makes a written finding of an aggravating circumstance. If the Sixth Amendment permits a judge to impose a sentence of death when the jury recommends life imprisonment, however, it follows that it does not forbid the judge to make the written findings that authorize imposition of a death sentence when the jury unanimously recommends a death sentence.Nothing in our opinion in McMillan v. Pennsylvania, , suggests otherwise. We upheld a Pennsylvania statute that required the sentencing judge to impose a mandatory minimum sentence if the judge found by a preponderance of the evidence that the defendant visibly possessed a firearm. We noted that the finding under Pennsylvania law "neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it." Id., at 87-88. Thus we concluded that the requirement that the findings be made by a judge rather than the jury did not violate the Sixth Amendment because "there is no Sixth Amendment right to jury sentencing, even where the sentence turns on specific findings of fact." Id., at 93. Like the visible possession of a firearm in McMillan, the existence of an aggravating factor here is not an element of the offense but instead is "a sentencing factor that comes into play only after the defendant has been found guilty." Id., at 86. Accordingly, the Sixth Amendment does not require that the specific findings authorizing the imposition of the sentence of death be made by the jury.The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted, and the judgment of the Supreme Court of Florida is Affirmed.[Footnote *] Petitioner did not present this issue to the trial court, but raised it for the first time in the Florida Supreme Court. Respondent therefore argues that the decision below rests on an adequate and independent state ground. The Florida Supreme Court, however, did not rest its decision on this procedural argument, finding instead that there was "no merit" to petitioner's claim. 531 So.2d, at 129. In these circumstances, we have jurisdiction to reach the merits. See Caldwell v. Mississippi, .JUSTICE BRENNAN, dissenting.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, (BRENNAN, J., dissenting), I would vacate the death sentence in this case.JUSTICE MARSHALL, dissenting.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, , (MARSHALL, J., dissenting), I would grant the petition for certiorari and vacate the death sentence in this case.Even if I did not hold this view, I would dissent from the Court's decision today to affirm summarily the decision below. I continue to believe that summary dispositions deprive litigants of a fair opportunity to be heard on the merits and create a significant risk that the Court is rendering an erroneous or ill-advised decision that may confuse the lower courts. See Pennsylvania v. Bruder, (MARSHALL, J., dissenting); Rhodes v. Stewart, (MARSHALL, J., dissenting); Buchanan v. Stanships, Inc., (MARSHALL, J., dissenting); Commissioner v. McCoy, (MARSHALL, J., dissenting). This risk of error is particularly unacceptable in capital cases where a man's life is at stake. I dissent.

Petitioner, liquidator of Manhattan Casualty Co., alleged that the company was defrauded, in violation of federal securities laws, by a fraudulent sale of securities owned by it. Manhattan's sole stockholder agreed to sell all of its Manhattan stock to one Begole for $5 million. Begole conspired with others to use United States Treasury bonds owned by Manhattan to pay for the shares. Through a deceptive device the bonds were sold and the proceeds used in the purchase of the stock. The depletion of Manhattan's assets was concealed by the purported transfer to it, in exchange for the proceeds of the bond sale, of a certificate of deposit which in fact had been assigned by Manhattan's new president, a co-conspirator, to another corporation and by it used as collateral for a loan. The District Court dismissed the complaint and the Court of Appeals affirmed, finding that "no investor [was] injured" and that the "purity of the security transaction and the purity of the trading process were unsullied." Held: Section 10 (b) of the Securities Exchange Act of 1934 makes it unlawful to use "in connection with the purchase or sale" of any security "any manipulative or deceptive device or contrivance" in contravention of the Securities and Exchange Commission's rules and regulations. Section 10 (b) prohibits the use of any deceptive device in the "sale" of any security by "any person," and it is irrelevant that Manhattan was a corporation rather than an individual investor; that the fraud was perpetrated by a corporate officer and his outside collaborators; that the transaction was not conducted through a securities exchange or an organized market; that the proceeds due the seller were misappropriated; and that the creditors of the defrauded corporate seller may be the ultimate victims. Pp. 9-14. 430 F.2d 355, reversed.DOUGLAS, J., delivered the opinion for a unanimous Court. Arnold Bauman argued the cause for petitioner. With him on the briefs was Morton J. Schlossberg.William W. Karatz argued the cause and filed a brief for respondent Irving Trust Co. Irving Parker argued the cause for respondent Bankers Life & Casualty Co. With him on the brief were William T. Kirby and Isaac M. Bayda. William E. Willis and Michael M. Maney filed a brief for respondents Belgian-American Banking Corp. et al. William Heller filed a brief for respondents Garvin, Bantel & Co. et al.Walter P. North argued the cause for the Securities and Exchange Commission as amicus curiae urging reversal. With him on the brief were Solicitor General Griswold, Peter L. Strauss, Philip A. Loomis, Jr., and Theodore Sonde.MR. JUSTICE DOUGLAS delivered the opinion of the Court.Manhattan Casualty Co., now represented by petitioner, New York's Superintendent of Insurance, was, it is alleged, defrauded in the sale of certain securities in violation of 17 (a) of the Securities Act of 1933, 48 Stat. 84, 15 U.S.C. 77q (a), and of 10 (b) of the Securities Exchange Act of 1934, 48 Stat. 891, 15 U.S.C. 78j (b). The District Court dismissed the complaint, 300 F. Supp. 1083, and the Court of Appeals affirmed, by a divided bench. 430 F.2d 355. The case is here on a petition for a writ of certiorari which we granted, .It seems that Bankers Life & Casualty Co., one of the respondents, agreed to sell all of Manhattan's stock to one Begole for $5,000,000. It is alleged that Begole conspired with one Bourne and others to pay for this stock, not out of their own funds, but with Manhattan's assets. They were alleged to have arranged, through Garvin, Bantel & Co. - a note brokerage firm - to obtain a $5,000,000 check from respondent Irving Trust Co., although they had no funds on deposit there at the time. On the same day they purchased all the stock of Manhattan from Bankers Life for $5,000,000 and as stockholders and directors, installed one Sweeny as president of Manhattan.Manhattan then sold its United States Treasury bonds for $4,854,552.67.1 That amount, plus enough cash to bring the total to $5,000,000, was credited to an account of Manhattan at Irving Trust and the $5,000,000 Irving Trust check was charged against it. As a result, Begole owned all the stock of Manhattan, having used $5,000,000 of Manhattan's assets to purchase it.To complete the fraudulent scheme, Irving Trust issued a second $5,000,000 check to Manhattan which Sweeny, Manhattan's new president, tendered to Belgian-American Bank & Trust Co. which issued a $5,000,000 certificate of deposit in the name of Manhattan. Sweeny endorsed the certificate of deposit over to New England Note Corp., a company alleged to be controlled by Bourne. Bourne endorsed the certificate over to Belgian-American Banking Corp.2 as collateral for a $5,000,000 loan from Belgian-American Banking to New England. Its proceeds were paid to Irving Trust to cover the latter's second $5,000,000 check.Though Manhattan's assets had been depleted, its books reflected only the sale of its Government bonds and the purchase of the certificate of deposit and did not show that its assets had been used by Begole to pay for his purchase of Manhattan's shares or that the certificate of deposit had been assigned to New England and then pledged to Belgian-American Banking.Manhattan was the seller of Treasury bonds and, it seems to us, clearly protected by 10 (b), 15 U.S.C. 78j (b), of the Securities Exchange Act,3 which makes it unlawful to use "in connection with the purchase or sale" of any security "any manipulative or deceptive device or contrivance" in contravention of the rules and regulations of the Securities and Exchange Commission.4 There certainly was an "act" or "practice" within the meaning of Rule 10b-55 which operated as "a fraud or deceit" on Manhattan, the seller of the Government bonds. To be sure, the full market price was paid for those bonds; but the seller was duped into believing that it, the seller, would receive the proceeds. We cannot agree with the Court of Appeals that "no investor [was] injured" and that the "purity of the security transaction and the purity of the trading process were unsullied." 430 F.2d, at 361.Section 10 (b) outlaws the use "in connection with the purchase or sale" of any security6 of "any manipulative or deceptive device or contrivance." The Act protects corporations as well as individuals who are sellers of a security. Manhattan was injured as an investor through a deceptive device which deprived it of any compensation for the sale of its valuable block of securities.The fact that the fraud was perpetrated by an officer of Manhattan and his outside collaborators is irrelevant to our problem. For 10 (b) bans the use of any deceptive device in the "sale" of any security by "any person." And the fact that the transaction is not conducted through a securities exchange or an organized over-the-counter market is irrelevant to the coverage of 10 (b). Hooper v. Mountain States Securities Corp., 282 F.2d 195, 201. Likewise irrelevant is the fact that the proceeds of the sale that were due the seller were misappropriated.7 As the Court of Appeals for the Fifth Circuit said in the Hooper case, "Considering the purpose of this legislation, it would be unrealistic to say that a corporation having the capacity to acquire $700,000 worth of assets for its 700,000 shares of stock has suffered no loss if what it gave up was $700,000 but what it got was zero." 282 F.2d, at 203.The Congress made clear that "disregard of trust relationships by those whom the law should regard as fiduciaries, are all a single seamless web" along with manipulation, investor's ignorance, and the like. H. R. Rep. No. 1383, 73d Cong., 2d Sess., 6. Since practices "constantly vary and where practices legitimate for some purposes may be turned to illegitimate and fraudulent means, broad discretionary powers" in the regulatory agency "have been found practically essential." Id., at 7. Hence we do not read 10 (b) as narrowly as the Court of Appeals; it is not "limited to preserving the integrity of the securities markets" (430 F.2d, at 361), though that purpose is included. Section 10 (b) must be read flexibly, not technically and restrictively. Since there was a "sale" of a security and since fraud was used "in connection with" it, there is redress under 10 (b), whatever might be available as a remedy under state law.We agree that Congress by 10 (b) did not seek to regulate transactions which constitute no more than internal corporate mismanagement. But we read 10 (b) to mean that Congress meant to bar deceptive devices and contrivances in the purchase or sale of securities whether conducted in the organized markets or face to face. And the fact that creditors8 of the defrauded corporate buyer or seller of securities may be the ultimate victims does not warrant disregard of the corporate entity. The controlling stockholder owes the corporation a fiduciary obligation - one designed for the protection of the entire community of interests in the corporation - creditors as well as stockholders." Pepper v. Litton, .The crux of the present case is that Manhattan suffered an injury as a result of deceptive practices touching its sale of securities as an investor. As stated in Shell v. Hensley, 430 F.2d 819, 827:"When a person who is dealing with a corporation in a securities transaction denies the corporation's directors access to material information known to him, the corporation is disabled from availing itself of an informed judgment on the part of its board regarding the merits of the transaction. In this situation the private right of action recognized under Rule 10b-59 is available as a remedy for the corporate disability." The case was before the lower courts on a motion to dismiss.Bankers Life urges that the complaint did not allege, and discovery failed to disclose, any connection between it and the fraud and that, therefore, the dismissal of the complaint as to it was correct and should be affirmed. We make no ruling on this point.The case must be remanded for trial. We intimate no opinion on the merits, as we have dealt only with allegations and with the question of law whether a cause of action as respects the sale by Manhattan of its Treasury bonds has been charged under 10 (b).10 We think it has been so charged and accordingly we reverse and remand for proceedings consistent with this opinion.All defenses except our ruling on 10 (b) will be open on remand. Reversed.

Petitioners, nonresidents of Maryland who are holders of unpaid certificates of deposit issued by a failed Maryland savings and loan association, filed a civil action in the Federal District Court against respondents, former association officers and directors and others, alleging claims under, inter alia, the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. 1961-1968. The court dismissed the action, concluding, among other things, that federal abstention was appropriate as to the civil RICO claims, which had been raised in pending litigation in state court, since state courts have concurrent jurisdiction over such claims. The Court of Appeals affirmed.Held: State courts have concurrent jurisdiction over civil RICO claims. The presumption in favor of such jurisdiction has not been rebutted by any of the factors identified in Gulf Offshore Co. v. Mobil Oil Corp., . Pp. 458-467. (a) As petitioners concede, there is nothing in RICO's explicit language to suggest that Congress has, by affirmative enactment, divested state courts of civil RICO jurisdiction. To the contrary, 1964(c)'s grant of federal jurisdiction over civil RICO claims is plainly permissive and thus does not operate to oust state courts from concurrent jurisdiction. Pp. 460-461. (b) RICO's legislative history reveals no evidence that Congress even considered the question of concurrent jurisdiction, much less any suggestion that Congress affirmatively intended to confer exclusive jurisdiction over civil RICO claims on the federal courts. Petitioners' argument that, because Congress modeled 1964(c) after 4 of the Clayton Act - which confers exclusive jurisdiction on the federal courts - it intended, by implication, to grant exclusive federal jurisdiction over 1964(c) claims is rejected. Sedima, S. P. R. L. v. Imrex Co., , and Agency Holding Corp. v. Malley-Duff & Assocs., , are distinguished, since those cases looked to the Clayton Act in interpreting RICO without the benefit of a background juridical presumption of the type presented here. Pp. 461-463. (c) No "clear incompatibility" exists between state court jurisdiction and federal interests. The interest in uniform interpretation of federal criminal laws, see 18 U.S.C. 3231, is not inconsistent with such jurisdiction merely because state courts would be required to construe the federal crimes that constitute RICO predicate acts. Section 1964(c) claims are not "offenses against the laws of the United States," 3231, and do not result in the imposition of criminal sanctions. There is also no significant danger of inconsistent application of federal criminal law, since federal courts would not be bound by state court interpretations of predicate acts, since state courts would be guided by federal court interpretations of federal criminal law, and since any state court judgments misinterpreting federal criminal law would be subject to direct review by this Court. Moreover, state courts have the ability to handle the complexities of civil RICO actions. Many cases involve asserted violations of state law, over which state courts presumably have greater expertise, and it would seem anomalous to rule that they are incompetent to adjudicate civil RICO claims when such claims are subject to adjudication by arbitration, see Shearson/American Express Inc. v. McMahon, . Further, although the fact that RICO's procedural mechanisms are applicable only in federal court may tend to suggest that Congress intended exclusive federal jurisdiction, it does not by itself suffice to create a "clear incompatibility" with federal interests. And, to the extent that Congress intended RICO to serve broad remedial purposes, concurrent jurisdiction will advance rather than jeopardize federal policies underlying the statute. Pp. 464-467. 865 F.2d 595, affirmed.O'CONNOR, J., delivered the opinion for a unanimous Court. WHITE, J., filed a concurring opinion, post, p. 467. SCALIA, J., filed a concurring opinion, in which KENNEDY, J., joined, post, p. 469.M. Norman Goldberger argued the cause for petitioners. With him on the briefs were Brian P. Flaherty, Gary L. Leshko, and Lawrence I. Weisman.Andrew H. Marks argued the cause for respondents. With him on the brief were J. Joseph Curran, Jr., Attorney General of Maryland, Ralph S. Tyler III, Assistant Attorney General, Clifton S. Elgarten, Luther Zeigler, David B. Isbell, William H. Allen, Charles F. C. Ruff, and Mark H. Lynch.JUSTICE O'CONNOR delivered the opinion of the Court.This case requires us to decide whether state courts have concurrent jurisdiction over civil actions brought under the Racketeer Influenced and Corrupt Organizations Act (RICO), Pub. L. 91-452, Title IX, 84 Stat. 941, as amended, 18 U.S.C. 1961-1968.IThe underlying litigation arises from the failure of Old Court Savings & Loan, Inc. (Old Court), a Maryland savings and loan association, and the attendant collapse of the Maryland Savings-Share Insurance Corp. (MSSIC), a state-chartered nonprofit corporation created to insure accounts in Maryland savings and loan associations that were not federally insured. See Brandenburg v. Seidel, 859 F.2d 1179, 1181-1183 (CA4 1988) (reviewing history of Maryland's savings and loan crisis). Petitioners are nonresidents of Maryland who hold unpaid certificates of deposit issued by Old Court. Respondents are the former officers and directors of Old Court, the former officers and directors of MSSIC, the law firm of Old Court and MSSIC, the accounting firm of Old Court, and the State of Maryland Deposit Insurance Fund Corp., the state-created successor to MSSIC. Petitioners allege various state law causes of action as well as claims under the Securities Exchange Act of 1934 (Exchange Act), 48 Stat. 881, 15 U.S.C. 78a et seq., and RICO.The District Court granted respondents' motions to dismiss, concluding that petitioners had failed to state a claim under the Exchange Act and that, because state courts have concurrent jurisdiction over civil RICO claims, federal abstention was appropriate for the other causes of action because they had been raised in pending litigation in state court. The Court of Appeals for the Fourth Circuit affirmed. 865 F.2d 595 (1989). The Court of Appeals agreed with the District Court that the Old Court certificates of deposit were not "securities" within the meaning of the Exchange Act, see 15 U.S.C. 78c(a)(10), and that petitioners' Exchange Act claims were therefore properly dismissed. 865 F.2d, at 598-599. The Court of Appeals further held, in reliance on its prior decision in Brandenburg v. Seidel, supra, that "a RICO action could be instituted in a state court and that Maryland's `comprehensive scheme for the rehabilitation and liquidation of insolvent state-chartered savings and loan associations,' 859 F.2d at 1191, provided a proper basis for the district court to abstain under the authority of Burford v. Sun Oil Co., ." 865 F.2d, at 600 (citations omitted).To resolve a conflict among the federal appellate courts and state supreme courts,1 we granted certiorari limited to the question whether state courts have concurrent jurisdiction over civil RICO claims. . We hold that they do and accordingly affirm the judgment of the Court of Appeals.IIWe begin with the axiom that, under our federal system, the States possess sovereignty concurrent with that of the Federal Government, subject only to limitations imposed by the Supremacy Clause. Under this system of dual sovereignty, we have consistently held that state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States. See, e. g., Houston v. Moore, 5 Wheat. 1, 25-26 (1820); Claflin v. Houseman, ; Plaquemines Tropical Fruit Co. v. Henderson, ; Charles Dowd Box Co. v. Courtney, ; Gulf Offshore Co. v. Mobil Oil Corp., . As we noted in Claflin, "if exclusive jurisdiction be neither express nor implied, the State courts have concurrent jurisdiction whenever, by their own constitution, they are competent to take it." 93 U.S., at 136; see also Dowd Box, supra, at 507-508 ("We start with the premise that nothing in the concept of our federal system prevents state courts from enforcing rights created by federal law. Concurrent jurisdiction has been a common phenomenon in our judicial history, and exclusive federal court jurisdiction over cases arising under federal law has been the exception rather than the rule"). See generally 1 J. Kent, Commentaries on American Law *400; The Federalist No. 82 (A. Hamilton); F. Frankfurter & J. Landis, The Business of the Supreme Court 5-12 (1927); H. Friendly, Federal Jurisdiction: A General View 8-11 (1973).This deeply rooted presumption in favor of concurrent state court jurisdiction is, of course, rebutted if Congress affirmatively ousts the state courts of jurisdiction over a particular federal claim. See, e. g., Claflin, supra, at 137 ("Congress may, if it see[s] fit, give to the Federal courts exclusive jurisdiction") (citations omitted); see also Houston, supra, at 25-26. As we stated in Gulf Offshore: "In considering the propriety of state-court jurisdiction over any particular federal claim, the Court begins with the presumption that state courts enjoy concurrent jurisdiction. Congress, however, may confine jurisdiction to the federal courts either explicitly or implicitly. Thus, the presumption of concurrent jurisdiction can be rebutted by an explicit statutory directive, by unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interests." 453 U.S., at 478 (citations omitted). See also Claflin, supra, at 136 (state courts have concurrent jurisdiction "where it is not excluded by express provision, or by incompatibility in its exercise arising from the nature of the particular case"). The parties agree that these principles, which have "remained unmodified through the years," Dowd Box, supra, at 508, provide the analytical framework for resolving this case.IIIThe precise question presented, therefore, is whether state courts have been divested of jurisdiction to hear civil RICO claims "by an explicit statutory directive, by unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interests." Gulf Offshore, supra, at 478. Because we find none of these factors present with respect to civil claims arising under RICO, we hold that state courts retain their presumptive authority to adjudicate such claims.At the outset, petitioners concede that there is nothing in the language of RICO - much less an "explicit statutory directive" - to suggest that Congress has, by affirmative enactment, divested the state courts of jurisdiction to hear civil RICO claims. The statutory provision authorizing civil RICO claims provides in full: "Any person injured in his business or property by reason of a violation of section 1962 of this chapter may sue therefor in any appropriate United States district court and shall recover threefold the damages he sustains and the cost of the suit, including a reasonable attorney's fee." 18 U.S.C. 1964(c) (emphasis added). This grant of federal jurisdiction is plainly permissive, not mandatory, for "[t]he statute does not state nor even suggest that such jurisdiction shall be exclusive. It provides that suits of the kind described `may' be brought in the federal district courts, not that they must be." Dowd Box, supra, at 506. Indeed, "[i]t is black letter law ... that the mere grant of jurisdiction to a federal court does not operate to oust a state court from concurrent jurisdiction over the cause of action." Gulf Offshore, supra, at 479 (citing United States v. Bank of New York & Trust Co., ).Petitioners thus rely solely on the second and third factors suggested in Gulf Offshore, arguing that exclusive federal jurisdiction over civil RICO actions is established "by unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interests," 453 U.S., at 478.Our review of the legislative history, however, reveals no evidence that Congress even considered the question of concurrent state court jurisdiction over RICO claims, much less any suggestion that Congress affirmatively intended to confer exclusive jurisdiction over such claims on the federal courts. As the Courts of Appeals that have considered the question have concluded, "[t]he legislative history contains no indication that Congress ever expressly considered the question of concurrent jurisdiction; indeed, as the principal draftsman of RICO has remarked, `no one even thought of the issue.'" Brandenburg, 859 F.2d, at 1193 (quoting Flaherty, Two States Lay Claim to RICO, Nat. L. J., May 7, 1984, p. 10, col. 2); see also Lou v. Belzberg, 834 F.2d 730, 736 (CA9 1987) ("The legislative history provides `no evidence that Congress ever expressly considered the question of jurisdiction; indeed, the evidence establishes that its attention was focused solely on whether to provide a private right of action'") (citation omitted), cert. denied, ; Chivas Products Ltd. v. Owen, 864 F.2d 1280, 1283 (CA6 1988) ("There is no `smoking gun' legislative history in which RICO sponsors indicated an express intention to commit civil RICO to the federal courts"). Petitioners nonetheless insist that if Congress had considered the issue, it would have granted federal courts exclusive jurisdiction over civil RICO claims. This argument, however, is misplaced, for even if we could reliably discern what Congress' intent might have been had it considered the question, we are not at liberty to so speculate; the fact that Congress did not even consider the issue readily disposes of any argument that Congress unmistakably intended to divest state courts of concurrent jurisdiction.Sensing this void in the legislative history, petitioners rely, in the alternative, on our decisions in Sedima, S. P. R. L. v. Imrex Co., , and Agency Holding Corp. v. Malley-Duff & Assocs., , in which we noted that Congress modeled 1964(c) after 4 of the Clayton Act, 15 U.S.C. 15(a). See Sedima, supra, at 489; Agency Holding, supra, at 151-152. Petitioners assert that, because we have interpreted 4 of the Clayton Act to confer exclusive jurisdiction on the federal courts, see, e. g., General Investment Co. v. Lake Shore & M. S. R. Co., , and because Congress may be presumed to have been aware of and incorporated those interpretations when it used similar language in RICO, cf. Cannon v. University of Chicago, , Congress intended, by implication, to grant exclusive federal jurisdiction over claims arising under 1964(c).This argument is also flawed. To rebut the presumption of concurrent jurisdiction, the question is not whether any intent at all may be divined from legislative silence on the issue, but whether Congress in its deliberations may be said to have affirmatively or unmistakably intended jurisdiction to be exclusively federal. In the instant case, the lack of any indication in RICO's legislative history that Congress either considered or assumed that the importing of remedial language from the Clayton Act into RICO had any jurisdictional implications is dispositive. The "mere borrowing of statutory language does not imply that Congress also intended to incorporate all of the baggage that may be attached to the borrowed language." Lou, supra, at 737. Indeed, to the extent we impute to Congress knowledge of our Clayton Act precedents, it makes no less sense to impute to Congress knowledge of Claflin and Dowd Box, under which Congress, had it sought to confer exclusive jurisdiction over civil RICO claims, would have had every incentive to do so expressly.Sedima and Agency Holding are not to the contrary. Although we observed in Sedima that "[t]he clearest current in [the legislative] history [of 1964(c)] is the reliance on the Clayton Act model," 473 U.S., at 489, that statement was made in the context of noting the distinction between "private and governmental actions" under the Clayton Act. Ibid. We intimated nothing as to whether Congress' reliance on the Clayton Act implied any intention to establish exclusive federal jurisdiction for civil RICO claims, and in Sedima itself we rejected any requirement of proving "racketeering injury," nothing that to borrow the "antitrust injury" requirement from antitrust law would "creat[e] exactly the problems Congress sought to avoid." Id., at 498-499. Likewise, in Agency Holding we were concerned with "borrowing," in light of legislative silence on the issue, an appropriate statute of limitations period from an "analogous" statute. 483 U.S., at 146. Under such circumstances, we found it appropriate to borrow the statute of limitations from the Clayton Act. Id., at 152. In this case, by contrast, where the issue is whether jurisdiction is exclusive or concurrent, we are not free to add content to a statute via analogies to other statutes unless the legislature has specifically endorsed such action. Under Gulf Offshore, legislative silence counsels, if not compels, us to enforce the presumption of concurrent jurisdiction. In short, in both Sedima and Agency Holding we looked to the Clayton Act in interpreting RICO without the benefit of a background juridical presumption of the type present in this case. Thus, to whatever extent the Clayton Act analogy may be relevant to our interpretation of RICO generally, it has no place in our inquiry into the jurisdiction of state courts. Petitioners finally urge that state court jurisdiction over civil RICO claims would be clearly incompatible with federal interests. We noted in Gulf Offshore that factors indicating clear incompatibility "include the desirability of uniform interpretation, the expertise of federal judges in federal law, and the assumed greater hospitality of federal courts to peculiarly federal claims." 453 U.S., at 483-484 (citation and footnote omitted). Petitioners' primary contention is that concurrent jurisdiction is clearly incompatible with the federal interest in uniform interpretation of federal criminal laws, see 18 U.S.C. 3231,2 because state courts would be required to construe the federal crimes that constitute predicate acts defined as "racketeering activity," see 18 U.S.C. 1961(1)(B), (C), and (D). Petitioners predict that if state courts are permitted to interpret federal criminal statutes, they will create a body of precedent relating to those statutes and that the federal courts will consequently lose control over the orderly and uniform development of federal criminal law.We perceive no "clear incompatibility" between state court jurisdiction over civil RICO actions and federal interests. As a preliminary matter, concurrent jurisdiction over 1964(c) suits is clearly not incompatible with 3231 itself, for civil RICO claims are not "offenses against the laws of the United States," 3231, and do not result in the imposition of criminal sanctions - uniform or otherwise. See Shearson/American Express Inc. v. McMahon, (civil RICO intended to be primarily remedial rather than punitive).More to the point, however, our decision today creates no significant danger of inconsistent application of federal criminal law. Although petitioners' concern with the need for uniformity and consistency of federal criminal law is well taken, see Ableman v. Booth, 21 How. 506, 517-518 (1859); cf. Musser v. Utah, (vague criminal statutes may violate the Due Process Clause), federal courts, pursuant to 3231, would retain full authority and responsibility for the interpretation and application of federal criminal law, for they would not be bound by state court interpretations of the federal offenses constituting RICO's predicate acts. State courts adjudicating civil RICO claims will, in addition, be guided by federal court interpretations of the relevant federal criminal statutes, just as federal courts sitting in diversity are guided by state court interpretations of state law, see, e. g., Commissioner v. Estate of Bosch, . State court judgments misinterpreting federal criminal law would, of course, also be subject to direct review by this Court. Thus, we think that state court adjudication of civil RICO actions will, in practice, have at most a negligible effect on the uniform interpretation and application of federal criminal law, cf. Pan-American Petroleum Corp. v. Superior Court of Delaware, Newcastle County, (rejecting claim that uniform interpretation of the Natural Gas Act will be jeopardized by concurrent jurisdiction), and will not, in any event, result in any more inconsistency than that which a multimembered, multitiered federal judicial system already creates, cf. H. J. Inc. v. Northwestern Bell Telephone Co., , n. 2 (1989) (surveying conflict among federal appellate courts over RICO's "pattern of racketeering activity" requirement).Moreover, contrary to petitioners' fears, we have full faith in the ability of state courts to handle the complexities of civil RICO actions, particularly since many RICO cases involve asserted violations of state law, such as state fraud claims, over which state courts presumably have greater expertise. See 18 U.S.C. 1961(1)(A) (listing state law offenses constituting predicate acts); Gulf Offshore, supra, at 484 ("State judges have greater expertise in applying" laws "whose governing rules are borrowed from state law"); see also Sedima, 473 U.S., at 499 (RICO "has become a tool for everyday fraud cases"); BNA, Civil RICO Report, Vol. 2, No. 44, p. 7 (Apr. 14, 1987) (54.9% of all RICO cases after Sedima involved "common law fraud" and another 18% involved either "nonsecurities fraud" or "theft or conversion"). To hold otherwise would not only denigrate the respect accorded coequal sovereigns, but would also ignore our "consistent history of hospitable acceptance of concurrent jurisdiction," Dowd Box, 368 U.S., at 508. Indeed, it would seem anomalous to rule that state courts are incompetent to adjudicate civil RICO suits when we have recently found no inconsistency in subjecting civil RICO claims to adjudication by arbitration. See Shearson/American Express, supra, at 239 (rejecting argument that "RICO claims are too complex to be subject to arbitration" and that "there is an irreconcilable conflict between arbitration and RICO's underlying purposes").Petitioners further note, as evidence of incompatibility, that RICO's procedural mechanisms include extended venue and service-of-process provisions that are applicable only in federal court, see 18 U.S.C. 1965. We think it sufficient, however, to observe that we have previously found concurrent state court jurisdiction even where federal law provided for special procedural mechanisms similar to those found in RICO. See, e. g., Dowd Box, supra (finding concurrent jurisdiction over Labor Management Relations Act 301(a) suits, despite federal enforcement and venue provisions); Maine v. Thiboutot, , n. 1 (1980) (finding concurrent jurisdiction over 42 U.S.C. 1983 suits, despite federal procedural provisions in 1988); cf. Hathorn v. Lovorn, (finding concurrent jurisdiction over disputes regarding the applicability of 5 of the Voting Rights Act of 1965, 42 U.S.C. 1973c, despite provision for a three-judge panel). Although congressional specification of procedural mechanisms applicable only in federal court may tend to suggest that Congress intended exclusive federal jurisdiction, it does not by itself suffice to create a "clear incompatibility" with federal interests.Finally, we note that, far from disabling or frustrating federal interests, "[p]ermitting state courts to entertain federal causes of action facilitates the enforcement of federal rights." Gulf Offshore, 453 U.S., at 478, n. 4; see also Dowd Box, supra, at 514 (conflicts deriving from concurrent jurisdiction are "not necessarily unhealthy"). Thus, to the extent that Congress intended RICO to serve broad remedial purposes, see, e. g., Pub. L. 91-452, 904(a), 84 Stat. 947 (RICO must "be liberally construed to effectuate its remedial purposes"); Sedima, supra, at 492, n. 10 ("[I]f Congress' liberal-construction mandate is to be applied anywhere, it is in 1964, where RICO's remedial purposes are most evident"), concurrent state court jurisdiction over civil RICO claims will advance rather than jeopardize federal policies underlying the statute.For all of the above reasons, we hold that state courts have concurrent jurisdiction to consider civil claims arising under RICO. Nothing in the language, structure, legislative history, or underlying policies of RICO suggests that Congress intended otherwise. The judgment of the Court of Appeals is accordingly Affirmed.

California's prisons are designed to house a population just under 80,000, but at the time of the decision under review the population was almost double that. The resulting conditions are the subject of two federal class actions. In Coleman v. Brown, filed in 1990, the District Court found that prisoners with serious mental illness do not receive minimal, adequate care. A Special Master appointed to oversee remedial efforts reported 12 years later that the state of mental health care in California's prisons was deteriorating due to increased overcrowding. In Plata v. Brown, filed in 2001, the State conceded that deficiencies in prison medical care violated prisoners' Eighth Amendment rights and stipulated to a remedial injunction. But when the State had not complied with the injunction by 2005, the court appointed a Receiver to oversee remedial efforts. Three years later, the Receiver described continuing deficiencies caused by overcrowding. Believing that a remedy for unconstitutional medical and mental health care could not be achieved without reducing overcrowding, the Coleman and Plata plaintiffs moved their respective District Courts to convene a three-judge court empowered by the Prison Litigation Reform Act of 1995 (PLRA) to order reductions in the prison population. The judges in both actions granted the request, and the cases were consolidated before a single three-judge court. After hearing testimony and making extensive findings of fact, the court ordered California to reduce its prison population to 137.5% of design capacity within two years. Finding that the prison population would have to be reduced if capacity could not be increased through new construction, the court ordered the State to formulate a compliance plan and submit it for court approval.Held: 1. The court-mandated population limit is necessary to remedy the violation of prisoners' constitutional rights and is authorized by the PLRA. Pp. 12-41. (a) If a prison deprives prisoners of basic sustenance, including adequate medical care, the courts have a responsibility to remedy the resulting Eighth Amendment violation. See Hutto v. Finney, 437 U. S. 678, 687, n. 9. They must consider a range of options, including the appointment of special masters or receivers, the possibility of consent decrees, and orders limiting a prison's population. Under the PLRA, only a three-judge court may limit a prison population. 18 U. S. C. §3626(a)(3). Before convening such a court, a district court must have entered an order for less intrusive relief that failed to remedy the constitutional violation and must have given the defendant a reasonable time to comply with its prior orders. §3626(a)(3)(A). Once convened, the three-judge court must find by clear and convincing evidence that "crowding is the primary cause of the violation" and "no other relief will remedy [the] violation," §3626(a)(3)(E); and that the relief is "narrowly drawn, extends no further than necessary... , and is the least intrusive means necessary to correct the violation," §3626(a)(1)(A). The court must give "substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief." Ibid. Its legal determinations are reviewed de novo, but its factual findings are reviewed for clear error. Pp. 12-15. (b) The Coleman and Plata courts acted reasonably in convening a three-judge court. Pp. 15-19. (1) The merits of the decision to convene are properly before this Court, which has exercised its 28 U. S. C. §1253 jurisdiction to determine the authority of a court below, including whether a three-judge court was properly constituted. Gonzalez v. Automatic Employees Credit Union, 419 U. S. 90, 95, n. 12. Pp. 15-16. (2) Section 3626(a)(3)(A)(i)'s previous order requirement was satisfied in Coleman by the Special Master's 1995 appointment and in Plata by the 2002 approval of a consent decree and stipulated injunction. Both orders were intended to remedy constitutional violations and were given ample time to succeed — 12 years in Coleman, and 5 years in Plata. Contrary to the State's claim, §3626(a)(3)(A)(ii)'s reasonable time requirement did not require the District Courts to give more time for subsequent remedial efforts to succeed. Such a reading would in effect require courts to impose a moratorium on new remedial orders before issuing a population limit, which would delay an eventual remedy, prolong the courts' involvement, and serve neither the State nor the prisoners. The Coleman and Plata courts had a solid basis to doubt that additional efforts to build new facilities and hire new staff would achieve a remedy, given the ongoing deficiencies recently reported by both the Special Master and the Receiver. Pp. 16-19. (c) The three-judge court did not err in finding that "crowding [was] the primary cause of the violation," §3626(a)(3)(E)(i). Pp. 19-29. (1) The trial record documents the severe impact of burgeoning demand on the provision of care. The evidence showed that there were high vacancy rates for medical and mental health staff, e.g., 20% for surgeons and 54.1% for psychiatrists; that these numbers understated the severity of the crisis because the State has not budgeted sufficient staff to meet demand; and that even if vacant positions could be filled, there would be insufficient space for the additional staff. Such a shortfall contributes to significant delays in treating mentally ill prisoners, who are housed in administrative segregation for extended periods while awaiting transfer to scarce mental health treatment beds. There are also backlogs of up to 700 prisoners waiting to see a doctor for physical care. Crowding creates unsafe and unsanitary conditions that hamper effective delivery of medical and mental health care. It also promotes unrest and violence and can cause prisoners with latent mental illnesses to worsen and develop overt symptoms. Increased violence requires increased reliance on lockdowns to keep order, and lockdowns further impede the effective delivery of care. Overcrowding's effects are particularly acute in prison reception centers, which process 140,000 new or returning prisoners annually, and which house some prisoners for their entire incarceration period. Numerous experts testified that crowding is the primary cause of the constitutional violations. Pp. 19-24. (2) Contrary to the State's claim, the three-judge court properly admitted, cited, and considered evidence of current prison conditions as relevant to the issues before it. Expert witnesses based their conclusions on recent observations of prison conditions; the court admitted recent reports on prison conditions by the Receiver and Special Master; and both parties presented testimony related to current conditions. The court's orders cutting off discovery a few months before trial and excluding evidence not pertinent to the issue whether a population limit is appropriate under the PLRA were within the court's sound discretion. Orderly trial management may require discovery deadlines and a clean distinction between litigation of the merits and the remedy. The State points to no significant evidence that it was unable to present and that would have changed the outcome here. Pp. 24-26. (3) It was permissible for the three-judge court to conclude that overcrowding was the "primary," but not the only, cause of the violations, and that reducing crowding would not entirely cure the violations. This understanding of the primary cause requirement is consistent with the PLRA. Had Congress intended to require that crowding be the only cause, the PLRA would have said so. Pp. 26-29. (d) The evidence supports the three-judge court's finding that "no other relief [would] remedy the violation," §3626(a)(3)(E)(ii). The State's claim that out-of-state transfers provide a less restrictive alternative to a population limit must fail because requiring transfers is a population limit under the PLRA. Even if they could be regarded as a less restrictive alternative, the three-judge court found no evidence of plans for transfers in numbers sufficient to relieve overcrowding. The court also found no realistic possibility that California could build itself out of this crisis, particularly given the State's ongoing fiscal problems. Further, it rejected additional hiring as a realistic alternative, since the prison system was chronically understaffed and would have insufficient space were adequate personnel retained. The court also did not err when it concluded that, absent a population reduction, the Receiver's and Special Master's continued efforts would not achieve a remedy. Their reports are persuasive evidence that, with no reduction, any remedy might prove unattainable and would at the very least require vast expenditures by the State. The State asserts that these measures would succeed if combined, but a long history of failed remedial orders, together with substantial evidence of overcrowding's deleterious effects on the provision of care, compels a different conclusion here. Pp. 29-33. (e) The prospective relief ordered here was narrowly drawn, extended no further than necessary to correct the violation, and was the least intrusive means necessary to correct the violation. Pp. 33-41. (1) The population limit does not fail narrow tailoring simply because prisoners beyond the plaintiff class will have to be released through parole or sentencing reform in order to meet the required reduction. While narrow tailoring requires a " ' "fit" between the [remedy's] ends and the means chosen to accomplish those ends,' " Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480, a narrow and otherwise proper remedy for a constitutional violation is not invalid simply because it will have collateral effects. Nor does the PLRA require that result. The order gives the State flexibility to determine who should be released, and the State could move the three-judge court to modify its terms. The order also is not overbroad because it encompasses the entire prison system, rather than separately assessing each institution's need for a population limit. The Coleman court found a systemwide violation, and the State stipulated to systemwide relief in Plata. Assuming no constitutional violation results, some facilities may retain populations in excess of the 137.5% limit provided others fall sufficiently below it so the system as a whole remains in compliance with the order. This will afford the State flexibility to accommodate differences between institutions. The order may shape or control the State's authority in the realm of prison administration, but it leaves much to the State's discretion. The order's limited scope is necessary to remedy a constitutional violation. The State may move the three-judge court to modify its order, but it has proposed no realistic alternative remedy at this time. Pp. 33-36. (2) The three-judge court gave "substantial weight" to any potential adverse impact on public safety from its order. The PLRA's "substantial weight" requirement does not require the court to certify that its order has no possible adverse impact on the public. Here, statistical evidence showed that prison populations had been lowered without adversely affecting public safety in some California counties, several States, and Canada. The court found that various available methods of reducing overcrowding — good time credits and diverting low-risk offenders to community programs — would have little or no impact on public safety, and its order took account of such concerns by giving the State substantial flexibility to select among the means of reducing overcrowding. The State complains that the court approved the State's population reduction plan without considering whether its specific measures would substantially threaten public safety. But the court left state officials the choice of how best to comply and was not required to second-guess their exercise of discretion. Developments during the pendency of this appeal, when the State has begun to reduce the prison population, support the conclusion that a reduction can be accomplished without an undue negative effect on public safety. Pp. 37-41. 2. The three-judge court's order, subject to the State's right to seek its modification in appropriate circumstances, must be affirmed. Pp. 41-48. (a) To comply with the PLRA, a court must set a population limit at the highest level consistent with an efficacious remedy, and it must order the population reduction to be achieved in the shortest period of time reasonably consistent with public safety. Pp. 41-42. (b) The three-judge court's conclusion that the prison population should be capped at 137.5% of design capacity was not clearly erroneous. The court concluded that the evidence supported a limit between the 130% limit supported by expert testimony and the Federal Bureau of Prisons and the 145% limit recommended by the State Corrections Independent Review Panel. The PLRA's narrow tailoring requirement is satisfied so long as such equitable, remedial judgments are made with the objective of releasing the fewest possible prisoners consistent with an efficacious remedy. Pp. 42-44. (c) The three-judge court did not err in providing a 2-year deadline for relief, especially in light of the State's failure to contest the issue at trial. The State has not asked this Court to extend the deadline, but the three-judge court has the authority, and responsibility, to amend its order as warranted by the exercise of sound discretion. Proper respect for the State and for its governmental processes require that court to exercise its jurisdiction to accord the State considerable latitude to find mechanisms and make plans that will promptly and effectively correct the violations consistent with public safety. The court may, e.g., grant a motion to extend the deadline if the State meets appropriate preconditions designed to ensure that the plan will be implemented without undue delay. Such observations reflect the fact that the existing order, like all ongoing equitable relief, must remain open to appropriate modification, and are not intended to cast doubt on the validity of the order's basic premise. Pp. 44-48.Affirmed. Kennedy, J., delivered the opinion of the Court, in which Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed a dissenting opinion, in which Thomas, J., joined. Alito, J., filed a dissenting opinion, in which Roberts, C. J., joined.EDMUND G. BROWN, Jr., GOVERNOR OF CAL-IFORNIA, et al., APPELLANTS v. MARCIANOPLATA et al.on appeal from the united states district courts for the eastern district and the northern district of california[May 23, 2011] Justice Kennedy delivered the opinion of the Court. This case arises from serious constitutional violations in California's prison system. The violations have persisted for years. They remain uncorrected. The appeal comes to this Court from a three-judge District Court order directing California to remedy two ongoing violations of the Cruel and Unusual Punishments Clause, a guarantee binding on the States by the Due Process Clause of the Fourteenth Amendment. The violations are the subject of two class actions in two Federal District Courts. The first involves the class of prisoners with serious mental disorders. That case is Coleman v. Brown. The second involves prisoners with serious medical conditions. That case is Plata v. Brown. The order of the three-judge District Court is applicable to both cases. After years of litigation, it became apparent that a remedy for the constitutional violations would not be ef-fective absent a reduction in the prison system popula-tion. The authority to order release of prisoners as a remedy to cure a systemic violation of the Eighth Amendment is a power reserved to a three-judge district court, not a single-judge district court. 18 U. S. C. §3626(a). In accordance with that rule, the Coleman and Plata District Judges independently requested that a three-judge court be convened. The Chief Judge of the Court of Appeals for the Ninth Circuit convened a three-judge court composed of the Coleman and Plata District Judges and a third, Ninth Circuit Judge. Because the two cases are interrelated, their limited consolidation for this purpose has a certain utility in avoiding conflicting decrees and aiding judicial consideration and enforcement. The State in this Court has not objected to consolidation, although the State does argue that the three-judge court was prematurely convened. The State also objects to the substance of the three-judge court order, which requires the State to reduce overcrowding in its prisons. The appeal presents the question whether the remedial order issued by the three-judge court is consistent with requirements and procedures set forth in a congressional statute, the Prison Litigation Reform Act of 1995 (PLRA). 18 U. S. C. §3626; see Appendix A, infra. The order leaves the choice of means to reduce overcrowding to the discretion of state officials. But absent compliance through new construction, out-of-state transfers, or other means — or modification of the order upon a further showing by the State — the State will be required to release some number of prisoners before their full sentences have been served. High recidivism rates must serve as a warning that mistaken or premature release of even one prisoner can cause injury and harm. The release of prisoners in large numbers — assuming the State finds no other way to comply with the order — is a matter of undoubted, grave concern. At the time of trial, California's correctional facilities held some 156,000 persons. This is nearly double the number that California's prisons were designed to hold, and California has been ordered to reduce its prison population to 137.5% of design capacity. By the three-judge court's own estimate, the required population reduction could be as high as 46,000 persons. Although the State has reduced the population by at least 9,000 persons dur-ing the pendency of this appeal, this means a further reduction of 37,000 persons could be required. As will be noted, the reduction need not be accomplished in an indiscriminate manner or in these substantial numbers if sat-isfactory, alternate remedies or means for compliance are devised. The State may employ measures, including good-time credits and diversion of low-risk offenders and technical parole violators to community-based programs, that will mitigate the order's impact. The population reduction potentially required is nevertheless of unprecedented sweep and extent. Yet so too is the continuing injury and harm resulting from these serious constitutional violations. For years the medical and mental health care provided by California's prisons has fallen short of minimum constitutional requirements and has failed to meet prisoners' basic health needs. Needless suffering and death have been the well-documented result. Over the whole course of years during which this litigation has been pending, no other remedies have been found to be sufficient. Efforts to remedy the violation have been frustrated by severe overcrowding in California's prison system. Short term gains in the provision of care have been eroded by the long-term effects of severe and pervasive overcrowding. Overcrowding has overtaken the limited resources of prison staff; imposed demands well beyond the capacity of medical and mental health facilities; and created unsan-itary and unsafe conditions that make progress in the provision of care difficult or impossible to achieve. The overcrowding is the "primary cause of the violation of a Federal right," 18 U. S. C. §3626(a)(3)(E)(i), specifically the severe and unlawful mistreatment of prisoners through grossly inadequate provision of medical and mental health care. This Court now holds that the PLRA does authorize the relief afforded in this case and that the court-mandated population limit is necessary to remedy the violation of prisoners' constitutional rights. The order of the three-judge court, subject to the right of the State to seek its modification in appropriate circumstances, must be affirmed.IA The degree of overcrowding in California's prisons is exceptional. California's prisons are designed to house a population just under 80,000, but at the time of the three-judge court's decision the population was almost double that. The State's prisons had operated at around 200% of design capacity for at least 11 years. Prisoners are crammed into spaces neither designed nor intended to house inmates. As many as 200 prisoners may live in a gymnasium, monitored by as few as two or three correctional officers. App. 1337-1338, 1350; see Appendix B, infra. As many as 54 prisoners may share a single toilet. App. 1337. The Corrections Independent Review Panel, a body appointed by the Governor and composed of correctional consultants and representatives from state agencies, concluded that California's prisons are " 'severely overcrowded, imperiling the safety of both correctional employees and inmates.' "1 Juris. Statement App., O. T. 2009, No. 09-416, p. 56a (hereinafter Juris. App.). In 2006, then-Governor Schwarzenegger declared a state of emergency in the prisons, as " 'immediate action is necessary to prevent death and harm caused by California's severe prison overcrowding.' " Id., at 61a. The consequences of overcrowding identified by the Governor include " 'increased, substantial risk for transmission of infectious illness' " and a suicide rate " 'approaching an average of one per week.' " Ibid. Prisoners in California with serious mental illness do not receive minimal, adequate care. Because of a shortage of treatment beds, suicidal inmates may be held for prolonged periods in telephone-booth sized cages without toilets. See Appendix C, infra. A psychiatric expert reported observing an inmate who had been held in such a cage for nearly 24 hours, standing in a pool of his own urine, unresponsive and nearly catatonic. Prison officials explained they had " 'no place to put him.' " App. 593. Other inmates awaiting care may be held for months in administrative segregation, where they endure harsh and isolated conditions and receive only limited mental health services. Wait times for mental health care range as high as 12 months. Id., at 704. In 2006, the suicide rate in California's prisons was nearly 80% higher than the national average for prison populations; and a court-appointed Special Master found that 72.1% of suicides involved "some measure of inadequate assessment, treatment, or intervention, and were therefore most probably foreseeable and/or preventable."2 Id., at 1781. Prisoners suffering from physical illness also receive severely deficient care. California's prisons were designed to meet the medical needs of a population at 100% of design capacity and so have only half the clinical space needed to treat the current population. Id., at 1024. A correctional officer testified that, in one prison, up to 50 sick inmates may be held together in a 12- by 20-foot cage for up to five hours awaiting treatment. Tr. 597-599. The number of staff is inadequate, and prisoners face significant delays in access to care. A prisoner with severe abdominal pain died after a 5-week delay in referral to a specialist; a prisoner with "constant and extreme" chest pain died after an 8-hour delay in evaluation by a doctor; and a prisoner died of testicular cancer after a "failure of MDs to work up for cancer in a young man with 17 months of testicular pain."3 California Prison Health Care Receivership Corp., K. Imai, Analysis of CDCR Death Reviews 2006, pp. 6-7 (Aug. 2007). Doctor Ronald Shansky, former medical director of the Illinois state prison system, surveyed death reviews for California prisoners. He concluded that extreme departures from the standard of care were "widespread," Tr. 430, and that the proportion of "possibly preventable or preventable" deaths was "extremely high." Id., at 429.4 Many more prisoners, suffering from severe but not life-threatening conditions, experience prolonged illness and unnecessary pain.B These conditions are the subject of two federal cases. The first to commence, Coleman v. Brown, was filed in 1990. Coleman involves the class of seriously mentally ill persons in California prisons. Over 15 years ago, in 1995, after a 39-day trial, the Coleman District Court found "overwhelming evidence of the systematic failure to deliver necessary care to mentally ill inmates" in California prisons. Coleman v. Wilson, 912 F. Supp. 1282, 1316 (ED Cal.). The prisons were "seriously and chronically understaffed," id., at 1306, and had "no effective method for ensuring ... the competence of their staff," id., at 1308. The prisons had failed to implement necessary suicide-prevention procedures, "due in large measure to the severe understaffing." Id., at 1315. Mentally ill inmates "languished for months, or even years, without access to necessary care." Id., at 1316. "They suffer from severe hallucinations, [and] they decompensate into catatonic states." Ibid. The court appointed a Special Master to oversee development and implementation of a remedial plan of action. In 2007, 12 years after his appointment, the Special Master in Coleman filed a report stating that, after years of slow improvement, the state of mental health care in California's prisons was deteriorating. App. 489. The Special Master ascribed this change to increased overcrowding. The rise in population had led to greater demand for care, and existing programming space and staffing levels were inadequate to keep pace. Prisons had retained more mental health staff, but the "growth of the resource [had] not matched the rise in demand." Id., at 482. At the very time the need for space was rising, the need to house the expanding population had also caused a "reduction of programming space now occupied by inmate bunks." Id., at 479. The State was "facing a four to five-year gap in the availability of sufficient beds to meet the treatment needs of many inmates/patients." Id., at 481. "[I]ncreasing numbers of truly psychotic inmate/patients are trapped in [lower levels of treatment] that cannot meet their needs." Ibid. The Special Master concluded that many early "achievements have succumbed to the inexorably rising tide of population, leaving behind growing frustration and despair." Id., at 489.C The second action, Plata v. Brown, involves the class of state prisoners with serious medical conditions. After this action commenced in 2001, the State conceded that deficiencies in prison medical care violated prisoners' Eighth Amendment rights. The State stipulated to a remedial injunction. The State failed to comply with that injunction, and in 2005 the court appointed a Receiver to oversee remedial efforts. The court found that "the California prison medical care system is broken beyond repair," resulting in an "unconscionable degree of suffering and death." App. 917. The court found: "[I]t is an uncontested fact that, on average, an inmate in one of California's prisons needlessly dies every six to seven days due to constitutional deficiencies in the [California prisons'] medical delivery system." Ibid. And the court made findings regarding specific instances of neglect, including the following:"[A] San Quentin prisoner with hypertension, diabetes and renal failure was prescribed two different medications that actually served to exacerbate his renal failure. An optometrist noted the patient's retinal bleeding due to very high blood pressure and referred him for immediate evaluation, but this evaluation never took place. It was not until a year later that the patient's renal failure was recognized, at which point he was referred to a nephrologist on an urgent basis; he should have been seen by the specialist within 14 days but the consultation never happened and the patient died three months later." Id., at 928 (citations omitted).Prisons were unable to retain sufficient numbers of competent medical staff, id., at 937, and would "hire any doctor who had 'a license, a pulse and a pair of shoes,' " id., at 926. Medical facilities lacked "necessary medical equipment" and did "not meet basic sanitation standards." Id., at 944. "Exam tables and counter tops, where prisoners with ... communicable diseases are treated, [were] not routinely disinfected." Ibid. In 2008, three years after the District Court's decision, the Receiver described continuing deficiencies in the health care provided by California prisons:"Timely access is not assured. The number of medical personnel has been inadequate, and competence has not been assured... . Adequate housing for the disabled and aged does not exist. The medical facilities, when they exist at all, are in an abysmal state of disrepair. Basic medical equipment is often not available or used. Medications and other treatment options are too often not available when needed... . Indeed, it is a misnomer to call the existing chaos a 'medical delivery system'--it is more an act of desperation than a system." Record in No. 3:01-CV-01351-TEH (ND Cal.), Doc. 1136, p. 5.A report by the Receiver detailed the impact of overcrowding on efforts to remedy the violation. The Receiver explained that "overcrowding, combined with staffing shortages, has created a culture of cynicism, fear, and despair which makes hiring and retaining competent clinicians extremely difficult." App. 1031. "[O]vercrowding, and the resulting day to day operational chaos of the [prison system], creates regular 'crisis' situations which ... take time [and] energy ... away from important remedial programs." Id., at 1035. Overcrowding had increased the incidence of infectious disease, id., at 1037-1038, and had led to rising prison violence and greater reliance by custodial staff on lockdowns, which "inhibit the delivery of medical care and increase the staffing necessary for such care." Id., at 1037. "Every day," the Receiver reported, "California prison wardens and health care managers make the difficult decision as to which of the class actions, Coleman ... or Plata they will fail to comply with because of staff shortages and patient loads." Id., at 1038.D The Coleman and Plata plaintiffs, believing that a remedy for unconstitutional medical and mental health care could not be achieved without reducing overcrowding, moved their respective District Courts to convene a three-judge court empowered under the PLRA to order reductions in the prison population. The judges in both actions granted the request, and the cases were consolidated before a single three-judge court. The State has not challenged the validity of the consolidation in proceedings before this Court, so its propriety is not presented by this appeal. The three-judge court heard 14 days of testimony and issued a 184-page opinion, making extensive findings of fact. The court ordered California to reduce its prison population to 137.5% of the prisons' design capacity within two years. Assuming the State does not increase capacity through new construction, the order requires a population reduction of 38,000 to 46,000 persons. Because it appears all but certain that the State cannot complete sufficient construction to comply fully with the order, the prison population will have to be reduced to at least some extent. The court did not order the State to achieve this reduction in any particular manner. Instead, the court ordered the State to formulate a plan for compliance and submit its plan for approval by the court. The State appealed to this Court pursuant to 28 U. S. C. §1253, and the Court postponed consideration of the question of jurisdiction to the hearing on the merits. Schwarzenegger v. Plata, 560 U. S. ___ (2010).II As a consequence of their own actions, prisoners may be deprived of rights that are fundamental to liberty. Yet the law and the Constitution demand recognition of certain other rights. Prisoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment. " 'The basic concept underlying the Eighth Amendment is nothing less than the dignity of man.' " Atkins v. Virginia, 536 U. S. 304, 311 (2002) (quoting Trop v. Dulles, 356 U. S. 86, 100 (1958) (plurality opinion)). To incarcerate, society takes from prisoners the means to provide for their own needs. Prisoners are dependent on the State for food, clothing, and necessary medical care. A prison's failure to provide sustenance for inmates "may actually produce physical 'torture or a lingering death.' " Estelle v. Gamble, 429 U. S. 97, 103 (1976) (quoting In re Kemmler, 136 U. S. 436, 447 (1890)); see generally A. Elsner, Gates of Injustice: The Crisis in America's Prisons (2004). Just as a prisoner may starve if not fed, he or she may suffer or die if not provided adequate medical care. A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society. If government fails to fulfill this obligation, the courts have a responsibility to remedy the resulting Eighth Amendment violation. See Hutto v. Finney, 437 U. S. 678, 687, n. 9 (1978). Courts must be sensitive to the State's interest in punishment, deterrence, and rehabilitation, as well as the need for deference to experienced and expert prison administrators faced with the difficult and dangerous task of housing large numbers of convicted criminals. See Bell v. Wolfish, 441 U. S. 520, 547-548 (1979). Courts nevertheless must not shrink from their obligation to "en-force the constitutional rights of all 'persons,' including prisoners." Cruz v. Beto, 405 U. S. 319, 321 (1972) (per curiam). Courts may not allow constitutional violations to continue simply because a remedy would involve intrusion into the realm of prison administration. Courts faced with the sensitive task of remedying unconstitutional prison conditions must consider a range of available options, including appointment of special masters or receivers and the possibility of consent decrees. When necessary to ensure compliance with a constitutional mandate, courts may enter orders placing limits on a prison's population. By its terms, the PLRA restricts the circumstances in which a court may enter an order "that has the purpose or effect of reducing or limiting the prison population." 18 U. S. C. §3626(g)(4). The order in this case does not necessarily require the State to release any prisoners. The State may comply by raising the design capacity of its prisons or by transferring prisoners to county facilities or facilities in other States. Because the order limits the prison population as a percentage of design capacity, it nonetheless has the "effect of reducing or limiting the prison population." Ibid. Under the PLRA, only a three-judge court may enter an order limiting a prison population. §3626(a)(3)(B). Before a three-judge court may be convened, a district court first must have entered an order for less intrusive relief that failed to remedy the constitutional violation and must have given the defendant a reasonable time to comply with its prior orders. §3626(a)(3)(A). The party requesting a three-judge court must then submit "materials sufficient to demonstrate that [these requirements] have been met." §3626(a)(3)(C). If the district court concludes that the materials are, in fact, sufficient, a three-judge court may be convened. Ibid.; see also 28 U. S. C. §2284(b)(1) (stating that a three-judge court may not be convened if the district court "determines that three judges are not required"); 17A C. Wright, A. Miller, E. Cooper, & V. Amar, Federal Practice and Procedure §4235 (3d ed. 2007). The three-judge court must then find by clear and convincing evidence that "crowding is the primary cause of the violation of a Federal right" and that "no other relief will remedy the violation of the Federal right." 18 U. S. C. §3626(a)(3)(E). As with any award of prospective relief under the PLRA, the relief "shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs." §3626(a)(1)(A). The three-judge court must therefore find that the relief is "narrowly drawn, extends no further than necessary ... , and is the least intrusive means necessary to correct the violation of the Federal right." Ibid. In making this determination, the three-judge court must give "substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief." Ibid. Applying these standards, the three-judge court found a population limit appropriate, necessary, and authorized in this case. This Court's review of the three-judge court's legal determinations is de novo, but factual findings are reviewed for clear error. See Anderson v. Bessemer City, 470 U. S. 564, 573-574 (1985). Deference to trial court factfinding reflects an understanding that "[t]he trial judge's major role is the determination of fact, and with experience in fulfilling that role comes expertise." Id., at 574. The three-judge court oversaw two weeks of trial and heard at considerable length from California prison officials, as well as experts in the field of correctional administration. The judges had the opportunity to ask relevant questions of those witnesses. Two of the judges had overseen the ongoing remedial efforts of the Receiver and Special Master. The three-judge court was well situated to make the difficult factual judgments necessary to fashion a remedy for this complex and intractable constitutional violation. The three-judge court's findings of fact may be reversed only if this Court is left with a " 'definite and firm conviction that a mistake has been committed.' " Id., at 573 (quoting United States v. United States Gypsum Co., 333 U. S. 364, 395 (1948)).A The State contends that it was error to convene the three-judge court without affording it more time to comply with the prior orders in Coleman and Plata.1 The parties dispute this Court's jurisdiction to review the determinations of the Coleman and Plata District Courts that a three-judge court should be convened. Plaintiffs claim the State was required to raise this issue first in the Court of Appeals by appealing the orders of the District Courts. When exercising jurisdiction under 28 U. S. C. §1253, however, this Court "has not hesitated to exercise jurisdiction 'to determine the authority of the court below,' " including whether the three-judge court was properly constituted. Gonzalez v. Automatic Employees Credit Union, 419 U. S. 90, 95, n. 12 (1974) (quoting Bailey v. Patterson, 369 U. S. 31, 34 (1962) (per curiam)); see also Gully v. Interstate Natural Gas Co., 292 U. S. 16, 18 (1934) (per curiam) ("The case is analogous to those in which this Court, finding that the court below has acted without jurisdiction, exercises its appellate jurisdiction to correct the improper action"). The merits of the decision to convene the three-judge court, therefore, are properly before this Court.2 Before a three-judge court may be convened to consider whether to enter a population limit, the PLRA requires that the court have "previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied." C. §3626(a)(3)(A)(i). This provision refers to "an order." It is satisfied if the court has entered one order, and this sin-gle order has "failed to remedy" the constitutional violation. The defendant must also have had "a reasonable amount of time to comply with the previous court orders." §3626(a)(3)(A)(ii). This provision refers to the court's "orders." It requires that the defendant have been given a reasonable time to comply with all of the court's orders. Together, these requirements ensure that the " 'last resort remedy' " of a population limit is not imposed " 'as a first step.' " Inmates of Occoquan v. Barry, 844 F. 2d 828, 843 (CADC 1988). The first of these conditions, the previous order requirement of §3626(a)(3)(A)(i), was satisfied in Coleman by appointment of a Special Master in 1995, and it was satisfied in Plata by approval of a consent decree and stipulated injunction in 2002. Both orders were intended to remedy the constitutional violations. Both were given ample time to succeed. When the three-judge court was convened, 12 years had passed since the appointment of the Coleman Special Master, and 5 years had passed since the approval of the Plata consent decree. The State does not claim that either order achieved a remedy. Although the PLRA entitles a State to terminate remedial orders such as these after two years unless the district court finds that the relief "remains necessary to correct a current and ongoing violation of the Federal right," §3626(b)(3), California has not attempted to obtain relief on this basis. The State claims instead that the second condition, the reasonable time requirement of §3626(a)(3)(A)(ii), was not met because other, later remedial efforts should have been given more time to succeed. In 2006, the Coleman District Judge approved a revised plan of action calling for construction of new facilities, hiring of new staff, and im-plementation of new procedures. That same year, the Plata District Judge selected and appointed a Receiver to oversee the State's ongoing remedial efforts. When the three-judge court was convened, the Receiver had filed a preliminary plan of action calling for new construction, hiring of additional staff, and other procedural reforms. Although both the revised plan of action in Coleman and the appointment of the Receiver in Plata were new developments in the courts' remedial efforts, the basic plan to solve the crisis through construction, hiring, and procedural reforms remained unchanged. These efforts had been ongoing for years; the failed consent decree in Plata had called for implementation of new procedures and hiring of additional staff; and the Coleman Special Master had issued over 70 orders directed at achieving a remedy through construction, hiring, and procedural reforms. The Coleman Special Master and Plata Receiver were unable to provide assurance that further, substantially similar efforts would yield success absent a population reduction. Instead, the Coleman Special Master explained that "many of the clinical advances ... painfully accomplished over the past decade are slip-sliding away" as a result of overcrowding. App. 481-482. And the Plata Receiver indicated that, absent a reduction in overcrowding, a successful remedial effort could "all but bankrupt" the State of California. App. 1053. Having engaged in remedial efforts for 5 years in Plata and 12 in Coleman, the District Courts were not required to wait to see whether their more recent efforts would yield equal disappointment. When a court attempts to remedy an entrenched constitutional violation through reform of a complex institution, such as this statewide prison system, it may be necessary in the ordinary course to issue multiple orders directing and adjusting ongoing remedial efforts. Each new order must be given a reasonable time to succeed, but reasonableness must be assessed in light of the entire history of the court's remedial efforts. A contrary reading of the reasonable time requirement would in effect require district courts to impose a moratorium on new remedial orders before issuing a population limit. This unnecessary period of inaction would delay an eventual remedy and would prolong the courts' involvement, serving neither the State nor the prisoners. Congress did not require this unreasonable result when it used the term "reasonable." The Coleman and Plata courts had a solid basis to doubt that additional efforts to build new facilities and hire new staff would achieve a remedy. Indeed, although 5 years have now passed since the appointment of the Plata Receiver and approval of the revised plan of action in Coleman, there is no indication that the constitutional violations have been cured. A report filed by the Coleman Special Master in July 2009 describes ongoing violations, including an "absence of timely access to appropriate levels of care at every point in the system." App. 807. A report filed by the Plata Receiver in October 2010 likewise describes ongoing deficiencies in the provision of medical care and concludes that there are simply "too many prisoners for the healthcare infrastructure." Id., at 1655. The Coleman and Plata courts acted reasonably when they convened a three-judge court without further delay.B Once a three-judge court has been convened, the court must find additional requirements satisfied before it may impose a population limit. The first of these requirements is that "crowding is the primary cause of the violation of a Federal right." 18 U. S. C. §3626(a)(3)(E)(i).1 The three-judge court found the primary cause requirement satisfied by the evidence at trial. The court found that overcrowding strains inadequate medical and mental health facilities; overburdens limited clinical and custodial staff; and creates violent, unsanitary, and chaotic conditions that contribute to the constitutional violations and frustrate efforts to fashion a remedy. The three-judge court also found that "until the problem of overcrowding is overcome it will be impossible to provide constitutionally compliant care to California's prison population." Juris. App. 141a. The parties dispute the standard of review applicable to this determination. With respect to the three-judge court's factual findings, this Court's review is necessarily deferential. It is not this Court's place to "duplicate the role" of the trial court. Anderson, 470 U. S., at 573. The ultimate issue of primary cause presents a mixed question of law and fact; but there, too, "the mix weighs heavily on the 'fact' side." Lilly v. Virginia, 527 U. S. 116, 148 (1999) (Rehnquist, C. J., concurring in judgment). Because the "district court is 'better positioned' ... to decide the issue," our review of the three-judge court's primary cause determination is deferential. Salve Regina College v. Russell. The record documents the severe impact of burgeoning demand on the provision of care. At the time of trial, vacancy rates for medical and mental health staff ranged as high as 20% for surgeons, 25% for physicians, 39% for nurse practitioners, and 54.1% for psychiatrists. Juris. App. 105a, 108a. These percentages are based on the number of positions budgeted by the State. Dr. Ronald Shansky, former medical director of the Illinois prison system, concluded that these numbers understate the se-verity of the crisis because the State has not budgeted sufficient staff to meet demand.5 According to Dr. Shansky, "even if the prisons were able to fill all of their vacant health care positions, which they have not been able to do to date, ... the prisons would still be unable to handle the level of need given the current overcrowding." Record in No. 2:90-CV-00520-LKK-JFM (ED Cal.), Doc. 3231-13, p. 16 (hereinafter Doc. 3231-13). Dr. Craig Haney, a professor of psychology, reported that mental health staff are "managing far larger caseloads than is appropriate or effective." App. 596. A prison psychiatrist told Dr. Haney that " 'we are doing about 50% of what we should be doing.' " Ibid. In the context of physical care Dr. Shansky agreed that "demand for care, particularly for the high priority cases, continues to overwhelm the resources available." Id., at 1408. Even on the assumption that vacant positions could be filled, the evidence suggested there would be insufficient space for the necessary additional staff to perform their jobs. The Plata Receiver, in his report on overcrowding, concluded that even the "newest and most modern prisons" had been "designed with clinic space which is only one-half that necessary for the real-life capacity of the prisons." App. 1023 (emphasis deleted). Dr. Haney reported that "[e]ach one of the facilities I toured was short of significant amounts of space needed to perform otherwise critical tasks and responsibilities." Id., at 597-598. In one facility, staff cared for 7,525 prisoners in space designed for one-third as many. Juris. App. 93a. Staff operate out of converted storage rooms, closets, bathrooms, shower rooms, and visiting centers. These makeshift facilities impede the effective delivery of care and place the safety of medical professionals in jeopardy, compounding the difficulty of hiring additional staff. This shortfall of resources relative to demand contributes to significant delays in treatment. Mentally ill prisoners are housed in administrative segregation while awaiting transfer to scarce mental health treatment beds for appropriate care. One correctional officer indicated that he had kept mentally ill prisoners in segregation for " '6 months or more.' " App. 594. Other prisoners awaiting care are held in tiny, phone-booth sized cages. The record documents instances of prisoners committing suicide while awaiting treatment.6 Delays are no less severe in the context of physical care. Prisons have backlogs of up to 700 prisoners waiting to see a doctor. Doc. 3231-13, at 18. A review of referrals for urgent specialty care at one prison revealed that only 105 of 316 pending referrals had a scheduled appointment, and only 2 had an appointment scheduled to occur within 14 days. Id., at 22-23. Urgent specialty referrals at one prison had been pending for six months to a year. Id., at 27. Crowding also creates unsafe and unsanitary living conditions that hamper effective delivery of medical and mental health care. A medical expert described living quarters in converted gymnasiums or dayrooms, where large numbers of prisoners may share just a few toilets and showers, as " 'breeding grounds for disease.' "7 Juris. App. 102a. Cramped conditions promote unrest and violence, making it difficult for prison officials to monitor and control the prison population. On any given day, prisoners in the general prison population may become ill, thus entering the plaintiff class; and overcrowding may prevent immediate medical attention necessary to avoid suffering, death, or spread of disease. After one prisoner was assaulted in a crowded gymnasium, prison staff did not even learn of the injury until the prisoner had been dead for several hours. Tr. 382. Living in crowded, unsafe, and unsanitary conditions can cause prisoners with latent mental illnesses to worsen and develop overt symptoms. Crowding may also impede efforts to improve delivery of care. Two prisoners committed suicide by hanging after being placed in cells that had been identified as requiring a simple fix to remove attachment points that could support a noose. The repair was not made because doing so would involve removing prisoners from the cells, and there was no place to put them. Id., at 769-777. More gen-erally, Jeanne Woodford, the former acting secretary of California's prisons, testified that there " 'are simply too many issues that arise from such a large number of prisoners,' " and that, as a result, " 'management spends virtually all of its time fighting fires instead of engaging in thoughtful decision-making and planning' " of the sort needed to fashion an effective remedy for these constitutional violations. Juris. App. 82a. Increased violence also requires increased reliance on lockdowns to keep order, and lockdowns further impede the effective delivery of care. In 2006, prison officials instituted 449 lockdowns. Id., at 116a. The average lockdown lasted 12 days, and 20 lockdowns lasted 60 days or longer. Ibid. During lockdowns, staff must either escort prisoners to medical facilities or bring medical staff to the prisoners. Either procedure puts additional strain on already overburdened medical and custodial staff. Some programming for the mentally ill even may be canceled altogether during lockdowns, and staff may be unable to supervise the delivery of psychotropic medications. The effects of overcrowding are particularly acute in the prisons' reception centers, intake areas that process 140,000 new or returning prisoners every year. Id., at 85a. Crowding in these areas runs as high as 300% of design capacity. Id., at 86a. Living conditions are " 'toxic,' " and a lack of treatment space impedes efforts to identify inmate medical or mental health needs and provide even rudimentary care. Id., at 92a. The former warden of San Quentin reported that doctors in that prison's reception center " 'were unable to keep up with physicals or provid[e] any kind of chronic care follow-up.' " Id., at 90a. Inmates spend long periods of time in these areas awaiting transfer to the general population. Some prisoners are held in the reception centers for their entire period of incarceration. Numerous experts testified that crowding is the primary cause of the constitutional violations. The former warden of San Quentin and former acting secretary of the California prisons concluded that crowding "makes it 'virtually impossible for the organization to develop, much less implement, a plan to provide prisoners with adequate care.' " Id., at 83a. The former executive director of the Texas Department of Criminal Justice testified that " '[e]verything revolves around overcrowding" and that " 'overcrowding is the primary cause of the medical and mental health care violations.' " Id., at 127a. The former head of corrections in Pennsylvania, Washington, and Maine testified that overcrowding is " 'overwhelming the system both in terms of sheer numbers, in terms of the space available, in terms of providing healthcare.' " Ibid. And the current secretary of the Pennsylvania Department of Corrections testified that " ''the biggest inhibiting factor right now in California being able to deliver appropriate mental health and medical care is the severe overcrowding.' " Id., at 82a.2 The State attempts to undermine the substantial evidence presented at trial, and the three-judge court's findings of fact, by complaining that the three-judge court did not allow it to present evidence of current prison conditions. This suggestion lacks a factual basis. The three-judge court properly admitted evidence of current conditions as relevant to the issues before it. The three-judge court allowed discovery until a few months before trial; expert witnesses based their conclusions on recent observations of prison conditions; the court ad-mitted recent reports on prison conditions by the Plata Receiver and Coleman Special Master; and both parties presented testimony related to current conditions, including understaffing, inadequate facilities, and unsanitary and unsafe living conditions. See supra, at 4-8, 19-24. Dr. Craig Haney, for example, based his expert report on tours of eight California prisons. App. 539. These tours occurred as late as August 2008, two weeks before Dr. Haney submitted his report and less than four months before the first day of trial. Id., at 585; see also id., at 563, 565, 580 (July tours). Other experts submitted reports based on similar observations. See, e.g., Doc. 3231-13, at 6 (Dr. Shansky); App. 646 (Dr. Stewart); id., at 1245 (Austin); id., at 1312 (Lehman). The three-judge court's opinion cited and relied on this evidence of current conditions. The court relied extensively on the expert witness reports. See generally Juris. App. 85a-143a. The court cited the most current data available on suicides and preventable deaths in the California prisons. Id., at 123a, 125a. The court relied on statistics on staff vacancies that dated to three months before trial, id., at 105a, 108a, and statistics on shortages of treatment beds for the same period, id., at 97a. These are just examples of the extensive evidence of current conditions that informed every aspect of the judgment of the three-judge court. The three-judge court did not abuse its discretion when it also cited findings made in earlier decisions of the Plata and Coleman District Courts. Those findings remained relevant to establish the nature of these longstanding, continuing constitutional violations. It is true that the three-judge court established a cutoff date for discovery a few months before trial. The order stated that site inspections of prisons would be allowed until that date, and that evidence of "changed prison conditions" after that date would not be admitted. App. 1190. The court also excluded evidence not pertinent to the issue whether a population limit is appropriate under the PLRA, including evidence relevant solely to the existence of an ongoing constitutional violation. The court reasoned that its decision was limited to the issue of remedy and that the merits of the constitutional violation had already been determined. The three-judge court made clear that all such evidence would be considered "[t]o the extent that it illuminates questions that are properly before the court." App. 2339. Both rulings were within the sound discretion of the three-judge court. Orderly trial management may require discovery deadlines and a clean distinction between litigation of the merits and the remedy. The State in fact represented to the three-judge court that it would be "ap-propriate" to cut off discovery before trial because "like plaintiffs, we, too, are really gearing up and going into a pretrial mode." Id., at 1683. And if the State truly believed there was no longer a violation, it could have argued to the Coleman and Plata District Courts that a three-judge court should not be convened because the District Courts' prior orders had not "failed to remedy the dep-rivation" of prisoners' constitutional rights. 18 U. S. C. §3626(a)(3)(A)(i); see also supra, at 16-17. Once the three-judge court was convened, that court was not required to reconsider the merits. Its role was solely to consider the propriety and necessity of a population limit. The State does not point to any significant evidence that it was unable to present and that would have changed the outcome of the proceedings. To the contrary, the record and opinion make clear that the decision of the three-judge court was based on current evidence pertaining to ongoing constitutional violations.3 The three-judge court acknowledged that the violations were caused by factors in addition to overcrowding and that reducing crowding in the prisons would not entirely cure the violations. This is consistent with the reports of the Coleman Special Master and Plata Receiver, both of whom concluded that even a significant reduction in the prison population would not remedy the violations absent continued efforts to train staff, improve facilities, and reform procedures. App. 487, 1054.8 The three-judge court nevertheless found that overcrowding was the primary cause in the sense of being the foremost cause of the violation. This understanding of the primary cause requirement is consistent with the text of the PLRA. The State in fact concedes that it proposed this very definition of primary cause to the three-judge court. "Primary" is defined as "[f]irst or highest in rank, quality, or importance; principal." American Heritage Dictionary 1393 (4th ed. 2000); see also Webster's Third New International Dictionary 1800 (2002) (defining "primary" as "first in rank or importance"); 12 Oxford English Dictionary 472 (2d ed. 1989) (defining "primary" as "[o]f the first or highest rank or importance; that claims the first consideration; principal, chief "). Overcrowding need only be the foremost, chief, or principal cause of the violation. If Congress had intended to require that crowding be the only cause, it would have said so, assuming in its judgment that definition would be consistent with constitutional limitations. As this case illustrates, constitutional violations in conditions of confinement are rarely susceptible of simple or straightforward solutions. In addition to overcrowding the failure of California's prisons to provide adequate medical and mental health care may be ascribed to chronic and worsening budget shortfalls, a lack of political will in favor of reform, inadequate facilities, and systemic administrative failures. The Plata District Judge, in his order appointing the Receiver, compared the problem to " 'a spider web, in which the tension of the various strands is determined by the relationship among all the parts of the web, so that if one pulls on a single strand, the tension of the entire web is redistributed in a new and complex pattern.' " App. 966-967 (quoting Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 Yale L. J. 635, 645 (1982)); see also Hutto, 437 U. S., at 688 (noting "the interdependence of the con-ditions producing the violation," including overcrowding). Only a multifaceted approach aimed at many causes, including overcrowding, will yield a solution. The PLRA should not be interpreted to place undue restrictions on the authority of federal courts to fashion practical remedies when confronted with complex and intractable constitutional violations. Congress limited the availability of limits on prison populations, but it did not forbid these measures altogether. See 18 U. S. C. §3626. The House Report accompanying the PLRA explained: "While prison caps must be the remedy of last resort, a court still retains the power to order this remedy despite its intrusive nature and harmful consequences to the public if, but only if, it is truly necessary to prevent an actual violation of a prisoner's federal rights." H. R. Rep. No. 104-21, p. 25 (1995).Courts should presume that Congress was sensitive to the real-world problems faced by those who would remedy constitutional violations in the prisons and that Congress did not leave prisoners without a remedy for violations of their constitutional rights. A reading of the PLRA that would render population limits unavailable in practice would raise serious constitutional concerns. See, e.g., Bowen v. Michigan Academy of Family Physicians, 476 U. S. 667, 681, n. 12 (1986). A finding that overcrowding is the "primary cause" of a violation is therefore permissible, despite the fact that additional steps will be required to remedy the violation.C The three-judge court was also required to find by clear and convincing evidence that "no other relief will remedy the violation of the Federal right." §3626(a)(3)(E)(ii). The State argues that the violation could have been remedied through a combination of new construction, transfers of prisoners out of State, hiring of medical personnel, and continued efforts by the Plata Receiver and Coleman Special Master. The order in fact permits the State to comply with the population limit by transferring prisoners to county facilities or facilities in other States, or by constructing new facilities to raise the prisons' design capacity. And the three-judge court's order does not bar the State from undertaking any other remedial efforts. If the State does find an adequate remedy other than a population limit, it may seek modification or termination of the three-judge court's order on that basis. The evidence at trial, however, supports the three-judge court's conclusion that an order limited to other remedies would not provide effective relief. The State's argument that out-of-state transfers provide a less restrictive alternative to a population limit must fail because requiring out-of-state transfers itself qualifies as a population limit under the PLRA.9 Such an order "has the purpose or effect of reducing or limiting the prison population, or ... directs the release from or nonadmission of prisoners to a prison." §3626(g)(4). The same is true of transfers to county facilities. Transfers provide a means to reduce the prison population in compliance with the three-judge court's order. They are not a less restrictive alternative to that order. Even if out-of-state transfers could be regarded as a less restrictive alternative, the three-judge court found no evidence of plans for transfers in numbers sufficient to relieve overcrowding. The State complains that the Coleman District Court slowed the rate of transfer by requiring inspections to assure that the receiving institutions were in compliance with the Eighth Amendment, but the State has made no effort to show that it has the resources and the capacity to transfer significantly larger numbers of prisoners absent that condition. Construction of new facilities, in theory, could alleviate overcrowding, but the three-judge court found no realistic possibility that California would be able to build itself out of this crisis. At the time of the court's decision the State had plans to build new medical and housing facilities, but funding for some plans had not been secured and funding for other plans had been delayed by the legislature for years. Particularly in light of California's ongoing fiscal crisis, the three-judge court deemed "chimerical" any "remedy that requires significant additional spending by the state." Juris. App. 151a. Events subsequent to the three-judge court's decision have confirmed this conclusion. In October 2010, the State notified the Coleman District Court that a substantial component of its construction plans had been delayed indefinitely by the legislature. And even if planned construction were to be completed, the Plata Receiver found that many so-called "expansion" plans called for cramming more prisoners into existing prisons without expanding administrative and support facilities. Juris. App. 151a-152a. The former acting secretary of the California prisons explained that these plans would " 'compound the burdens imposed on prison administrators and line staff' ' " by adding to the already overwhelming prison population, creating new barriers to achievement of a remedy. Id., at 152a. The three-judge court also rejected additional hiring as a realistic means to achieve a remedy. The State for years had been unable to fill positions necessary for the adequate provision of medical and mental health care, and the three-judge court found no reason to expect a change. Although the State points to limited gains in staffing between 2007 and 2008, the record shows that the prison system remained chronically understaffed through trial in 2008. See supra, at 20. The three-judge court found that violence and other negative conditions caused by crowding made it difficult to hire and retain needed staff. The court also concluded that there would be insufficient space for additional staff to work even if adequate personnel could somehow be retained. Additional staff cannot help to remedy the violation if they have no space in which to see and treat patients. The three-judge court also did not err, much less commit clear error, when it concluded that, absent a population reduction, continued efforts by the Receiver and Special Master would not achieve a remedy. Both the Receiver and the Special Master filed reports stating that overcrowding posed a significant barrier to their efforts. The Plata Receiver stated that he was determined to achieve a remedy even without a population reduction, but he warned that such an effort would "all but bankrupt" the State. App. 1053. The Coleman Special Master noted even more serious concerns, stating that previous remedial efforts had "succumbed to the inexorably rising tide of population." App. 489. Both reports are persuasive evidence that, absent a reduction in overcrowding, any remedy might prove unattainable and would at the very least require vast expenditures of resources by the State. Nothing in the long history of the Coleman and Plata actions demonstrates any real possibility that the necessary resources would be made available. The State claims that, even if each of these measures were unlikely to remedy the violation, they would succeed in doing so if combined together. Aside from asserting this proposition, the State offers no reason to believe it is so. Attempts to remedy the violations in Plata have been ongoing for 9 years. In Coleman, remedial efforts have been ongoing for 16. At one time, it may have been possible to hope that these violations would be cured without a reduction in overcrowding. A long history of failed remedial orders, together with substantial evidence of overcrowding's deleterious effects on the provision of care, compels a different conclusion today. The common thread connecting the State's proposed remedial efforts is that they would require the State to expend large amounts of money absent a reduction in overcrowding. The Court cannot ignore the political and fiscal reality behind this case. California's Legislature has not been willing or able to allocate the resources necessary to meet this crisis absent a reduction in overcrowding. There is no reason to believe it will begin to do so now, when the State of California is facing an unprecedented budgetary shortfall. As noted above, the legislature recently failed to allocate funds for planned new construction. Supra, at 30-31. Without a reduction in overcrowding, there will be no efficacious remedy for the unconsti-tutional care of the sick and mentally ill in California's prisons.D The PLRA states that no prospective relief shall issue with respect to prison conditions unless it is narrowly drawn, extends no further than necessary to correct the violation of a federal right, and is the least intrusive means necessary to correct the violation. 18 U. S. C. §3626(a). When determining whether these requirements are met, courts must "give substantial weight to any adverse impact on public safety or the operation of a criminal justice system." Ibid.1 The three-judge court acknowledged that its order "is likely to affect inmates without medical conditions or serious mental illness." Juris. App. 172a. This is because reducing California's prison population will require reducing the number of prisoners outside the class through steps such as parole reform, sentencing reform, use of good-time credits, or other means to be determined by the State. Reducing overcrowding will also have positive effects beyond facilitating timely and adequate access to medical care, including reducing the incidence of prison violence and ameliorating unsafe living conditions. According to the State, these collateral consequences are evidence that the order sweeps more broadly than necessary. The population limit imposed by the three-judge court does not fail narrow tailoring simply because it will have positive effects beyond the plaintiff class. Narrow tailoring requires a " ' "fit" between the [remedy's] ends and the means chosen to accomplish those ends.' " Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S. 469, 480 (1989). The scope of the remedy must be proportional to the scope of the violation, and the order must extend no further than necessary to remedy the violation. This Court has rejected remedial orders that unnecessarily reach out to improve prison conditions other than those that violate the Constitution. Lewis v. Casey, 518 U. S. 343, 357 (1996). But the precedents do not suggest that a narrow and otherwise proper remedy for a constitutional violation is invalid simply because it will have collateral effects. Nor does anything in the text of the PLRA require that result. The PLRA states that a remedy shall extend no further than necessary to remedy the violation of the rights of a "particular plaintiff or plaintiffs." 18 U. S. C. §3626(a)(1)(A). This means only that the scope of the order must be determined with reference to the consti-tutional violations established by the specific plaintiffs before the court. This case is unlike cases where courts have impermis-sibly reached out to control the treatment of persons or institutions beyond the scope of the violation. See Dayton Bd. of Ed. v. Brinkman, 433 U. S. 406, 420 (1977). Even prisoners with no present physical or mental illness may become afflicted, and all prisoners in California are at risk so long as the State continues to provide inadequate care. Prisoners in the general population will become sick, and will become members of the plaintiff classes, with routine frequency; and overcrowding may prevent the timely diagnosis and care necessary to provide effective treatment and to prevent further spread of disease. Relief targeted only at present members of the plaintiff classes may therefore fail to adequately protect future class members who will develop serious physical or mental illness. Prisoners who are not sick or mentally ill do not yet have a claim that they have been subjected to care that violates the Eighth Amendment, but in no sense are they remote bystanders in California's medical care system. They are that system's next potential victims. A release order limited to prisoners within the plaintiff classes would, if anything, unduly limit the ability of State officials to determine which prisoners should be released. As the State acknowledges in its brief, "release of seriously mentally ill inmates [would be] likely to create special dangers because of their recidivism rates." Consolidated Reply Brief for Appellants 34. The order of the three-judge court gives the State substantial flexibility to determine who should be released. If the State truly be-lieves that a release order limited to sick and mentally ill inmates would be preferable to the order entered by the three-judge court, the State can move the three-judge court for modification of the order on that basis. The State has not requested this relief from this Court. The order also is not overbroad because it encompasses the entire prison system, rather than separately assessing the need for a population limit at every institution. The Coleman court found a systemwide violation when it first afforded relief, and in Plata the State stipulated to systemwide relief when it conceded the existence of a violation. Both the Coleman Special Master and the Plata Receiver have filed numerous reports detailing systemwide deficiencies in medical and mental health care. California's medical care program is run at a systemwide level, and resources are shared among the correctional facilities. Although the three-judge court's order addresses the entire California prison system, it affords the State flexibility to accommodate differences between institutions. There is no requirement that every facility comply with the 137.5% limit. Assuming no constitutional violation results, some facilities may retain populations in excess of the limit provided other facilities fall sufficiently below it so the system as a whole remains in compliance with the order. This will allow prison officials to shift prisoners to facilities that are better able to accommodate overcrowding, or out of facilities where retaining sufficient medical staff has been difficult. The alternative — a series of institution-specific population limits — would require federal judges to make these choices. Leaving this discretion to state officials does not make the order overbroad. Nor is the order overbroad because it limits the State's authority to run its prisons, as the State urges in its brief. While the order does in some respects shape or control the State's authority in the realm of prison administration, it does so in a manner that leaves much to the State's discretion. The State may choose how to allocate prisoners between institutions; it may choose whether to increase the prisons' capacity through construction or reduce the population; and, if it does reduce the population, it may decide what steps to take to achieve the necessary reduction. The order's limited scope is necessary to remedy a constitutional violation. As the State implements the order of the three-judge court, time and experience may reveal targeted and effective remedies that will end the constitutional violations even without a significant decrease in the general prison population. The State will be free to move the three-judge court for modification of its order on that basis, and these motions would be entitled to serious consideration. See infra, at 45-48. At this time, the State has not proposed any realistic alternative to the order. The State's desire to avoid a population limit, justified as according respect to state authority, creates a certain and unacceptable risk of continuing violations of the rights of sick and mentally ill prisoners, with the result that many more will die or needlessly suffer. The Constitution does not permit this wrong.2 In reaching its decision, the three-judge court gave "substantial weight" to any potential adverse impact on public safety from its order. The court devoted nearly 10 days of trial to the issue of public safety, and it gave the question extensive attention in its opinion. Ultimately, the court concluded that it would be possible to reduce the prison population "in a manner that preserves public safety and the operation of the criminal justice system." Juris. App. 247a-248a. The PLRA's requirement that a court give "substantial weight" to public safety does not require the court to certify that its order has no possible adverse impact on the public. A contrary reading would depart from the statute's text by replacing the word "substantial" with "conclusive." Whenever a court issues an order requiring the State to adjust its incarceration and criminal justice policy, there is a risk that the order will have some adverse impact on public safety in some sectors. This is particularly true when the order requires release of prisoners before their sentence has been served. Persons incarcerated for even one offense may have committed many other crimes prior to arrest and conviction, and some number can be expected to commit further crimes upon release. Yet the PLRA contemplates that courts will retain authority to issue orders necessary to remedy constitutional violations, including authority to issue population limits when necessary. See supra, at 28-29. A court is required to consider the public safety consequences of its order and to structure, and monitor, its ruling in a way that mitigates those consequences while still achieving an effective remedy of the constitutional violation. This inquiry necessarily involves difficult predictive judgments regarding the likely effects of court orders. Although these judgments are normally made by state officials, they necessarily must be made by courts when those courts fashion injunctive relief to remedy serious constitutional violations in the prisons. These questions are difficult and sensitive, but they are factual questions and should be treated as such. Courts can, and should, rely on relevant and informed expert testimony when making factual findings. It was proper for the three-judge court to rely on the testimony of prison officials from California and other States. Those experts testified on the basis of empirical evidence and extensive experience in the field of prison administration. The three-judge court credited substantial evidence that prison populations can be reduced in a manner that does not increase crime to a significant degree. Some evidence indicated that reducing overcrowding in California's prisons could even improve public safety. Then-Governor Schwarzenegger, in his emergency proclamation on overcrowding, acknowledged that " 'overcrowding causes harm to people and property, leads to inmate unrest and misconduct, ... and increases recidivism as shown within this state and in others.' " Juris. App. 191a-192a. The former warden of San Quentin and acting secretary of the California prison system testified that she " 'absolutely believe[s] that we make people worse, and that we are not meeting public safety by the way we treat people.' "10 Id., at 129a. And the head of Pennsylvania's correctional system testified that measures to reduce prison population may "actually improve on public safety because they address the problems that brought people to jail." Tr. 1552-1553. Expert witnesses produced statistical evidence that prison populations had been lowered without adversely affecting public safety in a number of jurisdictions, including certain counties in California, as well as Wisconsin, Illinois, Texas, Colorado, Montana, Michigan, Florida, and Canada. Juris. App. 245a.11 Washington's former secretary of corrections testified that his State had implemented population reduction methods, including parole reform and expansion of good time credits, without any "deleterious effect on crime." Tr. 2008-2009. In light of this evidence, the three-judge court concluded that any negative impact on public safety would be "substantially offset, and perhaps entirely eliminated, by the public safety benefits" of a reduction in overcrowding. Juris. App. 248a. The court found that various available methods of reducing overcrowding would have little or no impact on public safety. Expansion of good-time credits would allow the State to give early release to only those prisoners who pose the least risk of reoffending. Diverting low-risk offenders to community programs such as drug treatment, day reporting centers, and electronic monitoring would likewise lower the prison population without releasing violent convicts.12 The State now sends large numbers of persons to prison for violating a technical term or condition of their parole, and it could reduce the prison population by punishing technical parole violations through community-based programs. This last measure would be particularly beneficial as it would reduce crowding in the reception centers, which are especially hard hit by overcrowding. See supra, at 23-24. The court's order took account of public safety concerns by giving the State substantial flexibility to select among these and other means of reducing overcrowding. The State submitted a plan to reduce its prison population in accordance with the three-judge court's order, and it complains that the three-judge court approved that plan without considering whether the specific measures contained within it would substantially threaten public safety. The three-judge court, however, left the choice of how best to comply with its population limit to state prison officials. The court was not required to second-guess the exercise of that discretion. Courts should presume that state officials are in a better position to gauge how best to preserve public safety and balance competing correctional and law enforcement concerns. The decision to leave details of implementation to the State's discretion protected public safety by leaving sensitive policy decisions to responsible and competent state officials. During the pendency of this appeal, the State in fact began to implement measures to reduce the prison population. See Supp. Brief for Appellants 1. These measures will shift "thousands" of prisoners from the state prisons to the county jails by "mak[ing] certain felonies punishable by imprisonment in county jail" and "requir[ing] that individuals returned to custody for violating their conditions of parole 'serve any custody term in county jail.' " Ibid. These developments support the three-judge court's conclusion that the prison population can be reduced in a manner calculated to avoid an undue negative effect on public safety.III Establishing the population at which the State could begin to provide constitutionally adequate medical and mental health care, and the appropriate time frame within which to achieve the necessary reduction, requires a degree of judgment. The inquiry involves uncertain predictions regarding the effects of population reductions, as well as difficult determinations regarding the capacity of prison officials to provide adequate care at various popu-lation levels. Courts have substantial flexibility when making these judgments. " 'Once invoked, "the scope of a district court's equitable powers ... is broad, for breadth and flexibility are inherent in equitable remedies." ' " Hutto, 437 U. S., at 687, n. 9 (quoting Milliken v. Bradley, 433 U. S. 267, 281 (1977), in turn quoting Swann v. Charlotte-Mecklenburg Bd. of Ed., 402 U. S. 1, 15 (1971)). Nevertheless, the PLRA requires a court to adopt a remedy that is "narrowly tailored" to the constitutional violation and that gives "substantial weight" to public safety. 18 U. S. C. §3626(a). When a court is imposing a population limit, this means the court must set the limit at the highest population consistent with an efficacious remedy. The court must also order the population reduction achieved in the shortest period of time reasonably consistent with public safety.A The three-judge court concluded that the population of California's prisons should be capped at 137.5% of design capacity. This conclusion is supported by the record. Indeed, some evidence supported a limit as low as 100% of design capacity. The chief deputy secretary of Correctional Healthcare Services for the California prisons tes-tified that California's prisons " 'were not designed and made no provision for any expansion of medical care space beyond the initial 100% of capacity.' " Juris. App. 176a. Other evidence supported a limit as low as 130%. The head of the State's Facilities Strike Team recommended reducing the population to 130% of design capacity as a long-term goal. Id., at 179a-180a. A former head of correctional systems in Washington State, Maine, and Pennsylvania testified that a 130% limit would " 'give prison officials and staff the ability to provide the necessary programs and services for California's prisoners.' " Id., at 180a. A former executive director of the Texas prisons testified that a limit of 130% was " 'realistic and appro-priate' " and would " 'ensure that [California's] prisons are safe and provide legally required services.' " Ibid. And a former acting secretary of the California prisons agreed with a 130% limit with the caveat that a 130% limit might prove inadequate in some older facilities. Ibid. According to the State, this testimony expressed the witnesses' policy preferences, rather than their views as to what would cure the constitutional violation. Of course, courts must not confuse professional standards with constitutional requirements. Rhodes v. Chapman, 452 U. S. 337, 348, n. 13 (1981). But expert opinion may be relevant when determining what is obtainable and what is acceptable in corrections philosophy. See supra, at 37-38. Nothing in the record indicates that the experts in this case imposed their own policy views or lost sight of the underlying violations. To the contrary, the witnesses testified that a 130% population limit would allow the State to remedy the constitutionally inadequate provision of medical and mental health care. When expert opinion is addressed to the question of how to remedy the relevant constitutional violations, as it was here, federal judges can give it considerable weight. The Federal Bureau of Prisons (BOP) has set 130% as a long-term goal for population levels in the federal prison system. Brief for Appellants 43-44. The State suggests the expert witnesses impermissibly adopted this professional standard in their testimony. But courts are not required to disregard expert opinion solely because it adopts or accords with professional standards. Professional standards may be "helpful and relevant with respect to some questions." Chapman, supra, at 348, n. 13. The witnesses testified that a limit of 130% was necessary to remedy the constitutional violations, not that it should be adopted because it is a BOP standard. If anything, the fact that the BOP views 130% as a manageable population density bolsters the three-judge court's conclusion that a population limit of 130% would alleviate the pressures associated with overcrowding and allow the State to begin to provide constitutionally adequate care. Although the three-judge court concluded that the "evidence in support of a 130% limit is strong," it found that some upward adjustment was warranted in light of "the caution and restraint required by the PLRA." Juris. App. 183a, 184a. The three-judge court noted evidence supporting a higher limit. In particular, the State's Corrections Independent Review Panel had found that 145% was the maximum "operable capacity" of California's prisons, id., at 181a-182a, although the relevance of that determination was undermined by the fact that the panel had not considered the need to provide constitutionally adequate medical and mental health care, as the State itself concedes. Brief for Coleman Appellees 45. After considering, but discounting, this evidence, the three-judge court concluded that the evidence supported a limit lower than 145%, but higher than 130%. It therefore imposed a limit of 137.5%. This weighing of the evidence was not clearly erroneous. The adversary system afforded the court an opportunity to weigh and evaluate evidence presented by the parties. The plaintiffs' evidentiary showing was intended to justify a limit of 130%, and the State made no attempt to show that any other number would allow for a remedy. There are also no scientific tools available to determine the precise population reduction necessary to remedy a constitutional violation of this sort. The three-judge court made the most precise determination it could in light of the record before it. The PLRA's narrow tailoring requirement is satisfied so long as these equitable, remedial judgments are made with the objective of releasing the fewest possible prisoners consistent with an efficacious remedy. In light of substantial evidence supporting an even more drastic remedy, the three-judge court complied with the requirement of the PLRA in this case.B The three-judge court ordered the State to achieve this reduction within two years. At trial and closing argument before the three-judge court, the State did not argue that reductions should occur over a longer period of time. The State later submitted a plan for court approval that would achieve the required reduction within five years, and that would reduce the prison population to 151% of design capacity in two years. The State represented that this plan would "safely reach a population level of 137.5% over time." App. to Juris. Statement 32a. The three-judge court rejected this plan because it did not comply with the deadline set by its order. The State first had notice that it would be required to reduce its prison population in February 2009, when the three-judge court gave notice of its tentative ruling after trial. The 2-year deadline, however, will not begin to run until this Court issues its judgment. When that happens, the State will have already had over two years to begin complying with the order of the three-judge court. The State has used the time productively. At oral argument, the State indicated it had reduced its prison population by approximately 9,000 persons since the decision of the three-judge court. After oral argument, the State filed a supplemental brief indicating that it had begun to implement measures to shift "thousands" of additional prisoners to county facilities. Supp. Brief for Appellants at 1. Particularly in light of the State's failure to contest the issue at trial, the three-judge court did not err when it established a 2-year deadline for relief. Plaintiffs proposed a 2-year deadline, and the evidence at trial was intended to demonstrate the feasibility of a 2-year deadline. See Tr. 2979. Notably, the State has not asked this Court to extend the 2-year deadline at this time. The three-judge court, however, retains the authority, and the responsibility, to make further amendments to the existing order or any modified decree it may enter as warranted by the exercise of its sound discretion. "The power of a court of equity to modify a decree of injunctive relief is long-established, broad, and flexible." New York State Assn. for Retarded Children, Inc. v. Carey, 706 F. 2d 956, 967 (CA2 1983) (Friendly, J.). A court that invokes equity's power to remedy a constitutional violation by an injunction mandating systemic changes to an institution has the continuing duty and responsibility to assess the efficacy and consequences of its order. Id., at 969-971. Experience may teach the necessity for modification or amendment of an earlier decree. To that end, the three-judge court must remain open to a showing or demonstration by either party that the injunction should be altered to ensure that the rights and interests of the parties are given all due and necessary protection. Proper respect for the State and for its governmental processes require that the three-judge court exercise its jurisdiction to accord the State considerable latitude to find mechanisms and make plans to correct the violations in a prompt and effective way consistent with public safety. In order to "give substantial weight to any adverse impact on public safety," 18 U. S. C. §3626(a)(1)(A), the three-judge court must give due deference to informed opinions as to what public safety requires, including the considered determinations of state officials regarding the time in which a reduction in the prison population can be achieved consistent with public safety. An extension of time may allow the State to consider changing political, economic, and other circumstances and to take advantage of opportunities for more effective remedies that arise as the Special Master, the Receiver, the prison system, and the three-judge court itself evaluate the progress being made to correct unconstitutional conditions. At the same time, both the three-judge court and state officials must bear in mind the need for a timely and efficacious remedy for the ongoing violation of prisoners' constitutional rights. The State may wish to move for modification of the three-judge court's order to extend the deadline for the required reduction to five years from the entry of the judgment of this Court, the deadline proposed in the State's first population reduction plan. The three-judge court may grant such a request provided that the State satisfies necessary and appropriate preconditions designed to ensure that measures are taken to implement the plan without undue delay. Appropriate preconditions may include a requirement that the State demonstrate that it has the authority and the resources necessary to achieve the required reduction within a 5-year period and to meet reasonable interim directives for population reduction. The three-judge court may also condition an extension of time on the State's ability to meet interim benchmarks for improvement in provision of medical and mental health care. The three-judge court, in its discretion, may also consider whether it is appropriate to order the State to begin without delay to develop a system to identify prisoners who are unlikely to reoffend or who might otherwise be candidates for early release. Even with an extension of time to construct new facilities and implement other reforms, it may become necessary to release prisoners to comply with the court's order. To do so safely, the State should devise systems to select those prisoners least likely to jeopardize public safety. An extension of time may provide the State a greater opportunity to refine and elab-orate those systems. The State has already made significant progress toward reducing its prison population, including reforms that will result in shifting "thousands" of prisoners to county jails. See Supp. Brief for Appellants at 1. As the State makes further progress, the three-judge court should evaluate whether its order remains appropriate. If significant progress is made toward remedying the underlying constitutional violations, that progress may demonstrate that further population reductions are not necessary or are less urgent than previously believed. Were the State to make this showing, the three-judge court in the exercise of its discretion could consider whether it is appropriate to ex-tend or modify this timeline. Experience with the three-judge court's order may also lead the State to suggest other modifications. The three-judge court should give any such requests serious consideration. The three-judge court should also formulate its orders to allow the State and its officials the authority necessary to address contingencies that may arise during the remedial process. These observations reflect the fact that the three-judge court's order, like all continuing equitable decrees, must remain open to appropriate modification. They are not intended to cast doubt on the validity of the basic premise of the existing order. The medical and mental health care provided by California's prisons falls below the standard of decency that inheres in the Eighth Amendment. This extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding. The relief ordered by the three-judge court is required by the Constitution and was authorized by Congress in the PLRA. The State shall implement the order without further delay. The judgment of the three-judge court is affirmed.It is so ordered.AppendiXesAC. §3626:"(a) Requirements for Relief. "(1) Prospective relief.--(A) Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.. . . . . "(3) Prisoner release order.--(A) In any civil action with respect to prison conditions, no court shall enter a prisoner release order unless-- "(i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and "(ii) the defendant has had a reasonable amount of time to comply with the previous court orders. "(B) In any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court in accordance with section 2284 of title 28, if the requirements of subparagraph (E) have been met. "(C) A party seeking a prisoner release order in Federal court shall file with any request for such relief, a request for a three-judge court and materials sufficient to demonstrate that the requirements of subparagraph (A) have been met. "(D) If the requirements under subparagraph (A) have been met, a Federal judge before whom a civil action with respect to prison conditions is pending who believes that a prison release order should be considered may sua sponte request the convening of a three-judge court to determine whether a prisoner release order should be entered. "(E) The three-judge court shall enter a prisoner release order only if the court finds by clear and convincing evidence that-- "(i) crowding is the primary cause of the violation of a Federal right; and "(ii) no other relief will remedy the violation of the Federal right. "(F) Any State or local official including a legislator or unit of government whose jurisdiction or function includes the appropriation of funds for the construction, operation, or maintenance of prison facilities, or the prosecution or custody of persons who may be released from, or not admitted to, a prison as a result of a prisoner release order shall have standing to oppose the imposition or continuation in effect of such relief and to seek termination of such relief, and shall have the right to intervene in any proceeding relating to such relief.. . . . .(g) Definitions.--As used in this section. . . . . "(4) the term "prisoner release order" includes any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the release from or nonadmission of prisoners to a prison ... ."BMule Creek State PrisonAug. 1, 2008California Institution for MenAug. 7, 2006CSalinas Valley State PrisonJuly 29, 2008Correctional Treatment Center (dry cages/holding cells for people waiting for mental health crisis bed)EDMUND G. BROWN, Jr., GOVERNOR OF CALIFORNIA, et al., APPELLANTS v. MARCIANO PLATA et al.on appeal from the united states district courts for the eastern district and the northern district of california[May 23, 2011] Justice Scalia, with whom Justice Thomas joins, dissenting. Today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation's history: an order requiring California to release the staggering number of 46,000 convicted criminals. There comes before us, now and then, a case whose proper outcome is so clearly indicated by tradition and common sense, that its decision ought to shape the law, rather than vice versa. One would think that, before allowing the decree of a federal district court to release 46,000 convicted felons, this Court would bend every effort to read the law in such a way as to avoid that outrageous result. Today, quite to the contrary, the Court disregards stringently drawn provisions of the governing statute, and traditional constitutional limitations upon the power of a federal judge, in order to uphold the absurd. The proceedings that led to this result were a judicial travesty. I dissent because the institutional reform the District Court has undertaken violates the terms of the governing statute, ignores bedrock limitations on the power of Article III judges, and takes federal courts wildly beyond their institutional capacity.IA The Prison Litigation Reform Act (PLRA) states that "[p]rospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs"; that such relief must be "narrowly drawn, [and] exten[d] no further than necessary to correct the violation of the Federal right"; and that it must be "the least intrusive means necessary to correct the violation of the Federal right." 18 U. S. C. §3626(a)(1)(A). In deciding whether these multiple limitations have been complied with, it is necessary to identify with precision what is the "violation of the Federal right of a particular plaintiff or plaintiffs" that has been alleged. What has been alleged here, and what the injunction issued by the Court is tailored (narrowly or not) to remedy is the running of a prison system with inadequate medical facilities. That may result in the denial of needed medical treatment to "a particular [prisoner] or [prisoners]," thereby violating (ac-cording to our cases) his or their Eighth Amendment rights. But the mere existence of the inadequate system does not subject to cruel and unusual punishment the entire prison population in need of medical care, including those who receive it. The Court acknowledges that the plaintiffs "do not base their case on deficiencies in care provided on any one occasion"; rather, "[p]laintiffs rely on systemwide deficiencies in the provision of medical and mental health care that, taken as a whole, subject sick and mentally ill prisoners in California to 'substantial risk of serious harm' and cause the delivery of care in the prisons to fall below the evolving standards of decency that mark the progress of a maturing society." Ante, at 7, n. 3. But our judge-empowering "evolving standards of decency" jurisprudence (with which, by the way, I heartily disagree, see, e.g., Roper v. Simmons, 543 U. S. 551, 615-616 (2005) (Scalia, J., dissenting)) does not prescribe (or at least has not until today prescribed) rules for the "decent" running of schools, prisons, and other government institutions. It forbids "indecent" treatment of individuals — in the context of this case, the denial of medical care to those who need it. And the persons who have a constitutional claim for denial of medical care are those who are denied medical care — not all who face a "substantial risk" (whatever that is) of being denied medical care. The Coleman litigation involves "the class of seriously mentally ill persons in California prisons," ante, at 8, and the Plata litigation involves "the class of state prisoners with serious medical conditions," ante, at 9. The plaintiffs do not appear to claim — and it would absurd to suggest — that every single one of those prisoners has personally experienced "torture or a lingering death," ante, at 13 (internal quotation marks omitted), as a consequence of that bad medical system. Indeed, it is inconceivable that anything more than a small proportion of prisoners in the plaintiff classes have personally received sufficiently atrocious treatment that their Eighth Amendment right was violated — which, as the Court recognizes, is why the plaintiffs do not premise their claim on "deficiencies in care provided on any one occasion." Ante, at 7, n. 3. Rather, the plaintiffs' claim is that they are all part of a medical system so defective that some number of prisoners will inevitably be injured by incompetent medical care, and that this number is sufficiently high so as to render the system, as a whole, unconstitutional. But what procedural principle justifies certifying a class of plaintiffs so they may assert a claim of systemic unconstitutionality? I can think of two possibilities, both of which are untenable. The first is that although some or most plaintiffs in the class do not individually have viable Eighth Amendment claims, the class as a whole has collectively suffered an Eighth Amendment violation. That theory is contrary to the bedrock rule that the sole purpose of classwide adjudication is to aggregate claims that are individually viable. "A class action, no less than traditional joinder (of which it is a species), merely enables a federal court to adjudicate claims of multiple parties at once, instead of in separate suits. And like traditional joinder, it leaves the parties' legal rights and duties intact and the rules of decision unchanged." Shady Grove Orthopedic Associates, P. A. v. Allstate Ins. Co., 559 U. S. ___, ___ (2010) (plurality opinion) (slip op., at 14). The second possibility is that every member of the plaintiff class has suffered an Eighth Amendment violation merely by virtue of being a patient in a poorly-run prison system, and the purpose of the class is merely to aggregate all those individually viable claims. This theory has the virtue of being consistent with procedural principles, but at the cost of a gross substantive departure from our case law. Under this theory, each and every prisoner who happens to be a patient in a system that has systemic weaknesses — such as "hir[ing] any doctor who had a license, a pulse and a pair of shoes," ante, at 10 (internal quotation marks omitted)--has suffered cruel or unusual punishment, even if that person cannot make an individualized showing of mistreatment. Such a theory of the Eighth Amendment is preposterous. And we have said as much in the past: "If ... a healthy inmate who had suffered no deprivation of needed medical treatment were able to claim violation of his constitutional right to medical care ... simply on the ground that the prison medical facilities were inadequate, the essential distinction between judge and executive would have disappeared: it would have become the function of the courts to assure adequate medical care in prisons." Lewis v. Casey, 518 U. S. 343, 350 (1996). Whether procedurally wrong or substantively wrong, the notion that the plaintiff class can allege an Eighth Amendment violation based on "systemwide deficiencies" is assuredly wrong. It follows that the remedy decreed here is also contrary to law, since the theory of systemic unconstitutionality is central to the plaintiffs' case. The PLRA requires plaintiffs to establish that the systemwide injunction entered by the District Court was "narrowly drawn" and "extends no further than necessary" to correct "the violation of the Federal right of a particular plaintiff or plaintiffs." If (as is the case) the only viable constitutional claims consist of individual instances of mistreatment, then a remedy reforming the system as a whole goes far beyond what the statute allows. It is also worth noting the peculiarity that the vast majority of inmates most generously rewarded by the re-lease order — the 46,000 whose incarceration will be ended — do not form part of any aggrieved class even under the Court's expansive notion of constitutional violation. Most of them will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym.B Even if I accepted the implausible premise that the plaintiffs have established a systemwide violation of the Eighth Amendment, I would dissent from the Court's endorsement of a decrowding order. That order is an example of what has become known as a "structural injunction." As I have previously explained, structural injunctions are radically different from the injunctions traditionally issued by courts of equity, and presumably part of "the judicial Power" conferred on federal courts by Article III:"The mandatory injunctions issued upon termination of litigation usually required 'a single simple act.' H. McClintock, Principles of Equity §15, pp. 32-33 (2d ed. 1948). Indeed, there was a 'historical prejudice of the court of chancery against rendering decrees which called for more than a single affirmative act.' Id., §61, at 160. And where specific performance of contracts was sought, it was the categorical rule that no decree would issue that required ongoing supervision... . Compliance with these 'single act' mandates could, in addition to being simple, be quick; and once it was achieved the contemnor's relationship with the court came to an end, at least insofar as the subject of the order was concerned. Once the document was turned over or the land conveyed, the litigant's obligation to the court, and the court's coercive power over the litigant, ceased... . The court did not engage in any ongoing supervision of the litigant's conduct, nor did its order continue to regulate its behavior." Mine Workers v. Bagwell, 512 U. S. 821, 841-842 (1994) (Scalia, J., concurring). Structural injunctions depart from that historical practice, turning judges into long-term administrators of complex social institutions such as schools, prisons, and police departments. Indeed, they require judges to play a role essentially indistinguishable from the role ordinarily played by executive officials. Today's decision not only affirms the structural injunction but vastly expands its use, by holding that an entire system is unconstitutional because it may produce constitutional violations. The drawbacks of structural injunctions have been described at great length elsewhere. See, e.g., Lewis, supra, at 385-393 (1996) (Thomas, J., concurring); Missouri v. Jenkins, 515 U. S. 70, 124-133 (1995) (Thomas, J., concurring); Horowitz, Decreeing Organizational Change: Judicial Supervision of Public Institutions, 1983 Duke L. J. 1265. This case illustrates one of their most pernicious aspects: that they force judges to engage in a form of factfinding-as-policymaking that is outside the traditional judicial role. The factfinding judges traditionally engage in involves the determination of past or present facts based (except for a limited set of materials of which courts may take "judicial notice") exclusively upon a closed trial record. That is one reason why a district judge's factual findings are entitled to plain-error review: because having viewed the trial first hand he is in a better position to evaluate the evidence than a judge reviewing a cold record. In a very limited category of cases, judges have also traditionally been called upon to make some predictive judgments: which custody will best serve the interests of the child, for example, or whether a particular one-shot injunction will remedy the plaintiff's grievance. When a judge manages a structural injunction, however, he will inevitably be required to make very broad empirical predictions necessarily based in large part upon policy views — the sort of predictions regularly made by legis-lators and executive officials, but inappropriate for the Third Branch. This feature of structural injunctions is superbly illustrated by the District Court's proceeding concerning the decrowding order's effect on public safety. The PLRA requires that, before granting "[p]rospective relief in [a] civil action with respect to prison conditions," a court must "give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief." 18 U. S. C. §3626(a)(1)(A). Here, the District Court discharged that requirement by making the "factual finding" that "the state has available methods by which it could readily reduce the prison population to 137.5% design capacity or less without an adverse impact on public safety or the operation of the criminal justice system." Juris. Statement App., O. T. 2009, No. 09-416, p. 253a. It found the evidence "clear" that prison overcrowding would "perpetuate a criminogenic prison system that itself threatens public safety," id., at 186a, and volunteered its opinion that "[t]he population could be reduced even further with the reform of California's antiquated sentencing policies and other related changes to the laws." Id., at 253a. It "reject[ed] the testimony that inmates released early from prison would commit additional new crimes," id., at 200a, finding that "shortening the length of stay through earned credits would give inmates incentives to participate in programming designed to lower recidivism," id., at 204a, and that "slowing the flow of technical parole violators to prison, thereby substantially reducing the churning of parolees, would by itself improve both the prison and parole systems, and public safety." Id., at 209a. It found that "the diversion of offenders to community correctional programs has significant beneficial effects on public safety," id., at 214a, and that "additional rehabilitative programming would result in a significant population reduction while improving public safety," id., at 216a. The District Court cast these predictions (and the Court today accepts them) as "factual findings," made in reliance on the procession of expert witnesses that testified at trial. Because these "findings" have support in the record, it is difficult to reverse them under a plain-error standard of review. Ante, at 38. And given that the District Court devoted nearly 10 days of trial and 70 pages of its opinion to this issue, it is difficult to dispute that the District Court has discharged its statutory obligation to give "substantial weight to any adverse impact on public safety." But the idea that the three District Judges in this case relied solely on the credibility of the testifying expert witnesses is fanciful. Of course they were relying largely on their own beliefs about penology and recidivism. And of course different district judges, of different policy views, would have "found" that rehabilitation would not work and that releasing prisoners would increase the crime rate. I am not saying that the District Judges rendered their factual findings in bad faith. I am saying that it is impossible for judges to make "factual findings" without inserting their own policy judgments, when the factual findings are policy judgments. What occurred here is no more judicial factfinding in the ordinary sense than would be the factual findings that deficit spending will not lower the unemployment rate, or that the continued occupation of Iraq will decrease the risk of terrorism. Yet, because they have been branded "factual findings" entitled to deferential review, the policy preferences of three District Judges now govern the operation of California's penal system. It is important to recognize that the dressing-up of pol-icy judgments as factual findings is not an error peculiar to this case. It is an unavoidable concomitant of institutional-reform litigation. When a district court issues an injunction, it must make a factual assessment of the anticipated consequences of the injunction. And when the injunction undertakes to restructure a social institution, assessing the factual consequences of the injunction is necessarily the sort of predictive judgment that our system of government allocates to other government officials. But structural injunctions do not simply invite judges to indulge policy preferences. They invite judges to indulge incompetent policy preferences. Three years of law school and familiarity with pertinent Supreme Court precedents give no insight whatsoever into the management of social institutions. Thus, in the proceeding below the District Court determined that constitutionally adequate medical services could be provided if the prison population was 137.5% of design capacity. This was an empirical finding it was utterly unqualified to make. Admittedly, the court did not generate that number entirely on its own; it heard the numbers 130% and 145% bandied about by various witnesses and decided to split the difference. But the ability of judges to spit back or even average-out numbers spoon-fed to them by expert witnesses does not render them competent decisionmakers in areas in which they are otherwise unqualified. The District Court also relied heavily on the views of the Receiver and Special Master, and those reports play a starring role in the Court's opinion today. The Court notes that "the Receiver and the Special Master filed reports stating that overcrowding posed a significant barrier to their efforts" and deems those reports "persuasive evidence that, absent a reduction in overcrowding, any remedy might prove unattainable and would at the very least require vast expenditures of resources by the State." Ante, at 31-32. The use of these reports is even less consonant with the traditional judicial role than the District Court's reliance on the expert testimony at trial. The latter, even when, as here, it is largely the expression of policy judgments, is at least subject to cross-examination. Relying on the un-cross-examined findings of an investigator, sent into the field to prepare a factual report and give suggestions on how to improve the prison system, bears no resemblance to ordinary judicial decisionmaking. It is true that the PLRA contemplates the appointment of Special Masters (although not Receivers), but Special Masters are authorized only to "conduct hearings and prepare proposed findings of fact" and "assist in the development of remedial plans," 18 U. S. C. §3626(f)(6). This does not authorize them to make factual findings (unconnected to hearings) that are given seemingly wholesale deference. Neither the Receiver nor the Special Master was selected by California to run its prisons, and the fact that they may be experts in the field of prison reform does not justify the judicial imposition of their perspectives on the state.C My general concerns associated with judges' running social institutions are magnified when they run prison systems, and doubly magnified when they force prison officials to release convicted criminals. As we have previously recognized:"[C]ourts are ill equipped to deal with the increasingly urgent problems of prison administration and reform... . [T]he problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree... . Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the com-mitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have ... additional reason to accord deference to the appropriate prison authorities." Turner v. Safley, 482 U. S. 78, 84-85 (1987) (internal quotation marks omitted). These principles apply doubly to a prisoner-release order. As the author of today's opinion explained earlier this Term, granting a writ of habeas corpus " '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.' " Harrington v. Richter, 562 U. S. ___, ___ (2011) (slip op., at 13) (quoting Harris v. Reed, 489 U. S. 255, 282 (1989) (Kennedy, J., dissenting)). Recognizing that habeas relief must be granted sparingly, we have reversed the Ninth Circuit's erroneous grant of habeas relief to individual California prisoners four times this Term alone. Cullen v. Pinholster, 563 U. S. ___ (2011); Felkner v. Jackson, 562 U. S. ___ (2011) (per curiam); Swarthout v. Cooke, 562 U. S. ___ (2011) (per curiam); Harrington, supra. And yet here, the Court affirms an order granting the functional equivalent of 46,000 writs of habeas corpus, based on its paean to courts' "substantial flexibility when making these judgments." Ante, at 41. It seems that the Court's respect for state sovereignty has vanished in the case where it most matters.II The Court's opinion includes a bizarre coda noting that "[t]he State may wish to move for modification of the three-judge court's order to extend the deadline for the required reduction to five years." Ante, at 46-47. The Dis-trict Court, it says, "may grant such a request provided that the State satisfies necessary and appropriate preconditions designed to ensure the measures are taken to implement the plan without undue delay"; and it gives vague suggestions of what these preconditions "may include," such as "interim benchmarks." Ante, at 47. It also invites the District Court to "consider whether it is appropriate to order the State to begin without delay to develop a system to identify prisoners who are unlikely to reoffend," and informs the State that it "should devise systems to select those prisoners least likely to jeopardize public safety." Ibid. (What a good idea!) The legal effect of this passage is unclear — I suspect intentionally so. If it is nothing but a polite remainder to the State and to the District Court that the injunction is subject to modification, then it is entirely unnecessary. As both the State and the District Court are undoubtedly aware, a party is always entitled to move to modify an equitable decree, and the PLRA contains an express provision authorizing District Courts to modify or terminate prison injunctions. See 18 U. S. C. §3626(b). I suspect, however, that this passage is a warning shot across the bow, telling the District Court that it had better modify the injunction if the State requests what we invite it to request. Such a warning, if successful, would achieve the benefit of a marginal reduction in the inevitable murders, robberies, and rapes to be committed by the released inmates. But it would achieve that at the expense of in-tellectual bankruptcy, as the Court's "warning" is entirely alien to ordinary principles of appellate review of injunctions. When a party moves for modification of an injunction, the district court is entitled to rule on that motion first, subject to review for abuse of discretion if it declines to modify the order. Horne v. Flores, 557 U. S. ___, ___, ___ (2009) (slip op., at 10, 20). Moreover, when a district court enters a new decree with new benchmarks, the selection of those benchmarks is also reviewed under a deferential, abuse-of-discretion standard of review — a point the Court appears to recognize. Ante, at 45. Appellate courts are not supposed to "affirm" injunctions while preemptively noting that the State "may" request, and the District Court "may" grant, a request to extend the State's deadline to release prisoners by three years based on some suggestions on what appropriate preconditions for such a modification "may" include. Of course what is really happening here is that the Court, overcome by common sense, disapproves of the results reached by the District Court, but cannot remedy them (it thinks) by applying ordinary standards of appellate review. It has therefore selected a solution unknown in our legal system: A deliberately ambiguous set of suggestions on how to modify the injunction, just deferential enough so that it can say with a straight face that it is "affirming," just stern enough to put the District Court on notice that it will likely get reversed if it does not follow them. In doing this, the Court has aggrandized itself, grasping authority that appellate courts are not supposed to have, and using it to enact a compromise solution with no legal basis other than the Court's say-so. That we are driven to engage in these extralegal activities should be a sign that the entire project of permitting district courts to run prison systems is misbegotten. But perhaps I am being too unkind. The Court, or at least a majority of the Court's majority, must be aware that the judges of the District Court are likely to call its bluff, since they know full well it cannot possibly be an abuse of discretion to refuse to accept the State's proposed modifications in an injunction that has just been approved (affirmed) in its present form. An injunction, after all, does not have to be perfect; only good enough for government work, which the Court today says this is. So perhaps the coda is nothing more than a ceremonial washing of the hands — making it clear for all to see, that if the terrible things sure to happen as a consequence of this outrageous order do happen, they will be none of this Court's responsibility. After all, did we not want, and indeed even suggest, something better? III In view of the incoherence of the Eighth Amendment claim at the core of this case, the nonjudicial features of institutional reform litigation that this case exemplifies, and the unique concerns associated with mass prisoner releases, I do not believe this Court can affirm this injunction. I will state my approach briefly: In my view, a court may not order a prisoner's release unless it determines that the prisoner is suffering from a violation of his constitutional rights, and that his release, and no other relief, will remedy that violation. Thus, if the court determines that a particular prisoner is being denied constitutionally required medical treatment, and the release of that prisoner (and no other remedy) would enable him to obtain medical treatment, then the court can order his release; but a court may not order the release of prisoners who have suffered no violations of their constitutional rights, merely to make it less likely that that will happen to them in the future. This view follows from the PLRA's text that I discussed at the outset, 18 U. S. C. §3626(a)(1)(A). "[N]arrowly drawn" means that the relief applies only to the "particular [prisoner] or [prisoners]" whose constitutional rights are violated; "extends no further than necessary" means that prisoners whose rights are not violated will not obtain relief; and "least intrusive means necessary to correct the violation of the Federal right" means that no other relief is available. ** I acknowledge that this reading of the PLRA would se-verely limit the circumstances under which a court could issue structural injunctions to remedy allegedly unconstitutional prison conditions, although it would not eliminate them entirely. If, for instance, a class representing all prisoners in a particular institution alleged that the temperature in their cells was so cold as to violate the Eighth Amendment, or that they were deprived of all exercise time, a court could enter a prisonwide injunction ordering that the temperature be raised or exercise time be provided. Still, my approach may invite the objection that the PLRA appears to contemplate structural injunctions in general and mass prisoner-release orders in particular. The statute requires courts to "give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief" and authorizes them to appoint Special Masters, §3626 (a)(1)(A), (f), provisions that seem to presuppose the possibility of a structural remedy. It also sets forth criteria under which courts may issue orders that have "the purpose or effect of reducing or limiting the prisoner population," §3626(g)(4). I do not believe that objection carries the day. In addition to imposing numerous limitations on the ability of district courts to order injunctive relief with respect to prison conditions, the PLRA states that "[n]othing in this section shall be construed to ... repeal or detract from otherwise applicable limitations on the remedial powers of the courts." §3626(a)(1)(C). The PLRA is therefore best understood as an attempt to constrain the discretion of courts issuing structural injunctions — not as a mandate for their use. For the reasons I have outlined, structural injunctions, especially prisoner-release orders, raise grave separation-of-powers concerns and veer significantly from the historical role and institutional capability of courts. It is appropriate to construe the PLRA so as to constrain courts from entering injunctive relief that would exceed that role and capability.* * * The District Court's order that California release 46,000 prisoners extends "further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs" who have been denied needed medical care. 18 U. S. C. §3626(a)(1)(A). It is accordingly forbidden by the PLRA — besides defying all sound conception of the proper role of judges.EDMUND G. BROWN, Jr., GOVERNOR OF CALIFORNIA, et al., APPELLANTS v. MARCIANO PLATA et al.on appeal from the united states district courts for the eastern district and the northern district of california[May 23, 2011] Justice Alito, with whom The Chief Justice joins, dissenting. The decree in this case is a perfect example of what the Prison Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321-66, was enacted to prevent. The Constitution does not give federal judges the authority to run state penal systems. Decisions regarding state prisons have profound public safety and financial implications, and the States are generally free to make these decisions as they choose. See Turner v. Safley, 482 U. S. 78, 85 (1987). The Eighth Amendment imposes an important — but limited — restraint on state authority in this field. The Eighth Amendment prohibits prison officials from depriving inmates of "the minimal civilized measure of life's necessities." Rhodes v. Chapman, 452 U. S. 337, 347 (1981). Federal courts have the responsibility to ensure that this constitutional standard is met, but undesirable prison conditions that do not violate the Constitution are beyond the federal courts' reach. In this case, a three-judge court exceeded its authority under the Constitution and the PLRA. The court ordered a radical reduction in the California prison population without finding that the current population level violates the Constitution. Two cases were before the three-judge court, and neither targeted the general problem of overcrowding. Indeed, the plaintiffs in one of those cases readily acknowledge that the current population level is not itself unconstitutional. Brief for Coleman Appellees 56. Both of the cases were brought not on behalf of all inmates subjected to overcrowding, but rather in the interests of much more limited classes of prisoners, namely, those needing mental health treatment and those with other serious medical needs. But these cases were used as a springboard to implement a criminal justice program far different from that chosen by the state legislature. Instead of crafting a remedy to attack the specific constitutional violations that were found — which related solely to prisoners in the two plaintiff classes — the lower court issued a decree that will at best provide only modest help to those prisoners but that is very likely to have a major and deleterious effect on public safety. The three-judge court ordered the premature release of approximately 46,000 criminals — the equivalent of three Army divisions. The approach taken by the three-judge court flies in the face of the PLRA. Contrary to the PLRA, the court's remedy is not narrowly tailored to address proven and ongoing constitutional violations. And the three-judge court violated the PLRA's critical command that any court contemplating a prisoner release order must give "substantial weight to any adverse impact on public safety." 18 U. S. C. §3626(a)(1)(A). The three-judge court would have us believe that the early release of 46,000 inmates will not imperil — and will actually improve — public safety. Juris. Statement App., O. T. 2009, No. 09-416, pp. 248a-249a (hereinafter Juris. App.). Common sense and experience counsel greater caution. I would reverse the decision below for three interrelated reasons. First, the three-judge court improperly refused to consider evidence concerning present conditions in the California prison system. Second, the court erred in holding that no remedy short of a massive prisoner release can bring the California system into compliance with the Eighth Amendment. Third, the court gave inadequate weight to the impact of its decree on public safety.I Both the PLRA and general principles concerning injunctive relief dictate that a prisoner release order cannot properly be issued unless the relief is necessary to remedy an ongoing violation. Under the PLRA, a prisoner release may be decreed only if crowding "is the primary cause" of an Eighth Amendment violation and only if no other relief "will remedy" the violation. §3626(a)(3)(E) (emphasis added). This language makes it clear that proof of past violations alone is insufficient to justify a court-ordered prisoner release. Similarly, in cases not governed by the PLRA, we have held that an inmate seeking an injunction to prevent a violation of the Eighth Amendment must show that prison officials are "knowingly and unreasonably disregarding an objectively intolerable risk of harm, and that they will continue to do so ... into the future." Farmer v. Brennan, 511 U. S. 825, 846 (1994). The "deliberate indifference" needed to establish an Eighth Amendment violation must be examined "in light of the prison authorities' current attitudes and conduct," Helling v. McKinney, 509 U. S. 25, 36 (1993), which means "their attitudes and conduct at the time suit is brought and persisting thereafter," Farmer, supra, at 845. For these reasons, the propriety of the relief ordered here cannot be assessed without ascertaining the nature and scope of any ongoing constitutional violations. Proof of past violations will not do; nor is it sufficient simply to establish that some violations continue. The scope of permissible relief depends on the scope of any continuing violations, and therefore it was essential for the three-judge court to make a reliable determination of the extent of any violations as of the time its release order was issued. Particularly in light of the radical nature of its chosen remedy, nothing less than an up-to-date assessment was tolerable. The three-judge court, however, relied heavily on outdated information and findings and refused to permit California to introduce new evidence. Despite evidence of improvement,1 the three-judge court relied on old findings made by the single-judge courts, see Juris. App. 76a-77a, including a finding made 14 years earlier, see id., at 170a (citing Coleman v. Wilson, 912 F. Supp. 1282, 1316, 1319 (ED Cal. 1995)). The three-judge court highlighted death statistics from 2005, see Juris. App. 9a, while ignoring the "significant and continuous decline since 2006," California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2008 Death Reviews 31 (Dec. 2009) (hereinafter 2008 Death Reviews). And the court dwelled on conditions at a facility that has since been replaced. See Juris. App. 19a-20a, 24a, 89a-90a, 94a, 107a, 111a. Prohibiting the State from introducing evidence about conditions as of the date when the prisoner release order was under consideration, id., at 76a-78a, and n. 42, the three-judge court explicitly stated that it would not "evaluate the state's continuing constitutional violations." Id., at 77a. Instead, it based its remedy on constitutional deficiencies that, in its own words, were found "years ago." Ibid.2 The three-judge court justified its refusal to receive up-to-date evidence on the ground that the State had not filed a motion to terminate prospective relief under a provision of the PLRA, §3626(b). See Juris. App. 77a. Today's opinion for this Court endorses that reasoning, ante, at 26. But the State's opportunity to file such a motion did not eliminate the three-judge court's obligation to ensure that its relief was necessary to remedy ongoing violations.3 Moreover, the lower court's reasoning did not properly take into account the potential significance of the evidence that the State sought to introduce. Even if that evidence did not show that all violations had ceased — the showing needed to obtain the termination of relief under §3626(b)--that evidence was highly relevant with respect to the nature and scope of permissible relief.4 The majority approves the three-judge court's refusal to receive fresh evidence based largely on the need for "[o]rderly trial management." Ante, at 26. The majority reasons that the three-judge court had closed the book on the question of constitutional violations and had turned to the question of remedy. Ibid. As noted, however, the extent of any continuing constitutional violations was highly relevant to the question of remedy. The majority also countenances the three-judge court's reliance on dated findings. The majority notes that the lower court considered recent reports by the Special Master and Receiver, ante, at 18-19, but the majority provides no persuasive justification for the lower court's refusal to receive hard, up-to-date evidence about any continuing violations. With the safety of the people of California in the balance, the record on this issue should not have been closed. The majority repeats the lower court's error of reciting statistics that are clearly out of date. The Court notes the lower court's finding that as of 2005 "an inmate in one of California's prisons needlessly dies every six to seven days." See ante, at 9. Yet by the date of the trial before the three-judge court, the death rate had been trending downward for 10 quarters, App. 2257, and the number of likely preventable deaths fell from 18 in 2006 to 3 in 2007, a decline of 83 percent.5 Between 2001 and 2007, the California prison system had the 13th lowest average mortality rate of all 50 state systems.6 The majority highlights past instances in which particular prisoners received shockingly deficient medical care. See ante, at 5, 6-7, 10 (recounting five incidents). But such anecdotal evidence cannot be given undue weight in assessing the current state of the California system. The population of the California prison system (156,000 inmates at the time of trial) is larger than that of many medium-sized cities,7 and an examination of the medical care provided to the residents of many such cities would likely reveal cases in which grossly deficient treatment was provided. Instances of past mistreatment in the California system are relevant, but prospective relief must be tailored to present and future, not past, conditions.II Under the PLRA, a court may not grant any prospective relief unless the court finds that the relief is narrowly drawn, extends no further than necessary to correct the "violation of [a] Federal right, and is the least intrusive means necessary to correct the violation of the Federal right." §3626(a)(1)(A). In addition, the PLRA prohibits the issuance of a prisoner release order unless the court finds "by clear and convincing evidence that ... crowding is the primary cause of the violation of a Federal right" and that "no other relief will remedy the violation of the Federal right." §3626(a)(3)(E). These statutory restrictions largely reflect general standards for injunctive relief aimed at remedying constitutional violations by state and local governments. "The power of the federal courts to restructure the operation of local and state governmental entities is not plenary. ... Once a constitutional violation is found, a federal court is required to tailor the scope of the remedy to fit the nature and extent of the constitutional violation." Dayton Bd. of Ed. v. Brinkman, 433 U. S. 406, 419-420 (1977) (internal quotation marks omitted). Here, the majority and the court below maintain that no remedy short of a massive release of prisoners from the general prison population can remedy the State's failure to provide constitutionally adequate health care. This argument is implausible on its face and is not supported by the requisite clear and convincing evidence. It is instructive to consider the list of deficiencies in the California prison health care system that are highlighted in today's opinion for this Court and in the opinion of the court below. The deficiencies noted by the majority here include the following: " '[e]xam tables and counter tops, where prisoners with ... communicable diseases are treated, [are] not routinely disinfected,' " ante, at 10; medical facilities " 'are in an abysmal state of disrepair,' " ibid.; medications " 'are too often not available when needed,' " ante, at 10-11; " '[b]asic medical equipment is often not available or used,' " ante, at 10; prisons "would 'hire any doctor who had "a license, a pulse and a pair of shoes," ' " ibid.; and medical and mental health staff positions have high vacancy rates, ante, at 20. The three-judge court pointed to similar problems. See Juris. App. 93a-121a (citing, among other things, staffing vacancies, too few beds for mentally ill prisoners, and an outmoded records management system). Is it plausible that none of these deficiencies can be remedied without releasing 46,000 prisoners? Without taking that radical and dangerous step, exam tables and counter tops cannot properly be disinfected? None of the system's dilapidated facilities can be repaired? Needed medications and equipment cannot be purchased and used? Staff vacancies cannot be filled? The qualifications of prison physicians cannot be improved? A better records management system cannot be developed and implemented? I do not dispute that general overcrowding contributes to many of the California system's healthcare problems. But it by no means follows that reducing overcrowding is the only or the best or even a particularly good way to alleviate those problems. Indeed, it is apparent that the prisoner release ordered by the court below is poorly suited for this purpose. The release order is not limited to prisoners needing substantial medical care but instead calls for a reduction in the system's overall population. Under the order issued by the court below, it is not necessary for a single prisoner in the plaintiff classes to be released. Although some class members will presumably be among those who are discharged, the decrease in the number of prisoners needing mental health treatment or other forms of extensive medical care will be much smaller than the total number of prisoners released, and thus the release will produce at best only a modest improvement in the burden on the medical care system. The record bears this out. The Special Master stated dramatically that even releasing 100,000 inmates (two-thirds of the California system's entire inmate population!) would leave the problem of providing mental health treatment "largely unmitigated." App. 487. Similarly, the Receiver proclaimed that " 'those ... who think that population controls will solve California's prison health care problems ... are simply wrong.' " Juris. App. 282a. The State proposed several remedies other than a massive release of prisoners, but the three-judge court, seemingly intent on attacking the broader problem of general overcrowding, rejected all of the State's proposals. In doing so, the court made three critical errors. First, the court did not assess those proposals and other remedies in light of conditions proved to exist at the time the release order was framed. Had more recent evidence been taken into account, a less extreme remedy might have been shown to be sufficient. Second, the court failed to distinguish between conditions that fall below the level that may be desirable as a matter of public policy and conditions that do not meet the minimum level mandated by the Constitution. To take one example, the court criticized the California system because prison doctors must conduct intake exams in areas separated by folding screens rather than in separate rooms, creating conditions that "do not allow for appropriate confidentiality." Id., at 88a. But the legitimate privacy expectations of inmates are greatly diminished, see Hudson v. Palmer, 468 U. S. 517, 525-526 (1984), and this Court has never suggested that the failure to provide private consultation rooms in prisons amounts to cruel and unusual punishment. Third, the court rejected alternatives that would not have provided " 'immediate' " relief. Juris. App. 148a. But nothing in the PLRA suggests that public safety may be sacrificed in order to implement an immediate remedy rather than a less dangerous one that requires a more extended but reasonable period of time. If the three-judge court had not made these errors, it is entirely possible that an adequate but less drastic remedial plan could have been crafted. Without up-to-date information, it is not possible to specify what such a plan might provide, and in any event, that is not a task that should be undertaken in the first instance by this Court. But possible components of such a plan are not hard to identify. Many of the problems noted above plainly could be addressed without releasing prisoners and without incurring the costs associated with a large-scale prison construction program. Sanitary procedures could be improved; sufficient supplies of medicine and medical equipment could be purchased; an adequate system of records management could be implemented; and the number of medical and other staff positions could be increased. Similarly, it is hard to believe that staffing vacancies cannot be reduced or eliminated and that the qualifications of medical personnel cannot be improved by any means short of a massive prisoner release. Without specific findings backed by hard evidence, this Court should not accept the counterintuitive proposition that these problems cannot be ameliorated by increasing salaries, improving working conditions, and providing better training and monitoring of performance. While the cost of a large-scale construction program may well exceed California's current financial capabilities, a more targeted program, involving the repair and perhaps the expansion of current medical facilities (as opposed to general prison facilities), might be manageable. After all, any remedy in this case, including the new programs associated with the prisoner release order and other proposed relief now before the three-judge court, will necessarily involve some state expenditures. Measures such as these might be combined with targeted reductions in critical components of the State's prison population. A certain number of prisoners in the classes on whose behalf the two cases were brought might be transferred to out-of-state facilities. The three-judge court rejected the State's proposal to transfer prisoners to out-of-state facilities in part because the number of proposed transfers was too small. See id., at 160a. See also ante, at 30. But this reasoning rested on the court's insistence on a reduction in the State's general prison population rather than the two plaintiff classes. When the State proposed to make a targeted transfer of prisoners in one of the plaintiff classes (i.e., prisoners needing mental health treatment), one of the District Judges blocked the transfers for fear that the out-of-state facilities would not provide a sufficiently high level of care. See App. 434-440. The District Judge even refused to allow out-of-state transfers for prisoners who volunteered for relocation. See id., at 437. And the court did this even though there was not even an allegation, let alone clear evidence, that the States to which these prisoners would have been sent were violating the Eighth Amendment. The District Judge presumed that the receiving States might fail to provide constitutionally adequate care, but " 'in the absence of clear evidence to the contrary, courts presume that [public officers] have properly discharged their official duties.' " United States v. Armstrong, 517 U. S. 456, 464 (1996) (quoting United States v. Chemical Foundation, Inc., 272 U. S. 1, 14-15 (1926)); Postal Service v. Gregory, 534 U. S. 1, 10 (2001) ("[A] presumption of regularity attaches to the actions of Government agencies"); see also McKune v. Lile, 536 U. S. 24, 51 (2002) (O'Connor, J., concurring in judgment) ("[W]e may assume that the prison is capable of controlling its inmates so that respondent's personal safety is not jeopardized ... , at least in the absence of proof to the contrary").8 Finally, as a last resort, a much smaller release of prisoners in the two plaintiff classes could be considered. Plaintiffs proposed not only a systemwide population cap, but also a lower population cap for inmates in specialized programs. Tr. 2915:12-15 (Feb. 3, 2009). The three-judge court rejected this proposal, and its response exemplified what went wrong in this case. One judge complained that this remedy would be deficient because it would protect only the members of the plaintiff classes. The judge stated:"The only thing is we would be protecting the class members. And maybe that's the appropriate thing to do. I mean, that's what this case is about, but it would be ... difficult for me to say yes, and the hell with everybody else." Id., at 2915:23-2916:2.Overstepping his authority, the judge was not content to provide relief for the classes of plaintiffs on whose behalf the suit before him was brought. Nor was he content to remedy the only constitutional violations that were proved — which concerned the treatment of the members of those classes. Instead, the judge saw it as his responsibility to attack the general problem of overcrowding.III Before ordering any prisoner release, the PLRA commands a court to "give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief." §3626(a)(1)(A). This provision unmistakably reflects Congress' view that prisoner release orders are inherently risky. In taking this view, Congress was well aware of the impact of previous prisoner release orders. The prisoner release program carried out a few years earlier in Philadelphia is illustrative. In the early 1990's, federal courts enforced a cap on the number of inmates in the Philadelphia prison system, and thousands of inmates were set free. Although efforts were made to release only those prisoners who were least likely to commit violent crimes, that attempt was spectacularly unsuccessful. During an 18-month period, the Philadelphia police rearrested thousands of these prisoners for committing 9,732 new crimes. Those defendants were charged with 79 murders, 90 rapes, 1,113 assaults, 959 robberies, 701 burglaries, and 2,748 thefts, not to mention thousands of drug offenses.9 Members of Congress were well aware of this experience.10 Despite the record of past prisoner release orders, the three-judge court in this case concluded that loosing 46,000 criminals would not produce a tally like that in Philadelphia and would actually improve public safety. Juris. App. 248a-249a. In reaching this debatable conclusion, the three-judge court relied on the testimony of selected experts, id., at 248a, and the majority now defers to what it characterizes as the lower court's findings of fact on this controversial public policy issue, ante, at 15, 19-20, 24. This is a fundamental and dangerous error. When a trial court selects between the competing views of experts on broad empirical questions such as the efficacy of preventing crime through the incapacitation of convicted criminals, the trial court's choice is very different from a classic finding of fact and is not entitled to the same degree of deference on appeal. The particular three-judge court convened in this case was "confident" that releasing 46,000 prisoners pursuant to its plan "would in fact benefit public safety." Juris. App. 248a-249a. According to that court, "overwhelming evidence" supported this purported finding. Id., at 232a. But a more cautious court, less bent on implementing its own criminal justice agenda, would have at least acknowledged that the consequences of this massive prisoner release cannot be ascertained in advance with any degree of certainty and that it is entirely possible that this release will produce results similar to those under prior court-ordered population caps. After all, the sharp increase in the California prison population that the three-judge court lamented, see id., at 254a, has been accompanied by an equally sharp decrease in violent crime.11 These California trends mirror similar developments at the national level,12 and "[t]here is a general consensus that the decline in crime is, at least in part, due to more and longer prison sentences."13 If increased incarceration in California has led to decreased crime, it is entirely possible that a decrease in imprisonment will have the opposite effect. Commenting on the testimony of an expert who stated that he could not be certain about the effect of the massive prisoner discharge on public safety, the three-judge court complained that "[s]uch equivocal testimony is not helpful." Id., at 247a. But testimony pointing out the difficulty of assessing the consequences of this drastic remedy would have been valued by a careful court duly mindful of the overriding need to guard public safety. The three-judge court acknowledged that it "ha[d] not evaluated the public safety impact of each individual element" of the population reduction plan it ordered the State to implement. App. to Juris. Statement 3a. The majority argues that the three-judge court nevertheless gave substantial weight to public safety because its order left "details of implementation to the State's discretion." Ante, at 41. Yet the State had told the three-judge court that, after studying possible population reduction measures, it concluded that "reducing the prison population to 137.5% within a two-year period cannot be accomplished without unacceptably compromising public safety." Juris. App. 317a. The State found that public safety required a 5-year period in which to achieve the ordered reduction. Ibid. Thus, the three-judge court approved a population reduction plan that neither it nor the State found could be implemented without unacceptable harm to public safety. And this Court now holds that the three-judge court discharged its obligation to "give substantial weight to any adverse impact on public safety," §3626(a)(1)(A), by deferring to officials who did not believe the reduction could be accomplished in a safe manner. I do not believe the PLRA's public-safety requirement is so trivial. The members of the three-judge court and the experts on whom they relied may disagree with key elements of the crime-reduction program that the State of California has pursued for the past few decades, including "the shift to inflexible determinate sentencing and the passage of harsh mandatory minimum and three-strikes laws." Id., at 254a. And experts such as the Receiver are entitled to take the view that the State should "re-thin[k] the place of incarceration in its criminal justice system," App. 489. But those controversial opinions on matters of criminal justice policy should not be permitted to override the reasonable policy view that is implicit in the PLRA — that prisoner release orders present an inherent risk to the safety of the public.* * * The prisoner release ordered in this case is unprecedented, improvident, and contrary to the PLRA. In largely sustaining the decision below, the majority is gambling with the safety of the people of California. Before putting public safety at risk, every reasonable precaution should be taken. The decision below should be reversed, and the case should be remanded for this to be done. I fear that today's decision, like prior prisoner release orders, will lead to a grim roster of victims. I hope that I am wrong. In a few years, we will see. FOOTNOTESFootnote 1 A similar conclusion was reached by the Little Hoover Commission, a bipartisan and independent state body, which stated that "[o]vercrowded conditions inside the prison walls are unsafe for inmates and staff," Solving California's Corrections Crisis: Time is Running Out 17 (Jan. 2007), and that "California's correctional system is in a tailspin," id., at i. At trial, current and former California prison officials also testified to the degree of overcrowding. Jeanne Woodford, who recently administered California's prison system, stated that " '[o]vercrowding in the [California Department of Corrections and Rehabilitation (CDCR)] is extreme, its effects are pervasive and it is preventing the Department from providing adequate mental and medical health care to prisoners.' " Juris. App. 84a. Matthew Cate, the head of the California prison system, stated that " 'overpopulation makes everything we do more difficult.' " Ibid. And Robin Dezember, chief deputy secretary of Correctional Healthcare Services, stated that "we are terribly overcrowded in our prison system" and "overcrowding has negative effects on everybody in the prison system." Tr. 853, 856. Experts from outside California offered similar assessments. Doyle Wayne Scott, the former head of corrections in Texas, described con-ditions in California's prisons as "appalling," "inhumane," and "unacceptable" and stated that "[i]n more than 35 years of prison work experience, I have never seen anything like it." App. 1337. Joseph Lehman, the former head of correctional systems in Washington, Maine, and Pennsylvania, concluded that "[t]here is no question that California's prisons are overcrowded" and that "this is an emergency situation; it calls for drastic and immediate action." Id., at 1312.Footnote 2 At the time of the three-judge court's decision, 2006 was the most recent year for which the Special Master had conducted a detailed study of suicides in the California prisons. The Special Master later issued an analysis for the year 2007. This report concluded that the 2007 suicide rate was "a continuation of the CDCR's pattern of exceeding the national prison suicide rate." Record in No. 2:90-CV-00520-LKK-JFM (ED/ND Cal.), Doc. 3677, p. 1. The report found that the rate of suicides involving inadequate assessment, treatment, or intervention had risen to 82% and concluded that "[t]hese numbers clearly indicate no improvement in this area during the past several years, and possibly signal a trend of ongoing deterioration." Id., at 12. No detailed study has been filed since then, but in September 2010 the Special Master filed a report stating that "the data for 2010 so far is not showing improvement in suicide prevention." App. 868.Footnote 3 Because plaintiffs do not base their case on deficiencies in care provided on any one occasion, this Court has no occasion to consider whether these instances of delay — or any other particular deficiency in medical care complained of by the plaintiffs — would violate the Constitution under Estelle v. Gamble, 429 U. S. 97, 104-105 (1976), if considered in isolation. Plaintiffs rely on systemwide deficiencies in the provision of medical and mental health care that, taken as a whole, subject sick and mentally ill prisoners in California to "substantial risk of serious harm" and cause the delivery of care in the prisons to fall below the evolving standards of decency that mark the progress of a maturing society. Farmer v. Brennan, 511 U. S. 825, 834 (1994).Footnote 4 In 2007, the last year for which the three-judge court had available statistics, an analysis of deaths in California's prisons found 68 preventable or possibly preventable deaths. California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2007 Death Reviews 18 (Nov. 2008). This was essentially unchanged from 2006, when an analysis found 66 preventable or possibly preventable deaths. Ibid. These statistics mean that, during 2006 and 2007, a preventable or possibly preventable death occurred once every five to six days.Both preventable and possibly preventable deaths involve major lapses in medical care and are a serious cause for concern. In one typical case classified as a possibly preventable death, an analysis revealed the following lapses: "16 month delay in evaluating abnormal liver mass; 8 month delay in receiving regular chemotherapy ... ; multiple providers fail to respond to jaundice and abnormal liver function tests causing 17 month delay in diagnosis." California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2009 Inmate Death Reviews — California Prison Health Care System 12 (Sept. 2010) (hereinafter 2009 Death Reviews). The three-judge court did not have access to statistics for 2008, but in that year the number of preventable or possibly preventable deaths held steady at 66. California Prison Health Care Receivership Corp., K. Imai, Analysis of Year 2008 Death Reviews 9 (Dec. 2009). In 2009, the number of preventable or possibly preventable deaths dropped to 46. 2009 Death Reviews 11, 13. The three-judge court could not have anticipated this development, and it would be inappropriate for this Court to evaluate its significance for the first time on appeal. The three-judge court should, of course, consider this and any other evidence of improved conditions when considering future requests by the State for modification of its order. See infra, at 45-48.Footnote 5 Dr. Craig Haney likewise testified that the State had "significantly underestimated the staffing needed to implement critical portions of the Coleman Program Guide requirements," that "key tasks were omitted when determining staffing workloads," and that estimates were based on "key assumptions" that caused the State to underestimate demand for mental health care. App. 596-597.Footnote 6 For instance, Dr. Pablo Stewart reported that one prisoner was referred to a crisis bed but, "[a]fter learning that the restraint room was not available and that there were no crisis beds open, staff moved [the prisoner] back to his administrative segregation cell without any prescribed observation." App. 736. The prisoner "hanged himself that night in his cell." Ibid.; see also Juris. App. 99a.Footnote 7 Correctional officials at trial described several outbreaks of disease. One officer testified that antibiotic-resistant staph infections spread widely among the prison population and described prisoners "bleeding, oozing with pus that is soaking through their clothes when they come in to get the wound covered and treated." Tr. 601, 604-605. Another witness testified that inmates with influenza were sent back from the infirmary due to a lack of beds and that the disease quickly spread to "more than half " the 340 prisoners in the housing unit, with the result that the unit was placed on lockdown for a week. Id., at 720-721.Footnote 8 The Plata Receiver concluded that those who believed a population reduction would be a panacea were "simply wrong." App. 1054-1055. The Receiver nevertheless made clear that "the time this process will take, and the cost and the scope of intrusion by the Federal Court cannot help but increase, and increase in a very significant manner, if the scope and characteristics of [California prison] overcrowding continue." Id., at 1053. The Coleman Special Master likewise found that a large release of prisoners, without other relief, would leave the violation "largely unmitigated" even though deficiencies in care "are unquestionably exacerbated by overcrowding" and "defendants' ability to provide required mental health services would be enhanced considerably by a reduction in the overall census" of the prisons. App. 486-487.Footnote 9 A program of voluntary transfers by the State would, of course, be less restrictive than an order mandating a reduction in the prison population. In light of the State's longstanding failure to remedy these serious constitutional violations, the three-judge court was under no obligation to consider voluntary population-reduction measures by the State as a workable alternative to injunctive relief.Footnote 10 The former head of correctional systems in Washington, Maine, and Pennsylvania, likewise referred to California's prisons as " 'criminogenic.' " Juris. App. 191a. The Yolo County chief probation officer testified that " 'it seems like [the prisons] produce additional criminal behavior.' " Id., at 190a. A former professor of sociology at George Washington University, reported that California's present recidivism rate is among the highest in the Nation. App. 1246. And the three-judge court noted the report of California's Little Hoover Commission, which stated that " '[e]ach year, California communities are burdened with absorbing 123,000 offenders returning from prison, often more dangerous than when they left.' " Juris. App. 191a.Footnote 11 Philadelphia's experience in the early 1990's with a federal court order mandating reductions in the prison population was less positive, and that history illustrates the undoubted need for caution in this area. One congressional witness testified that released prisoners committed 79 murders and multiple other offenses. See Hearing on S. 3 et al. before the Senate Committee on the Judiciary, 104th Cong., 1st Sess., 45 (1995) (statement of Lynne Abraham, District Attorney of Philadelphia). Lead counsel for the plaintiff class in that case responded that "[t]his inflammatory assertion has never been documented." Id., at 212 (statement of David Richman). The Philadelphia decree was also different from the order entered in this case. Among other things, it "prohibited the City from admitting to its prisons any additional inmates, except for persons charged with, or convicted of, murder, forcible rape, or a crime involving the use of a gun or knife in the commission of an aggravated assault or robbery." Harris v. Reeves, 761 F. Supp. 382, 384-385 (ED Pa. 1991); see also Crime and Justice Research Institute, J. Goldkamp & M. White, Restoring Accountability in Pretrial Release: The Philadelphia Pretrial Release Supervision Experiments 6-8 (1998). The difficulty of determining the precise relevance of Philadelphia's experience illustrates why appellate courts defer to the trier of fact. The three-judge court had the opportunity to hear testimony on population reduction measures in other jurisdictions and to ask relevant questions of informed expert witnesses.Footnote 12 Expanding such community-based measures may require an expenditure of resources by the State to fund new programs or expand existing ones. The State complains that the order therefore requires it to "divert" savings that will be achieved by reducing the prison population and that setting budgetary priorities in this manner is a "severe, unlawful intrusion on the State authority." Brief for Appellants 55. This argument is not convincing. The order does not require the State to use any particular approach to reduce its prison population or allocate its resources.FOOTNOTESFootnote ** Any doubt on this last score, at least as far as prisoner-release orders are concerned, is eliminated by §3626(a)(3)(E) of the statute, which provides that to enter a prisoner-release order the court must find "by clear and convincing evidence that-- (i) crowding is the primary cause of the violation of a Federal right; and (ii) no other relief will remedy the violation of the Federal right."FOOTNOTESFootnote 1 Before requesting the appointment of a three-judge court, the District Court in Coleman recognized "commendable progress" in the State's effort to provide adequate mental health care, Juris. App. 294a, and the District Court in Plata acknowledged that "the Receiver has made much progress since his appointment," id., at 280a. The report of the Special Master to which the Court refers, ante, at 18-19, identifies a "generally positive trend." App. 803. Footnote 2 For this reason, it is simply not the case that "evidence of current conditions ... informed every aspect of the judgment of the three-judge court," as the majority insists, ante, at 25.Footnote 3 Because the Ninth Circuit places the burden on the State to prove the absence of an ongoing violation when it moves to terminate prospective relief, see Gilmore v. California, 220 F. 3d 987, 1007 (CA9 2000), even if the State had unsuccessfully moved to terminate prospective relief under 18 U. S. C. §3626(b), there would still have been no determination that plaintiffs had carried their burden under the PLRA to establish by clear and convincing evidence that a prisoner release order is necessary to correct an ongoing rights violation.Footnote 4 It is also no answer to say, as the Court now does, ante, at 26, that the State had the opportunity to resist the convening of the three-judge court on the ground that there were no unremedied constitutional violations as of that date. See §3626(a)(3)(A)(i). The District Courts granted plaintiffs' motions to convene a three-judge court in 2007, three years before the remedial decree here was issued. Thus, the conditions in the prison system as of the date when the decree was issued were not necessarily the same as those that existed before the three-judge court proceedings began. Moreover, as noted above, even if all of the violations in the system had not been cured at the time of the remedial decree, an accurate assessment of conditions as of that date was essential in order to ensure that the relief did not sweep more broadly than necessary. Footnote 5 2008 Death Reviews 22. The majority elides the improvement by combining likely preventable deaths with those that were "possibly preventable," ante, at 7, n. 4, that is, cases in which "[i]n the judgment of the reviewer," 2008 Death Reviews 3, "it's fifty-fifty that better care would have possibly prevented the death," App. 2277; id., at 2256. As the majority acknowledges, even this class of cases is now dramatically diminished, and the three-judge court must take the current conditions into account when revising its remedy going forward. Ante, at 7, n. 4.Footnote 6 Bureau of Justice Statistics, State Prison Deaths, 2001-2007, available at http://bjs.ojp.usdoj.gov/index.cfm?ty=pbdetail&iid=2093 (Table 13) (all Internet materials as visited May 20, 2011, and available in Clerk of Court's case file); see also App. 2257-2258. California had the 14th lowest " 'average annual illness mortality [rate] per 100,000 state prisoners from 2001 to 2004.' " Juris. App. 125a. According to a 2007 report, state prisoners had a 19 percent lower death rate than the general U. S. adult population as of 2004. Bureau of Justice Statistics, Medical Causes of Death in State Prisons, 2001-2004, p. 1, available at http://bjs.ojp.usdoj.gov/content/pub/pdf/mcdsp04.pdf.Footnote 7 For example, the population of the California prison system exceeds that of Syracuse, New York; Bridgeport, Connecticut; Springfield, Massachusetts; Eugene, Oregon; and Savannah, Georgia.Footnote 8 The Court rejects the State's argument that out-of-state transfers offer a less restrictive alternative to a prisoner release order because "requiring out-of-state transfers itself qualifies as a population limit under the PLRA." Ante, at 29-30. But the PLRA does not apply when the State voluntarily conducts such transfers, as it has sought to do.Footnote 9 Hearing on Prison Reform before the Senate Committee on the Judiciary, 104th Cong., 1st Sess., 49 (1995) (statement of Lynne Abraham, District Attorney of Philadelphia); Hearings before the Subcommittee on Crime of the House Committee on the Judiciary, 104th Cong., 1st Sess., 259 (1995) (same); see also Hearing before the Subcommittee on Crime, Terrorism, and Homeland Security of the House Committee on the Judiciary, 110th Cong., 2d Sess., 31 (2008) (statement of Sarah V. Hart, Assistant District Attorney, Philadelphia District Attorney's Office).Footnote 10 Condemning the inappropriate imposition of prison population caps, Senator Sarbanes cited "the case of Philadelphia, where a court-ordered prison cap has put thousands of violent criminals back on the city's streets, often with disastrous consequences." 141 Cong. Rec. 26549 (1995). Senator Abraham complained that "American citizens are put at risk every day by court decrees ... that cure prison crowding by declaring that we must free dangerous criminals before they have served their time." Id., at 26448. "The most egregious example," he added, "is the city of Philadelphia." Ibid.Footnote 11 From 1992 to 2009, the violent crime rate in California per 100,000 residents fell from 1,119.7 to 472.0 — a decrease of 57.8 percent. Similarly, in the United States from 1992 to 2009, the violent crime rate per 100,000 residents fell from 757.7 to 429.4 — a decrease of 43.3 percent. Dept. of Justice, Federal Bureau of Investigation, Uniform Crime Reporting Statistics, http://www.ucrdatatool.gov.Footnote 12 According to the three-judge court, California's prison population has increased by 750 percent since the mid-1970's. Juris. App. 254a. From 1970 to 2005, the Nation's prison population increased by 700 percent. Public Safety, Public Spending: Forecasting America's Prison Population 2007-2011, 19 Fed. Sent. Rep. 234, 234 (2007).Footnote 13 Paternoster, How Much Do We Really Know About Criminal Deterrence? 100 J. Crim. L. & Criminology 765, 801 (2010) (citing research on this issue).

Respondent Rhinehart is the spiritual leader of a religious group, respondent Aquarian Foundation. In recent years, petitioner newspaper companies published several stories about Rhinehart and the Foundation. A damages action for alleged defamation and invasions of privacy was brought in a Washington state court by respondents (who also include certain members of the Foundation) against petitioners (who also include the authors of the articles and their spouses). During the course of extensive discovery, respondents refused to disclose certain information, including the identity of the Foundation's donors and members. Pursuant to state discovery Rules modeled on the Federal Rules of Civil Procedure, the trial court issued an order compelling respondents to identify all donors who made contributions during the five years preceding the date of the complaint, along with the amounts donated. The court also required respondents to divulge enough membership information to substantiate any claims of diminished membership. However, pursuant to the State's Rule 26(c), the court also issued a protective order prohibiting petitioners from publishing, disseminating, or using the information in any way except where necessary to prepare for and try the case. In seeking the protective order, respondents had submitted affidavits of several Foundation members averring that public release of the information would adversely affect Foundation membership and income and would subject its members to harassment and reprisals. By its terms, the protective order did not apply to information gained by means other than the discovery process. The Washington Supreme Court affirmed both the production order and the protective order, concluding that even if the latter order was assumed to constitute a prior restraint of free expression, the trial court had not violated its discretion in issuing the order.Held: The protective order issued in this case does not offend the First Amendment. Pp. 29-37. (a) In addressing the First Amendment question presented here, it is necessary to consider whether the "practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression" and whether "the limitation of First Amendment freedoms [is] no greater than is necessary or essential to the protection of the particular governmental interest involved." Procunier v. Martinez, . Pp. 31-32. (b) Judicial limitations on a party's ability to disseminate information discovered in advance of trial implicates the First Amendment rights of the restricted party to a far lesser extent than would restraints on dissemination of information in other contexts. Rules authorizing discovery are a matter of legislative grace. A litigant has no First Amendment right of access to information made available only for purposes of trying his suit. Furthermore, restraints placed on discovered information are not a restriction on a traditionally public source of information. Pp. 32-34. (c) Rule 26(c) furthers a substantial governmental interest unrelated to the suppression of expression. Liberal pretrial discovery under the State's Rules has a significant potential for abuse. There is an opportunity for litigants to obtain - incidentally or purposefully - information that not only is irrelevant but if publicly released could be damaging to reputation and privacy. The prevention of such abuse is sufficient justification for the authorization of protective orders. Pp. 34-36. (d) The provision for protective orders in the Washington Rules - conferring broad discretion on the trial court - requires, in itself, no heightened First Amendment scrutiny. The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders. P. 36. (e) In this case, the trial court entered the protective order upon a showing that constituted good cause as required by Rule 26(c). Also, the order is limited to the context of pretrial civil discovery, and does not restrict dissemination if the information is obtained from other sources. It is sufficient for purposes of this Court's decision that the highest court in the State found no abuse of discretion in the trial court's decision to issue a protective order pursuant to a constitutional state law. Pp. 36-37. 98 Wash. 2d 226, 654 P.2d 673, affirmed.POWELL, J., delivered the opinion for a unanimous Court. BRENNAN, J., filed a concurring opinion, in which MARSHALL, J., joined, post, p. 37.Evan L. Schwab argued the cause for petitioners. With him on the briefs were P. Cameron DeVore and Bruce E. H. Johnson. Malcolm L. Edwards argued the cause for respondents. With him on the brief was Charles K. Wiggins.* [Footnote *] James C. Goodale, John G. Koeltl, Burt Neuborne, Charles S. Sims, W. Terry Maguire, Anthony Epstein, Erwin G. Krasnow, Bruce W. Sanford, J. Laurent Scharff, Richard M. Schmidt, Jr., and Donald F. Luke filed a brief for the American Civil Liberties Union et al. as amici curiae.JUSTICE POWELL delivered the opinion of the Court.This case presents the issue whether parties to civil litigation have a First Amendment right to disseminate, in advance of trial, information gained through the pretrial discovery process.IRespondent Rhinehart is the spiritual leader of a religious group, the Aquarian Foundation. The Foundation has fewer than 1,000 members, most of whom live in the State of Washington. Aquarian beliefs include life after death and the ability to communicate with the dead through a medium. Rhinehart is the primary Aquarian medium.In recent years, the Seattle Times and the Walla Walla Union-Bulletin have published stories about Rhinehart and the Foundation. Altogether 11 articles appeared in the newspapers during the years 1973, 1978, and 1979. The five articles that appeared in 1973 focused on Rhinehart and the manner in which he operated the Foundation. They described seances conducted by Rhinehart in which people paid him to put them in touch with deceased relatives and friends. The articles also stated that Rhinehart had sold magical "stones" that had been "expelled" from his body. One article referred to Rhinehart's conviction, later vacated, for sodomy. The four articles that appeared in 1978 concentrated on an "extravaganza" sponsored by Rhinehart at the Walla Walla State Penitentiary. The articles stated that he had treated 1,100 inmates to a 6-hour-long show, during which he gave away between $35,000 and $50,000 in cash and prizes. One article described a "chorus line of girls [who] shed their gowns and bikinis and sang ... ." App. 25a. The two articles that appeared in 1979 referred to a purported connection between Rhinehart and Lou Ferrigno, star of the popular television program, "The Incredible Hulk."IIRhinehart brought this action in the Washington Superior Court on behalf of himself and the Foundation against the Seattle Times, the Walla Walla Union-Bulletin, the authors of the articles, and the spouses of the authors. Five female members of the Foundation who had participated in the presentation at the penitentiary joined the suit as plaintiffs.1 The complaint alleges that the articles contained statements that were "fictional and untrue," and that the defendants - petitioners here - knew, or should have known, they were false. According to the complaint, the articles "did and were calculated to hold [Rhinehart] up to public scorn, hatred and ridicule, and to impeach his honesty, integrity, virtue, religious philosophy, reputation as a person and in his profession as a spiritual leader." Id., at 8a. With respect to the Foundation, the complaint also states: "[T]he articles have, or may have had, the effect of discouraging contributions by the membership and public and thereby diminished the financial ability of the Foundation to pursue its corporate purposes." Id., at 9a. The complaint alleges that the articles misrepresented the role of the Foundation's "choir" and falsely implied that female members of the Foundation had "stripped off all their clothes and wantonly danced naked ... ." Id., at 6a. The complaint requests $14,100,000 in damages for the alleged defamation and invasions of privacy.2 Petitioners filed an answer, denying many of the allegations of the complaint and asserting affirmative defenses.3 Petitioners promptly initiated extensive discovery. They deposed Rhinehart, requested production of documents pertaining to the financial affairs of Rhinehart and the Foundation, and served extensive interrogatories on Rhinehart and the other respondents. Respondents turned over a number of financial documents, including several of Rhinehart's income tax returns. Respondents refused, however, to disclose certain financial information,4 the identity of the Foundation's donors during the preceding 10 years, and a list of its members during that period.Petitioners filed a motion under the State's Civil Rule 37 requesting an order compelling discovery.5 In their supporting memorandum, petitioners recognized that the principal issue as to discovery was respondents'"refusa[l] to permit any effective inquiry into their financial affairs, such as the source of their donations, their financial transactions, uses of their wealth and assets, and their financial condition in general." Record 350. Respondents opposed the motion, arguing in particular that compelled production of the identities of the Foundation's donors and members would violate the First Amendment rights of members and donors to privacy, freedom of religion, and freedom of association. Respondents also moved for a protective order preventing petitioners from disseminating any information gained through discovery. Respondents noted that petitioners had stated their intention to continue publishing articles about respondents and this litigation, and their intent to use information gained through discovery in future articles.In a lengthy ruling, the trial court initially granted the motion to compel and ordered respondents to identify all donors who made contributions during the five years preceding the date of the complaint, along with the amounts donated. The court also required respondents to divulge enough membership information to substantiate any claims of diminished membership. Relying on In re HalkinApp. D.C. 257, 598 F.2d 176 (1979),6 the court refused to issue a protective order. It stated that the facts alleged by respondents in support of their motion for such an order were too conclusory to warrant a finding of "good cause" as required by Washington Superior Court Civil Rule 26(c).7 The court stated, however, that the denial of respondents' motion was "without prejudice to [respondents'] right to move for a protective order in respect to specifically described discovery materials and a factual showing of good cause for restraining defendants in their use of those materials." Record 16.Respondents filed a motion for reconsideration in which they renewed their motion for a protective order. They submitted affidavits of several Foundation members to support their request. The affidavits detailed a series of letters and telephone calls defaming the Foundation, its members, and Rhinehart - including several that threatened physical harm to those associated with the Foundation. The affiants also described incidents at the Foundation's headquarters involving attacks, threats, and assaults directed at Foundation members by anonymous individuals and groups. In general, the affidavits averred that public release of the donor lists would adversely affect Foundation membership and income and would subject its members to additional harassment and reprisals.Persuaded by these affidavits, the trial court issued a protective order covering all information obtained through the discovery process that pertained to "the financial affairs of the various plaintiffs, the names and addresses of Aquarian Foundation members, contributors, or clients, and the names and addresses of those who have been contributors, clients, or donors to any of the various plaintiffs." App. 65a. The order prohibited petitioners from publishing, disseminating, or using the information in any way except where necessary to prepare for and try the case. By its terms, the order did not apply to information gained by means other than the discovery process.8 In an accompanying opinion, the trial court recognized that the protective order would restrict petitioners' right to publish information obtained by discovery, but the court reasoned that the restriction was necessary to avoid the "chilling effect" that dissemination would have on "a party's willingness to bring his case to court." Record 63.Respondents appealed from the trial court's production order, and petitioners appealed from the protective order. The Supreme Court of Washington affirmed both. 98 Wash. 2d 226, 654 P.2d 673 (1982). With respect to the protective order, the court reasoned:"Assuming then that a protective order may fall, ostensibly, at least, within the definition of a `prior restraint of free expression', we are convinced that the interest of the judiciary in the integrity of its discovery processes is sufficient to meet the `heavy burden' of justification. The need to preserve that integrity is adequate to sustain a rule like CR 26(c) which authorizes a trial court to protect the confidentiality of information given for purposes of litigation." Id., at 256, 654 P.2d, at 690.9 The court noted that "[t]he information to be discovered concerned the financial affairs of the plaintiff Rhinehart and his organization, in which he and his associates had a recognizable privacy interest; and the giving of publicity to these matters would allegedly and understandably result in annoyance, embarrassment and even oppression." Id., at 256-257, 654 P.2d, at 690. Therefore, the court concluded, the trial court had not abused its discretion in issuing the protective order.10 The Supreme Court of Washington recognized that its holding conflicts with the holdings of the United States Court of Appeals for the District of Columbia Circuit in In re HalkinApp. D.C. 257, 598 F.2d 176 (1979),11 and applies a different standard from that of the Court of Appeals for the First Circuit in In re San Juan Star Co., 662 F.2d 108 (1981).12 We granted certiorari to resolve the conflict.13 . We affirm.IIIMost States, including Washington, have adopted discovery provisions modeled on Rules 26 through 37 of the Federal Rules of Civil Procedure. F. James & G. Hazard, Civil Procedure 179 (1977).14 Rule 26(b)(1) provides that a party "may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action." It further provides that discovery is not limited to matters that will be admissible at trial so long as the information sought "appears reasonably calculated to lead to the discovery of admissible evidence." Wash. Super. Ct. Civ. Rule 26(b)(1); Trust Fund Services v. Aro Glass Co., 89 Wash. 2d 758, 763, 575 P.2d 716, 719 (1978); cf. 8 C. Wright & A. Miller, Federal Practice and Procedure 2008 (1970).15 The Rules do not differentiate between information that is private or intimate and that to which no privacy interests attach. Under the Rules, the only express limitations are that the information sought is not privileged, and is relevant to the subject matter of the pending action. Thus, the Rules often allow extensive intrusion into the affairs of both litigants and third parties.16 If a litigant fails to comply with a request for discovery, the court may issue an order directing compliance that is enforceable by the court's contempt powers. Wash. Super. Ct. Civ. Rule 37(b).17 Petitioners argue that the First Amendment imposes strict limits on the availability of any judicial order that has the effect of restricting expression. They contend that civil discovery is not different from other sources of information, and that therefore the information is "protected speech" for First Amendment purposes. Petitioners assert the right in this case to disseminate any information gained through discovery. They do recognize that in limited circumstances, not thought to be present here, some information may be restrained. They submit, however:"When a protective order seeks to limit expression, it may do so only if the proponent shows a compelling governmental interest. Mere speculation and conjecture are insufficient. Any restraining order, moreover, must be narrowly drawn and precise. Finally, before issuing such an order a court must determine that there are no alternatives which intrude less directly on expression." Brief for Petitioners 10. We think the rule urged by petitioners would impose an unwarranted restriction on the duty and discretion of a trial court to oversee the discovery process.IVIt is, of course, clear that information obtained through civil discovery authorized by modern rules of civil procedure would rarely, if ever, fall within the classes of unprotected speech identified by decisions of this Court. In this case, as petitioners argue, there certainly is a public interest in knowing more about respondents. This interest may well include most - and possibly all - of what has been discovered as a result of the court's order under Rule 26(b)(1). It does not necessarily follow, however, that a litigant has an unrestrained right to disseminate information that has been obtained through pretrial discovery. For even though the broad sweep of the First Amendment seems to prohibit all restraints on free expression, this Court has observed that "[f]reedom of speech ... does not comprehend the right to speak on any subject at any time." American Communications Assn. v. Douds, . The critical question that this case presents is whether a litigant's freedom comprehends the right to disseminate information that he has obtained pursuant to a court order that both granted him access to that information and placed restraints on the way in which the information might be used. In addressing that question it is necessary to consider whether the "practice in question [furthers] an important or substantial governmental interest unrelated to the suppression of expression" and whether "the limitation of First Amendment freedoms [is] no greater than is necessary or essential to the protection of the particular governmental interest involved." Procunier v. Martinez, ; see Brown v. Glines, ; Buckley v. Valeo, .AAt the outset, it is important to recognize the extent of the impairment of First Amendment rights that a protective order, such as the one at issue here, may cause. As in all civil litigation, petitioners gained the information they wish to disseminate only by virtue of the trial court's discovery processes. As the Rules authorizing discovery were adopted by the state legislature, the processes thereunder are a matter of legislative grace. A litigant has no First Amendment right of access to information made available only for purposes of trying his suit. Zemel v. Rusk, ("The right to speak and publish does not carry with it the unrestrained right to gather information"). Thus, continued court control over the discovered information does not raise the same specter of government censorship that such control might suggest in other situations. See In re HalkinApp. D.C., at 287, 598 F.2d, at 206-207 (Wilkey, J., dissenting).18 Moreover, pretrial depositions and interrogatories are not public components of a civil trial.19 Such proceedings were not open to the public at common law, Gannett Co. v. DePasquale, , and, in general, they are conducted in private as a matter of modern practice. See id., at 396 (BURGER, C. J., concurring); Marcus, Myth and Reality in Protective Order Litigation, 69 Cornell L. Rev. 1 (1983). Much of the information that surfaces during pretrial discovery may be unrelated, or only tangentially related, to the underlying cause of action. Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.Finally, it is significant to note that an order prohibiting dissemination of discovered information before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny. See Gannett Co. v. DePasquale, supra, at 399 (POWELL, J., concurring). As in this case, such a protective order prevents a party from disseminating only that information obtained through use of the discovery process. Thus, the party may disseminate the identical information covered by the protective order as long as the information is gained through means independent of the court's processes. In sum, judicial limitations on a party's ability to disseminate information discovered in advance of trial implicates the First Amendment rights of the restricted party to a far lesser extent than would restraints on dissemination of information in a different context. Therefore, our consideration of the provision for protective orders contained in the Washington Civil Rules takes into account the unique position that such orders occupy in relation to the First Amendment.BRule 26(c) furthers a substantial governmental interest unrelated to the suppression of expression. Procunier, supra, at 413. The Washington Civil Rules enable parties to litigation to obtain information "relevant to the subject matter involved" that they believe will be helpful in the preparation and trial of the case. Rule 26, however, must be viewed in its entirety. Liberal discovery is provided for the sole purpose of assisting in the preparation and trial, or the settlement, of litigated disputes. Because of the liberality of pretrial discovery permitted by Rule 26(b)(1), it is necessary for the trial court to have the authority to issue protective orders conferred by Rule 26(c). It is clear from experience that pretrial discovery by depositions and interrogatories has a significant potential for abuse.20 This abuse is not limited to matters of delay and expense; discovery also may seriously implicate privacy interests of litigants and third parties.21 The Rules do not distinguish between public and private information. Nor do they apply only to parties to the litigation, as relevant information in the hands of third parties may be subject to discovery.There is an opportunity, therefore, for litigants to obtain - incidentally or purposefully - information that not only is irrelevant but if publicly released could be damaging to reputation and privacy. The government clearly has a substantial interest in preventing this sort of abuse of its processes. Cf. Herbert v. Lando, ; Gumbel v. Pitkin, . As stated by Judge Friendly in International Products Corp. v. Koons, 325 F.2d 403, 407-408 (CA2 1963), "[w]hether or not the Rule itself authorizes [a particular protective order] ... we have no question as to the court's jurisdiction to do this under the inherent `equitable powers of courts of law over their own process, to prevent abuses, oppression, and injustices'" (citing Gumbel v. Pitkin, supra). The prevention of the abuse that can attend the coerced production of information under a State's discovery rule is sufficient justification for the authorization of protective orders.22 CWe also find that the provision for protective orders in the Washington Rules requires, in itself, no heightened First Amendment scrutiny. To be sure, Rule 26(c) confers broad discretion on the trial court to decide when a protective order is appropriate and what degree of protection is required. The Legislature of the State of Washington, following the example of the Congress in its approval of the Federal Rules of Civil Procedure, has determined that such discretion is necessary, and we find no' reason to disagree. The trial court is in the best position to weigh fairly the competing needs and interests of parties affected by discovery.23 The unique character of the discovery process requires that the trial court have substantial latitude to fashion protective orders.VThe facts in this case illustrate the concerns that justifiably may prompt a court to issue a protective order. As we have noted, the trial court's order allowing discovery was extremely broad. It compelled respondents - among other things - to identify all persons who had made donations over a 5-year period to Rhinehart and the Aquarian Foundation, together with the amounts donated. In effect the order would compel disclosure of membership as well as sources of financial support. The Supreme Court of Washington found that dissemination of this information would "result in annoyance, embarrassment and even oppression." 98 Wash. 2d, at 257, 654 P.2d, at 690. It is sufficient for purposes of our decision that the highest court in the State found no abuse of discretion in the trial court's decision to issue a protective order pursuant to a constitutional state law. We therefore hold that where, as in this case, a protective order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of pretrial civil discovery, and does not restrict the dissemination of the information if gained from other sources, it does not offend the First Amendment.24 The judgment accordingly is Affirmed.

Petitioner Securities Investor Protection Corp. (SIPC) was established by Congress under the Securities Investor Protection Act of 1970 (SIPA) as a nonprofit membership corporation, to provide, inter alia, financial relief to the customers of failing broker-dealers with whom the customers had left cash or securities on deposit. The SIPA creates procedures for the orderly liquidation of financially troubled member firms under which the SIPC is required by assessing members to maintain a fund for customer protection. The SIPC may file an application with a court for a decree initiating liquidation proceedings if it determines that a member has failed or is in danger of failing to meet its obligations to customers and that any one of five specified conditions indicating financial difficulty exist, and the filing of the application vests the court with exclusive jurisdiction over the member and its property. If the court finds the existence of a specified condition, it must grant the application, issue the decree, and appoint the SIPC's designee as trustee to liquidate the business, and the SIPC is obligated, if necessary, to advance funds to meet certain customer claims. The Securities and Exchange Commission (SEC) is given "plenary authority" to supervise the SIPC and is specifically authorized to apply to a district court for an order requiring the SIPC to discharge its statutory obligations. This action was brought by respondent receiver appointed to wind up the affairs of Guaranty Bond, an insolvent registered broker-dealer, to compel the SIPC to exercise its statutory authority for the benefit of Guaranty Bond's customers. The District Court denied relief. The Court of Appeals reversed. Held: Customers of failing broker-dealers have no implied right of action under the SIPA to compel the SIPC to act for their benefit, the SEC's statutory authority to compel the SIPC to discharge its obligations being the exclusive means by which the SIPC can be forced to act. Pp. 418-425. (a) The express statutory provision for one form of proceeding ordinarily implies that no other enforcement means was intended by the legislature, and here the SIPA's legislative history was entirely consonant with the implication of the statutory language that no private right of action was intended. Cf. Passenger Corp. v. Passengers Assn., . Pp. 418-420. (b) The overall structure and purpose of the SIPC scheme are incompatible with an implied private right of action, which might well precipitate liquidations that the SIPC, which treats that approach as a last resort, might be able to avoid. Pp. 420-423. (c) The SIPA contains no standards of conduct that a private action could implement. J. I. Case Co. v. Borak, ; Allen v. State Board of Elections, , distinguished. Pp. 423-425. 496 F.2d 145, reversed and remanded.MARSHALL, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., dissented.Wilfred R. Caron argued the cause for petitioner. With him on the briefs was Theodore H. Focht.W. Ovid Collins, Jr., argued the cause and filed a brief for respondent Barbour. Solicitor General Bork, William L. Patton, Lawrence E. Nerheim, and David Ferber filed briefs for respondent Securities and Exchange Commission.MR. JUSTICE MARSHALL delivered the opinion of the Court.The Securities Investor Protection Corp. (SIPC) was established by Congress as a nonprofit membership corporation for the purpose, inter alia, of providing financial relief to the customers of failing broker-dealers with whom they had left cash or securities on deposit. The question presented by this case is whether such customers have an implied private right of action under the Securities Investor Protection Act of 1970 (Act or SIPA), 84 Stat. 1636, 15 U.S.C. 78aaa et seq., to compel the SIPC to exercise its statutory authority for their benefit.IIn December 1970 the Securities and Exchange Commission (SEC) filed a complaint in District Court against Guaranty Bond and Securities Corp., a registered broker-dealer, to enjoin continued violation of the Commission's net capital and other rules. On January 6, 1971, the District Court issued a preliminary injunction, and on January 29 it granted the Commission's motion for appointment of a receiver to wind up the affairs of Guaranty Bond. James C. Barbour (hereafter respondent) was appointed receiver.On April 6, 1972, respondent, alleging that customers of Guaranty Bond would sustain a loss at least equal to the costs of administering the receivership, obtained from the court an order directing the SEC and SIPC to show cause "why the remedies afforded by the [SIPA] should not be made available in this proceeding." In its answer the SEC took the position that respondent had not demonstrated that Guaranty's customers would in fact sustain any loss since it appeared that the receiver would have a cause of action for damages or restitution against Guaranty's parent company and principles. The SIPC, on the other hand, challenged the receiver's standing to maintain an action to compel its intervention and, in direct opposition to the position of the SEC, argued that Guaranty's insolvency prior to the December 30, 1970, date on which the SIPA took effect meant that application of the Act to this case would give it an unlawful retroactive effect.The District Court upheld the receiver's right of action, but denied relief on the ground that Guaranty's hopeless insolvency prior to the effective date of the SIPA rendered the Act inapplicable. The Court of Appeals for the Sixth Circuit reversed. Since Guaranty had conducted 101 transactions after December 30, and the SEC did not move to prevent its carrying on business as a broker-dealer until January 6, it held that Guaranty qualified as a broker-dealer on the effective date of the Act. The court then rejected the SIPC's argument that the provision for SEC enforcement actions to compel the SIPC to perform its functions was meant to be exclusive of such actions by protected customers or their representative, and remanded the case for further proceedings. We granted certiorari, limited to the questions whether customers have an implied right of action to compel the SIPC to act and, if so, whether a receiver has standing to maintain it. . Since we now reverse the Court of Appeals on the ground that no implied right of action exists, we do not address the second question.IIFollowing a period of great expansion in the 1960's, the securities industry experienced a business contraction that led to the failure or instability of a significant number of brokerage firms. Customers of failed firms found their cash and securities on deposit either dissipated or tied up in lengthy bankruptcy proceedings. In addition to its disastrous effects on customer assets and investor confidence, this situation also threatened a "domino effect" involving otherwise solvent brokers that had substantial open transactions with firms that failed. Congress enacted the SIPA to arrest this process, restore investor confidence in the capital markets, and upgrade the financial responsibility requirements for registered brokers and dealers. S. Rep. No. 91-1218, pp. 2-4 (1970); H. R. Rep. No. 91-1613, pp. 2-4 (1970).The Act apportions responsibility for these tasks among the SEC, the securities industry self-regulatory organizations, and the SIPC, a nonprofit, private membership corporation to which most registered brokers and dealers are required to belong. 15 U.S.C. 78ccc. Most important for present purposes, the Act creates a new form of liquidation proceeding, applicable only to member firms, designed to accomplish the completion of open transactions and the speedy return of most customer property.To this end, the SIPC is required to establish and maintain a fund for customer protection by laying assessments on the annual gross revenues of its members. The SEC and the securities industry self-regulatory organizations are required to notify the SIPC whenever it appears that a member is in or approaching financial difficulty. If the SIPC determines that a member has failed or is in danger of failing to meet its obligations to customers, and finds any one of five specified conditions suggestive of financial irresponsibility, then it "may apply to any court of competent jurisdiction ... for a decree adjudicating that customers of such member are in need of the protection provided by [the Act]." 78eee (a) (2).The mere filing of an SIPC application gives the court in which it is filed exclusive jurisdiction over the member and its property, wherever located, and requires the court to stay "any pending bankruptcy, mortgage foreclosure, equity receivership, or other proceeding to reorganize, conserve, or liquidate the [member] or its property and any other suit against any receiver, conservator, or trustee of the [member] or its property." 78eee (b) (2). If the SEC has pending any action against the member, it may, with the Commission's consent, be combined with the SIPC proceeding. If no such action is pending, the SEC may intervene as a party to the SIPC proceeding.If the court finds any of the five conditions on which an SIPC application may be based, it must grant the application and issue the decree, and appoint as trustee for the liquidation of the business and as attorney for the trustee, "such persons as SIPC shall specify." 78eee (b) (1), (3).The trustee is empowered and directed by the Act to return customer property, complete open transactions, enforce rights of subrogation, and liquidate the business of the member, 78fff (a); he is not empowered to reorganize or rehabilitate the business. The SIPC is required to advance him such sums as are necessary to complete open transactions, and to accomplish the return of customer property up to a value of $50,000. 78fff (f).The role of the SEC in this scheme, insofar as relevant to the present case, is one of "plenary authority" to supervise the SIPC. S. Rep. No. 91-1218, supra, at 1; see H. R. Rep. No. 91-1613, supra, at 12. For example, it may disapprove in whole or in part any bylaw or rule adopted by the Board of Directors of the SIPC, or require the adoption of any rule it deems appropriate, in order to promote the public interest and the purposes of the Act. 15 U.S.C. 78ccc (e). It may inspect and examine the SIPC's records and require that any information it deems appropriate be furnished to it, and it receives the corporation's annual report for inspection and transmission, with its comments, to the President and Congress. 78ggg (c). It may participate in any liquidation proceeding initiated by the SIPC, but even more important, 7 (b) of the Act, 78ggg (b), provides: "Enforcement of actions. - In the event of the refusal of SIPC to commit its funds or otherwise to act for the protection of customers of any member of SIPC, the Commission may apply to the district court of the United States in which the principal office of SIPC is located for an order requiring SIPC to discharge its obligations under [the Act] and for such other relief as the court may deem appropriate to carry out the purposes of [the Act]." It is against this background relationship between the SIPC and the SEC that we must approach the question whether, in addition to the Commission, a member's customers or their representative may seek in district court to compel the SIPC "to commit its funds or otherwise to act for the protection" of such customers.IIIThe respondent contends that since the SIPA does not in terms preclude a private cause of action at the instance of a member broker's customers, and since such customers are the intended beneficiaries of the Act, the Court should imply a right of action by which customers can compel the SIPC to discharge its obligations to them. As we said only last Term in analyzing a similar contention: "It goes without saying ... that the inference of such a private cause of action not otherwise authorized by the statute must be consistent with the evident legislative intent and, of course, with the effectuation of the purposes intended to be served by the Act." Passenger Corp. v. Passengers Assn., (hereinafter Amtrak).In Amtrak itself the petitioner was a corporation created by Congress to assume from private railroads certain intercity rail passenger service responsibilities. The respondent passenger association brought an action to enjoin the discontinuance of a particular service as announced by the corporation pursuant to its authority under 404 (b) (2) of the Rail Passenger Service Act of 1970 (Amtrak Act), 45 U.S.C. 564 (b) (2). That Act made express provision for suits against Amtrak to enforce its duties and obligations only "upon petition of the Attorney General of the United States or, in a case involving a labor agreement, upon petition of any employee affected" by the agreement. 45 U.S.C. 547 (a). There, as here, the plaintiff-respondent argued that statutory authorization for one type of action against the congressionally created corporation did not preclude another at the instance of the intended beneficiaries of the law.The Court's analysis of the claim in Amtrak began with the observation that express statutory provision for one form of proceeding ordinarily implies that no other means of enforcement was intended by the Legislature. That implication would yield, however, to "clear contrary evidence of legislative intent," 414 U.S., at 458, for which we turned to the legislative history and the overall structure of the Amtrak Act.Inspection revealed that the legislative history of the Amtrak Act was entirely consonant with the implication of the statutory language that no private right of action was intended.1 The general structure and purpose of the Act gave further support to that conclusion. Congress had expected that, in creating an economically viable rail passenger system, some rail service would have to be discontinued by Amtrak; it had provided an efficient and expeditious means to that end, which seemed incompatible with an intent to allow a private action by any passenger affected by a discontinuance decision.2 Nor would the absence of a private right of action leave Amtrak free to disregard the public interest in its decisionmaking. In addition to investing the Attorney General with "authority to police the Amtrak system and to enforce the various duties and obligations imposed by the Act" by court action, Congress provided for "substantial scrutiny" over Amtrak's operations by requiring it to make periodic reports to Congress and the President and to open its books to the Comptroller General for auditing. 414 U.S., at 464.The similarities between the present case and Amtrak are undeniable and for the respondent, we think, insurmountable. As with Amtrak, so with the SIPC, Congress has created a corporate entity to solve a public problem; it has provided for substantial supervision of its operations by an agency charged with protection of the public interest - here the SEC - and for enforcement by that agency in court of the obligations imposed upon the corporation. The corporation is required to report to Congress and the President, and to open its books and records to the SEC and the Comptroller General. Further, Congress has chartered the SIPC, unlike Amtrak, as a nonprofit corporation, and it has put its direction in the hands of a publicly chosen board of directors.Beyond the inference to be drawn from the structure of the SIPC, there is no extrinsic evidence that Congress intended to allow an action such as that before us.3 As the respondent concedes, there is no indication in the legislative history of the SIPA that Congress ever contemplated a private right of action parallel to that expressly given to the SEC. Additionally, as in Amtrak, it is clear that the overall structure and purpose of the SIPC scheme are incompatible with such an implied right.Congress' primary purpose in enacting the SIPA and creating the SIPC was, of course, the protection of investors. It does not follow, however, that an implied right of action by investors who deem themselves to be in need of the Act's protection, is either necessary to or indeed capable of furthering that purpose.The SIPC properly treats an application for the appointment of a receiver and liquidation of a brokerage firm as a last resort. It maintains an early-warning system and monitors the affairs of any firm that it is given reason to believe may be in danger of failure. Its experience to date demonstrates that more often than not an endangered firm will avoid collapse by infusion of new capital or merger with a stronger firm.4 Even failing those alternatives, a firm may be able to liquidate under the supervision of one of the self-regulatory organizations, or the district court, without danger of loss to customers. The SIPC's policy, therefore, is to defer intervention "until there appear[s] to be no reasonable doubt that customers would need the protection of the Act." SIPC 1973 Annual Report 7 (1974). By this policy, the SIPC avoids unnecessarily engendering the costs of precipitate liquidations - the costs not only of administering the liquidation, but also of customer illiquidity and additional loss of confidence in the capital markets - without sacrifice of any customer protection that may ultimately prove necessary. A customer, by contrast, cannot be expected to consider, or have adequate information to consider, these public interests in timing his decision to apply to the courts.The respondent in this case does not, of course, claim any right to make the decision that a firm should be liquidated; the Act makes that a judicial decision. He seeks only the right to ask the District Court to make that decision when both the SIPC and the SEC have refused or simply failed to do so. In practical effect, however, the difference is slight. Except with respect to the solidest of houses, the mere filing of an action predicated upon allegations of financial insecurity might often prove fatal.5 Other customers could not be expected to leave their cash and securities on deposit, nor other brokers to initiate new transactions that the firm might not be able to cover when due if a receiver is appointed, nor would suppliers be likely to continue dealing with such a firm. These consequences are too grave, and when unnecessary, too inimical to the purposes of the Act, for the Court to impute to Congress an intent to grant to every member of the investing public control over their occurrence. On the contrary, they seem to be the very sorts of considerations that motivated Congress to put the SIPC in the hands of a public board of directors, responsible to an agency experienced in regulation of the securities markets.6 We need not pause long over the distinctions between this case and those, such as J. I. Case Co. v. Borak, , and Allen v. State Board of Elections, , in which the Court held that an implied private cause of action was maintainable.In J. I. Case a stockholder sought damages against his corporation for its alleged misrepresentations, violative of 14 (a) of the Securities Exchange Act of 1934, in soliciting proxy votes for the approval of a merger. In light of the "broad remedial purposes" of the Act and the SEC's representation that private enforcement was necessary to effectuate those purposes, the Court held that the action for damages could be maintained. The Court first concluded that it was "clear that private parties have a right under 27 [of the Act] to bring suit for violation of 14 (a)," since 27 specifically granted the district courts jurisdiction over "`all suits in equity and actions at law brought to enforce any liability or duty created'" under the Act. 377 U.S., at 430-431. The more difficult question was whether the private parties, once in court, could seek damages as well as equitable relief. On this point, the Court agreed with the SEC that private enforcement of the proxy rules was a necessary supplement to SEC enforcement. Since there was no contrary indication from Congress, the Court so held, relying on the statement from Bell v. Hood, , that "where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done."Unlike the Securities Exchange Act, the SIPA contains no standards of conduct that a private action could help to enforce, and it contains no general grant of jurisdiction to the district courts. As in Amtrak, a private right of action under the SIPA would be consistent neither with the legislative intent, nor with the effectuation of the purposes it is intended to serve.The Allen case arose under the Voting Rights Act of 1965. The question there was whether a private citizen could sue to set aside a state or local election law on the ground of its repugnancy to the Act. The federal statute provided that the Attorney General may bring such suits, but was silent as to the rights of others. It was clear to the Court - and to the Attorney General - that the Act would be practically unenforceable against the many local governments subject to its strictures if only the Attorney General were authorized to sue. We thus found it "consistent with the broad purpose of the Act to allow the individual citizen standing to insure that his city or county government complies with" its requirements. 393 U.S., at 557.There is not the slightest reason to think that the SIPA, in contrast to the Voting Rights Act, imposes such burdens on the parties charged with its administration that Congress must either have intended their efforts to be supplemented by those of private investors or enacted a statute incapable of achieving its purpose. Instead of enlisting the aid of investors in achieving that purpose, Congress imposed upon the SEC, the exchanges, and the self-regulatory organizations the obligation to report to the SIPC any situation that might call for its intervention.For these reasons we are unable to agree with the proposition that the customers of a member broker may sue to compel the SIPC to perform its statutory functions.7 The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court with instructions that the receiver's petition for an order to show cause be dismissed. It is so ordered.MR. JUSTICE DOUGLAS dissents.

Air Force regulations require members of that service to obtain approval from their commanders before circulating petitions on Air Force bases. Respondent Air Force Reserve officer was removed from active duty for distributing on an Air Force base petitions to Members of Congress and the Secretary of Defense, which complained about Air Force grooming standards, without having obtained approval of the base commander as required by the regulations. Respondent then brought suit in District Court challenging the validity of the regulations. That court granted summary judgment for respondent, declaring the regulations facially invalid, and the Court of Appeals affirmed.Held: The regulations are not invalid on their face. Pp. 353-361. (a) Such regulations do not violate the First Amendment. Greer v. Spock, . They protect a substantial Government interest unrelated to the suppression of free expression - the interest in maintaining the respect for duty and discipline so vital to military effectiveness - and restrict speech no more than is reasonably necessary to protect such interest. Since a military commander is charged with maintaining morale, discipline, and readiness, he must have authority over the distribution of materials that could affect adversely these essential attributes of an effective military force. Pp. 353-358. (b) Nor do the regulations violate 10 U.S.C. 1034, which proscribes unwarranted restrictions on a serviceman's right to communicate with a Member of Congress. As 1034's legislative history makes clear, Congress enacted the statute to ensure that an individual member of the Armed Services could write to his elected representatives without sending his communication through official channels, and not to protect the circulation of collective petitions within a military base. Permitting an individual serviceman to submit a petition directly to any Member of Congress serves 1034's legislative purpose without unnecessarily endangering a commander's ability to preserve morale and good order among his troops. Pp. 358-361. 586 F.2d 675, reversed.POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., WHITE, BLACKMUN, and REHNQUIST, JJ., joined. BRENNAN, J., filed a dissenting opinion, post, p. 361. STEWART, J., filed a dissenting opinion in which BRENNAN, J., joined, post, p. 374. STEVENS, J., filed a dissenting opinion, post, p. 378. MARSHALL, J., took no part in the consideration or decision of the case.Kent L. Jones argued the cause pro hac vice for petitioners. With him on the briefs were Solicitor General McCree, Assistant Attorney General Babcock, and Robert E. Kopp.David M. Cobin, by appointment of the Court, , argued the cause for respondent. With him on the brief was Melvin K. Dayley.MR. JUSTICE POWELL delivered the opinion of the Court.This case involves challenges to United States Air Force regulations that require members of the service to obtain approval from their commanders before circulating petitions on Air Force bases. The first question is whether the regulations violate the First Amendment. The second question is whether prohibiting the unauthorized circulation of petitions to Members of Congress violates 10 U.S.C. 1034, which proscribes unwarranted restrictions on a serviceman's right to communicate with a Member of Congress.IThe Air Force regulations recognize that Air Force personnel have the right to petition Members of Congress and other public officials. Air Force Reg. 30-1 (9) (1971). The regulations, however, prohibit "any person within an Air Force facility" and "any [Air Force] member ... in uniform or ... in a foreign country" from soliciting signatures on a petition without first obtaining authorization from the appropriate commander. Ibid.1 They also provide that "[n]o member of the Air Force will distribute or post any printed or written material ... within any Air Force installation without permission of the commander... ." Air Force Reg. 35-15 (3) (a) (1) (1970). The commander can deny permission only if he determines that distribution of the material would result in "a clear danger to the loyalty, discipline, or morale of members of the Armed Forces, or material interference with the accomplishment of a military mission... ." Id., 35-15 (3) (a) (2).2 Albert Glines was a captain in the Air Force Reserves. While on active duty at the Travis Air Force Base in California, he drafted petitions to several Members of Congress and to the Secretary of Defense complaining about the Air Force's grooming standards.3 Aware that he needed command approval in order to solicit signatures within a base, Glines at first circulated the petitions outside his base. During a routine training flight through the Anderson Air Force Base in Guam, however, Glines gave the petitions to an Air Force sergeant without seeking approval from the base commander. The sergeant gathered eight signatures before military authorities halted the unauthorized distribution. Glines' commander promptly removed him from active duty, determined that he had failed to meet the professional standards expected of an officer, and reassigned him to the standby reserves. Glines then brought suit in the United States District Court for the Northern District of California claiming that the Air Force regulations requiring prior approval for the circulation of petitions violated the First Amendment and 10 U.S.C. 1034.4 The court granted Glines' motion for summary judgment and declared the regulations facially invalid. Glines v. Wade, 401 F. Supp. 127 (1975).5 The Court of Appeals for the Ninth Circuit affirmed the finding of facial invalidity. Glines v. Wade, 586 F.2d 675 (1978).6 Following its decision in an earlier case involving collective petitions to Members of Congress, the court first determined that the regulations violated 10 U.S.C. 1034.7 The statute prohibits any person from restricting a serviceman's communication with Congress "unless the communication is unlawful or violates a regulation necessary to the security of the United States." The Air Force regulations against unauthorized petitioning on any base did not satisfy the statutory standard, the court concluded, because the Government had not shown that such restraints on servicemen in Guam were necessary to the national security. 586 F.2d, at 679. Since 1034 did not cover Glines' petition to the Secretary of Defense, the court next considered whether the regulations violated the First Amendment. The court acknowledged that requirements of military discipline could justify otherwise impermissible restrictions on speech. It held, however, that the Air Force regulations are unconstitutionally overbroad because they might allow commanders to suppress "virtually all controversial written material." 586 F.2d, at 681. Such restrictions the court concluded, "exceed anything essential to the government's interests." Ibid. We granted certiorari, , and we now reverse.IIIn Greer v. Spock, , MR. JUSTICE STEWART wrote for the Court that "nothing in the Constitution ... disables a military commander from acting to avert what he perceives to be a clear danger to the loyalty, discipline, or morale of troops on the base under his command." In that case, civilians who wished to distribute political literature on a military base challenged an Army regulation substantially identical to the Air Force regulations now at issue. See id., at 831, and n. 2. The civilians claimed that the Army regulation was an unconstitutional prior restraint on speech, invalid on its face. We disagreed. We recognized that a base commander may prevent the circulation of material that he determines to be a clear threat to the readiness of his troops. See id., at 837-839. We therefore sustained the Army regulation. Id., at 840.8 For the same reasons, we now uphold the Air Force regulations.9 These regulations, like the Army regulation in Spock, protect a substantial Government interest unrelated to the suppression of free expression. See Procunier v. Martinez, . The military is, "by necessity, a specialized society separate from civilian society." Parker v. Levy, . Military personnel must be ready to perform their duty whenever the occasion arises. Ibid. To ensure that they always are capable of performing their mission promptly and reliably, the military services "must insist upon a respect for duty and a discipline without counterpart in civilian life." Schlesinger v. Councilman, ; see Department of Air Force v. Rose, ."`Speech that is protected in the civil population may ... undermine the effectiveness of response to command.'" Parker v. Levy, supra, at 759, quoting United States v. Priest, 21 U.S.C. M. A. 564, 570, 45 C. M. R. 338, 344 (1972). Thus, while members of the military services are entitled to the protections of the First Amendment, "the different character of the military community and of the military mission requires a different application of those protections." Parker v. Levy, 417 U.S., at 758. The rights of military men must yield somewhat "`to meet certain overriding demands of discipline and duty... .'" Id., at 744, quoting Burns v. Wilson, (plurality opinion).10 Speech likely to interfere with these vital prerequisites for military effectiveness therefore can be excluded from a military base. Spock, 424 U.S., at 840; id., at 841 (BURGER, C. J., concurring); id., at 848 (POWELL, J., concurring). Like the Army regulation that we upheld in Spock, the Air Force regulations restrict speech no more than is reasonably necessary to protect the substantial governmental interest. See Procunier v. Martinez, supra. Both the Army and the Air Force regulations implement the policy set forth in Department of Defense (DOD) Directive 1325.6 (1969).11 That directive advises commanders to preserve servicemen's "right of expression ... to the maximum extent possible, consistent with good order and discipline and the national security." Id., § II. Thus, the regulations in both services prevent commanders from interfering with the circulation of any materials other than those posing a clear danger to military loyalty, discipline, or morale. Air Force Reg. 35-15 (3) (a) (2) (1970); Army Reg. 210-10, § 5-5 (c) (1970); see DOD Dir. 1325.6, § III (A) (1) (1969). Indeed, the Air Force regulations specifically prevent commanders from halting the distribution of materials that merely criticize the Government or its policies. Air Force Reg. 35-15 (3) (a) (4) (1970); see DOD Dir. 1325.6, § III (A) (3) (1969). Under the regulations, Air Force commanders have no authority whatever to prohibit the distribution of magazines and newspapers through regular outlets such as the post exchange newsstands. Air Force Reg. 35-15 (3) (a) (1) (1970); see DOD Dir. 1325.6, § III (A) (1) (1969).12 Nor may they interfere with the "[d]istribution of publications and other materials through the United States mail... ." Air Force Reg. 35-15 (3) (a) (1) (1970). The Air Force regulations also require any commander who prevents the circulation of materials within his base to notify his superiors of that decision. Air Force Reg. 35-15 (3) (a) (2) (1970); see Army Reg. 210-10, § 5-5 (d) (1970). Spock held that such limited restrictions on speech within a military base do not violate the First Amendment. 424 U.S., at 840; id., at 848 (POWELL, J., concurring).Spock also established that a regulation requiring members of the military services to secure command approval before circulating written materials within a military base is not invalid on its face. Id., at 840.13 Without the opportunity to review materials before they are dispersed throughout his base, a military commander could not avert possible disruptions among his troops. Since a commander is charged with maintaining morale, discipline, and readiness, he must have authority over the distribution of materials that could affect adversely these essential attributes of an effective military force.14 "[T]he accuracy and effect of a superior's command depends critically upon the specific and customary reliability of [his] subordinates, just as the instinctive obedience of subordinates depends upon the unquestioned specific and customary reliability of the superior." Department of Air Force v. Rose, 425 U.S., at 368. Because the right to command and the duty to obey ordinarily must go unquestioned, this Court long ago recognized that the military must possess substantial discretion over its internal discipline. See, e. g., Schlesinger v. Councilman, ; Parker v. Levy, ; Burns v. Wilson, ; Orloff v. Willoughby, ; In re Grimley, . In Spock, we found no facial constitutional infirmity in regulations that allow a commander to determine before distribution whether particular materials pose a clear danger to the good order of his troops.15 The Air Force regulations at issue here are identical in purpose and effect to the regulation that we upheld in Spock. We therefore conclude that they do not violate the First Amendment.IIIThe only novel question in this case is whether 10 U.S.C. 1034 bars military regulations that require prior command approval for the circulation within a military base of petitions to Members of Congress. The statute says that "[n]o person may restrict any member of an armed force in communicating with a member of Congress, unless the communication is unlawful or violates a regulation necessary to the security of the United States." (Emphasis added.) Glines contends that this law protects the circulation of his collective petitions as well as the forwarding of individual communications. We find his contention unpersuasive.Section 1034 was introduced as a floor amendment to the Universal Military Training and Service Act of 1951 in response to a specific and limited problem. While Congress was debating the Act, Congressman Byrnes of Wisconsin learned that a young constituent seeking a hardship discharge from the Navy "had been told by his commanding officer ... that a direct communication with his Congressman was prohibited and [that] it would make him subject to court-martial." 97 Cong. Rec. 3776 (1951). When the Congressman made inquiry about the regulations imposing this restriction, the Secretary of the Navy informed him that they required "any letter from a member of the naval service ... to a Congressman which affects the Naval Establishment ... [to] be sent through official channels." Ibid.16 The Congressman then proposed an amendment to the pending military legislation that would outlaw this requirement.Congressman Byrnes' purpose was "to permit any man who is inducted to sit down and take a pencil and paper and write to his Congressman or Senator." Ibid.17 The entire legislative history of the measure focuses on providing an avenue for the communication of individual grievances. The Chairman of the Armed Services Committee succinctly summarized the legislative understanding. The amendment, he said, was intended "to let every man in the armed services have the privilege of writing his Congressman or Senator on any subject if it does not violate the law or if it does not deal with some secret matter." Id., at 3877. It therefore is clear that Congress enacted 1034 to ensure that an individual member of the Armed Services could write to his elected representatives without sending his communication through official channels.18 Both Congress and this Court have found that the special character of the military requires civilian authorities to accord military commanders some flexibility in dealing with matters that affect internal discipline and morale. See, e. g., Middendorf v. Henry, , 43 (1976); id., at 49-51 (POWELL, J., concurring); Parker v. Levy, 417 U.S., at 756; Orloff v. Willoughby, 345 U.S., at 93-94.19 In construing a statute that touches on such matters, therefore, courts must be careful not to "circumscribe the authority of military commanders to an extent never intended by Congress." Huff v. Secretary of NavyApp. D.C. 26, 35, 575 F.2d 907, 916 (1978) (Tamm, J., concurring in part and dissenting in part), rev'd, post, p. 453. Permitting an individual member of the Armed Services to submit a petition directly to any Member of Congress serves the legislative purpose of 1034 without unnecessarily endangering a commander's ability to preserve morale and good order among his troops. The unrestricted circulation of collective petitions could imperil discipline. We find no legislative purpose that requires the military to assume this risk and no indication that Congress contemplated such a result.20 We therefore decide that 1034 does not protect the circulation of collective petitions within a military base.IVWe conclude that neither the First Amendment nor 10 U.S.C. 1034 prevents the Air Force from requiring members of the service to secure approval from the base commander before distributing petitions within a military base. We therefore hold that the regulations at issue in this case are not invalid on their face. Accordingly, the judgment of the Court of Appeals is Reversed.MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.

Historically, all Ohio natural gas consumers purchased gas from a local distribution company (LDC), the public utility serving their geographic area. Today, however, consumers in Ohio's major metropolitan areas can alternatively contract with independent marketers (IMs) that compete with LDCs for retail sales of natural gas. Respondents, mainly IMs offering to sell natural gas to Ohio consumers, sued petitioner Ohio Tax Commissioner (Commissioner) in federal court, alleging discriminatory taxation of IMs and their patrons in violation of the Commerce and Equal Protection Clauses. They sought declaratory and injunctive relief invalidating three tax exemptions Ohio grants exclusively to LDCs. The court initially held that respondents' suit was not blocked by the Tax Injunction Act (TIA), which prohibits lower federal courts from restraining "the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State," 28 U. S. C. §1341. Nevertheless, the court dismissed the suit based on the more embracive comity doctrine, which restrains federal courts from entertaining claims that risk disrupting state tax administration, see Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U. S. 100. The Sixth Circuit agreed with the District Court's TIA holding, but reversed the court's comity ruling, and remanded for adjudication of the merits. A footnote in Hibbs v. Winn, 542 U. S. 88, 107, n. 9, the Court of Appeals believed, foreclosed an expansive reading of this Court's comity precedents. The footnote stated that the Court "has relied upon 'principles of comity' to preclude original federal-court jurisdiction only when plaintiffs have sought district-court aid in order to arrest or countermand state tax collection." Respondents challenged only a few limited exemptions, the Sixth Circuit observed, therefore their success on the merits would not significantly intrude upon Ohio's administration of its tax system. Held: Under the comity doctrine, a taxpayer's complaint of allegedly discriminatory state taxation, even when framed as a request to increase a competitor's tax burden, must proceed originally in state court. Pp. 5-17. (a) The comity doctrine reflects a proper respect for the States and their institutions. E.g., Fair Assessment, 454 U. S., at 112. Comity's constraint has particular force when lower federal courts are asked to pass on the constitutionality of state taxation of commercial activity. States rely chiefly on taxation to fund their governments' operations, therefore their tax-enforcement methods should not be interfered with absent strong cause. See Dows v. Chicago, 11 Wall. 108, 110. The TIA was enacted specifically to constrain the issuance of federal injunctions in state-tax cases, see Fair Assessment, 454 U. S., at 129, and is best understood as but a partial codification of the federal reluctance to interfere with state taxation, National Private Truck Council, Inc. v. Oklahoma Tax Comm'n, 515 U. S. 582, 590. Pp. 5-8. (b) Hibbs does not restrict comity's compass. Plaintiffs in Hibbs were Arizona taxpayers who challenged, as violative of the Establishment Clause, a tax credit that allegedly served to support parochial schools. Their federal-court suit for declaratory and injunctive relief did not implicate in any way their own tax liability, and the relief they sought would not deplete the State's treasury. Rejecting Arizona's plea that the TIA barred the suit, the Court found that the case was "not rationally distinguishable" from pathmarking civil-rights controversies in which federal courts had entertained challenges to state tax credits without conceiving of the TIA as a jurisdictional barrier. 542 U. S., at 93-94, 110-112. The Court also dispatched Arizona's comity argument in the footnote that moved the Sixth Circuit here to reverse the District Court's comity-based dismissal. Id., at 107, n. 9. Neither Hibbs nor any other decision of this Court, however, has considered the comity doctrine's application to cases of the kind presented here. Pp. 8-10. (c) Respondents contend that state action "selects [them] out for discriminatory treatment by subjecting [them] to taxes not imposed on others of the same class." Hillsborough v. Cromwell, 326 U. S. 620, 623. When economic legislation does not employ classifications subject to heightened scrutiny or impinge on fundamental rights, courts generally view constitutional challenges with the skepticism due respect for legislative choices demands. See, e.g., Hodel v. Indiana, 452 U. S. 314, 331-332. And "in taxation, even more than in other fields, legislatures possess the greatest freedom in classification." Madden v. Kentucky, 309 U. S. 83, 88. Of key importance, when unlawful discrimination infects tax classifications or other legislative prescriptions, the Constitution simply calls for equal treatment. How equality is accomplished — by extension or invalidation of the unequally distributed benefit or burden, or some other measure — is a matter on which the Constitution is silent. See, e.g., Heckler v. Mathews, 465 U. S. 728, 740. On finding unlawful discrimination, courts may attempt, within the bounds of their institutional competence, to implement what the legislature would have willed had it been apprised of the constitutional infirmity. E.g., id., at 739, n. 5. With the State's legislative prerogative firmly in mind, this Court, upon finding impermissible discrimination in a State's tax measure, generally remands the case, leaving the interim remedial choice to state courts. See, e.g., McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18, 39-40. If lower federal courts were to consider the merits of suits alleging uneven state tax burdens, however, recourse to state court for the interim remedial determination would be unavailable, for federal tribunals lack authority to remand to state court an action initiated in federal court. Federal judges, moreover, are bound by the TIA, which generally precludes relief that would diminish state revenues, even if such relief is the remedy least disruptive of the state legislature's design. These limitations on the remedial competence of lower federal courts counsel that they refrain from taking up cases of this genre, so long as state courts are equipped fairly to adjudicate them. Pp. 10-13. (d) Comity considerations warrant dismissal of respondents' suit. If Ohio's scheme is unconstitutional, the Ohio courts are better positioned to determine — unless and until the Ohio Legislature weighs in — how to comply with the mandate of equal treatment. See Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 817-818. The unelaborated comity footnote in Hibbs does not counsel otherwise. Hardly a run-of-the-mine tax case, Hibbs was essentially an attack on the allocation of state resources for allegedly unconstitutional purposes. Plaintiffs there were third parties whose own tax liability was not a relevant factor. Here, by contrast, the very premise of respondents' suit is that they are taxed differently from LDCs. The Hibbs footnote is most sensibly read to affirm that, just as that case was a poor fit under the TIA, so it was a poor fit for comity. Respondents' argument that this case is fit for federal-court adjudication because of the simplicity of the relief sought is unavailing. Even if their claims had merit, respondents would not be entitled to their preferred remedy. In Hibbs, however, if the District Court found the Arizona tax credit impermissible under the Establishment Clause, only one remedy would redress the plaintiffs' grievance: invalidation of the tax credit at issue. Pp. 13-15. (e) In sum, a confluence of factors in this case, absent in Hibbs, leads to the conclusion that the comity doctrine controls here. First, respondents seek federal-court review of commercial matters over which Ohio enjoys wide regulatory latitude; their suit does not involve any fundamental right or classification that attracts heightened judicial scrutiny. Second, while respondents portray themselves as third-party challengers to an allegedly unconstitutional tax scheme, they are in fact seeking federal-court aid in an endeavor to improve their competitive position. Third, the Ohio courts are better positioned than their federal counterparts to correct any violation because they are more familiar with state legislative preferences and because the TIA does not constrain their remedial options. Individually, these considerations may not compel forbearance by federal district courts; in combination, however, they demand deference to the state adjudicative process. Pp. 15-16. (f) The Sixth Circuit's concern that application of the comity doctrine here would render the TIA effectively superfluous overlooks Congress' aim, in enacting the TIA, to secure the comity doctrine against diminishment. Comity, moreover, is a prudential doctrine. "If the State voluntarily chooses to submit to a federal forum, principles of comity do not demand that the federal court force the case back into the State's own system." Ohio Bureau of Employment Servs. v. Hodory, 431 U. S. 471, 480. P. 16. (g) In light of the foregoing, the Court need not decide whether the TIA would itself block this suit. Pp. 16-17. 554 F. 3d 1094, reversed and remanded. Ginsburg, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Kennedy, Breyer, and Sotomayor, JJ., joined. Kennedy, J., filed a concurring opinion. Thomas, J., filed an opinion concurring in the judgment, in which Scalia, J., joined. Alito, J., filed an opinion concurring in the judgment.RICHARD A. LEVIN, TAX COMMISSIONER OF OHIO, PETITIONER v. COMMERCE ENERGY, INC., et al.on writ of certiorari to the united states court of appeals for the sixth circuit[June 1, 2010] Justice Ginsburg delivered the opinion of the Court. This case presents the question whether a federal district court may entertain a complaint of allegedly discriminatory state taxation, framed as a request to increase a commercial competitor's tax burden. Relevant to our inquiry is the Tax Injunction Act (TIA or Act), 28 U. S. C. §1341, which prohibits lower federal courts from restraining "the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." More embracive than the TIA, the comity doctrine applicable in state taxation cases restrains federal courts from entertaining claims for relief that risk disrupting state tax administration. See Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U. S. 100 (1981). The comity doctrine, we hold, requires that a claim of the kind here presented proceed originally in state court. In so ruling, we distinguish Hibbs v. Winn, 542 U. S. 88 (2004), in which the Court held that neither the TIA nor the comity doctrine barred a federal district court from adjudicating an Establishment Clause challenge to a state tax credit that allegedly funneled public funds to parochial schools.IA Historically, all natural gas consumers in Ohio purchased gas from the public utility, known as a local distribution company (LDC), serving their geographic area. In addition to selling gas as a commodity, LDCs own and operate networks of distribution pipelines to transport and deliver gas to consumers. LDCs offer customers a single, bundled product comprising both gas and delivery. Today, consumers in Ohio's major metropolitan areas can alternatively contract with an independent marketer (IM) that competes with LDCs for retail sales of natural gas. IMs do not own or operate distribution pipelines; they use LDCs' pipelines. When a customer goes with an IM, therefore, she purchases two "unbundled" products: gas (from the IM) and delivery (from the LDC). Ohio treats LDCs and IMs differently for tax purposes. Relevant here, Ohio affords LDCs three tax exemptions that IMs do not receive. First, LDCs' natural gas sales are exempt from sales and use taxes. Ohio Rev. Code Ann. §5739.02(B)(7) (Lexis Supp. 2010); §§5739.021(E), .023(G), .026(F) (Lexis 2008); §§5741.02(C), .021(A), .022(A), .023(A) (Lexis 2008). LDCs owe instead a gross receipts excise tax, §5727.24, which is lower than the sales and use taxes IMs must collect. Second, LDCs are not subject to the commercial activities tax imposed on IMs' taxable gross receipts. §§5751.01(E)(2), .02 (Lexis Supp. 2010). Finally, Ohio law excludes inter-LDC natural gas sales from the gross receipts tax, which IMs must pay when they purchase gas from LDCs. §5727.33(B)(4) (Lexis 2008).B Plaintiffs-respondents Commerce Energy, Inc., a California corporation, and Interstate Gas Supply, Inc., an Ohio company, are IMs that market and sell natural gas to Ohio consumers. Plaintiff-respondent Gregory Slone is an Ohio citizen who has purchased natural gas from Interstate Gas Supply since 1999. Alleging discriminatory taxation of IMs and their patrons in violation of the Commerce and Equal Protection Clauses, Complaint ¶¶35-39, App. 11-13, respondents sued Richard A. Levin, Tax Commissioner of Ohio (Commissioner), in the U. S. District Court for the Southern District of Ohio. Invoking that court's federal-question jurisdiction under 28 U. S. C. §1331, Complaint ¶6, App. 3, respondents sought declaratory and injunctive relief invalidating the three tax exemptions LDCs enjoy and ordering the Commissioner to stop "recognizing and/or enforcing" the exemptions. Id., at 20-21. Respondents named the Commissioner as sole defendant; they did not extend the litigation to include the LDCs whose tax burden their suit aimed to increase.1 The District Court granted the Commissioner's motion to dismiss the complaint. The TIA did not block the suit, the District Court initially held, because respondents, like the plaintiffs in Hibbs, were "third-parties challenging the constitutionality of [another's] tax benefit," and their requested relief "would not disrupt the flow of tax revenue" to the State. App. to Pet. for Cert. 24a. Nevertheless, the District Court "decline[d] to exercise jurisdiction" as a matter of comity. Id., at 32a. Ohio's Legislature, the District Court observed, chose to provide the challenged tax exemptions to LDCs. Respondents requested relief that would "requir[e] Ohio to collect taxes which its legislature has not seen fit to impose." Ibid. (internal quotation marks omitted). Such relief, the court said, would draw federal judges into "a particularly inappropriate involvement in a state's management of its fiscal operations." Ibid. (internal quotation marks omitted). A state court, the District Court recognized, could extend the exemptions to IMs, but the TIA proscribed this revenue-reducing relief in federal court. "Where there would be two possible remedies," the Court concluded, a federal court should not "impose its own judgment on the state legislature mandating which remedy is appropriate." Ibid. The U. S. Court of Appeals for the Sixth Circuit reversed. 554 F. 3d 1094 (2009). While agreeing that the TIA did not bar respondents' suit, the Sixth Circuit rejected the District Court's comity ruling. A footnote in Hibbs, the Court of Appeals believed, foreclosed the District Court's "expansive reading" of this Court's comity precedents. 554 F. 3d, at 1098. The footnote stated that the Court "has relied upon 'principles of comity' to preclude original federal-court jurisdiction only when plaintiffs have sought district-court aid in order to arrest or countermand state tax collection." Hibbs, 542 U. S., at 107, n. 9 (citation omitted). A broad view of the comity cases, the Sixth Circuit feared, would render the TIA "effectively superfluous," and would "sub silentio overrule a series of important cases" presenting challenges to state tax measures. 554 F. 3d, at 1099, 1102 (citing Milliken v. Bradley, 433 U. S. 267 (1977); Mueller v. Allen, 463 U. S. 388 (1983)); 554 F. 3d, at 1099-1100. In so ruling, the Sixth Circuit agreed with the Seventh and Ninth Circuits, which had similarly read Hibbs to rein in the comity doctrine, see Levy v. Pappas, 510 F. 3d 755 (CA7 2007); Wilbur v. Locke, 423 F. 3d 1101 (CA9 2005), and it disagreed with the Fourth Circuit, which had concluded that Hibbs left comity doctrine untouched, see DIRECTV, Inc. v. Tolson, 513 F. 3d 119 (2008). Noting that respondents "challenge[d] only a few limited exemptions," and satisfied, therefore, that "[respondents'] success would not significantly intrude upon traditional matters of state taxation," the Sixth Circuit remanded the case for adjudication of the merits. 554 F. 3d, at 1102. After unsuccessfully moving for rehearing en banc, App. to Pet. for Cert. 1a-2a, the Commissioner petitioned for certiorari. By then, the First Circuit had joined the Sixth, Seventh, and Ninth Circuits in holding that Hibbs sharply limited the scope of the comity bar. Coors Brewing Co. v. Méndez-Torres, 562 F. 3d 3 (2009). We granted the Commissioner's petition, 558 U. S. ___ (2009), to resolve the disagreement among the Circuits.IIA Comity considerations, the Commissioner dominantly urges, preclude the exercise of lower federal-court adjudicatory authority over this controversy, given that an adequate state-court forum is available to hear and decide respondents' constitutional claims. We agree. The comity doctrine counsels lower federal courts to resist engagement in certain cases falling within their jurisdiction. The doctrine reflects"a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in separate ways." Fair Assessment, 454 U. S., at 112 (quoting Younger v. Harris, 401 U. S. 37, 44 (1971)).Comity's constraint has particular force when lower federal courts are asked to pass on the constitutionality of state taxation of commercial activity. For "[i]t is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible." Dows v. Chicago, 11 Wall. 108, 110 (1871). "An examination of [our] decisions," this Court wrote more than a century ago, "shows that a proper reluctance to interfere by prevention with the fiscal operations of the state governments has caused [us] to refrain from so doing in all cases where the Federal rights of the persons could otherwise be preserved unimpaired." Boise Artesian Hot & Cold Water Co. v. Boise City, 213 U. S. 276, 282 (1909). Accord Matthews v. Rodgers, 284 U. S. 521, 525-526 (1932) (So long as the state remedy was "plain, adequate, and complete," the "scrupulous regard for the rightful independence of state governments which should at all times actuate the federal courts, and a proper reluctance to interfere by injunction with their fiscal operations, require that such relief should be denied in every case where the asserted federal right may be preserved without it.").2 Statutes conferring federal jurisdiction, we have repeatedly cautioned, should be read with sensitivity to "federal-state relations" and "wise judicial administration." Quackenbush v. Allstate Ins. Co., 517 U. S. 706, 716 (1996) (internal quotation marks omitted). But by 1937, in state tax cases, the federal courts had moved in a different direction: they "had become free and easy with injunctions." Fair Assessment, 454 U. S., at 129 (Brennan, J., concurring in judgment) (internal quotation marks omitted).3 Congress passed the TIA to reverse this trend. Id., at 109-110 (opinion of the Court). Our post-Act decisions, however, confirm the continuing sway of comity considerations, independent of the Act. Plaintiffs in Great Lakes Dredge & Dock Co. v. Huffman, 319 U. S. 293 (1943), for example, sought a federal judgment declaring Louisiana's unemployment compensation tax unconstitutional. Writing six years after the TIA's passage, we emphasized the Act's animating concerns: A "federal court of equity," we reminded, "may in an appropriate case refuse to give its special protection to private rights when the exercise of its jurisdiction would be prejudicial to the public interest, [and] should stay its hand in the public interest when it reasonably appears that private interests will not suffer." Id., at 297-298 (citations omitted). In enacting the TIA, we noted, "Congress recognized and gave sanction to this practice." Id., at 298. We could not have thought Congress intended to cabin the comity doctrine, for we went on to instruct dismissal in Great Lakes on comity grounds without deciding whether the Act reached declaratory judgment actions. Id., at 299, 301-302.4 Decades later, in Fair Assessment, we ruled, based on comity concerns, that 42 U. S. C. §1983 does not permit federal courts to award damages in state taxation cases when state law provides an adequate remedy. 454 U. S., at 116. We clarified in Fair Assessment that "the principle of comity which predated the Act was not restricted by its passage." Id., at 110. And in National Private Truck Council, Inc. v. Oklahoma Tax Comm'n, 515 U. S. 582, 590 (1995), we said, explicitly, that "the [TIA] may be best understood as but a partial codification of the federal reluctance to interfere with state taxation."B Although our precedents affirm that the comity doctrine is more embracive than the TIA, several Courts of Appeals, including the Sixth Circuit in the instant case, have comprehended Hibbs to restrict comity's compass. See supra, at 4-5. Hibbs, however, has a more modest reach. Plaintiffs in Hibbs were Arizona taxpayers who challenged a state law authorizing tax credits for payments to organizations that disbursed scholarship grants to children attending private schools. 542 U. S., at 94-96. These organizations could fund attendance at institutions that provided religious instruction or gave admissions preference on the basis of religious affiliation. Id., at 95. Ranking the credit program as state subsidization of religion, incompatible with the Establishment Clause, plaintiffs sought declaratory and injunctive relief and an order requiring the organizations to pay sums still in their possession into the State's general fund. Id., at 96. The Director of Arizona's Department of Revenue sought to escape suit in federal court by invoking the TIA. We held that the litigation fell outside the TIA's governance. Our prior decisions holding suits blocked by the TIA, we noted, were tied to the Act's "state-revenue-protective moorings." Id., at 106. The Act, we explained, "restrain[ed] state taxpayers from instituting federal actions to contest their [own] liability for state taxes," id., at 108, suits that, if successful, would deplete state coffers. But "third parties" like the Hibbs plaintiffs, we concluded, were not impeded by the TIA "from pursuing constitutional challenges to tax benefits in a federal forum." Ibid. The case, we stressed, was "not rationally distinguishable" from a procession of pathmarking civil-rights controversies in which federal courts had entertained challenges to state tax credits without conceiving of the TIA as a jurisdictional barrier. Id., at 93-94, 110-112. See, e.g., Griffin v. School Bd. of Prince Edward Cty., 377 U. S. 218 (1964) (involving, inter alia, tax credits for contributions to private segregated schools). Arizona's Revenue Director also invoked comity as cause for dismissing the action. We dispatched the Director's comity argument in a spare footnote that moved the Sixth Circuit here to reverse the District Court's comity-based dismissal. As earlier set out, see supra, at 4, the footnote stated: "[T]his Court has relied upon 'principles of comity' to preclude original federal-court jurisdiction only when plaintiffs have sought district-court aid in order to arrest or countermand state tax collection." 542 U. S., at 107, n. 9 (citation omitted) (citing Fair Assessment, 454 U. S., at 107-108; Great Lakes, 319 U. S., at 296-299). Relying heavily on our footnote in Hibbs, respondents urge that "comity should no more bar this action than it did the action in Hibbs." Brief for Respondents 42. As we explain below, however, the two cases differ markedly in ways bearing on the comity calculus. We have had no prior occasion to consider, under the comity doctrine, a taxpayer's complaint about allegedly discriminatory state taxation framed as a request to increase a competitor's tax burden. Now squarely presented with the question, we hold that comity precludes the exercise of original federal-court jurisdiction in cases of the kind presented here.IIIA Respondents complain that they are taxed unevenly in comparison to LDCs and their customers. Under either an equal protection or dormant Commerce Clause theory, respondents' root objection is the same: State action, respondents contend, "selects [them] out for discriminatory treatment by subjecting [them] to taxes not imposed on others of the same class." Hillsborough v. Cromwell, 326 U. S. 620, 623 (1946) (equal protection); see Dennis v. Higgins, 498 U. S. 439, 447-448 (1991) (dormant Commerce Clause). When economic legislation does not employ classifications subject to heightened scrutiny or impinge on fundamental rights,5 courts generally view constitutional challenges with the skepticism due respect for legislative choices demands. See, e.g., Hodel v. Indiana, 452 U. S. 314, 331-332 (1981); Williamson v. Lee Optical of Okla., Inc., 348 U. S. 483, 488-489 (1955). And "in taxation, even more than in other fields, legislatures possess the greatest freedom in classification." Madden v. Kentucky, 309 U. S. 83, 88 (1940). Of key importance, when unlawful discrimination infects tax classifications or other legislative prescriptions, the Constitution simply calls for equal treatment. How equality is accomplished — by extension or invalidation of the unequally distributed benefit or burden, or some other measure — is a matter on which the Constitution is silent. See Heckler v. Mathews, 465 U. S. 728, 740 (1984) ("[W]hen the right invoked is that to equal treatment, the appropriate remedy is a mandate of equal treatment, a result that can be accomplished" in more than one way. (quoting Iowa-Des Moines Nat. Bank v. Bennett, 284 U. S. 239, 247 (1931); internal quotation marks omitted)). On finding unlawful discrimination, we have affirmed, courts may attempt, within the bounds of their institutional competence, to implement what the legislature would have willed had it been apprised of the constitutional infirmity. Mathews, 465 U. S., at 739, n. 5; Califano v. Westcott, 443 U. S. 76, 92-93 (1979); see Stanton v. Stanton, 421 U. S. 7, 17-18 (1975) (how State eliminates unconstitutional discrimination "plainly is an issue of state law"); cf. United States v. Booker, 543 U. S. 220, 246 (2005) ("legislative intent" determines cure for constitutional violation). The relief the complaining party requests does not circumscribe this inquiry. See Westcott, 443 U. S., at 96, n. 2 (Powell, J., concurring in part and dissenting in part) ("This issue should turn on the intent of [the legislature], not the interests of the parties."). With the State's legislative prerogative firmly in mind, this Court, upon finding impermissible discrimination in a State's allocation of benefits or burdens, generally remands the case, leaving the remedial choice in the hands of state authorities. See, e.g., Wengler v. Druggists Mut. Ins. Co., 446 U. S. 142, 152-153 (1980); Orr v. Orr, 440 U. S. 268, 283-284 (1979); Stanton, 421 U. S., at 17-18; Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535, 543 (1942). But see, e.g., Levy v. Louisiana, 391 U. S. 68 (1968). In particular, when this Court — on review of a state high court's decision — finds a tax measure constitutionally infirm, "it has been our practice," for reasons of "federal-state comity," "to abstain from deciding the remedial effects of such a holding." American Trucking Assns., Inc. v. Smith, 496 U. S. 167, 176 (1990) (plurality opinion).6 A "State found to have imposed an impermissibly discriminatory tax retains flexibility in responding to this determination." McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18, 39-40 (1990). Our remand leaves the interim solution in state-court hands, subject to subsequent definitive disposition by the State's legislature. If lower federal courts were to give audience to the merits of suits alleging uneven state tax burdens, however, recourse to state court for the interim remedial determination would be unavailable. That is so because federal tribunals lack authority to remand to the state court system an action initiated in federal court. Federal judges, moreover, are bound by the TIA; absent certain exceptions, see, e.g., Department of Employment v. United States, 385 U. S. 355, 357-358 (1966), the Act precludes relief that would diminish state revenues, even if such relief is the remedy least disruptive of the state legislature's design.7 These limitations on the remedial competence of lower federal courts counsel that they refrain from taking up cases of this genre, so long as state courts are equipped fairly to adjudicate them.8B Comity considerations, as the District Court determined, warrant dismissal of respondents' suit. Assuming, arguendo, that respondents could prevail on the merits of the suit,9 the most obvious way to achieve parity would be to reduce respondents' tax liability. Respondents did not seek such relief, for the TIA stands in the way of any decree that would "enjoin ... collection of [a] tax under State law." 28 U. S. C. §1341.10 A more ambitious solution would reshape the relevant provisions of Ohio's tax code. Were a federal court to essay such relief, however, the court would engage in the very interference in state taxation the comity doctrine aims to avoid. Cf. State Railroad Tax Cases, 92 U. S. 575, 614-615 (1876). Respondents' requested remedy, an order invalidating the exemptions enjoyed by LDCs, App. 20-21, may be far from what the Ohio Legislature would have willed. See supra, at 11. In short, if the Ohio scheme is indeed unconstitutional, surely the Ohio courts are better positioned to determine — unless and until the Ohio Legislature weighs in — how to comply with the mandate of equal treatment. See Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 817-818 (1989).11 As earlier noted, our unelaborated footnote on comity in Hibbs, see supra, at 9, led the Sixth Circuit to conclude that we had diminished the force of that doctrine and made it inapplicable here. We intended no such consequential ruling. Hibbs was hardly a run-of-the-mine tax case. It was essentially an attack on the allocation of state resources for allegedly unconstitutional purposes. In Hibbs, the charge was state aid in alleged violation of the Establishment Clause; in other cases of the same genre, the attack was on state allocations to maintain racially segregated schools. See Hibbs, 542 U. S., at 93-94, 110-112. The plaintiffs in Hibbs were outsiders to the tax expenditure, "third parties" whose own tax liability was not a relevant factor. In this case, by contrast, the very premise of respondents' suit is that they are taxed differently from LDCs. Unlike the Hibbs plaintiffs, respondents do object to their own tax situation, measured by the allegedly more favorable treatment accorded LDCs. Hibbs held that the TIA did not preclude a federal challenge by a third party who objected to a tax credit received by others, but in no way objected to her own liability under any revenue-raising tax provision. In context, we clarify, the Hibbs footnote comment on comity is most sensibly read to affirm that, just as the case was a poor fit under the TIA, so it was a poor fit for comity. The Court, in other words, did not deploy the footnote to recast the comity doctrine; it intended the note to convey only that the Establishment Clause-grounded case cleared both the TIA and comity hurdles. Respondents steadfastly maintain that this case is fit for federal-court adjudication because of the simplicity of the relief they seek, i.e., invalidation of exemptions accorded the LDCs. But as we just explained, even if respondents' Commerce Clause and equal protection claims had merit, respondents would have no entitlement to their preferred remedy. See supra, at 11. In Hibbs, however, if the District Court found the Arizona tax credit impermissible under the Establishment Clause, only one remedy would redress the plaintiffs' grievance: invalidation of the credit, which inevitably would increase the State's tax receipts. Notably, redress in state court similarly would be limited to an order ending the allegedly impermissible state support for parochial schools.12 Because state courts would have no greater leeway than federal courts to cure the alleged violation, nothing would be lost in the currency of comity or state autonomy by permitting the Hibbs suit to proceed in a federal forum. Comity, in sum, serves to ensure that "the National Government, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the States." Younger, 401 U. S., at 44. A confluence of factors in this case, absent in Hibbs, leads us to conclude that the comity doctrine controls here. First, respondents seek federal-court review of commercial matters over which Ohio enjoys wide regulatory latitude; their suit does not involve any fundamental right or classification that attracts heightened judicial scrutiny. Second, while respondents portray themselves as third-party challengers to an allegedly unconstitutional tax scheme, they are in fact seeking federal-court aid in an endeavor to improve their competitive position. Third, the Ohio courts are better positioned than their federal counterparts to correct any violation because they are more familiar with state legislative preferences and because the TIA does not constrain their remedial options. Individually, these considerations may not compel forbearance on the part of federal district courts; in combination, however, they demand deference to the state adjudicative process.C The Sixth Circuit expressed concern that application of the comity doctrine here would render the TIA "effectively superfluous." 554 F. 3d, at 1099; see id., at 1102. This concern overlooks Congress' point in enacting the TIA. The Act was passed to plug two large loopholes courts had opened in applying the comity doctrine. See supra, at 7, and n. 3. By closing these loopholes, Congress secured the doctrine against diminishment. Comity, we further note, is a prudential doctrine. "If the State voluntarily chooses to submit to a federal forum, principles of comity do not demand that the federal court force the case back into the State's own system." Ohio Bureau of Employment Servs. v. Hodory, 431 U. S. 471, 480 (1977).IV Because we conclude that the comity doctrine justifies dismissal of respondents' federal-court action, we need not decide whether the TIA would itself block the suit. See Great Lakes, 319 U. S., at 299, 301 (reserving judgment on TIA's application where comity precluded suit). See also Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U. S. 422, 431 (2007) (federal court has flexibility to choose among threshold grounds for dismissal).13* * * For the reasons stated, the Sixth Circuit's judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.It is so ordered.RICHARD A. LEVIN, TAX COMMISSIONER OF OHIO, PETITIONER v. COMMERCE ENERGY, INC., et al.on writ of certiorari to the united states court of appeals for the sixth circuit[June 1, 2010] Justice Kennedy, concurring. The Court's rationale in Hibbs v. Winn, 542 U. S. 88 (2004), seems to me still doubtful. Nothing in the Court's opinion today expands Hibbs' holding further, however, and on that understanding I join the opinion of the Court.RICHARD A. LEVIN, TAX COMMISSIONER OF OHIO, PETITIONER v. COMMERCE ENERGY, INC., et al.on writ of certiorari to the united states court of appeals for the sixth circuit[June 1, 2010] Justice Thomas, with whom Justice Scalia joins, concurring in the judgment. Although I, too, remain skeptical of the Court's decision in Hibbs v. Winn, 542 U. S. 88 (2004), see ante, at 1 (Kennedy, J., concurring), I agree that it is not necessary for us to revisit that decision to hold that this case belongs in state court. As the Court rightly concludes, Hibbs permits not just the application of comity principles to the litigation here, but also application of the Tax Injunction Act (TIA or Act), 28 U. S. C. §1341. See ante, at 17. I concur only in the judgment because where, as here, the same analysis supports both jurisdictional and nonjurisdictional grounds for dismissal (the TIA imposes a jurisdictional bar, see, e.g., Hibbs, supra, at 104), the "proper course" under our precedents is to dismiss for lack of jurisdiction. Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U. S. 422, 435 (2007). Congress enacted the TIA's prohibition on federal jurisdiction over certain cases involving state tax issues because federal courts had proved unable to exercise jurisdiction over such cases in the restrained manner that comity requires. See ante, at 7. As the Court explains, Congress' decision to prohibit federal jurisdiction over cases within the Act's scope did not disturb that jurisdiction, or the comity principles that guide its exercise, in cases outside the Act's purview. See ante, at 78; 1217. I therefore agree with the Court that nothing in the Act or in Hibbs affects the application of comity principles to cases not covered by the Act. I disagree that this conclusion moots the need for us to decide "whether the TIA would itself block th[is] suit." Ante, at 16. The Court posits that because comity is available as a ground for dismissal even where the Act is not, the Act's application to this case is irrelevant if comity would also support sending the case to state court. See ante, at 1617. The Court rests this analysis on our recent holding in Sinochem that a court may dismiss a case on a nonmerits ground such as comity without first resolving an accompanying jurisdictional issue. See ante, at 1617 (citing 549 U. S., at 425). The Court's reliance on Sinochem is misplaced, however, because it confuses the fact that a court may do that with whether, and when, it should. As Sinochem itself explains, courts should not dismiss cases on nonjurisdictional grounds where "jurisdiction ... 'involve[s] no arduous inquiry' " and deciding it would not substantially undermine "judicial economy." 549 U. S., at 436 (quoting Ruhrgas AG v. Marathon Oil Co., 526 U. S. 574, 587588 (1999)). In such circumstances, Sinochem reiterates the settled rule that "the proper course" is to dismiss for lack of jurisdiction. 549 U. S., at 436. That is the proper course here. The TIA prohibits federal courts from exercising jurisdiction over any action that would "suspend or restrain the assessment, levy or collection of [a] tax under State law." §1341. As the Court appears to agree, see ante, at 17, n. 13, this is such a case even under the crabbed construction of the Act in Hibbs, which the Court accurately describes as holding only that the Act does "not preclude a federal challenge by a third party who object[s] to a tax credit received by others, but in no way object[s] to her own liability under any revenue-raising tax provision," ante, at 1415 (emphasizing that the "plaintiffs in Hibbs were outsiders to the tax expenditure, 'third parties' whose own tax liability was not a relevant factor"). This is not such a case, because the respondents here are in no sense "outsiders" to the revenue-raising state-tax regime they ask the federal courts to restrain. Ibid.; see also Hibbs, supra, at 104. Respondents compete with entities who receive tax exemptions under that regime in providing services whose cost is affected by the exemptions. Respondents thus do object to their own liability in a very real and economically significant way: The liability the state tax regime imposes on them but not on their competitors makes it more difficult for respondents to match or beat their competitors' prices. The fact that they raise this objection through the expedient of contesting their competitors' exemptions is plainly not enough to qualify them as Hibbs-like "outsiders" to the state revenue-raising scheme they wish to enjoin. If it were, application of the Act's jurisdictional bar would depend on little more than a pleading game. The Act would bar a federal suit challenging a state tax scheme that requires the challenger to pay more taxes than his competitor if the challenger styles the suit as an objection to his own tax liability, but would not bar the suit if he styles it as an objection to the competitor's exemption. Because the Court appears to agree that even Hibbs does not endorse such a narrow view of the Act's jurisdictional bar, see ante, at 1415, 17, n. 13, the "proper course" is to dismiss this suit under the statute and not reach the comity principles that the Court correctly holds independently support the same result, Sinochem, supra, at 436. Here, unlike in Sinochem, there is no economy to deciding the case on the nonjurisdictional ground: The same analysis that supports dismissal for comity reasons subjects this case to the Act's jurisdictional prohibition, even as construed in Hibbs. Compare ante, at 5-17, with Sinochem, supra, at 435-436 (approving dismissal of a suit on forum non conveniens grounds because dismissal on personal jurisdiction grounds would have required the "expense and delay" of a minitrial on forum contacts). Given this, I see only one explanation for the Court's decision to dismiss on a "prudential" ground (comity), ante, at 1617, rather than a mandatory one (jurisdiction): The Court wishes to leave the door open to doing in future cases what it did in Hibbs, namely, retain federal jurisdiction over constitutional claims that the Court simply does not believe Congress should have entrusted to state judges under the Act, see 542 U. S., at 113-128 (Kennedy, J., dissenting). That is not a legitimate approach to this important area of the law, see ibid., and the Court's assertion that our civil rights precedents require it does not withstand scrutiny. If it is indeed true (which it may have been in the civil rights cases) that federal jurisdiction is necessary to ensure a fair forum in which to litigate an allegedly unconstitutional state tax scheme, the Act itself permits federal courts to retain jurisdiction on the ground that "a plain, speedy and efficient remedy" cannot be had in state court. §1341. But where, as here and in Hibbs, such a remedy can be had in state court, the Court should apply the Act as written. See 542 U. S., at 113-128 (Kennedy, J., dissenting). Because I believe the Act forbids the approach to federal jurisdiction over state tax issues that the Court adopted in Hibbs, I would not decide this case in a way that leaves the door open to it even if the Court could find a doorstop that accords with, rather than upends, the settled principle that judges presented with multiple nonmerits grounds for dismissal should dismiss on jurisdictional grounds first. But the tension the Court's decision creates with this settled principle should be enough to convince even those who do not share my view of the TIA that the proper course here is to dismiss this case for lack of jurisdiction because Hibbs' construction of the Act applies at most to the type of true third-party suit that Hibbs describes, and thus does not save this case from the statute's jurisdictional bar.RICHARD A. LEVIN, TAX COMMISSIONER OF OHIO, PETITIONER v. COMMERCE ENERGY, INC., et al.on writ of certiorari to the united states court of appeals for the sixth circuit[June 1, 2010] Justice Alito, concurring in the judgment. I agree with the Court that principles of comity bar the present action. I am doubtful about the Court's efforts to distinguish Hibbs v. Winn, 542 U. S. 88 (2004), but whether today's holding undermines Hibbs' foundations is a question that can be left for another day. FOOTNOTESFootnote 1 In moving to dismiss the complaint, the Commissioner urged, inter alia, that the LDCs were parties necessary to a just adjudication. See Fed. Rule Civ. Proc. 19. Ruling for the Commissioner on comity grounds, the District Court did not reach the question whether the LDCs were indispensable parties. App. to Pet. for Cert. 21a, 32a-33a.Footnote 2 Justice Brennan cogently explained, in practical terms, "the special reasons justifying the policy of federal noninterference with state tax collection":"The procedures for mass assessment and collection of state taxes and for administration and adjudication of taxpayers' disputes with tax officials are generally complex and necessarily designed to operate according to established rules. State tax agencies are organized to discharge their responsibilities in accordance with the state procedures. If federal declaratory relief were available to test state tax assessments, state tax administration might be thrown into disarray, and taxpayers might escape the ordinary procedural requirements imposed by state law. During the pendency of the federal suit the collection of revenue under the challenged law might be obstructed, with consequent damage to the State's budget, and perhaps a shift to the State of the risk of taxpayer insolvency. Moreover, federal constitutional issues are likely to turn on questions of state tax law, which, like issues of state regulatory law, are more properly heard in the state courts." Perez v. Ledesma, 401 U. S. 82, 128, n. 17 (1971) (opinion concurring in part and dissenting in part).Footnote 3 Two features of federal equity practice accounted for the courts' willingness to grant injunctive relief. First, the Court had held that, although "equity jurisdiction does not lie where there exists an adequate legal remedy[,] ... the 'adequate legal remedy' must be one cognizable in federal court." Fair Assessment, 454 U. S., at 129, n. 15 (Brennan, J., concurring in judgment) (emphasis in original). Second, federal courts, "construing strictly the requirement that the remedy available at law be 'plain, adequate and complete,' had frequently concluded that the procedures provided by the State were not adequate." Ibid. (citation omitted).Footnote 4 We later held that the Act indeed does proscribe suits for declaratory relief that would thwart state tax collection. California v. Grace Brethren Church, 457 U. S. 393, 411 (1982).Footnote 5 Cf., e.g., Loving v. Virginia, 388 U. S. 1 (1967); United States v. Virginia, 518 U. S. 515 (1996). On the federal courts' role in safeguarding human rights, see, e.g., Zwickler v. Koota, 389 U. S. 241, 245-248 (1967); McNeese v. Board of Ed. for Community Unit School Dist. 187, 373 U. S. 668, 672-674, and n. 6 (1963).Footnote 6 See, e.g., Harper v. Virginia Dept. of Taxation, 509 U. S. 86, 100-102 (1993); McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Fla. Dept. of Business Regulation, 496 U. S. 18, 51-52 (1990); Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 818 (1989); American Trucking Assns., Inc. v. Scheiner, 483 U. S. 266, 297-298 (1987); Tyler Pipe Industries, Inc. v. Washington State Dept. of Revenue, 483 U. S. 232, 252-253 (1987); Bacchus Imports, Ltd. v. Dias, 468 U. S. 263, 276-277 (1984); Exxon Corp. v. Eagerton, 462 U. S. 176, 196-197 (1983); Louis K. Liggett Co. v. Lee, 288 U. S. 517, 540-541 (1933).Footnote 7 State courts also have greater leeway to avoid constitutional holdings by adopting "narrowing constructions that might obviate the constitutional problem and intelligently mediate federal constitutional concerns and state interests." Moore v. Sims, 442 U. S. 415, 429-430 (1979).Footnote 8 Any substantial federal question, of course, "could be reviewed when the case [comes to this Court] through the hierarchy of state courts." McNeese, 373 U. S., at 673.Footnote 9 But see General Motors Corp. v. Tracy, 519 U. S. 278, 279-280 (1997) (determining, at a time IMs could not compete with LDCs for the Ohio residential "captive" market, that IMs and LDCs were not "similarly situated"; and rejecting industrial IM customer's dormant Commerce Clause and equal protection challenges to LDCs' exemption from sales and use taxes).Footnote 10 Previous language restricting the district courts' "jurisdiction" was removed in the 1948 revision of Title 28. Compare 28 U. S. C. §41(1) (1940 ed.) with §1341, 62 Stat. 932. This Court and others have continued to regard the Act as jurisdictional. See, e.g., post, at 1 (Thomas, J., concurring in judgment).Footnote 11 Respondents note that "[o]nce the district court grants the minimal relief requested — to disallow the exemptions — it will be up to the Ohio General Assembly to balance its own interests and determine how best to recast the tax laws, within constitutional restraints." Brief for Respondents 41. But the legislature may not be convened on the spot, and the blunt interim relief respondents ask the District Court to decree "may [immediately] derange the operations of government, and thereby cause serious detriment to the public." Dows v. Chicago, 11 Wall. 108, 110 (1871).Footnote 12 No refund suit (or other taxpayer mechanism) was open to the plaintiffs in Hibbs, who were financially disinterested "third parties"; they did not, therefore, improperly bypass any state procedure. Respondents here, however, could have asserted their federal rights by seeking a reduction in their tax bill in an Ohio refund suit.Footnote 13 The District Court and Court of Appeals concluded that our decision in Hibbs placed the controversy outside the TIA's domain. That conclusion, we note, bears reassessment in light of this opinion's discussion of the significant differences between Hibbs and this case.

When co-respondent labor union petitioned the National Labor Relations Board to represent a unit of employees at respondent's residential care facility, respondent objected to the inclusion of its registered nurses in the unit, arguing that they were "supervisors" under §2(11) of the National Labor Relations Act (Act), 15 U. S. C. §152(11), and hence excluded from the Act's protections. At the representation hearing, the Board's Regional Director placed the burden of proving supervisory status on respondent, found that respondent had not carried its burden, and included the nurses in the unit. Thereafter, respondent refused to bargain with the union, leading the Board's General Counsel to file an unfair labor practice complaint. The Board granted the General Counsel summary judgment on the basis of the representation determination, but the Sixth Circuit refused to enforce the Board's order. It rejected the Board's interpretation of "independent judgment" in §2(11)'s test for supervisory status, and held that the Board had erred in placing the burden of proving supervisory status on respondent.Held: 1. Respondent carries the burden of proving the nurses' supervisory status in the representation hearing and unfair labor practice proceeding. The Act does not expressly allocate the burden of proving or disproving supervisory status, but the Board has consistently placed the burden on the party claiming that the employee is a supervisor. That rule is both reasonable and consistent with Act, which makes supervisors an exception to the general class of employees. It is not contrary to the requirement that the Board must prove the elements of an unfair labor practice, because supervisory status is not an element of the Board's refusal-to-bargain charge. The Board must prove that the employer refused to bargain with the representative of a properly certified unit; the unit was not properly certified only if respondent successfully showed at the certification stage that some employees in the unit were supervisors. Pp. 3-6. 2. The Board's test for determining supervisory status is inconsistent with the Act. The Act deems employees to be "supervisors" if they (1) exercise 1 of 12 listed supervisory functions, including "responsibly direct[ing]" other employees, (2) use "independent judgment" in exercising their authority, and (3) hold their authority in the employer's interest, §2(11). The Board rejected respondent's proof of supervisory status on the ground that employees do not use "independent judgment" under §2(11) when they exercise "ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards." Brief for Petitioner 11. This interpretation, by distinguishing different kinds of judgment, introduces a categorical exclusion into statutory text that does not suggest its existence. The text permits questions regarding the degree of discretion an employee exercises, but the Board's interpretation renders determinative factors that have nothing to do with degree: even a significant judgment only loosely constrained by the employer will not be independent if it is "professional or technical." The Board limits its categorical exclusion with a qualifier that is no less striking: only professional judgment applied in directing less skilled employees to deliver services is not "independent judgment." Hence, the exclusion would apply to only 1 of the listed supervisory functions--"responsibly to direct"--though all 12 require using independent judgment. Contrary to the Board's contention, Congress did not incorporate the Board's categorical restrictions on "independent judgment" when it first added "supervisor" to the Act in 1947. The Board's policy concern regarding the proper balance of labor-management power cannot be given effect through this statutory text. Because this Court may not enforce the Board's order by applying a legal standard the Board did not adopt, NLRB v. Bell Aerospace Co., 416 U. S. 267, 289-290, the Board's error precludes the Court from enforcing its order. Pp. 6-15.193 F. 3d 444, affirmed. Scalia, J., delivered the opinion for a unanimous Court with respect to Part II, and the opinion of the Court with respect to Parts I and III, in which Rehnquist, C. J., and O'Connor, Kennedy, and Thomas, JJ., joined. Stevens, J., filed an opinion concurring in part and dissenting in part, in which Souter, Ginsburg, and Breyer, JJ., joined.NATIONAL LABOR RELATIONS BOARD, PETITIONER v. KENTUCKY RIVER COMMUNITYCARE, INC., et al.on writ of certiorari to the united states court of appeals for the sixth circuit[May 29, 2001] Justice Scalia delivered the opinion of the Court. Under the National Labor Relations Act, employees are deemed to be "supervisors" and thereby excluded from the protections of the Act if, inter alia, they exercise "independent judgment" in "responsibly ... direct[ing]" other employees "in the interest of the employer." 29 U. S. C. §152(11). This case presents two questions: which party in an unfair-labor-practice proceeding bears the burden of proving or disproving an employee's supervisory status; and whether judgment is not "independent judgment" to the extent that it is informed by professional or technical training or experience.I In Pippa Passes, Kentucky, respondent Kentucky River Community Care, Inc., operates a care facility for residents who suffer from mental retardation and mental illness. The facility, named the Caney Creek Developmental Complex (Caney Creek), employs approximately 110 professional and nonprofessional employees in addition to roughly a dozen concededly managerial or supervisory employees. In 1997, the Kentucky State District Council of Carpenters (a labor union that is co-respondent here, supporting petitioner) petitioned the National Labor Relations Board to represent a single unit of all 110 potentially eligible employees at Caney Creek. See National Labor Relations Act (Act) §9(c), 49 Stat. 453, 29 U. S. C. §159(c). At the ensuing representation hearing, respondent objected to the inclusion of Caney Creek's six registered nurses in the bargaining unit, arguing that they were "supervisors" under §2(11) of the Act, 29 U. S. C. §152(11), and therefore excluded from the class of "employees" subject to the Act's protection and includable in the bargaining unit. See §2(3), 29 U. S. C. §152(3). The Board's Regional Director, to whom the Board has delegated its initial authority to determine an appropriate bargaining unit, see §3(b), 29 U. S. C. §153(b); 29 CFR §101.21 (2000), placed the burden of proving supervisory status on respondent, found that respondent had not carried its burden, and therefore included the nurses in the bargaining unit. The Regional Director accordingly directed an election to determine whether the union would represent the unit. See §9(c)(1), 29 U. S. C. §159(c)(1). The Board denied respondent's request for review of the Regional Director's decision and direction of election, and the union won the election and was certified as the representative of the Caney Creek employees. Because direct judicial review of representation determinations is unavailable, AFL v. NLRB, 308 U. S. 401, 409-411 (1940), respondent sought indirect review by refusing to bargain with the union, thereby inducing the General Counsel of the Board to file an unfair labor practice complaint under §§8(a)(1) and 8(a)(5) of the Act, 29 U. S. C. §§158(a)(1), (5). The Board granted summary judgment to the General Counsel pursuant to regulations providing that, absent newly developed evidence, the propriety of a bargaining unit may not be relitigated in an unfair labor practice hearing predicated on a challenge to the representation determination. 29 CFR §102.67(f) (2000); see Magnesium Casting Co. v. NLRB, 401 U. S. 137, 139-141 (1971) (approving that practice); Pittsburgh Plate Glass Co. v. NLRB, 313 U. S. 146, 161-162 (1941) (same). Respondent petitioned for review of the Board's decision in the United States Court of Appeals for the Sixth Circuit, and the Board cross-petitioned. The Sixth Circuit granted respondent's petition as it applied to the nurses and refused to enforce the bargaining order. It held that the Board had erred in placing the burden of proving supervisory status on respondent rather than on its General Counsel, and it rejected the Board's interpretation of "independent judgment," explaining that the Board had erred by classifying "the practice of a nurse supervising a nurse's aide in administering patient care" as " `routine' [simply] because the nurses have the ability to direct patient care by virtue of their training and expertise, not because of their connection with `management.' " 193 F. 3d 444, 453 (1999). We granted the Board's petition for a writ of certiorari. 531 U. S. 1304 (2000).II The Act expressly defines the term "supervisor" in §2(11), which provides:"The term `supervisor' means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment." 29 U. S. C. §152(11).The Act does not, however, expressly allocate the burden of proving or disproving a challenged employee's supervisory status. The Board therefore has filled the statutory gap with the consistent rule that the burden is borne by the party claiming that the employee is a supervisor. For example, when the General Counsel seeks to attribute the conduct of certain employees to the employer by virtue of their supervisory status, this rule dictates that he bear the burden of proving supervisory status. See, e.g., Masterform Tool Co., 327 N. L. R. B. 1071, 1071-1072 (1999). Or, when a union challenges certain ballots cast in a representation election on the basis that they were cast by supervisors, the union bears the burden. See, e.g., Panaro and Grimes, 321 N. L. R. B. 811, 812 (1996). The Board argues that the Court of Appeals for the Sixth Circuit erred in not deferring to its resolution of the statutory ambiguity, and we agree. The Board's rule is supported by "the general rule of statutory construction that the burden of proving justification or exemption under a special exception to the prohibitions of a statute generally rests on one who claims its benefits." FTC v. Morton Salt Co., 334 U. S. 37, 44-45 (1948). The Act's definition of "employee," §2(3), 29 U. S. C. §152(3), "reiterate[s] the breadth of the ordinary dictionary definition" of that term, so that it includes "any `person who works for another in return for financial or other compensation.' " NLRB v. Town & Country Elec., Inc., 516 U. S. 85, 90 (1995) (quoting American Heritage Dictionary 604 (3d ed. 1992)). Supervisors would fall within the class of employees, were they not expressly excepted from it. See Sure-Tan, Inc. v. NLRB, 467 U. S. 883, 891 (1984); cf. Packard Motor Car Co. v. NLRB, 330 U. S. 485 (1947). The burden of proving the applicability of the supervisory exception, under Morton Salt, should thus fall on the party asserting it. In addition, it is easier to prove an employee's authority to exercise 1 of the 12 listed supervisory functions than to disprove an employee's authority to exercise any of those functions, and practicality therefore favors placing the burden on the party asserting supervisory status. We find that the Board's rule for allocating the burden of proof is reasonable and consistent with the Act, and we therefore defer to it. NLRB v. Transportation Management Corp., 462 U. S. 393, 402-403 (1983). Applying its rule to this case, the Board placed on respondent the duty to prove the supervisory status of its nurses both in the §9(c) representation proceeding, where respondent sought to exclude the nurses from the bargaining unit prior to the election, and in the unfair labor practice hearing, where respondent defended against the §8(a)(5) refusal-to-bargain charge. Respondent challenges the application of the rule to the latter proceeding where, it correctly observes and the Board does not dispute, "the General Counsel carries the burden of proving the elements of an unfair labor practice," id., at 401, which means that it bears the burden of persuasion as well as of production, see Administrative Procedure Act, 5 U. S. C. §556(d); Director, Office of Workers' Compensation Programs v. Greenwich Collieries, 512 U. S. 267, 276-278 (1994) (rejecting statement to contrary in NLRB v. Transportation Management Corp., supra, at 404, n. 7). Supervisory status, however, is not an element of the Board's claim in this setting. The Board must prove that the employer refused to bargain with the representative of a unit of "employees," §8(a)(5), 29 U. S. C. §158(a)(5), that was properly certified; the unit was not properly certified (as the respondent contends) only if the respondent successfully demonstrated, at the certification stage, that some employees in the unit were also supervisors. In the unfair labor practice proceeding, therefore, the burden remains on the employer to establish the excepted status of these nurses. Insofar as the Court of Appeals held otherwise, it erred. It remains to consider whether the court's other holding that is challenged here suffices to sustain its judgment.III The text of §2(11) of the Act that we quoted above, 29 U. S. C. §152(11), sets forth a three-part test for determining supervisory status. Employees are statutory supervisors if (1) they hold the authority to engage in any 1 of the 12 listed supervisory functions, (2) their "exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment," and (3) their authority is held "in the interest of the employer." NLRB v. Health Care & Retirement Corp. of America, 511 U. S. 571, 573-574 (1994). The only basis asserted by the Board, before the Court of Appeals and here, for rejecting respondent's proof of supervisory status with respect to directing patient care was the Board's interpretation of the second part of the test — to wit, that employees do not use "independent judgment" when they exercise "ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards." Brief for Petitioner 11. The Court of Appeals rejected that interpretation, and so do we. Two aspects of the Board's interpretation are reasonable, and hence controlling on this Court, see NLRB v. Town & Country Elec., Inc., supra, at 89-90; Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U. S. 837, 842-844 (1984). First, it is certainly true that the statutory term "independent judgment" is ambiguous with respect to the degree of discretion required for supervisory status. See NLRB v. Health Care & Retirement Corp. of America, supra, at 579. Many nominally supervisory functions may be performed without the "exercis[e of] such a degree of ... judgment or discretion ... as would warrant a finding" of supervisory status under the Act. Weyerhaeuser Timber Co., 85 N. L. R. B. 1170, 1173 (1949). It falls clearly within the Board's discretion to determine, within reason, what scope of discretion qualifies. Second, as reflected in the Board's phrase "in accordance with employer-specified standards," it is also undoubtedly true that the degree of judgment that might ordinarily be required to conduct a particular task may be reduced below the statutory threshold by detailed orders and regulations issued by the employer. So, for example, in Chevron Shipping Co., 317 N. L. R. B. 379, 381 (1995), the Board concluded that "although the contested licensed officers are imbued with a great deal of responsibility, their use of independent judgment and discretion is circumscribed by the master's standing orders, and the Operating Regulations, which require the watch officer to contact a superior officer when anything unusual occurs or when problems occur." The Board, however, argues further that the judgment even of employees who are permitted by their employer to exercise a sufficient degree of discretion is not "independent judgment" if it is a particular kind of judgment, namely, "ordinary professional or technical judgment in directing less-skilled employees to deliver services." Brief for Petitioner 11. The first five words of this interpretation insert a startling categorical exclusion into statutory text that does not suggest its existence. The text, by focusing on the "clerical" or "routine" (as opposed to "independent") nature of the judgment, introduces the question of degree of judgment that we have agreed falls within the reasonable discretion of the Board to resolve. But the Board's categorical exclusion turns on factors that have nothing to do with the degree of discretion an employee exercises. Cf. Whitman v. American Trucking Assns., Inc., 531 U. S. 457, 481 (2001) ("[T]he agency's interpretation goes beyond the limits of what is ambiguous and contradicts what in our view is quite clear"). Let the judgment be significant and only loosely constrained by the employer; if it is "professional or technical" it will nonetheless not be independent.1 The breadth of this exclusion is made all the more startling by virtue of the Board's extension of it to judgment based on greater "experience" as well as formal training. See Reply Brief for Petitioner 3 ("professional or technical skill or experience"). What supervisory judgment worth exercising, one must wonder, does not rest on "professional or technical skill or experience"? If the Board applied this aspect of its test to every exercise of a supervisory function, it would virtually eliminate "supervisors" from the Act. Cf. NLRB v. Yeshiva Univ., 444 U. S. 672, 687 (1980) (Excluding "decisions ... based on ... professional expertise" would risk "the indiscriminate recharacterization as covered employees of professionals working in supervisory and managerial capacities"). As it happens, though, only one class of supervisors would be eliminated in practice, because the Board limits its categorical exclusion with a qualifier: Only professional judgment that is applied "in directing less-skilled employees to deliver services" is excluded from the statutory category of "independent judgment." Brief for Petitioner 11. This second rule is no less striking than the first, and is directly contrary to the text of the statute. Every supervisory function listed by the Act is accompanied by the statutory requirement that its exercise "requir[e] the use of independent judgment" before supervisory status will obtain, §152(11), but the Board would apply its restriction upon "independent judgment" to just 1 of the 12 listed functions: "responsibly to direct." There is no apparent textual justification for this asymmetrical limitation, and the Board has offered none. Surely no conceptual justification can be found in the proposition that supervisors exercise professional, technical, or experienced judgment only when they direct other employees. Decisions "to hire, ... suspend, lay off, recall, promote, discharge, ... or discipline" other employees, ibid., must often depend upon that same judgment, which enables assessment of the employee's proficiency in performing his job. See NLRB v. Yeshiva Univ., supra, at 686 ("[M]ost professionals in managerial positions continue to draw on their special skills and training"). Yet in no opinion that we were able to discover has the Board held that a supervisor's judgment in hiring, disciplining, or promoting another employee ceased to be "independent judgment" because it depended upon the supervisor's professional or technical training or experience. When an employee exercises one of these functions with judgment that possesses a sufficient degree of independence, the Board invariably finds supervisory status. See, e.g., Trustees of Noble Hospital, 218 N. L. R. B. 1441, 1442 (1975). The Board's refusal to apply its limiting interpretation of "independent judgment" to any supervisory function other than responsibly directing other employees is particularly troubling because just seven years ago we rejected the Board's interpretation of part three of the supervisory test that similarly was applied only to the same supervisory function. See NLRB v. Health Care & Retirement Corp. of America, 511 U. S. 571 (1994). In Health Care, the Board argued that nurses did not exercise their authority "in the interest of the employer," as §152(11) requires, when their "independent judgment [was] exercised incidental to professional or technical judgment" instead of for "disciplinary or other matters, i.e., in addition to treatment of patients." Northcrest Nursing Home, 313 N. L. R. B. 491, 505 (1993). It did not escape our notice that the target of this analysis was the supervisory function of responsible direction. "Under §2(11)," we noted, "an employee who in the course of employment uses independent judgment to engage in 1 of the 12 listed activities, including responsible direction of other employees, is a supervisor. Under the Board's test, however, a nurse who in the course of employment uses independent judgment to engage in responsible direction of other employees is not a supervisor." 522 U. S. 359, 374 (1998) (an agency that announces one principle but applies another is not acting rationally under the Act). The Board contends, however, that Congress incorporated the Board's categorical restrictions on "independent judgment" when it first added the term "supervisor" to the Act in 1947. We think history shows the opposite. The Act as originally passed by Congress in 1935 did not mention supervisors directly. It extended to "employees" the "right to self-organization, to form, join, or assist labor organizations, [and] to bargain collectively through representatives of their own choosing ... ." Act of July 5, 1935, §7, 49 Stat. 452, and it defined "employee" expansively (if circularly) to "include any employee," §2(3). We therefore held that supervisors were protected by the Act. Packard Motor Car Co. v. NLRB, 330 U. S. 485 (1947). Congress in response added to the Act the exemption we had found lacking. The Labor Management Relations Act of 1947 (Taft-Hartley Act) expressly excluded "supervisors" from the definition of "employees" and thereby from the protections of the Act. §2(3), 61 Stat. 137, as amended, 29 U. S. C. §152(3) ("The term `employee' ... shall not include ... any individual employed as a supervisor"); Taft-Hartley Act §14(a), as amended, 29 U. S. C. §164(a) ("[N]o employer [covered by the Act] shall be compelled to deem individuals defined herein as supervisors as employees for the purposes ofany law, either national or local, relating to collective bargaining"). Well before the Taft-Hartley Act added the term "supervisor" to the Act, however, the Board had already been defining it, because while the Board agreed that supervisors were protected by the 1935 Act, it also determined that they should not be placed in the same bargaining unit as the employees they oversaw. To distinguish the two groups, the Board defined "supervisors" as employees who "supervise or direct the work of [other] employees ... , and who have authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of such employees." Douglas Aircraft Co., 50 N. L. R. B. 784, 787 (1943) (emphasis added). The "and" bears emphasis because it was a true conjunctive: The Board consistently held that employees whose only supervisory function was directing the work of other employees were not "supervisors" within its test. For example, in Bunting Brass & Bronze Co., 58 N. L. R. B. 618, 620 (1944), the Board wrote: "We are of the opinion that, while linemen do direct the work of [other] employees, they do not exercise substantial supervisory authority within the usual meaning of that term." See also, e.g., Duval Texas Sulphur Co., 53 N. L. R. B. 1387, 1390-1391 (1943) ("As to the chief electrician, motor mechanic, plant engineers, and drillers, ... [t]he fact that they work with helpers, and perforce direct and guide the work of their helpers, does not, of itself, elevate them to such supervisory rank that they must be excluded from the broad production and maintenance unit"). When the Taft-Hartley Act added the term "supervisor" to the Act in 1947, it largely borrowed the Board's definition of the term, with one notable exception: Whereas the Board required a supervisor to direct the work of other employees and perform another listed function, the Act permitted direction alone to suffice. "The term `supervisor' means any individual having authority ... to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances." Taft-Hartley Act §2(11), as amended, 29 U. S. C. §152(11) (emphasis added). Moreover, the Act assuredly did not incorporate the Board's current interpretation of the term "independent judgment" as applied to the function of responsible direction, since the Board had not yet developed that interpretation. It had had no reason to do so, because it had limited the category of supervisors more directly, by requiring functions in addition to responsible direction. It is the Act's alteration of precisely that aspect of the Board's jurisprudence that has pushed the Board into a running struggle to limit the impact of "responsibly to direct" on the number of employees qualifying for supervisory status — presumably driven by the policy concern that otherwise the proper balance of labor-management power will be disrupted. It is upon that policy concern that the Board ultimately rests its defense of its interpretation of "independent judgment." In arguments that parallel those expressed by the dissent in Health Care, see 494 U. S. 775, 786 (1990)). It is that the policy cannot be given effect through this statutory text. See Health Care, supra, at 581 ("[T]here may be `some tension between the Act's exclusion of [supervisory and] managerial employees and its inclusion of professionals,' but we find no authority for `suggesting that that tension can be resolved' by distorting the statutory language in the manner proposed by the Board") (quoting NLRB v. Yeshiva Univ., supra, at 686). Perhaps the Board could offer a limiting interpretation of the supervisory function of responsible direction by distinguishing employees who direct the manner of others' performance of discrete tasks from employees who direct other employees, as §152(11) requires. Certain of the Board's decisions appear to have drawn that distinction in the past, see, e.g., Providence Hospital, 320 N. L. R. B. 717, 729 (1996). We have no occasion to consider it here, however, because the Board has carefully insisted that the proper interpretation of "responsibly to direct" is not at issue in this case, see Brief for Petitioner 21-22, n. 9; Reply Brief for Petitioner 7-8, n. 6. What is at issue is the Board's contention that the policy of covering professional employees under the Act justifies the categorical exclusion of professional judgments from a term, "independent judgment," that naturally includes them. And further, that it justifies limiting this categorical exclusion to the supervisory function of responsibly directing other employees. These contentions contradict both the text and structure of the statute, and they contradict as well the rule of Health Care that the test for supervisory status applies no differently to professionals than to other employees. 511 U. S., at 581. We therefore find the Board's interpretation unlawful. See Allentown Mack Sales & Service, Inc. v. NLRB, 522 U. S., at 364 ("Courts must defer to the requirements imposed by the Board if they are `rational and consistent with the Act,' and if the Board's `explication is not inadequate, irrational or arbitrary' " (citations omitted)).* * * We may not enforce the Board's order by applying alegal standard the Board did not adopt, NLRB v. Bell Aerospace Co., 416 U. S. 267, 289-290 (1974); SEC v. Chenery Corp., 318 U. S. 80, 87-88 (1943), and, as we noted above, supra, at 6, the Board has not asked us to do so. Hence, the Board's error in interpreting "independent judgment" precludes us from enforcing its order. Our decision in Health Care, where the Board similarly had not asserted that its decision was correct on grounds apart from the one we rejected, see 511 U. S., at 584, simply affirmed the judgment of the Court of Appeals denying enforcement. Since that same condition applies here, see Brief for Petitioner 14; id., at 42, and since neither party has suggested that Health Care's method for determining the propriety of a remand should not apply here, we take the same course.3 "Our conclusion that the Court of Appeals was correct to find the Board's test inconsistent with the statute ... suffices to resolve the case." Health Care, supra, at 584. The judgment of the Court of Appeals is affirmed.It is so ordered.NATIONAL LABOR RELATIONS BOARD, PETITIONER v. KENTUCKY RIVER COMMUNITYCARE, INC., et al.on writ of certiorari to the united states court of appeals for the sixth circuit[May 29, 2001] Justice Stevens, with whom Justice Souter, Justice Ginsburg, and Justice Breyer join, concurring in part and dissenting in part. In my opinion, the National Labor Relations Board correctly found that respondent, Kentucky River Community Care, Inc., failed to prove that the six registered nurses employed at its facility in Pippa Passes, Kentucky, are "supervisors" within the meaning of the National Labor Relations Act. While we are unanimous in holding that the Court of Appeals set aside that finding based upon an incorrect allocation of the burden of proof, we disagree as to whether the Court of Appeals correctly concluded that the Board misinterpreted the provision of the NLRA excluding supervisors from the Act's coverage. Moreover, even if I agreed with the majority's view that the Board's interpretation was error, that error would not justify affirming the erroneous decision of the Court of Appeals.I In the proceedings before the Board, respondent relied heavily on the fact that two registered nurses (RNs) served as "building supervisors" on weekends, and on the second and third shifts. However, as the Regional Director who considered the evidence noted, the RNs received no extra compensation for serving as building supervisors and did not have keys to the facility. Instead, the only additional responsibility shouldered by the RNs when serving as building supervisors was that of contacting other employees if a shift was not fully staffed according to preestablished ratios not set by the RNs. However, the RNs had no authority to compel an employee to stay on duty or to come to work to fill a vacancy under threat of discipline. With respect to the RNs' regular duties, while they might "occasionally request other employees to perform routine tasks," they had no "authority to take any action if the employee refuse[d] their directives."1 App. to Pet. for Cert. 51a. In their routine work, they had no "authority to hire, fire, reward, promote, or independently discipline employees or to effectively recommend such action. They did not evaluate employees or take any action which would affect their employment status." Id., at 52a. Indeed, the RNs, even when serving as "building supervisors," for the most part "work[ed] independently and by themselves without any subordinates." Ibid. Based on his evaluation of the evidence, the NLRB's Regional Director applied "the same test to registered nurses as is applicable to all other individuals in determining supervisory status." Ibid. Under that test, he concluded that "only supervisory personnel vested with `genuine management prerogatives' should be considered supervisors and not `straw bosses, leadmen, set-up men and other minor supervisory employees.' " Id., at 53a (quoting Chicago Metallic Corp., 273 N. L. R. B. 1677, 1688 (1985)). He did, however, exclude from the bargaining unit 10 specific supervisors including the nursing coordinator. App. to Pet. for Cert. 54a. Over the dissent of Judge Jones, the Court of Appeals set aside the Board's order. The panel majority first criticized the Board for ignoring its "repeated admonition" that the NLRB "has the burden of proving that employees are not supervisors." Id., at 15a. After acknowledging that "whether an employee is a supervisor is a highly fact-intensive inquiry," that majority concluded that the RNs' duties as building supervisors involved "independent judgment which is not limited to, or inherent in, the professional training of nurses." Id., at 18a-19a. The panel majority also criticized the NLRB for interpreting the admittedly ambiguous statutory term "independent judgment" inconsistently with Sixth Circuit precedent.2II Although it is not necessary to do so to overturn the Court of Appeals' decision, the NLRB has asked us to reject the Sixth Circuit's interpretation of the term "independent judgment." In contrast to the Sixth Circuit, the NLRB interprets the term "independent judgment" as not including the exercise of ordinary professional or technical judgment in directing less-skilled employees to deliver services in accordance with employer-specified standards.3 Providence Hospital and Alaska Nurses Assn., 320 N. L. R. B. 717 (1996), enforced, 121 F. 3d 548 (CA9 1997); Nymed, Inc., 320 N. L. R. B. 806 (1996); see also, e.g., Graphics Typography, Inc., 217 N. L. R. B. 1047, 1053 (1975), enforced mem., 547 F. 2d 1162 (CA3 1976). The Board's interpretation is a familiar one, which has been routinely applied in other employment contexts. See Providence, 320 N. L. R. B., at 717; Graphics Typography, 217 N. L. R. B., at 1053. Applying that interpretation, the NLRB has concluded that in some cases the employees in question are supervisors, and that in others they are not.4 See Brief for Petitioner, 17-19, nn. 5-7 (collecting cases); see also Brief for Respondent Kentucky State District Council of Carpenters 36, n. 16 (collecting cases). The question before us is whether the Board's interpretation is both "rational and consistent with the Act."5 NLRB v. Curtin Matheson Scientific, Inc., 494 U. S. 775, 796 (1990); see Fall River Dyeing & Finishing Corp. v. NLRB, 482 U. S. 27, 42 (1987). To my mind, the Board's test is both fully rational and entirely consistent with the Act. The term "independent judgment" is indisputably ambiguous, and it is settled law that the NLRB's interpretation of ambiguous language in the National Labor Relations Act is entitled to deference.6 See NLRB v. Health Care and Retirement Corporation (HCR), 511 U. S. 571, 579 (1994); Auciello Iron Works, Inc. v. NLRB, 517 U. S. 781, 787-188 (1996); Curtin Matheson Scientific, Inc., 494 U. S., at 786-787. Such deference is particularly appropriate when the statutory ambiguity is compounded by the use of one ambiguous term--"independent judgment"--to modify another, equally ambiguous term — namely, "responsibly to direct." Moreover, since Congress has expressly provided that professional employees are entitled to the protection of the Act, there is good reason to resolve the ambiguities consistently with the Board's interpretation. At the same time that Congress acted to exclude supervisors from the NLRA's protection, it explicitly extended those sameprotections to professionals, who, by definition, engagein work that involves "the consistent exercise of dis-cretion and judgment in its performance."7 29 U. S. C. §152(12)(a)(ii). As this Court has acknowledged, the inclusion of professional employees and the exclusion of supervisors necessarily gives rise to some tension in the statutory text. Cf. NLRB v. Yeshiva Univ., 444 U. S. 672, 686 (1980). Accordingly, if the term "supervisor" is construed too broadly, without regard for the statutory context, then Congress' inclusion of professionals within the Act's protections is effectively nullified.8 See HCR, 511 U. S., at 585 (Ginsburg, J., dissenting). In my opinion, the Court's approach does precisely what it accuses the Board of doing — namely, reading one part of the statute to the exclusion of the other. The Court acknowledges today that deference is appropriate when the Board determines both the degree of discretion required for supervisory status as well as the significance of limitations on the alleged supervisor's discretion imposed by the employer. Thus, in a case like this, a court should not second-guess the Board's evaluation of the authority of the nurses as building supervisors, or of the significance of the employer's definition of that authority. However, in a tour de force supported by little more than ipse dixit, the Court concludes that no deference is due the Board's evaluation of the "kind of judgment" that professional employees exercise. Ante, at 7. Thus, under the Court's view, it is impermissible for the Board to attach a different weight to a nurse's judgment that an employee should be reassigned or disciplined than to a nurse's judgment that the employee should take a patient's temperature, even if nurses routinely instruct others to take a patient's temperature but do not ordinarily reassign or discipline employees. The Court's approach finds no support in the text of the statute, and is inconsistent with our case law. See, e.g., Yeshiva, 444 U. S., at 690 ("Only if an employee's activities fall outside of the scope of the duties routinely performed by similarly situated professionals will he be found aligned with management").9 The Court further argues that the Board errs by not applying its limiting interpretation of the term "independent judgment" to all 12 functions identified by the statute as supervisory in nature. Ante, at 8-9. But of those 12, it is only "responsibly to direct" that is ambiguous and thus capable of swallowing the whole if not narrowly construed. The authority to "promote" or to "discharge," to use only two examples, is specific and readily identifiable. In contrast, the authority "responsibly to direct" is far more vague. Thus, it is only logical for the term "independent judgment" to take on different contours depending on the nature of the supervisory function at issue and its comparative ambiguity. Simply put, these are quintessential examples of terms that the expert agency should be allowed to interpret in the light of the policies animating the statute. See, e.g., Curtin Matheson, 467 U. S. 837, 843 (1984). Because the Board's interpretation is fully consistent both with the statutory text and with the policy favoring collective bargaining by professional employees, this Court is obligated to uphold it. III Even if I shared the majority's view that the term "independent judgment" should be given the same meaning when applied to each of the 12 supervisory functions and when applied to professional and nonprofessional employees, I would not simply affirm the judgment of the Court of Appeals. Cf. NLRB v. Bell Aerospace Co., 416 U. S. 267, 289-290 (1974); SEC v. Chenery Corp., 318 U. S. 80, 87-88 (1943). The Court's rejection of the Board's interpretation of the term "independent judgment" does not justify a categorical affirmance of the Sixth Circuit's decision, which rests in part on an erroneous allocation of the burden of proof.10 In any case, I do not agree with the majority's view. Given the Regional Director's findings that the RNs' duties as building supervisors do not qualify them as "supervisors" within the meaning of 29 U. S. C. §152(11), and that they, "for the most part, work independently and by themselves without any subordinates," it is absolutely clear that the nurses in question are covered by the NLRA.11 The Court's willingness to treat them as supervisors even if they have no subordinates12 is particularly ironic when compared to the Board's undisturbed decision to deny supervisory status to the other group of professionals employed by respondent — namely, the 20 rehabilitation counselors who supervise the work of 40 rehabilitation assistants. Accordingly, while I join Part II of the Court's opinion, I respectfully dissent from its holding. I would reverse the judgment of the Court of Appeals.FOOTNOTESFootnote 1 The Board in its reply brief in this Court steps back from this interpretation and argues that it has only drawn distinctions between degrees of authority. Reply Brief for Petitioner 3. But the opinions of the Board that developed its current interpretation of "independent judgment" clearly draw a categorical distinction. See, e.g., Providence Hospital, 320 N. L. R. B. 717, 729 (1996) ("Section 2(11) supervisory authority does not include the authority of an employee to direct another to perform discrete tasks stemming from the directing employee's experience, skills, training, or position"). It is those opinions that were cited in the Regional Director's opinion resolving the representation dispute, see App. to Pet. for Cert. 52a-53a, which was accepted without further review by the Board and was unreviewable in the unfair labor practice proceeding. "We do not, of course, substitute counsel's post hoc rationale for the reasoning supplied by the Board itself." NLRB v. Yeshiva Univ., 444 U. S. 672, 685, n. 22 (1980) (citing SEC v. Chenery Corp., 332 U. S. 194, 196 (1947)).Footnote 2 Justice Stevens argues in this case, see post, at 4-5 (opinion concurring in part and dissenting in part), as the Board argued in NLRB v. Health Care & Retirement Corp. of America, 511 U. S. 571, 579 (1994), that the strain is eased by the ambiguity of a different term in the statute, "responsibly to direct." That argument is no more persuasive now than when we rejected it in Health Care: "[A]mbiguity in one portion of a statute does not give the Board license to distort other provisions of the statute," ibid.Footnote 3 Our decision in Health Care cannot be distinguished, as Justice Stevens suggests, see post, at 8, n. 10, on the ground that there we found that the Court of Appeals had not erred in any respect. The basis for remand to an agency is the agency's error on a point of law, not the reviewing court's. (That the reviewing court erred is irrelevant in light of "the settled rule that, in reviewing the decision of a lower court, it must be affirmed if the result is correct `although the lower court relied upon a wrong ground or gave a wrong reason,' " SEC v. Chenery Corp., 318 U. S. 80, 88 (1943) (quoting Helvering v. Gowran, 302 U. S. 238, 245 (1937))). And in Health Care, as here, the Board erred in interpreting the test for supervisory status.FOOTNOTESFootnote 1 The RNs did have the authority to file "incident reports, but so [could] any other employee." App. to Pet. for Cert. 51a. Footnote 2 "According to NLRB interpretations, the practice of a nurse supervising a nurse's aide in administering patient care, for example, does not involve `independent judgment.' The NLRB classifies these activities as `routine' because the nurses have the ability to direct patient care by virtue of their training and expertise, not because of their connection with `management.' " App. to Pet. for Cert. 17a.Footnote 3 Oddly, the majority in this Court omits one element — namely, "in accordance with employer-specified standards." Ante, at 8-9. In so doing, it ignores a key nuance in the NLRB's position. That, however, is characteristic of the majority's treatment of the NLRB's position, which is at once more fact specific and far less categorical than the majority makes it out to be.Footnote 4 The majority, however, pays scant heed to the adjudicative record when it asserts that the Board's interpretation would in essence eliminate the supervisory exception with respect to the "responsibly to direct" function. See ante, at 7-8.Footnote 5 "[I]n many ... contexts of labor policy, `[t]he ultimate problem is the balancing of the conflicting legitimate interests. 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.' " Beth Israel Hospital v. NLRB, 437 U. S. 483, 501 (1978) (quoting NLRB v. Truck Drivers). Footnote 6 The majority suggests that the Board's interpretation of the term "independent judgment" is particularly problematic in light of this Court's decision in NLRB v. Health Care & Retirement Corp. of America, 511 U. S. 571 (1994) (HCR). But in HCR, this Court concluded that the terms "independent judgment" and "responsibly to direct" were ambiguous, while the term at issue in that case, "in the interest of the employer," was not. Id., at 579. Footnote 7 As the American Nurses Association point out in its amicus brief, the scope of nursing practice routinely involves the exercise of judgment and the supervision of others. Brief for the American Nursing Association as Amicus Curiae 2-6.Footnote 8 Moreover, so broad a reading seems contrary to congressional intent in enacting the supervisory exception. Rather, the definition of "supervisor" was intended to apply only to those employees with "genuine management prerogatives" so that those employees excluded from the Act's coverage would be "truly supervisory." S. Rep. No. 105, 80th Cong., 1st Sess., 19 (1947), 1 NLRB, Legislative History of the Labor Management Relations Act, 1947, pp. 410, 425 (1948). Footnote 9 In fact, in Yeshiva, 444 U. S., at 690, this Court concluded that the NLRB's decisions adopting such an approach "accurately capture[d] the intent of Congress."Footnote 10 Even under the Court's approach, since the NLRB might well prevail under the correct allocation of the burden of proof, the appropriate course of action in this case would be to return the case to the NLRB for further proceedings. See NLRB v. Bell Aerospace Co., 416 U. S. 267, 295 (1974); see also Electrical Workers v. NLRB, 366 U. S. 667 (1961); Ford Motor Co. v. NLRB, 305 U. S. 364 (1939). HCR, on which the majority relies, see ante, at 15, is not to the contrary. In that case, unlike in this one, we found no error in the lower court's decision. Here, however, the lower court erred in its allocation of the burden of proof, a fact which would seem to make a remand to the NLRB in order to apply what the majority deems to be the correct legal principle particularly appropriate.Footnote 11 Nor do the RNs exercise any of the other supervisorial functions listed in §152(11). They play no role in assigning staff to shifts on a permanent basis or in setting the staff-to-resident ratio. App. 18-19, 23-24. As noted above, the RNs, whether functioning in their ordinary capacity or as "building supervisors," do not have authority to hire, fire, reward, promote, or independently discipline employees, or to effectively recommend such action. Nor, for that matter, do they evaluate employees or take action that would affect their employment status. Footnote 12 Neither the licensed practical nurses nor the rehabilitation assistants report to the RNs. Id., at 30, 34, 45, 61.

1. Embezzled money is taxable income of the embezzler in the year of the embezzlement under 22 (a) of the Internal Revenue Code of 1939, which defines "gross income" as including "gains or profits and income derived from any source whatever," and under 61 (a) of the Internal Revenue Code of 1954, which defines "gross income" as "all income from whatever source derived." Commissioner v. Wilcox, , overruled. Pp. 213-222.2. After this Court's decision in Commissioner v. Wilcox, supra, petitioner embezzled large sums of money during the years 1951 through 1954. He failed to report those amounts as gross income in his income tax returns for those years, and he was convicted of "willfully" attempting to evade the federal income tax due for each of the years 1951 through 1954, in violation of 145 (b) of the Internal Revenue Code of 1939 and 7201 of the Internal Revenue Code of 1954. Held: The judgment affirming the conviction is reversed and the cause is remanded with directions to dismiss the indictment. Pp. 214-215, 222. 273 F.2d 5, reversed.Richard E. Gorman argued the cause and filed a brief for petitioner.Assistant Deputy Attorney General Heffron argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Rice and Meyer Rothwacks.MR. CHIEF JUSTICE WARREN announced the judgment of the Court and an opinion in which MR. JUSTICE BRENNAN and MR. JUSTICE STEWART concur.The issue before us in this case is whether embezzled funds are to be included in the "gross income" of the embezzler in the year in which the funds are misappropriated under 22 (a) of the Internal Revenue Code of 19391 and 61 (a) of the Internal Revenue Code of 1954.2 The facts are not in dispute. The petitioner is a union official who, with another person, embezzled in excess of $738,000 during the years 1951 through 1954 from his employer union and from an insurance company with which the union was doing business.3 Petitioner failed to report these amounts in his gross income in those years and was convicted for willfully attempting to evade the federal income tax due for each of the years 1951 through 1954 in violation of 145 (b) of the Internal Revenue Code of 19394 and 7201 of the Internal Revenue Code of 1954.5 He was sentenced to a total of three years' imprisonment. The Court of Appeals affirmed. 273 F.2d 5. Because of a conflict with this Court's decision in Commissioner v. Wilcox, , a case whose relevant facts are concededly the same as those in the case now before us, we granted certiorari. .In Wilcox, the Court held that embezzled money does not constitute taxable income to the embezzler in the year of the embezzlement under 22 (a) of the Internal Revenue Code of 1939. Six years later, this Court held, in Rutkin v. United States, , that extorted money does constitute taxable income to the extortionist in the year that the money is received under 22 (a) of the Internal Revenue Code of 1939. In Rutkin, the Court did not overrule Wilcox, but stated: "We do not reach in this case the factual situation involved in Commissioner v. Wilcox, . We limit that case to its facts. There embezzled funds were held not to constitute taxable income to the embezzler under 22 (a)." Id., at 138.6 However, examination of the reasoning used in Rutkin leads us inescapably to the conclusion that Wilcox was thoroughly devitalized.The basis for the Wilcox decision was "that a taxable gain is conditioned upon (1) the presence of a claim of right to the alleged gain and (2) the absence of a definite, unconditional obligation to repay or return that which would otherwise constitute a gain. Without some bona fide legal or equitable claim, even though it be contingent or contested in nature, the taxpayer cannot be said to have received any gain or profit within the reach of 22 (a)." Commissioner v. Wilcox, supra, at p. 408. Since Wilcox embezzled the money, held it "without any semblance of a bona fide claim of right," ibid., and therefore "was at all times under an unqualified duty and obligation to repay the money to his employer," ibid., the Court found that the money embezzled was not includible within "gross income." But, Rutkin's legal claim was no greater than that of Wilcox. It was specifically found "that petitioner had no basis for his claim ... and that he obtained it by extortion." Rutkin v. United States, supra, at p. 135. Both Wilcox and Rutkin obtained the money by means of a criminal act; neither had a bona fide claim of right to the funds.7 Nor was Rutkin's obligation to repay the extorted money to the victim any less than that of Wilcox. The victim of an extortion, like the victim of an embezzlement, has a right to restitution. Furthermore, it is inconsequential that an embezzler may lack title to the sums he appropriates while an extortionist may gain a voidable title. Questions of federal income taxation are not determined by such "attenuated subtleties." Lucas v. Earl, ; Corliss v. Bowers, . Thus, the fact that Rutkin secured the money with the consent of his victim, Rutkin v. United States, supra, at p. 138, is irrelevant. Likewise unimportant is the fact that the sufferer of an extortion is less likely to seek restitution than one whose funds are embezzled. What is important is that the right to recoupment exists in both situations.Examination of the relevant cases in the courts of appeals lends credence to our conclusion that the Wilcox rationale was effectively vitiated by this Court's decision in Rutkin.8 Although this case appears to be the first to arise that is "on all fours" with Wilcox, the lower federal courts, in deference to the undisturbed Wilcox holding, have earnestly endeavored to find distinguishing facts in the cases before them which would enable them to include sundry unlawful gains within "gross income."9 It had been a well-established principle, long before either Rutkin or Wilcox, that unlawful, as well as lawful, gains are comprehended within the term "gross income." Section II B of the Income Tax Act of 1913 provided that "the net income of a taxable person shall include gains, profits, and income ... from ... the transaction of any lawful business carried on for gain or profit, or gains or profits and income derived from any source whatever ... ." (Emphasis supplied.) 38 Stat. 167. When the statute was amended in 1916, the one word "lawful" was omitted. This revealed, we think, the obvious intent of that Congress to tax income derived from both legal and illegal sources, to remove the incongruity of having the gains of the honest laborer taxed and the gains of the dishonest immune. Rutkin v. United States, supra, at p. 138; United States v. Sullivan, . Thereafter, the Court held that gains from illicit traffic in liquor are includible within "gross income." Ibid. See also Johnson v. United States, ; United States v. Johnson, . And, the Court has pointed out, with approval, that there "has been a widespread and settled administrative and judicial recognition of the taxability of unlawful gains of many kinds," Rutkin v. United States, supra, at p. 137. These include protection payments made to racketeers, ransom payments paid to kidnappers, bribes, money derived from the sale of unlawful insurance policies, graft, black market gains, funds obtained from the operation of lotteries, income from race track bookmaking and illegal prize fight pictures. Ibid.The starting point in all cases dealing with the question of the scope of what is included in "gross income" begins with the basic premise that the purpose of Congress was "to use the full measure of its taxing power." Helvering v. Clifford, . And the Court has given a liberal construction to the broad phraseology of the "gross income" definition statutes in recognition of the intention of Congress to tax all gains except those specifically exempted. Commissioner v. Jacobson, ; Helvering v. Stockholms Enskilda Bank, . The language of 22 (a) of the 1939 Code, "gains or profits and income derived from any source whatever," and the more simplified language of 61 (a) of the 1954 Code, "all income from whatever source derived," have been held to encompass all "accessions to wealth, clearly realized, and over which the taxpayers have complete dominion." Commissioner v. Glenshaw Glass Co., . A gain "constitutes taxable income when its recipient has such control over it that, as a practical matter, he derives readily realizable economic value from it." Rutkin v. United States, supra, at p. 137. Under these broad principles, we believe that petitioner's contention, that all unlawful gains are taxable except those resulting from embezzlement, should fail.When a taxpayer acquires earnings, lawfully or unlawfully, without the consensual recognition, express or implied, of an obligation to repay and without restriction as to their disposition, "he has received income which he is required to return, even though it may still be claimed that he is not entitled to retain the money, and even though he may still be adjudged liable to restore its equivalent." North American Oil v. Burnet, supra, at p. 424. In such case, the taxpayer has "actual command over the property taxed - the actual benefit for which the tax is paid," Corliss v. Bowers, supra. This standard brings wrongful appropriations within the broad sweep of "gross income"; it excludes loans. When a law-abiding taxpayer mistakenly receives income in one year, which receipt is assailed and found to be invalid in a subsequent year, the taxpayer must nonetheless report the amount as "gross income" in the year received. United States v. Lewis, supra; Healy v. Commissioner, supra. We do not believe that Congress intended to treat a law-breaking taxpayer differently. Just as the honest taxpayer may deduct any amount repaid in the year in which the repayment is made, the Government points out that, "If, when, and to the extent that the victim recovers back the misappropriated funds, there is of course a reduction in the embezzler's income." Brief for the United States, p. 24.10 Petitioner contends that the Wilcox rule has been in existence since 1946; that if Congress had intended to change the rule, it would have done so; that there was a general revision of the income tax laws in 1954 without mention of the rule; that a bill to change it11 was introduced in the Eighty-sixth Congress but was not acted upon; that, therefore, we may not change the rule now. But the fact that Congress has remained silent or has re-enacted a statute which we have construed, or that congressional attempts to amend a rule announced by this Court have failed, does not necessarily debar us from re-examining and correcting the Court's own errors. Girouard v. United States, ; Helvering v. Hallock, . There may have been any number of reasons why Congress acted as it did. Helvering v. Hallock, supra. One of the reasons could well be our subsequent decision in Rutkin which has been thought by many to have repudiated Wilcox. Particularly might this be true in light of the decisions of the Courts of Appeals which have been riding a narrow rail between the two cases and further distinguishing them to the disparagement of Wilcox. See notes 8 and 9, supra.We believe that Wilcox was wrongly decided and we find nothing in congressional history since then to persuade us that Congress intended to legislate the rule. Thus, we believe that we should now correct the error and the confusion resulting from it, certainly if we do so in a manner that will not prejudice those who might have relied on it. Cf. Helvering v. Hallock, supra, at 119. We should not continue to confound confusion, particularly when the result would be to perpetuate the injustice of relieving embezzlers of the duty of paying income taxes on the money they enrich themselves with through theft while honest people pay their taxes on every conceivable type of income.But, we are dealing here with a felony conviction under statutes which apply to any person who "willfully" fails to account for his tax or who "willfully" attempts to evade his obligation. In Spies v. United States, , the Court said that 145 (b) of the 1939 Code embodied "the gravest of offenses against the revenues," and stated that willfulness must therefore include an evil motive and want of justification in view of all the circumstances. Id., at 498. Willfulness "involves a specific intent which must be proven by independent evidence and which cannot be inferred from the mere understatement of income." Holland v. United States, .We believe that the element of willfulness could not be proven in a criminal prosecution for failing to include embezzled funds in gross income in the year of misappropriation so long as the statute contained the gloss placed upon it by Wilcox at the time the alleged crime was committed. Therefore, we feel that petitioner's conviction may not stand and that the indictment against him must be dismissed.Since MR. JUSTICE HARLAN, MR. JUSTICE FRANKFURTER, and MR. JUSTICE CLARK agree with us concerning Wilcox, that case is overruled. MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS, and MR. JUSTICE WHITTAKER believe that petitioner's conviction must be reversed and the case dismissed for the reasons stated in their opinions.Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded to the District Court with directions to dismiss the indictment. It is so ordered.

Respondent purchases "bulk" communications services from longdistance providers, such as petitioner AT&T, and resells them to its customers. Petitioner, as a common carrier under the Communications Act of 1934, must file with the Federal Communications Commission (FCC) "tariffs" containing all its "charges" for interstate services and all "classifications, practices and regulations affecting such charges," 47 U.S.C. § 203(a). A carrier may not "extend to any person any privileges or facilities in such communication, or employ or enforce any classifications, regulations, or practices affecting such charges, except as specified in such [tariff]." §203(c). The FCC requires carriers to sell long-distance services to resellers under the same rates, terms, and conditions as apply to other customers. In 1989, petitioner agreed to sell respondent a long-distance service, which, under the parties' written subscription agreements, would be governed by the rates, terms, and conditions in the appropriate AT&T tariffs. Respondent soon experienced problems with the service it received, and withdrew from the contract before the expiration date. Meanwhile, it had sued petitioner in Federal District Court, asserting, inter alia , state-law claims for breach of contract and for tortious interference with contractual relations (viz., respondent's contracts with its customers), the latter claim derivative of the former. Respondent alleged that petitioner had promised and failed to deliver various service, provisioning, and billing options in addition to those set forth in the tariff, and that petitioner's conduct was willful, so that consequential damages were available under the tariff. The Magistrate Judge rejected petitioner's argument that the claims were pre-empted by §203's filed-tariff requirements; he declined, however, to instruct on punitive damages for the tortious-interference claim. The jury found for respondent and awarded damages. The Ninth Circuit affirmed the judgment, but reversed the Magistrate Judge's failure to instruct on punitive damages and remanded for a trial on that aspect of the case.Held: The Communications Act's filed-tariff requirements pre-empt respondent's state-law claims. Pp. 7-14.(a) Sections 203(a) and (c) are modeled after similar provisions of the Interstate Commerce Act (ICA), and the "filed-rate doctrine" associated with the ICA tariff provisions applies to the Communications Act as well. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., . Under that doctrine, the rate a carrier duly files is the only lawful charge. Louisville & Nashville R. Co. v. Maxwell, . Even if a carrier intentionally misrepresents its rate and a customer relies on the misrepresentation, the carrier cannot be held to the promised rate if it conflicts with the published tariff. Kansas City Southern R. Co. v. Carl, . That this case involves services and billing rather than rates or ratesetting does not make the filed-rate doctrine inapplicable. Since rates have meaning only when one knows the services to which they are attached, any claim for excessive rates can be couched as a claim for inadequate services and vice versa. The Communications Act recognizes this in the §203(a) and (c) requirements, and the cases decided under the ICA make it clear that discriminatory privileges are not limited to discounted rates, see, e.g., United States v. Wabash R. Co., . Pp. 7-10.(b) This Court's filed-rate cases involving special services claims cannot be distinguished on the ground that the services they involved should have been included in the tariff. That is precisely the case here. Even provisioning and billing are "covered" by the applicable tariff. Nor does it make any difference that petitioner provided the same services, without charge, to other customers; that only tends to show that petitioner acted unlawfully with regard to the other customers as well. Pp. 10-11.(c) The analysis used in evaluating respondent's contract claim applies with equal force to its wholly derivative tortious-interference claim. The Communications Act's saving clause does not dictate a different result. It copies the ICA's saving clause, which has long been held to preserve only those rights that are not inconsistent with the statutory filed-rate requirements. Keogh v. Chicago & Northwestern R. Co., . Finally, respondent's argument that petitioner's willful misconduct makes the relief awarded here consistent with the tariff is rejected. Pp. 12-14.108 F. 3d 981, reversed.Cite as: ____ U. S. ____ (1998)3 Syllabus SCALIA , J., delivered the opinion of the Court, in which REHNQUIST , C. J., and KENNEDY , SOUTER , THOMAS , GINSBURG , and BREYER , JJ., joined. REHNQUIST , C. J., filed a concurring opinion. STEVENS , J., filed a dissenting opinion. O'CONNOR , J., took no part in the consideration or decision of the case. 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.U.S. Supreme Court No. 97-679 AMERICAN TELEPHONE AND TELEGRAPH COM- PANY, PETITIONER v. CENTRAL OFFICE TELE- PHONE, INC. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT[June 15, 1998]JUSTICE SCALIA delivered the opinion of the Court.Respondent Central Office Telephone, Inc. (COT), a reseller of long-distance communications services, sued petitioner AT&T, a provider of long-distance communications services, under state law for breach of contract and tortious interference with contract. Petitioner is regulated as a common carrier under the Communications Act of 1934, 48 Stat. 1064, as amended, 47 U.S.C. § 151 et seq. The issue before us is whether the federal filed-tariff requirements of the Communications Act pre-empt respondent's state-law claims. IRespondent purchases "bulk" long-distance servicesvolume-discounted services designed for large customersfrom long-distance providers, and resells them to smaller customers. Like many other resellers in the telecommunications industry, respondent does not own or operate facilities of its own; it is known as a "switchless reseller," which is the industry nomenclature for arbitrageur. Of course respondent passes along only a portion of the bulkpurchase discount to its aggregated customers, and retains the remaining discount as profit.Petitioner provides long-distance services and, as a common carrier under the Communications Act, §153(h), must observe certain substantive requirements imposed by that law. Section 203 of the Act requires that common carriers file "schedules" (also known as "tariffs") containing all their "charges" for interstate services and all "classifications, practices and regulations affecting such charges." §203(a). The Federal Communications Commission (FCC), which is the agency responsible for enforcing the Act, requires carriers to sell long-distance services to resellers such as respondent under the same rates, terms, and conditions as apply to other customers.Prior to 1989, petitioner had developed a type of longdistance service known as Software Defined Network (SDN), designed to meet the needs of large companies with offices in multiple locations. SDN established a "virtual private network" that allowed employees in different locations to communicate easily. For example, an employee in Washington could call a co-worker in Denver simply by dialing a four-digit extension. SDN customers, in exchange for a commitment to purchase large volumes of long-distance communication time, received this service at a rate much below what it would otherwise cost.Several changes to SDN in 1989 made the service extremely attractive to resellers, such as respondent, who aggregate smaller customers. Petitioner developed the capability to allow customers to use ordinary ("switched access") telephone lines to connect locations to their SDN networks. Previously, locations had to be connected over special "dedicated access" lines, which are direct lines from a location's telephone system to petitioner's longdistance network, bypassing the switches of the local exchange carrier. Dedicated access involves large fixed costs, so it is cost-effective only when a location originates a large volume of calls. Switched access, in contrast, does not entail additional high fixed costs, so it is better suited to small users and hence to resellers. Petitioner also instituted two pricing promotions for SDN in 1989: additional discounts from the basic SDN rates for customers making large usage and duration commitments, and waiver of installation charges for customers making multiyear commitments (subject to penalties for early termination). Petitioner also added a new billing option. In addition to network billing, whereby petitioner prepares a single bill that applies the tariffed rate to all usage at all locations, petitioner started to offer multilocation billing (MLB), which allows the SDN volume discounts to be apportioned between an SDN customer and individual locations on its network, with the proportion being chosen by the customer. Under this option, petitioner sends bills directly to the customer's individual locations (which, in the case of resellers, means to the reseller's customers) but the customer (or reseller) remains responsible for all payments. The tariff provides, however, that petitioner is not responsible for the allocation of charges. See AT&T Tariff FCC No. 1, §6.2.4 (1986), App. to Brief for Petitioner 24a.Attracted by these changes, in October 1989, respondent approached petitioner regarding its possible purchase of SDN. LaDonna Kisor, a sales representative in petitioner's Portland, Oregon office, described the service and gave respondent literature on SDN. She predicted that petitioner could establish an initial SDN network for respondent in four to five months, and could thereafter add new locations within 30 days of receiving an order. Respondent subscribed to a tariffed switched-access SDN plan under which the up-front installation charges would be waived and respondent would receive a 17 to 20% discount off basic SDN rates in exchange for a 4-year commitment to purchase two million minutes of service annu ally. Respondent also requested MLB. Petitioner confirmed respondent's order, stating that respondent would obtain SDN " 'pursuant to the rates, terms and conditions in AT&T's [FCC Tariff No.1],' " and that the provisions of the tariff, " 'including limitations on AT&T's liabilities, shall govern your and AT&T's obligations and liabilities with respect to the service and options you have selected.' " Brief for Petitioner 14. Respondent accepted these terms in writing on October 30, 1989.By February 1990, it had become apparent that the demand for SDN exceeded petitioner's expectationslargely because of the switchless resellers attracted to the service. Petitioner could not fill the volumes of switchedaccess orders as rapidly as dedicated access orders, or as quickly as petitioner's personnel had predicted. Accordingly, Ms. Kisor notified respondent that it would take up to 90 days to add new locations after the initial SDN was established. She suggested placing respondent's customers with another AT&T service, the Multilocation Calling Plan (MLCP), until they could be placed on SDN. Respondent agreed to this, and ordered MLCP. Again, respondent signed a letter confirming that MLCP " 'is provided under the terms and conditions stated in AT&T's Tariff F. C. C. Nos. 1 and 2.' " Brief for Appellant in Nos. 9436116, 94-36156 (CA9), p. 15.Ms. Kisor informed respondent that its initial SDN network was functioning in April 1990. At that point, respondent elected to increase to a larger SDN volume commitment in order to qualify for a larger discount. In placing this order, respondent signed a form stating that the SDN service " 'WILL BE GOVERNED BY THE RATES AND TERMS AND CONDITIONS IN THE APPROPRIATE AT&T TARIFFS.' " Brief for Petitioner 14-15. Respondent then began reselling SDN to its own customers and placing orders with petitioner that required petitioner to treat respondent's customers as if they were new loca tions on a corporate SDN.Almost from the outset, respondent experienced problems with the network, including delays in provisioning (the filling of orders) and in billing. An additional billing problem was especially damaging to respondent: respondent's customers received bills reflecting 100% of the discount instead of the 50% respondent selected. These problems continued, and in October 1990, they led respondent to switch to network billing. Although respondent continued to resell SDN, it was ultimately unable to meet its usage commitment for the first period in which it was applicable. In September 1992, respondent notified petitioner that it was terminating its SDN service effective September 30, 1992, with 18 months remaining on its contract.Meanwhile, on November 27, 1991, respondent had filed suit against petitioner in the United States District Court for the District of Oregon. The complaint contained a variety of claims, none of which arose under the Communications Act, and ultimately two state-law claims went to trial: (1) breach of contract (including breach of an implied covenant of good faith and fair dealing); and (2) tortious interference with contractual relations (viz., respondent's contracts with its customers). Respondent's state-law claims rested on the allegation that its contracts with petitioner were not limited by petitioner's tariff but also included certain understandings respondent's president derived from reading petitioner's brochures and talking with its representatives. According to respondent, petitioner promised various service, provisioning, and billing options in addition to those set forth in the tariff. Respondent also claimed that petitioner violated its state-law implied duty of good faith and fair dealing by taking actions that undermined the purpose of the contract for respondent, which was to purchase SDN services for resale at a profit. The tortious interference claim was derivative of the contract claim. Respondent asserted that, because respondent promised certain benefits of SDN to its customers, and because petitioner provided competing services, any intentional violation of petitioner's contractual duties constituted tortious interference with respondent's relationship with its customers. Respondent also asserted that, since petitioner's conduct was willful, consequential damages were available under the terms of the tariff. Petitioner filed a counterclaim to recover $200,000 in unpaid tariffed charges from April to October 1990, and to obtain the termination charges that respondent did not pay in 1992.Throughout the proceedings in District Court, petitioner argued that respondent's state-law contract and tort claims were pre-empted by the filed-tariff requirements of §203 of the Act. The Magistrate Judge rejected this argument and instructed the jury to consider not only the written subscription agreements, but also any statements made or documents furnished before the parties signed the agreements " 'if you find that the parties intended that those statements or written materials form part of their agreements.' " Brief for Petitioner 18. The Magistrate Judge also instructed the jury that it could not find for respondent on its contract claims unless it found that petitioner engaged in willful misconduct. He declined to instruct on punitive damages for the tortious-interference claim. The jury found for respondent on its state-law claims, rejected petitioner's counterclaim, and awarded respondent $13 million in lost profits. The Magistrate Judge reduced the judgment to $1.154 million, which represented the lost profits respondent claimed during the period before it canceled SDN on September 30, 1992; he found that there was no competent evidence for lost profits after that date. The Court of Appeals, over a dissent by Judge Brunetti, affirmed the judgment but reversed the Magistrate Judge's failure to instruct on punitive damages and remanded for a trial on that aspect of the case. 108 F. 3d 981 (CA9 1997). We granted certiorari to determine whether the federal filed-rate requirements of §203 preempt respondent's claims. 520 U. S ___ (1997). IISection 203(a) of the Communications Act requires every common carrier to file with the FCC "schedules," i.e., tariffs, "showing all charges" and "showing the classifications, practices, and regulations affecting such charges." 47 U.S.C. § 203(a). Section 203(c) makes it unlawful for a carrier to "extend to any person any privileges or facilities in such communication, or employ or enforce any classifications, regulations, or practices affecting such charges, except as specified in such schedule." §203(c). These provisions are modeled after similar provisions of the Interstate Commerce Act (ICA) and share its goal of preventing unreasonable and discriminatory charges. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., . Accordingly, the century-old "filed-rate doctrine" associated with the ICA tariff provisions applies to the Communications Act as well. See id ., at 229331; Arkansas Louisiana Gas Co. v. Hall, ; cf. United States Nav. Co. v. Cunard S. S. Co., . In Louisville & Nashville R. Co. v. Maxwell, , we described the basic contours of the filed-rate doctrine under the ICA:"Under the Interstate Commerce Act, the rate of the carrier duly filed is the only lawful charge. Deviation from it is not permitted upon any pretext. Shippers and travelers are charged with notice of it, and they as well as the carrier must abide by it, unless it is found by the Commission to be unreasonable. Ignorance or misquotation of rates is not an excuse for paying or charging either less or more than the rate filed. This rule is undeniably strict and it obviously may work hardship in some cases, but it embodies the policy which has been adopted by Congress in the regulation of interstate commerce in order to prevent unjust discrimination."Thus, even if a carrier intentionally misrepresents its rate and a customer relies on the misrepresentation, the carrier cannot be held to the promised rate if it conflicts with the published tariff. Kansas City Southern R. Co. v. Carl, .While the filed-rate doctrine may seem harsh in some circumstances, see, e.g., Maislin Industries, U. S., Inc. v. Primary Steel, Inc., , its strict application is necessary to "prevent carriers from intentionally 'misquoting' rates to shippers as a means of offering them rebates or discounts," the very evil the filing requirement seeks to prevent. Id. , at 127. Regardless of the carrier's motive-whether it seeks to benefit or harm a particular customer-the policy of nondiscriminatory rates is violated when similarly situated customers pay different rates for the same services. It is that anti-discriminatory policy which lies at "the heart of the common-carrier section of the Communications Act." MCI Telecommunications Corp. v. American Telephone & Telegraph Co., supra, at 229.The Ninth Circuit thought the filed-rate doctrine inapplicable "[b]ecause this case does not involve rates or ratesetting, but rather involves the provisioning of services and billing." 108 F. 3d, at 990. Rates, however, do not exist in isolation. They have meaning only when one knows the services to which they are attached. Any claim for excessive rates can be couched as a claim for inadequate services and vice versa. "If 'discrimination in charges' does not include non-price features, then the carrier could defeat the broad purpose of the statute by the simple expedient of providing an additional benefit at no additional charge... . An unreasonable 'discrimination in charges,' that is, can come in the form of a lower price for an equivalent service or in the form of an enhanced service for an equivalent price." Competitive Telecommunications Assn. v. FCC , 998 F.2d 1058, 1062 (CADC 1993). The Communications Act recognizes this when it requires the filed tariff to show not only "charges," but also "the classifications, practices, and regulations affecting such charges," 47 U.S.C. § 203(a); and when it makes it unlawful to "extend to any person any privileges or facilities in such communication, or employ or enforce any classifications, regulations, or practices affecting such charges" except those set forth in the tariff, §203(c).Unsurprisingly, the cases decided under the ICA make it clear that discriminatory "privileges" come in many guises, and are not limited to discounted rates. "[A] preference or rebate is the necessary result of every violation of [the analog to §203(c) in the ICA] where the carrier renders or pays for a service not covered by the prescribed tariffs." United States v. Wabash R. Co., . In Chicago & Alton R. Co. v. Kirby, , we rejected a shipper's breach-of-contract claim against a railroad for failure to ship a carload of race horses by a particularly fast train. We held that the contract was invalid as a matter of law because the carrier's tariffs "did not provide for an expedited service, nor for transportation by any particular train" and therefore the shipper received "an undue advantage ... that is not one open to others in the same situation." Id. , at 163, 165. Similarly, in Davis v. Cornwell, , we invalidated the carrier's agreement to provide the shipper with a number of railroad cars on a specified day; such a special advantage, we said, "is illegal, when not provided for in the tariff." Id. , at 562. See also Kansas City Southern R. Co. v. Carl, supra, at 653; Wight v. United States, ; I. Lake, Discrimination by Railroads and Other Public Utilities 310-315 (1947). IIIThe Ninth Circuit distinguished the Court's filed-rate cases involving claims for special services on the ground that the services at issue there "should have been included in the tariff and made available to all" because "the customer would have been expected to pay a higher rate" for those services. 108 F. 3d, at 989, n. 9. But that is precisely the case here. Indeed, the additional services and guarantees that respondent claims it was entitled to by virtue of Ms. Kisor's representations and petitioner's sales brochures-viz., faster provisioning, the allocation of charges through multilocation billing, and various matters relating to deposits, calling cards, and service support, see 108 F. 3d, at 987-988-all pertain to subjects that are specifically addressed by the filed tariff. See AT&T Tariff FCC No. 1, §2.5.10 (provisioning of orders); §6.2.4 (allocation of charges); §2.5.6 (deposits); §2.5.12.B (calling cards); §6.2.5 (service supports).The Ninth Circuit agreed that all of respondent's claims except those relating to provisioning and billing would be pre-empted if the filed-rate doctrine applied. 108 F. 3d, at 990. But even provisioning and billing are, in the relevant sense, "covered" by the tariff. For example, whereas respondent asks to enforce a guarantee that orders would be provisioned within 30 to 90 days, the tariff leaves it up to petitioner to "establis[h] and confir[m]" a due date for provisioning, requires that petitioner merely make "every reasonable effort" to meet that due date, and if it fails gives the customer no recourse except to "cancel the order without penalty or payment of nonrecurring charges." §2.5.10(B). Faster, guaranteed provisioning of orders for the same rate is certainly a privilege within the meaning of §203(c) and the filed-rate doctrine. Cf . Chicago & Alton R. Co. v. Kirby , supra, at 163 (refusing to enforce promise for faster, guaranteed service not included in the tariff). As for billing, whereas respondent claims that, pursuant to the MLB option, petitioner promised to allocate usage and charges accurately among respondent's customers, the tariff provides that petitioner "will not allocate ... usage or charges" among the locations on the customer's network and "is not responsible for the way that the Customer may allocate usage or charges." AT&T Tariff FCC No. 1, §6.2.4. Any assurance by petitioner that it would allocate usage and charges and take responsibility for the task would have been in flat contradiction of the tariff. See Chesapeake & Ohio R. Co. v. Westinghouse, Church, Kerr & Co., .The Ninth Circuit distinguished respondent's claims from those in our filed-rate cases involving special services in one other respect: according to respondent, the "special services" that it sought were provided by petitioner, without charge, to other customers, 108 F. 3d, at 989, n. 9. Even if that were so, the claim for these services would still be pre-empted under the filed-rate doctrine. To the extent respondent is asserting discriminatory treatment, its remedy is to bring suit under §202 of the Communications Act. 1To the extent petitioner is claiming that its own claims for special services are not really special because other companies get the same preferences, "that would only tend to show that the practice was unlawful [with regard to] the others as well." United States v. Wabash R. Co., . Because respondent asks for privileges not included in the tariff, its statelaw claims are barred in either case. IVOur analysis applies with equal force to respondent's tortious-interference claim because that is wholly derivative of the contract claim for additional and better services. Respondent contended that the tort claim was based on "AT&T's refusal to provide [respondent] with certain types of service" and the Magistrate Judge agreed, noting that " 'the claims in this case, even the tort claim, ... stem from the alleged failure of AT&T to comply with its contractual relationship.' " 2Brief for Appellant in Nos. 9436116, 94-36156 (CA9), p. 33. Respondent can no more ob- tain unlawful preferences under the cloak of a tort claim than it can by contract. "The rights as defined by the tariff cannot be varied or enlarged by either contract or tort of the carrier." Keogh v. Chicago & Northwestern R. Co., ; see also Maislin , 497 U.S., at 126.The saving clause of the Communications Act, §414, contrary to respondent's reading of it, does not dictate a different result. Section 414 copies the saving clause of the ICA, and we have long held that the latter preserves only those rights that are not inconsistent with the statutory filed-tariff requirements. Adams Express Co. v. Croninger, . A claim for services that constitute unlawful preferences or that directly conflict with the tariff-the basis for both the tort and contract claims here-cannot be "saved" under §414. "Th[e saving] clause ... cannot in reason be construed as continuing in [customers] a common law right, the continued existence of which would be absolutely inconsistent with the provisions of the act. In other words, the act cannot be held to destroy itself." Texas & Pacific R. Co. v. Abilene Cotton Oil Co., .Finally, we reject respondent's argument that, even if the tariff exclusively governs the parties' relationship, the relief awarded is consistent with the tariff, since §2.3.1 provides that petitioner's "liability, if any, for its willful misconduct is not limited by this tariff." Respondent reasons that, because the jury found that petitioner engaged in willful misconduct, the verdict does not conflict with the tariff. Section 2.3.1, however, can not be construed to do what the parties have no power to do. It removes only those limitations upon liability imposed by the tariff , not those imposed by law. It is the Communications Act that renders the promise of preferences unenforceable. The tariff can no more exempt the broken promise of preference that is willful than it can the broken promise of preference that is unintentional. (In fact, perversely enough, the willful breach displays a greater, if belated, attempt to comply with the law.)* * *Because respondent's state-law claims are barred by the filed-rate doctrine, we reverse the judgment of the Ninth Circuit.It is so ordered. JUSTICE O'CONNOR took no part in the consideration or decision of this case.

In 1997, the International Court of Arbitration awarded petitioner Iranian Ministry of Defense (hereinafter Iran) $2.8 million to settle a dispute with Cubic Defense Systems, Inc., a California company, over a 1977 contract that would have provided Iran with an air combat training system. When Cubic refused to pay, Iran sued in the Federal District Court in San Diego, which ordered Cubic to pay the award plus interest (Cubic Judgment). In 2000, respondent Elahi sued Iran in the D.C. Federal District Court, claiming that Iranian agents had murdered his brother. He obtained a default judgment of about $312 million and sought to collect some of the money by attaching the Cubic Judgment. Iran opposed the lien under the Foreign Sovereign Immunities Act of 1976 (FSIA). The California District Court denied Iran's immunity claim, and the Ninth Circuit affirmed, finding an exception to sovereign immunity. This Court vacated and remanded. Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Elahi, 546 U. S. 450. On remand, the Ninth Circuit found that a different immunity exception applied, citing the Terrorism Risk Insurance Act of 2002 (TRIA), which permitted holders of terrorism-related judgments against Iran to attach "blocked" Iranian assets. The United States had blocked Iranian assets following the Iranian hostage crisis in 1979, and the court held that the asset Elahi sought to attach had remained blocked notwithstanding the unblocking orders issued after the crisis was resolved by the Algiers Accords in 1981. The court reasoned that those unblocking orders had omitted military goods such as the training system underlying the Cubic Judgment. The court further rejected Iran's argument that Elahi had waived his right of attachment, and concluded that he could attach the Cubic Judgment.Held: 1. The asset in question was not "blocked" at the time of the Ninth Circuit's decision. Contrary to that court's holding, the relevant asset is not Iran's interest in the air combat training system, but, rather, a judgment enforcing an arbitration award based upon Cubic's failure to account to Iran for its share of the proceeds of the system's eventual sale to Canada. And neither the Cubic Judgment nor the sale proceeds it represents were blocked assets at the time of the Court of Appeals' 2007 decision. In a 1981 order, the Treasury Department unblocked transactions involving property in which Iran's interest arose after January 19, 1981. Iran's interest in the Cubic Judgment itself arose on December 7, 1998, when the District Court confirmed the arbitration award. And Iran's interest in the property underlying the judgment arose, as the arbitrators ruled, when Cubic completed its sale of the air combat system in October 1982. Thus, whether Iran's "interest in property" is considered to be its interest in the Cubic Judgment itself or its underlying interest in the sale proceeds, the interest falls within the terms of the Treasury Department's general unblocking order. Even assuming (as the Ninth Circuit held) that the relevant asset was Iran's pre-1981 interest in the training system itself, that asset still was not "blocked" at the time of the decision below. Such an interest would fall directly within the scope of Executive Order No. 12281, which required that property owned by Iran be transferred "as directed ... by the Government of Iran." No authority supports the contrary conclusion. Pp. 8-11. 2. Elahi cannot attach the Cubic Judgment because he has waived his right to do so. Section 2002 of the Victims of Trafficking and Violence Protection Act of 2000 (VPA) offers compensation to individuals holding terrorism-related judgments against Iran. It requires those receiving payment to relinquish "all rights to ... attach property that is at issue in claims against the United States before an international tribunal." §2002(a)(2)(D). In 2003, the U. S. Government paid Elahi $2.3 million under the VPA as partial compensation for his judgment against Iran, and he signed a waiver form that mirrors the statutory language. A review of the record in Iran-U. S. Claims Tribunal Case No. B61 demonstrates that the Cubic Judgment falls within the terms of Elahi's waiver. Iran filed that case in 1982, claiming that between 1979 and 1981 the United States had wrongly barred the transfer of the Cubic training system and other military equipment to Iran. Iran asked the Tribunal to order the United States, among other things, to pay Iran damages. The United States answered that the Tribunal should set off the $2.8 million represented by the Cubic Judgment against any award. Iran argued that the Tribunal should not set off the $2.8 million insofar as third parties have attached the judgment. In the terms of Elahi's waiver, therefore, the Cubic Judgment is "property," and Case No. B61 itself is a "clai[m] against the United States before an international tribunal." And there remains a significant dispute about whether the Cubic Judgment can be used by the Tribunal as a setoff, placing the Judgment "at issue" in Case No. B61. Elahi's arguments to the contrary are unavailing. Pp. 12-20. 3. Given Elahi's waiver, this Court need not decide whether the Cubic Judgment was blocked by new Executive Branch actions following the Ninth Circuit's decision. P. 20. 495 F. 3d 1024, reversed. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Stevens, Scalia, Thomas, and Alito, JJ., joined, and in which Kennedy, Souter, and Ginsburg, JJ., joined as to Parts I and II. Kennedy, J., filed an opinion concurring in part and dissenting in part, in which Souter and Ginsburg, JJ., joined. MINISTRY OF DEFENSE AND SUPPORT FOR THEARMED FORCES OF THE ISLAMIC REPUBLIC OFIRAN, PETITIONER v. DARIUSH ELAHIon writ of certiorari to the united states court of appeals for the ninth circuit[April 21, 2009] Justice Breyer delivered the opinion of the Court. Dariush Elahi, the respondent, sued Iran, claiming that Iran unlawfully participated in the assassination of his brother, and he obtained a default judgment of about $312 million. Seeking to collect some of the money, he has tried to attach an asset belonging to Iran, namely a $2.8 million judgment that Iran obtained against a California company called Cubic Defense Systems, Inc. (Cubic Judgment). Iran has asserted a defense of sovereign immunity in order to prevent the attachment. See Foreign Sovereign Immunities Act of 1976, 28 U. S. C. §1610. Since Iran is a sovereign nation, Elahi cannot attach the Cubic Judgment unless he finds an exception to the principle of sovereign immunity that would allow him to do so. See Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Elahi, 546 U. S. 450 (2006) (per curiam). As the case reaches us, the Terrorism Risk Insurance Act of 2002 (TRIA), §201(a), 116 Stat. 2337, note following 28 U. S. C. §1610, provides the sole possible exception. That Act authorizes holders of terrorism-related judgments against Iran, such as Elahi, to attach Iranian assets that the United States has "blocked." Ibid. (emphasis added). And we initially decide whether Iran's Cubic Judgment is a "blocked asset" within the terms of that Act. Even if the Cubic Judgment is a blocked asset, however, Elahi still cannot attach it if he waived his right to do so. And we next decide whether Elahi waived that right when, in return for partial compensation from the Government, he agreed not to attach "property that is at issue in claims against the United States before an international tribunal." Victims of Trafficking and Violence Protection Act of 2000 (VPA), §2002(d)(5)(B), as added by TRIA §201(c)(4), 116 Stat. 2339, note following 28 U. S. C. §1610 (emphasis added). We ultimately hold that the Cubic Judgment was not a "blocked asset" at the time the Court of Appeals handed down its decision in this case. We recognize that since that time new Executive Branch action may have "blocked" that asset; but, in light of the posture of the case, we do not decide whether it has done so. Rather, we determine that Elahi cannot attach the Cubic Judgment regardless, for the Judgment is "at issue" in a claim against the United States before the Iran-U. S. Claims Tribunal. The Judgment consequently falls within the terms of Elahi's waiver. I We initially set forth key background elements, including in this section the events necessary to understand the "blocked asset" question, while leaving for Part III, infra, additional background matters related to Elahi's waiver.A The Cubic Judgment arose out of a 1977 contract between Cubic Defense Systems, a California company and Iran's Ministry of Defense. (We shall refer to the Ministry, for present purposes an inseparable part of the Iranian State, as "Iran." See Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Cubic Defense Systems, Inc., 495 F. 3d 1024, 1035-1036 (CA9 2007)). Cubic there promised to supply Iran with certain military goods, namely an air combat training system, for which Iran promised to pay approximately $18 million dollars. In 1979, after Iran had paid some of the money but before Cubic had sent the training system, the Iranian Revolution broke out, militants in Iran seized American hostages, and President Carter "blocked all property and interests in property of the Government of Iran ... subject to the jurisdiction of the United States." Exec. Order No. 12170, 3 CFR 457 (1979 Comp.) (emphasis added), promulgated pursuant to the authority of International Emergency Economic Powers Act (IEEPA), 50 U. S. C. §§1701-1702 (2000 ed. and Supp. V); 31 CFR §535.201 (1980). About a year later, on January 19, 1981, Iran and the United States settled the crisis, in part with an agreement called the "Algiers Accords." 20 I. L. M. 224. Under the Accords, the United States agreed to "restore the financial position of Iran, in so far as possible, to that which existed prior to November 14, 1979," ibid., and (with some exceptions) to "arrange, subject to the provisions of U. S. law applicable prior to November 14, 1979, for the transfer to Iran of all Iranian properties," id., at 227. The President then lifted the legal prohibitions against transactions involving Iranian property. See Exec. Orders Nos. 12277-12282, 3 CFR 105-113 (1981 Comp.); 31 CFR §§535.211-535.215 (1981). In doing so, he ordered the transfer to Iran of Iranian financial assets and most other Iranian property "as directed ... by the Government of Iran," Exec. Order No. 12281, 3 CFR 112 (1981 Comp.). Shortly thereafter, the Treasury Department issued a general license authorizing "[t]ransactions involving property in which Iran ... has an interest" where "[t]he property comes within the jurisdiction of the United States ... after January 19, 1981, or ... [t]he interest in the property ... arises after January 19, 1981." 31 CFR §535.579(a). The Algiers Accords also set up an international arbitration tribunal, the Iran-U. S. Claims Tribunal (or Tribunal), to resolve disputes between the two nations concerning each other's performance under the Algiers Accords. The Tribunal would also resolve disputes concerning contracts and agreements between the two nations that were outstanding on January 19, 1981. 20 I. L. M., at 230-231. The Tribunal's jurisdiction included claims by nationals of one state against the other state, but it did not include claims by one state against nationals of the other state. Id., at 231-232. B In January 1982, Iran filed two Cubic-based claims in the Tribunal. In Case No. B61, Iran claimed that between 1979 and 1981 the United States had wrongly barred the transfer of certain military equipment, including the Cubic air combat training system, to Iran. Iran asked the Tribunal to order the United States either to issue an export license for the equipment or to pay Iran damages. App. to Brief for United States as Amicus Curiae 22a, 24a, 31a. In Case No. B66, Iran claimed that Cubic had breached its contract to deliver the training system partly because the United States had taken actions contrary to the Algiers Accords. Again Iran asked the Tribunal to order either the issuance of an export license for the equipment or the payment of damages. Id., at 1a, 2a, 9a-10a. In April 1987 the Tribunal dismissed this second case (No. B66) on the grounds that the Iran-Cubic contract imposed no obligations on the United States and that the Tribunal lacked jurisdiction to consider a suit by a state (Iran) against a private party (Cubic). Ministry of Nat. Defense of Islamic Republic of Iran v. United States, 14 Iran-U. S. Cl. Trib. Rep. 276, 277-278. Iran, believing that Cubic had breached its contract, then went to arbitration before the arbitration tribunal specified in the Cubic contract, namely the International Court of Arbitration of the International Chamber of Commerce. Iran asked that arbitration tribunal to award it restitution and damages. In May 1997 the arbitrators issued their decision. The arbitrators found that prior to the Iranian Revolution, prior to the hostage crisis, and prior to the blocking of any Iranian assets, (1) Iran and Cubic had themselves agreed that they would temporarily discontinue (but not terminate) the contract; and (2) Cubic had agreed to try to sell the training system to another buyer and to settle accounts with Iran later. The arbitrators further found that after the crisis (in September 1981) (3) Cubic successfully sold a modified version of the system to Canada. Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Cubic Int'l Sales Corp., No. 7365/FMC (Int'l Ct. of Arbitration of Int'l Chamber of Commerce), pp. 32-33, 36-40, 50-51, reprinted in 13 Mealey's Int'l Arbitration Report pp. G-4, G-15 to G-18, G-21 (Oct. 1998) (Arbitration Award). The arbitrators concluded that Cubic had not lived up to this modified agreement. And, after taking account of the advance payments that Iran had made to Cubic, the funds that Cubic had spent, the amount that Canada had paid Cubic, and various other items, they awarded Iran $2.8 million plus interest. Id., ¶C.18.3(a), at G-31. Cubic refused to pay Iran this money. Iran then sued in the Federal District Court for the Southern District of California to enforce the arbitration award. The District Court confirmed the award and entered a final judgment ordering Cubic to pay $2.8 million plus interest to Iran. That judgment is the Cubic Judgment. Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Cubic Defense Systems, Inc., 29 F. Supp. 2d 1168, 1174 (1998) (final judgment entered Aug. 10, 1999).C In February 2000 Elahi brought a tort action against Iran in the Federal District Court for the District of Columbia. Elahi claimed that Iranian agents had murdered his brother. See 28 U. S. C. §1605(a)(7) (2000 ed.) (lifting sovereign immunity of state sponsors of certain kinds of terrorism) (subsequently replaced by National Defense Authorization Act for Fiscal Year 2008, §1083(a)(1), 122 Stat. 338, 28 U. S. C. A. §1605A); Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1997, §589, 110 Stat. 3009-172, note following 28 U. S. C. §1605 (providing tort cause of action). Iran did not answer the complaint. The District Court found Iran in default, and it awarded Elahi nearly $12 million in compensatory damages and $300 million in punitive damages. Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97 (DC 2000). In 2001 Elahi filed a notice of lien against Iran's Cubic Judgment. He thereby sought to satisfy from the Cubic Judgment a portion of what Iran owed him under his own default judgment against Iran. Iran opposed the lien. It argued that the Cubic Judgment, as property of the sovereign state of Iran, was immune from attachment or execution. The District Court denied immunity. Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Cubic Defense Systems, Inc., 236 F. Supp. 2d 1140, 1152 (SD Cal. 2002). The Court of Appeals affirmed the denial. Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Cubic Defense Systems, Inc., 385 F. 3d 1206 (CA9 2004). The Court of Appeals thought that the Ministry of Defense of Iran had lost its immunity from attachment because of a special statutory exception that permits a creditor to attach the property of an "agency or instrumentality of a foreign state engaged in commercial activity in the United States"--where the creditor seeks the property to satisfy a terrorism-related judgment. 28 U. S. C. §1610(b). See 385 F. 3d, at 1219-1222. But, on review here, we pointed out (in a per curiam opinion) that the sovereign immunity exception upon which the Ninth Circuit had relied — the exception for the property of an entity that has "engaged in commercial activity," §1610(b)(2)--applies only to property of an "agency or instrumentality" of a foreign state. It does not apply to property of an entity that itself is an inseparable part of the foreign state. §1610(a). Elahi, 546 U. S., at 452-453. We remanded the case, and on remand, the Ninth Circuit held that the Ministry of Defense fell into the latter category (an inseparable part of the state of Iran), not the former (an "agency or instrumentality" of Iran). 495 F. 3d 1024, 1035-1036 (2007). Hence Elahi could not take advantage of the "engaged in commercial activities" exception. The Court of Appeals also found inapplicable a slightly different exception applicable to "property ... of a foreign state ... used for a commercial activity in the United States," 28 U. S. C. §1610(a). 495 F. 3d, at 1036-1037. Nonetheless the Court of Appeals found yet another exception that it believed denied Iran its sovereign immunity defense. The court pointed out that in 2002 Congress had enacted the TRIA. That Act permitted a person with a terrorism-related judgment to attach an asset of the responsible "terrorist" state to satisfy the judgment, "[n]otwithstanding any other provision of law," provided that the asset was a "blocked asset." §201(a), 116 Stat. 2337. The Court of Appeals noted that the Cubic Judgment arose out of a pre-1981 contract with Iran involving an air combat training system for Iran, and that President Carter had blocked virtually all Iranian assets following the Iranian hostage crisis. See Exec. Order No. 12170, 44 Fed. Reg. 65729 ("block[ing] all property and interests in property of the Government of Iran ... subject to the jurisdiction of the United States"), promulgated pursuant to the authority of International Emergency Economic Powers Act, 50 U. S. C. §§1701-1702 (2000 ed. and Supp. V); 31 CFR §535.201. The Court of Appeals then held that the President had never unblocked the asset in question. 495 F. 3d, at 1033. In its view, the many unblocking orders that were issued after the 1981 Algiers Accords, see, e.g., Exec. Orders Nos. 12277-12282, 3 CFR 105-113; 31 CFR §§535.211-535.215, 535.579(a), did not apply because those unblocking orders omitted "military goods such as the [training system that underlay the Cubic Judgment]." 495 F. 3d, at 1033. The Court of Appeals also rejected Iran's argument that Elahi had waived his right to attach the Cubic Judgment regardless (a matter to which we shall turn in Part III). And the court concluded that Elahi was free to attach the Judgment. Id., at 1037. Iran, with the support of the Department of State, asked us to grant certiorari. We did so, and we shall consider both aspects of the Court of Appeals' determination.IIA We turn first to the question whether the Cubic Judgment was a "blocked asset." The Ninth Circuit held that the asset in question consisted of Iran's interest in military goods, namely an air combat training system, which it believed the Executive Branch had failed to unblock after the Iranian hostage crisis ended. None of the parties here, however, supports the Ninth Circuit's determination. And neither do we. The basic reason we cannot accept the Ninth Circuit's rationale is that we do not believe Cubic's air combat training system is the asset here in question. Elahi does not seek to attach that system. Cubic sent the system itself to Canada, where, as far as we know, it remains. Rather, Elahi seeks to attach a judgment enforcing an arbitration award based upon Cubic's failure to account to Iran for Iran's share of the proceeds of that system's sale. And neither the Cubic Judgment nor the sale proceeds that it represents were blocked assets at the time the Court of Appeals issued its decision. In 1981, the Treasury Department issued an order that authorized "[t]ransactions involving property in which Iran ... has an interest" where "[t]he interest in the property ... arises after January 19, 1981." 31 CFR §535.579(a)(1) (emphasis added). As the Court of Appeals itself pointed out, Iran's interest in the Cubic Judgment arose "on December 7, 1998, when the district court confirmed the [arbitration] award." 385 F. 3d, at 1224. Since it arose more than 17 years "after January 19, 1981," the Cubic Judgment falls within the terms of Treasury's order. And that fact, in our view, is sufficient to treat the Judgment as unblocked. Iran's interest in the property that underlies the Cubic Judgment also arose after January 19, 1981. As the International Court of Arbitration held, Cubic and Iran entered into their initial contract before 1981. But they later agreed to discontinue (but not to terminate) the contract. Arbitration Award G-15, G-21. They agreed that Cubic would try to sell the system elsewhere. Id., ¶C.9.15, at G-14. And they further agreed that they would take "final decisions" about who owed what to whom "only ... once the result of Cubic's attempt to resell the System" was "known." Id., ¶B.10.7, at G-17. Cubic completed its sale of the system (to Canada) in October 1982. Id., ¶B.12.14, at G-22. And the arbitrators referred to October 1982 as "the date the Parties had in mind when they agreed to await the outcome of Cubic's resale attempts." Ibid. Only then was Cubic "in a position to reasonably, comprehensively and precisely account for the reuse of components originally manufactured for Iran and for any modification costs." Ibid. For those reasons, and in light of the arbitrators' findings, we must conclude that October 1982 is the time when Iran's claim to proceeds arose. The upshot is that, whether we consider Iran's "interest in property" as its interest in the Cubic Judgment itself or its underlying interest in the proceeds of the Canadian sale, the interest falls within the terms of the Treasury Department's general license authorizing "[t]ransactions involving property in which Iran ... has an interest" where "[t]he interest in the property ... arises after January 19, 1981." 31 CFR §535.579(a). And, as we said, that fact is sufficient for present purposes to treat the asset as having been unblocked at the time the Ninth Circuit issued the decision below. Finally, even if we were to assume (as the Ninth Circuit held) that the relevant asset were Iran's pre-1981 interest in the air combat training system itself, we should still conclude that that asset was not "blocked" at the time of the decision below. As the Government points out, such an interest falls directly within the scope of Executive Order No. 12281, an unblocking order that required property owned by Iran to be transferred "as directed ... by the Government of Iran." See also 31 CFR §535.215(a). None of the four authorities upon which the Ninth Circuit relied indicates the contrary conclusion. First, the Circuit cited the Arms Export Control Act, 82 Stat. 1321, 22 U. S. C. §2751 et seq., and its implementing regulations, a statute and regulations which regulate arms shipments. It is true that, notwithstanding Executive Order No. 12281, the export of certain military equipment remained subject to regulation under other statutes, including the Arms Export Control Act. See 31 CFR §535.215(c). But that fact does not show that military equipment remained blocked under IEEPA. The Court of Appeals next cited the 1979 Executive Order freezing Iranian assets, Exec. Order No. 12170, 3 CFR 457 (Comp. 1980)--but it failed to consider the effect of the subsequent unblocking order just discussed. The Court of Appeals also relied on a 2005 Presidential notice extending the national emergency with respect to Iran, 70 Fed. Reg. 69039, but that notice did not impose any additional restrictions on Iranian assets. Finally, the Court of Appeals pointed to a Treasury Department guidance document, which states that "[c]ertain assets"--consisting "mainly of military and dual-use property"-- "related to ... claims" by "U. S. nationals ... against Iran or Iranian entities" still being litigated in the Tribunal "remain blocked in the United States." Office of Foreign Assets Control, Dept. of Treasury, Foreign Assets Control Regulations for Exporters and Importers 23 (2007). But the training system does not fall into the category of assets identified by the guidance document. The system neither "remain[s] ... in the United States" (having been sent to Canada), nor was it related to claims by "U. S. nationals ... against Iran or Iranian entities" before the Tribunal. In sum, no authority supports the Ninth Circuit's conclusion that an Iranian interest in the training system itself would be a "blocked asset." And none of the parties defend the Ninth Circuit's conclusion here. B Although the Cubic Judgment was not a blocked asset at the time the Court of Appeals reached its decision, the Government believes that it is a blocked asset now. In 2005 the President issued a new Executive Order that blocks assets held by proliferators of weapons of mass destruction. Exec. Order No. 13382, 3 CFR 170 (2005 Comp.). And in 2007, after the Court of Appeals issued its decision, the State Department designated certain component parts of Iran's Ministry of Defense as entities whose property and interests in property are blocked under Executive Order No. 13382. See 72 Fed. Reg. 71991-71992. If the Iranian entity to which the Cubic Judgment belongs falls within the terms of the State Department's designation, then presumably that asset is blocked at this time. The problem for the Government, however, is that Iran does not agree that the relevant parts of its Ministry of Defense fall within the scope of the State Department's designation. Thus the matter is in dispute. The lower courts have not considered that dispute. The relevant arguments have not been set forth in detail here. And in such circumstances we normally would remand the case, permitting the lower courts to decide the issue in the first instance. See, e.g., F. Hoffmann-La Roche Ltd v. Empagran S. A., 542 U. S. 155, 175 (2004). Consequently, we shall not decide whether the new Executive Branch actions have blocked the Cubic Judgment. Instead, we turn to the "waiver" question. And our answer (that Elahi has waived his right to attach the Cubic Judgment) makes it unnecessary to remand the blocking question for further consideration.III As we have just said, the second question concerns Elahi's waiver of his right to attach the Cubic Judgment. In 2000, Congress enacted a statute that offers some compensation to certain individuals, including Elahi, who hold terrorism-related judgments against Iran. VPA §2002, as amended by TRIA §201(c). The Act requires those who receive that compensation to relinquish "all rights to execute against or attach property that is at issue in claims against the United States before an international tribunal, [or] that is the subject of awards rendered by such tribunal." §2002(a)(2)(D), 114 Stat. 1542; see also §2002(d)(5)(B), as added by TRIA §201(c)(4) (cross-referencing §2002(a)(2)(D)). In 2003 the Government paid Elahi $2.3 million under the Act as partial compensation for his judgment against Iran. Brief for Respondent 9. And at that time, Elahi signed a waiver form that mirrors the statutory language. App. to Pet. for Cert. 30 (citing 68 Fed. Reg. 8077, 8081 (2003)). The question is whether the Cubic Judgment "is at issue in claims" against the United States before an "international tribunal," namely the Iran-U. S. Claims Tribunal. If so, the Cubic Judgment falls within the terms of Elahi's waiver. The Court of Appeals believed the Judgment was not "at issue." 495 F. 3d, at 1030-1031. But we find to the contrary. A review of the record in Iran-U. S. Claims Tribunal Case No. B61 leads us to conclude that the Cubic Judgment is "at issue" before that Tribunal. In Case No. B61 Iran argued that, between 1979 and 1981, the United States had wrongly prevented the transfer of Cubic's air combat training system to Iran. Iran asked the Tribunal, among other things, to order the United States to pay damages. Statement of Claim, Islamic Republic of Iran v. United States (filed Jan. 19, 1982), App. to Brief for United States as Amicus Curiae 22a, 24a, 31a. In its briefing before the Tribunal, Iran acknowledged that any amount it recovered from Cubic would "be recuperated from the remedy sought" against the United States. App. 76, n. 2. And Iran sent a letter to the United States in which it said that any amounts it actually received from Cubic would be "recouped from the remedy sought against the United States in Case B61." App. to Brief for United States as Amicus Curiae 84a. But Iran added that the Cubic Judgment could not be used as a setoff insofar as it had been attached by creditors. Id., at 85a. Meanwhile, in a rebuttal brief before the Tribunal, the United States, while arguing that in fact it owed Iran nothing, added that at the very least Iran must set off the amount "already ... awarded" by the International Court of Arbitration (namely, the $2.8 million awarded to Iran from Cubic) against any money awarded by the Tribunal. Id., at 52a, 80a-81a, and n. 32. And the United States' demand for a setoff applies even if third parties have attached the Cubic Judgment. See Tr. of Tribunal Hearing, in No. B61 (Iran-U. S. Cl. Trib., Dec. 7 and 12, 2006), App. to Brief for Respondent 37, 38-39, 41, 42. The upshot is a dispute about the Cubic Judgment. The United States argues (and argued before the Tribunal) that the Tribunal should set off the $2.8 million that the Cubic Judgment represents against any award that the Tribunal may make against the United States in Case No. B61. Iran argues (and argued before the Tribunal) that the Tribunal should not set off the $2.8 million insofar as third parties have attached the Judgment. To put the matter in terms of the language of Elahi's waiver, one can say for certain that the Cubic Judgment is "property." And Case No. B61 itself is a "clai[m] against the United States before an international tribunal." We can also be reasonably certain that how the Tribunal should use that property is also under dispute or in question in that claim. Moreover, since several parties other than Elahi have already attached the Cubic Judgment, see Brief for United States as Amicus Curiae 20, the question whether an attached claim can be used as a setoff is potentially significant, irrespective of Elahi's own efforts to attach the judgment. Are these circumstances sufficient to place the Cubic Judgment "at issue" in Case No. B61? Elahi argues not. He points out that the Cubic Judgment does not appear on a list of property contained in Iran's statement of claim in Case No. B61; nor is it the subject of any other claim before the Tribunal. Indeed, Iran and the United States do not dispute the Cubic Judgment's validity; they do not dispute the Cubic Judgment's ownership; and they do not dispute the fact that the United States' asset freeze had no adverse effect on the Cubic Judgment or on Iran's entitlement to the Cubic Judgment. As the dissent correctly points out, the Judgment is not "at issue" in any of these senses. The Judgment will neither be suspended nor modified by the Tribunal in Case No. B61, nor is the Judgment property claimed by Iran from the United States in that case, see post, at 2-5. But that does not end the matter. The question is whether, for purposes of the VPA, a judgment can nevertheless be "at issue" before the Tribunal even when it will not be suspended or modified by the Tribunal and when it is not claimed by Iran from the United States. Here, a significant dispute about the Cubic Judgment still remains, namely a dispute about whether it can be used by the Tribunal as a setoff. And in our view, that dispute is sufficient to put the Judgment "at issue" in the case. For one thing, we do not doubt that the setoff matter is "under dispute" or "in question" in Case No. B61, and those words typically define the term "at issue." Black's Law Dictionary 136 (8th ed. 2004). In the event that the Tribunal finds the United States liable in Case No. B61, the total sum awarded to Iran by the Tribunal will depend on whether the Judgment is used as a setoff. And whether the Judgment can be so used depends, in turn, on whether the United States is right that an attached judgment should be set off or whether Iran is right that it should not be — a matter in question before the Tribunal. In that sense, the Judgment is "under dispute." We recognize that the dispute is over the use of the Judgment, not the validity of the Judgment. But we do not see how that fact matters. For another thing, ordinary legal disputes can easily encompass questions of setoff. Suppose Smith sues a carrier for wrongfully harming a shipment of goods. The question of liability, the question of damages, and the question of reducing damages through setoff may all be at issue in the case. Which is the more important issue in a particular case depends not upon the category (liability, damages, or setoff) but upon the circumstances of that particular case. Further, the language of the statute suggests that Congress meant the words "at issue" to carry the ordinary meaning just described. Elahi essentially distinguishes between property that is the subject of a claim (a claim, for example, that the United States took or harmed particular property belonging to Iran) and property that might otherwise affect a Tribunal judgment (say, through its use as a setoff). And he argues that the statutory phrase "at issue" covers only the first kind of dispute, not the second. But the statute does not limit the property that is "at issue in a claim" to property that is the subject of a claim. To the contrary, the statute says that judgment creditors such as Elahi must"relinquis[h] all rights to execute against or attach property [1] that is at issue in claims against the United States before an international tribunal [or] [2] that is the subject of awards rendered by such tribunal." VPA §2002(a)(2)(D), 114 Stat. 1542 (emphasis added); see also §2002(d)(5)(B), as added by TRIA §201(c)(4) (cross-referencing §2002(a)(2)(D)). Had Congress wanted to limit the property to which it first refers (namely, property that is "at issue" in a claim) to property that is the subject of a claim, it seems likely that Congress straightforwardly would have used the words "subject of"--words that appear later (in respect to awards rendered) in the very same sentence. Finally, the statute's purpose leans in the direction of a broader interpretation of the words "at issue" than that proposed by Elahi. Pointing to the statute's legislative history, Elahi says that the statute seeks to enable victims of terrorism to collect on judgments they have won against terrorist parties. See Brief of Respondent 6-7, 31 (citing H. R. Conf. Rep. No. 107-779 (2002); 148 Cong. Rec. 23119, 23121-23123 (2002) (statement of Sen. Harkin)). He is such a victim, and, he says, Congress would have intended an interpretation that favors his cause. But Congress had a more complicated set of purposes in mind. The statute authorizes the attachment of blocked assets, and it provides partial compensation to victims to be paid (in part) from general Treasury funds. But it does so in exchange for a right of subrogation, VPA §2002(c), and for the victim's promise not to pursue the balance of the judgment by attaching property "at issue" in a claim against the United States before the Tribunal. VPA §§2002(a)(2)(D), (d)(5)(B), as added by TRIA §201(c)(4). The statute thereby protects property that the United States might use to satisfy its potential liability to Iran. The Cubic Judgment falls into this category. It is property that the United States could use to satisfy its potential liability to Iran, but which may be unavailable for that purpose if successfully attached. With respect to the statute's revenue-saving purpose, it is difficult to distinguish between property that is the subject of a claim before a tribunal and property that is in dispute before the tribunal in respect to its use as an offset. The dissent adds that the "better reading" of the words "at issue" is one that limits them to the "foster[ing] [of] compliance with the Government's international obligations." Post, at 6. We agree with this statement, but we do not see how it adds anything but new phraseology to the dissent's basic claim, namely that arguments before the Tribunal about "setoffs" do not count as "issues." To repeat our own view of the matter, a dispute about whether one country must pay the other country more money because it cannot use particular property (because of an attachment) to satisfy an obligation raises an issue that the Tribunal must resolve, no less and no more than other issues that might be before the Tribunal in that case or other cases. Contrary to the dissent's suggestion, post, at 8, there is no unfairness in our holding. Elahi could have chosen to forgo the Government's compensation scheme, and he then could have attached the Cubic Judgment, as have other terrorist victims with judgments against Iran. See Brief for United States as Amicus Curiae 20. But that course carried risks: Iran had challenged Elahi's notice of lien and it was uncertain whether Elahi would prevail. In 2003, while litigation over his notice of lien was pending, Elahi chose to participate in the Government's scheme. He thereby received the benefit of immediate, guaranteed partial compensation from the Government — in exchange for a promise not to interfere with property that the United States might need to satisfy potential liability to Iran. Having received $2.3 million in Government funds, there is nothing unfair about holding Elahi to the terms of his bargain. Elahi makes several other arguments. He points to language in the TRIA (the statute authorizing attachment of blocked assets) which says: "[n]otwithstanding any other provision of law" the "blocked assets" of a state "shall be subject to ... attachment in aid of execution" of a terrorism-related judgment. §201(a), 116 Stat. 2337 (emphasis added). He also points to VPA §2002(d)(4), as added by TRIA §201(c)(4), 116 Stat. 2339, which reads: "[N]othing in this subsection [which contains the relinquishment provision] shall bar ... enforcement of any" terrorism-related "judgment ... against assets otherwise available under this section or under any other provision of law" (emphasis added). The first provision, Elahi argues, permits him to attach blocked assets notwithstanding the VPA's requirement that he relinquish his right to attach property "at issue" before an international tribunal; and that conclusion, he says, is reinforced by VPA §2002(d)(4). Our interpretation, he adds, would "bar ... enforcement" of a terrorism-related judgment "otherwise available" under TRIA §201(a)--contrary to the statutory language just quoted. But VPA §2002(d)(5) requires Elahi, in exchange for having received partial compensation, to relinquish "all rights" to attach property "at issue" in an international tribunal. VPA §2002(a)(2)(D), 114 Stat. 1542 (cross-referenced by §2002(d)(5)(B); emphasis added). And, as several courts of appeals have apparently assumed, the relinquishment of "all rights" includes the right given by TRIA §201(a) to attach blocked assets. See Hegna v. Islamic Republic of Iran, 376 F. 3d 226, 232 (CA4 2004); Hegna v. Islamic Republic of Iran, 380 F. 3d 1000, 1009 (CA7 2004); Hegna v. Islamic Republic of Iran, 402 F. 3d 97, 99 (CA2 2005) (per curiam). Moreover, the relinquishment provision that applies to Elahi was added to the VPA by the very same statute, the TRIA, that permitted the attachment of blocked assets, and which contains the "notwithstanding" clause upon which Elahi relies. §201(a) (blocked assets); §201(c) (amending VPA). Congress could not have intended the words to which Elahi refers to narrow so dramatically an important provision that it inserted in the same statute. And for those who, like Elahi, argue that the legislative history supports his reading of the statute, we point out that the history suggests that Congress placed the "notwithstanding" clause in §201(a) for totally different reasons, namely to eliminate the effect of any Presidential waiver issued under 28 U. S. C. §1610(f) prior to the date of the TRIA's enactment. H. R. Conf. Rep. No. 107-779, at 27. Elahi makes three final arguments, first that setoff is not "at issue" because the United States has argued in Case No. B61 that it has no liability at all, second that set-off is not "at issue" because the United States has not formally asserted a setoff before the Tribunal, and third that the Government violated his due process rights by inadequately informing that his waiver would deprive him of his right to attach the Cubic Judgment. We find none of these arguments convincing and shall briefly indicate our reasons in summary form. As to the first, the United States argued setoff in the alternative, thereby placing it, in the alternative, "at issue" before the Tribunal. As to the second, Elahi at most points to a ground for disputing the propriety, under Tribunal rules, for granting a setoff; he does not deny that the Tribunal sometimes can do so, see, e.g., Futura Trading Inc. v. National Iranian Oil Co., 13 Iran-U. S. Cl. Trib. Rep. 99, 115-116, ¶62 (1986) (preventing collection on a claim because the claimant had already collected the sum at issue from a different party). Hence whether the Tribunal can provide for a setoff here is a matter for the Tribunal to decide, and until it does decide, one way or the other, the matter is "at issue." As to the third, we can find nothing that shows Elahi was unfairly surprised by the scope of his waiver — certainly not to the point of violating any Due Process rights. See, e.g., 14 Iran-U. S. Cl. Trib. Rep., at 278, ¶10 (dismissal of Iran's claim against Cubic was "without prejudice to any findings it may make concerning [the Cubic contract] in Case No. B61"). IV We conclude: The Cubic Judgment was not blocked at the time the Court of Appeals reached its decision. We do not decide whether more recent Executive Branch actions would block the Judgment at present. Regardless, Elahi has waived his right to attach the Judgment. We reverse the judgment of the Court of Appeals.It is so ordered.MINISTRY OF DEFENSE AND SUPPORT FOR THE ARMED FORCES OF THE ISLAMIC REPUBLIC OF IRAN, PETITIONER v. DARIUSH ELAHIon writ of certiorari to the united states court of appeals for the ninth circuit[April 21, 2009] Justice Kennedy, with whom Justice Souter and Justice Ginsburg join, concurring in part and dissenting in part. I join Parts I and II of the Court's opinion but, with all respect, dissent from Parts III and IV. As to Parts I and II, the Court is correct, in my view, to hold that the Cubic Judgment was not a "blocked asset" when the Court of Appeals reached its decision. As to Parts III and IV, however, respondent Dariush Elahi has not relinquished his right to attach the Cubic Judgment. By holding otherwise, the Court departs from the plain meaning and the purpose of the statutes Congress enacted to compensate Elahi and other victims of terrorism.IA The statutory phrase to be interpreted is "property that is at issue in claims against the United States before an international tribunal." Victims of Trafficking and Violence Protection Act of 2000 (VTVPA), §2002(d)(s), as added by Terrorism Risk Insurance Act of 2002 (TRIA), §201(c)(4), 116 Stat. 2339, note following 28 U. S. C. §1610. The context, of course, is Case No. B61 — a suit by Iran against the United States that is pending before the Iran-U. S. Claims Tribunal. The word "property," as used in the statutory phrase, surely can refer both to tangible property, such as real estate or valuables in a safe-deposit box, and to intangible property interests, such as a claim, a cause of action or, as in this case, a judgment rendered by a United States district court. Still, it must be acknowledged that the term "at issue" is neither precise nor much illuminated by its operation in cases or other statutes. The absence of any clear authority on this point makes it imperative to adopt an interpretation that accords with familiar and well-settled principles of law. In this case those principles are the rules designed to give full and proper respect to final judgments rendered by courts of competent jurisdiction. To determine whether the Cubic Judgment is "at issue" in Case No. B61, the primary consideration must be whether the Claims Tribunal, in the exercise of its own authority and jurisdiction, can affect the ownership, disposition, or control of the property the judgment comprises. Here the property in question is a judgment rendered by the United States District Court for the Southern District of California. As all acknowledge, that court had jurisdiction over the subject and the persons then before it. And, as is further conceded, that court's judgment is valid and has binding force on Cubic Defense Systems, Inc., the nongovernmental party before that court. See Ministry of Defense and Support for Armed Forces of Islamic Republic of Iran v. Cubic Defense Systems, Inc., 29 F. Supp. 2d 1168, 1170 (1998). Neither party to Case No. B61 questions the judgment or requests the Claims Tribunal to interpret it — much less to alter, enforce or invalidate it. Even if one of the parties were to ask the Claims Tribunal to modify the Cubic Judgment, the Tribunal would simply lack power to do so. The judgment arises out of Iran's contractual dispute with Cubic, an American company, and the Tribunal has no "jurisdiction over claims by Iran against United States nationals." Ministry of Nat. Defence of Islamic Republic of Iran v. United States, 14 Iran-U. S. Cl. Trib. Rep. 276, 278 (1987) (Case No. B66). Iran tried to sue Cubic in the Claims Tribunal 20 years ago, but the Tribunal dismissed that suit for lack of jurisdiction. Ibid. In these circumstances the Cubic Judgment is simply an extrinsic fact beyond the Claims Tribunal's power to affect. True, the Tribunal, when it enters its own orders, might or might not give credit to the United States for a payment, or a right to payment, arising out of the Cubic Judgment; but that does not put the judgment itself at issue.B Even if the Court's broad reading of the phrase "at issue" were correct, the Court's conclusion would still be wrong because the relinquishment provision is limited to property that is at issue "in claims against the United States." And the Cubic Judgment is not part of the claims Iran makes in Case No. B61, as both Iran and the United States have made clear in their submissions to the Claims Tribunal. To put the countries' filings in context, a brief review of both the Cubic Judgment and Case No. B61 is necessary. The Cubic Judgment is the result of a contract dispute between Iran and Cubic. In the late 1970's, Iran hired Cubic to build an air combat training system, and advanced some $12 million for the project. But Iran failed to make all the payments due. App. 43-44. Thus rebuffed, Cubic sold the system to Canada and refused to refund any of Iran's advance payments. Iran brought an arbitration against Cubic. The panel of arbitrators, after ascertaining Cubic's costs of building the system, and after allowing the company a reasonable profit of $3.5 million, ordered Cubic to return to Iran $2.8 million of the $12 million advance. Iran brought this arbitration award to the U. S. District Court for the Southern District of California, which issued the judgment at issue here. The judgment orders Cubic to pay Iran $2.8 million. Cubic Defense Systems, supra, at 1171, 1174. Case No. B61 is in essence a contract dispute between Iran and the United States. Iran accuses the United States of breaking its promise, made in the Algiers Accords, to "arrange ... for the transfer to Iran of all Iranian properties" located in the United States on January 19, 1981. 20 I. L. M. 224, 227, ¶9 (1981). One of the properties Iran claims is Cubic's air combat training system. See Statement of Claim in No. B61, (Iran-U. S. Cl. Trib.), App. to Brief for United States 22a, 24a, 31a. Both parties have confirmed, in their joint report describing all the "property claimed by Iran," that Cubic's system is "at issue" in Iran's claims. Cover Letter to Final Joint Report (July 14, 1989), App. to Brief for Respondent 14. But the Cubic Judgment, in contrast to Cubic's training system, is not part of Iran's claims in Case No. B61. Both countries made this clear in their submissions to the Tribunal. Their joint report does not list the Cubic Judgment among the properties "at issue." Final Joint Report (July 14, 1989), App. to Brief for Respondent 15-23. And, in a statement altogether consistent with that omission, Iran told the Tribunal that " [t]he subject matter of [Case No. B61], at variance with the [arbitration] action [against Cubic], is the losses suffered by Iran as a result of the United States' non-export of Iranian properties. " Iran's Statement 16, App. 73, 76. The United States agreed, stating that the "only 'property that' ... is properly at issue" in Case No. B61 is property that " 'has already been made the subject of a claim' " by Iran against the United States. U. S. Rebuttal (Sept. 1, 2003), 1 Lodging p. L419 (emphasis deleted) (Sealed). The United States reaffirmed this position in oral argument before the Tribunal: "Any losses in relation to [the Iran-Cubic] contract are not recoverable against the United States and issues regarding losses under that contract do not belong before this Tribunal." Tribunal Hearing 124 (Dec. 12, 2006), App. to Brief for Respondent 42. Because the Claims Tribunal lacks jurisdiction over the Cubic Judgment, and because that judgment is not part of Iran's claims against the United States in Case No. B61, the judgment is not "property that is at issue in claims against the United States" under the plain meaning of the TRIA's relinquishment provision. TRIA §201(c)(4), 116 Stat. 2339 (amending VTVPA §2002(d)).II Even if the text of the relinquishment provision were somehow ambiguous — and it is not — then the purpose of the VTVPA and TRIA would tip the scales in Elahi's favor. The text and the evident purpose of those statutes demonstrate that Congress' primary purpose was to compensate the victims of terrorism, not to secure from those victims a relinquishment of their claims to property owned by entities found to have sponsored terrorism. The text of the VTVPA, and of the amendments made to it by the TRIA, shows that Congress' primary purpose was to enable the victims of terrorism to execute on the assets of a state found to have sponsored or assisted in a terrorist act. In the first subsection of the TRIA concerning the attachment of state assets by victims of terrorism, Congress provided that "[n]otwithstanding any other provision of law ... in every case in which a person has obtained a judgment against a terrorist party on a claim based upon an act of terrorism ... the blocked assets of that terrorist party ... shall be subject to execution or attachment in aid of execution in order to satisfy such judgment ... ." TRIA §201(a), id., at 2337. The effect of this subsection is to ensure that other laws do not bar victims' efforts to enforce judgments against terrorist states. To like effect is another paragraph of the VTVPA concerning victims of Iranian terrorism. Entitled "Statutory Construction," this paragraph reads: "Nothing in this subsection shall bar, or require delay in, enforcement of any judgment to which this subsection applies under any procedure ... ." §2002(d)(4), as added by TRIA §201(c)(4), id., at 2339. Though neither provision refers in direct terms to the relinquishment provision, both provisions show Congress' intent to broaden, rather than limit, the rights of victims like Elahi to execute on property owned by state sponsors of terrorism. Yet the opinion issued by the Court today does just the opposite. To contravene the statute's clear design, the Court surmises that Congress also had a "more complicated" purpose, namely, to "protec[t] property that the United States might use to satisfy its potential liability to Iran." Ante, at 17. This imagined purpose, the Court says, requires us to read the relinquishment provision as broadly as possible so as to prevent victims of terrorism from attaching property. But the Court does not point to evidence of this putative purpose, aside from the text of the relinquishment provision itself — a text which, as submitted above, the Court reads the wrong way. The better reading of the relinquishment provision — and one much more consistent with Congress' protective purpose — is not as a "revenue-saving" device, ibid., but as a way to foster compliance with the Government's international obligations. If Iran has asked the Claims Tribunal to resolve the status of certain property, then Iran and the Tribunal may well take the position that the United States has a responsibility under the Algiers Accords to prevent U. S. nationals from executing against that property. That concern is not present in this case. The ownership of the Cubic Judgment is not disputed, and allowing Elahi to attach it will not affect Iran's right to obtain full recovery from the United States in Case No. B61. At most, the attachment might affect the right of the United States to use the judgment to offset its liability. The Court purports to agree with this reading of the statute's purpose. Ante, at 17. But that agreement is hard to square with the Court's insistence upon fulfilling what it sees as the statute's "revenue-saving purpose." Ibid. If the Court did in fact believe that the "'better reading'" of the statute's purpose, ibid., is to foster compliance with the United States' international obligations, then the Court would affirm the judgment of the Court of Appeals. Elahi's attachment of the Cubic Judgment does not hinder the U. S. Government's efforts to comply with its obligations under the Algiers Accords. At Algiers, the United States agreed to "arrange ... for the transfer to Iran of all Iranian properties" located in the United States. 20 I. L. M., at 227, ¶9. That is not an obligation to pay Iran money, as the Court seems to believe. See ante, at 17. It is instead an obligation to take specific action in regard to specific properties. These specific properties do not include the Cubic Judgment — as the Court concedes. See ante, at 9 (holding that the Cubic Judgment was not blocked). Therefore, Elahi's attachment of the Cubic Judgment does not impede the United States' efforts to make good on its obligations under the Algiers Accords. To be sure, a judicial lien on one of the specific properties referenced by the Algiers Accords might make it difficult for the U. S. Government to comply with its obligations, under those Accords, to arrange for that property's transfer to Iran. By encouraging creditors such as Elahi to give up their liens on these specific properties that are subject to the Algiers Accords, the TRIA makes it easier for the Government to comply with its obligation to "arrange ... for the transfer" of these properties to Iran. This purpose (fostering compliance with the United States' obligation under the Algiers Accords) is more in keeping with the statute's text than is the Court's "revenue-saving" purpose. And this purpose — that is, the purpose of enabling the United States to meet its obligations under the Algiers Accords — is not in the least frustrated by permitting Elahi to attach the Cubic Judgment, a property that, as the Court concedes, is not subject to the Algiers Accords.III The facts of this case show the injustice of the Court's interpretation. The Court today puts an end to Elahi's decade-long quest to hold Iran to account for murdering his brother Cyrus. In 2000, Elahi won a wrongful-death lawsuit against Iran and was awarded some $6 million in compensatory damages. See Elahi v. Islamic Republic of Iran, 124 F. Supp. 2d 97 (DC). In April 2003, Elahi took what he must have considered a further step toward his goal when he accepted $2.3 million from the U. S. Government under the VTVPA. After today's ruling, what once appeared Elahi's gain of $2.3 million now seems to be a loss of $500,000. By taking the VTVPA's $2.3 million, the Court holds, Elahi relinquished his right to the $2.8 million Cubic Judgment he had already attached. The practical effect of the Court's ruling is to turn the purpose of the VTVPA on its head. Rather than further Elahi's effort to obtain compensation for the murder of his brother, the Act has instead set him back half a million dollars. For the reasons given above, this result was not what Congress intended when it passed the VTVPA.IV Congress passed the Victims of Trafficking and Violence Protection Act and the Terrorism Risk Insurance Act to compensate victims of terrorism. Congress expressed this purpose both in the text of the principal provision interpreted here and in accompanying sections of the statute. By stripping Elahi of his right to attach the valid judgment against Cubic rendered by the District Court — a judgment not before the Claims Tribunal in any sense — the Court fails to give the statute its intended effect. These reasons explain my respectful dissent.

Thomas J. Kenan, for petitioner. Solicitor General Marshall, for respondent. Petitioner applied to Mr. Justice White, Circuit Justice for the Tenth Circuit, for "Stay of Order of Judicial Council of the Tenth Circuit of the United States" in the above matter, and the application was by him referred to the Court for its consideration and action. It appearing to the Court from the response of the Solicitor General to the application that the order from which relief is sought is entirely interlocutory in character pending prompt further proceedings inquiring into the administration of Judge Chandler of judicial business in the Western District of Oklahoma, and that at such proceedings Judge Chandler will be permitted to appear before the Council, with counsel, and that after such proceedings the Council will, as soon as possible, undertake to decide what use, if any, should be made of such powers as it may have in the premises, it is hereby ordered that the application for stay be denied pending , 1004] this contemplated prompt action of the Judicial Council. The Court expresses no opinion concerning the propriety of the interlocutory action taken. Dissenting opinion by Mr. Justice Black with whom Mr. Justice Douglas joins: United States District Judge Stephen S. Chandler here asks for a stay of an "Order" of the Judicial Council of the Tenth Circuit directing that until further order of the Council, Judge Chandler "take no action whatsoever in any case or proceeding now or hereafter pending" in his court, that cases now assigned to him be assigned to other judges, and that no new actions filed be assigned to him. If this order is not stayed and if the Judicial Council has some way to enforce it, the order means that Judge Chandler is completely barred from performing any of his official duties and in effect is removed or ousted from office pending further orders of the Council. The reason given by the Council for this drastic action is that it "finds that Judge Chandler is presently unable, or unwilling to discharge efficiently the duties of his office. ... " By refusing to stay the Council's order, the Court necessarily acts on the premise that the Council has a legal right to remove Judge Chandler from office at least temporarily. Though the Court tries to soft-pedal its refusal to stay the order by referring to it as "interlocutory in character," the stark fact which cannot be disguised is that a United States District Judge, duly appointed by the President and approved by the Senate, is with this Court's imprimatur locked out of his office pending " further proceedings" by the Judicial Council. I think the Council is completely without legal authority to issue any such order, either temporary or permanent, with or without a hearing, that no statute purports to authorize it, and that the Constitution forbids it. Nor , 1005] can the effect of the order be softened by asserting that Judge Chandler will be permitted to have a lawyer represent him before his fellow judges. Assuming that we have jurisdiction to stay an order from a governmental agency that has no power at all to do what this Council has done, I would stay this "Order" instanter. The Council states that its order was made "pursuant to the power and authority vested in the Judicial Council by the Act of June 25, 1948, [c.] p. 646, 332, 62 Stat. 902, 28 U.S.C. 332." That section so far as relevant reads:"Each judicial council shall make all necessary orders for the effective and expeditious administration of the business of the courts within its circuit. The district courts shall promptly carry into effect all orders of the judicial council." There is no language whatever in this or any other Act which can by any reasonable interpretation be read as giving the Council a power to pass upon the work of district judges, declare them inefficient and strip them of their power to act as judges. The language of Congress indicates a purpose to vest the Judicial Council with limited administrative powers; nothing in this language, or the history behind it, indicates that a Council of Circuit Court Judges was to be vested with power to discipline district judges, and in effect remove them from office. This is clearly and simply a proceeding by circuit judges to inquire into the fitness of a district judge to hold his office and to remove him if they so desire. I do not believe Congress could, even if it wished, vest any power in the circuit judges. One of the great advances made in the structure of government by our constitution was its provision for an independent judiciary-for judges who could do their duty as they saw it without having to account to superior , 1006] court judges or to any one else except the Senate sitting as a court of impeachment. Article II, 4 of the Constitution provides that "Officers of the United States," which include judges, "shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors," and Art. I, 2 and 3 state that impeachment can be instituted only on recommendation of the House of Representatives and that trial can be held only by the Senate. To hold that judges can do what this Judicial Council has tried to do to Judge Chandler here would in my judgment violate the plan of our Constitution to preserve, as far as possible, the liberty of the people by guaranteeing that they have judges wholly independent of the Government or any of its agents with the exception of the United States Congress acting under its limited power of impeachment. We should stop in its infancy, before it has any growth at all, this idea that the United States district judges can be made accountable for their efficiency or lack of it to the judges just over them in the federal judicial system. The only way to do that is to grant this stay and I am in favor of granting it.

Certiorari granted; No. 33, 338 F.2d 883; No. 218, 343 F.2d 548, vacated and remanded.[Footnote *] Together with No. 218, Tramunti v. United States, also on petition for writ of certiorari to the same court.Daniel H. Greenberg for petitioner in No. 33. Philip R. Edelbaum for petitioner in No. 218.Solicitor General Cox, Assistant Attorney General Miller, Beatrice Rosenberg and Richard W. Schmude for the United States in No. 33. Solicitor General Cox, Assistant Attorney General Vinson, Beatrice Rosenberg and Theodore George Gilinsky for the United States in No. 218.PER CURIAM.The petitions for writs of certiorari are granted. The judgments are vacated and the cases are remanded to the United States District Court for the Southern District of New York for further proceedings in the light of Shillitani v. United States, ante, p. 364.MR. JUSTICE BLACK concurs in the result.MR. JUSTICE HARLAN dissents for the reasons stated in his opinion in Cheff v. Schnackenberg, ante, at 380.

After a full criminal trial, petitioner, the owner of numerous businesses dealing in sexually explicit materials, was convicted of, inter alia, violating federal obscenity laws and the Racketeer Influenced and Corrupt Organizations Act (RICO). The obscenity convictions, based on a finding that seven items sold at several stores were obscene, were the predicates for his RICO convictions. In addition to imposing a prison term and fine, the District Court ordered petitioner, as punishment for the RICO violations, to forfeit his businesses and almost $9 million acquired through racketeering activity. In affirming the forfeiture order, the Court of Appeals rejected petitioner's arguments that RICO's forfeiture provisions constitute a prior restraint on speech and are overbroad. The court also held that the forfeiture did not violate the Eighth Amendment, concluding that proportionality review is not required of any sentence less than life imprisonment without the possibility of parole. It did not consider whether the forfeiture was disproportionate or "excessive."Held: 1. RICO's forfeiture provisions, as applied here, did not violate the First Amendment. Pp. 4-13. (a) The forfeiture here is a permissible criminal punishment, not a prior restraint on speech. The distinction between prior restraints and subsequent punishments is solidly grounded in this Court's cases. The term "prior restraint" describes orders forbidding certain communications that are issued before the communications occur. See e.g., Near v. Minnesota ex rel. Olson. However, the order here imposes no legal impediment to petitioner's ability to engage in any expressive activity; it just prevents him from financing those activities with assets derived from his prior racketeering offenses. RICO is oblivious to the expressive or nonexpressive nature of the assets forfeited. Petitioner's assets were forfeited because they were directly related to past racketeering violations, and thus they differ from material seized or restrained on suspicion of being obscene without a prior judicial obscenity determination, as occurred in, e.g., Marcus v. Search Warrant, . Nor were his assets ordered forfeited without the requisite procedural safeguards. Fort Wayne Books, Inc. v. Indiana, , distinguished. His claim is also inconsistent with Arcara v. Cloud Books, Inc., , in which the Court rejected a claim that the closure of an adult bookstore under a general nuisance statute was an improper prior restraint. His definition of prior restraint also would undermine the time-honored distinction between barring future speech and penalizing past speech. Pp. 4-9. (b) Since the RICO statute does not criminalize constitutionally protected speech, it is materially different from the statutes at issue in this Court's overbreadth cases. Cf., e.g., Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., . In addition, the threat of forfeiture has no more of a "chilling" effect on free expression than threats of a prison term or large fine, which are constitutional under Fort Wayne Books. Nor can the forfeiture be said to offend the First Amendment based on Arcara's analysis that criminal sanctions with some incidental effect on First Amendment activities are subject to First Amendment scrutiny where it was the expressive conduct that drew the legal remedy, 478 U.S., at 706-707. While the conduct drawing the legal remedy here may have been expressive, "obscenity" can be regulated or actually proscribed consistent with the Amendment, see, e.g., Roth v. United States, . Pp. 9-13. 2. The case is remanded for the Court of Appeals to consider petitioner's claim that the forfeiture, considered atop his prison term and fine, is "excessive" within the meaning of the Excessive Fines Clause of the Eighth Amendment. The Court of Appeals rejected petitioner's Eighth Amendment challenge with a statement that applies only to the Amendment's prohibition against "cruel and unusual punishments." The Excessive Fines Clause limits the Government's power to extract payments as punishment for an offense, and the in personam criminal forfeiture at issue here is clearly a form of monetary punishment no different, for Eighth Amendment purposes, from a traditional "fine." The question whether or not the forfeiture was excessive must be considered in light of the extensive criminal activities that petitioner apparently conducted through his enormous racketeering enterprise over a substantial period of time, rather than the number of materials actually found to be obscene. Pp. 13-14. 943 F.2d 825 (CA8 1991), vacated and remanded. REHNQUIST, C.J., delivered the opinion of the Court, in which WHITE, O'CONNOR, SCALIA, and THOMAS, JJ., joined. SOUTER, J., filed an opinion concurring in the judgment in part and dissenting in part. KENNEDY, J., filed a dissenting opinion, in which BLACKMUN and STEVENS, JJ., joined, and in Part II of which SOUTER, J., joined. CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.After a full criminal trial, petitioner Ferris J. Alexander, owner of more than a dozen stores and theaters dealing in sexually explicit materials, was convicted on, inter alia, 17 obscenity counts and 3 counts of violating the Racketeer Influenced and Corrupt Organizations Act (RICO). The obscenity convictions, based on the jury's findings that four magazines and three videotapes sold at several of petitioner's stores were obscene, served as the predicates for his three RICO convictions. In addition to imposing a prison term and fine, the District Court ordered petitioner to forfeit, pursuant to 18 U.S.C. 1963 (1988 ed. and Supp. III), certain assets that were directly related to his racketeering activity as punishment for his RICO violations. Petitioner argues that this forfeiture violated the First and Eighth Amendments to the Constitution. We reject petitioner's claims under the First Amendment, but remand for reconsideration of his Eighth Amendment challenge. Petitioner was in the so-called "adult entertainment" business for more than 30 years, selling pornographic magazines and sexual paraphernalia, showing sexually explicit movies, and eventually selling and renting videotapes of a similar nature. He received shipments of these materials at a warehouse in Minneapolis, Minnesota, where they were wrapped in plastic, priced, and boxed. He then sold his products through some 13 retail stores in several different Minnesota cities, generating millions of dollars in annual revenues. In 1989, federal authorities filed a 41-count indictment against petitioner and others, alleging, inter alia, operation of a racketeering enterprise in violation of RICO. The indictment charged 34 obscenity counts and 3 RICO counts, the racketeering counts being predicated on the obscenity charges. The indictment also charged numerous counts of tax evasion and related offenses that are not relevant to the questions before us.Following a 4-month jury trial in the United States District Court for the District of Minnesota, petitioner was convicted of 17 substantive obscenity offenses: 12 counts of transporting obscene material in interstate commerce for the purpose of sale or distribution, in violation of 18 U.S.C. 1465; and 5 counts of engaging in the business of selling obscene material, in violation of 18 U.S.C. 1466 (1988 ed. and Supp. III). He also was convicted of 3 RICO offenses that were predicated on the obscenity convictions: one count of receiving and using income derived from a pattern of racketeering activity, in violation of 18 U.S.C. 1962(a); one count of conducting a RICO enterprise, in violation of 1962(c); and one count of conspiring to conduct a RICO enterprise, in violation of 1962(d). As a basis for the obscenity and RICO convictions, the jury determined that four magazines and three videotapes were obscene. Multiple copies of these magazines and videos, which graphically depicted a variety of "hard core" sexual acts, were distributed throughout petitioner's adult entertainment empire. Petitioner was sentenced to a total of six years in prison, fined $100,000, and ordered to pay the cost of prosecution, incarceration, and supervised release. In addition to these punishments, the District Court reconvened the same jury and conducted a forfeiture proceeding pursuant to 1963(a)(2). At this proceeding, the Government sought forfeiture of the businesses and real estate that represented petitioner's interest in the racketeering enterprise, 1963(a)(2)(A), the property that afforded petitioner influence over that enterprise, 1963(a)(2)(D), and the assets and proceeds petitioner had obtained from his racketeering offenses, 1963(a)(1), (3). The jury found that petitioner had an interest in 10 pieces of commercial real estate and 31 current or former businesses, all of which had been used to conduct his racketeering enterprise. Sitting without the jury, the District Court then found that petitioner had acquired a variety of assets as a result of his racketeering activities. The court ultimately ordered petitioner to forfeit his wholesale and retail businesses (including all the assets of those businesses) and almost $9 million in moneys acquired through racketeering activity.1 The Court of Appeals affirmed the District Court's forfeiture order. Alexander v. Thornburgh, 943 F.2d 825 (CA8 1991). It rejected petitioner's argument that the application of RICO's forfeiture provisions constituted a prior restraint on speech, and hence violated the First Amendment. Recognizing the well-established distinction between prior restraints and subsequent criminal punishments, the Court of Appeals found that the forfeiture here was "a criminal penalty imposed following a conviction for conducting an enterprise engaged in racketeering activities," and not a prior restraint on speech. Id., at 834. The court also rejected petitioner's claim that RICO's forfeiture provisions are constitutionally overbroad, pointing out that the forfeiture order was properly limited to assets linked to petitioner's past racketeering offenses. Id., at 835. Lastly, the Court of Appeals concluded that the forfeiture order does not violate the Eighth Amendment's prohibition against "cruel and unusual punishments" and "excessive fines." In so ruling, however, the court did not consider whether the forfeiture in this case was grossly disproportionate or excessive, believing that the Eighth Amendment "`does not require a proportionality review of any sentence less than life imprisonment without the possibility of parole.'" Id., at 836 (quoting United States v. Pryba, 900 F.2d 748, 757 (CA4), cert. denied, ). We granted certiorari, .Petitioner first contends that the forfeiture in this case, which effectively shut down his adult entertainment business, constituted an unconstitutional prior restraint on speech, rather than a permissible criminal punishment. According to petitioner, forfeiture of expressive materials and the assets of businesses engaged in expressive activity, when predicated solely upon previous obscenity violations, operates as a prior restraint because it prohibits future presumptively protected expression in retaliation for prior unprotected speech. Practically speaking, petitioner argues, the effect of the RICO forfeiture order here was no different from the injunction prohibiting the publication of expressive material found to be a prior restraint in Near v. Minnesota ex rel. Olson. As petitioner puts it, see Brief for Petitioner 25, the forfeiture order imposed a complete ban on his future expression because of previous unprotected speech. We disagree. By lumping the forfeiture imposed in this case after a full criminal trial with an injunction enjoining future speech, petitioner stretches the term "prior restraint" well beyond the limits established by our cases. To accept petitioner's argument would virtually obliterate the distinction, solidly grounded in our cases, between prior restraints and subsequent punishments.[The term prior restraint is used "to describe administrative and judicial orders forbidding certain communications when issued in advance of the time that such communications are to occur." M. Nimmer, Nimmer on Freedom of Speech 4.03, p. 4-14 (1984) (emphasis added). Temporary restraining orders and permanent injunctions - i.e., court orders that actually forbid speech activities - are classic examples of prior restraints.] See id., 4.03, at 4-16. This understanding of what constitutes a prior restraint is borne out by our cases, even those on which petitioner relies. In Near v. Minnesota ex rel. Olson, supra, we invalidated a court order that perpetually enjoined the named party, who had published a newspaper containing articles found to violate a state nuisance statute, from producing any future "malicious, scandalous or defamatory" publication. Id., at 706. Near, therefore, involved a true restraint on future speech - a permanent injunction. So, too, did Organization for a Better Austin v. Keefe, , and Vance v. Universal Amusement Co., (per curiam), two other cases cited by petitioner. In Keefe, we vacated an order "enjoining petitioners from distributing leaflets anywhere in the town of Westchester, Illinois." 402 U.S., at 415 (emphasis added). And in Vance, we struck down a Texas statute that authorized courts, upon a showing that obscene films had been shown in the past, to issue an injunction of indefinite duration prohibiting the future exhibition of films that have not yet been found to be obscene. 445 U.S., at 311. See also New York Times Co. v. United States, (per curiam) (Government sought to enjoin publication of the Pentagon Papers).By contrast, the RICO forfeiture order in this case does not forbid petitioner from engaging in any expressive activities in the future, nor does it require him to obtain prior approval for any expressive activities. It only deprives him of specific assets that were found to be related to his previous racketeering violations. Assuming, of course, that he has sufficient untainted assets to open new stores, restock his inventory, and hire staff, petitioner can go back into the adult entertainment business tomorrow, and sell as many sexually explicit magazines and videotapes as he likes, without any risk of being held in contempt for violating a court order. Unlike the injunctions in Near, Keefe, and Vance, the forfeiture order in this case imposes no [legal impediment] to - no prior restraint on - petitioner's ability to engage in any expressive activity he chooses. He is perfectly free to open an adult bookstore or otherwise engage in the production and distribution of erotic materials; he just cannot finance these enterprises with assets derived from his prior racketeering offenses.The constitutional infirmity in nearly all of our prior restraint cases involving obscene material, including those on which petitioner and the dissent rely, see post, at 12, 18-19, was that the [Government had seized or otherwise retrained materials suspected of being obscene without a prior judicial determination that they were, in fact, so.] See, e.g., Marcus v. Search Warrant, of Kansas City, Mo., Property, ; Bantam Books, Inc. v. Sullivan, ; Quantity of Copies of Books v. Kansas, ; Roaden v. Kentucky, ; Vance, supra. In this case, however, the assets in question were ordered forfeited not because they were believed to be obscene, but because they were directly related to petitioner's past racketeering violations. The RICO forfeiture statute calls for the forfeiture of assets because of the financial role they play in the operation of the racketeering enterprise. The statute is oblivious to the expressive or nonexpressive nature of the assets forfeited; books, sports cars, narcotics, and cash are all forfeitable alike under RICO. Indeed, a contrary scheme would be disastrous from a policy standpoint, enabling racketeers to evade forfeiture by investing the proceeds of their crimes in businesses engaging in expressive activity.Nor were the assets in question ordered forfeited without according petitioner the requisite procedural safeguards, another recurring theme in our prior restraint cases. Contrasting this case with Fort Wayne Books, Inc. v. Indiana, , aptly illustrates this point. In Fort Wayne Books, we rejected on constitutional grounds the pretrial seizure of certain expressive material that was based upon a finding of "no more than probable cause to believe that a RICO violation had occurred." Id., at 66 (emphasis in original). In so holding, we emphasized that there had been no prior judicial "determination that the seized items were `obscene' or that a RICO violation ha[d] occurred." Ibid. (emphasis in original). "[M]ere probable cause to believe a legal violation ha[d] transpired," we said, "is not adequate to remove books or films from circulation." Ibid. Here, by contrast, the seizure was not premature, because the Government established beyond a reasonable doubt the basis for the forfeiture. Petitioner had a full criminal trial on the merits of the obscenity and RICO charges, during which the Government proved that four magazines and three videotapes were obscene and that the other forfeited assets were directly linked to petitioner's commission of racketeering offenses.Petitioner's claim that the RICO forfeiture statute operated as an unconstitutional prior restraint in this case is also inconsistent with our decision in Arcara v. Cloud Books, Inc., . In that case, we sustained a court order, issued under a general nuisance statute, that closed down an adult bookstore that was being used as a place of prostitution and lewdness. In rejecting out-of-hand a claim that the closure order amounted to an improper prior restraint on speech, we stated:"The closure order sought in this case differs from a prior restraint in two significant respects. First, the order would impose no restraint at all on the dissemination of particular materials, since respondents are free to carry on their bookselling business at another location, even if such locations are difficult to find. Second, the closure order sought would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited - indeed, the imposition of the closure order has nothing to do with any expressive conduct at all. Id., at 705-706, n. 2. This reasoning applies with equal force to this case, and thus confirms that the RICO forfeiture order was not a prior restraint on speech, but a punishment for past criminal conduct. Petitioner attempts to distinguish Arcara on the ground that obscenity, unlike prostitution or lewdness, has "`a significant expressive element.'" Brief for Petitioner 16 (quoting Arcara, supra, at 706). But that distinction has no bearing on the question whether the forfeiture order in this case was an impermissible prior restraint.Finally, petitioner's proposed definition of the term "prior restraint" would undermine the time-honored distinction between barring speech in the future and penalizing past speech. The doctrine of prior restraint originated in the common law of England, where prior restraints of the press were not permitted, but punishment after publication was. This very limited application of the principle of freedom of speech was held inconsistent with our First Amendment as long ago as Grosjean v. American Press Co.. While we may have given a broader definition to the term "prior restraint" than was given to it in English common law,2 our decisions have steadfastly preserved the distinction between prior restraints and subsequent punishments. Though petitioner tries to dismiss this distinction as "neither meaningful nor useful," Brief for Petitioner 29, we think it is critical to our First Amendment jurisprudence. Because we have interpreted the First Amendment as providing greater protection from prior restraints than from subsequent punishments, see Southeastern Promotions, Ltd. v. Conrad, , it is important for us to delineate with some precision the defining characteristics of a prior restraint. To hold that the forfeiture order in this case constituted a prior restraint would have the exact opposite effect: It would [blur the line separating prior restraints from subsequent punishments to such a degree that it would be impossible to determine with any certainty whether a particular measure is a prior restraint or not.]In sum, we think that fidelity to our cases requires us to analyze the forfeiture here not as a prior restraint, but under normal First Amendment standards. So analyzing it, we find that petitioner's claim falls well short of the mark. He does not challenge either his 6-year jail sentence or his $100,000 fine as violative of the First Amendment. The first inquiry that comes to mind, then, is why, if incarceration for six years and a fine of $100,000 are permissible forms of punishment under the RICO statute, the challenged forfeiture of certain assets directly related to petitioner's racketeering activity is not. Our cases support the instinct from which this question arises; they [establish quite clearly that the First Amendment does not prohibit either stringent criminal sanctions for obscenity offenses or forfeiture of expressive materials as punishment for criminal conduct.]We have in the past rejected First Amendment challenges to statutes that impose severe prison sentences and fines as punishment for obscenity offenses. See, e.g., Ginzburg v. United States, , n. 2 (1966); Smith v. United States, , n. 3 (1977); Fort Wayne Books, 489 U.S., at 59, n. 8. Petitioner does not question the holding of those cases; he instead argues that RICO's forfeiture provisions are constitutionally overbroad because they are not limited solely to obscene materials and the proceeds from the sale of such materials. Petitioner acknowledges that this is an unprecedented use of the overbreadth principle. See Brief for Petitioner 36. The "overbreadth" doctrine, which is a departure from traditional rules of standing, permits a defendant to make a facial challenge to an overly broad statute restricting speech, even if he himself has engaged in speech that could be regulated under a more narrowly drawn statute. See, e.g., Broadrick v. Oklahoma, ; City Council of Los Angeles v. Taxpayers for Vincent, . But the RICO statute does not criminalize constitutionally protected speech, and therefore is materially different from the statutes at issue in our overbreadth cases. Cf., e.g., Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc., .Petitioner's real complaint is not that the RICO statute is overbroad, but that applying RICO's forfeiture provisions to businesses dealing in expressive materials may have an improper "chilling" effect on free expression by deterring others from engaging in protected speech. No doubt the monetarily large forfeiture in this case may induce cautious booksellers to practice self-censorship and remove marginally protected materials from their shelves out of fear that those materials could be found obscene, and thus subject them to forfeiture. But the defendant in Fort Wayne Books made a similar argument, which was rejected by the Court in this language:"[D]eterrence of the sale of obscene materials is a legitimate end of state anti-obscenity laws, and our cases have long recognized the practical reality that `any form of criminal obscenity statute applicable to a bookseller will induce some tendency to self-censorship and have some inhibitory effect on the dissemination of material not obscene.'" 489 U.S., at 60 (quoting Smith v. California, ). Fort Wayne Books is dispositive of any chilling argument here, since the threat of forfeiture has no more of a chilling effect on free expression than the threat of a prison term or a large fine. Each racketeering charge exposes a defendant to a maximum penalty of 20 years' imprisonment and a fine of up to $250,000. 18 U.S.C. 1963(a) (1988 ed. and Supp. III). See Brief for United States 19. Needless to say, the prospect of such a lengthy prison sentence would have a far more powerful deterrent effect on protected speech than the prospect of any sort of forfeiture. Cf. Blanton v. North Las Vegas, (loss of liberty is a more severe form of punishment than any monetary sanction). Similarly, a fine of several hundred thousand dollars would certainly be just as fatal to most businesses - and, as such, would result in the same degree of self-censorship - as a forfeiture of assets. Yet these penalties are clearly constitutional under Fort Wayne Books.We also have rejected a First Amendment challenge to a court order closing down an entire business that was engaged in expressive activity as punishment for criminal conduct. See Arcara, 478 U.S., at 707. Once again, petitioner does not question the holding of that case; in fact, he concedes that expressive businesses and assets can be forfeited under RICO as punishment for, say, narcotic offenses. See Brief for Petitioner 11 ("Forfeiture of a media business purchased by a drug cartel would be constitutionally permissible"). Petitioner instead insists that the result here should be different because the RICO predicate acts were obscenity offenses. In Arcara, we held that criminal and civil sanctions having some incidental effect on First Amendment activities are subject to First Amendment scrutiny "only where it was conduct with a significant expressive element that drew the legal remedy in the first place, as in [United States v.] O'Brien, [, or where a statute based on a nonexpressive activity has the inevitable effect of singling out those engaged in expressive activity, as in Minneapolis Star [& Tribune Co. v. Minnesota Comm'r of Revenue, ." 478 U.S., at 706-707 (footnote omitted). Applying that standard, we held that prostitution and lewdness, the criminal conduct at issue in Arcara, involve neither situation, and thus concluded that the First Amendment was not implicated by the enforcement of a general health regulation resulting in the closure of an adult bookstore. Id., at 707. Under our analysis in Arcara, the forfeiture in this case cannot be said to offend the First Amendment. To be sure, the conduct that "drew the legal remedy" here - racketeering committed through obscenity violations - may be "expressive," see R.A.V. v. St. Paul, , but our cases clearly hold that "obscenity" can be regulated or actually proscribed consistent with the First Amendment, see, e.g., Roth v. United States, ; Miller v. California, .Confronted with our decisions in Fort Wayne Books and Arcara - neither of which he challenges - petitioner's position boils down to this: Stiff criminal penalties for obscenity offenses are consistent with the First Amendment; so is the forfeiture of expressive materials as punishment for criminal conduct; but the combination of the two somehow results in a violation of the First Amendment. We reject this counterintuitive conclusion, which in effect would say that the whole is greater than the sum of the parts.Petitioner also argues that the forfeiture order in this case - considered atop his 6-year prison term and $100,000 fine - is disproportionate to the gravity of his offenses, and therefore violates the Eighth Amendment, either as a "cruel and unusual punishment" or as an "excessive fine."3 Brief for Petitioner 40. The Court of Appeals, though, failed to distinguish between these two components of petitioner's Eighth Amendment challenge. Instead, the court lumped the two together, disposing of them both with the general statement that the Eighth Amendment does not require any proportionality review of a sentence less than life imprisonment without the possibility of parole. 943 F.2d, at 836. But that statement has relevance only to the Eighth Amendment's prohibition against cruel and unusual punishments. Unlike the Cruel and Unusual Punishments Clause, which is concerned with matters such as the duration or conditions of confinement, "[t]he Excessive Fines Clause limits the government's power to extract payments, whether in cash or in kind, as punishment for some offense." Austin v. United States, post, at 609-610 (emphasis and internal quotation marks omitted); accord, Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., ("[A]t the time of the drafting and ratification of the [Eighth] Amendment, the word `fine' was understood to mean a payment to a sovereign as punishment for some offense"); id., at 265, n. 6. The in personam criminal forfeiture at issue here is clearly a form of monetary punishment no different, for Eighth Amendment purposes, from a traditional "fine." Accord, Austin, supra.4 Accordingly, the forfeiture in this case should be analyzed under the Excessive Fines Clause.Petitioner contends that forfeiture of his entire business was an "excessive" penalty for the Government to exact "[o]n the basis of a few materials the jury ultimately decided were obscene." Brief for Petitioner 40. It is somewhat misleading, we think, to characterize the racketeering crimes for which petitioner was convicted as involving just a few materials ultimately found to be obscene. Petitioner was convicted of creating and managing what the District Court described as "an enormous racketeering enterprise." App. to Pet. for Cert. 160. It is in the light of the extensive criminal activities which petitioner apparently conducted through this racketeering enterprise over a substantial period of time that the question whether the forfeiture was "excessive" must be considered. We think it preferable that this question be addressed by the Court of Appeals in the first instance.For these reasons, we hold that RICO's forfeiture provisions, as applied in this case, did not violate the First Amendment, but that the Court of Appeals should have considered whether they resulted in an "excessive" penalty within the meaning of the Eighth Amendment's Excessive Fines Clause. Accordingly, we vacate the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.It is so ordered.

Comment on petitioner's failure to testify cannot be labeled harmless error where such comment is extensive, where an inference of guilt from silence is stressed to the jury as a basis for conviction, and where there is evidence that could have supported acquittal. Certiorari granted; 379 F.2d 330, reversed.Charles A. Legge for petitioner.Thomas C. Lynch, Attorney General of California, for respondent.PER CURIAM.Petitioner Anderson was convicted after jury trial in California courts of forgery and the State District Court of Appeal affirmed, finding all errors nonprejudicial under the State's harmless error rule. After the California Supreme Court returned to petitioner unfiled his petition for hearing in that court, with the notation that it was not timely, petitioner sought habeas corpus relief in Federal District Court. The District Court issued the writ, holding that the prosecutor's comment on the failure of petitioner to testify at his trial, made in violation of Griffin v. California, , was not harmless error. The State appealed. One week after oral argument, our decision in Chapman v. California, , was handed down. Applying the Chapman standard, the majority of the Court of Appeals concluded that the Griffin error was harmless "beyond a reasonable doubt." Wilson v. Anderson, 379 F.2d 330, 335. Judge Ely dissented.We agree with Judge Ely that comment on a defendant's failure to testify cannot be labeled harmless error in a case where such comment is extensive, where an inference of guilt from silence is stressed to the jury as a basis of conviction, and where there is evidence that could have supported acquittal. We find this is such a case.The bookkeeper for a trucking firm had written a $196 payroll check to employee Michael Pittman and had placed it in the firm's office. The check disappeared at a time either shortly before or after petitioner was in the firm's office asking for a job. Two days later petitioner had possession of the check and asked gasoline station operator Kernen to cash it for him. According to Kernen, petitioner told him he had been working for the trucking firm and it was his payroll check. Kernen was acquainted with petitioner, knew him as Willy, and knew he was the brother of Jim Anderson, who had a charge account with Kernen. Kernen told petitioner he did not have enough money on hand to cash the $196 check, but they agreed to apply $112 to Jim Anderson's account, with petitioner taking $84. According to Kernen's testimony, petitioner then borrowed a pen from him and endorsed the name Michael Pittman on the check. When the check was returned to Kernen by the bank, he met with police and identified petitioner from a police "mug shot."The arresting officer testified that he asked petitioner about the incident and that petitioner admitted cashing the check but denied he endorsed it. Petitioner told the officer he was in a bar when an unknown person came up to him and said he wanted to cash a check. Petitioner took it to the service station and substituted $112 he had on his person for the amount withheld by Kernen.Petitioner did not testify and presented no evidence. The trial court instructed the jury on inferences to be drawn from petitioner's silence as follows: "As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify ... the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom, those unfavorable to the defendant are the more probable." It is conceded that those instructions violated Griffin. It is also conceded that the prosecutor's comments* violated Griffin.While the evidence against petitioner was sufficient to convict, the facts that petitioner allegedly forged the name Michael Pittman in the presence of an acquaintance of petitioner's who knew him as Willy, the brother of Jim Anderson, that petitioner allegedly chose to cash a worthless check at a place where he was known and openly agreed to have the major portion of the proceeds applied to his brother's account and yet, after all this, did not flee the county could be viewed as casting doubt on the prosecution's case, perhaps on Kernen's veracity. In this posture, we cannot say that the prosecutor's extensive argument asking the jury to overlook inferences favorable to petitioner because he invoked his constitutional right not to testify was, in the words of Chapman, "harmless beyond a reasonable doubt." 386 U.S., at 24. Since petitioner is entitled to relief for this reason, we do not reach the other questions he seeks to raise. Nor are we persuaded by respondent's contention that petitioner's late filing of a petition for hearing in the State Supreme Court constituted a deliberate bypass of state remedies, precluding him from habeas corpus relief in federal courts. See Fay v. Noia, . Cf. Henry v. Mississippi, . The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted and the judgment is Reversed.MR. JUSTICE BLACK and MR. JUSTICE HARLAN would affirm the judgment of the court of Appeals. APPENDIX TO PER CURIAM. The prosecutor stated in argument:"Now, one other thing the Judge will instruct you - he told you - he touched on this when we were picking the jury: The defendant, as Mr. Anderson has done, in a criminal case, he doesn't have to take the stand. That's his choice. He can take the stand if he chooses. He doesn't have to. I can't call him to the stand; the Judge can't demand that he get on the stand. That's completely up to him. He is not required to, under our law, to testify."The Judge will also instruct you that the jury may consider that, because of his failure to testify, that if he had certain facts which would be expected to be within his knowledge, that he could explain or deny certain things, that the jury may consider this. In other words, by that I mean such as in this case, Mr. Anderson could have gotten on the stand and told you, `No, I didn't sign that,' or, `I wasn't up to the Calverts [trucking firm] and somebody else told me about it, as I told Sergeant Sonberg [the arresting officer].'"In other words, you can consider that, when a person could be expected to know something about something, and he doesn't tell you what obviously he must know, why, then you can draw certain inferences from that."And, as I say, ladies and gentlemen, there is no evidence on behalf - that the defendant has put in here. "So, the only way we can be attacked is that we haven't proven case, we haven't made out a case because of certain suspicions or inferences or something like that, showing there was another man, or something like that. That hasn't been testified to here."Now, you can't guess as to what Mr. Anderson would or would not have testified to if he did get on the stand, because you haven't heard it. You will have to base your decision on those documents and the people you have heard here. If you don't believe any of them, you will probably not find him guilty; but if you do believe them - there has been no contradiction, nobody has contradicted them at all - then you are only led to one conclusion, and that simply is the fact that the defendant is the one that passed that check, and is guilty here."Remember, you have no conflicting evidence on the other side. You either would have to disbelieve the Calverts, Michael Pittman, and Mr. Kernen and Sergeant Sonberg and the rest of them."No one came in and said, `No, that isn't it; he was somewhere else.' You heard nothing like that, ladies and gentlemen."There hasn't been any evidence that has been produced to controvert it. Nobody has come in here and told you Mr. Anderson was somewhere else, or he didn't do it, or he didn't come up and get that check, and `I didn't know anything about it, and I went in there innocently to pass it.' He didn't tell you that at all."I give him credit for not getting up on the stand and trying to tell you a lie. At least he had the ability to sit there and not say anything, rather than try to get up and tell you a whole lot of hogwash. I'll at least give him that much credit."There is some disputed evidence that Mr. Anderson showed up with this check and passed it on Kernen on the 29th. "Now, if he got it some innocent way, if somebody gave it to him, that he didn't know, then he should have gotten up on the stand to tell us about it. And don't you think if that is what happened, he would have? I would; you would. You would beat a path to that stand, at least to get up there and tell them what happened. But that isn't the situation here."Now, we don't know what Mr. Anderson's story is, because you haven't heard it."That's what he told Sergeant Sonberg, three completely phony, different versions of it."You didn't see him get up, you didn't hear the words from him, because he didn't get up on the stand. You don't know what his story may be today. He might have told you another story, that he was flying around up in Alaska, or something like that. I don't know."[Footnote *] See the Appendix to this opinion.

Following this Court's invalidation in Lemon v. Kurtzman, (Lemon I) of Pennsylvania's statutory program to reimburse nonpublic sectarian schools (hereafter schools) for secular educational services, the District Court on remand enjoined any payments under the program for services rendered after Lemon I, but permitted Pennsylvania to reimburse the schools for services performed prior to that decision. Appellants challenge the scope of this decree. Held: The judgment is affirmed. Pp. 193-209. 348 F. Supp. 300, affirmed. THE CHIEF JUSTICE. in an opinion joined by MR. JUSTICE BLACKMUN, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST concluded that the District Court did not abuse its discretion in permitting Pennsylvania to reimburse the schools for services rendered and costs incurred in reliance on the statutory scheme prior to its invalidation in Lemon I. Pp. 197-209. (a) An unconstitutional statute is not absolutely void, but is a practical reality upon which people rely. Courts recognize that reality. Pp. 197-199. (b) A trial court has wide latitude in shaping an equitable decree and reaching an accommodation between public and private needs. Pp. 200-201. (c) The contested reimbursement will not contravene the constitutional principle of Lemon I of avoiding the ongoing entanglement of church and state, since only a final, ministerial post-audit is involved and no further detailed state surveillance of the schools is required. At the same time, however, supervision already conducted by Pennsylvania officials insures that the proposed reimbursement will not be used for sectarian purposes. The proposed payment reflects only the schools' expenses incurred in expectation of reimbursement. Pp. 201-202. (d) The schools relied in good faith on the state statute, which invited the contracts and authorized reimbursement for past services; and appellants, in self-styled "sensible recognition of the practical realities of the situation," may well have encouraged such reliance by the schools by not moving to have the payments enjoined before the contract services had been performed. Pp. 203-205. (e) The schools could not have anticipated the Lemon I holding, which involved resolution of an issue of first impression that "was not clearly foreshadowed." Pp. 206-207. (f) A State and those with whom it deals are not to be subjected to harsh, retrospective relief merely because they act on the basis of presumptively valid legislation, in the absence of contrary judicial direction. Pp. 207-209. MR. JUSTICE WHITE concurred in the judgment. BURGER, C. J., announced the judgment of the Court and an opinion in which BLACKMUN, POWELL, and REHNQUIST, JJ., joined. WHITE, J., concurred in the judgment. DOUGLAS, J., filed a dissenting opinion in which BRENNAN and STEWART, JJ., joined, post, p. 209. MARSHALL, J., took no part in the consideration or decision of the case.David P. Bruton argued the cause for appellants. With him on the briefs were Melvin L. Wulf, Sanford J. Rosen, and Franklin C. Salisbury.William B. Ball argued the cause for appellees. With him on the brief for appellee Commonwealth of Pennsylvania were J. Shane Creamer, Attorney General, Samuel Rappaport, Joseph G. Skelly, James E. Gallagher, Jr., C. Clark Hodgson, Jr., and William D. Valente, Henry T. Reath filed a brief for appellee Pennsylvania Association of Independent Schools.MR. CHIEF JUSTICE BURGER announced the judgment of the Court and an opinion in which MR. JUSTICE BLACKMUN, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST join.On June 28, 1971, we held that the Pennsylvania statutory program to reimburse nonpublic sectarian schools for certain secular educational services violated the Establishment Clause of the First Amendment. The case was remanded to the three-judge District Court for further proceedings consistent with our opinion. Lemon v. Kurtzman, (Lemon I). On remand, the District Court entered summary judgment in favor of appellants and enjoined payment, under Act 109, of any state funds to nonpublic sectarian schools for educational services performed after June 28, 1971. The District Court's order permitted the State to reimburse nonpublic sectarian schools for services provided before our decision in Lemon I. Appellants made no claim that appellees refund all sums paid under the Pennsylvania statute1 struck down in Lemon I.Appellants, the successful plaintiffs of Lemon I, now challenge the limited scope of the District Court's injunction. Specifically, they assert that the District Court erred in refusing to enjoin payment of some $24 million set aside by Pennsylvania to compensate nonpublic sectarian schools for educational services rendered by them during the 1970-1971 school year. We noted probable jurisdiction, , and we affirm the judgment of the District Court.(1)The specifics of the Pennsylvania statutory scheme held unconstitutional in Lemon I need be recalled only briefly. Under Act 109, the participating nonpublic schools of Pennsylvania were to be reimbursed by the State for certain educational services provided by the schools pursuant to purchase-of-service contracts with the State. According to the terms of the contracts, the schools were to provide teachers, textbooks, and instructional materials for mathematics, modern foreign language, physical science, and physical education courses - "secular" courses of instruction. The State was not only to compensate the schools for the services provided, but also to undertake continuing surveillance of the instructional programs to insure that the services purchased were not provided in connection with "any subject matter expressing religious teaching, or the morals or forms of worship of any sect." See Lemon I, supra, at 609-610.Under 5607 of the Act, any nonpublic school seeking reimbursement was to "maintain such accounting procedures, including maintenance of separate funds and accounts pertaining to the cost of secular educational service, as to establish that it actually expended in support of such service an amount of money equal to the amount of money sought in reimbursement." To this end, the school accounts were to be subject to audit by the State Auditor General. Actual payment was to be made by the Superintendent of Public Instruction "in four equal installments payable on the first day of September, December, March and June of the school term following the school term in which the secular educational service was rendered." (Emphasis supplied.)In Lemon I, we held that, although Act 109 had a secular legislative purpose, the Act fostered "excessive entanglement" of church schools and State through the requirement of ongoing state scrutiny of the educational programs of sectarian schools, the statutory post-audit procedures, and potential involvement in the political process. We found it unnecessary to decide whether Act 109 was constitutionally infirm on the additional ground that the "primary effect" of any state payments to church-related schools would be to promote the cause of religion in contravention of the Establishment Clause of the First Amendment.(2)Against this backdrop, we turn to the events relevant to this appeal. On June 19, 1968, Act 109 became law. Approximately one month later, appellants publicly declared their intention of challenging the constitutionality of the new legislation. During the following six months, the State took steps to implement the Act, promulgating regulations and, in January 1969, entering for the first time into service contracts for the 1968-1969 school year (then in progress) with approximately 1,181 nonpublic schools throughout Pennsylvania. The schools submitted schedules in June 1969, at the conclusion of the 1968-1969 school year, specifying the precise items of expense during that year for which they would seek reimbursement, to be made during the 1969-1970 school year. On June 3, 1969, appellants filed their complaint, asking that Act 109 be declared unconstitutional and its enforcement enjoined.Simultaneously with their 1969 complaint, appellants filed a motion for a preliminary injunction to restrain the responsible state officials from "paying or processing for paying any funds pursuant to [Act 109]." However, appellants abandoned the request for preliminary relief in a letter of August 28, 1969, from their counsel to Judge Troutman. Appellants, describing their position as a "sensible recognition of the practical realities of the situation, ... withdrew from any attempt to prevent initial payment to the nonpublic schools scheduled for September 2 1969.." In the same letter, appellants' counsel mentioned the payments scheduled for December 2, 1969, but in fact no attempt was ever made to enjoin those reimbursements.On November 29, 1969, a divided District Court granted appellees' motion to dismiss appellants' complaint for failure to state a claim on which relief could be granted. Appellants filed a notice of appeal to this Court on December 17, 1969; at no time before or after probable jurisdiction was noted on April 20, 1970, did appellants move for interlocutory relief pending appeal, even though on January 15, 1970, the schools entered into service contracts with the State for the 1969-1970 school year. Consequently, the District Court had no occasion to consider the exercise of injunctive power pendente lite.In September 1970, the schools began performing services for the 1970-1971 school year, compensable under the terms of Act 109; and on January 15, 1971, contracts were entered into for that school year. On June 28, 1971, we held Act 109 unconstitutional and remanded the cause to the District Court for further proceedings consistent with our opinion. Not until appellants filed their motion for summary judgment, in August 1971, did they first indicate their intention to prevent reimbursement under Act 109 for the services already provided by the schools during the 1970-1971 school year.(3)Claims that a particular holding of the Court should be applied retroactively have been pressed on us frequently in recent years. Most often, we have been called upon to decide whether a decision defining new constitutional rights of a defendant in a criminal case should be applied to convictions of others that predated the new constitutional development. E. g., Robinson v. Neil, ; Adams v. Illinois, ; Desist v. United States, ; Stovall v. Denno, ; Johnson v. New Jersey, ; Tehan v. Shott, ; Linkletter v. Walker, . But "in the last few decades, we have recognized the doctrine of nonretroactivity outside the criminal area many times, in both constitutional and nonconstitutional cases." Chevron Oil Co. v. Huson, ; Hanover Shoe v. United Shoe Machinery Corp., ; Simpson v. Union Oil Co., ; England v. State Board of Medical Examiners, . We have approved nonretroactive relief in civil litigation, relating, for example, to the validity of municipal financing founded upon electoral procedures later declared unconstitutional, Cipriano v. City of Houma, , and City of Phoenix v. Kolodziejski, ; or to the validity of elections for local officials held under possibly discriminatory voting laws, Allen v. State Board of Elections, . In each of these cases, the common request was that we should reach back to disturb or to attach legal consequence to patterns of conduct premised either on unlawful statutes or on a different understanding of the controlling judge-made law from the rule that ultimately prevailed.Appellants urge, as they did in the District Court, a strange amalgam of flexibility and absolutism. Appellants assure us that they do not seek to require the schools to disgorge prior payments received under Act 109; in the same breath, appellants insist that the presently disputed payment be enjoined because an unconstitutional statute "confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed." Norton v. Shelby County, . Conceding that we have receded from Norton in a host of criminal decisions and in other recent constitutional decisions relating to municipal bonds, appellants nevertheless view those precedents as departures from the established norm of Norton. We disagree.The process of reconciling the constitutional interests reflected in a new rule of law with reliance interests founded upon the old is "among the most difficult of those which have engaged the attention of courts, state and federal ... ." Chicot County Drainage Dist. v. Baxter State Bank, . Consequently, our holdings in recent years have emphasized that the effect of a given constitutional ruling on prior conduct "is subject to no set `principle of absolute retroactive invalidity' but depends upon a consideration of `particular relations ... and particular conduct ... of rights claimed to have become vested, of status, of prior determinations deemed to have finality'; and `of public policy in the light of the nature both of the statute and of its previous application.'" Linkletter, supra, at 627, quoting from Chicot County Drainage Dist., supra, at 374. However appealing the logic of Norton may have been in the abstract, its abandonment reflected our recognition that statutory or even judge-made rules of law are hard facts on which people must rely in making decisions and in shaping their conduct. This fact of legal life underpins our modern decisions recognizing a doctrine of nonretroactivity. Appellants offer no persuasive reason for confining the modern approach to those constitutional cases involving criminal procedure or municipal bonds, and we ourselves perceive none.In Linkletter, the Court suggested a test, often repeated since, embodying the recent balancing approach; we looked to "the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." Id., at 629. Those guidelines are helpful, see infra, at 201-203, but the problem of Linkletter and its progeny is not precisely the same as that now before us. Here, we are not considering whether we will apply a new constitutional rule of criminal law in reviewing judgments of conviction obtained under a prior standard; the problem of the instant case is essentially one relating to the appropriate scope of federal equitable remedies, a problem arising from enforcement of a state statute during the period before it had been declared unconstitutional. True, the temporal scope of the injunction has brought the parties back to this Court, and their dispute calls into play values not unlike those underlying Linkletter and its progeny. But however we state the issue, the fact remains that we are asked to reexamine the District Court's evaluation of the proper means of implementing an equitable decree. Cf. United States v. Estate of Donnelly, ; id., at 296-297 (Harlan, J., concurring).In shaping equity decrees, the trial court is vested with broad discretionary power; appellate review is correspondingly narrow. Swann v. Charlotte-Mecklenburg Board of Education, , 27 n. 10 (1971). Moreover, in constitutional adjudication as elsewhere, equitable remedies are a special blend of what is necessary,2 what is fair, and what is workable. "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." Brown v. Board of Education, . MR. JUSTICE DOUGLAS, speaking for the Court, has said,"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, . See also Holmberg v. Armbrecht, .In equity, as nowhere else, courts eschew rigid absolutes and look to the practical realities and necessities inescapably involved in reconciling competing interests, notwithstanding that those interests have constitutional roots.(4)The constitutional fulcrum of Lemon I was the excessive entanglement of church and state fostered by Act 109. We found it unnecessary to decide whether the "legislative precautions [of Act 109] restrict the principal or primary effect of the programs to the point where they do not offend the Religion Clauses." 403 U.S., at 613-614. For, as we said of both Act 109 and the similar Rhode Island provision, "[a] comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions are obeyed ... . These prophylactic contacts will involve excessive and enduring entanglement between state and church." Id., at 619. We further emphasized the reciprocal threat to First Amendment interests from enmeshing the divisive issue of direct aid to religious schools in the traditional political processes. Id., at 622-624.The sensitive values of the Religion Clauses do not readily lend themselves to quantification but, despite the inescapable imprecision, we think it clear that the proposed distribution of state funds to Pennsylvania's nonpublic sectarian schools will not substantially undermine the constitutional interests at stake in Lemon I. Act 109 required the Superintendent of Public Instruction to ensure that educational services to be reimbursed by the State were kept free of religious influences. Under the Act, the Superintendent's supervisory task was to have been completed long ago, during the 1970-1971 school year itself; nothing in the record suggests that the Superintendent did not faithfully execute his duties according to law. Hence, payment of the present disputed sums will compel no further state oversight of the instructional processes of sectarian schools. By the same token, since the constitutionality of Act 109 is now settled, there is no further potential for divisive political conflict among the citizens and legislators of Pennsylvania over the desirability or degree of direct state aid to sectarian schools under Act 109.Two problems having constitutional overtones remain, but their resolution requires no compromise of the basic principles of Lemon I. There is, first, the impact of the single and final post-audit. The record indicates that the post-audit process will involve only a ministerial "cleanup" function, that of balancing expenditures and receipts in the closing accounting - undertaken only once, and in that setting a minimal contact of the State with the affairs of the schools. Second, there is the question of impinging on the Religion Clauses from the fact of any payment that provides any state assistance or aid to sectarian schools - the issue we did not reach in Lemon I. Yet even assuming a cognizable constitutional interest in barring any state payments, under the District Court holding that interest is implicated only once under special circumstances that will not recur. There is no present risk of significant intrusive administrative entanglement, since only a final post-audit remains and detailed state surveillance of the schools is a thing of the past. At the same time, that very process of oversight - now an accomplished fact - assures that state funds will not be applied for any sectarian purposes.3 Finally, as will appear, even this single proposed payment for services long since passing state scrutiny reflects no more than the schools' reliance on promised payment for expenses incurred by them prior to June 28, 1971.Offsetting the remote possibility of constitutional harm from allowing the State to keep its bargain are the expenses incurred by the schools in reliance on the state statute inviting the contracts made and authorizing reimbursement for past services performed by the schools.4 It is well established that reliance interests weigh heavily in the shaping of an appropriate equitable remedy. City of Phoenix v. Kolodziejski, ; Cipriano v. City of Houma, ; Allen v. State Board of Elections, . That there was such reliance by the schools is reflected by a well-supported District Court finding. The District Court found that there was no dispute "that to deny the church-related schools any reimbursement for their services rendered would impose upon them a substantial burden which would be difficult for them to meet."5 348 F. Supp. 300, 304-305.The significance of appellee schools' reliance is reinforced by the fact that appellants' tactical choice not to press for interim injunctive suspension of payments or contracts during the pendency of the Lemon I litigation may well have encouraged the appellee schools to incur detriments in reliance upon reimbursement by the State under Act 109. In June 1969, appellants initiated the litigation that culminated in Lemon I. Though initially appellants moved for a preliminary injunction to block the September 1969 payment of funds for services rendered during the 1968-1969 school year, for reasons of their own appellants withdrew the request. Funds were paid in September and December 1969, and in March and June 1970. In 1970, the State entered into new contracts with the nonpublic schools; appellants took no steps to block the making of these contracts or to prevent the State from disbursing funds, in September and December 1970, or March and June 1971, for services rendered during the 1969-1970 school year. Appellants, meanwhile, had filed a notice of appeal to this Court by the time the distribution of funds for the 1969-1970 school year began. It was only after our decision in Lemon I - six months after the contracts for the 1970-1971 school year were perfected and after all services under those contracts had been performed - that appellants asserted their intention to block the payments due, beginning in the fall of 1971. Thus, for nearly two years, the State and the schools proceeded to act on the assumption that appellants would continue to adhere to a "sensible recognition of the practical realities of the situation."There has been no demonstration by the appellee schools of the precise amount of any detriment incurred by them during the 1970-1971 school year in the expectation of reimbursement by the State. The complexity of such a determination for each of Pennsylvania's 1,181 nonpublic schools that contracted with the State under Act 109 is readily apparent.6 But we need not dwell on the matter of uncertainty. On this record the District Court could reasonably find reliance on the part of the appellee schools and reasonably could conclude that no more was needed to demonstrate retrospectively the degree of their reliance.It is argued, though, that the schools were foolhardy to rely on any reimbursement by the State whatever, in view of the constitutional cloud over the Pennsylvania program from the outset. We conclude, however, that our holding in Lemon I "decid[ed] an issue of first impression whose resolution was not clearly foreshadowed." Chevron Oil Co. v. Huson, 404 U.S., at 106. A three-judge district court, with one dissent, upheld Act 109. Soon after, another three-judge district court in Rhode Island held unconstitutional the Rhode Island statutory scheme we considered together with Pennsylvania's program in Lemon I. Nor were district courts alone in disagreement over the constitutionality of Lemon-style plans to provide financial assistance to sectarian schools. This Court was itself divided when the issue was ultimately resolved after full briefing and argument. And the Court acknowledged "that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law." Lemon I, 403 U.S., at 612.7 That there would be constitutional attack on Act 109 was plain from the outset. But this is not a case where it could be said that appellees acted in bad faith or that they relied on a plainly unlawful statute. In this case, even the clarity of hindsight is not persuasive that the constitutional resolution of Lemon I could be predicted with assurance sufficient to undermine appellees' reliance on Act 109.(5)In the end, then, appellants' position comes down to this: that any reliance whatever by the schools was unjustified because Act 109 was an "untested" state statute whose validity had never been authoritatively determined. The short answer to this argument is that governments must act if they are to fulfill their high responsibilities. As one scholar has observed, the diverse state governments were preserved by the Framers "as separate sources of authority and organs of administration - a point on which they hardly had a choice." H. Wechsler, Principles, Politics, and Fundamental Law 50 (1961).Appellants ask, in effect, that we hold those charged with executing state legislative directives to the peril of having their arrangements unraveled if they act before there has been an authoritative judicial determination that the governing legislation is constitutional. Appellants would have state officials stay their hands until newly enacted state programs are "ratified" by the federal courts, or risk draconian, retrospective decrees should the legislation fall. In our view, appellants' position could seriously undermine the initiative of state legislators and executive officials alike. Until judges say otherwise, state officers - the officers of Pennsylvania - have the power to carry forward the directives of the state legislature. Those officials may, in some circumstances, elect to defer acting until an authoritative judicial pronouncement has been secured; but particularly when there are no fixed and clear constitutional precedents, the choice is essentially one of political discretion and one this Court has never conceived as an incident of judicial review. We do not engage lightly in post hoc evaluation of such political judgment, founded as it is on "one of the first principles of constitutional adjudication - the basic presumption of the constitutional validity of a duly enacted state or federal law." San Antonio School District v. Rodriguez, ante, p. 1, at 60 (1973) (STEWART, J., concurring).Federalism suggests that federal court intervention in state judicial processes be appropriately confined. See Younger v. Harris, , and companion cases. Likewise, federalism requires that federal injunctions unrelated to state courts be shaped with concern and care for the responsibilities of the executive and legislative branches of state governments.8 In short, the propriety of the relief afforded appellants by the District Court, applying familiar equitable principles, must be measured against the totality of circumstances and in light of the general principle that, absent contrary direction, state officials and those with whom they deal are entitled to rely on a presumptively valid state statute, enacted in good faith and by no means plainly unlawful. Affirmed.MR. JUSTICE WHITE concurs in the judgment.MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.

Petitioner Brandon Betterman pleaded guilty to bail jumping after failing to appear in court on domestic assault charges. He was then jailed for over 14 months awaiting sentence, in large part due to institutional delay. He was eventually sentenced to seven years' imprisonment, with four of the years suspended. Arguing that the 14-month gap between conviction and sentencing violated his speedy trial right, Betterman appealed, but the Montana Supreme Court affirmed the conviction and sentence, ruling that the Sixth Amendment's Speedy Trial Clause does not apply to postconviction, presentencing delay. Held: The Sixth Amendment's speedy trial guarantee does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges. Pp. 3-11. (a) Criminal proceedings generally unfold in three discrete phases. First, the State investigates to determine whether to arrest and charge a suspect. Once charged, the suspect is presumed innocent until conviction upon trial or guilty plea. After conviction, the court imposes sentence. There are checks against delay geared to each particular phase. P. 3. (b) Statutes of limitations provide the primary protection against delay in the first stage, when the suspect remains at liberty, with the Due Process Clause safeguarding against fundamentally unfair prosecutorial conduct. United States v. Lovasco, 431 U. S. 783, 789. P. 3. (c) The Speedy Trial Clause right attaches when the second phase begins, that is, upon a defendant's arrest or formal accusation. United States v. Marion, 404 U. S. 307, 320-321. The right detaches upon conviction, when this second stage ends. Before conviction, the accused is shielded by the presumption of innocence, Reed v. Ross, 468 U. S. 1, 4, which the Speedy Trial Clause implements by minimizing the likelihood of lengthy incarceration before trial, lessening the anxiety and concern associated with a public accusation, and limiting the effects of long delay on the accused's ability to mount a defense, Marion, 404 U. S., at 320. The Speedy Trial Clause thus loses force upon conviction. This reading comports with the historical understanding of the speedy trial right. It "has its roots at the very foundation of our English law heritage," Klopfer v. North Carolina, 386 U. S. 213, 223, and it was the contemporaneous understanding of the Sixth Amendment's language that "accused" described a status preceding "convicted" and "trial" meant a discrete episode after which judgment (i.e., sentencing) would follow. The Court's precedent aligns with the text and history of the Speedy Trial Clause. See Barker v. Wingo, 407 U. S. 514, 532-533. Just as the right to speedy trial does not arise prearrest, Marion, 404 U. S., at 320-322, adverse consequences of postconviction delay are outside the purview of the Speedy Trial Clause. The sole remedy for a violation of the speedy trial right — dismissal of the charges — fits the preconviction focus of the Clause, for it would be an unjustified windfall to remedy sentencing delay by vacating validly obtained convictions. This reading also finds support in the federal Speedy Trial Act of 1974 and numerous state analogs, which impose time limits for charging and trial but say nothing about sentencing. The prevalence of guilty pleas and the resulting scarcity of trials in today's justice system do not bear on the presumption-of-innocence protection at the heart of the Speedy Trial Clause. Moreover, a central feature of contemporary sentencing — the preparation and review of a presentence investigation report — requires some amount of wholly reasonable presentencing delay. Pp. 3-9. (d) Although the Constitution's presumption-of-innocence-protective speedy trial right is not engaged in the sentencing phase, statutes and rules offer defendants recourse. Federal Rule of Criminal Procedure 32(b)(1), for example, directs courts to "impose sentence without unnecessary delay." Further, as at the prearrest stage, due process serves as a backstop against exorbitant delay. Because Betterman advanced no due process claim here, however, the Court expresses no opinion on how he might fare under that more pliable standard. Pp. 9-11.378 Mont. 182, 342 P. 3d 971, affirmed. Ginsburg, J., delivered the opinion for a unanimous Court. Thomas, J., filed a concurring opinion, in which Alito, J., joined. Sotomayor, J., filed a concurring opinion.Opinion of the Court 578 U. S. ____ (2016)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. 14-1457BRANDON THOMAS BETTERMAN, PETITIONER v. MONTANAon writ of certiorari to the supreme court of montana[May 19, 2016] Justice Ginsburg delivered the opinion of the Court. The Sixth Amendment to the U. S. Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury . . . ." Does the Sixth Amendment's speedy trial guarantee apply to the sentencing phase of a criminal prosecution? That is the sole question this case presents. We hold that the guarantee protects the accused from arrest or indictment through trial, but does not apply once a defendant has been found guilty at trial or has pleaded guilty to criminal charges. For inordinate delay in sentencing, although the Speedy Trial Clause does not govern, a defendant may have other recourse, including, in appropriate circumstances, tailored relief under the Due Process Clauses of the Fifth and Fourteenth Amendments. Petitioner Brandon Betterman, however, advanced in this Court only a Sixth Amendment speedy trial claim. He did not preserve a due process challenge. See Tr. of Oral Arg. 19. We, therefore, confine this opinion to his Sixth Amendment challenge.I Ordered to appear in court on domestic assault charges, Brandon Betterman failed to show up and was therefore charged with bail jumping. 378 Mont. 182, 184, 342 P. 3d 971, 973 (2015). After pleading guilty to the bail-jumping charge, he was jailed for over 14 months awaiting sentence on that conviction. Id., at 184-185, 342 P. 3d, at 973-974. The holdup, in large part, was due to institutional delay: the presentence report took nearly five months to complete; the trial court took several months to deny two presentence motions (one seeking dismissal of the charge on the ground of delay); and the court was slow in setting a sentencing hearing. Id., at 185, 195, 342 P. 3d, at 973-974, 980. Betterman was eventually sentenced to seven years' imprisonment, with four of those years suspended. Id., at 185, 342 P. 3d, at 974. Arguing that the 14-month gap between conviction and sentencing violated his speedy trial right, Betterman appealed. The Montana Supreme Court affirmed his conviction and sentence, ruling that the Sixth Amendment's Speedy Trial Clause does not apply to postconviction, presentencing delay. Id., at 188-192, 342 P. 3d, at 975-978. We granted certiorari, 577 U. S. ___ (2015), to resolve a split among courts over whether the Speedy Trial Clause applies to such delay.1 Holding that the Clause does not apply to delayed sentencing, we affirm the Montana Supreme Court's judgment.II Criminal proceedings generally unfold in three discrete phases. First, the State investigates to determine whether to arrest and charge a suspect. Once charged, the suspect stands accused but is presumed innocent until conviction upon trial or guilty plea. After conviction, the court imposes sentence. There are checks against delay throughout this progression, each geared to its particular phase. In the first stage — before arrest or indictment, when the suspect remains at liberty — statutes of limitations provide the primary protection against delay, with the Due Process Clause as a safeguard against fundamentally unfair prosecutorial conduct. United States v. Lovasco, 431 U. S. 783, 789 (1977); see id., at 795, n. 17 (Due Process Clause may be violated, for instance, by prosecutorial delay that is "tactical" or "reckless" (internal quotation marks omitted)). The Sixth Amendment's Speedy Trial Clause homes in on the second period: from arrest or indictment through conviction. The constitutional right, our precedent holds, does not attach until this phase begins, that is, when a defendant is arrested or formally accused. United States v. Marion, 404 U. S. 307, 320-321 (1971). Today we hold that the right detaches upon conviction, when this second stage ends.2 Prior to conviction, the accused is shielded by the presumption of innocence, the "bedrock[,] axiomatic and elementary principle whose enforcement lies at the foundation of the administration of our criminal law." Reed v. Ross, 468 U. S. 1, 4 (1984) (internal quotation marks omitted). The Speedy Trial Clause implements that presumption by "prevent[ing] undue and oppressive incarceration prior to trial, . . . minimiz[ing] anxiety and concern accompanying public accusation[,] and . . . limit[ing] the possibilities that long delay will impair the ability of an accused to defend himself." Marion, 404 U. S., at 320 (internal quotation marks omitted). See also Barker v. Wingo, 407 U. S. 514, 532-533 (1972). As a measure protecting the presumptively innocent, the speedy trial right — like other similarly aimed measures — loses force upon conviction. Compare In re Winship, 397 U. S. 358, 364 (1970) (requiring "proof beyond a reasonable doubt of every fact necessary to constitute the crime"), with United States v. O'Brien, 560 U. S. 218, 224 (2010) ("Sentencing factors . . . can be proved . . . by a preponderance of the evidence."). Compare also 18 U. S. C. §3142(b) (bail presumptively available for accused awaiting trial) with §3143(a) (bail presumptively unavailable for those convicted awaiting sentence). Our reading comports with the historical understanding. The speedy trial right, we have observed, "has its roots at the very foundation of our English law heritage. Its first articulation in modern jurisprudence appears to have been made in Magna Carta (1215) . . . ." Klopfer v. North Carolina, 386 U. S. 213, 223 (1967). Regarding the Framers' comprehension of the right as it existed at the founding, we have cited Sir Edward Coke's Institutes of the Laws of England. See id., at 223-225, and nn. 8, 12-14, 18. Coke wrote that "the innocent shall not be worn and wasted by long imprisonment, but . . . speedily come to his tria[l]." 1 E. Coke, Second Part of the Institutes of the Laws of England 315 (1797) (emphasis added). Reflecting the concern that a presumptively innocent person should not languish under an unresolved charge, the Speedy Trial Clause guarantees "the accused" "the right to a speedy . . . trial." U. S. Const., Amdt. 6 (emphasis added). At the founding, "accused" described a status preceding "convicted." See, e.g., 4 W. Blackstone, Commentaries on the Laws of England 322 (1769) (commenting on process in which "persons accused of felony . . . were tried . . . and convicted" (emphasis added)). And "trial" meant a discrete episode after which judgment (i.e., sentencing) would follow. See, e.g., id., at 368 ("We are now to consider the next stage of criminal prosecution, after trial and conviction are past . . . : which is that of judgment.").3 This understanding of the Sixth Amendment language--"accused" as distinct from "convicted," and "trial" as separate from "sentencing"--endures today. See, e.g., Black's Law Dictionary 26 (10th ed. 2014) (defining "accused" as "a person who has been arrested and brought before a magistrate or who has been formally charged" (emphasis added)); Fed. Rule Crim. Proc. 32 (governing "Sentencing and Judgment," the rule appears in the chapter on "Post-Conviction Procedures," which follows immediately after the separate chapter headed "Trial").4 This Court's precedent aligns with the text and history of the Speedy Trial Clause. Detaining the accused pretrial, we have said, disadvantages him, and the imposition is "especially unfortunate" as to those "ultimately found to be innocent." Barker, 407 U. S., at 532-533. And in Marion, 404 U. S., at 320, addressing "the major evils protected against by the speedy trial guarantee," we observed: "Arrest is a public act that may seriously interfere with the defendant's liberty, whether he is free on bail or not, and that may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends." We acknowledged in Marion that even pre-arrest — a stage at which the right to a speedy trial does not arise — the passage of time "may impair memories, cause evidence to be lost, deprive the defendant of witnesses, and otherwise interfere with his ability to defend himself." Id., at 321. Nevertheless, we determined, "this possibility of prejudice at trial is not itself sufficient reason to wrench the Sixth Amendment from its proper [arrest or charge triggered] context." Id., at 321-322. Adverse consequences of postconviction delay, though subject to other checks, see infra, at 10-11, are similarly outside the purview of the Speedy Trial Clause.5 The sole remedy for a violation of the speedy trial right — dismissal of the charges, see Strunk v. United States, 412 U. S. 434, 440 (1973); Barker, 407 U. S., at 522 — fits the preconviction focus of the Clause. It would be an unjustified windfall, in most cases, to remedy sentencing delay by vacating validly obtained convictions. Betterman concedes that a dismissal remedy ordinarily would not be in order once a defendant has been convicted. See Tr. of Oral Arg. 5-6; cf. Bozza v. United States, 330 U. S. 160, 166 (1947) ("[A]n error in passing the sentence" does not permit a convicted defendant "to escape punishment altogether.").6 The manner in which legislatures have implemented the speedy trial guarantee matches our reading of the Clause. Congress passed the Speedy Trial Act of 1974, 18 U. S. C. §3161 et seq., "to give effect to the sixth amendment right." United States v. MacDonald, 456 U. S. 1, 7, n. 7 (1982) (quoting S. Rep. No. 93-1021, p. 1 (1974)). "The more stringent provisions of the Speedy Trial Act have mooted much litigation about the requirements of the Speedy Trial Clause . . . ." United States v. Loud Hawk, 474 U. S. 302, 304, n. 1 (1986) (citation omitted). With certain exceptions, the Act directs — on pain of dismissal of the charges, §3162(a)--that no more than 30 days pass between arrest and indictment, §3161(b), and that no more than 70 days pass between indictment and trial, §3161(c)(1). The Act says nothing, however, about the period between conviction and sentencing, suggesting that Congress did not regard that period as falling within the Sixth Amendment's compass. Numerous state analogs similarly impose precise time limits for charging and trial; they, too, say nothing about sentencing.7 Betterman asks us to take account of the prevalence of guilty pleas and the resulting scarcity of trials in today's justice system. See Lafler v. Cooper, 566 U. S. ___, ___ (2012) (slip op., at 11) ("[C]riminal justice today is for the most part a system of pleas, not a system of trials."). The sentencing hearing has largely replaced the trial as the forum for dispute resolution, Betterman urges. Therefore, he maintains, the concerns supporting the right to a speedy trial now recommend a speedy sentencing hearing. The modern reality, however, does not bear on the presumption-of-innocence protection at the heart of the Speedy Trial Clause. And factual disputes, if any there be, at sentencing, do not go to the question of guilt; they are geared, instead, to ascertaining the proper sentence within boundaries set by statutory minimums and maximums. Moreover, a central feature of contemporary sentencing in both federal and state courts is preparation by the probation office, and review by the parties and the court, of a presentence investigation report. See 18 U. S. C. §3552; Fed. Rule Crim. Proc. 32(c)-(g); 6 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §26.5(b), pp. 1048-1049 (4th ed. 2015) (noting reliance on presentence reports in federal and state courts). This aspect of the system requires some amount of wholly reasonable presentencing delay.8 Indeed, many — if not most — disputes are resolved, not at the hearing itself, but rather through the presentence-report process. See N. Demleitner, D. Berman, M. Miller, & R. Wright, Sentencing Law and Policy 443 (3d ed. 2013) ("Criminal justice is far more commonly negotiated than adjudicated; defendants and their attorneys often need to be more concerned about the charging and plea bargaining practices of prosecutors and the presentence investigations of probation offices than . . . about the sentencing procedures of judges or juries."); cf. Bierschbach & Bibas, Notice-and-Comment Sentencing, 97 Minn. L. Rev. 1, 15 (2012) ("[T]oday's sentencing hearings . . . rubber-stamp plea-bargained sentences."). As we have explained, at the third phase of the criminal-justice process, i.e., between conviction and sentencing, the Constitution's presumption-of-innocence-protective speedy trial right is not engaged.9 That does not mean, however, that defendants lack any protection against undue delay at this stage. The primary safeguard comes from statutes and rules. The federal rule on point directs the court to "impose sentence without unnecessary delay." Fed. Rule Crim. Proc. 32(b)(1). Many States have provisions to the same effect,10 and some States prescribe numerical time limits.11 Further, as at the prearrest stage, due process serves as a backstop against exorbitant delay. See supra, at 3. After conviction, a defendant's due process right to liberty, while diminished, is still present. He retains an interest in a sentencing proceeding that is fundamentally fair. But because Betterman advanced no due process claim here, see supra, at 1, we express no opinion on how he might fare under that more pliable standard. See, e.g., United States v. $8,850, 461 U. S. 555, 562-565 (1983).12* * * The course of a criminal prosecution is composed of discrete segments. During the segment between accusation and conviction, the Sixth Amendment's Speedy Trial Clause protects the presumptively innocent from long enduring unresolved criminal charges. The Sixth Amendment speedy trial right, however, does not extend beyond conviction, which terminates the presumption of innocence. The judgment of the Supreme Court of Montana is thereforeAffirmed.Thomas, J., concurring 578 U. S. ____ (2016)No. 14-1457BRANDON THOMAS BETTERMAN, PETITIONER v. MONTANAon writ of certiorari to the supreme court of montana[May 19, 2016] Justice Thomas, with whom Justice Alito joins, concurring. I agree with the Court that the Sixth Amendment's Speedy Trial Clause does not apply to sentencing proceedings, except perhaps to bifurcated sentencing proceedings where sentencing enhancements operate as functional elements of a greater offense. See ante, at 2-3, and n. 2. I also agree with the Court's decision to reserve judgment on whether sentencing delays might violate the Due Process Clause. Ante, at 11. Brandon Betterman's counsel repeatedly disclaimed that he was raising in this Court a challenge under the Due Process Clause. See Tr. of Oral Arg. 7-8 ("We haven't included that. We didn't include that in the question presented, Your Honor"); id., at 8 ("[W]e are not advancing that claim here"); id., at 19 ("[W]e didn't preserve a — a due process challenge. Our challenge is solely under the Sixth Amendment"). We have never decided whether the Due Process Clause creates an entitlement to a reasonably prompt sentencing hearing. Today's opinion leaves us free to decide the proper analytical framework to analyze such claims if and when the issue is properly before us. Justice Sotomayor suggests that, for such claims, we should adopt the factors announced in Barker v. Wingo, 407 U. S. 514, 530-533 (1972). Post, at 2 (concurring opinion). I would not prejudge that matter. The factors listed in Barker may not necessarily translate to the delayed sentencing context. The Due Process Clause can be satisfied where a State has adequate procedures to redress an improper deprivation of liberty or property. See Parratt v. Taylor, 451 U. S. 527, 537 (1981). In unusual cases where trial courts fail to sentence a defendant within a reasonable time, a State might fully satisfy due process by making traditional extraordinary legal remedies, such as mandamus, available. Or, much like the federal Speedy Trial Act regulates trials, see 18 U. S. C. §3161, a State might remedy improper sentencing delay by statute.1 And a person who sleeps on these remedies, as Betterman did, may simply have no right to complain that his sentencing was delayed. We should await a proper presentation, full briefing, and argument before taking a position on this issue. The Court thus correctly "express[es] no opinion on how [Betterman] might fare" under the Due Process Clause. Ante, at 11.Sotomayor, J., concurring 578 U. S. ____ (2016)No. 14-1457BRANDON THOMAS BETTERMAN, PETITIONER v. MONTANAon writ of certiorari to the supreme court of montana[May 19, 2016] Justice Sotomayor, concurring. I agree with the Court that petitioner cannot bring a claim under the Speedy Trial Clause for a delay between his guilty plea and his sentencing. As the majority notes, however, a defendant may have "other recourse" for such a delay, "including, in appropriate circumstances, tailored relief under the Due Process Clauses of the Fifth and Fourteenth Amendments." Ante, at 1. The Court has no reason to consider today the appropriate test for such a Due Process Clause challenge because petitioner has forfeited any such claim. See Tr. of Oral Arg. 19. I write separately to emphasize that the question is an open one. The Due Process Clause is "flexible and calls for such procedural protections as the particular situation demands." Morrissey v. Brewer, 408 U. S. 471, 481 (1972). This Court thus uses different tests to consider whether different kinds of delay run afoul of the Due Process Clause. In evaluating whether a delay in instituting judicial proceedings following a civil forfeiture violated the Due Process Clause, the Court applied the test from Barker v. Wingo, 407 U. S. 514 (1972)--the same test that the Court applies to violations of the Speedy Trial Clause. See United States v. $8,850, 461 U. S. 555, 564 (1983). Under the Barker test, courts consider four factors — the length of the delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant. Ibid. None of the four factors is "either necessary or sufficient," and no one factor has a "talismanic qualit[y]." Barker, 407 U. S., at 533. The Montana Supreme Court did not use the Barker test in evaluating petitioner's Due Process Clause claim. 378 Mont. 182, 193-194, 342 P. 3d 971, 979 (2015). But it seems to me that the Barker factors capture many of the concerns posed in the sentencing delay context and that because the Barker test is flexible, it will allow courts to take account of any differences between trial and sentencing delays. See 407 U. S., at 531. The majority of the Circuits in fact use the Barker test for that purpose. See United States v. Sanders, 452 F. 3d 572, 577 (CA6 2006) (collecting cases). In the appropriate case, I would thus consider the correct test for a Due Process Clause delayed sentencing challenge.FOOTNOTESFootnote 1 Compare Burkett v. Cunningham, 826 F. 2d 1208, 1220 (CA3 1987); Juarez-Casares v. United States, 496 F. 2d 190, 192 (CA5 1974); Ex parte Apicella, 809 So. 2d 865, 869 (Ala. 2001); Gonzales v. State, 582 P. 2d 630, 632 (Alaska 1978); Jolly v. State, 358 Ark. 180, 191, 189 S. W. 3d 40, 45 (2004); Trotter v. State, 554 So. 2d 313, 316 (Miss. 1989), superseded by statute on other grounds, Miss. Code Ann. §99-35-101 (2008); Commonwealth v. Glass, 526 Pa. 329, 334, 586 A. 2d 369, 371 (1991); State v. Leyva, 906 P. 2d 910, 912 (Utah 1995); and State v. Dean, 148 Vt. 510, 513, 536 A. 2d 909, 912 (1987) (Speedy Trial Clause applies to sentencing delay), with United States v. Ray, 578 F. 3d 184, 198-199 (CA2 2009); State v. Drake, 259 N. W. 2d 862, 866 (Iowa 1977), abrogated on other grounds by State v. Kaster, 469 N. W. 2d 671, 673 (Iowa 1991); State v. Pressley, 290 Kan. 24, 29, 223 P. 3d 299, 302 (2010); State v. Johnson, 363 So. 2d 458, 460 (La. 1978); 378 Mont. 182, 192, 342 P. 3d 971, 978 (2015) (case below); and Ball v. Whyte, 170 W. Va. 417, 418, 294 S. E. 2d 270, 271 (1982) (Speedy Trial Clause does not apply to sentencing delay).Footnote 2 We reserve the question whether the Speedy Trial Clause applies to bifurcated proceedings in which, at the sentencing stage, facts that could increase the prescribed sentencing range are determined (e.g., capital cases in which eligibility for the death penalty hinges on aggravating factor findings). Nor do we decide whether the right reattaches upon renewed prosecution following a defendant's successful appeal, when he again enjoys the presumption of innocence.Footnote 3 As Betterman points out, at the founding, sentence was often imposed promptly after rendition of a verdict. Brief for Petitioner 24-26. But that was not invariably the case. For the court's "own convenience, or on cause shown, [sentence could be] postpone[d] . . . to a future day or term." 1 J. Bishop, Criminal Procedure §1291, p. 767 (3d ed. 1880) (footnote omitted). See also 1 J. Chitty, A Practical Treatise on the Criminal Law 481 (1819) ("The sentence . . . is usually given immediately after the conviction, but the court may adjourn to another day and then give judgment.").Footnote 4 We do not mean to convey that provisions of the Sixth Amendment protecting interests other than the presumption of innocence are inapplicable to sentencing. In this regard, we have held that the right to defense counsel extends to some postconviction proceedings. See Mempa v. Rhay, 389 U. S. 128, 135-137 (1967).Footnote 5 Smith v. Hooey, 393 U. S. 374 (1969), on which Betterman relies, is not to the contrary. There we concluded that a defendant, though already convicted and imprisoned on one charge, nevertheless has a right to be speedily brought to trial on an unrelated charge. Id., at 378. "[T]here is reason to believe," we explained in Smith, "that an outstanding untried charge (of which even a convict may, of course, be innocent) can have fully as depressive an effect upon a prisoner as upon a person who is at large." Id., at 379. Smith is thus consistent with comprehension of the Speedy Trial Clause as protective of the presumptively innocent.Footnote 6 Betterman suggests that an appropriate remedy for the delay in his case would be reduction of his sentence by 14 months — the time between his conviction and sentencing. See Tr. of Oral Arg. 6. We have not read the Speedy Trial Clause, however, to call for a flexible or tailored remedy. Instead, we have held that violation of the right demands termination of the prosecution.Footnote 7 See, e.g., Alaska Rule Crim. Proc. 45 (2016); Ark. Rules Crim. Proc. 28.1 to 28.3 (2015); Cal. Penal Code Ann. §1382 (West 2011); Colo. Rev. Stat. §18-1-405 (2015); Conn. Rules Crim. Proc. 43-39 to 43-42 (2016); Fla. Rule Crim. Proc. 3.191 (2016); Haw. Rule Crim. Proc. 48 (2016); Ill. Comp. Stat., ch. 725, §5/103-5 (West 2014); Ind. Rule Crim. Proc. 4 (2016); Iowa Rule Crim. Proc. 2.33 (2016); Kan. Stat. Ann. §22-3402 (2014 Cum. Supp.); La. Code Crim. Proc. Ann., Art. 701 (West Cum. Supp. 2016); Mass. Rule Crim. Proc. 36 (2016); Neb. Rev. Stat. §§29-1207, 29-1208 (2008); Nev. Rev. Stat. §178.556 (2013); N. Y. Crim. Proc. Law Ann. §30.30 (West Cum. Supp. 2016); Ohio Rev. Code Ann. §§2945.71 to 2945.73 (Lexis 2014); Ore. Rev. Stat. §§135.745, 135.746, 135.748, 135.750, 135.752 (2015); Pa. Rule Crim. Proc. 600 (2016); S. D. Codified Laws §23A-44-5.1 (Cum. Supp. 2015); Va. Code Ann. §19.2-243 (2015); Wash. Rule Crim. Proc. 3.3 (2016); Wis. Stat. §971.10 (2011-2012); Wyo. Rule Crim. Proc. 48 (2015).Footnote 8 "In federal prosecutions," the Solicitor General informs us, "the median time between conviction and sentencing in 2014 was 99 days." Brief for United States as Amicus Curiae 31, n. 5. A good part of this time no doubt was taken up by the drafting and review of a presentence report. See Fed. Rule Crim. Proc. 32(c)-(g) (detailing presentence-report process).Footnote 9 It is true that during this period the defendant is often incarcerated. See, e.g., §3143(a) (bail presumptively unavailable for convicted awaiting sentence). Because postconviction incarceration is considered punishment for the offense, however, a defendant will ordinarily earn time-served credit for any period of presentencing detention. See §3585(b); A. Campbell, Law of Sentencing §9:28, pp. 444-445, and n. 4 (3d ed. 2004) ("[State c]rediting statutes routinely provide that any period of time during which a person was incarcerated in relation to a given offense be counted toward satisfaction of any resulting sentence."). That such detention may occur in a local jail rather than a prison is of no constitutional moment, for a convicted defendant has no right to serve his sentence in the penal institution he prefers. See Meachum v. Fano, 427 U. S. 215, 224-225 (1976).Footnote 10 See, e.g., Alaska Rule Crim. Proc. 32(a) (2016); Colo. Rule Crim. Proc. 32(b)(1) (2015); Del. Super. Ct. Crim. Rule 32(a)(1) (2003); Fla. Rule Crim. Proc. 3.720 (2016); Haw. Rule Penal Proc. 32(a) (2016); Kan. Stat. Ann. §22-3424(c) (2014 Cum. Supp.); Ky. Rule Crim. Proc. 11.02(1) (2016); La. Code Crim. Proc. Ann., Art. 874 (West 2016); Me. Rule Crim. Proc. 32(a)(1) (2015); Mass. Rule Crim. Proc. 28(b) (2016); Mich. Ct. Rule 6.425(E)(1) (2011); Mo. Sup. Ct. Rule 29.07(b)(1) (2011); Mont. Code Ann. §46-18-115 (2015); Nev. Rev. Stat. §176.015(1) (2013); N. H. Rule Crim. Proc. 29(a)(1) (2016); N. J. Ct. Rule 3:21-4(a) (2016); N. Y. Crim. Proc. Law Ann. §380.30(1) (West Cum. Supp. 2016); N. D. Rule Crim. Proc. 32(a)(1) (2011); Ohio Rule Crim. Proc. 32(A) (2013); R. I. Super. Ct. Rule 32(a)(1) (2015); S. D. Codified Laws §23A-27-1 (Cum. Supp. 2015); Vt. Rule Crim. Proc. 32(a)(1) (2010); Va. Sup. Ct. Rule 3A:17.1(b) (2012); W. Va. Rule Crim. Proc. 32(a) (2006); Wyo. Rule Crim. Proc. 32(c)(1) (2015).Footnote 11 See, e.g., Ariz. Rule Crim. Proc. 26.3(a)(1) (2011); Ark. Rule Crim. Proc. 33.2 (2015); Cal. Penal Code Ann. §1191 (West 2015); Ind. Rule Crim. Proc. 11 (2016); N. M. Rule Crim. Proc. 5-701(B) (2016); Ore. Rev. Stat. §137.020(3) (2015); Pa. Rule Crim. Proc. 704(A)(1) (2016); Tenn. Code Ann. §40-35-209(a) (2014); Utah Rule Crim. Proc. 22(a) (2015); Wash. Rev. Code §9.94A.500(1) (2016 Cum. Supp.). These sentencing provisions are separate from state analogues to the Speedy Trial Act. See supra, at 8, and n. 7.Footnote 12 Relevant considerations may include the length of and reasons for delay, the defendant's diligence in requesting expeditious sentencing, and prejudice.FOOTNOTESFootnote 1 Montana law, for example, secures the right to a prompt sentencing hearing. See Mont. Code Ann. §46-18-101(3)(a) (2015) ("Sentencing and punishment must be certain, timely, consistent, and understand-able"); §46-18-102(3)(a) ("[I]f the verdict or finding is guilty, sentence must be pronounced and judgment rendered within a reasonable time"); §46-18-115 ("[T]he court shall conduct a sentencing hearing, without unreasonable delay").

[Footnote *] Together with No. 781, Baan et ux. v. Commissioner of Internal Revenue, on certiorari to the United States Court of Appeals for the Ninth Circuit. Pacific Telephone & Telegraph Co. (Pacific), a subsidiary of American Telephone & Telegraph Co., which owned about 90% of Pacific's stock, transferred certain of its assets to a new company, Pacific Northwest Bell Telephone Co. (Northwest), in exchange for all Northwest's common stock, and debt paper. In 1961 Pacific distributed to its shareholders rights to purchase about 57% of Northwest's common stock at $16 a share, which was below its market value. Pacific advised its stockholders that "it expected that within about three years ... the Company by one or more offerings will offer for sale the balance of such stock." It also reported that the Internal Revenue Service had ruled that stockholders who sold rights distributed to them would receive taxable income in the amount of the proceeds of sale, and that stockholders who exercised rights would receive taxable income in the amount of the difference between $16 and the fair market value per share of Northwest stock obtained. In 1963 the remaining Northwest stock was similarly offered to Pacific stockholders through rights. Respondents in No. 760 were minority stockholders of Pacific who received rights pursuant to the 1961 distribution; they sold four rights and exercised the balance. Petitioners in No. 781, who also received rights in 1961, exercised them all. None of these individuals reported any income from these transactions on their tax returns and the Commissioner of Internal Revenue asserted deficiencies. The Tax Court upheld the taxpayers' contention that the 1961 spinoff distribution met the requirements of 355 of the Internal Revenue Code of 1954, with the result that no gain should be recognized on the receipt or exercise of the rights. The Tax Court held that the sale of the four rights did result in ordinary income. No. 781 was appealed to the Court of Appeals for the Ninth Circuit, which reversed the Tax Court and held that the difference between $16 and fair market value was taxable income. No. 760 was appealed to the Second Circuit, which sustained the Tax Court on this point, but held the amount received from the sale of the rights was taxable as a capital gain rather than income. Held: 1. When a corporation sells corporate property to stockholders or their assignees at less than its fair market value, thus diminishing the corporation's net worth, it is engaging in a "distribution of property," and such a sale results in a dividend to shareholders unless some specific exception applies. Pp. 88-91. 2. Section 355 of the Code does not provide an exception for the 1961 distribution. Pp. 91-98. (a) The 1961 distribution did not transfer "all" the Northwest stock nor did it transfer "control" (defined in 368 (c) as 80%), within the meaning of 355 (a) (1) (D). Pp. 91-95. (b) For an initial transfer of less than a controlling interest to be treated as merely the first step in the divestiture of control it must be clearly identifiable as such at the time it is made and there must be a binding commitment to take the later steps, which was not the situation here. Pp. 95-98. (c) Since receipt and exercise of the rights produced ordinary income, receipt and sale of the rights also resulted in income taxable at ordinary rates. P. 98. No. 760, 382 F.2d 499, reversed; No. 781, 382 F.2d 485, affirmed.Solicitor General Griswold argued the cause for petitioner in No. 760 and for respondent in No. 781. With him on the briefs were Assistant Attorney General Rogovin, Harris Weinstein, Gilbert E. Andrews, and Martin T. Goldblum.Harry R. Horrow argued the cause for respondents in No. 760 and for petitioners in No. 781. With him on the briefs were Francis N. Marshall and Stephen J. Martin.MR. JUSTICE HARLAN delivered the opinion of the Court.These cases, involving the interpretation of 355 of the Internal Revenue Code of 1954, have an appropriately complex history. American Telephone and Telegraph Company (hereafter A. T. & T.) conducts its local communications business through corporate subsidiaries. Prior to July 1, 1961, communications services in California, Oregon, Washington, and Idaho were provided by Pacific Telephone and Telegraph Company (hereafter Pacific). A. T. & T. held about 90% of the common stock of Pacific at all relevant times. The remainder was widely distributed.Early in 1961, it was decided to divide Pacific into two separate corporate subsidiaries of A. T. & T. The plan was to create a new corporation, Pacific Northwest Bell Telephone Company (hereafter Northwest) to conduct telephone business in Oregon, Washington, and Idaho, leaving the conduct of the California business in the hands of Pacific. To this end, Pacific would transfer all its assets and liabilities in the first three States to Northwest, in return for Northwest common stock and debt paper. Then, Pacific would transfer sufficient Northwest stock to Pacific shareholders to pass control of Northwest to the parent company, A. T. & T.Pacific had, however, objectives other than fission. It wanted to generate cash to pay off existing liabilities and meet needs for capital, but not to have excess cash left over. It also feared that a simple distribution of the Northwest stock would encounter obstacles under California corporation law.1 Consequently, the "Plan for Reorganization" submitted to Pacific's shareholders on February 27, 1961, had two special features. It provided that only about 56% of the Northwest common stock would be offered to Pacific shareholders immediately after the creation of Northwest. It also provided that, instead of simply distributing Northwest stock pro rata to shareholders, Pacific would distribute to its shareholders transferable rights entitling their holders to purchase Northwest common from Pacific at an amount to be specified by Pacific's Board of Directors, but expected to be below the fair market value of the Northwest common.In its February 27 statement to shareholders, Pacific said that it was seeking a ruling from the Internal Revenue Service "with respect to the tax status of the rights to purchase which will be issued in connection with the offerings of capital stock of the New Company to shareholders of the Company ... ." The statement warned, however, that "[t]axable income to the holders of such shares may result with respect to such rights."The plan was approved by Pacific's shareholders on March 24, 1961. Pacific transferred its assets and liabilities in Oregon, Washington, and Idaho to Northwest, and ceased business in those States on June 30, 1961. On September 29, 1961, Pacific issued to its common stockholders one right for each outstanding share of Pacific stock. These rights were exercisable until October 20, 1961. Six rights plus a payment of $16 were required to purchase one share of Northwest common. The rights issued in 1961 were sufficient to transfer about 57% of the Northwest stock.By September 29, 1961, the Internal Revenue Service had ruled that shareholders who sold rights would realize ordinary income in the amount of the sales price, and that shareholders who exercised rights would realize ordinary income in the amount of the difference between $16 paid in and the fair market value, measured as of the date of exercise, of the Northwest common received. The prospectus accompanying the distributed rights informed Pacific shareholders of this ruling.On June 12, 1963, the remaining 43% of the Northwest stock was offered to Pacific shareholders. This second offering was structured much as the first had been, except that eight rights plus $16 were required to purchase one share of Northwest.The Gordons, respondents in No. 760, and the Baans, petitioners in No. 781, were minority shareholders of Pacific as of September 29, 1961. In the rights distribution that occurred that day the Gordons received 1,540 rights under the plan. They exercised 1,536 of the rights on October 5, 1961, paying $4,096 to obtain 256 shares of Northwest, at a price of $16 plus six rights per share. The average price of Northwest stock on the American Stock Exchange was $26 per share on October 5. On the same day, the Gordons sold the four odd rights for $6.36. The Baans received 600 rights on September 29, 1961. They exercised them all on October 11, 1961, receiving 100 shares of Northwest in return for their 600 rights and $1,600. On October 11, the agreed fair market value of one Northwest share was $26.94.In their federal income tax returns for 1961, neither the Gordons nor the Baans reported any income upon the receipt of the rights or upon exercising them to obtain Northwest stock at less than its fair market value. The Gordons also did not report any income on the sale of the four rights. The Commissioner asserted deficiencies against both sets of taxpayers. He contended, in a joint proceeding in the Tax Court, that the taxpayers received ordinary income in the amount of the difference between the sum they paid in exercising their rights and the fair market value of the Northwest stock received. He contended further that the Gordons realized ordinary income in the amount of $6.36, the sales price, upon the sale of their four odd rights.The Tax Court upheld the taxpayers' contention that the 1961 distribution of Northwest stock met the requirements of 355 of the Code, with the result that no gain or loss should be recognized on the receipt by them or their exercise of the rights. The Tax Court held, however, that the Gordons' sale of the four odd rights resulted in ordinary income to them. The Commissioner appealed the Baan case to the Court of Appeals for the Ninth Circuit, and the Gordon case to the Court of Appeals for the Second Circuit; in the latter, the Gordons cross-appealed. The Ninth Circuit reversed the Tax Court, holding that the spread between $16 and fair market value was taxable as ordinary income to the Baans. The Second Circuit disagreed, sustaining the Tax Court on this point in the Gordon case, Judge Friendly dissenting. The Second Circuit went on to hold that the amount received by the Gordons for the four odd rights was taxable as a capital gain rather than as ordinary income, reversing the Tax Court on this point.Because of the conflict, we granted certiorari. . We affirm the decision of the Court of Appeals for the Ninth Circuit, and reverse the decision of the Court of Appeals for the Second Circuit on both points.Under 301 and 316 of the Code, subject to specific exceptions and qualifications provided in the Code, any distribution of property by a corporation to its shareholders out of accumulated earnings and profits is a dividend taxable to the shareholders as ordinary income.2 Every distribution of corporate property, again except as otherwise specifically provided, "is made out of earnings and profits to the extent thereof."3 It is here agreed that on September 28, 1961, Pacific's accumulated earnings and profits were larger in extent than the total amount the Commissioner here contends was a dividend - the difference between the fair market value of all Northwest stock sold in 1961 and the total amount, at $16 per share, paid in by purchasers.Whether the actual dividend occurs at the moment when valuable rights are distributed or at the moment when their value is realized through sale or exercise, it is clear that when a corporation sells corporate property to stockholders or their assignees at less than its fair market value, thus diminishing the net worth of the corporation, it is engaging in a "distribution of property" as that term is used in 316.4 Such a sale thus results in a dividend to shareholders unless some specific exception or qualification applies. In particular, it is here agreed that the spread was taxable to the present taxpayers unless the distribution of Northwest stock by Pacific met the requirements for nonrecognition stated in 355, or 354, or 346 (b) of the Code.5 Since the Tax Court concluded that the requirements of 355 had been met, it did not reach taxpayers' alternative contentions. Under the disposition that we make here upon the 355 question, these alternative contentions remain open for further proceedings in the Tax Court.Section 355 provides that certain distributions of securities of corporations controlled by the distributing corporation do not result in recognized gain or loss to the distributee shareholders.6 The requirements of the section are detailed and specific, and must be applied with precision. It is no doubt true, as the Second Circuit emphasized, that the general purpose of the section was to distinguish corporate fission from the distribution of earnings and profits. However, although a court may have reference to this purpose when there is a genuine question as to the meaning of one of the requirements Congress has imposed, a court is not free to disregard requirements simply because it considers them redundant or unsuited to achieving the general purpose in a particular case. Congress has abundant power to provide that a corporation wishing to spin off a subsidiary must, however bona fide its intentions, conform the details of a distribution to a particular set of rules.The Commissioner contends that the 1961 distribution of Northwest stock failed to qualify under 355 in several respects.7 We need, however, reach only one. Section 355 (a) (1) (D) requires that, in order to qualify for nonrecognition of gain or loss to shareholders, the distribution must be such that "as part of the distribution, the distributing corporation distributes - "(i) all of the stock and securities in the controlled corporation held by it immediately before the distribution, or "(ii) an amount of stock in the controlled corporation constituting control within the meaning of section 368 (c), and ... ." Section 368 (c) provides in relevant part that "the term `control' means the ownership of stock possessing at least 80 percent of the total combined voting power of all classes of stock entitled to vote and at least 80 percent of the total number of shares of all other classes of stock of the corporation."8 On September 28, 1961, the day before the first rights distribution, Pacific owned all of the common stock of Northwest, the only class of securities that company had issued. The 1961 rights offering contemplated transferring, and succeeded in transferring, about 57% of the Northwest common to Pacific shareholders. It therefore could not be clearer that this 1961 distribution did not transfer "all" of the stock of Northwest held by Pacific prior to it, and did not transfer "control" as that term is defined in 368 (c).Nevertheless, taxpayers contend, and the Second Circuit agreed, that the requirements of subsection (a)(1)(D) were here met because Pacific distributed the remaining 43% of the Northwest stock in 1963. The court said that the purpose of the subsection "in no way requires a single distribution."9 The court apparently concluded that so long as it appears, at the time the issue arises, that the parent corporation has in fact distributed all of the stock of the subsidiary, the requirements of (a) (1) (D) (i) have been satisfied.We are forced to disagree. The Code requires that "the distribution" divest the controlling corporation of all of, or 80% control of, the controlled corporation. Clearly, if an initial transfer of less than a controlling interest in the controlled corporation is to be treated for tax purposes as a mere first step in the divestiture of control, it must at least be identifiable as such at the time it is made. Absent other specific directions from Congress, Code provisions must be interpreted so as to conform to the basic premise of annual tax accounting.10 It would be wholly inconsistent with this premise to hold that the essential character of a transaction, and its tax impact, should remain not only undeterminable but unfixed for an indefinite and unlimited period in the future, awaiting events that might or might not happen. This requirement that the character of a transaction be determinable does not mean that the entire divestiture must necessarily occur within a single tax year. It does, however, mean that if one transaction is to be characterized as a "first step" there must be a binding commitment to take the later steps.11 Here, it was little more than a fortuity that, by the time suit was brought alleging a deficiency in taxpayers' 1961 returns, Pacific had distributed the remainder of the stock. The plan for reorganization submitted to shareholders in 1961 promised that 56% of that stock would be distributed immediately. The plan went on, "It is expected that within about three years after acquiring the stock of the New Company, the Company by one or more offerings will offer for sale the balance of such stock, following the procedures described in the preceding paragraph. The proceeds from such sales will be used by the Company to repay advances then outstanding and for general corporate purposes including expenditures for extensions, additions and improvements to its telephone plant. "The prices at which the shares of the New Company will be offered pursuant to the offerings referred to ... will be determined by the Board of Directors of the Company at the time of each offering." It was further stated that such subsequent distributions would occur "[a]t a time or times related to its [Pacific's] need for new capital." Although there is other language in the plan that might be interpreted as preventing Pacific management from dealing with the Northwest stock in any way inconsistent with eventual sale to Pacific shareholders, there is obviously no promise to sell any particular amount of stock, at any particular time, at any particular price. If the 1961 distribution played a part in what later proved to be a total divestiture of the Northwest stock, it was not, in 1961, either a total divestiture or a step in a plan of total divestiture.Accordingly, we hold that the taxpayers, having exercised rights to purchase shares of Northwest from Pacific in 1961, must recognize ordinary income in that year in the amount of the difference between $16 per share and the fair market value of a share of Northwest common at the moment the rights were exercised.The second question presented by the petition in No. 760, whether the $6.36 received by taxpayers Gordon upon the sale of four rights was taxable as ordinary income, as a capital gain, or not at all, does not require extended discussion in light of our view upon the first question. Since receipt and exercise of the rights would have produced ordinary income, receipt and sale of the rights, constituting merely an alternative route to realization, also produced income taxable at ordinary rates. Helvering v. Horst, ; Gibson v. Commissioner, 133 F.2d 308 (C. A. 2d Cir.).The judgment of the Court of Appeals for the Second Circuit is reversed. The judgment of the Court of Appeals for the Ninth Circuit is affirmed. It is so ordered.MR. JUSTICE MARSHALL took no part in the consideration or decision of these cases.

Petitioner Arkansas Educational Television Commission (AETC), a state-owned public television broadcaster, sponsored a debate between the major party candidates for the 1992 election in Arkansas' Third Congressional District. When AETC denied the request of respondent Forbes, an independent candidate with little popular support, for permission to participate in the debate, Forbes filed this suit, claiming, inter alia , that he was entitled to participate under the First Amendment. The jury made express findings that Forbes' exclusion had not been influenced by political pressure or disagreement with his views. The District Court entered judgment for AETC. The Eighth Circuit reversed, holding that the debate was a public forum to which all ballot-qualified candidates had a presumptive right of access. Applying strict scrutiny, the court determined that AETC's assessment of Forbes' "political viability" was neither a compelling nor a narrowly tailored reason for excluding him.Held: AETC's exclusion of Forbes from the debate was consistent with the First Amendment. Pp. 4-16.(a) Unlike most other public television programs, candidate debates are subject to scrutiny under this Court's public forum doctrine. Having first arisen in the context of streets and parks, the doctrine should not be extended in a mechanical way to the different context of television broadcasting. Broad rights of access for outside speakers would be antithetical, as a general rule, to the editorial discretion that broadcasters must exercise to fulfill their journalistic purpose and statutory obligations. For two reasons, however, candidate debates present the narrow exception to the rule. First, unlike AETC's other broadcasts, the debate was by design a forum for candidates' political speech. Consistent with the long tradition of such debates, AETC's implicit representation was that the views expressed were those of the candidates, not its own. The debate's very purpose was to allow the expression of those views with minimal intrusion by the broadcaster. Second, candidate debates are of exceptional significance in the electoral process. Deliberation on candidates' positions and qualifications is integral to our system of government, and electoral speech may have its most profound and widespread impact when it is disseminated through televised debates. Thus, the special characteristics of candidate debates support the conclusion that the AETC debate was a forum of some type. The question of what type must be answered by reference to this Court's public forum precedents. Pp. 4-9.(b) For the Court's purposes, it will suffice to employ the categories of speech fora already established in the case law. The Court has identified three types of fora: the traditional public forum, the public forum created by government designation, and the nonpublic forum. Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., . Traditional public fora are defined by the objective characteristics of the property, such as whether, "by long tradition or by government fiat," the property has been "devoted to assembly and debate." Perry Ed. Assn ., at 45. The government can exclude a speaker from a traditional public forum only when the exclusion is necessary to serve a compelling state interest and is narrowly drawn to achieve that interest. Cornelius, supra, at 800. Designated public fora are created by purposeful governmental action opening a nontraditional public forum for expressive use by the general public or by a particular class of speakers. E.g., International Soc. for Krishna Consciousness, Inc. v. Lee, (ISKCON). If the government excludes a speaker who falls within the class to which such a forum is made generally available, its action is subject to strict scrutiny. E.g., Cornelius, supra, at 802. Property that is not a traditional public forum or a designated public forum is either a nonpublic forum or not a forum at all. ISKCON, supra, at 678-679. Access to a nonpublic forum can be restricted if the restrictions are reasonable and are not an effort to suppress expression merely because public officials oppose the speaker's views. Cornelius, supra, at 800. Pp. 9-10.(c) The AETC debate was a nonpublic forum. The parties agree that it was not a traditional public forum, and it was not a designated public forum under this Court's precedents. Those cases demonstrate, inter alia, that the government does not create a designated public forum when it does no more than reserve eligibility for access to a forum to a particular class of speakers, whose members must then, as individuals, "obtain permission," Cornelius, at 804, to use it. Contrary to the Eighth Circuit's assertion, AETC did not make its debate generally available to candidates for the congressional seat at issue. Instead, it reserved eligibility for participation to candidates for that seat (as opposed to some other seat), and then made candidate-by-candidate determinations as to which of the eligible candidates would participate in the debate. Such "selective access," unsupported by evidence of a purposeful designation for public use, does not create a public forum, but indicates that the debate was a nonpublic forum. Id., at 805. Pp. 10-14.(d) AETC's decision to exclude Forbes was a reasonable, viewpointneutral exercise of journalistic discretion consistent with the First Amendment. The record demonstrates beyond dispute that Forbes was excluded not because of his viewpoint, but because he had not generated appreciable public interest. There is no serious argument that AETC did not act in good faith in this case. Pp. 14-16.93 F. 3d 497, reversed.KENNEDY , J., delivered the opinion of the Court, in which REHNQUIST , C. J., and O'CONNOR , SCALIA , THOMAS , and BREYER , JJ., joined. STEVENS , J., filed a dissenting opinion, in which SOUTER and GINSBURG , JJ., joined. 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.U.S. Supreme Court No. 96-779 ARKANSAS EDUCATIONAL TELEVISION COMMISSION, PETITIONER v. RALPH P. FORBES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT[May 18, 1998]JUSTICE KENNEDY delivered the opinion of the Court.A state-owned public television broadcaster sponsored a candidate debate from which it excluded an independent candidate with little popular support. The issue before us is whether, by reason of its state ownership, the station had a constitutional obligation to allow every candidate access to the debate. We conclude that, unlike most other public television programs, the candidate debate was subject to constitutional constraints applicable to nonpublic fora under our forum precedents. Even so, the broadcaster's decision to exclude the candidate was a reasonable, viewpoint-neutral exercise of journalistic discretion. IPetitioner, the Arkansas Educational Television Commission (AETC), is an Arkansas state agency owning and operating a network of five noncommercial television stations (Arkansas Educational Television Network or AETN). The eight members of AETC are appointed by the Governor for 8-year terms and are removable only for good cause. Ark. Code Ann. §§6-3-102(a)(1), (b)(1) (Supp. 1997), §25-16-804(b)(1) (1996). AETC members are barred from holding any other state or federal office, with the exception of teaching positions. Ark. Code Ann. §6-3102(a)(3) (Supp. 1997). To insulate its programming decisions from political pressure, AETC employs an Executive Director and professional staff who exercise broad editorial discretion in planning the network's programming. AETC has also adopted the Statement of Principles of Editorial Integrity in Public Broadcasting , which counsel adherence to "generally accepted broadcasting industry standards, so that the programming service is free from pressure from political or financial supporters." App. to Pet. for Cert. 82a.In the spring of 1992, AETC staff began planning a series of debates between candidates for federal office in the November 1992 elections. AETC decided to televise a total of five debates, scheduling one for the Senate election and one for each of the four congressional elections in Arkansas. Working in close consultation with Bill Simmons, Arkansas Bureau Chief for the Associated Press, AETC staff developed a debate format allowing about 53 minutes during each 1-hour debate for questions to and answers by the candidates. Given the time constraint, the staff and Simmons "decided to limit participation in the debates to the major party candidates or any other candidate who had strong popular support." Record, Affidavit of Bill Simmons #2665.On June 17, 1992, AETC invited the Republican and Democratic candidates for Arkansas' Third Congressional District to participate in the AETC debate for that seat. Two months later, after obtaining the 2,000 signatures required by Arkansas law, see Ark. Code Ann. §7-7103(c)(1) (1993), respondent Ralph Forbes was certified as an independent candidate qualified to appear on the ballot for the seat. Forbes was a perennial candidate who had sought, without success, a number of elected offices in Arkansas. On August 24, 1992, he wrote to AETC requesting permission to participate in the debate for his district, scheduled for October 22, 1992. On September 4, AETC Executive Director Susan Howarth denied Forbes' request, explaining that AETC had "made a bona fide journalistic judgement that our viewers would be best served by limiting the debate" to the candidates already invited. App. 61.On October 19, 1992, Forbes filed suit against AETC, seeking injunctive and declaratory relief as well as damages. Forbes claimed he was entitled to participate in the debate under both the First Amendment and 47 U.S.C. § 315 which affords political candidates a limited right of access to television air time. Forbes requested a preliminary injunction mandating his inclusion in the debate. The District Court denied the request, as did the United States Court of Appeals for the Eighth Circuit. The District Court later dismissed Forbes' action for failure to state a claim.Sitting en banc , the Court of Appeals affirmed the dismissal of Forbes' statutory claim, holding that he had failed to exhaust his administrative remedies. The court reversed, however, the dismissal of Forbes' First Amendment claim. Observing that AETC is a state actor, the court held Forbes had "a qualified right of access created by AETN's sponsorship of a debate, and that AETN must have [had] a legitimate reason to exclude him strong enough to survive First Amendment scrutiny." Forbes v. Arkansas Ed. Television Network Foundation, 22 F. 3d 1423, 1428 (CA8), cert. denied, , . Because AETC had not yet filed an answer to Forbes' complaint, it had not given any reason for excluding him from the debate, and the Court of Appeals remanded the action for further proceedings.On remand, the District Court found as a matter of law that the debate was a nonpublic forum, and the issue became whether Forbes' views were the reason for his exclusion. At trial, AETC professional staff testified Forbes was excluded because he lacked any campaign organization, had not generated appreciable voter support, and was not regarded as a serious candidate by the press covering the election. The jury made express findings that AETC's decision to exclude Forbes had not been influenced by political pressure or disagreement with his views. The District Court entered judgment for AETC.The Court of Appeals again reversed. The court acknowledged that AETC's decision to exclude Forbes "was made in good faith" and was "exactly the kind of journalistic judgment routinely made by newspeople." 93 F. 3d 497, 505 (CA8 1996). The court asserted, nevertheless, that AETC had "opened its facilities to a particular group-candidates running for the Third District Congressional seat." Id. , at 504. AETC's action, the court held, made the debate a public forum, to which all candidates "legally qualified to appear on the ballot" had a presumptive right of access. Ibid. Applying strict scrutiny, the court determined that AETC's assessment of Forbes' "political viability" was neither a "compelling nor [a] narrowly tailored" reason for excluding him from the debate. Id., at 504-505.A conflict with the decision of the United States Court of Appeals for the Eleventh Circuit in Chandler v. Georgia Public Telecommunications Comm'n, 917 F. 2d 486 (1990), cert. denied, , together with the manifest importance of the case, led us to grant certiorari. ___ (1997). We now reverse. IIForbes has long since abandoned his statutory claims under 47 U.S.C. § 315 and so the issue is whether his exclusion from the debate was consistent with the First Amendment. The Court of Appeals held it was not, applying our public forum precedents. Appearing as amicus curiae in support of petitioners, the Solicitor General argues that our forum precedents should be of little relevance in the context of television broadcasting. At the outset, then, it is instructive to ask whether public forum principles apply to the case at all.Having first arisen in the context of streets and parks, the public forum doctrine should not be extended in a mechanical way to the very different context of public television broadcasting. In the case of streets and parks, the open access and viewpoint neutrality commanded by the doctrine is "compatible with the intended purpose of the property." Perry Ed. Assn. v. Perry Local Educators' Assn., . So too was the requirement of viewpoint neutrality compatible with the university's funding of student publications in Rosenberger v. Rector and Visitors of Univ. of Va., . In the case of television broadcasting, however, broad rights of access for outside speakers would be antithetical, as a general rule, to the discretion that stations and their editorial staff must exercise to fulfill their journalistic purpose and statutory obligations.Congress has rejected the argument that "broadcast facilities should be open on a nonselective basis to all persons wishing to talk about public issues." Columbia Broadcasting System, Inc. v. Democratic National Committee, . Instead, television broadcasters enjoy the "widest journalistic freedom" consistent with their public responsibilities. Id. , at 110; FCC v. League of Women Voters of Cal., . Among the broadcaster's responsibilities is the duty to schedule programming that serves the "public interest, convenience, and necessity." 47 U.S.C. § 309(a). Public and private broadcasters alike are not only permitted, but indeed required, to exercise substantial editorial discretion in the selection and presentation of their programming.As a general rule, the nature of editorial discretion counsels against subjecting broadcasters to claims of viewpoint discrimination. Programming decisions would be particularly vulnerable to claims of this type because even principled exclusions rooted in sound journalistic judgment can often be characterized as viewpoint-based. To comply with their obligation to air programming that serves the public interest, broadcasters must often choose among speakers expressing different viewpoints. "That editors-newspaper or broadcast-can and do abuse this power is beyond doubt," Columbia Broadcasting System, Inc., 412 U.S., at 124; but "[c]alculated risks of abuse are taken in order to preserve higher values." Id., at 125. Much like a university selecting a commencement speaker, a public institution selecting speakers for a lecture series, or a public school prescribing its curriculum, a broadcaster by its nature will facilitate the expression of some viewpoints instead of others. Were the judiciary to require, and so to define and approve, pre-established criteria for access, it would risk implicating the courts in judgments that should be left to the exercise of journalistic discretion.When a public broadcaster exercises editorial discretion in the selection and presentation of its programming, it engages in speech activity. Cf. Turner Broadcasting System, Inc. v. FCC, ("Through 'original programming or by exercising editorial discretion over which stations or programs to include in its repertoire,' cable programmers and operators 'see[k] to communicate messages on a wide variety of topics and in a wide variety of formats' ") (quoting Los Angeles v. Preferred Communications, Inc., ). Although programming decisions often involve the compilation of the speech of third parties, the decisions nonetheless constitute communi cative acts. See Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., (a speaker need not "generate, as an original matter, each item featured in the communication").Claims of access under our public forum precedents could obstruct the legitimate purposes of television broadcasters. Were the doctrine given sweeping application in this context, courts "would be required to oversee far more of the day-to-day operations of broadcasters' conduct, deciding such questions as whether a particular individual or group has had sufficient opportunity to present its viewpoint and whether a particular viewpoint has already been sufficiently aired." Columbia Broadcasting System, Inc., supra, at 127. "The result would be a further erosion of the journalistic discretion of broadcasters," transferring "control over the treatment of public issues from the licensees who are accountable for broadcast performance to private individuals" who bring suit under our forum precedents. 412 U.S., at 124. In effect, we would "exchange 'public trustee' broadcasting, with all its limitations, for a system of self-appointed editorial commentators." Id., at 125.In the absence of any congressional command to "[r]egimen[t] broadcasters" in this manner, id., at 127, we are disinclined to do so through doctrines of our own design. This is not to say the First Amendment would bar the legislative imposition of neutral rules for access to public broadcasting. Instead, we say that, in most cases, the First Amendment of its own force does not compel public broadcasters to allow third parties access to their programming.Although public broadcasting as a general matter does not lend itself to scrutiny under the forum doctrine, candidate debates present the narrow exception to the rule. For two reasons, a candidate debate like the one at issue here is different from other programming. First, unlike AETC's other broadcasts, the debate was by design a forum for political speech by the candidates. Consistent with the long tradition of candidate debates, the implicit representation of the broadcaster was that the views expressed were those of the candidates, not its own. The very purpose of the debate was to allow the candidates to express their views with minimal intrusion by the broadcaster. In this respect the debate differed even from a political talk show, whose host can express partisan views and then limit the discussion to those ideas.Second, in our tradition, candidate debates are of exceptional significance in the electoral process. "[I]t is of particular importance that candidates have the opportunity to make their views known so that the electorate may intelligently evaluate the candidates' personal qualities and their positions on vital public issues before choosing among them on election day." CBS, Inc. v. FCC, (internal quotation marks omitted). Deliberation on the positions and qualifications of candidates is integral to our system of government, and electoral speech may have its most profound and widespread impact when it is disseminated through televised debates. A majority of the population cites television as its primary source of election information, and debates are regarded as the "only occasion during a campaign when the attention of a large portion of the American public is focused on the election, as well as the only campaign information format which potentially offers sufficient time to explore issues and policies in depth in a neutral forum." Congressional Research Service, Campaign Debates in Presidential General Elections, summ. (June 15, 1993).As we later discuss, in many cases it is not feasible for the broadcaster to allow unlimited access to a candidate debate. Yet the requirement of neutrality remains; a broadcaster cannot grant or deny access to a candidate debate on the basis of whether it agrees with a candidate's views. Viewpoint discrimination in this context would present not a "[c]alculated ris[k]," Columbia Broadcasting System, Inc., supra, at 125, but an inevitability of skewing the electoral dialogue.The special characteristics of candidate debates support the conclusion that the AETC debate was a forum of some type. The question of what type must be answered by reference to our public forum precedents, to which we now turn. IIIForbes argues, and the Court of Appeals held, that the debate was a public forum to which he had a First Amendment right of access. Under our precedents, however, the debate was a nonpublic forum, from which AETC could exclude Forbes in the reasonable, viewpoint-neutral exercise of its journalistic discretion. AFor our purposes, it will suffice to employ the categories of speech fora already established and discussed in our cases. "[T]he Court [has] identified three types of fora: the traditional public forum, the public forum created by government designation, and the nonpublic forum." Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., . Traditional public fora are defined by the objective characteristics of the property, such as whether, "by long tradition or by government fiat," the property has been "devoted to assembly and debate." Perry Ed. Assn ., at 45. The government can exclude a speaker from a traditional public forum "only when the exclusion is necessary to serve a compelling state interest and the exclusion is narrowly drawn to achieve that interest." Cornelius, supra, at 800.Designated public fora, in contrast, are created by purposeful governmental action. "The government does not create a [designated] public forum by inaction or by per mitting limited discourse, but only by intentionally opening a nontraditional public forum for public discourse." 473 U.S., at 802; accord, International Soc. for Krishna Consciousness, Inc. v. Lee, (ISKCON) (designated public forum is "property that the State has opened for expressive activity by all or part of the public"). Hence "the Court has looked to the policy and practice of the government to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum." Cornelius, at 802 . If the government excludes a speaker who falls within the class to which a designated public forum is made generally available, its action is subject to strict scrutiny. Ibid.; United States v. Kokinda, (plurality opinion of O'CONNOR , J.).Other government properties are either nonpublic fora or not fora at all. ISKCON, supra, at 678-679. The government can restrict access to a nonpublic forum "as long as the restrictions are reasonable and [are] not an effort to suppress expression merely because public officials oppose the speaker's view." Cornelius, supra, at 800 (internal quotation marks omitted).In summary, traditional public fora are open for expressive activity regardless of the government's intent. The objective characteristics of these properties require the government to accommodate private speakers. The government is free to open additional properties for expressive use by the general public or by a particular class of speakers, thereby creating designated public fora. Where the property is not a traditional public forum and the government has not chosen to create a designated public forum, the property is either a nonpublic forum or not a forum at all. BThe parties agree the AETC debate was not a traditional public forum. The Court has rejected the view that traditional public forum status extends beyond its historic confines, see ISKCON , supra, at 680-681; and even had a more expansive conception of traditional public fora been adopted, see, e.g., 473 U.S., at 698-699 (KENNEDY , J., concurring in judgments), the almost unfettered access of a traditional public forum would be incompatible with the programming dictates a television broadcaster must follow. See supra, at 5-7. The issue, then, is whether the debate was a designated public forum or a nonpublic forum.Under our precedents, the AETC debate was not a designated public forum. To create a forum of this type, the government must intend to make the property "generally available," Widmar v. Vincent, , to a class of speakers. Accord, Cornelius, supra, at 802. In Widmar, for example, a state university created a public forum for registered student groups by implementing a policy that expressly made its meeting facilities "generally open" to such groups. 454 U.S., at 267; accord, Perry, supra , at 45 (designated public forum is "generally open"). A designated public forum is not created when the government allows selective access for individual speakers rather than general access for a class of speakers. In Perry, for example, the Court held a school district's internal mail system was not a designated public forum even though selected speakers were able to gain access to it. The basis for the holding in Perry was explained by the Court in Cornelius:"In contrast to the general access policy in Widmar, school board policy did not grant general access to the school mail system. The practice was to require permission from the individual school principal before ac cess to the system to communicate with teachers was granted.", at 803.And in Cornelius itself , the Court held the Combined Federal Campaign (CFC) charity drive was not a designated public forum because "[t]he Government's consistent policy ha[d] been to limit participation in the CFC to 'appropriate' [ i.e ., charitable rather than political] voluntary agencies and to require agencies seeking admission to obtain permission from federal and local Campaign officials." Id., at 804.These cases illustrate the distinction between "general access," id., at 803, which indicates the property is a designated public forum, and "selective access," id. , at 805, which indicates the property is a nonpublic forum. On one hand, the government creates a designated public forum when it makes its property generally available to a certain class of speakers, as the university made its facilities generally available to student groups in Widmar. On the other hand, the government does not create a designated public forum when it does no more than reserve eligibility for access to the forum to a particular class of speakers, whose members must then, as individuals, "obtain permission," 473 U.S., at 804, to use it. For instance, the Federal Government did not create a designated public forum in Cornelius when it reserved eligibility for participation in the CFC drive to charitable agencies, and then made individual, non-ministerial judgments as to which of the eligible agencies would participate. Ibid.The Cornelius distinction between general and selective access furthers First Amendment interests. By recognizing the distinction, we encourage the government to open its property to some expressive activity in cases where, if faced with an all-or-nothing choice, it might not open the property at all. That this distinction turns on governmental intent does not render it unprotective of speech. Rather, it reflects the reality that, with the exception of traditional public fora, the government retains the choice of whether to designate its property as a forum for specified classes of speakers.Here, the debate did not have an open-microphone format. Contrary to the assertion of the Court of Appeals, AETC did not make its debate generally available to candidates for Arkansas' Third Congressional District seat. Instead, just as the Federal Government in Cornelius reserved eligibility for participation in the CFC program to certain classes of voluntary agencies, AETC reserved eligibility for participation in the debate to candidates for the Third Congressional District seat (as opposed to some other seat). At that point, just as the Government in Cornelius made agency-by-agency determinations as to which of the eligible agencies would participate in the CFC, AETC made candidate-by-candidate determinations as to which of the eligible candidates would participate in the debate. "Such selective access, unsupported by evidence of a purposeful designation for public use, does not create a public forum." Cornelius, supra, at 805. Thus the debate was a nonpublic forum.In addition to being a misapplication of our precedents, the Court of Appeals' holding would result in less speech, not more. In ruling that the debate was a public forum open to all ballot-qualified candidates, 93 F. 3d, at 504, the Court of Appeals would place a severe burden upon public broadcasters who air candidates' views. In each of the 1988, 1992, and 1996 Presidential elections, for example, no fewer than 22 candidates appeared on the ballot in at least one State. See Twentieth Century Fund Task Force on Presidential Debates, Let America Decide 148 (1995); Federal Election Commission, Federal Elections 92, p. 9 (1993); Federal Election Commission, Federal Elections 96, p. 11 (1997). In the 1996 congressional elections, it was common for 6 to 11 candidates to qualify for the ballot for a particular seat. See 1996 Election Results, 54 Con gressional Quarterly Weekly Report 3250-3257 (1996). In the 1993 New Jersey gubernatorial election, to illustrate further, sample ballot mailings included the written statements of 19 candidates. See N. Y. Times, Sept. 11, 1993, section 1, p. 26, col. 5. On logistical grounds alone, a public television editor might, with reason, decide that the inclusion of all ballot-qualified candidates would "actually undermine the educational value and quality of debates." Let America Decide, supra , at 148.Were it faced with the prospect of cacophony, on the one hand, and First Amendment liability, on the other, a public television broadcaster might choose not to air candidates' views at all. A broadcaster might decide " 'the safe course is to avoid controversy,' ... and by so doing diminish the free flow of information and ideas." Turner Broadcasting System, Inc., 512 U.S., at 656 (quoting Miami Herald Publishing Co. v. Tornillo, ). In this circumstance, a "[g]overnment-enforced right of access inescapably 'dampens the vigor and limits the variety of public debate.' " Ibid. (quoting New York Times Co. v. Sullivan, ).These concerns are more than speculative. As a direct result of the Court of Appeals' decision in this case, the Nebraska Educational Television Network canceled a scheduled debate between candidates in Nebraska's 1996 United States Senate race. See Lincoln Journal Star, Aug. 24, 1996, p. 1A, col. 6. A First Amendment jurisprudence yielding these results does not promote speech but represses it. CThe debate's status as a nonpublic forum, however, did not give AETC unfettered power to exclude any candidate it wished. As JUSTICE O'CONNOR has observed, nonpublic forum status "does not mean that the government can restrict speech in whatever way it likes." ISKCON, 505 U. S . , at 687. To be consistent with the First Amendment, the exclusion of a speaker from a nonpublic forum must not be based on the speaker's viewpoint and must otherwise be reasonable in light of the purpose of the property. Cornelius, 473 U.S., at 800.In this case, the jury found Forbes' exclusion was not based on "objections or opposition to his views." App. to Pet. for Cert. 23a. The record provides ample support for this finding, demonstrating as well that AETC's decision to exclude him was reasonable. AETC Executive Director Susan Howarth testified Forbes' views had "absolutely" no role in the decision to exclude him from the debate. App. 142. She further testified Forbes was excluded because (1) "the Arkansas voters did not consider him a serious candidate"; (2) "the news organizations also did not consider him a serious candidate"; (3) "the Associated Press and a national election result reporting service did not plan to run his name in results on election night"; (4) Forbes "apparently had little, if any, financial support, failing to report campaign finances to the Secretary of State's office or to the Federal Election Commission"; and (5) "there [was] no 'Forbes for Congress' campaign headquarters other than his house." Id ., at 126-127. Forbes himself described his campaign organization as "bedlam" and the media coverage of his campaign as "zilch." Id ., at 91, 96. It is, in short, beyond dispute that Forbes was excluded not because of his viewpoint but because he had generated no appreciable public interest. Cf . Perry, 460 U.S., at 49 (exclusion from nonpublic forum "based on the status" rather than the views of the speaker is permissible) (emphasis in original).There is no substance to Forbes' suggestion that he was excluded because his views were unpopular or out of the mainstream. His own objective lack of support, not his platform, was the criterion. Indeed, the very premise of Forbes' contention is mistaken. A candidate with uncon ventional views might well enjoy broad support by virtue of a compelling personality or an exemplary campaign organization. By the same token, a candidate with a traditional platform might enjoy little support due to an inept campaign or any number of other reasons.Nor did AETC exclude Forbes in an attempted manipulation of the political process. The evidence provided powerful support for the jury's express finding that AETC's exclusion of Forbes was not the result of "political pressure from anyone inside or outside [AETC]." App. to Pet. for Cert. 22a. There is no serious argument that AETC did not act in good faith in this case. AETC excluded Forbes because the voters lacked interest in his candidacy, not because AETC itself did.The broadcaster's decision to exclude Forbes was a reasonable, viewpoint-neutral exercise of journalistic discretion consistent with the First Amendment. The judgment of the Court of Appeals is Reversed. 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, Wash- ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.U.S. Supreme Court No. 96-779 ARKANSAS EDUCATIONAL TELEVISION COMMISSION, PETITIONER v. RALPH P. FORBES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT[May 18, 1998]JUSTICE STEVENS , with whom JUSTICE SOUTER and JUSTICE GINSBURG join, dissenting.The Court has decided that a state-owned television network has no "constitutional obligation to allow every candidate access to" political debates that it sponsors. Ante, at 1. I do not challenge that decision. The judgment of the Court of Appeals should nevertheless be affirmed. The official action that led to the exclusion of respondent Forbes from a debate with the two major-party candidates for election to one of Arkansas' four seats in Congress does not adhere to well-settled constitutional principles. The ad hoc decision of the staff of the Arkansas Educational Television Commission (AETC) raises precisely the concerns addressed by "the many decisions of this Court over the last 30 years, holding that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." Shuttlesworth v. Birmingham, 151 (1969).In its discussion of the facts, the Court barely mentions the standardless character of the decision to exclude Forbes from the debate. In its discussion of the law, the Court understates the constitutional importance of the distinction between state ownership and private ownership of broadcast facilities. I shall therefore first add a few words about the record in this case and the history of regulation of the broadcast media, before explaining why I believe the judgment should be affirmed. ITwo months before Forbes was officially certified as an independent candidate qualified to appear on the ballot under Arkansas law, 1the AETC staff had already concluded that he "should not be invited" to participate in the televised debates because he was "not a serious candidate as determined by the voters of Arkansas." 2He had, however, been a serious contender for the Republican nomination for Lieutenant Governor in 1986 and again in 1990. Although he was defeated in a run-off election, in the three-way primary race conducted in 1990-just two years before the AETC staff decision-he had received 46.88% of the statewide vote and had carried 15 of the 16 counties within the Third Congressional District by absolute majorities. Nevertheless, the staff concluded that Forbes did not have "strong popular support." Record, Affidavit of Bill Simmons #2665. 3 Given the fact that the Republican winner in the Third Congressional District race in 1992 received only 50.22% of the vote and the Democrat received 47.20%, 4it would have been necessary for Forbes, who had made a strong showing in recent Republican primaries, to divert only a handful of votes from the Republican candidate to cause his defeat. Thus, even though the AETC staff may have correctly concluded that Forbes was "not a serious candidate," their decision to exclude him from the debate may have determined the outcome of the election in the Third District.If a comparable decision were made today by a privately owned network, it would be subject to scrutiny under the Federal Election Campaign Act 5unless the network used "pre-established objective criteria to determine which candidates may participate in [the] debate." 11 CFR §110.13(c) (1997). No such criteria governed AETC's refusal to permit Forbes to participate in the debate. Indeed, whether that refusal was based on a judgment about "newsworthiness"-as AETC has argued in this Court-or a judgment about "political viability"-as it argued in the Court of Appeals-the facts in the record presumably would have provided an adequate basis either for a decision to include Forbes in the Third District debate or a decision to exclude him, and might even have required a cancellation of two of the other debates. 6 The apparent flexibility of AETC's purported standard suggests the extent to which the staff had nearly limitless discretion to exclude Forbes from the debate based on ad hoc justifications. Thus, the Court of Appeals correctly concluded that the staff's appraisal of "political viability" was "so subjective, so arguable, so susceptible of variation in individual opinion, as to provide no secure basis for the exercise of governmental power consistent with the First Amendment." Forbes v. Arkansas Educational Television Communication Network Foundation , 93 F. 3d 497, 505 (CA8 1996). IIAETC is a state agency whose actions "are fairly attributable to the State and subject to the Fourteenth Amendment, unlike the actions of privately owned broadcast licensees." Forbes v. Arkansas Educational Television Communication Network Foundation , 22 F. 3d 1423, 1428 (CA8), cert. denied, , . The AETC staff members therefore "were not ordinary journalists: they were employees of government." 93 F. 3d, at 505. The Court implicitly acknowledges these facts by subjecting the decision to exclude Forbes to constitutional analysis. Yet the Court seriously underestimates the importance of the difference between private and pub- lic ownership of broadcast facilities, despite the fact that Congress and this Court have repeatedly recognized that difference.In Columbia Broadcasting System, Inc. v. Democratic National Committee, , the Court held that a licensee is neither a common carrier, id ., at 107109, nor a public forum that must accommodate " 'the right of every individual to speak, write, or publish,' " id. , at 101 (quoting Red Lion Broadcasting Co. v. FCC, ). Speaking for a plurality, Chief Justice Burger expressed the opinion that the First Amendment imposes no constraint on the private network's journalistic freedom. He supported that view by noting that when Congress confronted the advent of radio in the 1920's, it "was faced with a fundamental choice between total Government ownership and control of the new medium-the choice of most other countries-or some other alternative." 412 U.S., at 116. 7Congress chose a system of private broadcasters licensed and regulated by the Government, partly because of our traditional respect for private enterprise, but more importantly because public ownership created unacceptable risks of governmental censorship and use of the media for propaganda. "Congress appears to have concluded ... that of these two choices-private or official censorship-Government censorship would be the most pervasive, the most self-serving, the most difficult to restrain and hence the one most to be avoided." Id ., at 105. 8While noncommercial, educational stations generally have exercised the same journalistic independence as commercial networks, in 1981 Congress enacted a statute forbidding stations that received a federal subsidy from engaging in "editorializing." 9Relying primarily on cases involving the rights of commercial entities, a bare majority of this Court held the restriction invalid. FCC v. League of Women Voters of Cal., . Responding to the dissenting view that "the interest in keeping the Federal Government out of the propaganda arena" justified the restriction, id. , at 415 (STEVENS , J.), the majority emphasized the broad coverage of the statute and concluded that it "impermissibly sweeps within its prohibition a wide range of speech by wholly private stations on topics that ... have nothing whatever to do with federal, state, or local government." Id. , at 395. The Court noted that Congress had considered and rejected a ban that would have applied only to stations operated by state or local governmental entities, and reserved decision on the constitutionality of such a limited ban. See id. , at 394, n. 24.The League of Women Voters case implicated the right of "wholly private stations" to express their own views on a wide range of topics that "have nothing whatever to do with ... government." Id. , at 395. The case before us today involves only the right of a state-owned network to regulate speech that plays a central role in democratic government. Because AETC is owned by the State, deference to its interest in making ad hoc decisions about the political content of its programs necessarily increases the risk of government censorship and propaganda in a way that protection of privately owned broadcasters does not. IIIThe Court recognizes that the debates sponsored by AETC were "by design a forum for political speech by the candidates." Ante , at 8. The Court also acknowledges the central importance of candidate debates in the electoral process. See ibid. Thus, there is no need to review our cases expounding on the public forum doctrine to conclude that the First Amendment will not tolerate a state agency's arbitrary exclusion from a debate forum based, for example, on an expectation that the speaker might be critical of the Governor, or might hold unpopular views about abortion or the death penalty. Indeed, the Court so holds today. 10 It seems equally clear, however, that the First Amendment will not tolerate arbitrary definitions of the scope of the forum. We have recognized that "[o]nce it has opened a limited forum, ... the State must respect the lawful boundaries it has itself set." Rosenberger v. Rector and Visitors of Univ. of Va. , . It follows, of course, that a State's failure to set any meaningful boundaries at all cannot insulate the State's action from First Amendment challenge. The dispositive issue in this case, then, is not whether AETC created a designated public forum or a nonpublic forum, as the Court concludes, but whether AETC defined the contours of the debate forum with sufficient specificity to justify the exclusion of a ballot-qualified candidate.AETC asks that we reject Forbes' constitutional claim on the basis of entirely subjective, ad hoc judgments about the dimensions of its forum. 11The First Amendment demands more, however, when a state government effectively wields the power to eliminate a political candidate from all consideration by the voters. All stations must act as editors, see ante , at 5-6, and when state-owned stations participate in the broadcasting arena, their editorial decisions may impact the constitutional interests of individual speakers. 12A state-owned broadcaster need not plan, sponsor, and conduct political debates, however. When it chooses to do so, the First Amendment imposes important limitations on its control over access to the debate forum.AETC's control was comparable to that of a local government official authorized to issue permits to use public facilities for expressive activities. In cases concerning access to a traditional public forum, we have found an analogy between the power to issue permits and the censorial power to impose a prior restraint on speech. Thus, in our review of an ordinance requiring a permit to participate in a parade on city streets, we explained that the ordinance, as written, "fell squarely within the ambit of the many decisions of this Court over the last 30 years, holding that a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." Shuttlesworth , 394 U.S., at 150-151.We recently reaffirmed this approach when considering the constitutionality of an assembly and parade ordinance that authorized a county official to exercise discretion in setting the amount of the permit fee. In Forsyth County v. Nationalist Movement , , relying on Shuttlesworth and similar cases, 13we described the breadth of the administrator's discretion thusly:"There are no articulated standards either in the ordinance or in the county's established practice. The administrator is not required to rely on any objective factors. He need not provide any explanation for his decision, and that decision is unreviewable. Nothing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees. The First Amendment prohibits the vesting of such unbridled discretion in a government official." 505 U.S., at 133 (footnotes omitted). Perhaps the discretion of the AETC staff in controlling access to the 1992 candidate debates was not quite as unbridled as that of the Forsyth County administrator. Nevertheless, it was surely broad enough to raise the concerns that controlled our decision in that case. No written criteria cabined the discretion of the AETC staff. Their subjective judgment about a candidate's "viability" or "newsworthiness" allowed them wide latitude either to permit or to exclude a third participant in any debate. 14 Moreover, in exercising that judgment they were free to rely on factors that arguably should favor inclusion as justifications for exclusion. Thus, the fact that Forbes had little financial support was considered as evidence of his lack of viability when that factor might have provided an independent reason for allowing him to share a free forum with wealthier candidates. 15 The televised debate forum at issue in this case may not squarely fit within our public forum analysis, 16 but its importance cannot be denied. Given the special character of political speech, particularly during campaigns for elected office, the debate forum implicates constitutional concerns of the highest order, as the majority acknowledges. Ante , at 8. Indeed, the planning and management of political debates by state-owned broadcasters raise serious constitutional concerns that are seldom replicated when state-owned television networks engage in other types of programming. 17 We have recognized that "speech concerning public affairs is ... the essence of selfgovernment." Garrison v. Louisiana, . The First Amendment therefore "has its fullest and most urgent application precisely to the conduct of campaigns for political office." Monitor Patriot Co. v. Roy, . Surely the Constitution demands at least as much from the Government when it takes action that necessarily impacts democratic elections as when local officials issue parade permits. The reasons that support the need for narrow, objective, and definite standards to guide licensing decisions apply directly to the wholly subjective access decisions made by the staff of AETC. 18 The importance of avoiding arbitrary or viewpoint-based exclusions from political debates militates strongly in favor of requiring the controlling state agency to use (and adhere to) pre-established, objective criteria to determine who among qualified candidates may participate. When the demand for speaking facilities exceeds supply, the State must "ration or allocate the scarce resources on some acceptable neutral principle." Rosenberger , 515 U.S., at 835. A constitutional duty to use objective standards- i.e., "neutral principles"-for determining whether and when to adjust a debate format would impose only a modest requirement that would fall far short of a duty to grant every multiple-party request. 19 Such standards would also have the benefit of providing the public with some assurance that state-owned broadcasters cannot select debate participants on arbitrary grounds. 20 Like the Court, I do not endorse the view of the Court of Appeals that all candidates who qualify for a position on the ballot are necessarily entitled to access to any statesponsored debate. I am convinced, however, that the constitutional imperatives that motivated our decisions in cases like Shuttlesworth command that access to political debates planned and managed by state-owned entities be governed by pre-established, objective criteria. Requiring government employees to set out objective criteria by which they choose which candidates will benefit from the significant media exposure that results from statesponsored political debates would alleviate some of the risk inherent in allowing government agencies-rather than private entities-to stage candidate debates. Accordingly, I would affirm the judgment of the Court of Appeals. Notes 1 See Ark. Code Ann. §7-7-103(c)(1) (1992). 2 Record, Letter to Carole Adornetto from Amy Oliver Barnes dated June 19, 1992, attached as Exh. 2 to Affidavit of Amy Oliver Barnes. 3 Simmons, a journalist working with the AETC staff on the debates, stated that "[a]t the time this decision [to invite only candidates with strong popular support] was made ..., there were no third party or non-party candidates to evaluate as to the likely extent of their popular support." Record, Affidavit of Bill Simmons #2665. Presumably Simmons meant that there was no other ballot-qualified candidate, because an AETC staff member, Amy Oliver, represented that there was consideration about whether to invite Forbes before he qualified as a candidate. See text accompanying n. 2, infra. 4 See App. 172. 5 See 2 U.S.C. § 441b(a); see also Perot v. FEC , 97 F. 3d 553, 556 (CADC 1996), cert. denied sub nom. Hagelin v. FEC___ (1997). 6 Although the contest between the major-party candidates in the Third District was a relatively close one, in two of the other three districts in which both major-party candidates had been invited to debate, it was clear that one of them had virtually no chance of winning the election. Democrat Blanche Lambert's resounding victory over Republican Terry Hayes in the First Congressional District illustrates this point: Lambert received 69.8% of the vote compared with Hays' 30.2%. R. Scammon & A. McGillivray, America Votes 20: A Handbook of Contemporary American Election Statistics 99 (1993). Similarly, in the Second District, Democrat Ray Thornton, the incumbent, defeated Republican Dennis Scott and won with 74.2% of the vote. Ibid. Note that Scott raised only $6,000, which was less than Forbes raised; nevertheless, Scott was invited to participate in a debate while Forbes was not. See App. 133-134, 175. 7 Interestingly, many countries that formerly relied upon state control of broadcast entities appear to be moving in the direction of deregulation and private ownership of such entities. See, e.g., Bughin & Griekspoor, A New Era for European TV, 3 McKinsey Q. 90, 92-93 (1997) ("Most of Western Europe's public television broadcasters began to lose their grip on the market in the mid-1980s. Only Switzerland, Austria, and Ireland continue to operate state television monopolies ... . In Europe as a whole (including Eastern Europe, where television remains largely state controlled), the number of private broadcasters holding market-leading positions nearly doubled in the first half of this decade."); Rohwedder, Central Europe's Broadcasters Square Off, Wall Street Journal Europe 4 (May 15, 1995) ("Central Europe's government-run television channels, unchallenged media masters in the days of communist control, are coming under increasingly aggressive attack from upstart private broadcasters"); Lange & Woldt, European Interest in the American Experience in Self-Regulation, 13 Cardozo Arts & Ent. L. J. 657, 658 (1995) ("Over the last ten years, in Germany and many other European countries, public broadcasting has been weakened by competition from private television channels"). 8 The Court considered then-Secretary of Commerce Herbert Hoover's statement to a House committee expressing concern about government involvement in broadcasting: " 'We can not allow any single person or group to place themselves in [a] position where they can censor the material which shall be broadcasted to the public, nor do I believe that the Government should ever be placed in the position of censoring this material.' " 412 U.S., at 104 (quoting Hearings on H. R. 7357 before the House Committee on the Merchant Marine and Fisheries, 68th Cong., 1st Sess., 8 (1924)). 9 Public Broadcasting Amendments of 1981, Pub. L. 97-35, 95 Stat. 730, amending §399 of the Public Broadcasting Act of 1967, Pub. L. 90129, 81 Stat. 365, 47 U.S.C. § 390 et seq. 10 The Court correctly rejects the extreme position that the First Amendment simply has no application to a candidate's claim that he or she should be permitted to participate in a televised debate. See Brief for FCC et as Amici Curiae 14 ("The First Amendment does not constrain the editorial choices of state-entity public broadcasters licensed to operate under the Communications Act"); see also Brief for State of California et as Amici Curiae 4 ("In its role as speaker, rather than mere forum provider, the state actor is not restricted by speaker-inclusive and viewpoint-neutral rules"). 11 See supra , at 3-4. 12 See n. 17, infra . 13 After citing Shuttlesworth , we explained: "The reasoning is simple: If the permit scheme 'involves appraisal of facts, the exercise of judgment, and the formation of an opinion,' Cantwell v. Connecticut , , by the licensing authority, 'the danger of censorship and of abridgment of our precious First Amendment freedoms is too great' to be permitted, Southeastern Promotions, Ltd. v. Conrad , 42 S. 546, 553 (1975)." 505 U.S., at 131 (citations omitted). 14 It is particularly troubling that AETC excluded the only independent candidate but invited all the major-party candidates to participate in the planned debates, regardless of their chances of electoral success. See n. supra . As this Court has recognized, "political figures outside the two major parties have been fertile sources of new ideas and new programs; many of their challenges to the status quo have in time made their way into the political mainstream." Anderson v. Celebrezze, (citing Illinois Bd. of Elections v. Socialist Workers Party, ). 15 Lack of substantial financial support apparently was not a factor in the decision to invite a major-party candidate with even less financial support than Forbes. See n. 6, supra . 16 Indeed, a plurality of the Court recently has expressed reluctance about applying public forum analysis to new and changing contexts. See Denver Area Ed. Telecommunications Consortium, Inc. v. FCC , , 749 (1996) (plurality opinion) ("[I]t is not at all clear that the public forum doctrine should be imported wholesale into the area of common carriage regulation"). 17 The Court observes that "in most cases, the First Amendment of its own force does not compel public broadcasters to allow third parties access to their programming." Ante , at 7. A rule, such as the one promulgated by the FEC, that requires the use of pre-established, objective criteria to identify the candidates who may participate leaves all other programming decisions unaffected. This is not to say that all other programming decisions made by state-owned television networks are immune from attack on constitutional grounds. As long as the State is not itself a "speaker," its decisions, like employment decisions by state agencies and unlike decisions by private actors, must respect the commands of the First Amendment. It is decades of settled jurisprudence that require judicial review of state action that is challenged on First Amendment grounds. See, e.g., Widmar v. Vincent , ; Rosenberger v. Rector and Visitors of Univ. of Va. , . 18 Ironically, it is the standardless character of the decision to exclude Forbes that provides the basis for the Court's conclusion that the debates were a nonpublic forum rather than a limited public forum. On page 11 of its opinion, ante , the Court explains that "[a] designated public forum is not created when the government allows selective access for individual speakers rather than general access for a class of speakers." If, as AETC claims, it did invite either the entire class of "viable" candidates, or the entire class of "newsworthy" candidates, under the Court's reasoning, it created a designated public forum. 19 The Court expresses concern that as a direct result of the Court of Appeals' holding that all ballot-qualified candidates have a right to participate in every debate, a state-owned network cancelled a 1996 Nebraska debate. Ante , at 14. If the Nebraska station had realized that it could have satisfied its First Amendment obligations simply by setting out participation standards before the debate, however, it seems quite unlikely that it would have chosen instead to cancel the debate. 20 The fact that AETC and other state-owned networks have adopted policy statements emphasizing the importance of shielding programming decisions from political influence, see ante, at 2, confirms the significance of the risk that would be minimized by the adoption of objective criteria.

Appellee, who had involuntarily committed to a mental hospital for a period of several days in 1971, was unable to purchase a firearm from a store in 1982 because of the provisions of 18 U.S.C. 922(d) prohibiting sales of firearms to such persons. Section 922(d) and other federal statutes prohibiting persons who have been committed to mental institutions from possessing, receiving, or transporting firearms also apply to felons. However, under 18 U.S.C. 925(c), certain felons could apply to the Bureau of Alcohol, Tobacco and Firearms for administrative relief from the disabilities imposed by federal firearms laws, but no such relief was permitted for former mental patients. After unsuccessfully seeking a special exemption from the Bureau, appellee brought suit in Federal District Court, challenging the constitutionality of the firearms legislation. The court held that the statutory scheme was unconstitutional as violating equal protection principles because there was no rational basis for singling out mental patients for permanent disabled status, particularly as compared to convicts. The court also concluded that the statutory scheme unconstitutionally created an "irrebuttable presumption" that one who has been committed, no matter what the circumstances, is forever mentally ill and dangerous.Held: The equal protection and "irrebuttable presumption" issues are now moot because, after this Court noted probable jurisdiction over this appeal and heard arguments, Congress amended 925(c) to afford the administrative remedy contained therein to former mental patients ineligible to purchase firearms. Since appellee's complaint appears to raise other issues best addressed in the first instance by the District Court, the case is remanded for further proceedings. Pp. 559-560. 602 F. Supp. 682, vacated and remanded.BURGER, C. J., delivered the opinion for a unanimous Court.Charles A. Rothfeld argued the cause for appellant. With him on the briefs were Solicitor General Fried, Assistant Attorney General Willard, Deputy Solicitor General Geller, and Nicholas S. Zeppos.Michael A. Casale argued the cause and filed a brief for appellee.* [Footnote *] Briefs of amici curiae urging affirmance were filed for the American Psychological Association by Margaret Farrell Ewing, Donald N. Bersoff, and Arlene S. Kanter; for the Coalition for the Fundamental Rights and Equality of Ex-Patients by Richard E. Gardiner and Robert Dowlut; and for the New Jersey Department of the Public Advocate, Division of Mental Health Advocacy, et al. by Linda G. Rosenzweig, Penelope A. Boyd, and Peter Margulies.CHIEF JUSTICE BURGER delivered the opinion of the Court.We noted probable jurisdiction to decide whether Congress may, consistent with the Fifth Amendment, forbid all involuntarily committed former mental patients to purchase firearms while permitting some felons to do so.In 1982 appellee attempted to purchase a firearm at Ray's Sport Shop in North Plainfield, New Jersey. The Sport Shop gave appellee a standard questionnaire, which asked, inter alia: "Have you ever been adjudicated mentally defective or have you ever been committed to a mental institution?" Appellee had been involuntarily committed to a mental hospital for a period of several days in 1971, and accordingly answered "yes" to this question. The store then refused to sell him a gun by reason of 18 U.S.C. 922(d)(4), which makes it unlawful for a licensed dealer in firearms "to sell ... any firearm ... to any person knowing or having reasonable cause to believe that such person ... has been adjudicated as a mental defective or had been committed to any mental institution." Federal firearms laws also forbid "any person ... who has been adjudicated as a mental defective or who has been committed to a mental institution ... to ship or transport any firearm or ammunition in interstate or foreign commerce," 18 U.S.C. 922(g), or to "receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce," 922(h). Partially overlapping provisions of 18 U.S.C. App. 1202(a)(1) and (3) prohibit any person who has "been adjudged by a court ... of being mentally incompetent" from receiving, possessing, or transporting firearms.After unsuccessfully seeking a special exemption from the Bureau of Alcohol, Tobacco and Firearms, appellee brought suit in the United States District Court for the District of New Jersey, challenging the constitutionality of the firearms legislation. The District Court concluded that those portions of the federal firearms statutes that deprived appellee of his ability to purchase a firearm were constitutionally infirm. 602 F. Supp. 682, 683 (1985). Both felons and persons who have been committed to mental institutions, inter alia, are subject to the firearms disabilities contained in 18 U.S.C. 922(d). Under 18 U.S.C. 925(c), however, felons who have committed crimes not involving firearms may apply to the Bureau for administrative relief from these disabilities. No such relief is permitted for former mental patients.Section 925(c) provides in relevant part: "A person who has been convicted for a crime punishable by imprisonment for a term exceeding one year (other than a crime involving the use of a firearm or other weapon or a violation of this chapter or of the National Firearms Act) may make application to the Secretary for relief from the disabilities imposed by Federal laws with respect to the acquisition, receipt, transfer, shipment, or possession of firearms and incurred by reason of such conviction, and the Secretary may grant such relief if it is established to his satisfaction that the circumstances regarding the conviction, and the applicant's record and reputation, are such that the applicant will not be likely to act in a manner dangerous to public safety and that the granting of the relief would not be contrary to the public interest." The District Court held that this scheme violated equal protection principles because, in its view, "[t]here is no rational basis for thus singling out mental patients for permanent disabled status, particularly as compared to convicts." 602 F. Supp., at 689. The court also concluded that the statutory scheme was unconstitutional because it "in effect creates an irrebuttable presumption that one who has been committed, no matter the circumstances, is forever mentally ill and dangerous." Id., at 690. We noted probable jurisdiction over the Government's appeal, , and the case was argued on March 26, 1986.Meanwhile, Congress came to the conclusion, as a matter of legislative policy, that the firearms statutes should be redrafted. On May 19, 1986, while this case was under consideration here, the President signed into law Pub. L. 99-308, 100 Stat. 449. Section 105 of the statute amends the provision providing for administrative relief from firearms disabilities, 18 U.S.C. 925(c), by striking out the language limiting the provision to certain felons and changing the statute to read that any person who "is prohibited from possessing, shipping, transporting, or receiving firearms or ammunition" may apply to the Secretary of the Treasury for relief. Section 110 of the statute provides that the amendment made by 105 "shall be applicable to any action, petition, or appellate proceeding pending on the date of the enactment of this Act."This enactment significantly alters the posture of this case. The new statutory scheme permits the Secretary to grant relief in some circumstances to former involuntarily committed mental patients such as appellee. The new approach affords an administrative remedy to former mental patients like that Congress provided for others prima facie ineligible to purchase firearms. Thus, it can no longer be contended that such persons have been "singled out." Also, no "irrebuttable presumption" now exists since a hearing is afforded to anyone subject to firearms disabilities. Accordingly, the equal protection and "irrebuttable presumption" issues discussed by the District Court are now moot. See United Building and Construction Trades Council of Camden County and Vicinity v. Mayor and Council of Camden, .In such circumstances, "it is the duty of the appellate court to set aside the decree below ... ." Duke Power Co. v. Greenwood County, ; see also United States v. Munsingwear, Inc., . We therefore vacate the judgment of the District Court. However, since appellee's complaint appears to raise other issues best addressed in the first instance by the District Court, we also remand the case for further proceedings consistent with this opinion. Vacated and remanded.

In each of the years 1979 through 1984, appellant, a Michigan resident and former federal employee, paid state income tax on his federal retirement benefits in accordance with the Michigan Income Tax Act, which exempts from taxation all retirement benefits paid by the State or its political subdivisions, but taxes retirement benefits paid by other employers, including the Federal Government. After the State denied appellant's request for refunds, he filed suit in the Michigan Court of Claims, alleging that the State's inconsistent treatment of retirement benefits violated 4 U.S.C. 111, which authorizes States to tax "pay or compensation for personal services as [a federal] officer or employee ..., if the taxation does not discriminate against the ... employee because of the source of the pay or compensation." The Court of Claims denied relief, and the Michigan Court of Appeals affirmed, ruling that appellant is an "annuitant" under federal law rather than an "employee" within the meaning of 111, and that that section therefore has no application to him. The Court of Appeals also held that the doctrine of intergovernmental tax immunity did not render the State's discriminatory tax scheme unconstitutional, since the discrimination was justified under a rational-basis test: The State's interest in attracting and retaining qualified employees was a legitimate objective which was rationally achieved by a retirement plan offering economic inducements.Held: 1. Section 111 applies to federal retirees such as appellant. The State's contention that the section is limited to current federal employees is refuted by the plain language of the statute's first clause. Since the amount of civil service retirement benefits is based and computed upon an individual's salary and years of service, it represents deferred compensation for service to the Government, and therefore constitutes "pay or compensation ... as [a federal] employee" within the meaning of that clause. The State's contention that, since this quoted language does not occur in the statute's second, nondiscrimination clause, that clause applies only to current employees, is hypertechnical and fails to read the nondiscrimination clause in its context within the overall statutory scheme. The reference to "the pay or compensation" in the latter clause must, in context, mean the same "pay or compensation" defined in the section's first clause and thus includes retirement benefits. The State's reading of the clause is implausible because it is unlikely that Congress consented to discriminatory taxation of retired federal civil servants' pensions while refusing to permit such taxation of current employees, and there is nothing in the statutory language or legislative history to suggest such a result. Pp. 808-810. 2. Section 111's language, purpose, and legislative history establish that the scope of its nondiscrimination clause's grant or retention of limited tax immunity for federal employees is coextensive with, and must be determined by reference to, the prohibition against discriminatory taxes embodied in the modern constitutional doctrine of intergovernmental tax immunity. Pp. 810-814. 3. Michigan's tax scheme violates principles of intergovernmental tax immunity by favoring retired state and local government employees over retired federal employees. Pp. 814-817. (a) The State's contention that appellant is not entitled to claim the protection of the immunity doctrine is without merit. Although the doctrine is based on the need to protect each sovereign's governmental operations from undue interference by another sovereign, this Court's precedents establish that private entities or individuals who are subjected to discriminatory taxation on account of their dealings with a sovereign can themselves receive the protection of the constitutional doctrine. See, for example, Phillips Chemical Co. v. Dumas Independent School Dist., . Pp. 814-815. (b) In determining whether the State's inconsistent tax treatment of federal and state retirees is permissible, the relevant inquiry is whether the inconsistency is directly related to and justified by "significant differences between the two classes." Phillips, supra, at 384-385. The State's claimed interest in hiring qualified civil servants through the inducement of a tax exemption for retirement benefits is irrelevant to this inquiry, since it merely demonstrates that the State has a rational reason for discriminating between two similar groups of retirees without demonstrating any differences between those groups themselves. Moreover, the State's claim that its retirement benefits are significantly less munificent than federal benefits in terms of vesting requirements, rate of accrual, and benefit computations is insufficient to justify the type of blanket exemption at issue here. A tax exemption truly intended to account for differences in benefits would not discriminate on the basis of the source of those benefits, but would, rather, discriminate on the basis of the amount of benefits received by individual retirees. Pp. 815-817. 4. Because the State concedes that a refund is appropriate in these circumstances, appellant is entitled to a refund to the extent he has paid taxes pursuant to the invalid Michigan scheme. However, his additional claim for prospective relief from discriminatory taxation should be decided by the state courts, whose special expertise in state law puts them in a better position than this Court to fashion the remedy most appropriate to comply with the constitutional mandate of equal treatment. Pp. 817-818. 106 Mich. App. 98, 408 N. W. 2d 433, reversed and remanded.KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, O'CONNOR, and SCALIA, JJ., joined. STEVENS, J., filed a dissenting opinion, post, p. 818.Paul S. Davis, pro se, argued the cause and filed briefs for appellant.Michael K. Kellogg argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Fried, Assistant Attorney General Rose, Deputy Solicitor General Merrill, David English Carmack, and Steven W. Parks.Thomas L. Casey, Assistant Solicitor General of Michigan, argued the cause for appellee. With him on the brief were Frank J. Kelley, Attorney General, Louis J. Caruso, Solicitor General, and Richard R. Roesch and Ross H. Bishop, Assistant Attorneys General.* [Footnote *] Joseph B. Scott and Michael J. Kator filed a brief for the National Association of Retired Federal Employees as amicus curiae urging reversal.JUSTICE KENNEDY delivered the opinion of the Court.The State of Michigan exempts from taxation all retirement benefits paid by the State or its political subdivisions, but levies an income tax on retirement benefits paid by all other employers, including the Federal Government. The question presented by this case is whether Michigan's tax scheme violates federal law.IAppellant Paul S. Davis, a Michigan resident, is a former employee of the United States Government. He receives retirement benefits pursuant to the Civil Service Retirement Act, 5 U.S.C. 8331 et seq. In each of the years 1979 through 1984, appellant paid Michigan state income tax on his federal retirement benefits in accordance with Mich. Comp. Laws Ann. 206.30(1)(f) (Supp. 1988).1 That statute defines taxable income in a manner that excludes all retirement benefits received from the State or its political subdivisions, but includes most other forms of retirement benefits.2 The effect of this definition is that the retirement benefits of retired state employees are exempt from state taxation while the benefits received by retired federal employees are not.In 1984, appellant petitioned for refunds of state taxes paid on his federal retirement benefits between 1979 and 1983. After his request was denied, appellant filed suit in the Michigan Court of Claims. Appellant's complaint, which was amended to include the 1984 tax year, averred that his federal retirement benefits were "not legally taxable under the Michigan Income Tax Law" and that the State's inconsistent treatment of state and federal retirement benefits discriminated against federal retirees in violation of 4 U.S.C. 111, which preserves federal employees' immunity from discriminatory state taxation. See Public Salary Tax Act of 1939, ch. 59, 4, 53 Stat. 575, codified, as amended, at 4 U.S.C. 111. The Court of Claims, however, denied relief. No. 84-9451 (Oct. 30, 1985), App. to Juris. Statement A10.The Michigan Court of Appeals affirmed. 160 Mich. App. 98, 408 N. W. 2d 433 (1987). The court first rejected appellant's claim that 4 U.S.C. 111 invalidated the State's tax on appellant's federal benefits. Noting that 111 applies only to federal "employees," the court determined that appellant's status under federal law was that of an "annuitant" rather than an employee. As a consequence, the court concluded that 111 "has no application to [Davis], since [he] cannot be considered an employee within the meaning of that act." Id., at 104, 408 N. W. 2d, at 435.The Michigan Court of Appeals next rejected appellant's contention that the doctrine of intergovernmental tax immunity rendered the State's tax treatment of federal retirement benefits unconstitutional. Conceding that "a tax may be held invalid ... if it operates to discriminate against the federal government and those with whom it deals," id., at 104, 408 N. W. 2d, at 436, the court examined the State's justifications for the discrimination under a rational-basis test. Ibid. The court determined that the State's interest in "attracting and retaining ... qualified employees" was a "legitimate state objective which is rationally achieved by a retirement plan offering economic inducements," and it upheld the statute. Id., at 105, 408 N. W. 2d, at 436.The Supreme Court of Michigan denied appellant's application for leave to appeal. 429 Mich. 854 (1987). We noted probable jurisdiction. . IIAppellant places principal reliance on 4 U.S.C. 111. In relevant part, that section provides:"The United States consents to the taxation of pay or compensation for personal service as an officer or employee of the United States ... by a duly constituted taxing authority having jurisdiction, if the taxation does not discriminate against the officer or employee because of the source of the pay or compensation." As a threshold matter, the State argues that 111 applies only to current employees of the Federal Government, not to retirees such as appellant. In our view, however, the plain language of the statute dictates the opposite conclusion. Section 111 by its terms applies to "the taxation of pay or compensation for personal services as an officer or employee of the United States." (Emphasis added). While retirement pay is not actually disbursed during the time an individual is working for the Government, the amount of benefits to be received in retirement is based and computed upon the individual's salary and years of service. 5 U.S.C. 8339(a). We have no difficulty concluding that civil service retirement benefits are deferred compensation for past years of service rendered to the Government. See, e. g., Zucker v. United States, 758 F.2d 637, 639 (CA Fed.), cert. denied, ; Kizas v. WebsterApp. D.C. 327, 339, 707 F.2d 524, 536, (1983), cert. denied, ; Clark v. United States, 691 F.2d 837, 842 (CA7 1982). And because these benefits accrue to employees on account of their service to the Government, they fall squarely within the category of compensation for services rendered "as an officer or employee of the United States." Appellant's federal retirement benefits are deferred compensation earned "as" a federal employee, and so are subject to 111.3 The State points out, however, that the reference to "compensation for personal services as an officer or employee" occurs in the first part of 111, which defines the extent of Congress' consent to state taxation, and not in the latter part of the section, which provides that the consent does not extend to taxes that discriminate against federal employees. Instead, the nondiscrimination clause speaks only in terms of "discriminat[ion] against the officer or employee because of the source of the pay or compensation." From this the State concludes that, whatever the scope of Congress' consent to taxation in the first portion of 111, the nondiscrimination clause applies only to current federal employees.Although the State's hypertechnical reading of the nondiscrimination clause is not inconsistent with the language of that provision examined in isolation, statutory language cannot be construed in a vacuum. It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme. See United States v. Morton, . When the first part of 111 is read together with the nondiscrimination clause, the operative words of the statute are as follows: "The United States consents to the taxation of pay or compensation ... if the taxation does not discriminate ... because of the source of the pay or compensation." The reference to "the pay or compensation" in the last clause of 111 must, in context, mean the same "pay or compensation" defined in the first part of the section. Since that "pay or compensation" includes retirement benefits, the nondiscrimination clause must include them as well. Any other interpretation of the nondiscrimination clause would be implausible at best. It is difficult to imagine that Congress consented to discriminatory taxation of the pensions of retired federal civil servants while refusing to permit such taxation of current employees, and nothing in the statutory language or even in the legislative history suggests this result. While Congress could perhaps have used more precise language, the overall meaning of 111 is unmistakable: it waives whatever immunity past and present federal employees would otherwise enjoy from state taxation of salaries, retirement benefits, and other forms of compensation paid on account of their employment with the Federal Government, except to the extent that such taxation discriminates on account of the source of the compensation.IIISection 111 was enacted as part of the Public Salary Tax Act of 1939, the primary purpose of which was to impose federal income tax on the salaries of all state and local government employees. Prior to adoption of the Act, salaries of most government employees, both state and federal, generally were thought to be exempt from taxation by another sovereign under the doctrine of intergovernmental tax immunity. This doctrine had its genesis in McCulloch v. Maryland, 4 Wheat. 316 (1819), which held that the State of Maryland could not impose a discriminatory tax on the Bank of the United States. Chief Justice Marshall's opinion for the Court reasoned that the Bank was an instrumentality of the Federal Government used to carry into effect the Government's delegated powers, and taxation by the State would unconstitutionally interfere with the exercise of those powers. Id., at 425-437.For a time, McCulloch was read broadly to bar most taxation by one sovereign of the employees of another. See Collector v. Day, 11 Wall. 113, 124-128 (1871) (invalidating federal income tax on salary of state judge); Dobbins v. Commissioners of Erie County, 16 Pet. 435 (1842) (invalidating state tax on federal officer). This rule "was based on the rationale that any tax on income a party received under a contract with the government was a tax on the contract and thus a tax `on' the government because it burdened the government's power to enter into the contract." South Carolina v. Baker, .In subsequent cases, however, the Court began to turn away from its more expansive applications of the immunity doctrine. Thus, in Helvering v. Gerhardt, , the Court held that the Federal Government could levy nondiscriminatory taxes on the incomes of most state employees. The following year, Graves v. New York ex rel. O'Keefe, , overruled the Day-Dobbins line of cases that had exempted government employees from nondiscriminatory taxation. After Graves, therefore, intergovernmental tax immunity barred only those taxes that were imposed directly on one sovereign by the other or that discriminated against a sovereign or those with whom it dealt.It was in the midst of this judicial revision of the immunity doctrine that Congress decided to extend the federal income tax to state and local government employees. The Public Salary Tax Act was enacted after Helvering v. Gerhardt, supra, had upheld the imposition of federal income taxes on state civil servants, and Congress relied on that decision as support for its broad assertion of federal taxing authority. S. Rep. No. 112, 76th Cong., 1st Sess., 5-9 (1939); H. R. Rep. No. 26, 76th Cong., 1st Sess., 2-3 (1939). However, the Act was drafted, considered in Committee, and passed by the House of Representatives before the announcement of the decision in Graves v. New York ex rel. O'Keefe, supra, which for the first time permitted state taxation of federal employees. As a result, during most of the legislative process leading to adoption of the Act it was unclear whether state taxation of federal employees was still barred by intergovernmental tax immunity despite the abrogation of state employees' immunity from federal taxation. See H. R. Rep. No. 26, supra, at 2 ("There are certain indications in the case of McCulloch v. Maryland, 4 Wheat. 316 (1819), ... that ... Federal officers and employees may not, without the consent of the United States, be subjected to income taxation under the authority of the various States").Dissatisfied with this uncertain state of affairs, and concerned that considerations of fairness demanded equal tax treatment for state and federal employees, Congress decided to ensure that federal employees would not remain immune from state taxation at the same time that state government employees were being required to pay federal income taxes. See S. Rep. No. 112, supra, at 4; H. R. Rep. No. 26, supra, at 2. Accordingly, 4 of the proposed Act (now 111) expressly waived whatever immunity would have otherwise shielded federal employees from nondiscriminatory state taxes.By the time the statute was enacted, of course, the decision in Graves had been announced, so the constitutional immunity doctrine no longer proscribed nondiscriminatory state taxation of federal employees. In effect, 111 simply codified the result in Graves and foreclosed the possibility that subsequent judicial reconsideration of that case might reestablish the broader interpretation of the immunity doctrine.Section 111 did not waive all aspects of intergovernmental tax immunity, however. The final clause of the section contains an exception for state taxes that discriminate against federal employees on the basis of the source of their compensation. This nondiscrimination clause closely parallels the nondiscrimination component of the constitutional immunity doctrine which has, from the time of McCulloch v. Maryland, barred taxes that "operat[e] so as to discriminate against the Government or those with whom it deals." United States v. City of Detroit, . See also McCulloch v. Maryland, supra, at 436-437; Miller v. Milwaukee, ; Helvering v. Gerhardt, supra, at 413; Phillips Chemical Co. v. Dumas Independent School Dist., ; Memphis Bank & Trust Co. v. Garner, , and n. 7 (1983).In view of the similarity of language and purpose between the constitutional principle of nondiscrimination and the statutory nondiscrimination clause, and given that 111 was consciously drafted against the background of the Court's tax immunity cases, it is reasonable to conclude that Congress drew upon the constitutional doctrine in defining the scope of the immunity retained in 111. When Congress codifies a judicially defined concept, it is presumed, absent an express statement to the contrary, that Congress intended to adopt the interpretation placed on that concept by the courts. See Midlantic National Bank v. New Jersey Dept. of Environmental Protection, ; Morissette v. United States, . Hence, we conclude that the retention of immunity in 111 is coextensive with the prohibition against discriminatory taxes embodied in the modern constitutional doctrine of intergovernmental tax immunity. Cf. Memphis Bank & Trust, supra, at 396-397 (construing 31 U.S.C. 742, which permits only "`nondiscriminatory'" state taxation of interest on federal obligations, as "principally a restatement of the constitutional rule").On its face, 111 purports to be nothing more than a partial congressional consent to nondiscriminatory state taxation of federal employees. It can be argued, however, that by negative implication 111 also constitutes an affirmative statutory grant of immunity from discriminatory state taxation in addition to, and coextensive with, the pre-existing protection afforded by the constitutional doctrine. Regardless of whether 111 provides an independent basis for finding immunity or merely preserves the traditional constitutional prohibition against discriminatory taxes, however, the inquiry is the same. In either case, the scope of the immunity granted or retained by the nondiscrimination clause is to be determined by reference to the constitutional doctrine. Thus, the dispositive question in this case is whether the tax imposed on appellant is barred by the doctrine of intergovernmental tax immunity.IVIt is undisputed that Michigan's tax system discriminates in favor of retired state employees and against retired federal employees. The State argues, however, that appellant is not entitled to claim the protection of the immunity doctrine, and that in any event the State's inconsistent treatment of Federal and State Government retirees is justified by meaningful differences between the two classes.AIn support of its first contention, the State points out that the purpose of the immunity doctrine is to protect governments and not private entities or individuals. As a result, so long as the challenged tax does not interfere with the Federal Government's ability to perform its governmental functions, the constitutional doctrine has not been violated.It is true that intergovernmental tax immunity is based on the need to protect each sovereign's governmental operations from undue interference by the other. Graves, 306 U.S., at 481; McCulloch v. Maryland, 4 Wheat., at 435-436. But it does not follow that private entities or individuals who are subjected to discriminatory taxation on account of their dealings with a sovereign cannot themselves receive the protection of the constitutional doctrine. Indeed, all precedent is to the contrary. In Phillips Chemical Co., supra, for example, we considered a private corporation's claim that a state tax discriminated against private lessees of federal land. We concluded that the tax "discriminate[d] unconstitutionally against the United States and its lessee," and accordingly held that the tax could not be exacted. Id., at 387 (emphasis added). See also Memphis Bank & Trust, supra; Moses Lake Homes, Inc. v. Grant County, ; Collector v. Day, 11 Wall. 113 (1871); Dobbins v. Commissioners of Erie County, 16 Pet. 435 (1842). The State offers no reasons for departing from this settled rule, and we decline to do so.4 BUnder our precedents, "[t]he imposition of a heavier tax burden on [those who deal with one sovereign] than is imposed on [those who deal with the other] must be justified by significant differences between the two classes." Phillips Chemical Co. v. Dumas Independent School Dist., 361 U.S., at 383. In determining whether this standard of justification has been met, it is inappropriate to rely solely on the mode of analysis developed in our equal protection cases. We have previously observed that "our decisions in [the equal protection] field are not necessarily controlling where problems of intergovernmental tax immunity are involved," because "the Government's interests must be weighed in the balance." Id., at 385. Instead, the relevant inquiry is whether the inconsistent tax treatment is directly related to, and justified by, "significant differences between the two classes." Id., at 383-385.The State points to two allegedly significant differences between federal and state retirees. First, the State suggests that its interest in hiring and retaining qualified civil servants through the inducement of a tax exemption for retirement benefits is sufficient to justify the preferential treatment of its retired employees. This argument is wholly beside the point, however, for it does nothing to demonstrate that there are "significant differences between the two classes" themselves; rather, it merely demonstrates that the State has a rational reason for discriminating between two similar groups of retirees. The State's interest in adopting the discriminatory tax, no matter how substantial, is simply irrelevant to an inquiry into the nature of the two classes receiving inconsistent treatment. See id., at 384.Second, the State argues that its retirement benefits are significantly less munificent than those offered by the Federal Government, in terms of vesting requirements, rate of accrual, and computation of benefit amounts. The substantial differences in the value of the retirement benefits paid the two classes should, in the State's view, justify the inconsistent tax treatment. Even assuming the State's estimate of the relative value of state and federal retirement benefits is generally correct, we do not believe this difference suffices to justify the type of blanket exemption at issue in this case. While the average retired federal civil servant receives a larger pension than his state counterpart, there are undoubtedly many individual instances in which the opposite holds true. A tax exemption truly intended to account for differences in retirement benefits would not discriminate on the basis of the source of those benefits, as Michigan's statute does; rather, it would discriminate on the basis of the amount of benefits received by individual retirees. Cf. Phillips Chemical Co., supra, at 384-385 (rejecting proffered rationale for State's unfavorable tax treatment of lessees of federal property, because an evenhanded application of the rationale would have resulted in inclusion of some lessees of state property in the disfavored class as well).VFor these reasons, we conclude that the Michigan Income Tax Act violates principles of intergovernmental tax immunity by favoring retired state and local government employees over retired federal employees. The State having conceded that a refund is appropriate in these circumstances, see Brief for Appellee 63, to the extent appellant has paid taxes pursuant to this invalid tax scheme, he is entitled to a refund. See Iowa-Des Moines National Bank v. Bennett, .Appellant also seeks prospective relief from discriminatory taxation. With respect to this claim, however, we are not in the best position to ascertain the appropriate remedy. While invalidation of Michigan's income tax law in its entirety obviously would eliminate the constitutional violation, the Constitution does not require such a drastic solution. We have recognized, in cases involving invalid classifications in the distribution of government benefits, that the appropriate remedy "is a mandate of equal treatment, a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class." Heckler v. Mathews, . See Iowa-Des Moines National Bank, supra, at 247; see also Welsh v. United States, (Harlan, J., concurring in judgment).In this case, appellant's claim could be resolved either by extending the tax exemption to retired federal employees (or to all retired employees), or by eliminating the exemption for retired state and local government employees. The latter approach, of course, could be construed as the direct imposition of a state tax, a remedy beyond the power of a federal court. See Moses Lake Homes, Inc. v. Grant County, 365 U.S., at 752 ("Federal courts may not assess or levy taxes"). The permissibility of either approach, moreover, depends in part on the severability of a portion of 206.30(1)(f) from the remainder of the Michigan Income Tax Act, a question of state law within the special expertise of the Michigan courts. See Louis K. Liggett Co. v. Lee, . It follows that the Michigan courts are in the best position to determine how to comply with the mandate of equal treatment. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Respondents, an organization that supports the legal availability of abortion and two facilities that perform abortions, filed a class action alleging that petitioners, individuals and organizations that oppose legal abortion, violated the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U. S. C. §§1962(a), (c), and (d), by engaging in a nationwide conspiracy to shut down abortion clinics through "a pattern of racketeering activity" that included acts of extortion in violation of the Hobbs Act, §1951. In concluding that petitioners violated RICO's civil provisions, the jury found, among other things, that petitioners' alleged pattern of racketeering activity included violations of, or attempts or conspiracy to violate, the Hobbs Act, state extortion law, and the Travel Act, §1952. The jury awarded damages, and the District Court entered a permanent nationwide injunction against petitioners. Affirming in relevant part, the Seventh Circuit held, inter alia, that the things respondents claimed were extorted from them — the class women's right to seek medical services from the clinics, the clinic doctors' rights to perform their jobs, and the clinics' rights to conduct their business — constituted "property" for purposes of the Hobbs Act. The Court of Appeals further held that petitioners "obtained" that property, as §1951(b)(2) requires. The court also upheld the issuance of the nationwide injunction, finding that private plaintiffs are entitled to obtain injunctive relief under §1964(c).Held: 1. Because all of the predicate acts supporting the jury's finding of a RICO violation must be reversed, the judgment that petitioners violated RICO must also be reversed. Pp. 4-15. (a) Petitioners did not commit extortion within the Hobbs Act's meaning because they did not "obtain" property from respondents. Both of the sources Congress used as models in formulating the Hobbs Act — the New York Penal Code and the Field Code, a 19th-century model penal code — defined extortion as, inter alia, the "obtaining" of property from another. This Court has recognized that New York's "obtaining" requirement entailed both a deprivation and acquisition of property, see United States v. Enmons, 410 U. S. 396, 406, n. 16, and has construed the Hobbs Act provision at issue to require both features, see, e.g., id., at 400. It is undisputed that petitioners interfered with, disrupted, and in some instances completely deprived respondents of their ability to exercise their property rights. Likewise, petitioners' counsel has acknowledged that aspects of his clients' conduct were criminal. But even when their acts of interference and disruption achieved their ultimate goal of shutting down an abortion clinic, such acts did not constitute extortion because petitioners did not "obtain" respondents' property. Petitioners may have deprived or sought to deprive respondents of their alleged property right of exclusive control of their business assets, but they did not acquire any such property. They neither pursued nor received "something of value from" respondents that they could exercise, transfer, or sell. United States v. Nardello, 393 U. S. 286, 290. To conclude that their actions constituted extortion would effectively discard the statutory "obtaining" requirement and eliminate the recognized distinction between extortion and the separate crime of coercion. The latter crime, which more accurately describes the nature of petitioners' actions, involves the use of force or threat of force to restrict another's freedom of action. It was clearly defined in the New York Penal Code as a separate, and lesser offense than extortion when Congress turned to New York law in drafting the Hobbs Act. Congress' decision to include extortion as a violation of the Hobbs Act and omit coercion is significant here, as is the fact that the Anti-Racketeering Act, the predecessor to the Hobbs Act, contained sections explicitly prohibiting both. The Hobbs Act omission is particularly significant because a paramount congressional concern in drafting that Act was to be clear about what conduct was prohibited, United States v. Culbert, 435 U. S. 371, 378, and to carefully define the Act's key terms, including "extortion," id., at 373. Thus, while coercion and extortion overlap to the extent that extortion necessarily involves the use of coercive conduct to obtain property, there has been and continues to be a recognized difference between these two crimes. Because the Hobbs Act is a criminal statute, it must be strictly construed, and any ambiguity must be resolved in favor of lenity. Enmons, supra, at 411. Culbert, supra, at 373, distinguished. If the distinction between extortion and coercion, which controls these cases, is to be abandoned, such a significant expansion of the law's coverage must come from Congress, not from the courts. Pp. 4-14. (b) This Court's determination as to Hobbs Act extortion renders insufficient the other bases or predicate acts of racketeering supporting the jury's conclusion that petitioners violated RICO. In accordance with this Court's decisions in Nardello and Taylor v. United States, 495 U. S. 575 (1990), where as here the Model Penal Code and a majority of Sates recognize the crime of extortion as requiring a party to obtain or to seek to obtain property, as the Hobbs Act requires, a state extortion offense for RICO purposes must have a similar requirement. Thus, because petitioners did not obtain or attempt to obtain respondents' property, both the state extortion claims and the claim of attempting or conspiring to commit state extortion were fatally flawed. The violations of the Travel Act and attempts to violate that Act also fail. These acts were committed in furtherance of allegedly extortionate conduct, but petitioners did not commit or attempt to commit extortion. Pp. 14-15. 2. Without an underlying RICO violation, the District Court's injunction must necessarily be vacated. The Court therefore need not address the second question presented — whether a private plaintiff in a civil RICO action is entitled to injunctive relief under §1964(c). Pp. 15-16.267 F. 3d 687, reversed. Rehnquist, C. J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Ginsburg, J., filed a concurring opinion, in which Breyer, J., joined. Stevens, J., filed a dissenting opinion.JOSEPH SCHEIDLER, ANDREW SCHOLBERG,TIMOTHY MURPHY, and THE PRO-LIFEACTION LEAGUE, INC., PETITIONERS01-1118 v.NATIONAL ORGANIZATION FORWOMEN, INC., et al.OPERATION RESCUE, PETITIONER01-1119 v.NATIONAL ORGANIZATION FORWOMEN, INC., et al.on writs of certiorari to the united states court ofappeals for the seventh circuit[February 26, 2003] Chief Justice Rehnquist delivered the opinion of the Court. We granted certiorari in these cases to answer two questions. First, whether petitioners committed extortion within the meaning of the Hobbs Act, 18 U. S. C. §1951. Second, whether respondents, as private litigants, may obtain injunctive relief in a civil action pursuant to 18 U. S. C. §1964 of the Racketeer Influenced and Corrupt Organizations Act (RICO). We hold that petitioners did not commit extortion because they did not "obtain" property from respondents as required by the Hobbs Act. We further hold that our determination with respect to extortion under the Hobbs Act renders insufficient the other bases or predicate acts of racketeering supporting the jury's conclusion that petitioners violated RICO. Therefore, we reverse without reaching the question of the availability of private injunctive relief under §1964(c) of RICO. We once again address questions arising from litigation between petitioners, a coalition of antiabortion groups called the Pro-Life Action Network (PLAN), Joseph Scheidler and other individuals and organizations that oppose legal abortion,1 and respondents, the National Organization for Women, Inc. (NOW), a national nonprofit organization that supports the legal availability of abortion, and two health care centers that perform abortions.2 Our earlier decision provides a substantial description of the factual and procedural history of this litigation, see National Organization for Women, Inc. v. Scheidler, 510 U. S. 249 (1994), and so we recount only those details necessary to address the questions here presented. In 1986, respondents sued in the United States District Court for the Northern District of Illinois alleging, inter alia, that petitioners violated RICO's §§1962(a), (c), and (d). They claimed that petitioners, all of whom were associated with PLAN, the alleged racketeering enterprise, were members of a nationwide conspiracy to "shut down" abortion clinics through a pattern of racketeering activity that included acts of extortion in violation of the Hobbs Act.3 The District Court dismissed respondents' RICO claims for failure to allege that the predicate acts of racketeering or the racketeering enterprise were economically motivated. See National Organization for Women, Inc. v. Scheidler, 765 F. Supp. 937 (ND Ill. 1991). The Court of Appeals for the Seventh Circuit affirmed that dismissal. See National Organization for Women, Inc. v. Scheidler, 968 F. 2d 612 (1992). We granted certiorari and reversed, concluding that RICO does not require proof that either the racketeering enterprise or the predicate acts of racketeering were motivated by an economic purpose. See Scheidler, 510 U. S., at 256-262. The case was remanded to the District Court for further proceedings. After a 7-week trial, a six-member jury concluded that petitioners violated the civil provisions of RICO. By answering a series of special interrogatory questions, the jury found, inter alia, that petitioners' alleged "pattern of racketeering activity" included 21 violations of the Hobbs Act, 18 U. S. C. §1951; 25 violations of state extortion law; 25 instances of attempting or conspiring to commit either federal or state extortion; 23 violations of the Travel Act, 18 U. S. C. §1952; and 23 instances of attempting to violate the Travel Act. The jury awarded $31,455.64 to respondent, the National Women's Health Organization of Delaware, Inc., and $54,471.28 to the National Women's Health Organization of Summit, Inc. These damages were trebled pursuant to §1964(c). Additionally, the District Court entered a permanent nationwide injunction prohibiting petitioners from obstructing access to the clinics, trespassing on clinic property, damaging clinic property, or using violence or threats of violence against the clinics, their employees, or their patients. The Court of Appeals for the Seventh Circuit affirmed in relevant part. The Court of Appeals rejected petitioners' contention that the things respondents claimed were "obtained"--the class women's right to seek medical services from the clinics, the clinic doctors' rights to perform their jobs, and the clinics' rights to provide medical services and otherwise conduct their business — were not "property" for purposes of the Hobbs Act. The court explained that it had "repeatedly held that intangible property such as the right to conduct a business can be considered 'property' under the Hobbs Act." 267 F. 3d 687, 709 (2001). Likewise, the Court of Appeals dismissed petitioners' claim that even if "property" was involved, petitioners did not "obtain" that property; they merely forced respondents to part with it. Again relying on Circuit precedent, the court held that " 'as a legal matter, an extortionist can violate the Hobbs Act without either seeking or receiving money or anything else. A loss to, or interference with the rights of, the victim is all that is required.' " Ibid. (quoting United States v. Stillo, 57 F. 3d 553, 559 (CA7 1995)). Finally, the Court of Appeals upheld the issuance of the nationwide injunction, finding that private plaintiffs are entitled to obtain injunctive relief under §1964(c) of RICO. We granted certiorari, 535 U. S. 1016 (2002), and now reverse. We first address the question whether petitioners' actions constituted extortion in violation of the Hobbs Act. That Act defines extortion as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." 18 U. S. C. §1951(b)(2). Petitioners allege that the jury's verdict and the Court of Appeals' decision upholding the verdict represent a vast and unwarranted expansion of extortion under the Hobbs Act. They say that the decisions below "rea[d] the requirement of 'obtaining' completely out of the statute" and conflict with the proper understanding of property for purposes of the Hobbs Act. Brief for Petitioners Joseph Scheidler et al. in No. 01-1118, pp. 11-13. Respondents, throughout the course of this litigation, have asserted, as the jury instructions at the trial reflected,4 that petitioners committed extortion under the Hobbs Act by using or threatening to use force, violence, or fear to cause respondents "to give up" property rights, namely, "a woman's right to seek medical services from a clinic, the right of the doctors, nurses or other clinic staff to perform their jobs, and the right of the clinics to provide medical services free from wrongful threats, violence, coercion and fear." Jury Instruction No. 24, App. 136. Perhaps recognizing the apparent difficulty in reconciling either its position that "giv[ing] up" these alleged property rights or the Court of Appeals' holding that "interfer[ing] with such rights" with the requirement that petitioners "obtain[ed] ... property from" them, respondents have shifted the thrust of their theory. 267 F. 3d, at 267. Respondents now assert that petitioners violated the Hobbs Act by "seeking to get control of the use and disposition of respondents' property." Brief for Respondents 24. They argue that because the right to control the use and disposition of an asset is property, petitioners, who interfered with, and in some instances completely disrupted, the ability of the clinics to function, obtained or attempted to obtain respondents' property. The United States offers a view similar to that of respondents, asserting that "where the property at issue is a business's intangible right to exercise exclusive control over the use of its assets, [a] defendant obtains that property by obtaining control over the use of those assets." Brief for United States as Amicus Curiae 22. Although the Government acknowledges that the jury's finding of extortion may have been improperly based on the conclusion that petitioners deprived respondents of a liberty interest,5 it maintains that under its theory of liability, petitioners committed extortion. We need not now trace what are the outer boundaries of extortion liability under the Hobbs Act, so that liability might be based on obtaining something as intangible as another's right to exercise exclusive control over the use of a party's business assets.6 Our decisions in United States v. Green, 350 U. S. 415, 420 (1956) (explaining that "extortion ... in no way depends upon having a direct benefit conferred on the person who obtains the property"), and Carpenter v. United States, 484 U. S. 19, 27 (1987) (finding that confidential business information constitutes "property" for purposes of the federal mail fraud statute), do not require such a result. Whatever the outer boundaries may be, the effort to characterize petitioners' actions here as an "obtaining of property from" respondents is well beyond them. Such a result would be an unwarranted expansion of the meaning of that phrase. Absent contrary direction from Congress, we begin our interpretation of statutory language with the general presumption that a statutory term has its common-law meaning. See Taylor v. United States, 495 U. S. 575, 592 (1990); Morissette v. United States, 342 U. S. 246, 263 (1952). At common law, extortion was a property offense committed by a public official who took "any money or thing of value" that was not due to him under the pretense that he was entitled to such property by virtue of his office. 4 William Blackstone, Commentaries on the Laws of England 141 (1765); 3 R. Anderson, Wharton's Criminal Law and Procedure §1393, pp. 790-791 (1957). In 1946, Congress enacted the Hobbs Act, which explicitly "expanded the common-law definition of extortion to include acts by private individuals." Evans v. United States, 504 U. S. 255, 261 (1992). While the Hobbs Act expanded the scope of common-law extortion to include private individuals, the statutory language retained the requirement that property must be "obtained." See 18 U. S. C. §1951(b)(2). Congress used two sources of law as models in formulating the Hobbs Act: the Penal Code of New York and the Field Code, a 19th-century model penal code. See Evans, supra, at 262.7 Both the New York statute and the Field Code defined extortion as "the obtaining of property from another with his consent, induced by a wrongful use of force or fear or under color of official right." 4 Report of the Commissioners of the Code, Proposed Penal Code of the State of New York §613 (1865) (reprint 1998) (Field Code); N. Y. Penal Law §850 (1909). The Field Code explained that extortion was one of four property crimes, along with robbery, larceny, and embezzlement that included "the criminal acquisition of ... property." §584 note, p. 210. New York case law before the enactment of the Hobbs Act demonstrates that this "obtaining of property" requirement included both a deprivation and acquisition of property. See, e.g., People v. Ryan, 232 N. Y. 234, 236, 133 N. E. 572, 573 (1921) (explaining that an intent "to extort" requires an accompanying intent to "gain money or property"); People v. Weinseimer, 117 App. Div. 603, 616, 102 N. Y. S. 579, 588 (1907) (noting that inan extortion prosecution, the issue that must be decidedis whether the accused "receive[d] [money] from thecomplainant").8 We too have recognized that the "obtaining" requirement of extortion under New York law entailed both a deprivation and acquisition of property. See United States v. Enmons, 410 U. S. 396, 406, n. 16 (1973) (noting that "[j]udicial construction of the New York statute" demonstrated that "extortion requires an intent 'to obtain that which in justice and equity the party is not entitled to receive' ") (quoting People v. Cuddihy, 151 Misc. 318, 324, 271 N. Y. S. 450, 456 (1934)). Most importantly, we have construed the extortion provision of the Hobbs Act at issue in this case to require not only the deprivation but also the acquisition of property. See, e.g., Enmons, supra, at 400. (Extortion under the Hobbs Act requires a " 'wrongful' taking of ... property" (emphasis added)). With this understanding of the Hobbs Act's requirement that a person must "obtain" property from another party to commit extortion, we turn to the facts of these cases. There is no dispute in these cases that petitioners interfered with, disrupted, and in some instances completely deprived respondents of their ability to exercise their property rights. Likewise, petitioners' counsel readily acknowledged at oral argument that aspects of his clients' conduct were criminal.9 But even when their acts of interference and disruption achieved their ultimate goal of "shutting down" a clinic that performed abortions, such acts did not constitute extortion because petitioners did not "obtain" respondents' property. Petitioners may have deprived or sought to deprive respondents of their alleged property right of exclusive control of their business assets, but they did not acquire any such property. Petitioners neither pursued nor received "something of value from" respondents that they could exercise, transfer, or sell. United States v. Nardello, 393 U. S. 286, 290 (1969). To conclude that such actions constituted extortion would effectively discard the statutory requirement that property must be obtained from another, replacing it instead with the notion that merely interfering with or depriving someone of property is sufficient to constitute extortion. Eliminating the requirement that property must be obtained to constitute extortion would not only conflict with the express requirement of the Hobbs Act, it would also eliminate the recognized distinction between extortion and the separate crime of coercion — a distinction that is implicated in these cases. The crime of coercion, which more accurately describes the nature of petitioners' actions, involves the use of force or threat of force to restrict another's freedom of action. Coercion's origin is statutory, and it was clearly defined in the New York Penal Code as a separate, and lesser offense than extortion when Congress turned to New York law in drafting the Hobbs Act.10 New York case law applying the coercion statute before the passage of the Hobbs Act involved the prosecution of individuals who, like petitioners, employed threats and acts of force and violence to dictate and restrict the actions and decisions of businesses. See, e.g., People v. Ginsberg, 262 N. Y. 556, 188 N. E. 62 (1933) (affirming convictions for coercion where defendant used threatened and actual property damage to compel the owner of a drug store to become a member of a local trade association and to remove price advertisements for specific merchandise from his store's windows); People v. Scotti, 266 N. Y. 480, 195 N. E. 162 (1934) (affirming conviction for coercion where defendants used threatened and actual force to compel a manufacturer to enter into an agreement with a labor union of which the defendants were members); People v. Kaplan, 240 App. Div. 72, 269 N. Y. S. 161 (1934) (affirming convictions for coercion where defendants, members of a labor union, used threatened and actual physical violence to compel other members of the union to drop lawsuits challenging the manner in which defendants were handling the union's finances). With this distinction between extortion and coercion clearly drawn in New York law prior to 1946, Congress' decision to include extortion as a violation of the Hobbs Act and omit coercion is significant assistance to our interpretation of the breadth of the extortion provision. This assistance is amplified by other evidence of Congress' awareness of the difference between these two distinct crimes. In 1934, Congress formulated the Anti-Racketeering Act, ch. 569, 48 Stat. 979. This Act, which was the predecessor to the Hobbs Act, targeted, as its name suggests, racketeering activities that affected interstate commerce, including both extortion and coercion as defined under New York law.11 Accordingly, the Act contained both a section explicitly prohibiting coercion and a section prohibiting the offense of extortion as defined by the Field Code and New York Penal Code. See ch. 569, §§2(a) and 2(b). Several years after the enactment of the Anti-Racketeering Act, this Court decided United States v. Teamsters, 315 U. S. 521 (1942). In Teamsters, this Court construed an exception provided in the Anti-Racketeering Act for the payment of wages by a bona fide employer to a bona fide employee to find that the Act "did not cover the actions of union truckdrivers who exacted money by threats or violence from out-of-town drivers in return for undesired and often unutilized services." United States v. Culbert, 435 U. S. 371, 377 (1978) (citing Teamsters, supra). "Congressional disapproval of this decision was swift," and the Hobbs Act was subsequently enacted to supersede the Anti-Racketeering Act and reverse the result in Teamsters. Enmons, 410 U. S., at 402, and n. 8. The Act prohibited interference with commerce, by "robbery or extortion" but, as explained above, did not mention coercion. This omission of coercion is particularly significant in light of the fact that after Teamsters, a "paramount congressional concern" in drafting the Hobbs Act, "was to be clear about what conduct was prohibited." Culbert, supra, at 378.12 Accordingly, the Act "carefully defines its key terms, such as 'robbery,' 'extortion,' and 'commerce.' " Id., at 373. Thus, while coercion and extortion certainly overlap to the extent that extortion necessarily involves the use of coercive conduct to obtain property, there has been and continues to be a recognized difference between these two crimes, see, e.g., ALI, Model Penal Code and Commentaries §§212.5, 223.4 (1980) (hereinafter Model Penal Code),13 and we find it evident that this distinction was not lost on Congress in formulating the Hobbs Act. We have said that the words of the Hobbs Act "do not lend themselves to restrictive interpretation" because they " 'manifest ... a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence.' " Culbert, supra, at 373 (quoting Stirone v. United States, 361 U. S. 212, 215 (1960)). We have also said, construing the Hobbs Act in Enmons, supra, at 411:"Even if the language and history of the Act were less clear than we have found them to be, the Act could not properly be expanded as the Government suggests — for two related reasons. First, this being a criminal statute, it must be strictly construed, and any ambiguity must be resolved in favor of lenity (citations omitted)."We think that these two seemingly antithetical statements can be reconciled. Culbert refused to adopt the view that Congress had not exercised the full extent of its commerce power in prohibiting extortion which "affects commerce or the movement of any article or commodity in commerce." But there is no contention by petitioners here that their acts did not affect interstate commerce. Their argument is that their acts did not amount to the crime of extortion as set forth in the Act, so the rule of lenity referred to in Enmons may apply to their case quite consistently with the statement in Culbert. "[W]hen there are two rational readings of a criminal statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in clear and definite language." McNally v. United States, 483 U. S. 350, 359-360 (1987). If the distinction between extortion and coercion, which we find controls these cases, is to be abandoned, such a significant expansion of the law's coverage must come from Congress, and not from the courts. Because we find that petitioners did not obtain or attempt to obtain property from respondents, we conclude that there was no basis upon which to find that they committed extortion under the Hobbs Act. The jury also found that petitioners had committed extortion under various state-law extortion statutes, a separate RICO predicate offense. Petitioners challenged the jury instructions as to these on appeal, but the Court of Appeals held that any error was harmless, because the Hobbs Act verdicts were sufficient to support the relief awarded. Respondents argue in this Court that state extortion offenses do not have to be identical to Hobbs Act extortion to be predicate offenses supporting a RICO violation. They concede, however, that for a state offense to be an "act or threat involving ... extortion, ... which is chargeable under State law," as RICO requires, see 18 U. S. C. §1961(1), the conduct must be capable of being generically classified as extortionate. Brief for Respondents 33-34. They further agree that such "generic" extortion is defined as " 'obtaining something of value from another with his consent induced by the wrongful use of force, fear, or threats.' " Id., at 34 (quoting Nardello, 393 U. S., at 290). This concession is in accord with our decisions in Nardello and Taylor v. United States, 495 U. S. 575 (1990). In Nardello, we held that the Travel Act's prohibition, 18 U. S. C. §1952(b)(2), against "extortion ... in violation of the laws of the State in which committed or of the United States" applies to extortionate conduct classified by a state penal code as blackmail rather than extortion. We determined that if an act prohibited under state law fell within a generic definition of extortion, for which we relied on the Model Penal Code's definition of "obtaining something of value from another with his consent induced by the wrongful use of force, fear, or threats," it would constitute a violation of the Travel Act's prohibition regardless of the State's label for that unlawful act. See Nardello, supra, at 296 (explaining that regardless of Pennsylvania's labeling defendants' acts as blackmail and not extortion, defendants violated the Travel Act because "the indictment encompasses a type of activity generally known as extortionate since money was to be obtained from the victim by virtue of fear and threats of exposure"). In Taylor, relying in part on Nardello, we concluded that in including "burglary" as a violent crime in 18 U. S. C. §924(e)'s sentencing enhancement provision for felons' possessing firearms, Congress meant "burglary" in "the generic sense in which the term is now used in the criminal codes of most States." 495 U. S., at 598. Accordingly, where as here the Model Penal Code and a majority of States recognize the crime of extortion as requiring a party to obtain or to seek to obtain property, as the Hobbs Act requires, the state extortion offense for purposes of RICO must have a similar requirement. Because petitioners did not obtain or attempt to obtain respondents' property, both the state extortion claims and the claim of attempting or conspiring to commit state extortion were fatally flawed. The 23 violations of the Travel Act and 23 acts of attempting to violate the Travel Act also fail. These acts were committed in furtherance of allegedly extortionate conduct. But we have already determined that petitioners did not commit or attempt to commit extortion. Because all of the predicate acts supporting the jury's finding of a RICO violation must be reversed, the judgment that petitioners violated RICO must also be reversed. Without an underlying RICO violation, the injunction issued by the District Court must necessarily be vacated. We therefore need not address the second question presented — whether a private plaintiff in a civil RICO action is entitled to injunctive relief under 18 U. S. C. §1964. The judgment of the Court of Appeals is accordinglyReversed.JOSEPH SCHEIDLER, ANDREW SCHOLBERG,TIMOTHY MURPHY, and THE PRO-LIFEACTION LEAGUE, INC., PETITIONERS01-1118 v.NATIONAL ORGANIZATION FORWOMEN, INC., et al.OPERATION RESCUE, PETITIONER01-1119 v.NATIONAL ORGANIZATION FORWOMEN, INC., et al.on writs of certiorari to the united states court ofappeals for the seventh circuit[February 26, 2003] Justice Ginsburg, with whom Justice Breyer joins, concurring. I join the Court's opinion, persuaded that the Seventh Circuit's decision accords undue breadth to the Racketeer Influenced and Corrupt Organizations Act (RICO or Act). As Justice Stevens recognizes, "Congress has enacted specific legislation responsive to the concerns that gave rise to these cases." Post, at 6 (dissenting opinion). In the Freedom of Access to Clinic Entrances Act of 1994, 18 U. S. C. §248, Congress crafted a statutory response that homes in on the problem of criminal activity at health care facilities. See ante, at 9-10, and n. 9 (noting petitioners' acknowledgment that at least some of the protesters' conduct was criminal, and observing that "[t]he crime of coercion [a separate, and lesser offense than extortion] more accurately describes the nature of petitioners' actions"). Thus, the principal effect of a decision against petitioners here would have been on other cases pursued under RICO.** RICO, which empowers both prosecutors and private enforcers, imposes severe criminal penalties and hefty civil liability on those engaged in conduct within the Act's compass. See, e.g., §1963(a) (up to 20 years' imprisonment and wide-ranging forfeiture for a single criminal violation); §1964(a) (broad civil injunctive relief); §1964(c) (treble damages and attorneys' fees for private plaintiffs). It has already "evolv[ed] into something quite different from the original conception of its enactors," Sedima, S. P. R. L. v. Imrex Co., 473 U. S. 479, 500 (1985), warranting "concern[s] over the consequences of an unbridled reading of the statute," id., at 481. The Court is rightly reluctant, as I see it, to extend RICO's domain further by endorsing the expansive definition of "extortion" adopted by the Seventh Circuit.JOSEPH SCHEIDLER, ANDREW SCHOLBERG,TIMOTHY MURPHY, and THE PRO-LIFEACTION LEAGUE, INC., PETITIONERS01-1118 v.NATIONAL ORGANIZATION FORWOMEN, INC., et al.OPERATION RESCUE, PETITIONER01-1119 v.NATIONAL ORGANIZATION FORWOMEN, INC., et al.on writs of certiorari to the united states court ofappeals for the seventh circuit[February 26, 2003] Justice Stevens, dissenting. The term "extortion" as defined in the Hobbs Act refers to "the obtaining of property from another." 18 U. S. C. §1951(b)(2). The Court's murky opinion seems to hold that this phrase covers nothing more than the acquisition of tangible property. No other federal court has ever construed this statute so narrowly. For decades federal judges have uniformly given the term "property" an expansive construction that encompasses the intangible right to exercise exclusive control over the lawful use of business assets. The right to serve customers or to solicit new business is thus a protected property right. The use of violence or threats of violence to persuade the owner of a business to surrender control of such an intangible right is an appropriation of control embraced by the term "obtaining." That is the commonsense reading of the statute that other federal judges have consistently and wisely embraced in numerous cases that the Court does not discuss or even cite. Recognizing this settled definition of property, as I believe one must, the conclusion that petitioners obtained this property from respondents is amply supported by the evidence in the record. Because this construction of the Hobbs Act has been so uniform, I only discuss a few of the more significant cases. For example, in United States v. Tropiano, 418 F. 2d 1069 (1969), the Second Circuit held that threats of physical violence to persuade the owners of a competing trash removal company to refrain from soliciting customers in certain areas violated the Hobbs Act. The court's reasoning is directly applicable to these cases: "The application of the Hobbs Act to the present facts of this case has been seriously challenged by the appellants upon the ground that the Government's evidence indicates that no 'property' was extorted and that there was no interference or attempted interference with interstate commerce. They assert that nothing more than 'the right to do business' in the Milford area was surrendered by Caron and that such a right was not 'property' 'obtained' by the appellants, as those terms are used in the Act. While they concede that rubbish removal accounts which are purchased and sold are probably property, they argue that the right to solicit business is amorphous and cannot be squared with the Congressional expression in the Act of 'obtaining property.' The Hobbs Act 'speaks in broad language, manifesting a purpose to use all the constitutional power Congress has to punish interference with interstate commerce by extortion, robbery or physical violence.' Stirone v. United States. The concept of property under the Hobbs Act, as devolved from its legislative history and numerous decisions, is not limited to physical or tangible property or things (United States v. Provenzano, 334 F. 2d 678 (3d Cir. 1964); United States v. Nedley, 255 F. 2d 350 (3d Cir. 1958)), but includes, in a broad sense, any valuable right considered as a source or element of wealth (Bianchi v. United States, 219 F. 2d 182 (8th Cir. 1955)), and does not depend upon a direct benefit being conferred on the person who obtains the property (United States v. Green). "Obviously, Caron had a right to solicit business from anyone in any area without any territorial restrictions by the appellants and only by the exercise of such a right could Caron obtain customers whose accounts were admittedly valuable... . The right to pursue a lawful business including the solicitation of customers necessary to the conduct of such business has long been recognized as a property right within the protection of the Fifth and Fourteenth Amendments of the Constitution (Louis K. Ligget Co. v. Baldridge; cf., Duplex Printing Press Co. v. Deering ... . Caron's right to solicit accounts in Milford, Connecticut constituted property within the Hobbs Act definition." Id., at 1075-1076 (some citations omitted). The Tropiano case's discussion of obtaining property has been cited with approval by federal courts in virtually every circuit in the country. See, e.g., United States v. Hathaway, 534 F. 2d 386, 396 (CA1 1976); United States v. Arena, 180 F. 3d 380, 392 (CA2 1999); Northeast Women's Center, Inc. v. McMonagle, 868 F. 2d 1342, 1350 (CA3 1989); United States v. Santoni, 585 F. 2d 667, 673 (CA4 1978); United States v. Nadaline, 471 F. 2d 340, 344 (CA5 1973); United States v. Debs, 949 F. 2d 199, 201 (CA6 1991); United States v. Lewis, 797 F. 2d 358, 364 (CA7 1986); United States v. Zemek, 634 F. 2d 1159, 1174 (CA9 1980).1 Its interpretation of the term "property" is consistent with pre-Hobbs Act decisions of this Court, see Buchanan v. Warley, 245 U. S. 60, 74 (1917) (property "consists of the free use, enjoyment, and disposal of a person's acquisitions without control or diminution"), the New York Court of Appeals, see People v. Barondess, 133 N. Y. 649, 31 N. E. 240 (1892), the California Supreme Court, People v. Cadman, 57 Cal. 562 (1881), and with our recent decision in Carpenter v. United States, 484 U. S. 19 (1987). The courts that have considered the applicability of the Hobbs Act to attempts to disrupt the operations of abortion clinics have uniformly adhered to the holdings of cases like Tropiano. See, e.g., Libertad v. Welch, 53 F. 3d 428, 438, n. 6 (CA1 1995); Northeast Women's Center, Inc. v. McMonagle, 868 F. 2d, at 1350); United States v. Anderson, 716 F. 2d 446, 447-450 (CA7 1983). Judge Kearse's endorsement of the Government's position in United States v. Arena, 180 F. 3d 380 (CA2 1999), followed this consistent line of cases. The jury had found that the defendants had engaged in "an overall strategy to cause abortion providers, particularly Planned Parenthood and Yoffa, to give up their property rights to engage in the business of providing abortion services for fear of future attacks." Id., at 393. Judge Kearse described how this behavior fell well within the reach of the Hobbs Act:"[P]roperty may be tangible or intangible, and the property at issue here was the intangible right to conduct business free from threats of violence and physical harm... . A perpetrator plainly may 'obtai[n]' property without receiving anything, for obtaining includes 'attain[ing] ... disposal of,' Webster's Third New International Dictionary 1559 (1976); and 'disposal' includes 'the regulation of the fate ... of something,' id. at 655. Thus, even when an extortionist has not taken possession of the property that the victim has relinquished, she has nonetheless 'obtain[ed]' that property if she has used violence to force her victim to abandon it. The fact that the target of a threat or attack may have refused to relinquish his property does not lessen the extortionist's liability under the Hobbs Act, for the Act, by its terms, also reaches attempts. See C. §1951(a); McLaughlin v. Anderson, 962 F. 2d 187, 194 (2d Cir. 1992). "In sum, where the property in question is the victim's right to conduct a business free from threats of violence and physical harm, a person who has committed or threatened violence or physical harm in order to induce abandonment of that right has obtained, or attempted to obtain, property within the meaning of the Hobbs Act." Id., at 394. In my opinion Judge Kearse's analysis of the issue is manifestly correct. Even if the issue were close, however, three additional considerations provide strong support for her conclusion. First, the uniform construction of the statute that has prevailed throughout the country for decades should remain the law unless and until Congress decides to amend the statute. See Reves v. Ernst & Young, 494 U. S. 56, 74 (1990) (Stevens, J., concurring); Chesapeake & Ohio R. Co. v. Schwalb, 493 U. S. 40, 51 (1989) (Stevens, J., concurring in judgment); McNally v. United States, 483 U. S. 350, 376-377 (1987) (Stevens, J., dissenting);2 Shearson/American Express Inc. v. McMahon, 482 U. S. 220, 268-269 (1987) (Stevens, J., concurring in part and dissenting in part). Second, both this Court and all other federal courts have consistently identified the Hobbs Act as a statute that Congress intended to be given a broad construction. See, e.g., Stirone v. United States, 361 U. S. 212 (1960); United States v. Staszcuk, 517 F. 2d 53 (CA7 1975). Third, given the fact that Congress has enacted specific legislation responsive to the concerns that gave rise to these cases,3 the principal beneficiaries of the Court's dramatic retreat from the position that federal prosecutors and federal courts have maintained throughout the history of this important statute will certainly be the class of professional criminals whose conduct persuaded Congress that the public needed federal protection from extortion.4 I respectfully dissent. FOOTNOTESFootnote * Together with No. 01-1119, Operation Rescue v. National Organization for Women, Inc., et al., also on certiorari to the same court.FOOTNOTESFootnote 1 The other petitioners include Andrew Scholberg, Timothy Murphy, and Operation Rescue.Footnote 2 NOW represents a certified class of all NOW members and non-members who have used or would use the services of an abortion clinic in the United States. The two clinics, the National Women's Health Organization of Summit, Inc., and the National Women's Health Organization of Delaware, Inc., represent a class of all clinics in the United States at which abortions are provided.Footnote 3 The Hobbs Act, 18 U. S. C. §1951(a), provides that "[w]hoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both."Footnote 4 The instruction given to the jury regarding extortion under the Hobbs Act provided that "[p]laintiffs have alleged that the defendant and others associated with PLAN committed acts that violate federal law prohibiting extortion. In order to show that extortion has been committed in violation of federal law, the plaintiffs must show that the defendant or someone else associated with PLAN knowingly, willfully, and wrongfully used actual or threatened force, violence or fear to cause women, clinic doctors, nurses or other staff, or the clinics themselves to give up a 'property right.' " Jury Instruction No. 24, App. 136.Footnote 5 The Solicitor General agreed at oral argument that even if we accept the Government's view as to extortion under the Hobbs Act, the case must be remanded because the generalized jury instruction regarding federal extortion included a woman's right to seek medical services as a property right petitioners' could extort from respondents; a right he acknowledged is more accurately characterized as an individual liberty interest. See Tr. of Oral Arg. 30-31. Footnote 6 Accordingly, the dissent is mistaken to suggest that our decision reaches, much less rejects, lower court decisions such as United States v. Tropiano, 418 F. 2d 1069, 1076 (1969), in which the Second Circuit concluded that the intangible right to solicit refuse collection accounts "constituted property within the Hobbs Act definition."Footnote 7 Representative Hobbs explicitly stated that the term extortion was "based on the New York law." 89 Cong. Rec. 3227 (1943).Footnote 8 The dissent endorses the opinion of the Court of Appeals in United States v. Arena, 180 F. 3d 380 (CA2 1999), to reach a more expansive definition of "obtain" than is found in the cases just cited. The Court of Appeals quoted part of a dictionary definition of the word "obtain" in Webster's Third New International Dictionary, 180 F. 3d, at 394. The full text of the definition reads "to gain or attain possession or disposal of." That court then resorted to the dictionary definition of "disposal," which includes "the regulation of the fate ... of something." Surely if the rule of lenity, which we have held applicable to the Hobbs Act, see infra, at 13-14, means anything, it means that the familiar meaning of the word "obtain"--to gain possession of — should be preferred to the vague and obscure "to attain regulation of the fate of."Footnote 9 "Question: But are we talking about actions that constitute the commission of some kind of criminal offense in the process?... . ."Mr. Englert: Oh, yes. Trespass."Question: Yes, and other things, destruction of property and so forth, I suppose. "Mr. Englert: Oh, yes... .... . ."Question: I mean, we're not talking about conduct that is lawful here."Mr. Englert: We are not talking about extortion, but we are talking about some things that could be punished much less severely. It has never been disputed in this case ... that there were trespasses." Tr. of Oral Arg. 8-9.Footnote 10 New York Penal Law §530 (1909), Coercing another person a misdemeanor, provided: "A person who with a view to compel another person to do or to abstain from doing an act which such other person has a legal right to do or to abstain from doing, wrongfully and unlawfully,"1. Uses violence or inflicts injury upon such other person or his family, or a member thereof, or upon his property or threatens such violence or injury; or,"2. Deprives any such person of any tool, implement or clothing or hinders him in the use thereof; or, "3. Uses or attempts the intimidation of such person by threats or force, "Is guilty of a misdemeanor."Footnote 11 A subcommittee of the Commerce Committee, known as the Copeland Subcommittee, employed a working definition of "racketeering," which included organized conspiracies to "commit the crimes of extortion or coercion, or attempts to commit extortion or coercion, within the definition of these crimes found in the penal law of the State of New York and other jurisdictions." S. Rep. No. 1189, 75th Cong., 1st Sess., 3 (1937); United States v. Culbert, 435 U. S. 371, 375-376 (1978).Footnote 12 As we reported in Culbert, supra, at 378: "Indeed, many Congressmen praised the [Hobbs Act] because it set out with more precision the conduct that was being made criminal. As Representative Hobbs noted, the words robbery and extortion 'have been construed a thousand times by the courts. Everybody knows what they mean' " (quoting 91 Cong. Rec. 11912 (1945)).Footnote 13 Under the Model Penal Code §223.4, Comment 1, pp. 201-202, extortion requires that one "obtains [the] property of another" using threat as "the method employed to deprive the victim of his property." This "obtaining" is further explained as " ' bring[ing] about a transfer or purported transfer of a legal interest in the property, whether to the obtainer or another.' " Id., §223.3, Comment 2, at 182, Coercion, on the other hand, is defined as making "specified categories of threats ... with the purpose of unlawfully restricting another's freedom of action to his detriment." Id., §212.5, Comment 2, at 264.FOOTNOTESFootnote ** At oral argument, the Government was asked: "[D]o you agree that your interpretation would have been applicable to the civil rights sit-ins?" Tr. of Oral Arg. 25. The Solicitor General responded: "Under some circumstances, it could have if illegal force or threats were used to prevent a business from operating." Ibid.FOOTNOTESFootnote 1 Indeed, the Ninth Circuit's discussion of the nature of property under the Hobbs Act illustrates just how settled this issue was in the Courts of Appeals:"The concept of property under the Hobbs Act has not been limited to physical or tangible 'things.' The right to make business decisions and to solicit business free from wrongful coercion is a protected property right. See, e. g., United States v. Santoni, 585 F. 2d 667 (4th Cir. 1978) (right to make business decisions free from outside pressure wrongfully imposed); United States v. Nadaline, 471 F. 2d 340 (5th Cir.) (right to business accounts and unrealized profits) ... . Cf. United States v. Hathaway, 534 F. 2d 386, 395 (1st Cir.) (rejection of narrow perception of 'property'); Battaglia v. United States, 383 F. 2d 303 (9th Cir. 1967) (right to lease space in bowling alley free from threats)... . Chase's right to solicit business free from threatened destruction and physical harm falls within the scope of protected property rights under the Hobbs Act. ... . ."Evidence of the previously described acts of intimidation and violence suffices. Appellants' objective was to induce Chase to give up a lucrative business. The fact that their threats were unsuccessful does not preclude conviction." United States v. Zemek, 634 F. 2d, at 1174 (some citations omitted). None of the cases following United States v. Tropiano, 418 F. 2d 1069 (CA2 1969), even considered the novel suggestion that this method of obtaining control of intangible property amounted to nothing more than the nonfederal misdemeanor of "coercion," see ante, at 9-10 (majority opinion); ante, at 1 (Ginsburg, J. concurring). Footnote 2 Congress corrected the Court's narrow reading of the mail fraud statute in McNally by passing 18 U. S. C. §1346, which overruled McNally. See, e.g., United States v. Bortnovsky, 879 F. 2d 30, 39 (CA2 1989) ("Section 1346 ... overrules McNally") Of course, Congress remains free to correct the Court's error in these cases as well.Footnote 3 See Freedom of Access to Clinic Entrances Act of 1994, 108 Stat. 694. Footnote 4 The concern expressed by Justice Ginsburg, ante, at 1, is misguided because an affirmance in these cases would not expand the coverage of the Racketeer Influenced and Corrupt Organizations Act but would preserve the Federal Government's ability to bring criminal prosecutions for violent conduct that was, until today, prohibited by the Hobbs Act.

During the course of petitioner's criminal trial, the chief prosecution witness (Newman) indicated on cross-examination that on certain dates he was interviewed by Government lawyers who took notes relating to Newman's forthcoming trial testimony, and that Newman verified the accuracy of the notes. Petitioner thereupon moved for production of the notes pursuant to the Jencks Act, 18 U.S.C. 3500, which provides that in a federal criminal prosecution after a witness called by the Government has testified on direct examination, the court on the defendant's motion shall order the Government to produce any "statement" in its possession that relates to the subject matter of the witness' testimony. In relevant part a "statement" is defined as "a written statement made by said witness and signed or otherwise adopted or approved by him." 3500 (e) (1). The trial judge denied petitioner's motion on the ground that the material was "the work product of counsel" and declined to inspect the material in camera. The Court of Appeals affirmed on the ground that the notes were not statements of the witness within the meaning of 3500 (e). Held: 1. Any writing prepared by a Government lawyer relating to the subject matter of the testimony of a Government witness that has been "signed or otherwise adopted or approved" by that witness is producible under the Jencks Act, and the writing is not rendered nonproducible because a Government lawyer interviewed the witness and wrote the statement. Pp. 101-108. (a) Nothing in the language or legislative history of the Jencks Act excepts as a lawyer's "work product" a statement within the definition of a producible statement. Pp. 101-102. (b) Nor is the Act limited to statements made to an investigative agency as distinguished from prosecutors preparing for trial. Though the Government's argument to the contrary is based on the asserted unfairness of allowing defense counsel to impeach a witness by a statement that is the product of the attorney's selections rather than his own, the writings are producible only if they meet the terms of the statutory definition; the Act itself protects witnesses from this unfairness; and it also safeguards the primary policy of the work-product doctrine by protecting the privacy of an attorney's mental processes. Pp. 102-106. (c) Production of statements within 3500 (e) (1) and written by Government lawyers will not force such lawyers to testify at trial. Moreover, there is a clearly legitimate purpose for the statutory disclosure, i. e., furtherance of "the fair and just administration of criminal justice," Campbell v. United States, . 92 (Campbell I); lawyers will not become witnesses, since statements are producible only where they can fairly be said to be the witness' own; and defense counsel will have no right to call Government lawyers to authenticate their notes. Pp. 106-107. 2. In the circumstances of this case, the Court of Appeals erred in making the initial determination that the writings in question were not producible statements. Campbell v. United States, (Campbell II). Pp. 108-111. (a) Newman's testimony was sufficient to call upon the trial judge to conduct an inquiry into the producibility of the material. Such an inquiry is now required to determine whether petitioner's Jencks Act motion should have been granted. Campbell I, supra, at 98-99. Pp. 108-110. (b) It is not necessary for this Court to vacate petitioner's conviction and order a new trial, since petitioner's rights can be fully protected by a remand to the trial court for an inquiry into the producibility of the material, the supplementing of the record with findings, and the availability of appellate review should the trial court decide that a new trial is not required. Pp. 110-111. Vacated and remanded.BRENNAN, J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, in which STEWART, J., joined, post, p. 112. POWELL, J., filed an opinion concurring in the judgment, in which BURGER, C. J., joined, post, p. 116.Donald C. Smaltz, by appointment of the Court, , argued the cause and filed briefs for petitioner.Paul L. Friedman argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Thornburgh, Deputy Solicitor General Frey, Sidney M. Glazer, and Marshall Tamor Golding.* [Footnote *] Frank Matthew Mangan filed a brief for the California Attorneys for Criminal Justice et al. as amici curiae urging reversal.MR. JUSTICE BRENNAN delivered the opinion of the Court.This case presents important questions of construction and administration of the Jencks Act, 18 U.S.C. 3500.1 That statute provides that in a federal criminal prosecution, after a witness called by the United States has testified on direct examination, the court, on motion of the defendant, shall order the United States to produce any "statement," as defined in the Act, in the possession of the United States that relates to the subject matter as to which the witness has testified. The definition of "statement" in 3500 (e) pertinent to this case is: "(1) a written statement made by said witness and signed or otherwise adopted or approved by him."At petitioner's trial in the District Court for the District of Arizona on charges of mail fraud in violation of 18 U.S.C. 1341, the trial judge sustained the Government's contention that certain writings of Government lawyers of conversations with the Government's key witness were "the work product of counsel," although the judge had not examined the writings. The Court of Appeals for the Ninth Circuit affirmed but on a different ground. In an unpublished memorandum opinion the Court of Appeals stated: "Apart from the question whether such notes were exempt from the Jencks Act ... as `work product,' they were not statements of the [witness] within the meaning of 3500 (e)."2 We granted certiorari limited to the Jencks Act question, .3 We hold that a writing prepared by a Government lawyer relating to the subject matter of the testimony of a Government witness that has been "signed or otherwise adopted or approved" by the Government witness is producible under the Jencks Act, and is not rendered nonproducible because a Government lawyer interviews the witness and writes the "statement." We hold further that in the circumstances of this case the Court of Appeals erred in determining in the first instance that the writings in question were not "statements." We therefore vacate the judgment of the Court of Appeals and remand the case to the District Court for further proceedings consistent with this opinion, following the procedure in Campbell v. United States, (Campbell I).IPetitioner, with Edwin S. Newman and three other codefendants, was charged in a multiple-count indictment with using the mails to defraud by means of a fraudulent scheme, which may be briefly summarized. The Financial Security Life Insurance Co., of which petitioner was president, issued single-premium annuities to various individuals; the policies purported to be fully prepaid and were used as collateral for loans. Promissory notes were accepted in lieu of the premiums, and interest on the notes was the only money paid to the company. Further, the policies were misrepresented as being free of liens or encumbrances. In fact, the policies were valueless. Petitioner concealed these facts from lenders who accepted the policies as collateral; indeed, the company refused payment of the proceeds of the policies to the lenders upon the ground of nonpayment of premiums. The three codefendants were charged with using the annuities as collateral to obtain loans. Petitioner used these "sales" of annuities to inflate the assets of the company on paper, intending eventually to sell the company.Of the five defendants, only petitioner and Newman worked for the company. Newman agreed to plead guilty to a single count of the indictment and to testify as a Government witness. Thereupon his case was severed prior to petitioner's trial.4 He was the key prosecution witness, revealing in great detail the operation of the fraudulent scheme and the transactions alleged in the indictment. Newman signed all of the correspondence with lenders, but testified that at all times he acted pursuant to instructions from petitioner. The Government's case against petitioner consisted primarily of Newman's testimony.Prior to the trial, which covered seven weeks starting May 22, 1973, the Government delivered to petitioner a copy of Newman's testimony before the grand jury, a memorandum of an interview with Newman conducted by a postal inspector over three years earlier, and a reporter's transcript of an interview with Newman conducted by two Government lawyers on May 11, 1973. The May 11 transcript indicated that the lawyers intended to conduct further interviews with Newman concerning other transactions. At the trial, on cross-examination on June 27, Newman disclosed that he had met with the lawyers on May 13, June 9 and 10, and part of each day from June 16 through June 27. Unlike the May 11 meeting, no reporter was present. Newman's forthcoming trial testimony was the subject of the discussion, but the notes of the interview were handwritten by the lawyers. Significantly, however, Newman testified, speaking of the May 13 interview:"Q. And as they took notes, did they sometimes question you about what you had just said to make sure that they got it down correctly?"A. They may have. I don't really remember that that was part of the pattern." And again, speaking of the June 9 and June 10 interviews, Newman testified:"Q. As you were explaining - or discussing your testimony, did anyone take notes?"A. The two gentlemen took notes."Q. Were they occasionally read back to you to see whether or not they correctly understood what you were saying?"A. Probably from time to time."Q. All right, sir. Did you either correct them or say, `Yes, that's right,' or `No, that's not right because it went this way, I believe,' words to that effect?"A. Yes, that would happen." Finally, he described this as the pattern followed at all remaining meetings with the lawyers.At this point petitioner moved, pursuant to 3500 (b), for an order directing the United States to deliver the notes to the defense. The trial judge, without waiting to hear from the Government, denied the motion on the ground that the material was "attorney's work product." Petitioner renewed the motion the following day, coupling the motion with a request that the Government be ordered to deliver the material for in camera inspection by the court. The motions were denied, but with leave to submit a memorandum in support of the motions. Petitioner's memorandum argued against the existence of a "work product" exception and renewed the request for an order directing delivery of the material for in camera inspection. Thereafter, the Government orally argued that the material in question was not producible as "the work product of counsel," and the judge again denied petitioner's motions. On appeal, the material, which totaled 237 pages and was not part of the District Court record, was lodged with the Court of Appeals.IIWe see nothing in the Jencks Act or its legislative history that excepts from production otherwise producible statements on the ground that they constitute "work product" of Government lawyers. It is not clear from its brief that the Government argues to the contrary;5 rather, the Government's principal contention seems to be that in any event the principles underlying the "work product" doctrine suggest a narrow construction of "statement" as not to include a lawyer's "work product" even though it fits the statutory definition of a producible statement. We reject the argument, since the plain language of the statute, fully buttressed by legislative history, allows no room for the tendered exception.The Government maintains that the Act can be read to include only statements given to a Government investigative or law enforcement agent during an investigation, and not those given to a Government trial attorney in preparation for trial. This contention rests in part on the original language of 3500 (a), which postponed discovery, until after a witness' direct examination, of statements of the witness made "to an agent of the Government."6 But nothing in the Act even remotely suggests that "an agent of the Government" excludes Government lawyers.7 In any event, 3500 (b) requires production of "any statement (as hereinafter defined) of the witness in the possession of the United States" without any limitation to statements made "to an agent of the Government." Section 3500 (e) (1) defines a producible statement as one "made by said witness and signed or otherwise adopted or approved by him" with no limitation that it be a statement made "to an agent of the Government."The Government also suggests that Congress enacted the Jencks Act to limit the scope of this Court's decision in Jencks v. United States, , and since Jencks involved statements to an investigative agency - the Federal Bureau of Investigation - Congress intended to require production only of statements of witnesses made to investigative agencies, not those given to prosecutors in preparation for trial.That the Act was not intended to limit the Jencks decision is apparent from its legislative history. Rather than limiting, the Act "reaffirms [Jencks] in its holding that a defendant on trial in a criminal prosecution is entitled to relevant and competent reports and statements in possession of the Government touching the events and activities as to which a Government witness has testified at the trial." S. Rep. No. 981, 85th Cong., 1st Sess., 3 (1957). See H. R. Rep. No. 700, 85th Cong., 1st Sess., 4 (1957); Campbell I, 365 U.S., at 92. Moreover, Congress was concerned, not with the Jencks decision itself, but with "misinterpretations and misunderstandings" in application of Jencks in district courts and courts of appeals. S. Rep. No. 981, supra, at 3-5, 7-12; H. R. Rep. No. 700, supra, at 2-3, 6. The concern was that misapplication of Jencks would permit defendants "to rove at will through Government files." S. Rep. No. 569, 85th Cong., 1st Sess., 3 (1957). See Palermo v. United States, . The House committee expressed its goal as that of preventing defendants from "rummag[ing] through confidential information containing matters of public interest, safety, welfare, and national security." H. R. Rep. No. 700, supra, at 4.8 The objective of preventing "rummaging" plainly adds no support to the argument that Congress meant that distinctions should be made based upon the occupation of the Government official to whom the witness gave the statement.9 The Government urges as a "primary reason" for adopting its construction that it is unfair to allow defense counsel to impeach a witness by using a statement that "could not fairly be said to be the witness' own rather than the product of the investigator's selections, interpretations and interpolations." Palermo v. United States, supra, at 350. The short answer to that argument is that writings must be produced only to the extent they are "statements" as defined; further, 3500 (c) expressly provides a procedure for excising any matter not relevant to the witness' direct testimony.For the same reasons, we see no merit in the Government's argument that, without an exception, disclosure of statements taken by Government lawyers may undermine the policies that gave rise to the work-product doctrine. See United States v. Nobles, (1975); Hickman v. Taylor, . Proper application of the Act will not compel disclosure of a Government lawyer's recordation of mental impressions, personal beliefs, trial strategy, legal conclusions, or anything else that "could not fairly be said to be the witness' own" statement. "If a government attorney has recorded only his own thoughts in his interview notes, the notes would seem both to come within the work product immunity and to fall without the statutory definition of a `statement.'" Saunders v. United StatesApp. D.C. 345, 349, 316 F.2d 346, 350 (1963) (Reed, J.).10 Furthermore, if a witness has for some reason "adopted or approved" a writing containing trial strategy or similar matter, such matter would be excised under 3500 (c) as not relating to the subject matter of the witness' testimony or direct examination. Thus, the primary policy underlying the work-product doctrine - i. e., protection of the privacy of an attorney's mental processes, United States v. Nobles, supra, at 238 - is adequately safeguarded by the Jencks Act itself.The Government contends that production of statements written by Government lawyers "forces the attorney to testify as to what he remembers or what he saw fit to write down regarding witness' remarks." Hickman v. Taylor, supra, at 513. Although the risk of such testimony supported approbation of the work-product doctrine in Hickman, the nature of the disclosure provided by the Jencks Act differs significantly. In Hickman the Court concluded that there was no showing of necessity strong enough to justify the requested disclosure: there was a danger of inaccuracy and untrustworthiness, there was "[n]o legitimate purpose," and use of the attorney's words for impeachment would have made the attorney a witness rather than an officer of the court. 329 U.S., at 512-513. First, although there is some risk that a witness' words will be distorted in notes taken by a Government lawyer, see Palermo v. United States, 360 U.S., at 352, there is no such danger where a witness has adopted or approved the lawyer's notes. Second, there is a clearly legitimate - and congressionally recognized - purpose for disclosure under the Jencks Act. The Act requires disclosure of all statements for use in impeaching witnesses and "is thus designed to further the fair and just administration of criminal justice." Campbell I, 365 U.S., at 92. Third, the lawyer is not called upon to be a witness, since statements are produced only where they can "fairly be said to be the witness' own." Finally, we cannot accept the Government's claims that defense counsel will have a right to call Government lawyers as witnesses to "authenticate" their notes.11 nor do we find realistic the Government's fear that a lawyer will "feel impelled" to take the stand.12 We therefore conclude that the District Court erred in holding that the work-product doctrine bars production of writings otherwise producible under the Jencks Act.13 IIIThe Court of Appeals erred in undertaking to make the initial determination whether the materials constituted producible "statements." If that function may ever be properly undertaken by a court of appeals, the Court of Appeals should not have attempted to make the determination in this case. Campbell v. United States, (Campbell II).We have recognized that a Government objection to production may require that the trial court inspect documents or hold a hearing to gather extrinsic evidence bearing on the extent to which the documents are statements producible under 3500.14 Campbell I, supra, at 92-93; Palermo v. United States, supra, at 354-355; cf. Campbell II, supra, at 493. In Campbell I the Court unanimously concluded that the trial judge was obliged to conduct some inquiry into the circumstances of the witness' interview there in question. 365 U.S., at 95; id., at 107-108 (Frankfurter, J., dissenting in part and concurring in result in part). The circumstances of this case compel the same conclusion. Newman's testimony raised a sufficient question under the Act to require the trial judge to conduct such an inquiry, and since we hold that the trial judge erred in exempting the material from production as attorneys' "work product," a remand for such an inquiry by the District Court is required to determine whether petitioner's motion should have been granted.15 The necessity for a hearing in the District Court is highlighted by developments since our grant of the petition for certiorari. The Solicitor General has discovered that 40 of the 237 pages of material are not notes of Government lawyers but handwritten statements of Newman himself.16 Petitioner contends that the failure of the Government to turn over those 40 pages constitutes error requiring reversal of his conviction without more.17 The Government, although conceding that these 40 pages contain "statements," argues that they nevertheless were not producible. The Government contends that Newman wrote the 40 pages after completing his direct testimony in order to aid the prosecution's cross-examination of a defense witness, and thus are not producible because not in existence at the time of petitioner's motion to produce,18 but the Government admits that these assertions are not based on facts in the record. Any inquiry regarding them is not for this Court but for the District Court on remand. The same is true of the claim that in any event the contents of the 40 pages deal largely, if not entirely, with matter other than Newman's direct testimony.As to the remainder of the 237 pages, there are other issues to be resolved on remand. For example, it will be necessary to determine whether the prosecutors' notes were actually read back to Newman and whether he adopted or approved them.19 In addition, the court may have to consider whether the notes were in existence at the time of petitioner's motion.20 We of course intimate no view whether production of any of the 237 pages of material was required in this case. That determination is to be made by the District Court. We therefore conclude that the proper disposition of this case is that of Campbell I, supra, at 98-99. Petitioner is entitled to a redetermination of his motion for the production of the 237 pages of material. But we do not think that this Court should vacate his conviction and order a new trial, since petitioner's rights can be fully protected by a remand to the trial court with direction to hold an inquiry consistent with this opinion. The District Court will supplement the record with findings and enter a new final judgment of conviction if the court concludes after the inquiry to reaffirm its denial of petitioner's motion. This procedure will preserve petitioner's opportunity to seek further appellate review on the augmented record. On the other hand, if the court concludes that the Government should have been required to deliver the material, or part of it, to petitioner, and that the error was not harmless,21 the District Court will vacate the judgment of conviction and accord petitioner a new trial.The judgment of the Court of Appeals is therefore vacated, and the case is remanded to the District Court for further proceedings consistent with this opinion. It is so ordered.

[ Funk Bros. Seed Co. v. Kalo Inoculant Co. ], 128] Mr. H. A. Toulmin, Jr., of Dayton, Ohio, for petitioner. Mr. J. Bernhard Thiess, of Chicago, Ill., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court. This is a patent infringement suit brought by respondent. The charge of infringement is limited to certain product claims1 of Patent No. 2,200, 532 issued to Bond on May 14, 1940. Petitioner filed a counterclaim asking for a declaratory judgment that the entire patent be adjudged invalid. 2 The District Court held the product claims invalid for want of invention and dismissed the complaint. It also dismissed the counterclaim. Both parties appealed. The Circuit Court of Appeals reversed, holding that the product claims were valid and infringed and that the counterclaim should not have been dismissed. 7 Cir., 161 F.2d 981. The question of validity is the only question presented by this petition for certiorari. Through some mysterious process leguminous plants are able to take nitrogen from the air and fix it in the plant for conversion to organic nitrogenous compounds. The ability of these plants to fix nitrogen from the air depends on the presence of bacteria of the genus Rhizo- , 129] bium which infect the roots of the plant and form nodules on them. These root-nodule bacteria of the genus Rhizobium fall into at least six species. No one species will infect the roots of all species of leguminous plants. But each will infect well-defined groups of those plants. 3 Each species of root-nodule bacteria is made up of distinct strains which vary in efficiency. Methods of selecting the strong strains and of producing a bacterial culture from them have long been known. The bacteria produced by the laboratory methods of culture are placed in a powder or liquid base and packaged for sale to and use by agriculturists in the inoculation of the seeds of leguminous plants. This also has long been well known. It was the general practice, prior to the Bond patent, to manufacture and sell inoculants containing only one species of root-nodule bacteria. The inoculant could therefore be used successfully only in plants of the particular cross-inoculation group corresponding to this species. Thus if a farmer had crops of clover, alfalfa, and soy beans he would have to use three separate inoculants. 4 There had been a few mixed cultures for field legumes. But they had proved generally unsatisfactory because the different species of the Rhizobia bacteria produced an inhibitory effect on each other when mixed in a common base, with the result that their efficiency , 130] was reduced. Hence it a d been assumed that the different species were mutually inhibitive. Bond discovered that there are strains of each species of root-nodule bacteria which do not exert a mutually inhibitive effect on each other. He also ascertained that those mutually non- inhibitive strains can, by certain methods of selection and testing, be isolated and used in mixed cultures. Thus he provided a mixed culture of Rhizobia capable of inoculating the seeds of plants belonging to several cross-inoculation groups. It is the product claims which disclose that mixed culture that the Circuit Court of Appeals had held valid. We do not have presented the question whether the methods of selecting and testing the non-inhibitive strains are patentable. We have here only product claims. Bond does not create state of inhibition or of non-inhibition in the bacteria. Their qualities are the work of nature. Those qualities are of course not patentable. For patents cannot issue for the discovery of the phenomena of nature. See Le Roy v. Tatham, 14 How. 156, 175. The qualities of these bacteria, like the heat of the sun, electricity, or the qualities of metals, are part of the storehouse of knowledge of all men. They are manifestations of laws of nature, free to all men and reserved exclusively to none. He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end. See Telephone Cases, , 533, 780, 781; De Forest Radio Co. v. General Electric Co., , 685, 568, 569; Mackay Radio & Tel. Co. v. Radio Corp., , 431; Cameron Septic Tank Co. v. Saratoga Springs, 2 Cir., 159 F. 453, 462, 463. The Circuit Court of Appeals thought that Bond did much more than discover a law of nature, since he made an new and different composition of non- , 131] inhibitive strains which contributed utility and economy to the manufacture and distribution of commercial inoculants. But we think that that aggregation of species fell short of invention within the meaning of the patent statutes. Discovery of the fact that certain strains of each species of these bacteria can be mixed without harmful effect to the properties of either is a discovery of their qualities of non-inhibition. It is no more than the discovery of some of the handiwork of nature and hence is not patentable. The aggregation of select strains of the several species into one product is an application of that newly-discovered natural principle. But however ingenious the discovery of that natural principle may have been, the application of it is hardly more than an advance in the packaging of the inoculants. Each of the species of root-nodule bacteria contained in the package infects the same group of leguminous plants which it always infected. No species acquires a different use. The combination of species produces no new bacteria, no change in the six species of bacteria, and no enlargement of the range of their utility. Each species has the same effect it always had. The bacteria perform in their natural way. Their use in combination does not improve in any way their natural functioning. They serve the ends nature originally provided and act quite independently of any effort of the patentee. There is, of course, an advantage in the combination. The farmer need not buy six different packages for six different crops. He can buy one package and use it for any or all of his crops of leguminous plants. And, as respondent says, the packages of mixed inoculants also hold advantages for the dealers and manufacturers by reducing inventory problems and the like. But a product must be more than new and useful to be patented; it must also satisfy the requirements of invention or dis- , 132] covery. Cuno Engineering Cor. v. Automatic Devices Corp., , 90, 91, 40, 41, and cases cited; 35 U.S.C. 31, 35 U.S.C.A. 31, R.S. 4886. The application of this newly-discovered natural principle to the problem of packaging of inoculants may well have been an important commercial advance. But once nature's secret of the non- inhibitive quality of certain strains of the species of Rhizobium was discovered, the state of the art made the production of a mixed inoculant a simple step. Even though it may have been the product of skill, it certainly was not the product of invention. There is no way in which we could call it such unless we borrowed invention from the discovery of the natural principle itself. That is to say, there is no invention here unless the discovery that certain strains of the several species of these bacteria are non-inhibitive and may thus be safely mixed is invention. But we cannot so hold without allowing a patent to issue on one of the ancient secrets of nature now disclosed. All that remains, therefore, are advantages of the mixed inoculants themselves. They are not enough. Since we conclude that the product claims do not disclose an invention or discovery within the meaning of the patent statutes, we do not consider whether the other statutory requirements contained in C. 31, 35 U.S.C.A. 31, R.S. 4886 are satisfied. Reversed. Mr. Justice FRANKFURTER, concurring. My understanding of Bond's contribution is that prior to his attempts, packages of mixed cultures of inoculants presumably applicable to two or more different kinds of legumes had from time to time been prepared, but had met with indifferent success. The reasons for failure were not understood, but the authorities had concluded that in general pure culture inoculants were alone reliable because mixtures were ineffective due to the mutual in- , 133] hibition of the combined strains of bacteria. Bond concluded that there might be special strains which lacked this mutual inhibition, or were at all events mutually compatible. Using techniques that had previously been developed to test efficiency in promoting introgen fixation of various bacterial strains, Bond tested such efficiency of various mixtures of strains. He confirmed his notion that some strains were mutually compatible by finding that mixtures of these compatible strains gave good nitrogen fixation in two or more different kinds of legumes, while other mixtures of certain other strains proved mutually incompatible. If this is a correct analysis of Bond's endeavors two different claims of originality are involved: (1) the idea that there are compatible strains, and (2) the experimental demonstration that there were in fact some compatible strains. Insofar as the court below concluded that the packaging of a particular mixture of compatible strains is an invention and as such patentable, I agree, provided not only that a new and useful property results from their combination, but also that the particular strains are identifiable and adequately identified. I do not find that Bond's combination of strains satisfies these requirements. The strains by which Bond secured compatibility are not identified and are identifiable only by their compatibility. Unless I misconceive the record, Bond makes no claim that Funk Brothers used the same combination of strains that he had found mutually compatible. He appears to claim that since he was the originator of the idea that there might be mutually compatible strains and had practically demonstrated that some such strains exist, everyone else is forbidden to use a combination of strains whether they are or are not identical with the combinations that Bond selected and packaged together. It was this claim that, as I understand it, the District Court , 134] found not to be patentable, but which, if valid, had been infringed. The Circuit Court of Appeals defined the claims to 'cover a composite culture in which are included a plurality of species of bactr ia belonging to the general Rhizobium genus, carried in a conventional base.' 7 Cir., 161 F.2d 981, 983. But the phrase 'the claims cover a composite culture' might mean 'a particular composite culture' or 'any composite culture.' The Circuit Court of Appeals seems to me to have proceeded on the assumption that only 'a particular composite culture' was devised and patented by Bond, and then applies it to 'any composite culture' arrived at by deletion of mutually inhibiting strains, but strains which may be quite different from Bond's composite culture. The consequences of such a conclusion call for its rejection. Its acceptance would require, for instance in the field of alloys, that if one discovered a particular mixture of metals, which when alloyed had some particular desirable properties, he could patent not merely this particular mixture but the idea of alloying metals for this purpose, and thus exclude everyone else from contriving some other combination of metals which, when alloyed, had the same desirable properties. In patenting an alloy, I assume that both the qualities of the product and its specific composition would need to be specified. The strains that Bond put together in the product which he patented can be specified only by the properties of the mixture. The District Court, while praising Bond's achievement, found want of patentability. The Circuit Court of Appeals reversed the judgment of the District Court by use of an undistributed middle-that the claims cover a 'composite culture'-in the syllogism whereby they found patentability. It only confuses the issue, however, to introduce such terms as 'the work of nature' and the 'laws of nature.' , 135] For these are vague and malleable terms infected with too much ambiguity and equivocation. Everything that happens may be deemed 'the work of nature,' and any patentable composite exemplifies in its properties 'the laws of nature.' Arguments drawn from such terms for ascertaining patentability could fairly be employed to challenge almost every patent. On the other hand, the suggestion that 'if there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end' may readily validate Bond's claim. Nor can it be contended that there was no invention because the composite has no new properties other than its ingredients in isolation. Bond's mixture does in fact have the new property of multi-service applicability. Multi-purpose tools, multivalent vaccines, vitamin complex composites, are examples of complexes whose sole new property is the conjunction of the properties of their components. Surely the Court does not mean unwittingly to pass on the patentability of such products by formulating criteria by which future issues of patentability may be prejudged. In finding Bond's patent invalid I have tried to avoid a formulation which, while it would in fact justify bond's patent, would lay the basis for denying patentability to a large area within existing patent legislation. Mr. Justice BURTON, with whom Mr. Justice JACKSON concurs, dissenting. On the grounds stated by the Circuit Court of Appeals the judgment should be affirmed. When the patentee discovered the existence of certain strains of bacteria which, when combined with certain other strains of bacteria, would infect two or more leguminous plants without loss of their respective nitrogen-fixing efficiencies, and utilized this discovery by segregating some of these mutually non-inhibitive strains and , 136] combining such strains into composite inoculants, we agree with Mr. Justice FRANKFURTER that the combinations so produced satisfied the statutory requirements of invention or discovery. 1 These products were a promt and substantial commercial success, filling a long-sought and important agricultural need. However, we do not agree that the patent issued for such products is invl id for want of a clear, concise description of how the combinations were made and used. The statutory requirement is that the inventor or discoverer-'shall file in the Patent Office a written description of the same, and of the manner and process of making, constructing, compounding, and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which it appertains, or with which it is most nearly connected, to make, construct, compound, and use the same; and in case of a machine, he shall explain the principle thereof, and the best mode in which he has contemplated applying that principle, so as to distinguish it from other inventions; and he shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery. * * * No plant patent shall be declared invalid on the ground of noncompliance with this section if the description is made as complete as is reasonably possible.'2 The completeness and character of the description must vary with the subject to be described. Machines lend themselves readily to descriptions in terms of mechanical , 137] principles and physical characteristics. On the other hand, it may be that a combination of strains of bacterial species, which strains are distinguished from one another and recognized in practice solely by their observed effects, can be definable reasonably only in terms of those effects. In the present case, the patentee has defined the combinations in terms of their mutually inhibiting and non-inhibiting effects upon their respective abilities to take free nitrogen from the air and place it in the soil. These combinations were discovered by observation of these effects-they are in practice identified by these effects for the commercial uses for which they are made. It is these effects that differentiate them from the other bacteria heretofore generally identified only as common members of the same species and not commercially valuable for use with leguminous plants of more than one of the groups named in the opinion of the Court. The identification of the strains stated in the patent is that which the patentee used in making the novel combinations of them that have been shown to be highly useful. There appears to be no question but that the petitioners are now able to identify and use the strains in the manner described in the patent. The record thus indicates that the description is sufficiently full, clear, concise and exact to enable persons skilled in the art or science to which this discovery appertains or with which it is most nearly connected to make, construct, compound and use the same. There is no suggestion as to how it would be reasonably possible to describe the patented product more completely. The patent covers all composite cultures of bacterial strains of the species described which do not inhibit each other's ability to fix nitrogen. Bacteriologists, skilled in the applicable art, will not have difficulty in selecting the non-inhibitive strains by employing such standard and recognized laboratory tests as are described in the application for this patent. , 138] The statute itself shows that Congress has recognized the inherent difficulty presented. While this patent may not be technically a 'plant patent' in the precise sense in which that term is used in this Section, the references in the Section to the differences in descriptions expected in mechanical patents and plant patents obviously support the position here taken. An inventor should not be denied a patent upon an otherwise patentable discovery merely because the nature of the discovery defies description in conventional terms. Terms ordinarily unsuitable to describe and distinguish products that are capable of description and distinction by their appearance may be the most appropriate in which to describe and distingus h other products that are not reasonably possible of identification by their appearance, but which are easily identified by their effects when being sought for or described by those skilled in the art.

Petitioner, a white male, was indicted on federal fraud charges. Prior to trial, he moved for dismissal of the indictment on the ground that there was discrimination in the grand jury selection process in violation of the Due Process Clause of the Fifth Amendment. At a hearing on the motion to dismiss, petitioner introduced testimony of a statistical social science consultant showing that for a 7-year period prior to petitioner's indictment none of the 15 grand juries empaneled had had a Negro or female foreman and that of the 15 deputy foremen appointed only 3 had been Negroes and 6 had been women. The District Court denied the motion to dismiss, and petitioner was convicted after a jury trial. The Court of Appeals affirmed.Held: Assuming that discrimination entered into the selection of grand jury foremen, such discrimination does not warrant reversal of petitioner's conviction and dismissal of the indictment against him. Pp. 342-350. (a) Discrimination in the selection of grand jury foremen - as distinguished from discrimination in the selection of the grand jury itself - does not in any sense threaten the interests of a defendant protected by the Due Process Clause. Unlike the grand jury itself, the office of grand jury foreman is not a creature of the Constitution, but, instead, was originally instituted by statute for the convenience of the court. The responsibilities of a federal grand jury foreman are essentially clerical in nature - administering oaths, maintaining records, and signing indictments. Given its ministerial nature, the role of foreman is not so significant to the administration of justice that discrimination in the selection of the foreman has any appreciable effect on the defendant's due process right to fundamental fairness. And so long as the composition of a federal grand jury as a whole serves the defendant's due process interest in assuring that the grand jury includes persons with a range of experiences and perspectives, discrimination in the selection of the foreman does not impinge such interest. Pp. 342-346. (b) An assumption that discrimination in the selection of a grand jury foreman requires the setting aside of a conviction is not warranted here where a white male is challenging on due process grounds the selection of the foreman of a federal grand jury. Rose v. Mitchell, , distinguished. Pp. 346-349. (c) This Court declines petitioner's invitation to embark, pursuant to its supervisory power over the federal courts, upon a course of vacating convictions because of discrimination in the selection of grand jury foremen. Pp. 349-350. 702 F.2d 466, affirmed.BURGER, C. J., delivered the opinion of the Court, in which WHITE, BLACKMUN, POWELL, REHNQUIST, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and STEVENS, JJ., joined, post, p. 350. STEVENS, J., filed a dissenting opinion, post, p. 362.Daniel H. Pollitt argued the cause and filed briefs for petitioner.Joshua I. Schwartz argued the cause for the United States. With him on the brief were Solicitor General Lee, Assistant Attorney General Trott, and Deputy Solicitor General Wallace.* [Footnote *] Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by William Van Alstyne, Sara Sun Beale, Burt Neuborne, and Charles S. Sims; and for the NAACP Legal Defense and Educational Fund, Inc., by Jack Greenberg, James M. Nabrit III, and Charles Stephen Ralston.CHIEF JUSTICE BURGER delivered the opinion of the Court.We granted certiorari to resolve a conflict among the Circuits as to whether discrimination in the selection of federal grand jury foremen, resulting in the underrepresentation of Negroes and women in that position, requires reversal of the conviction of a white male defendant and dismissal of the indictment against him.IPetitioner, a white male, was indicted on one count of conspiring to defraud the United States of funds appropriated under the Comprehensive Employment and Training Act of 1973, 29 U.S.C. 801 et seq. (CETA), in violation of 18 U.S.C. 371 and 665, and three counts of fraudulently obtaining and misapplying CETA grant funds, in violation of 18 U.S.C. 665. Prior to trial in the United States District Court for the Eastern District of North Carolina, petitioner moved for dismissal of the indictment against him "due to improper selection of grand jurors." App. 32. In particular, he alleged that the grand jury selection plan "exclude[d] citizens from service ... on account of race, color, economic status and occupation, in violation of ... the Fifth and Sixth Amendments of the United States Constitution." Id., at 33.At an evidentiary hearing on the motion to dismiss, petitioner introduced the testimony of a statistical social science consultant regarding the characteristics of the persons selected as grand jury foremen or deputy foremen in the Eastern District of North Carolina between 1974 and 1981. The expert witness reported that none of the 15 grand juries empaneled during this 7-year period had had a Negro or female foreman. Of the 15 deputies appointed during this interval, so this expert testified, 3 had been Negroes and 6 had been women. From these data the expert witness concluded that Negroes and women were underrepresented among grand jury foremen and deputy foremen serving in the Eastern District of North Carolina. Rejecting petitioner's claim of discrimination in the selection process, the District Court denied petitioner's motion to dismiss the indictment, and petitioner was convicted after a jury trial.The United States Court of Appeals for the Fourth Circuit affirmed. 702 F.2d 466 (1983). Reasoning that the foreman of a federal grand jury performs a strictly ministerial function, the Court of Appeals viewed the foreman's impact upon the justice system and the rights of criminal defendants as minimal and incidental at most. In response to petitioner's contention that appointment as foreman may enlarge an individual's capacity to influence the other grand jurors, the Court of Appeals concluded that this likelihood was too vague and speculative to warrant dismissals of indictments and reversal of convictions. The Court of Appeals recognized that in Rose v. Mitchell, , n. 4 (1979), this Court assumed without deciding that discrimination in the selection of the foreman of a state grand jury would require that a subsequent conviction be set aside. The Court of Appeals noted, however, that the function of the grand jury foreman in the federal system differs substantially from the role of the grand jury foreman in the states. The court concluded that the rights of defendants are fully protected by assuring that the composition of the federal grand jury as a whole is not the product of discriminatory selection.We granted certiorari to resolve a conflict among the Circuits on this issue,1 , and we affirm.IIAIt is well settled, of course, that purposeful discrimination against Negroes or women in the selection of federal grand jury foremen is forbidden by the Fifth Amendment to the Constitution. The question presented here, however, is the narrow one of the appropriate remedy for such a violation. It is only the narrow question of the remedy that we consider. No factual evidence was presented to the District Court on the issue of discrimination; instead, petitioner relied upon inferences to be drawn from the failure to select a woman or Negro as foreman of the grand jury for the seven years studied. As did the Court of Appeals, we proceed on the assumption that discrimination occurred in order to treat the constitutional issue presented by the motion to dismiss.Invoking the Due Process Clause of the Fifth Amendment, petitioner argues that discrimination in the selection of grand jury foremen requires the reversal of his conviction and dismissal of the indictment against him. In Peters v. Kiff, , the opinion announcing the judgment discussed the due process concerns implicated by racial discrimination in the composition of grand and petit juries as a whole. Emphasizing the defendant's due process right to be fairly tried by a competent and impartial tribunal, see In re Murchison, , the opinion reasoned that unconstitutionally discriminatory jury selection procedures create the appearance of institutional bias, because they "cast doubt on the integrity of the whole judicial process." 407 U.S., at 502. Moreover, the opinion perceived an important societal value in assuring diversity of representation on grand and petit juries:"When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented." Id., at 503-504 (footnote omitted).2 Discrimination in the selection of grand jury foremen - as distinguished from discrimination in the selection of the grand jury itself - does not in any sense threaten the interests of the defendant protected by the Due Process Clause. Unlike the grand jury itself, the office of grand jury foreman is not a creature of the Constitution; instead, the post of foreman was originally instituted by statute for the convenience of the court. See 28 U.S.C. 420 (1934 ed.); Rev. Stat. 809 (1878). Today, authority for the appointment of a grand jury foreman is found in Federal Rule of Criminal Procedure 6(c), which provides: "The court shall appoint one of the jurors to be foreman and another to be deputy foreman. The foreman shall have power to administer oaths and affirmations and shall sign all indictments. He or another juror designated by him shall keep a record of the number of jurors concurring in the finding of every indictment and shall file the record with the clerk of the court, but the record shall not be made public except on order of the court. During the absence of the foreman, the deputy foreman shall act as foreman." Rule 6(c) has somewhat ancient roots, cast as it is in what are now obsolete terms: foreman and deputy foreman. Centuries of usage, relating back to a day when women did not serve on juries, have embedded such terms in the law as in our daily vocabulary. However, it is not for us to amend the Rule outside the processes fixed by Congress for rulemaking; that is a task for the appropriate committees and the Judicial Conference of the United States.As Rule 6(c) illustrates, the responsibilities of a federal grand jury foreman are essentially clerical in nature: administering oaths, maintaining records, and signing indictments. The secrecy imperative in grand jury proceedings demands that someone "mind the store," just as a secretary or clerk would keep records of other sorts of proceedings. But the ministerial trappings of the post carry with them no special powers or duties that meaningfully affect the rights of persons that the grand jury charges with a crime, beyond those possessed by every member of that body. The foreman has no authority apart from that of the grand jury as a whole to act in a manner that determines or influences whether an individual is to be prosecuted. Even the foreman's duty to sign the indictment is a formality, for the absence of the foreman's signature is a mere technical irregularity that is not necessarily fatal to the indictment. Frisbie v. United States, .As the Court of Appeals noted, the impact of a federal grand jury foreman upon the criminal justice system and the rights of persons charged with crime is "minimal and incidental at best." 702 F.2d, at 471. Given the ministerial nature of the position, discrimination in the selection of one person from among the members of a properly constituted grand jury can have little, if indeed any, appreciable effect upon the defendant's due process right to fundamental fairness. Simply stated, the role of the foreman of a federal grand jury is not so significant to the administration of justice that discrimination in the appointment of that office impugns the fundamental fairness of the process itself so as to undermine the integrity of the indictment.Nor does discrimination in the appointment of grand jury foremen impair the defendant's due process interest in assuring that the grand jury includes persons with a range of experiences and perspectives. The due process concern that no "large and identifiable segment of the community [be] excluded from jury service," Peters v. Kiff, 407 U.S., at 503, does not arise when the alleged discrimination pertains only to the selection of a foreman from among the members of a properly constituted federal grand jury. That the grand jury in this case was so properly constituted is not questioned. No one person can possibly represent all the "qualities of human nature and varieties of human experience," ibid., that may be present in a given community. So long as the composition of the federal grand jury as a whole serves the representational due process values expressed in Peters, discrimination in the appointment of one member of the grand jury to serve as its foreman does not conflict with those interests.The ministerial role of the office of federal grand jury foreman is not such a vital one that discrimination in the appointment of an individual to that post significantly invades the distinctive interests of the defendant protected by the Due Process Clause. Absent an infringement of the fundamental right to fairness that violates due process, there is no basis upon which to reverse petitioner's conviction or dismiss the indictment.BPetitioner argues that the Court's decision in Rose v. Mitchell, , supports his position that discrimination in the selection of federal grand jury foremen warrants the reversal of his conviction and dismissal of the indictment against him. In Rose, two Negro defendants brought an equal protection challenge to the selection of grand jury foremen in Tennessee. The Court rejected the view that claims of grand jury discrimination should be considered harmless error when raised by a defendant who had been convicted by a properly constituted petit jury at an error-free trial on the merits, and adhered to the position that discrimination in the selection of the grand jury was a valid ground for setting aside a criminal conviction. Id., at 551-559. The Court then assumed "without deciding that discrimination with regard to the selection of only the foreman requires that a subsequent conviction be set aside, just as if the discrimination proved had tainted the selection of the entire grand jury venire." Id., at 551-552, n. 4 (emphasis added). The Court concluded, however, that the defendants were not entitled to have their convictions set aside because they had failed to make out a prima facie case of discrimination in violation of the Equal Protection Clause with regard to the selection of grand jury foremen. Id., at 564-574.Petitioner's reliance upon Rose is misplaced. Rose involved a claim brought by two Negro defendants under the Equal Protection Clause. As members of the class allegedly excluded from service as grand jury foremen, the Rose defendants had suffered the injuries of stigmatization and prejudice associated with racial discrimination. The Equal Protection Clause has long been held to provide a mechanism for the vindication of such claims in the context of challenges to grand and petit juries. See, e. g., Castaneda v. Partida, ; Hernandez v. Texas, ; Strauder v. West Virginia, . Petitioner, however, has alleged only that the exclusion of women and Negroes from the position of grand jury foreman violates his right to fundamental fairness under the Due Process Clause. As we have noted, discrimination in the selection of federal grand jury foremen cannot be said to have a significant impact upon the due process interests of criminal defendants. Thus, the nature of petitioner's alleged injury and the constitutional basis of his claim distinguish his circumstances from those of the defendants in Rose.Moreover, Rose must be read in light of the method used in Tennessee to select a grand jury and its foreman. Under that system, 12 members of the grand jury were selected at random by the jury commissioners from a list of qualified potential jurors. The foreman, however, was separately appointed by a judge from the general eligible population at large. The foreman then served as "`the thirteenth member of each grand jury organized during his term of office, having equal power and authority in all matters coming before the grand jury with the other members thereof.'" Rose v. Mitchell, supra, at 548, n. 2 (quoting Tenn. Code Ann. 40-1506 (Supp. 1978)). The foreman selection process in Rose therefore determined not only who would serve as presiding officer, but also who would serve as the 13th voting member of the grand jury. The result of discrimination in foreman selection under the Tennessee system was that 1 of the 13 grand jurors had been selected as a voting member in an impressible fashion. Under the federal system, by contrast, the foreman is chosen from among the members of the grand jury after they have been empaneled, see Fed. Rule Crim. Proc. 6(c); the federal foreman, unlike the foreman in Rose, cannot be viewed as the surrogate of the judge. So long as the grand jury itself is properly constituted, there is no risk that the appointment of any one of its members as foreman will distort the overall composition of the array or otherwise taint the operation of the judicial process.Finally, the role of the Tennessee grand jury foreman differs substantially from that of the foreman in the federal system. The Tennessee foreman had the following duties:"He or she is charged with the duty of assisting the district attorney in investigating crime, may order the issuance of subpoenas for witnesses before the grand jury, may administer oaths to grand jury witnesses, must endorse every bill returned by the grand jury, and must present any indictment to the court in the presence of the grand jury... . The absence of the foreman's endorsement makes an indictment `fatally defective.' Bird v. State, 103 Tenn. 343, 344, 52 S. W. 1076 (1899)." Rose v. Mitchell, supra, at 548, n. 2. The investigative and administrative powers and responsibilities conferred upon the grand jury foreman in Tennessee, who possessed virtual veto power over the indictment process, stand in sharp contrast to the ministerial powers of the federal counterpart, who performs strictly clerical tasks and whose signature on an indictment is a mere formality. Frisbie v. United States, ; see supra, at 344-345.Given the nature of the constitutional injury alleged in Rose, the peculiar manner in which the Tennessee grand jury selection operated, and the authority granted to the one who served as foreman, the Court assumed in Rose that discrimination with regard to the foreman's selection would require the setting aside of a subsequent conviction, "just as if the discrimination proved had tainted the selection of the entire grand jury venire." Rose v. Mitchell, 443 U.S., at 551-552, n. 4. No such assumption is appropriate here, however, in the very different context of a due process challenge by a white male to the selection of foremen of federal grand juries.IIIAt oral argument, petitioner eschewed primary reliance upon any particular constitutional provision and instead invoked this Court's supervisory power over the federal courts as a basis for the relief he seeks. Tr. of Oral Arg. 4-5, 7, 13-14. Only by setting aside his conviction and dismissing the indictment against him, petitioner urges, will this Court deter future purposeful exclusion of minorities and women from the post of federal grand jury foreman. It is true that this Court's "supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence." McNabb v. United States, . See United States v. Hasting, . However, we decline petitioner's invitation to embark upon the course of vacating criminal convictions because of discrimination in the selection of foremen. Less Draconian measures will suffice to rectify the problem.In no sense do we countenance a purposeful exclusion of minorities or women from appointment as foremen of federal grand juries. We are fully satisfied that the district judges charged with the appointment of grand jury foremen will see to it that no citizen is excluded from consideration for service in that position on account of race, color, religion, sex, national origin, or economic status. Cf. 28 U.S.C. 1862.IVWe hold that, assuming discrimination entered into the selection of federal grand jury foremen, such discrimination does not warrant the reversal of the conviction of, and dismissal of the indictment against, a white male bringing a claim under the Due Process Clause. Accordingly, the judgment of the United States Court of Appeals for the Fourth Circuit is Affirmed.

Two police officers, while cruising near noon in a patrol car, observed appellant and another man walking away from one another in an alley in an area with a high incidence of drug traffic. They stopped and asked appellant to identify himself and explain what he was doing. One officer testified that he stopped appellant because the situation "looked suspicious and we had never seen that subject in that area before." The officers did not claim to suspect appellant of any specific misconduct, nor did they have any reason to believe that he was armed. When appellant refused to identify himself, he was arrested for violation of a Texas statute which makes it a criminal act for a person to refuse to give his name and address to an officer "who has lawfully stopped him and requested the information." Appellant's motion to set aside an information charging him with violation of the statute on the ground that the statute violated the First, Fourth, Fifth, and Fourteenth Amendments was denied, and he was convicted and fined.Held: The application of the Texas statute to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe that appellant was engaged or had engaged in criminal conduct. Detaining appellant to require him to identify himself constituted a seizure of his person subject to the requirement of the Fourth Amendment that the seizure be "reasonable." Cf. Terry v. Ohio, ; United States v. Brignoni-Ponce, . The Fourth Amendment requires that such a seizure be based on specific, objective facts indicating that society's legitimate interests require such action, or that the seizure be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Delaware v. Prouse, . Here, the State does not contend that appellant was stopped pursuant to a practice embodying neutral criteria, and the officers' actions were not justified on the ground that they had a reasonable suspicion, based on objective facts, that he was involved in criminal activity. Absent any basis for suspecting appellant of misconduct, the balance between the public interest in crime prevention and appellant's right to personal security and privacy tilts in favor of freedom from police interference. Pp. 50-53. Reversed.BURGER, C. J., delivered the opinion for a unanimous Court.Raymond C. Caballero argued the cause and filed a brief for appellant.Renea Hicks, Assistant Attorney General of Texas, argued the cause for appellee pro hac vice. With him on the brief were Mark White, Attorney General, John W. Fainter, Jr., First Assistant Attorney General, and Ted L. Hartley, Executive Assistant Attorney General.* [Footnote *] Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Daniel J. Kremer, Assistant Attorney General, and Karl Phaler, Deputy Attorney General, filed a brief for the State of California as amicus curiae.MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.This appeal presents the question whether appellant was validly convicted for refusing to comply with a policeman's demand that he identify himself pursuant to a provision of the Texas Penal Code which makes it a crime to refuse such identification on request.IAt 12:45 in the afternoon of December 9, 1977, Officers Venegas and Sotelo of the El Paso Police Department were cruising in a patrol car. They observed appellant and another man walking in opposite directions away from one another in an alley. Although the two men were a few feet apart when they first were seen, Officer Venegas later testified that both officers believed the two had been together or were about to meet until the patrol car appeared.The car entered the alley, and Officer Venegas got out and asked appellant to identify himself and explain what he was doing there. The other man was not questioned or detained. The officer testified that he stopped appellant because the situation "looked suspicious and we had never seen that subject in that area before." The area of El Paso where appellant was stopped has a high incidence of drug traffic. However, the officers did not claim to suspect appellant of any specific misconduct, nor did they have any reason to believe that he was armed.Appellant refused to identify himself and angrily asserted that the officers had no right to stop him. Officer Venegas replied that he was in a "high drug problem area"; Officer Sotelo then "frisked" appellant, but found nothing.When appellant continued to refuse to identify himself, he was arrested for violation of Tex. Penal Code Ann., Tit. 8, 38.02 (a) (1974), which makes it a criminal act for a person to refuse to give his name and address to an officer "who has lawfully stopped him and requested the information."1 Following the arrest the officers searched appellant; nothing untoward was found.While being taken to the El Paso County Jail appellant identified himself. Nonetheless, he was held in custody and charged with violating 38.02 (a). When he was booked he was routinely searched a third time. Appellant was convicted in the El Paso Municipal Court and fined $20 plus court costs for violation of 38.02. He then exercised his right under Texas law to a trial de novo in the El Paso County Court. There, he moved to set aside the information on the ground that 38.02 (a) of the Texas Penal Code violated the First, Fourth, and Fifth Amendments and was unconstitutionally vague in violation of the Fourteenth Amendment. The motion was denied. Appellant waived a jury, and the court convicted him and imposed a fine of $45 plus court costs.Under Texas law an appeal from an inferior court to a county court is subject to further review only if a fine exceeding $100 is imposed. Tex. Code Crim. Proc. Ann., Art. 4.03 (Vernon 1977). Accordingly, the County Court's rejection of appellant's constitutional claims was a decision "by the highest court of a State in which a decision could be had." 28 U.S.C. 1257 (2). On appeal here we noted probable jurisdiction. . We reverse.IIWhen the officers detained appellant for the purpose of requiring him to identify himself, they performed a seizure of his person subject to the requirements of the Fourth Amendment. In convicting appellant, the County Court necessarily found as a matter of fact that the officers "lawfully stopped" appellant. See Tex. Penal Code Ann., Tit. 8, 38.02 (1974). The Fourth Amendment, of course, "applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrest. Davis v. Mississippi, ; Terry v. Ohio, . `[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has "seized" that person,' id., at 16, and the Fourth Amendment requires that the seizure be `reasonable.'" United States v. Brignoni-Ponce, .The reasonableness of seizures that are less intrusive than a traditional arrest, see Dunaway v. New York, ; Terry v. Ohio, , depends "on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers." Pennsylvania v. Mimms, ; United States v. Brignoni-Ponce, supra, at 878. Consideration of the constitutionality of such seizures involves a weighing of the gravity of the public concerns served by the seizure, the degree to which the seizure advances the public interest, and the severity of the interference with individual liberty. See, e. g., 422 U.S., at 878-883.A central concern in balancing these competing considerations in a variety of settings has been to assure that an individual's reasonable expectation of privacy is not subject to arbitrary invasions solely at the unfettered discretion of officers in the field. See Delaware v. Prouse, ; United States v. Brignoni-Ponce, supra, at 882. To this end, the Fourth Amendment requires that a seizure must be based on specific, objective facts indicating that society's legitimate interests require the seizure of the particular individual, or that the seizure must be carried out pursuant to a plan embodying explicit, neutral limitations on the conduct of individual officers. Delaware v. Prouse, supra, at 663. See United States v. Martinez-Fuerte, .The State does not contend that appellant was stopped pursuant to a practice embodying neutral criteria, but rather maintains that the officers were justified in stopping appellant because they had a "reasonable, articulable suspicion that a crime had just been, was being, or was about to be committed." We have recognized that in some circumstances an officer may detain a suspect briefly for questioning although he does not have "probable cause" to believe that the suspect is involved in criminal activity, as is required for a traditional arrest. United States v. Brignoni-Ponce, supra, at 880-881. See Terry v. Ohio, supra, at 25-26. However, we have required the officers to have a reasonable suspicion, based on objective facts, that the individual is involved in criminal activity. Delaware v. Prouse, supra, at 663; United States v. Brignoni-Ponce, supra, at 882-883; see also Lanzetta v. New Jersey, .The flaw in the State's case is that none of the circumstances preceding the officers' detention of appellant justified a reasonable suspicion that he was involved in criminal conduct. Officer Venegas testified at appellant's trial that the situation in the alley "looked suspicious," but he was unable to point to any facts supporting that conclusion.2 There is no indication in the record that it was unusual for people to be in the alley. The fact that appellant was in a neighborhood frequented by drug users, standing alone, is not a basis for concluding that appellant himself was engaged in criminal conduct. In short, the appellant's activity was no different from the activity of other pedestrians in that neighborhood. When pressed, Officer Venegas acknowledged that the only reason he stopped appellant was to ascertain his identity. The record suggests an understandable desire to assert a police presence; however, that purpose does not negate Fourth Amendment guarantees.In the absence of any basis for suspecting appellant of misconduct, the balance between the public interest and appellant's right to personal security and privacy tilts in favor of freedom from police interference. The Texas statute under which appellant was stopped and required to identify himself is designed to advance a weighty social objective in large metropolitan centers: prevention of crime. But even assuming that purpose is served to some degree by stopping and demanding identification from an individual without any specific basis for believing he is involved in criminal activity, the guarantees of the Fourth Amendment do not allow it. When such a stop is not based on objective criteria, the risk of arbitrary and abusive police practices exceeds tolerable limits. See Delaware v. Prouse, supra, at 661. The application of Tex. Penal Code Ann., Tit. 8, 38.02 (1974), to detain appellant and require him to identify himself violated the Fourth Amendment because the officers lacked any reasonable suspicion to believe appellant was engaged or had engaged in criminal conduct.3 Accordingly, appellant may not be punished for refusing to identify himself, and the conviction is Reversed. APPENDIX TO OPINION OF THE COURT"THE COURT: ... What do you think about if you stop a person lawfully, and then if he doesn't want to talk to you, you put him in jail for committing a crime."MR. PATTON [Prosecutor]: Well first of all, I would question the Defendant's statement in his motion that the First Amendment gives an individual the right to silence."THE COURT: ... I'm asking you why should the State put you in jail because you don't want to say anything."MR. PATTON: Well, I think there's certain interests that have to be viewed."THE COURT: Okay, I'd like you to tell me what those are."MR. PATTON: Well, the Governmental interest to maintain the safety and security of the society and the citizens to live in the society, and there are certainly strong Governmental interests in that direction and because of that, these interests outweigh the interests of an individual for a certain amount of intrusion upon his personal liberty. I think these Governmental interests outweigh the individual's interests in this respect, as far as simply asking an individual for his name and address under the proper circumstances."THE COURT: But why should it be a crime to not answer?"MR. PATTON: Again, I can only contend that if an answer is not given, it tends to disrupt."THE COURT: What does it disrupt?"MR. PATTON: I think it tends to disrupt the goal of this society to maintain security over its citizens to make sure they are secure in their gains and their homes."THE COURT: How does that secure anybody by forcing them, under penalty of being prosecuted, to giving their name and address, even though they are lawfully stopped?"MR. PATTON: Well I, you know, under the circumstances in which some individuals would be lawfully stopped, it's presumed that perhaps this individual is up to something, and the officer is doing his duty simply to find out the individual's name and address, and to determine what exactly is going on."THE COURT: I'm not questioning, I'm not asking whether the officer shouldn't ask questions. I'm sure they should ask everything they possibly could find out. What I'm asking is what's the State's interest in putting a man in jail because he doesn't want to answer something. I realize lots of times an officer will give a defendant a Miranda warning which means a defendant doesn't have to make a statement. Lots of defendants go ahead and confess, which is fine if they want to do that. But if they don't confess, you can't put them in jail, can you, for refusing to confess to a crime?" App. 15-17 (emphasis added).

The Civil Rights Act of 1957 created in the Executive Branch of the Government a Commission on Civil Rights to investigate written, sworn allegations that persons have been discriminatorily deprived of their right to vote on account of their color, race, religion or national origin, to study and collect information "concerning legal developments constituting a denial of equal protection of the laws," and to report to the President and Congress. The Commission is authorized to subpoena witnesses and documents and to conduct hearings. The Act prescribes certain rules of procedure; but nothing in the Act requires the Commission to afford persons accused of discrimination the right to be apprised as to the specific charges against them or as to the identity of their accusers, or the right to confront and cross-examine witnesses appearing at Commission hearings; and the Commission prescribed supplementary rules of procedure which deny such rights in hearings conducted by it. Held: 1. In the light of the legislative history of the Act, the Commission was authorized by Congress to adopt such rules of procedure. Pp. 430-439. 2. Since the Commission makes no adjudications but acts solely as an investigative and fact-finding agency, these rules of procedure do not violate the Due Process Clause of the Fifth Amendment. Morgan v. United States, ; Joint Anti-Fascist Refugee Committee v. McGrath, ; Greene v. McElroy, , distinguished. Pp. 440-452. 3. Such rules of procedure do not violate the Sixth Amendment, since that Amendment is specifically limited to "criminal prosecution," and the proceedings of the Commission do not fall in that category. P. 440, n. 16. 4. The Civil Rights Act of 1957 is appropriate legislation under the Fifteenth Amendment. P. 452. 5. Section 7 of the Administrative Procedure Act is not applicable to hearings conducted by this Commission. Pp. 452-453. 177 F. Supp. 816, reversed.[Footnote *] Together with No. 550, Hannah et al. v. Slawson et al., on petition for writ of certiorari to the United States Court of Appeals for the Fifth Circuit.Deputy Attorney General Walsh argued the causes for appellants in No. 549 and petitioners in No. 550. On the brief were Solicitor General Rankin, Acting Assistant Attorney General Ryan, Philip Elman, Harold H. Greene and David Rubin.Jack P. F. Gremillion, Attorney General of Louisiana, argued the cause for appellees in No. 549. With him on the brief were George M. Ponder, First Assistant Attorney General, and Albin P. Lassiter.W. M. Shaw argued the cause and filed a brief for respondents in No. 550.MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.These cases involve the validity of certain Rules of Procedure adopted by the Commission on Civil Rights. which was established by Congress in 1957.1 Civil Rights Act of 1957, 71 Stat. 634, 42 U.S.C. 1975-1975e. They arise out of the Commission's investigation of alleged Negro voting deprivations in the State of Louisiana. The appellees in No. 549 are registrars of voters in the State of Louisiana, and the respondents in No. 550 are private citizens of Louisiana.2 After having been summoned to appear before a hearing which the Commission proposed to conduct in Shreveport, Louisiana, these registrars and private citizens requested the United States District Court for the Western District of Louisiana to enjoin the Commission from holding its anticipated hearing. It was alleged, among other things, that the Commission's Rules of Procedure governing the conduct of its investigations were unconstitutional. The specific rules challenged are those which provide that the identity of persons submitting complaints to the Commission need not be disclosed, and that those summoned to testify before the Commission, including persons against whom complaints have been filed, may not cross-examine other witnesses called by the Commission. The District Court held that the Commission was not authorized to adopt the Rules of Procedure here in question, and therefore issued an injunction which prohibits the Commission from holding any hearings in the Western District of Louisiana as long as the challenged procedures remain in force. The Commission requested this Court to review the District Court's decision.3 We granted the Commission's motion to advance the cases, and oral argument was accordingly scheduled on the jurisdiction on appeal in No. 549, on the petition for certiorari in No. 550, and on the merits of both cases.Having heard oral argument as scheduled, we now take jurisdiction in No. 549 and grant certiorari in No. 550. The specific questions which we must decide are (1) whether the Commission was authorized by Congress to adopt the Rules of Procedure challenged by the respondents, and (2) if so, whether those procedures violate the Due Process Clause of the Fifth Amendment.A description of the events leading up to this litigation is necessary not only to place the legal questions in their proper factual context, but also to indicate the significance of the Commission's proposed Shreveport hearing. During the months prior to its decision to convene the hearing, the Commission had received some sixty-seven complaints from individual Negroes who alleged that they had been discriminatorily deprived of their right to vote. Based upon these complaints, and pursuant to its statutory mandate to "investigate allegations in writing under oath or affirmation that certain citizens of the United States are being deprived of their right to vote and have that vote counted by reason of their color, race, religion, or national origin,"4 the Commission began its investigation into the Louisiana voting situation by making several ex parte attempts to acquire information. Thus, in March 1959, a member of the Commission's staff interviewed the Voting Registrars of Claiborne, Caddo, and Webster Parishes, but obtained little relevant information. During one of these interviews the staff member is alleged to have informed Mrs. Lannie Linton, the Registrar of Claiborne Parish, that the Commission had on file four sworn statements charging her with depriving Negroes of their voting rights solely because of their race. Subsequent to this interview, Mr. W. M. Shaw, Mrs. Linton's personal attorney, wrote a letter to Mr. Gordon M. Tiffany, the Staff Director of the Commission, in which it was asserted that Mrs. Linton knew the sworn complaints lodged against her to be false. The letter also indicated that Mrs. Linton wished to prefer perjury charges against the affiants, and Mr. Shaw therefore demanded that the Commission forward to him copies of the affidavits so that a proper presentment could be made to the grand jury. On April 14, 1959, Mr. Tiffany replied to Mr. Shaw's letter and indicated that the Commission had denied the request for copies of the sworn affidavits. Mr. Shaw was also informed of the following official statement adopted by the Commission: "The Commission from its first meeting forward, having considered all complaints submitted to it as confidential because such confidentiality is essential in carrying out the statutory duties of the Commission, the Staff Director is hereby instructed not to disclose the names of complainants or other information contained in complaints to anyone except members of the Commission and members of the staff assigned to process, study, or investigate such complaints." A copy of Mr. Tiffany's letter was sent to Mr. Jack P. F. Gremillion, the Attorney General of Louisiana, who had previously informed the Commission that under Louisiana law the Attorney General is the legal adviser for all voting registrars in any hearing or investigation before a federal commission.Another attempt to obtain information occurred on May 13, 1959, when Mr. Tiffany, upon Commission authorization, sent a list of 315 written interrogatories to Mr. Gremillion. These interrogatories requested very detailed and specific information, and were to be answered by the voting registrars of nineteen Louisiana parishes. Although Mr. Gremillion and the Governor of Louisiana had previously assented to the idea of written interrogatories, on May 28, 1959, Mr. Gremillion sent a letter to Mr. Tiffany indicating that the voting registrars refused to answer the interrogatories. The reasons given for the refusal were that many of the questions seemed unrelated to the functions of voting registrars, that the questions were neither accompanied by specific complaints nor related to specific complaints, and that the time and research required to answer the questions placed an unreasonable burden upon the voting registrars.In response to this refusal, on May 29, 1959, Mr. Tiffany sent a telegram to Mr. Gremillion, informing the latter that the interrogatories were based upon specific allegations received by the Commission, and reaffirming the Commission's position that the identity of specific complainants would not be disclosed. Mr. Tiffany's letter contained a further request that the interrogatories be answered and sent to the Commission by June 5, 1959. On June 2, 1959, Mr. Gremillion wrote a letter to Mr. Tiffany reiterating the registrars' refusal, and again requesting that the names of complainants be disclosed.Finally, as a result of this exchange of correspondence, and because the Commission's attempts to obtain information ex parte had been frustrated, the Commission, acting pursuant to Section 105 (f) of the Civil Rights Act of 1957,5 decided to hold the Shreveport hearing commencing on July 13, 1959. Notice of the scheduled hearing was sent to Mr. Gremillion, and between June 29 and July 6, subpoenas duces tecum were served on the respondents in No. 549, ordering them to appear at the hearing and to bring with them various voting and registration records within their custody and control. Subpoenas were also served upon the respondents in No. 550. These private citizens were apparently summoned to explain their activities with regard to alleged deprivations of Negro voting rights.6 On July 8, 1959, Mr. Tiffany wrote to Mr. Gremillion, enclosing copies of the Civil Rights Act and of the Commission's Rules of Procedure.7 Mr. Gremillion's attention was also drawn to Section 102 (h) of the Civil Rights Act, which permits witnesses to submit, subject to the discretion of the Commission, brief and pertinent sworn statements for inclusion in the record.8 Two days later, on July 10, 1959, the respondents in No. 549 and No. 550 filed two separate complaints in the District Court for the Western District of Louisiana. Both complaints alleged that the respondents would suffer irreparable harm by virtue of the Commission's refusal to furnish the names of persons who had filed allegations of voting deprivations, as well as the contents of the allegations, and by its further refusal to permit the respondents to confront and cross-examine the persons making such allegations. In addition, both complaints alleged that the Commission's refusals not only violated numerous provisions of the Federal Constitution, but also constituted "ultra vires" acts not authorized either by Congress or the Chief Executive. The respondents in No. 549 also alleged that they could not comply with the subpoenas duces tecum because Louisiana law prohibited voting registrars from removing their voting records except "upon an order of a competent court," and because the Commission was not such a "court." Finally, the complaint in No. 549 alleged that the Civil Rights Act was unconstitutional because it did not constitute "appropriate legislation within the meaning of Section (2) of the XV Amendment."Both complaints sought a temporary restraining order and a permanent injunction prohibiting the members of the Commission (a) from compelling the "testimony from or the production of any records" by the respondents until copies of the sworn charges, together with the names and addresses of the persons filing such charges were given to the respondents;9 (b) from "conducting any hearing pursuant to the rules and regulations adopted by" the Commission; and (c) from "conspiring together ... or with any other person ... to deny complainants their rights and privileges as citizens" of Louisiana or the United States "or to deny to complainants their right to be confronted by their accusers, to know the nature and character of the charges made against them," and to be represented by counsel. The complaint in No. 549 also sought a declaratory judgment that the Civil Rights Act of 1957 was unconstitutional.On the day that the complaints were filed, the district judge held a combined hearing on the prayers for temporary restraining orders. On July 12, 1959, he found that the respondents would suffer irreparable harm if the hearings were held as scheduled, and he therefore issued the requested temporary restraining orders and rules to show cause why a preliminary injunction should not be granted. Larche v. Hannah, 176 F. Supp. 791. The order prohibited the Commission from holding any hearings which concerned the respondents or others similarly situated until a determination was made on the motion for a preliminary injunction.Inasmuch as the complaint in No. 549 attacked the constitutionality of the Civil Rights Act, a three-judge court was convened pursuant to 28 U.S.C. 2282. Since the complaint in No. 550 did not challenge the constitutionality of the Civil Rights Act of 1957, that case was scheduled to be heard by a single district judge. That district judge was also a member of the three-judge panel in No. 549, and a combined hearing was therefore held on both cases on August 7, 1959.On October 7, 1959, a divided three-judge District Court filed an opinion in No. 549. Larche v. Hannah, 177 F. Supp. 816. The court held that the Civil Rights Act of 1957 was constitutional since it "very definitely constitutes appropriate legislation" authorized by the Fourteenth and Fifteenth Amendments and Article I, Section 2, of the Federal Constitution. Id., at 821. The court then held that since the respondents' allegations with regard to apprisal, confrontation, and cross-examination raised a "serious constitutional issue," this Court's decision in Greene v. McElroy, , required a preliminary determination as to whether Congress specifically authorized the Commission "to adopt rules for investigations ... which would deprive parties investigated of their rights of confrontation and cross-examination and their right to be apprised of the charges against them." 177 F. Supp., at 822. The court found that Congress had not so authorized the Commission, and an injunction was therefore issued. In deciding the case on the issue of authorization, the court never reached the "serious constitutional issue" raised by the respondents' allegations.10 The injunction prohibits the Commission from holding any hearing in the Western District of Louisiana wherein the registrars, "accused of depriving others of the right to vote, would be denied the right of apprisal, confrontation, and cross examination."11 The single district judge rendered a decision in No. 550 incorporating by reference the opinion of the three-judge District Court, and an injunction, identical in substance to that entered in No. 549, was issued.I.We held last Term in Greene v. McElroy, supra, that when action taken by an inferior governmental agency was accomplished by procedures which raise serious constitutional questions, an initial inquiry will be made to determine whether or not "the President or Congress, within their respective constitutional powers, specifically has decided that the imposed procedures are necessary and warranted and has authorized their use." Id., at 507. The considerations which prompted us in Greene to analyze the question of authorization before reaching the constitutional issues presented are no less pertinent in this case. Obviously, if the Civil Rights Commission was not authorized to adopt the procedures complained of by the respondents, the case could be disposed of without a premature determination of serious constitutional questions. See Vitarelli v. Seaton, ; Kent v. Dulles, ; Watkins v. United States, ; Peters v. Hobby, .We therefore consider first the question of authorization. As indicated above, the Commission specifically refused to disclose to the respondents the identity of persons who had submitted sworn complaints to the Commission and the specific charges contained in those complaints. Moreover, the respondents were informed by the Commission that they would not be permitted to cross-examine any witnesses at the hearing. The respondents contend, and the court below held, that Congress did not authorize the adoption of procedural rules which would deprive those being investigated by the Commission of the rights to apprisal, confrontation, and cross-examination. The court's holding is best summarized by the following language from its opinion:"[W]e find nothing in the Act which expressly authorizes or permits the Commission's refusal to inform persons, under investigation for criminal conduct, of the nature, cause and source of the accusations against them, and there is nothing in the Act authorizing the Commission to deprive these persons of the right of confrontation and cross-examination." 177 F. Supp., at 822. After thoroughly analyzing the Rules of Procedure contained in the Civil Rights Act of 1957 and the legislative history which led to the adoption of that Act, we are of the opinion that the court below erred in its conclusion and that Congress did authorize the Commission to adopt the procedures here in question.It could not be said that Congress ignored the procedures which the Commission was to follow in conducting its hearings. Section 102 of the Civil Rights Act of 1957 lists a number of procedural rights intended to safeguard witnesses from potential abuses. Briefly summarized, the relevant subdivisions of Section 102 provide that the Chairman shall make an opening statement as to the subject of the hearing; that a copy of the Commission's rules shall be made available to witnesses; that witnesses "may be accompanied by their own counsel for the purpose of advising them concerning their constitutional rights"; that potentially defamatory, degrading, or incriminating testimony shall be received in executive session, and that any person defamed, degraded, or incriminated by such testimony shall have an opportunity to appear voluntarily as a witness and to request the Commission to subpoena additional witnesses; that testimony taken in executive session shall be released only upon the consent of the Commission; and that witnesses may submit brief and pertinent sworn statements in writing for inclusion in the record.12 The absence of any reference to apprisal, confrontation, and cross-examination, in addition to the fact that counsel's role is specifically limited to advising witnesses of their constitutional rights, creates a presumption that Congress did not intend witnesses appearing before the Commission to have the rights claimed by respondents. This initial presumption is strengthened beyond any reasonable doubt by an investigation of the legislative history of the Act.The complete story of the 1957 Act begins with the 1956 House Civil Rights Bill, H. R. 627. That bill was reported out of the House Judiciary Committee without any reference to the procedures to be used by the Commission in conducting its hearings. H. R. Rep. No. 2187, 84th Cong., 2d Sess. During the floor debate, Representative Dies of Texas introduced extensive amendments designed to regulate the procedure of Commission hearings. 102 Cong. Rec. 13542. Those amendments would have guaranteed to witnesses appearing before the Commission all of the rights claimed by the respondents in these cases. The amendments provided, in pertinent part, that a person who might be adversely affected by the testimony of another "shall be fully advised by the Commission as to the matters into which the Commission proposes to inquire and the adverse material which is proposed to be presented"; that a person adversely affected by evidence or testimony given at a public hearing could "appear and testify or file a sworn statement in his own behalf"; that such a person could also "have the adverse witness recalled" within a stated time; and that he or his counsel could cross-examine adverse witnesses.13 The bill, as finally passed by the House, contained all of the amendments proposed by Representative Dies. 102 Cong. Rec. 13998-13999. However, before further action could be taken, the bill died in the Senate. Although many proposals relating to civil rights were introduced in the 1957 Session of Congress, two bills became the prominent contenders for support. One was S. 83, a bill introduced by Senator Dirksen containing the same procedural provisions that the amended House bill in 1956 had contained. The other bill, H. R. 6127, was introduced by Representative Celler, Chairman of the House Judiciary Committee, and this bill incorporated the so-called House "fair play" rules as the procedures which should govern the conduct of Commission hearings.14 After extensive debate and hearings, H. R. 6127 was finally passed by both Houses of Congress, and the House "fair play" rules, which make no provision for advance notice, confrontation, or cross-examination, were adopted in preference to the more protective rules suggested in S. 83.15 The legislative background of the Civil Rights Act not only provides evidence of congressional authorization, but it also distinguishes these cases from Greene v. McElroy, supra, upon which the court below relied so heavily. In Greene there was no express authorization by Congress or the President for the Department of Defense to adopt the type of security clearance program there involved. Nor was there any legislative history or executive directive indicating that the Secretary of Defense was authorized to establish a security clearance program which could deprive a person of his government employment on the basis of secret and undisclosed information. Therefore, we concluded in Greene that because of the serious constitutional problems presented, mere acquiescence by the President or the Congress would not be sufficient to constitute authorization for the security clearance procedures adopted by the Secretary of Defense. The facts of this case present a sharp contrast to those before the Court in Greene. Here, we have substantially more than the mere acquiescence upon which the Government relied in Greene. There was a conscious, intentional selection by Congress of one bill, providing for none of the procedures demanded by respondents, over another bill, which provided for all of those procedures. We have no doubt that Congress' consideration and rejection of the procedures here at issue constituted an authorization to the Commission to conduct its hearings according to the Rules of Procedure it has adopted, and to deny to witnesses the rights of apprisal, confrontation, and cross-examination. II.The existence of authorization inevitably requires us to determine whether the Commission's Rules of Procedure are consistent with the Due Process Clause of the Fifth Amendment.16 Since the requirements of due process frequently vary with the type of proceeding involved, e. g., compare Opp Cotton Mills, Inc. v. Administrator, , with Interstate Commerce Comm'n v. Louisville & N. R. Co., , we think it is necessary at the outset to ascertain both the nature and function of this Commission. Section 104 of the Civil Rights Act of 1957 specifies the duties to be performed by the Commission. Those duties consist of (1) investigating written, sworn allegations that anyone has been discriminatorily deprived of his right to vote; (2) studying and collecting information "concerning legal developments constituting a denial of equal protection of the laws under the Constitution"; and (3) reporting to the President and Congress on its activities, findings, and recommendations.17 As is apparent from this brief sketch of the statutory duties imposed upon the Commission, its function is purely investigative and fact-finding. It does not adjudicate. It does not hold trials or determine anyone's civil or criminal liability. It does not issue orders. Nor does it indict, punish, or impose any legal sanctions. It does not make determinations depriving anyone of his life, liberty, or property. In short, the Commission does not and cannot take any affirmative action which will affect an individual's legal rights. The only purpose of its existence is to find facts which may subsequently be used as the basis for legislative or executive action.The specific constitutional question, therefore, is whether persons whose conduct is under investigation by a governmental agency of this nature are entitled, by virtue of the Due Process Clause, to know the specific charges that are being investigated, as well as the identity of the complainants,18 and to have the right to cross-examine those complainants and other witnesses. Although these procedures are very desirable in some situations, for the reasons which we shall now indicate, we are of the opinion that they are not constitutionally required in the proceedings of this Commission."Due process" is an elusive concept. Its exact boundaries are undefinable, and its content varies according to specific factual contexts. Thus, when governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals, it is imperative that those agencies use the procedures which have traditionally been associated with the judicial process. On the other hand, when governmental action does not partake of an adjudication, as for example, when a general fact-finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used. Therefore, as a generalization, it can be said that due process embodies the differing rules of fair play, which through the years, have become associated with differing types of proceedings. Whether the Constitution requires that a particular right obtain in a specific proceeding depends upon a complexity of factors. The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account. An analysis of these factors demonstrates why it is that the particular rights claimed by the respondents need not be conferred upon those appearing before purely investigative agencies, of which the Commission on Civil Rights is one. It is probably sufficient merely to indicate that the rights claimed by respondents are normally associated only with adjudicatory proceedings, and that since the Commission does not adjudicate, it need not be bound by adjudicatory procedures. Yet, the respondents contend, and the court below implied, that such procedures are required since the Commission's proceedings might irreparably harm those being investigated by subjecting them to public opprobrium and scorn, the distinct likelihood of losing their jobs, and the possibility of criminal prosecutions. That any of these consequences will result is purely conjectural. There is nothing in the record to indicate that such will be the case or that past Commission hearings have had any harmful effects upon witnesses appearing before the Commission. However, even if such collateral consequences were to flow from the Commission's investigations, they would not be the result of any affirmative determinations made by the Commission, and they would not affect the legitimacy of the Commission's investigative function.19 On the other hand, the investigative process could be completely disrupted if investigative hearings were transformed into trial-like proceedings, and if persons who might be indirectly affected by an investigation were given an absolute right to cross-examine every witness called to testify. Fact-finding agencies without any power to adjudicate would be diverted from their legitimate duties and would be plagued by the injection of collateral issues that would make the investigation interminable. Even a person not called as a witness could demand the right to appear at the hearing, cross-examine any witness whose testimony or sworn affidavit allegedly defamed or incriminated him, and call an unlimited number of witnesses of his own selection.20 This type of proceeding would make a shambles of the investigation and stifle the agency in its gathering of facts.In addition to these persuasive considerations, we think it is highly significant that the Commission's procedures are not historically foreign to other forms of investigation under our system. Far from being unique, the Rules of Procedure adopted by the Commission are similar to those which, as shown by the Appendix to this opinion,21 have traditionally governed the proceedings of the vast majority of governmental investigating agencies.A frequently used type of investigative agency is the legislative committee. The investigative function of such committees is as old as the Republic.22 The volumes written about legislative investigations have proliferated almost as rapidly as the legislative committees themselves, and the courts have on more than one occasion been confronted with the legal problems presented by such committees.23 The procedures adopted by legislative investigating committees have varied over the course of years. Yet, the history of these committees clearly demonstrates that only infrequently have witnesses appearing before congressional committees been afforded the procedural rights normally associated with an adjudicative proceeding. In the vast majority of instances, congressional committees have not given witnesses detailed notice or an opportunity to confront, cross-examine and call other witnesses.24 The history of investigations conducted by the executive branch of the Government is also marked by a decided absence of those procedures here in issue.25 The best example is provided by the administrative regulatory agencies. Although these agencies normally make determinations of a quasi-judicial nature, they also frequently conduct purely fact-finding investigations. When doing the former, they are governed by the Administrative Procedure Act, 60 Stat. 237, 5 U.S.C. 1001-1011, and the parties to the adjudication are accorded the traditional safeguards of a trial. However, when these agencies are conducting nonadjudicative, fact-finding investigations, rights such as apprisal, confrontation, and cross-examination generally do not obtain.A typical agency is the Federal Trade Commission. Its rules draw a clear distinction between adjudicative proceedings and investigative proceedings. 16 CFR, 1958 Supp., 1.34. Although the latter are frequently initiated by complaints from undisclosed informants, id., 1.11, 1.15, and although the Commission may use the information obtained during investigations to initiate adjudicative proceedings, id., 1.42, nevertheless, persons summoned to appear before investigative proceedings are entitled only to a general notice of "the purpose and scope of the investigation," id., 1.33, and while they may have the advice of counsel, "counsel may not, as a matter of right, otherwise participate in the investigation." Id., 1.40. The reason for these rules is obvious. The Federal Trade Commission could not conduct an efficient investigation if persons being investigated were permitted to convert the investigation into a trial. We have found no authorities suggesting that the rules governing Federal Trade Commission investigations violate the Constitution, and this is understandable since any person investigated by the Federal Trade Commission will be accorded all the traditional judicial safeguards at a subsequent adjudicative proceeding, just as any person investigated by the Civil Rights Commission will have all of these safeguards, should some type of adjudicative proceeding subsequently be instituted.Another regulatory agency which distinguishes between adjudicative and investigative proceedings is the Securities and Exchange Commission. This Commission conducts numerous investigations, many of which are initiated by complaints from private parties. 17 CFR 202.4. Although the Commission's Rules provide that parties to adjudicative proceedings shall be given detailed notice of the matters to be determined, id., 1959 Supp., 201.3, and a right to cross-examine witnesses appearing at the hearing, id., 201.5, those provisions of the Rules are made specifically inapplicable to investigations, id., 201.20,26 even though the Commission is required to initiate civil or criminal proceedings if an investigation discloses violations of law.27 Undoubtedly, the reason for this distinction is to prevent the sterilization of investigations by burdening them with trial-like procedures.Another type of executive agency which frequently conducts investigations is the presidential commission. Although a survey of these commissions presents no definite pattern of practice, each commission has generally been permitted to adopt whatever rules of procedure seem appropriate to it,28 and it is clear that many of the most famous presidential commissions have adopted rules similar to those governing the proceedings of the Civil Rights Commission.29 For example, the Roberts Commission established in 1941 to ascertain the facts relating to the Japanese attack upon Pearl Harbor, and to determine whether the success of the attack resulted from any derelictions of duty on the part of American military personnel, did not permit any of the parties involved in the investigation to cross-examine other witnesses. In fact, many of the persons whose conduct was being investigated were not represented by counsel and were not present during the interrogation of other witnesses. Hearings before the Joint Committee on the Investigation of the Pearl Harbor Attack, 79th Cong., 1st Sess., pts. 22-25.Having considered the procedures traditionally followed by executive and legislative investigating agencies, we think it would be profitable at this point to discuss the oldest and, perhaps, the best known of all investigative bodies, the grand jury. It has never been considered necessary to grant a witness summoned before the grand jury the right to refuse to testify merely because he did not have access to the identity and testimony of prior witnesses. Nor has it ever been considered essential that a person being investigated by the grand jury be permitted to come before that body and cross-examine witnesses who may have accused him of wrongdoing. Undoubtedly, the procedural rights claimed by the respondents have not been extended to grand jury hearings because of the disruptive influence their injection would have on the proceedings, and also because the grand jury merely investigates and reports. It does not try.We think it is fairly clear from this survey of various phases of governmental investigation that witnesses appearing before investigating agencies, whether legislative, executive, or judicial, have generally not been accorded the rights of apprisal, confrontation, or cross-examination. Although we do not suggest that the grand jury and the congressional investigating committee are identical in all respects to the Civil Rights Commission,30 we mention them, in addition to the executive agencies and commissions created by Congress, to show that the rules of this Commission are not alien to those which have historically governed the procedure of investigations conducted by agencies in the three major branches of our Government. The logic behind this historical practice was recognized and described by Mr. Justice Cardozo's landmark opinion in Norwegian Nitrogen Products Co. v. United States, . In that case, the Court was concerned with the type of hearing that the Tariff Commission was required to hold when conducting its investigations. Specifically, the Court was asked to decide whether the Tariff Act of 1922, 42 Stat. 858, gave witnesses appearing before the Commission the right to examine confidential information in the Commission files and to cross-examine other witnesses testifying at Commission hearings. Although the Court did not phrase its holding in terms of due process, we think that the following language from Mr. Justice Cardozo's opinion is significant: "The Tariff Commission advises; these others ordain. There is indeed this common bond that all alike are instruments in a governmental process which according to the accepted classification is legislative, not judicial... . Whatever the appropriate label, the kind of order that emerges from a hearing before a body with power to ordain is one that impinges upon legal rights in a very different way from the report of a commission which merely investigates and advises. The traditionary forms of hearing appropriate to the one body are unknown to the other. What issues from the Tariff Commission as a report and recommendation to the President, may be accepted, modified, or rejected. If it happens to be accepted, it does not bear fruit in anything that trenches upon legal rights." 288 U.S., at 318. And in referring to the traditional practice of investigating bodies, Mr. Justice Cardozo had this to say: "[W]ithin the meaning of this act the `hearing' assured to one affected by a change of duty does not include a privilege to ransack the records of the Commission, and to subject its confidential agents to an examination as to all that they have learned. There was no thought to revolutionize the practice of investigating bodies generally and of this one in particular." Id., at 319. (Emphasis supplied.) Thus, the purely investigative nature of the Commission's proceedings, the burden that the claimed rights would place upon those proceedings, and the traditional procedure of investigating agencies in general, leads us to conclude that the Commission's Rules of Procedure comport with the requirements of due process.31 Nor do the authorities cited by respondents support their position. They rely primarily upon Morgan v. United States, ; Joint Anti-Fascist Refugee Comm. v. McGrath, ; and Greene v. McElroy, supra. Those cases are all distinguishable in that the government agency involved in each was found by the Court to have made determinations in the nature of adjudications affecting legal rights. Thus, in Morgan, the action of the Secretary of Agriculture in fixing the maximum rates to be charged by market agencies at stockyards was challenged. In voiding the order of the Secretary for his failure to conduct a trial-like hearing, the Court referred to the adjudicatory nature of the proceeding: "Congress, in requiring a `full hearing.' had regard to judicial standards, - not in any technical sense but with respect to those fundamental requirements of fairness which are of the essence of due process in a proceeding of a judicial nature." 304 U.S., at 19. Likewise, in Joint Anti-Fascist Refugee Comm. v. McGrath, , this Court held that the Attorney General's action constituted an adjudication. Finally, our decision last year in Greene v. McElroy lends little support to the respondents' position. The governmental action there reviewed was certainly of a judicial nature. The various Security Clearance Boards involved in Greene were not conducting an investigation; they were determining whether Greene could have a security clearance - a license in a real sense, and one that had a significant impact upon his employment. By contrast, the Civil Rights Commission does not make any binding orders or issue "clearances" or licenses having legal effect. Rather, it investigates and reports leaving affirmative action, if there is to be any, to other governmental agencies where there must be action de novo.The respondents have also contended that the Civil Rights Act of 1957 is inappropriate legislation under the Fifteenth Amendment. We have considered this argument, and we find it to be without merit. It would unduly lengthen this opinion to add anything to the District Court's disposition of this claim. See 177 F. Supp., at 819-821.Respondents' final argument is that the Commission's hearings should be governed by Section 7 of the Administrative Procedure Act, 60 Stat. 241, 5 U.S.C. 1006, which specifies the hearing procedures to be used by agencies falling within the coverage of the Act. One of those procedures is the right of every party to conduct "such cross-examination as may be required for a full and true disclosure of the facts." However, what the respondents fail to recognize is that Section 7, by its terms, applies only to proceedings under Section 4, 60 Stat. 238, 5 U.S.C. 1003 (rule making), and Section 5, 60 Stat. 239, 5 U.S.C. 1004 (adjudications), of the Act. As we have already indicated, the Civil Rights Commission performs none of the functions specified in those sections.From what we have said, it is obvious that the District Court erred in both cases in enjoining the Commission from holding its Shreveport hearing. The court's judgments are accordingly reversed, and the cases are remanded with direction to vacate the injunctions. Reversed and remanded. [For opinion of MR. JUSTICE FRANKFURTER, concurring in the result, see post, p. 486.][For concurring opinion of MR. JUSTICE HARLAN, joined by MR. JUSTICE CLARK, see post, p. 493.][For dissenting opinion of MR. JUSTICE DOUGLAS, joined by MR. JUSTICE BLACK, see post, p. 493.]

Petitioner California Insurance Commissioner, as trustee over the assets of the Mission Insurance Company and its affiliates, filed a state court action against respondent Allstate Insurance Company, seeking, among other things, contract and tort damages for Allstate's alleged breach of reinsurance agreements. Allstate removed the action to federal court on diversity grounds and filed a motion to compel arbitration under the Federal Arbitration Act. The Commissioner sought remand to state court, arguing that the District Court should abstain from hearing the case under Burford v. Sun Oil Co., , because its resolution might interfere with California's regulation of the Mission insolvency. Specifically, the Commissioner indicated that the issue whether Allstate could set off its own contract claims against the Commissioner's recovery was a question of state law currently pending before the state courts in another Mission insolvency case. Observing that the State's overriding interest in the uniform and orderly regulation of insurance insolvencies and liquidations could be undermined by inconsistent rulings from the federal and state courts, and determining that the setoff question should be resolved in state court, the District Court concluded that Burford abstention was appropriate and remanded the case to state court without ruling on Allstate's arbitration motion. After determining that appellate review of the District Court's remand order was not barred by C. Section(s) 1447(d), and that the remand order was appealable under C. Section(s) 1291 as a final collateral order, the Ninth Circuit vacated the decision and ordered the case sent to arbitration. Concluding that Burford abstention is limited to equitable actions, the court held that abstention was inappropriate in this damages action.Held: 1. An abstention-based remand order is appealable under C. Section(s) 1291. Section 1447(d)-which provides that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise"-interposes no bar to appellate review of the order at issue. Only remands based on grounds specified in the District Court's order in this case does not fall into either category of remand order described in Section(s) 1447(c): It is not based on lack of subject matter jurisdiction or defects in removal procedure. The remand order here falls within that narrow class of collateral orders that are immediately appealable under Section(s) 1291. It puts the litigants in this case effectively out of court, and its effect is precisely to surrender jurisdiction of a federal suit to a state court. Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., , n. 11. The order also conclusively determines an issue that is separate from the merits, namely the question whether the federal court should decline to exercise its jurisdiction in the interest of comity and federalism; the rights asserted on appeal from the abstention decision are sufficiently important to warrant an immediate appeal; and the remand order will not be subsumed in any other appealable order entered by the District Court. See Moses H. Cone, supra. The decision in Thermtron Products, Inc. v. Hermansdorfer, , that "an order remanding a removed action does not represent a final judgment reviewable by appeal," is disavowed to the extent it would require this Court to ignore the implications of the later holding in Moses H. Cone. Pp. 4-8. 2. Federal courts have the power to dismiss or remand cases based on abstention principles only where the relief sought is equitable or otherwise discretionary. Because this was a damages action, the District Court's remand order was an unwarranted application of the Burford doctrine. Pp. 8-25. (a) In cases where the relief sought is equitable in nature or otherwise discretionary, federal courts not only have the power to stay the action based on abstention principles, but can also, in otherwise appropriate circumstances, decline to exercise jurisdiction altogether by either dismissing the suit or remanding it to state court. See, e.g., Great Lakes Dredge & Dock Co. v. Huffman, . By contrast, federal courts may stay actions for damages based on abstention principles, but those principles do not support the outright dismissal or remand of damages actions. See, e.g., Louisiana Power & Light Co. v. Thibodaux, . Pp. 8-16. (b) Burford allows a federal court to dismiss a case only if it presents "difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar," or if its adjudication in a federal forum "would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern." Colorado River Water Conservation Dist. v. United States, . This power to dismiss represents an extraordinary and narrow exception to a district court's duty to adjudicate a controversy properly before it. Pp. 16-22. as Allstate's motion to compel arbitration under the Federal Arbitration Act implicates a substantial federal concern for the enforcement of arbitration agreements. With regard to the state interests, the case appears at first blush to present nothing more than a run-of-the-mill contract dispute: The Commissioner seeks damages for Allstate's failure to perform its obligations under a reinsurance agreement. Pp. 22-23. (d) To the extent the Ninth Circuit held only that a federal court cannot, under Burford, dismiss or remand an action when the relief sought is not discretionary, its judgment is consistent with this Court's abstention cases. The Commissioner appears to have conceded that the relief sought is neither equitable nor otherwise committed to the court's discretion. However, by limiting Burford abstention to equitable cases, the court applied a per se rule more rigid than this Court's precedents require. Since abstention principles are not completely inapplicable in damages actions, Burford might have supported an order to stay the federal proceedings pending the outcome of the state court litigation on the setoff issue. Only the remand order which the Ninth Circuit entered is being reviewed, and, thus, it is not necessary to determine whether a more limited abstention-based stay order would have been warranted on the facts of this case. Pp. 23-24. 47 F. 3d 350, affirmed. O'Connor, J., delivered the opinion for a unanimous Court. Scalia, J., and Kennedy, J., filed concurring opinions. 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.[End of Syllabus]U.S. Supreme Court No. 95-244 CHARLES QUACKENBUSH, CALIFORNIA INSURANCE COMMISSIONER, et al., PETITIONERS v. ALLSTATE INSURANCE COMPANY On Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit. [June 3,1996] Justice O'Connor delivered the opinion of the Court. In this case, we consider whether an abstention-based remand order is appealable as a final order under C. Section(s) 1291, and whether the abstention doctrine first recognized in Burford v. Sun Oil Co., , can be applied in a common-law suit for damages.I. Petitioner, the Insurance Commissioner for the State of California, was appointed trustee over the assets of the Mission Insurance Company and its affiliates (Mission companies) in 1987, after those companies were ordered into liquidation by a California court. In an effort to gather the assets of the defunct Mission companies, the Commissioner filed the instant action against respondent Allstate Insurance Company in state court, seeking contract and tort damages for Allstate's alleged breach of certain reinsurance agreements, as well as a general declaration of Allstate's obligations under those agreements. Allstate removed the action to federal court on diversity grounds and filed a motion to compel arbitration under the Federal Arbitration ActC. Section(s) 1 et seq. (1988 ed. and Supp. V). The Commissioner sought remand to state court, arguing that the District Court should abstain from hearing the case under Burford, supra, because its resolution might interfere with California's regulation of the Mission insolvency. Specifically, the Commissioner indicated that Allstate would be asserting its right to set off its own contract claims against the Commissioner's recovery under the contract, that the viability of these setoff claims was a hotly disputed question of state law, and that this question was currently pending before the state courts in another case arising out of the Mission insolvency. The District Court observed that "California has an overriding interest in regulating insurance insolvencies and liquidations in a uniform and orderly manner," and that in this case "this important state interest could be undermined by inconsistent rulings from the federal and state courts." App. to Pet. for Cert. 34a. Based on these observations, and its determination that the setoff question should be resolved in state court, the District Court concluded this case was an appropriate one for the exercise of Burford abstention. The District Court did not stay its hand pending the California courts' resolution of the setoff issue, but instead remanded the entire case to state court. The District Court entered this remand order without ruling on Allstate's motion to compel arbitration. After determining that appellate review of the District Court's remand order was not barred by C. Section(s) 1447(d), see Garamendi v. Allstate Ins. Co., 47 F. 3d 350, 352 (CA9 1995) (citing Thermtron Products, Inc. v. Hermansdorfer, ), and that the remand order was appealable under C. Section(s) 1291 as a final collateral order, see 47 F. 3d, at 353-354 (citing Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., ), the Court of Appeals for the Ninth Circuit vacated the District Court's decision and ordered the case sent to arbitration. The Ninth Circuit concluded that federal courts can abstain from hearing a case under Burford only when the relief being sought is equitable in nature, and therefore held that abstention was inappropriate in this case because the Commissioner purported to be seeking only legal relief. 47 F. 3d., at 354-356; App. to Pet. for Cert. 35a-37a (order denying petition for rehearing because Commissioner had waived any argument that this case involved a request for equitable relief). The Ninth Circuit's holding that abstention-based remand orders are appealable conflicts with the decisions of other courts of appeals, see Doughty v. Underwriters at Lloyd's, London, 6 F. 3d 856, 865 (CA1 1993) (order not appealable); Corcoran v. Ardra Insurance Co., Ltd., 842 F. 2d 31, 34 (CA2 1988) (same); In re Burns & Wilcox, Ltd., 54 F. 3d 475, 477, n. 7 (CA8 1995) (same); but see Minot v. Eckardt-Minot, 13 F. 3d 590, 593 (CA2 1994) (order appealable under collateral order doctrine), as does its determination that Burford abstention can only be exercised in cases in which equitable relief is sought, see Lac D'Amiante du Quebec, Ltee v. American Home Assurance Co., 864 F. 2d 1033, 1045 (CA3 1988) (Burford abstention appropriate in case seeking declaratory relief); Brandenburg v. Seidel, 859 F. 2d 1179, 1192, n. 17 (CA4 1988) (Burford abstention appropriate in action for damages); Wolfson v. Mutual Benefit Life Ins. Co., 51 F. 3d 141, 147 (CA8 1995) (same); but see Fragoso v. Lopez, 991 F. 2d 878, 882 (CA1 1993) (federal court can abstain under Burford only if it is "sitting in equity"); University of Maryland v. Peat Marwick Main & Co., 923 F. 2d 265, 272 (CA3 1991) (same); Baltimore Bank for Cooperatives v. Farmer's Cheese Cooperative, 583 F. 2d 104, 111 (CA3 1978) (same). We granted certiorari to resolve these conflicts___ (1995), and now affirm on grounds different than those provided by the Ninth Circuit.II. We first consider whether the Court of Appeals had jurisdiction to hear Allstate's appeal under C. Section(s) 1291, which confers jurisdiction over appeals from "final decisions" of the district courts, and C. Section(s) 1447(d), which provides that "[a]n order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." We agree with the Ninth Circuit and the parties that Section(s) 1447(d) interposes no bar to appellate review of the remand order at issue in this case. See 47 F. 3d, at 352; Brief for Petitioner 29-30; Brief for Respondent 13-14, n. 12. As we held in Thermtron Products, Inc. v. Hermansdorfer, supra, at 345-346, and reiterated this Term in Things Remembered, Inc. v. Petrarca___, ___ (1995) (slip op. at 3), "Section(s) 1447(d) must be read in pari materia with Section(s) 1447(c), so that only remands based on grounds specified in Section(s) 1447(c) are immune from review under Section(s) 1447(d)." This gloss renders Section(s) 1447(d) inapplicable here: The District Court's abstention-based remand order does not fall into either category of remand order described in Section(s) 1447(c), as it is not based on lack of subject matter jurisdiction or defects in removal procedure. Finding no affirmative bar to appellate review of the District Court's remand order, we must determine whether that review may be obtained by appeal under Section(s) 1291. The general rule is that "a party is entitled to a single appeal, to be deferred until final judgment has been entered, in which claims of district court error at any stage of the litigation may be ventilated." Digital Equipment Corp. v. Desktop Direct, Inc.___, ___ (1994) (slip op., at 4) (citations omitted). Accordingly, we have held that a decision is ordinarily considered final and appealable under Section(s) 1291 only if it "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, ; see also Digital, supra, at ___ (slip op., at 3) (quoting this standard). We have also recognized, however, a narrow class of collateral orders which do not meet this definition of finality, but which are nevertheless immediately appealable under Section(s) 1291 because they "`conclusively determine [a] disputed question'" that is "`completely separate from the merits of the action,'" "`effectively unreviewable on appeal from a final judgment,'" Richardson-Merrell Inc. v. Koller, (quoting Coopers & Lybrand v. Livesay, ), and "too important to be denied review," Cohen v. Beneficial Industrial Loan Corp., . The application of these principles to the appealability of the remand order before us is controlled by our decision in Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., . The District Court in that case entered an order under Colorado River Water Conservation Dist. v. United States, , staying a federal diversity suit pending the completion of a declaratory judgment action that had been filed in state court. The Court of Appeals held that this stay order was appealable under Section(s) 1291, and we affirmed that determination on two independent grounds. We first concluded that the abstention-based stay order was appealable as a "final decision" under Section(s) 1291 because it put the litigants "`effectively out of court,'" 460 U.S., at 11, n. 11 (quoting Idlewild Bon Voyage Liquor Corp. v. Epstein, , n. 2 (1962) (per curiam)), and because its effect was "precisely to surrender jurisdiction of a federal suit to a state court," 460 U.S., at 11, n. 11. These standards do not reflect our oft-repeated definition of finality, see supra, at 4 (citing Catlin, supra, at 233); see, e.g., Digital, supra, at ___ (slip op., at 3) (citing the Catlin definition); Lauro Lines s.r.l. v. Chasser, (same); Van Cauwenberghe v. Biard, (same), but in Moses H. Cone we found their application to be compelled by precedent, see 460 U.S., at 11, n. 11 ("Idlewild's reasoning is limited to cases where (under Colorado River, abstention, or a closely similar doctrine) the object of the stay is to require all or an essential part of the federal suit to be litigated in a state forum"). As an alternative to this reliance on Idlewild, we also held that the stay order at issue in Moses H. Cone was appealable under the collateral order doctrine. 460 U.S., at 11. We determined that a stay order based on the Colorado River doctrine "presents an important issue separate from the merits" because it "amounts to a refusal to adjudicate" the case in federal court; that such orders could not be reviewed on appeal from a final judgment in the federal action because the district court would be bound, as a matter of res judicata, to honor the state court's judgment; and that unlike other stay orders, which might readily be reconsidered by the district court, abstention-based stay orders of this ilk are "conclusive" because they are the practical equivalent of an order dismissing the case. 460 U.S., at 12. The District Court's order remanding on grounds of Burford abstention is in all relevant respects indistinguishable from the stay order we found to be appealable in Moses H. Cone. No less than an order staying a federal-court action pending adjudication of the dispute in state court, it puts the litigants in this case "`effectively out of court,'" Moses H. Cone, supra, at 11, n. 11 (quoting Idlewild Bon Voyage Liquor Corp. v. Epstein, supra, at 715, n. 2), and its effect is "precisely to surrender jurisdiction of a federal suit to a state court," 460 U.S., at 11, n. 11. Indeed, the remand order is clearly more "final" than a stay order in this sense. When a district court remands a case to a state court, the district court disassociates itself from the case entirely, retaining nothing of the matter on the federal court's docket. The District Court's order is also indistinguishable from the stay order we considered in Moses H. Cone in that it conclusively determines an issue that is separate from the merits, namely the question whether the federal court should decline to exercise its jurisdiction in the interest of comity and federalism. See infra, at 9, 20. In addition, the rights asserted on appeal from the District Court's abstention decision are, in our view, sufficiently important to warrant an immediate appeal. See infra, at 8-9, 17-21 (describing interests weighed in decision to abstain under Burford); cf. Digital, supra, at ___ (slip op., at 15) (review under collateral order doctrine limited to those issues "`too important to be denied review'") (quoting Cohen, supra, at 546). And, like the stay order we found appealable in Moses H. Cone, the District Court's remand order in this case will not be subsumed in any other appealable order entered by the District Court. We have previously stated that "an order remanding a removed action does not represent a final judgment reviewable by appeal." Thermtron Products, Inc. v. Hermansdorfer, 423 U.S., at 352-53. Petitioner asks that we adhere to that statement and hold that appellate review of the District Court's remand order can only be obtained through a petition for writ of mandamus. To the extent Thermtron would require us to ignore the implications of our later holding in Moses H. Cone, however, we disavow it. Thermtron's determination that remand orders are not reviewable "final judgments" doubtless was necessary to the resolution of that case, see 423 U.S., at 352 (posing the question whether mandamus was the appropriate vehicle), but our principal concern in Thermtron was the interpretation of the bar to appellate review embodied in C. Section(s) 1447(d), see supra, at 4, and our statement concerning the appropriate procedural vehicle for reviewing a district court's remand order was peripheral to that concern. Moreover, the parties in Thermtron did not brief the question, our opinion does not refer to Catlin or its definition of "final decisions," and our opinion nowhere addresses whether any class of remand order might be appealable under the collateral order doctrine. Indeed, the only support Thermtron cites for the proposition that remand orders are reviewable only by mandamus, not by appeal, is Railroad Co. v. Wiswall, 23 Wall. 507 (1875), the superannuated reasoning of which is of little vitality today, compare id., at 508 (deeming a "writ of error to review what has been done" an inappropriate vehicle for reviewing a court of appeals'"refusal to hear and decide") with Moses H. Cone, 460 U.S., at 10-11, n. 11 (holding that a stay order is appealable because it amounts to a refusal to hear and decide a case). Admittedly, remand orders like the one entered in this case do not meet the traditional definition of finalitythey do not "en[d] the litigation on the merits and leav[e] nothing more for the court to do but execute the judgment," Catlin, 324 U.S., at 233. But because the District Court's remand order is functionally indistinguishable from the stay order we found appealable in Moses H. Cone, see supra, at 6-7, we conclude that it is appealable, and turn to the merits of the Ninth Circuit's decision respecting Burford abstention.III.A. We have often acknowledged that federal courts have a strict duty to exercise the jurisdiction that is conferred upon them by Congress. See, e.g., Colorado River, 424 U.S., at 821 ("[F]ederal courts have a virtually unflagging obligation ... to exercise the jurisdiction given them'"); England v. Louisiana Bd. of Medical Examiners, ("`When a federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction'") (quoting Willcox v. Consolidated Gas Co.); Cohens v. Virginia, 6 Wheat. 264, 404 (1821) (federal courts "have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not"). This duty is not, however, absolute. See Canada Malting Co. v. Paterson S. S., Ltd. ("[T]he proposition that a court having jurisdiction must exercise it, is not universally true"). Indeed, we have held that federal courts may decline to exercise their jurisdiction, in otherwise "`exceptional circumstances,'" where denying a federal forum would clearly serve an important countervailing interest, Colorado River, supra, at 813 (quoting County of Allegheny v. Frank Mashuda Co., ), for example where abstention is warranted by considerations of "proper constitutional adjudication," "regard for federal-state relations," or "wise judicial administration," Colorado River, supra, at 817 (internal quotation marks omitted). We have thus held that federal courts have the power to refrain from hearing cases that would interfere with a pending state criminal proceeding, see Younger v. Harris, , or with certain types of state civil proceedings, see Huffman v. Pursue, Ltd., ; Juidice v. Vail, ; cases in which the resolution of a federal constitutional question might be obviated if the state courts were given the opportunity to interpret ambiguous state law, see Railroad Comm'n of Tex. v. Pullman Co., ; cases raising issues "intimately involved with [the states'] sovereign prerogative," the proper adjudication of which might be impaired by unsettled questions of state law, see Louisiana Power & Light Co. v. Thibodaux, ; id., at 31 (Stewart, J., concurring); cases whose resolution by a federal court might unnecessarily interfere with a state system for the collection of taxes, see Great Lakes Dredge & Dock Co. v. Huffman, ; and cases which are duplicative of a pending state proceeding, see Colorado River Water Conservation Dist. v. United States, ; Pennsylvania v. Williams. Our longstanding application of these doctrines reflects "the commonlaw background against which the statutes conferring jurisdiction were enacted," New Orleans Public Service, Inc. v. Council of City of New Orleans, (NOPSI) (citing Shapiro, Jurisdiction and Discretion, 60 N. Y. U. L. Rev. 543, 570-577 (1985)). And, as the Ninth Circuit correctly indicated, 47 F. 3d, at 354, it has long been established that a federal court has the authority to decline to exercise its jurisdiction when it "is asked to employ its historic powers as a court of equity," Fair Assessment in Real Estate Assn., Inc. v. McNary, (Brennan, J., concurring). This tradition informs our understanding of the jurisdiction Congress has conferred upon the federal courts, and explains the development of our abstention doctrines. In Pullman, for example, we explained the principle underlying our abstention doctrines as follows:" ... The history of equity jurisdiction is the history of regard for public consequences in employing the extraordinary remedy of the injunction... . Few public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction with state policies, whether the policy relates to the enforcement of the criminal law, or the administration of a specialized scheme for liquidating embarrassed business enterprises, or the final authority of a state court to interpret doubtful regulatory laws of the state. These cases reflect a doctrine of abstention appropriate to our federal system, whereby the federal courts, `exercising a wise discretion,' restrain their authority because of `scrupulous regard for the rightful independence of the state governments' and for the smooth working of the federal judiciary. This use of equitable powers is a contribution of the courts in furthering the harmonious relation between state and federal authority without the need of rigorous congressional restriction of those powers." 312 U.S., at 500-501 (citations omitted). Though we have thus located the power to abstain in the historic discretion exercised by federal courts "sitting in equity," we have not treated abstention as a "technical rule of equity procedure." Thibodaux, supra, at 28. Rather, we have recognized that the authority of a federal court to abstain from exercising its jurisdiction extends to all cases in which the court has discretion to grant or deny relief. See NOPSI, supra, at 359 (mandate of federal jurisdiction "does not eliminate ... the federal courts' discretion in determining whether to grant certain types of relief"). Accordingly, we have not limited the application of the abstention doctrines to suits for injunctive relief, but have also required federal courts to decline to exercise jurisdiction over certain classes of declaratory judgments, see, e.g., Huffman, 319 U.S., at 297 (federal court must abstain from hearing declaratory judgment action challenging constitutionality of a state tax); Samuels v. Mackell, , 72-73 (1971) (extending Younger abstention to declaratory judgment actions), the granting of which is generally committed to the courts' discretion, see Wilton v. Seven Falls Co.___, ___ (1995) (slip op., at 5) (federal courts have "discretion in determining whether and when to entertain an action under the Declaratory Judgment Act, even when the suit otherwise satisfies subject-matter jurisdictional prerequisites"). Nevertheless, we have not previously addressed whether the principles underlying our abstention cases would support the remand or dismissal of a common-law action for damages. Cf. Deakins v. Monaghan, , and n. 6 (1988) (reserving the question whether Younger requires abstention in an action for damages); Ankenbrandt v. Richards, (discussing, without applying, Burford abstention in damages action). To be sure, we held in Fair Assessment in Real Estate Assn., Inc. v. McNary, supra, that a federal court should not entertain a Section(s) 1983 suit for damages based on the enforcement of a state tax scheme, see 454 U.S., at 115, but we have subsequently indicated that Fair Assessment was a case about the scope of the Section(s) 1983 cause of action, see National Private Truck Council, Inc. v. Oklahoma Tax Comm'n___, ___, ___ (1995) (slip op., at 7-8), not the abstention doctrines. To the extent Fair Assessment does apply abstention principles, its holding is very limited. The damages action in that case was based on the unconstitutional application of a state tax law, and the award of damages turned first on a declaration that the state tax was in fact unconstitutional. We therefore drew an analogy to Huffman and other cases in which we had approved the application of abstention principles in declaratory judgment actions, and held that the federal court should decline to hear the action because "[t]he recovery of damages under the Civil Rights Act first requires a `declaration' or determination of the unconstitutionality of a state tax scheme that would halt its operation." Fair Assessment, supra, at 115. Otherwise, we have applied abstention principles to actions "at law" only to permit a federal court to enter a stay order that postpones adjudication of the dispute, not to dismiss the federal suit altogether. See, e.g., Thibodaux, 360 U.S., at 28-30 (approving stay order); Fornaris v. Ridge Tool Co., (per curiam) (directing district court to "hold its hand until the Puerto Rican Supreme Court has authoritatively ruled on the local law question in light of the federal claims" (footnote omitted)) (emphasis added); United Gas Pipe Line Co. v. Ideal Cement Co., (per curiam) ("Wise judicial administration in this case counsels that decision of the federal question be deferred until the potentially controlling state-law issue is authoritatively put to rest"); Clay v. Sun Ins. Office Ltd., (approving "postponement of decision" in damages suit). Our decisions in Thibodaux and County of Allegheny v. Frank Mashuda Co., illustrate the distinction we have drawn between abstention-based remand orders or dismissals and abstention-based decisions merely to stay adjudication of a federal suit. In Thibodaux, a city in Louisiana brought an eminent domain proceeding in state court, seeking to condemn for public use certain property owned by a Florida corporation. After the corporation removed the action to federal court on diversity grounds, the Federal District Court decided on its own motion to stay the case, pending a state court's determination whether the city could exercise the power of eminent domain under state law. The case did not arise within the "equity" jurisdiction of the federal courts, 360 U.S., at 28, because the suit sought compensation for a taking, and the District Court lacked discretion to deny relief on the corporation's claim. Nonetheless, the issues in the suit were "intimately involved with [the state's] sovereign prerogative." Ibid. We concluded that "[t]he considerations that prevailed in conventional equity suits for avoiding the hazards of serious disruption by federal courts of state government or needless friction between state and federal authorities are similarly appropriate in a state eminent domain proceeding brought in, or removed to, a federal court." Ibid. And based on that conclusion, we affirmed the district court's order staying the case. County of Allegheny was decided the same day as Thibodaux, and like Thibodaux it involved review of a District Court order abstaining from the exercise of diversity jurisdiction over a state law eminent domain action. Unlike in Thibodaux, however, the District Court in County of Allegheny had not merely stayed adjudication of the federal action pending the resolution of an issue in state court, but rather had dismissed the federal action altogether. Based in large measure on this distinction, we reversed the District Court's order. See 360 U.S., at 190; Thibodaux, 360 U.S., at 31 (Stewart, J., concurring) ("In Mashuda, the Court holds that it was error for the District Court to dismiss the complaint" (emphasis added)). We were careful to note in Thibodaux that the District Court had only stayed the federal suit pending adjudication of the dispute in state court. Unlike the outright dismissal or remand of a federal suit, we held, an order merely staying the action "does not constitute abnegation of judicial duty. On the contrary, it is a wise and productive discharge of it. There is only postponement of decision for its best fruition." Id., at 29. We have thus held that in cases where the relief being sought is equitable in nature or otherwise discretionary, federal courts not only have the power to stay the action based on abstention principles, but can also, in otherwise appropriate circumstances, decline to exercise jurisdiction altogether by either dismissing the suit or remanding it to state court. By contrast, while we have held that federal courts may stay actions for damages based on abstention principles, we have not held that those principles support the outright dismissal or remand of damages actions. One final line of cases bears mentioning. Though we deal here with our abstention doctrines, we have recognized that federal courts have discretion to dismiss damages actions, in certain narrow circumstances, under the common-law doctrine of forum non conveniens. The seminal case recognizing this authority is Gulf Oil Corp. v. Gilbert, , in which we considered whether a Federal District Court sitting in diversity in New York could dismiss a tort action for damages on the grounds that Virginia provided a more appropriate locale for adjudicating the dispute. Id., at 503. We conceded that the application of this doctrine should be "rare," id., at 509, but also held that the exercise of forum non conveniens is not limited to actions in equity:"This Court, in recognizing and approving it by name has never indicated that it was rejecting application of the doctrine to law actions which had been an integral and necessary part of [the] evolution of the doctrine. Wherever it is applied in courts in other jurisdictions, its application does not depend on whether the action is at law or in equity." Id., at 505, n. 4 (citations omitted). The dispute in Gulf Oil was over venue, not jurisdiction, and the expectation was that after dismissal of the suit in New York the parties would refile in federal court, not the state courts of Virginia. This transfer of venue function of the forum non conveniens doctrine has been superseded by statute, see C. Section(s) 1404(a); Piper Aircraft Co. v. Reyno, , and to the extent we have continued to recognize that federal courts have the power to dismiss damages actions under the common-law forum non conveniens doctrine, we have done so only in "cases where the alternative forum is abroad." American Dredging Co. v. Miller, , n. 2 (1994); see, e.g., Piper, 454 U.S., at 265-269 (dismissal of wrongful death action). The fact that we have applied the forum non conveniens doctrine in this manner does not change our analysis in this case, where we deal with the scope of the Burford abstention doctrine. To be sure, the abstention doctrines and the doctrine of forum non conveniens proceed from a similar premise: In rare circumstances, federal courts can relinquish their jurisdiction in favor of another forum. But our abstention doctrine is of a distinct historical pedigree, and the traditional considerations behind dismissal for forum non conveniens differ markedly from those informing the decision to abstain. Compare American Dredging, supra, at 448-449 (describing "multifarious factors," including both public and private interests, which might allow a district court to dismiss a case under doctrine of forum non conveniens) with Burford, 319 U.S., at 332-333 (describing "federal-state conflict" that requires a federal court to yield jurisdiction in favor of a state forum). Federal courts abstain out of deference to the paramount interests of another sovereign, and the concern is with principles of comity and federalism. See, e.g., ibid.; Younger, 401 U.S., at 44-45. Dismissal for forum non conveniens, by contrast, has historically reflected a far broader range of considerations, see Piper, 454 U.S., at 241, 257-262 (describing the interests which bear on forum non conveniens decision); Gulf Oil, 330 U.S., at 508-509 (same), most notably the convenience to the parties and the practical difficulties that can attend the adjudication of a dispute in a certain locality, see Piper, supra, at 257-259 (evidentiary problems, unavailability of witnesses, difficulty of coordinating multiple suits); Gulf Oil, supra, at 511 (availability of witnesses, need to interplead Virginia corporation, location of evidence).B. With these background principles in mind, we consider the contours of the Burford doctrine. The principal issue presented in Burford was the "reasonableness" of an order issued by the Texas Railroad Commission, which granted "a permit to drill four oil wells on a small plot of land in the East Texas oil field." 319 U.S., at 317. Due to the potentially overlapping claims of the many parties who might have an interest in a common pool of oil and the need for uniform regulation of the oil industry, Texas endowed the Railroad Commission with exclusive regulatory authority in the area. Texas also placed the authority to review the Commission's orders in a single set of state courts, "[t]o prevent the confusion of multiple review," id., at 326, and to permit an experienced cadre of state judges to obtain "specialized knowledge" in the field, id., at 327. Though Texas had thus demonstrated its interest in maintaining uniform review of the Commission's orders, the federal courts had, in the years preceding Burford, become increasingly involved in reviewing the reasonableness of the Commission's orders, both under a constitutional standard imposed under the Due Process Clause, see, e.g., Railroad Comm'n of Tex. v. Rowan & Nichols Oil Co., , and under state law, which established a similar standard, see Burford, 319 U.S., at 317, 326. Viewing the case as "a simple proceeding in equity to enjoin the enforcement of the Commissioner's order," id., at 317, we framed the question presented in terms of the power of a federal court of equity to abstain from exercising its jurisdiction:"Although a federal equity court does have jurisdiction of a particular proceeding, it may, in its sound discretion, whether its jurisdiction is invoked on the ground of diversity of citizenship of otherwise, `refuse to enforce or protect legal rights, the exercise of which may be prejudicial to the public interest,' for it `is in the public interest that federal courts of equity should exercise their discretionary power with proper regard for the rightful independence of state governments in carrying out their domestic policy.' While many other questions are argued, we find it necessary to decide only one: Assuming that the federal district court had jurisdiction, should it, as a matter of sound equitable discretion, have declined to exercise that jurisdiction here?" Id., at 317-318 (footnote omitted) (quoting United States ex rel. Greathouse v. Dern and Pennsylvania v. Williams, 294 U. S., at 185). Having thus posed the question in terms of the District Court's discretion, as a court sitting "in equity," to decline jurisdiction, we approved the District Court's dismissal of the complaint on a number of grounds that were unique to that case. We noted, for instance, the difficulty of the regulatory issues presented, stating that the "order under consideration is part of the general regulatory system devised for the conservation of oil and gas in Texas, an aspect of `as thorny a problem as has challenged the ingenuity and wisdom of legislatures.'" 319 U.S., at 318 (quoting Rowan, supra, at 579). We also stressed the demonstrated need for uniform regulation in the area, 319 U.S., at 318-319, citing the unified procedures Texas had established to "prevent the confusion of multiple review," id., at 325-326, and the important state interests this uniform system of review was designed to serve, id., at 319-320. Most importantly, we also described the detrimental impact of ongoing federal court review of the Commission's orders, which review had already led to contradictory adjudications by the state and federal courts. Id., at 327-328, 331-332. We ultimately concluded in Burford that dismissal was appropriate because the availability of an alternative, federal forum threatened to frustrate the purpose of the complex administrative system that Texas had established. See id., at 332 ("The whole cycle of federal-state conflict cannot be permitted to begin again"). We have since provided more generalized descriptions of the Burford doctrine, see, e.g., County of Allegheny, 360 U.S., at 189 ("abstention on grounds of comity with the States where the exercise of jurisdiction by the federal court would disrupt a state administrative process"); Colorado River, 424 U.S., at 814-816 (abstention where "exercise of federal review of the question in a case and in similar cases would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern"), but with the exception of cases that rest only loosely on the Burford rationale, e.g., Louisiana Power & Light Co. v. Thibodaux, , we have revisited the decision only infrequently in the intervening 50 years. See NOPSI, . In NOPSI, our most recent exposition of the Burford doctrine, we again located the power to dismiss based on abstention principles in the discretionary power of a federal court sitting in equity, and we again illustrated the narrow range of circumstances in which Burford can justify the dismissal of a federal action. The issue in NOPSI was preemption. A New Orleans utility that had been saddled by a decision of the Federal Energy Regulatory Commission with part of the cost of building and operating a nuclear reactor sought approval of a rate increase from the Council of the City of New Orleans. The Council denied the rate increase on the grounds that "a public hearing was necessary to explore `the legality and prudency' [sic]" of the expenses allocated to the utility under the FERC decision, 491 U.S., at 355, and the utility brought suit in federal court, seeking an injunction against enforcement of the Council's order and a declaration that the utility was entitled to a rate increase. The utility claimed that "federal law required the Council to allow it to recover, through an increase in retail rates, its FERC-allocated share of the [cost of the reactor]." Ibid. The federal pre-emption question was the only issue raised in the case; there were no state law claims. In reversing the District Court's decision to dismiss under Burford, we recognized "the federal courts' discretion in determining whether to grant certain types of relief," 491 U.S., at 359, and we indicated, as we had previously in Alabama Pub. Serv. Comm'n v. Southern R. Co., , that Burford permits "a federal court sitting in equity," 491 U.S., at 361, to dismiss a case only in extraordinary circumstances. We thus indicated that Burford allows a federal court to dismiss a case only if it presents "`difficult questions of state law bearing on policy problems of substantial public import whose importance transcends the result in the case then at bar,'" or if its adjudication in a federal forum "`would be disruptive of state efforts to establish a coherent policy with respect to a matter of substantial public concern.'" 491 U.S., at 361 (quoting Colorado River, 424 U.S., at 814). We ultimately held that Burford did not provide proper grounds for an abstention-based dismissal in NOPSI because the "case [did] not involve a state-law claim, nor even an assertion that the federal claims [were] `in any way entangled in a skein of state law that must be untangled before the federal case can proceed,'" 491 U.S., at 361 (quoting McNeese v. Board of Ed. for Community Unit School Dist. 187, ), and because there was no serious threat of conflict between the adjudication of the federal claim presented in the case and the State's interest in ensuring uniformity in ratemaking decisions:"While Burford is concerned with protecting complex state administrative processes from undue federal influence, it does not require abstention whenever there exists such a process, or even in all cases where there is a `potential for conflict' with state regulatory law or policy. Here, NOPSI's primary claim is that the Council is prohibited by federal law from refusing to provide reimbursement for FERC-allocated wholesale costs. Unlike a claim that a state agency has misapplied its lawful authority or has failed to take into consideration or properly weigh relevant state-law factors, federal adjudication of this sort of pre-emption claim would not disrupt the State's attempt to ensure uniformity in the treatment of an `essentially local problem.'" 341 U.S., at 362 (quoting Alabama Pub. Serv. Comm'n, supra, at 347) (citations omitted). These cases do not provide a formulaic test for determining when dismissal under Burford is appropriate, but they do demonstrate that the power to dismiss under the Burford doctrine, as with other abstention doctrines, see supra, at 9-16 (describing the traditional application of the abstention doctrines), derives from the discretion historically enjoyed by courts of equity. They further demonstrate that exercise of this discretion must reflect "principles of federalism and comity." Growe v. Emison, . Ultimately, what is at stake is a federal court's decision, based on a careful consideration of the federal interests in retaining jurisdiction over the dispute and the competing concern for the "independence of state action," Burford, 319 U.S., at 334, that the State's interests are paramount and that a dispute would best be adjudicated in a state forum. See NOPSI, 491 U.S., at 363 (question under Burford is whether adjudication in federal court would "unduly intrude into the processes of state government or undermine the State's ability to maintain desired uniformity"). This equitable decision balances the strong federal interest in having certain classes of cases, and certain federal rights, adjudicated in federal court, against the State's interests in maintaining "uniformity in the treatment of an `essentially local problem,'" 491 U.S., at 362 (quoting Alabama Pub. Serv. Comm'n, supra, at 347), and retaining local control over "difficult questions of state law bearing on policy problems of substantial public import," Colorado River, supra, at 814. This balance only rarely favors abstention, and the power to dismiss recognized in Burford represents an "`extraordinary and narrow exception to the duty of the District Court to adjudicate a controversy properly before it.'" Colorado River, supra, at 813 (quoting County of Allegheny, 360 U.S., at 188).C. We turn, finally, to the application of Burford in this case. As in NOPSI, see 491 U.S., at 363, the federal interests in this case are pronounced, as Allstate's motion to compel arbitration under the Federal Arbitration Act implicates a substantial federal concern for the enforcement of arbitration agreements. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., (FAA reflects "emphatic federal policy in favor of arbitral dispute resolution"); cf. Moses H. Cone, 460 U.S., at 25-26 (in deciding whether to defer to state court adjudication under the Colorado River doctrine, "the presence of federal-law issues must always be a major consideration weighing against surrender"). With regard to the state interests, however, the case appears at first blush to present nothing more than a run-of-the-mill contract dispute. The Commissioner seeks damages from Allstate for Allstate's failure to perform its obligations under a reinsurance agreement. What differentiates this case from other diversity actions seeking damages for breach of contract, if anything, is the impact federal adjudication of the dispute might have on the ongoing liquidation proceedings in state court: The Commissioner claims that any recovery by Allstate on its setoff claims would amount to an illegal "preference" under state law. This question appears now to have been conclusively answered by the California Supreme Court, see Prudential Reinsurance Co. v. Superior Court of Los Angeles Cty., 3 Cal. 4th 1118, 842 P. 2d 48 (1992) (permitting reinsurers to assert setoff claims in suits filed by the Commissioner in the Mission insolvency), although at the time the District Court ruled this question was still hotly contested. The Ninth Circuit concluded that the District Court's remand order was inappropriate because "Burford abstention does not apply to suits seeking solely legal relief." 47 F. 3d, at 354. Addressing our abstention cases, the Ninth Circuit held that the federal courts' power to abstain in certain cases is "locat[ed] ... in the unique powers of equitable courts," and that it derives from equity courts' "`discretionary power to grant or withhold relief.'" 47 F. 3d, at 355 (quoting Alabama Pub. Serv. Comm'n v. Southern R. Co., 341 U.S., at 350-351). The Ninth Circuit's reversal of the District Court's abstention-based remand order in this case therefore reflects the application of a per se rule: "[T]he power of federal courts to abstain from exercising their jurisdiction, at least in Burford abstention cases, is founded upon a discretion they possess only in equitable cases." 47 F. 3d, at 355-356. To the extent the Ninth Circuit held only that a federal court cannot, under Burford, dismiss or remand an action when the relief sought is not discretionary, its judgment is consistent with our abstention cases. We have explained the power dismiss or remand a case under the abstention doctrines in terms of the discretion federal courts have traditionally exercised in deciding whether to provide equitable or discretionary relief, see supra, at 9-11, 14, and the Commissioner appears to have conceded that the relief being sought in this case is neither equitable nor otherwise committed to the discretion of the court. See App. to Pet. for Cert. 35a-37a (order denying petition for rehearing). In those cases in which we have applied traditional abstention principles to damages actions, we have only permitted a federal court to "withhold action until the state proceedings have concluded," Growe, 507 U.S., at 32; that is, we have permitted federal courts applying abstention principles in damages actions to enter a stay, but we have not permitted them to dismiss the action altogether, see supra, at 11-14. The per se rule described by the Ninth Circuit is, however, more rigid than our precedents require. We have not strictly limited abstention to "equitable cases," 47 F. 3d, at 356, but rather have extended the doctrine to all cases in which a federal court is asked to provide some form of discretionary relief. See Huffman, 319 U.S., at 297; Samuels, 401 U.S., at 69-70, 72-73; supra, at 11. Moreover, as demonstrated by our decision in Thibodaux, see supra, at 12-14, we have not held that abstention principles are completely inapplicable in damages actions. Burford might support a federal court's decision to postpone adjudication of a damages action pending the resolution by the state courts of a disputed question of state law. For example, given the situation the District Court faced in this case, a stay order might have been appropriate: The setoff issue was being decided by the state courts at the time the District Court ruled, see Prudential Reinsurance Co., supra, and in the interest of avoiding inconsistent adjudications on that point, the District Court might have been justified in entering a stay to await the outcome of the state court litigation. Like the Ninth Circuit, we review only the remand order which was entered, and find it unnecessary to determine whether a more limited abstention-based stay order would have been warranted on the facts of this case. We have no occasion to resolve what additional authority to abstain might be provided under our decision in Fair Assessment, see supra, at 11-12. Nor do we find it necessary to inquire fully as to whether this case presents the sort of "exceptional circumstance" in which Burford abstention or other grounds for yielding federal jurisdiction might be appropriate. Under our precedents, federal courts have the power to dismiss or remand cases based on abstention principles only where the relief being sought is equitable or otherwise discretionary. Because this was a damages action, we conclude that the District Court's remand order was an unwarranted application of the Burford doctrine. The judgment is affirmed. It is so ordered. Justice Scalia, concurring. I join the opinion of the Court. I write separately only to respond to Justice Kennedy's concurrence. Justice Kennedy, while joining the opinion of the Court, says that he would "not rule out ... the possibility that a federal court might dismiss a suit for damages in a case where a serious affront to the interests of federalism could be averted in no other way," post, at 1-2. I would not have joined today's opinion if I believed it left such discretionary dismissal available. Such action is foreclosed, I think, by the Court's holding, clearly summarized in the concluding sentences of the opinion: "Under our precedents, federal courts have the power to dismiss or remand cases based on abstention principles only where the relief being sought is equitable or otherwise discretionary. Because this was a damages action, we conclude that the District Court's remand order was an unwarranted application of the Burford doctrine." Ante, at 24-25. Justice Kennedy's projected horrible of a "serious affront to the interests of federalism" cannot possibly materialize under the Court's holding. There is no "serious affront to the interests of federalism" when Congress lawfully decides to pre-empt state action-which is what our cases hold (and today's opinion affirms) Congress does whenever it instructs federal courts to assert jurisdiction over matters as to which relief is not discretionary. If the Court today felt empowered to decide for itself when congressionally decreed jurisdiction constitutes a "serious affront" and when it does not, the opinion would have read much differently. Most pertinently, it would not have found it unnecessary "to inquire fully as to whether this case presents the sort of `exceptional circumstance' in which Burford abstention or other grounds for yielding federal jurisdiction might be appropriate." Ante, at 24. There were certainly grounds for such an inquiry if we thought it relevant. The "[then] unsettled but since resolved question of California law" to which Justice Kennedy refers, post, at 1, was only part of the basis for the District Court's decision to remand to state court; the court also pointed more generally to what it thought was the State's "overriding interest in regulating insurance insolvencies and liquidations in a uniform and orderly manner," App. to Pet. for Cert. 34a. As the Court's opinion says, it is not necessary to inquire fully into that matter because this was a damages action. Justice Kennedy, concurring. When this suit first was filed, it raised an unsettled but since resolved question of California law concerning the ability of companies in Allstate's position to set off claims held against Mission. The principal reason for the District Court's decision to dismiss the case was the threat posed to the state proceedings by different state and federal rulings on the question. The court's concern was reasonable. States, as a matter of tradition and express federal consent, have an important interest in maintaining precise and detailed regulatory schemes for the insurance industry. See, e. g., the McCarran-Ferguson Act, 59 Stat. 33, as amendedC. Section(s) 1011 et seq. The fact that a state court rather than an agency was chosen to implement California's scheme provided more reason, not less, for the federal court to stay its hand. At the same time, however, we have not considered a case in which dismissal of a suit for damages by extension of the doctrine of Burford v. Sun Oil Co., , was held to be authorized and necessary. As the Court explains, no doubt the preferred course in such circumstances is to resolve any serious potential for federal intrusion by staying the suit while retaining jurisdiction. We ought not rule out, though, the possibility that a federal court might dismiss a suit for damages in a case where a serious affront to the interests of federalism could be averted in no other way. We need not reach that question here. Abstention doctrines are a significant contribution to the theory of federalism and to the preservation of the federal system in practice. They allow federal courts to give appropriate and necessary recognition to the role and authority of the States. The duty to take these considerations into account must inform the exercise of federal jurisdiction. Principles of equity thus are not the sole foundation for abstention rules; obligations of comity, and respect for the appropriate balance between state and federal interests, are an important part of the justification and authority for abstention as well. See, e. g., id., at 334 ("a sound respect for the independence of state action requires the federal equity court to stay its hand"); Younger v. Harris, (rooting abstention in "a proper respect for state functions" and "sensitivity to the legitimate interests of both State and National Governments"); Colorado River Water Conservation Dist. v. United States, (abstention doctrines are based on "considerations of proper constitutional adjudication and regard for federal-state relations"). See also Shapiro, Jurisdiction and Discretion, 60 N. Y. U. L. Rev. 543, 551-552 (1985). The traditional role of discretion in the exercise of equity jurisdiction makes abstention easiest to justify in cases where equitable relief is sought, but abstention, including dismissal, is a possibility that may yet be addressed in a suit for damages, if fundamental concerns of federalism require us to face the issue. With these observations, I join the opinion of the Court.

On motion of petitioners, concurred in by attorneys for respondents, the case is remanded to the Court of Appeals with directions to remand it to the District Court to enable the parties to file their joint motion for entry of judgment dismissing the action, as provided in a settlement agreement. Reported below: 234 F.2d 12.Dean Acheson argued the cause for petitioners. With him on the brief were Stanley L. Temko, Scott W. Lucas and Malcolm Miller.Douglas F. Smith argued the cause for respondents. With him on the brief were Arthur R. Seder, Jr., D. Arthur Walker, Jack O. Brown and Oliver H. Hughes.PER CURIAM.Petitioners' amended motion, concurred in by the attorneys for respondents, is granted. The case is remanded to the Court of Appeals with directions to remand the cause to the United States District Court for the District of Kansas to enable the parties to file their joint motion for the entry of judgment dismissing the action, as provided in paragraph 3 of the Settlement Agreement dated February 27, 1958, a copy of which is annexed to the amended motion.MR. JUSTICE FRANKFURTER desires to have it added that he assumes that the legal effect of the Court's order, in which he joins, upon the opinion and judgment of the Court of Appeals in this case is the conventional one when a case has become moot here pending our decision on the merits. United States v. Munsingwear, .

Pursuant to 42 U.S.C. 1971 (c) the Attorney General brought this action against appellants, the State of Louisiana, the three members of the State Registration Board, and the Board's Director-Secretary, charging a long-standing plan to deprive Louisiana Negroes of voting rights in violation of 1971 (a) and the Fourteenth and Fifteenth Amendments. The complaint alleged and the District Court held that the discriminatory scheme began with the adoption of a "grandfather clause" in the Louisiana Constitution of 1898, when about 44% of the State's registered voters were Negroes. Upon this Court's invalidation of a similar clause, Louisiana in 1921 substituted a new "interpretation test," which required an applicant to interpret a section of the State or Federal Constitution to the satisfaction of the registrar. From that time to 1944 the proportion of registered voters who were Negroes did not exceed 1%, mainly because the white primary system kept Negroes from participating in the Democratic primary, the only politically significant election in the State. When after this Court in 1944 invalidated racial discrimination in primary elections and many registrars still failed to apply the interpretation test, the percentage of voters who were Negroes increased to 15%, a situation which, along with increased segregationist sentiment following this Court's school desegregation decision, led the legislature to create a "Segregation Committee." That committee cooperated with Citizens Councils to instruct registrars to promote white political control and to begin wholesale purges of Negroes from the voting rolls. At least 21 parishes in the mid-1950's began applying the interpretation test, to which was added in 1960 a comprehension requirement, applicable to all persons, which the State Registration Board ordered rigidly enforced. The District Court, in view of the virtually unlimited discretion given voting registrars by the Louisiana laws and because the 21 parish registrars had used the interpretation test to keep Negroes from voting, held that test on its face and as applied invalid under the Fourteenth and Fifteenth Amendments and 42 U.S.C. 1971 (a) and enjoined its future use in the State; with respect to the 21 parishes where the test was found to have been applied, it also enjoined use of a new "citizenship" test absent a reregistration of voters so that the new test will apply to all or none, and required monthly registration reports to be made for those parishes. Held: 1. The Attorney General has power to sue a State and its officials to protect Negroes' voting rights guaranteed by 42 U.S.C. 1971 (a) and the Fourteenth and Fifteenth Amendments. United States v. Mississippi, ante, p. 128, followed. P. 151. 2. The evidence amply supported the District Court's finding that Louisiana's interpretation test, as written and applied so as to give registrars unbridled discretion without any objective standards to determine voting qualifications, was part of a successful plan unlawfully to deprive Louisiana Negroes of their voting rights. Schnell v. Davis, , affirming 81 F. Supp. 872 (D. C S. D. Ala.), followed. Pp. 151-153. 3. The decree was well within the District Court's discretion to eliminate past voting discrimination against Negroes in Louisiana and to bar like discrimination in the future. Pp. 154-156. (a) The decree properly enjoined further use of the interpretation test. P. 154. (b) Since a large proportion of Negroes in the 21 parishes had been kept from registering by the discriminatory interpretation test, under which virtually all white applicants were allowed to register, the decree properly barred application of the new "citizenship" test, which the State claims is objective, absent a complete reregistration of all voters in those parishes. Pp. 154-155. (c) The requirement for monthly registration reports for the 21 parishes was proper to inform the court as to whether the old discriminatory practices had been eliminated. Pp. 155-156. 225 F. Supp. 353, affirmed.Harry J. Kron, Jr., Assistant Attorney General of Louisiana, argued the cause for appellants. With him on the brief were Jack P. F. Gremillion, Attorney General of Louisiana, and Carroll Buck, First Assistant Attorney General.Louis F. Claiborne argued the cause for the United States. With him on the brief were Solicitor General Cox, Assistant Attorney General Marshall, Harold H. Greene and David Rubin. MR. JUSTICE BLACK delivered the opinion of the Court.Pursuant to authority granted in 42 U.S.C. 1971 (c) (1958 ed., Supp. V), the Attorney General brought this action on behalf of the United States in the United States District Court for the Eastern District of Louisiana against the State of Louisiana, the three members of the State Board of Registration, and the Director-Secretary of the Board. The complaint charged that the defendants by following and enforcing unconstitutional state laws had been denying and unless restrained by the court would continue to deny Negro citizens of Louisiana the right to vote, in violation of 42 U.S.C. 1971 (a) (1958 ed.)1 and the Fourteenth and Fifteenth Amendments to the United States Constitution. The case was tried and after submission of evidence,2 the three-judge District Court, convened pursuant to 28 U.S.C. 2281 (1958 ed.), gave judgment for the United States. 225 F. Supp. 353. The State and the other defendants appealed, and we noted probable jurisdiction. .The complaint alleged, and the District Court found, that beginning with the adoption of the Louisiana Constitution of 1898, when approximately 44% of all the registered voters in the State were Negroes, the State had put into effect a successful policy of denying Negro citizens the right to vote because of their race. The 1898 constitution adopted what was known as a "grandfather clause," which imposed burdensome requirements for registration thereafter but exempted from these future requirements any person who had been entitled to vote before January 1, 1867, or who was the son or grandson of such a person.3 Such a transparent expedient for disfranchising Negroes, whose ancestors had been slaves until 1863 and not entitled to vote in Louisiana before 1867,4 was held unconstitutional in 1915 as a violation of the Fifteenth Amendment, in a case involving a similar Oklahoma constitutional provision. Guinn v. United States, . Soon after that decision Louisiana, in 1921, adopted a new constitution replacing the repudiated "grandfather clause" with what the complaint calls an "interpretation test," which required that an applicant for registration be able to "give a reasonable interpretation" of any clause in the Louisiana Constitution or the Constitution of the United States.5 From the adoption of the 1921 interpretation test until 1944, the District Court's opinion stated, the percentage of registered voters in Louisiana who were Negroes never exceeded one percent. Prior to 1944 Negro interest in voting in Louisiana had been slight, largely because the State's white primary law kept Negroes from voting in the Democratic Party primary election, the only election that mattered in the political climate of that State. In 1944, however, this Court invalidated the substantially identical white primary law of Texas,6 and with the explicit statutory bar to their voting in the primary removed and because of a generally heightened political interest, Negroes in increasing numbers began to register in Louisiana. The white primary system had been so effective in barring Negroes from voting that the "interpretation test" as a disfranchising device had been ignored over the years. Many registrars continued to ignore it after 1944, and in the next dozen years the proportion of registered voters who were Negroes rose from two-tenths of one percent to approximately 15% by March 1956. This fact, coupled with this Court's 1954 invalidation of laws requiring school segregation,7 prompted the State to try new devices to keep the white citizens in control. The Louisiana Legislature created a committee which became known as the "Segregation Committee" to seek means of accomplishing this goal. The chairman of this committee also helped to organize a semiprivate group called the Association of Citizens Councils, which thereafter acted in close cooperation with the legislative committee to preserve white supremacy. The legislative committee and the Citizens Councils set up programs, which parish voting registrars were required to attend, to instruct the registrars on how to promote white political control. The committee and the Citizens Councils also began a wholesale challenging of Negro names already on the voting rolls, with the result that thousands of Negroes, but virtually no whites, were purged from the rolls of voters. Beginning in the middle 1950's registrars of at least 21 parishes began to apply the interpretation test. In 1960 the State Constitution was amended to require every applicant thereafter to "be able to understand" as well as "give a reasonable interpretation" of any section of the State or Federal Constitution "when read to him by the registrar."8 The State Board of Registration in cooperation with the Segregation Committee issued orders that all parish registrars must strictly comply with the new provisions.The interpretation test, the court found, vested in the voting registrars a virtually uncontrolled discretion as to who should vote and who should not. Under the State's statutes and constitutional provisions the registrars, without any objective standard to guide them, determine the manner in which the interpretation test is to be given, whether it is to be oral or written, the length and complexity of the sections of the State or Federal Constitution to be understood and interpreted, and what interpretation is to be considered correct. There was ample evidence to support the District Court's finding that registrars in the 21 parishes where the test was found to have been used had exercised their broad powers to deprive otherwise qualified Negro citizens of their right to vote; and that the existence of the test as a hurdle to voter qualification has in itself deterred and will continue to deter Negroes from attempting to register in Louisiana.Because of the virtually unlimited discretion vested by the Louisiana laws in the registrars of voters, and because in the 21 parishes where the interpretation test was applied that discretion had been exercised to keep Negroes from voting because of their race, the District Court held the interpretation test invalid on its face and as applied, as a violation of the Fourteenth and Fifteenth Amendments to the United States Constitution and of 42 U.S.C. 1971 (a).9 The District Court enjoined future use of the test in the State, and with respect to the 21 parishes where the invalid interpretation test was found to have been applied, the District Court also enjoined use of a newly enacted "citizenship" test, which did not repeal the interpretation test and the validity of which was not challenged in this suit, unless a reregistration of all voters in those parishes is ordered, so that there would be no voters in those parishes who had not passed the same test.I.We have held this day in United States v. Mississippi, ante, p. 128, that the Attorney General has power to bring suit against a State and its officials to protect the voting rights of Negroes guaranteed by 42 U.S.C. 1971 (a) and the Fourteenth and Fifteenth Amendments.10 There can be no doubt from the evidence in this case that the District Court was amply justified in finding that Louisiana's interpretation test, as written and as applied, was part of a successful plan to deprive Louisiana Negroes of their right to vote. This device for accomplishing unconstitutional discrimination has been little if any less successful than was the "grandfather clause" invalidated by this Court's decision in Guinn v. United States, supra, 50 years ago, which when that clause was adopted in 1898 had seemed to the leaders of Louisiana a much preferable way of assuring white political supremacy. The Governor of Louisiana stated in 1898 that he believed that the "grandfather clause" solved the problem of keeping Negroes from voting "in a much more upright and manly fashion"11 than the method adopted previously by the States of Mississippi and South Carolina, which left the qualification of applicants to vote "largely to the arbitrary discretion of the officers administering the law."12 A delegate to the 1898 Louisiana Constitutional Convention also criticized an interpretation test because the "arbitrary power, lodged with the registration officer, practically places his decision beyond the pale of judicial review; and he can enfranchise or disfranchise voters at his own sweet will and pleasure without let or hindrance."13 But Louisiana of a later generation did place just such arbitrary power in the hands of election officers who have used it with phenomenal success to keep Negroes from voting in the State. The State admits that the statutes and provisions of the state constitution establishing the interpretation test "vest discretion in the registrars of voters to determine the qualifications of applicants for registration" while imposing "no definite and objective standards upon registrars of voters for the administration of the interpretation test." And the District Court found that "Louisiana ... provides no effective method whereby arbitrary and capricious action by registrars of voters may be prevented or redressed."14 The applicant facing a registrar in Louisiana thus has been compelled to leave his voting fate to that official's uncontrolled power to determine whether the applicant's understanding of the Federal or State Constitution is satisfactory. As the evidence showed, colored people, even some with the most advanced education and scholarship, were declared by voting registrars with less education to have an unsatisfactory understanding of the Constitution of Louisiana or of the United States. This is not a test but a trap, sufficient to stop even the most brilliant man on his way to the voting booth. The cherished right of people in a country like ours to vote cannot be obliterated by the use of laws like this, which leave the voting fate of a citizen to the passing whim or impulse of an individual registrar. Many of our cases have pointed out the invalidity of laws so completely devoid of standards and restraints. See, e. g., United States v. L. Cohen Grocery Co., . Squarely in point is Schnell v. Davis, , affirming 81 F. Supp. 872 (D.C. S. D. Ala.), in which we affirmed a district court judgment striking down as a violation of the Fourteenth and Fifteenth Amendments an Alabama constitutional provision restricting the right to vote in that State to persons who could "understand and explain any article of the Constitution of the United States" to the satisfaction of voting registrars. We likewise affirm here the District Court's holding that the provisions of the Louisiana Constitution and statutes which require voters to satisfy registrars of their ability to "understand and give a reasonable interpretation of any section" of the Federal or Louisiana Constitution violate the Constitution. And we agree with the District Court that it specifically conflicts with the prohibitions against discrimination in voting because of race found both in the Fifteenth Amendment and 42 U.S.C. 1971 (a) to subject citizens to such an arbitrary power as Louisiana has given its registrars under these laws. II.This leaves for consideration the District Court's decree. We bear in mind that the court has not merely the power but the duty to render a decree which will so far as possible eliminate the discriminatory effects of the past as well as bar like discrimination in the future. Little if any objection is raised to the propriety of the injunction against further use of the interpretation test as it stood at the time this action was begun, and without further discussion we affirm that part of the decree.Appellants' chief argument against the decree concerns the effect which should be given the new voter-qualification test adopted by the Board of Registration in August 1962, pursuant to statute15 and subsequent constitutional amendment16 after this suit had been filed. The new test, says the State, is a uniform, objective, standardized "citizenship" test administered to all prospective voters alike. Under it, according to the State, an applicant is "required to indiscriminately draw one of ten cards. Each card has six multiple choice questions, four of which the applicant must answer correctly." Confining itself to the allegations of the complaint, the District Court did not pass upon the validity of the new test, but did take it into consideration in formulating the decree.17 The court found that past discrimination against Negro applicants in the 21 parishes where the interpretation test had been applied had greatly reduced the proportion of potential Negro voters who were registered as compared with the proportion of whites. Most if not all of those white voters had been permitted to register on far less rigorous terms than colored applicants whose applications were rejected. Since the new "citizenship" test does not provide for a reregistration of voters already accepted by the registrars, it would affect only applicants not already registered, and would not disturb the eligibility of the white voters who had been allowed to register while discriminatory practices kept Negroes from doing so. In these 21 parishes, while the registration of white persons was increasing, the number of Negroes registered decreased from 25,361 to 10,351. Under these circumstances we think that the court was quite right to decree that, as to persons who met age and residence requirements during the years in which the interpretation test was used, use of the new "citizenship" test should be postponed in those 21 parishes where registrars used the old interpretation test until those parishes have ordered a complete reregistration of voters, so that the new test will apply alike to all or to none. Cf. United States v. Duke, 332 F.2d 759, 769-770 (C. A. 5th Cir.).It also was certainly an appropriate exercise of the District Court's discretion to order reports to be made every month concerning the registration of voters in these 21 parishes, in order that the court might be informed as to whether the old discriminatory practices really had been abandoned in good faith. The need to eradicate past evil effects and to prevent the continuation or repetition in the future of the discriminatory practices shown to be so deeply engrained in the laws, policies, and traditions of the State of Louisiana, completely justified the District Court in entering the decree it did and in retaining jurisdiction of the entire case to hear any evidence of discrimination in other parishes and to enter such orders as justice from time to time might require. Affirmed.MR. JUSTICE HARLAN considers that the constitutional conclusions reached in this opinion can properly be based only on the provisions of the Fifteenth Amendment. In all other respects, he fully subscribes to this opinion.

[Footnote *] Together with No. 86-286, Gray v. United States, also on certiorari to the same court. The federal mail fraud statute, 18 U.S.C. 1341, prohibits the use of the mails to execute "any scheme or artifice to defraud, or for obtaining money or property by means of false of fraudulent pretenses, representations, or promises." Petitioners Gray, a former Kentucky official, and McNally, a private individual, along with one Howard Hunt, the former chairman of the Commonwealth's Democratic Party, were charged with violating 1341 by devising a scheme to defraud the Commonwealth's citizens and government of their "intangible right" to have the Commonwealth's affairs conducted honestly, and to obtain money by means of false pretenses and the concealment of material facts. After informing the jury of the charges, the District Court instructed the jury that the defendants' alleged scheme could be made out either by finding: (1) that Hunt had de facto control over the award of the Commonwealth's workmen's compensation insurance contract; that he obtained commission payments from the company awarded this contract which were mailed to a company he owned and controlled with petitioners, without disclosing his ownership interest to commonwealth officials; and that petitioners aided in the scheme; or (2) that Gray had supervisory authority over the insurance when his company received payments; that he did not disclose his interest in the company to commonwealth officials; and that McNally aided and abetted him. The jury convicted petitioners, and the Court of Appeals affirmed, relying on a line of decisions holding that 1341 proscribes schemes to defraud citizens of their intangible rights to honest and impartial government.Held: The jury charge permitted a conviction for conduct not within the reach of 1341. Pp. 356-361. (a) The language and legislative history of 1341 demonstrate that it is limited in scope to the protection of money or property rights, and does not extend to the intangible right of the citizenry to good government. The argument that, because the statutory phrases "to defraud" and "for obtaining money or property by means of false or fraudulent pretenses, representations, or promises" appear in the disjunctive, they should be construed independently so that "a scheme or artifice to defraud "may include a scheme designed to deprive parties of intangible rights is not persuasive. The words "to defraud" commonly refer to wronging one in his property rights by dishonest methods, and there is nothing to indicate that Congress meant to depart from this common understanding when it enacted 1341 in its present form. Rather, the statute was amended to include the second phrase simply to make it clear that it reaches false promises and misrepresentations as to the future as well as other frauds involving money or property. Pp. 356-360. (b) A state officer does not violate 1341 if he chooses an insurance agency to provide the State's insurance but specifies that the agency must share its commissions with another agency in which the officer has an ownership interest and hence profits from the commissions. Here, there was no charge and the jury was not required to find that the Commonwealth itself was defrauded of any money or property or would have paid a lower premium or secured better insurance in the absence of the alleged scheme. In fact, the commissions Hunt and Gray received were not the Commonwealth's money. Nor was the jury charged that to convict it must find that the Commonwealth was deprived of control over how its money was spent. Indeed, it would have paid the insurance premium to some agency, and Hunt and Gray simply asserted control that the Commonwealth might not otherwise have made over the payment of insurance commissions. Moreover, although the Government relies in part on the assertion that petitioners obtained property by means of false representations to the company awarded the insurance contract, there was nothing in the charge that required such a finding. Pp. 360-361. 790 F.2d 1290, reversed and remanded.WHITE, J., delivered the opinion of the Court, in which REHNQUIST, C. J., and BRENNAN, MARSHALL, BLACKMUN, POWELL, and SCALIA, JJ., joined. STEVENS, J., filed a dissenting opinion, in Parts I, II, and III of which O'CONNOR, J., joined, post, p. 362.Carter G. Phillips argued the cause for petitioners in both cases. With him on the briefs for petitioner in No. 86-286 were James A. Shuffett, William E. Johnson, and Benjamin W. Heineman, Jr. Frank E. Haddad, Jr., filed briefs for petitioner in No. 86-234.Deputy Solicitor General Ayer argued the cause for the United States in both cases. With him on the brief were Solicitor General Fried, Assistant Attorney General Weld, Christopher J. Wright, and Sara Criscitelli. JUSTICE WHITE delivered the opinion of the Court.This action involves the prosecution of petitioner Gray, a former public official of the Commonwealth of Kentucky, and petitioner McNally, a private individual, for alleged violation of the federal mail fraud statute, 18 U.S.C. 1341.1 The prosecution's principal theory of the case, which was accepted by the courts below, was that petitioners' participation in a self-dealing patronage scheme defrauded the citizens and government of Kentucky of certain "intangible rights," such as the right to have the Commonwealth's affairs conducted honestly. We must consider whether the jury charge permitted a conviction for conduct not within the scope of the mail fraud statute.We accept for the sake of argument the Government's view of the evidence, as follows. Petitioners and a third individual, Howard P. "Sonny" Hunt, were politically active in the Democratic Party in the Commonwealth of Kentucky during the 1970's. After Democrat Julian Carroll was elected Governor of Kentucky in 1974, Hunt was made chairman of the state Democratic Party and given de facto control over selecting the insurance agencies from which the Commonwealth would purchase its policies. In 1975, the Wombwell Insurance Company of Lexington, Kentucky (Wombwell), which since 1971 had acted as the Commonwealth's agent for securing a workmen's compensation policy, agreed with Hunt that in exchange for a continued agency relationship it would share any resulting commissions in excess of $50,000 a year with other insurance agencies specified by him. The commissions in question were paid to Wombwell by the large insurance companies from which it secured coverage for the Commonwealth.From 1975 to 1979, Wombwell funneled $851,000 in commissions to 21 separate insurance agencies designated by Hunt. Among the recipients of these payments was Seton Investments, Inc. (Seton), a company controlled by Hunt and petitioner Gray and nominally owned and operated by petitioner McNally.Gray served as Secretary of Public Protection and Regulation from 1976 to 1978 and also as Secretary of the Governor's Cabinet from 1977 to 1979. Prior to his 1976 appointment, he and Hunt established Seton for the sole purpose of sharing in the commissions distributed by Wombwell. Wombwell paid some $200,000 to Seton between 1975 and 1979, and the money was used to benefit Gray and Hunt. Pursuant to Hunt's direction, Wombwell also made excess commission payments to the Snodgrass Insurance Agency, which in turn gave the money to McNally.On account of the foregoing activities, Hunt was charged with and pleaded guilty to mail and tax fraud and was sentenced to three years' imprisonment. Petitioners were charged with one count of conspiracy and seven counts of mail fraud, six of which were dismissed before trial.2 The remaining mail fraud count was based on the mailing of a commission check to Wombwell by the insurance company from which it had secured coverage for the State. This count alleged that petitioners had devised a scheme (1) to defraud the citizens and government of Kentucky of their right to have the Commonwealth's affairs conducted honestly, and (2) to obtain, directly and indirectly, money and other things of value by means of false pretenses and the concealment of material facts.3 The conspiracy count alleged that petitioners had (1) conspired to violate the mail fraud statute through the scheme just described and (2) conspired to defraud the United States by obstructing the collection of federal taxes.After informing the jury of the charges in the indictment,4 the District Court instructed that the scheme to defraud the citizens of Kentucky and to obtain money by false pretenses and concealment could be made out by either of two sets of findings: (1) that Hunt had de facto control over the award of the workmen's compensation insurance contract to Wombwell from 1975 to 1979; that he directed payments of commissions from this contract to Seton, an entity in which he had an ownership interest, without disclosing that interest to persons in state government whose actions or deliberations could have been affected by the disclosure; and that petitioners, or either of them, aided and abetted Hunt in that scheme; or (2) that Gray, in either of his appointed positions, had supervisory authority regarding the Commonwealth's workmen's compensation insurance at a time when Seton received commissions; that Gray had an ownership interest in Seton and did not disclose that interest to persons in state government whose actions or deliberations could have been affected by that disclosure; and that McNally aided and abetted Gray (the latter finding going only to McNally's guilt).The jury convicted petitioners on both the mail fraud and conspiracy counts, and the Court of Appeals affirmed the convictions. 790 F.2d 1290 (CA6 1986). In affirming the substantive mail fraud conviction, the court relied on a line of decisions from the Courts of Appeals holding that the mail fraud statute proscribes schemes to defraud citizens of their intangible rights to honest and impartial government. See, e. g., United States v. Mandel, 591 F.2d 1347 (CA4 1979), aff'd in relevant part, 602 F.2d 653 (en banc), cert. denied, . Under these cases, a public official owes a fiduciary duty to the public, and misuse of his office for private gain is a fraud. Also, an individual without formal office may be held to be a public fiduciary if others rely on him "`because of a special relationship in the government'" and he in fact makes governmental decisions. 790 F.2d, at 1296 (quoting United States v. Margiotta, 688 F.2d 108, 122 (CA2 1982), cert. denied, ). The Court of Appeals held that Hunt was such a fiduciary because he "substantially participated in governmental affairs and exercised significant, if not exclusive, control over awarding the workmen's compensation insurance contract to Wombwell and the payment of monetary kick-backs to Seton." 790 F.2d, at 1296.We granted certiorari, , and now reverse.The mail fraud statute clearly protects property rights, but does not refer to the intangible right of the citizenry to good government. As first enacted in 1872, as part of a recodification of the postal laws, the statute contained a general proscription against using the mails to initiate correspondence in furtherance of "any scheme or artifice to defraud." The sponsor of the recodification stated, in apparent reference to the antifraud provision, that measures were needed "to prevent the frauds which are mostly gotten up in the large cities ... by thieves, forgers, and rapscallions generally, for the purpose of deceiving and fleecing the innocent people in the country."5 Insofar as the sparse legislative history reveals anything, it indicates that the original impetus behind the mail fraud statute was to protect the people from schemes to deprive them of their money or property.Durland v. United States, , the first case in which this Court construed the meaning of the phrase "any scheme or artifice to defraud," held that the phrase is to be interpreted broadly insofar as property rights are concerned, but did not indicate that the statute had a more extensive reach. The Court rejected the argument that "the statute reaches only such cases as, at common law, would come within the definition of `false pretences,' in order to make out which there must be a misrepresentation as to some existing fact and not a mere promise as to the future." Id., at 312. Instead, it construed the statute to "includ[e] everything designed to defraud by representations as to the past or present, or suggestions and promises as to the future." Id., at 313. Accordingly, the defendant's use of the mails to sell bonds which he did not intend to honor was within the statute. The Court explained that "[i]t was with the purpose of protecting the public against all such intentional efforts to despoil, and to prevent the post office from being used to carry them into effect, that this statute was passed ... ." Id., at 314.Congress codified the holding of Durland in 1909, and in doing so gave further indication that the statute's purpose is protecting property rights.6 The amendment added the words "or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises" after the original phrase "any scheme or artifice to defraud." Act of Mar. 4, 1909, ch. 321, 215, 35 Stat. 1130.7 The new language is based on the statement in Durland that the statute reaches "everything designed to defraud by representations as to the past or present, or suggestions and promises as to the future." 161 U.S., at 313. However, instead of the phrase "everything designed to defraud" Congress used the words "[any scheme or artifice] for obtaining money or property."After 1909, therefore, the mail fraud statute criminalized schemes or artifices "to defraud" or "for obtaining money or property by means of false or fraudulent pretenses, representation, or promises ... ." Because the two phrases identifying the proscribed schemes appear in the disjunctive, it is arguable that they are to be construed independently and that the money-or-property requirement of the latter phrase does not limit schemes to defraud to those aimed at causing deprivation of money or property. This is the approach that has been taken by each of the Courts of Appeals that has addressed the issue: schemes to defraud include those designed to deprive individuals, the people, or the government of intangible rights, such as the right to have public officials perform their duties honestly. See, e. g., United States v. Clapps, 732 F.2d 1148, 1152 (CA3 1984); United States v. States, 488 F.2d 761, 764 (CA8 1973).As the Court long ago stated, however, the words "to defraud" commonly refer "to wronging one in his property rights by dishonest methods or schemes," and "usually signify the deprivation of something of value by trick, deceit, chicane or overreaching." Hammerschmidt v. United States, .8 The codification of the holding in Durland in 1909 does not indicate that Congress was departing from this common understanding. As we see it, adding the second phrase simply made it unmistakable that the statute reached false promises and misrepresentations as to the future as well as other frauds involving money or property.We believe that Congress' intent in passing the mail fraud statute was to prevent the use of the mails in furtherance of such schemes. The Court has often stated that when there are two rational readings of a criminal statute, one harsher than the other, we are to choose the harsher only when Congress has spoken in clear and definite language. United States v. Bass, ; United States v. Universal C. I. T. Credit Corp., . See also Rewis v. United States, . As the Court said in a mail fraud case years ago: "There are no constructive offenses; and before one can be punished, it must be shown that his case is plainly within the statute." Fasulo v. United States, . Rather than construe the statute in a manner that leaves its outer boundaries ambiguous and involves the Federal Government in setting standards of disclosure and good government for local and state officials, we read 1341 as limited in scope to the protection of property rights. If Congress desires to go further, it must speak more clearly than it has.For purposes of this action, we assume that Hunt, as well as Gray, was a state officer. The issue is thus whether a state officer violates the mail fraud statute if he chooses an insurance agent to provide insurance for the State but specifies that the agent must share its commissions with other named insurance agencies, in one of which the officer has an ownership interest and hence profits when his agency receives part of the commissions. We note that as the action comes to us, there was no charge and the jury was not required to find that the Commonwealth itself was defrauded of any money or property. It was not charged that in the absence of the alleged scheme the Commonwealth would have paid a lower premium or secured better insurance. Hunt and Gray received part of the commissions but those commissions were not the Commonwealth's money. Nor was the jury charged that to convict it must find that the Commonwealth was deprived of control over how its money was spent. Indeed, the premium for insurance would have been paid to some agency, and what Hunt and Gray did was to assert control that the Commonwealth might not otherwise have made over the commissions paid by the insurance company to its agent.9 Although the Government now relies in part on the assertion that petitioners obtained property by means of false representations to Wombwell, Brief for United States 20-21, n. 17, there was nothing in the jury charge that required such a finding. We hold, therefore, that the jury instruction on the substantive mail fraud count permitted a conviction for conduct not within the reach of 1341.The Government concedes that if petitioners' substantive mail fraud convictions are reversed their conspiracy convictions should also be reversed. Id., at 36, n. 28.The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered.

Petitioner falsely answered "no" when federal agents asked him whether he had received any cash or gifts from a company whose employees were represented by the union in which he was an officer. He was indicted on federal bribery charges and for making a false statement within the jurisdiction of a federal agency in violation of 18 U.S.C. § 1001. A jury in the District Court found him guilty. The Second Circuit affirmed, catagorically rejecting his request to adopt the so-called "exculpatory no" doctrine, which excludes from §1001's scope false statements that consist of the mere denial of wrongdoing.Held: There is no exception to §1001 criminal liability for a false statement consisting merely of an "exculpatory no." Although many Court of Appeals decisions have embraced the "exculpatory no" doctrine, it is not supported by §1001's plain language. By its terms, §1001 covers "any" false statement-that is, a false statement "of whatever kind," United States v. Gonzales ___, ___-including the use of the word "no" in response to a question. Petitioner's argument that §1001 does not criminalize simple denials of guilt proceeds from two mistaken premises: that the statute criminalizes only those statements that "pervert governmental functions," and that simple denials of guilt do not do so. United States v. Gilliland , , distinguished. His argument that a literal reading of §1001 violates the "spirit" of the Fifth Amendment is rejected because the Fifth Amendment does not confer a privilege to lie. E.g., United States v. Apfelbaum, . His final argument that the "exculpatory no" doctrine is necessary to eliminate the grave risk that §1001 will be abused by overzealous prosecutors seeking to "pile on" offenses is not supported by the evidence and should, in any event, be addressed to Congress. Pp. 2-8. 96 F. 3d 35, affirmed. S CALIA , J., delivered the opinion of the Court, in which R EHNQUIST ,C. J., and O'C ONNOR , K ENNEDY , and T HOMAS , JJ., joined, and in whichS OUTER , J., joined in part. S OUTER , J., filed a statement concurring inpart and concurring in the judgment. G INSBURG , J., filed an opinionconcurring in the judgment, in which S OUTER , J., joined. S TEVENS , J.,filed a dissenting opinion, in which B REYER , J., joined. 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.U.S. Supreme Court No. 96-1579 JAMES BROGAN, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT[January 26, 1998]JUSTICE SCALIA delivered the opinion of the Court.This case presents the question whether there is an exception to criminal liability under 18 U.S.C. § 1001 for a false statement that consists of the mere denial of wrongdoing, the so-called "exculpatory no." IWhile acting as a union officer during 1987 and 1988, petitioner James Brogan accepted cash payments from JRD Management Corporation, a real estate company whose employees were represented by the union. On October 4, 1993, federal agents from the Department of Labor and the Internal Revenue Service visited petitioner at his home. The agents identified themselves and explained that they were seeking petitioner's cooperation in an investigation of JRD and various individuals. They told petitioner that if he wished to cooperate, he should have an attorney contact the U. S. Attorney's Office, and that if he could not afford an attorney, one could be appointed for him.The agents then asked petitioner if he would answer some questions, and he agreed. One question was whether he had received any cash or gifts from JRD when he was a union officer. Petitioner's response was "no." At that point, the agents disclosed that a search of JRD headquarters had produced company records showing the contrary. They also told petitioner that lying to federal agents in the course of an investigation was a crime. Petitioner did not modify his answers, and the interview ended shortly thereafter.Petitioner was indicted for accepting unlawful cash payments from an employer in violation of C. §§186(b)(1), (a)(2), (d)(2), and making a false statement within the jurisdiction of a federal agency in violation of 18 U.S.C. § 1001. He was tried, along with several codefendants, before a jury in the United States District Court for the Southern District of New York, and was found guilty. The United States Court of Appeals for the Second Circuit affirmed the convictions, 96 F. 3d 35 (1996). We granted certiorari on the issue of the "exculpatory no." ___ (1997). IIAt the time petitioner falsely replied "no" to the Government investigators' question, 18 U.S.C. § 1001 (1988 ed.) provided:"Whoever, in any matter within the jurisdiction of any department or agency of the United States knowingly and willfully falsifies, conceals or covers up by any trick, scheme, or device a material fact, or makes any false, fictitious or fraudulent statements or representations, or makes or uses any false writing or document knowing the same to contain any false, fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or imprisoned not more than five years, or both."By its terms, 18 U.S.C. § 1001 covers "any" false statement-that is, a false statement "of whatever kind," United States v. Gonzales ___, ___ (1997) (slip op., at 3) (internal quotation marks and citation omitted). The word "no" in response to a question assuredly makes a "statement," see e.g., Webster's New International Dictionary 2461 (2d ed. 1950) (def. 2: "That which is stated; an embodiment in words of facts or opinions"), and petitioner does not contest that his utterance was false or that it was made "knowingly and willfully." In fact, petitioner concedes that under a "literal reading" of the statute he loses. Brief for Petitioner 5.Petitioner asks us, however, to depart from the literal text that Congress has enacted, and to approve the doctrine adopted by many Circuits which excludes from the scope of §1001 the "exculpatory no." The central feature of this doctrine is that a simple denial of guilt does not come within the statute. See, e.g. , Moser v. United States , 18 F. 3d 469, 473-474 (CA7 1994); United States v. Taylor , 907 F. 2d 801, 805 (CA8 1990); United States v. EquihuaJuarez , 851 F. 2d 1222, 1224 (CA9 1988); United States v. Cogdell , 844 F. 2d 179, 183 (CA4 1988); United States v. Tabor , 788 F. 2d 714, 717-719 (CA11 1986); United States v. Fitzgibbon , 619 F. 2d 874, 880-881 (CA10 1980); United States v. Chevoor , 526 F. 2d 178, 183-184 (CA1 1975), cert. denied, . There is considerable variation among the Circuits concerning, among other things, what degree of elaborated tale-telling carries a statement beyond simple denial. See generally Annot., 102 A. L. R. Fed. 742 (1991). In the present case, however, the Second Circuit agreed with petitioner that his statement would constitute a "true 'exculpatory n[o]' as recognized in other circuits," 96 F. 3d, at 37, but aligned itself with the Fifth Circuit (one of whose panels had been the very first to embrace the "exculpatory no" see Paternostro v. United States , 311 F. 2d 298 (CA5 1962)) in categorically rejecting the doctrine, see United States v. Rodriguez-Rios , 14 F. 3d 1040 (CA5 1994) (en banc). Petitioner's argument in support of the "exculpatory no" doctrine proceeds from the major premise that §1001 criminalizes only those statements to Government investigators that "pervert governmental functions"; to the minor premise that simple denials of guilt to government investigators do not pervert governmental functions; to the conclusion that §1001 does not criminalize simple denials of guilt to Government investigators. Both premises seem to us mistaken. As to the minor: We cannot imagine how it could be true that falsely denying guilt in a Government investigation does not pervert a governmental function. Certainly the investigation of wrongdoing is a proper governmental function; and since it is the very purpose of an investigation to uncover the truth, any falsehood relating to the subject of the investigation perverts that function. It could be argued, perhaps, that a disbelieved falsehood does not pervert an investigation. But making the existence of this crime turn upon the credulousness of the federal investigator (or the persuasiveness of the liar) would be exceedingly strange; such a defense to the analogous crime of perjury is certainly unheard-of. 1Moreover, as we shall see, the only support for the "perversion of governmental functions" limitation is a statement of this Court referring to the possibility (as opposed to the certainty) of perversion of function-a possibility that exists whenever investigators are told a falsehood relevant to their task.In any event, we find no basis for the major premise that only those falsehoods that pervert governmental functions are covered by §1001. Petitioner derives this premise from a comment we made in United States v. Gilliland , , a case involving the predecessor to §1001. That earlier version of the statute subjected to criminal liability " 'whoever shall knowingly and willfully ... 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 ... .' " Id. , at 9293. The defendant in Gilliland , relying on the interpretive canon ejusdem generis , 2argued that the statute should be read to apply only to matters in which the Government has a financial or proprietary interest. In rejecting that argument, we noted that Congress had specifically amended the statute to cover " 'any matter within the jurisdiction of any department or agency of the United States,' " thereby indicating "the congressional intent to protect the authorized functions of governmental departments and agencies from the perversion which might result from the deceptive practices described." Id ., at 93. Petitioner would elevate this statement to a holding that §1001 does not apply where a perversion of governmental functions does not exist. But it is not, and cannot be, our practice to restrict the unqualified language of a statute to the particular evil that Congress was trying to remedyeven assuming that it is possible to identify that evil from something other than the text of the statute itself. The holding of Gilliland certainly does not exemplify such a practice, since it rejected the defendant's argument for a limitation that the text of the statute would not bear. And even the relied-upon dictum from Gilliland does not support restricting text to supposed purpose, but to the contrary acknowledges the reality that the reach of a statute often exceeds the precise evil to be eliminated. There is no inconsistency whatever between the proposition that Congress intended "to protect the authorized functions of governmental departments and agencies from the perversion which might result" and the proposition that the statute forbids all "the deceptive practices described." Ibid.The second line of defense that petitioner invokes for the "exculpatory no" doctrine is inspired by the Fifth Amendment. He argues that a literal reading of §1001 violates the "spirit" of the Fifth Amendment because it places a "cornered suspect" in the "cruel trilemma" of admitting guilt, remaining silent, or falsely denying guilt. Brief for Petitioner 11. This "trilemma" is wholly of the guilty suspect's own making, of course. An innocent person will not find himself in a similar quandary (as one commentator has put it, the innocent person lacks even a "lemma," Allen, The Simpson Affair, Reform of the Criminal Justice Process, and Magic Bullets, 67 U. Colo. L. Rev. 989, 1016 (1996)). And even the honest and contrite guilty person will not regard the third prong of the "trilemma" (the blatant lie) as an available option. The bon mot "cruel trilemma" first appeared in Justice Goldberg's opinion for the Court in Murphy v. Waterfront Comm'n of N. Y. Harbor, , where it was used to explain the importance of a suspect's Fifth Amendment right to remain silent when subpoenaed to testify in an official inquiry. Without that right, the opinion said, he would be exposed "to the cruel trilemma of self-accusation, perjury or contempt." Id. , at 55. In order to validate the "exculpatory no," the elements of this "cruel trilemma" have now been altered-ratcheted up, as it were, so that the right to remain silent, which was the liberation from the original trilemma, is now itself a cruelty. We are not disposed to write into our law this species of compassion inflation.Whether or not the predicament of the wrongdoer run to ground tugs at the heart strings, neither the text nor the spirit of the Fifth Amendment confers a privilege to lie. "[P]roper invocation of the Fifth Amendment privilege against compulsory self-incrimination allows a witness to remain silent, but not to swear falsely." United States v. Apfelbaum, . See also United States v. Wong, ; Bryson v. United States, . Petitioner contends that silence is an "illusory" option because a suspect may fear that his silence will be used against him later, or may not even know that silence is an available option. Brief for Petitioner 12-13. As to the former: It is well established that the fact that a person's silence can be used against him-either as substantive evidence of guilt or to impeach him if he takes the stand-does not exert a form of pressure that exonerates an otherwise unlawful lie. See United States v. Knox, . And as for the possibility that the person under investigation may be unaware of his right to remain silent: In the modern age of frequently dramatized "Miranda" warnings, that is implausible. Indeed, we found it implausible (or irrelevant) 30 years ago, unless the suspect was "in custody or otherwise deprived of his freedom of action in any significant way," Miranda v. Arizona , .Petitioner repeats the argument made by many supporters of the "exculpatory no," that the doctrine is necessary to eliminate the grave risk that §1001 will become an instrument of prosecutorial abuse. The supposed danger is that overzealous prosecutors will use this provision as a means of "piling on" offenses-sometimes punishing the denial of wrongdoing more severely than the wrongdoing itself. The objectors' principal grievance on this score, however, lies not with the hypothetical prosecutors but with Congress itself, which has decreed the obstruction of a legitimate investigation to be a separate offense, and a serious one. It is not for us to revise that judgment. Petitioner has been unable to demonstrate, moreover, any history of prosecutorial excess, either before or after widespread judicial acceptance of the "exculpatory no." And finally, if there is a problem of supposed "overreaching" it is hard to see how the doctrine of the "exculpatory no" could solve it. It is easy enough for an interrogator to press the liar from the initial simple denial to a more detailed fabrication that would not qualify for the exemption. IIIA brief word in response to the dissent's assertion that the Court may interpret a criminal statute more narrowly than it is written: Some of the cases it cites for that proposition represent instances in which the Court did not purport to be departing from a reasonable reading of the text, United States v. X-Citement Video, Inc., ; Williams v. United States, . In the others, the Court applied what it thought to be a background interpretive principle of general application. Staples v. United States, (construing statute to contain common-law requirement of mens rea ); Sorrells v. United States, (construing statute not to cover violations produced by entrapment); United States v. Palmer, 3 Wheat. 610, 631 (1818) (construing statute not to apply extraterritorially to noncitizens). Also into this last category falls the dissent's correct assertion that the present statute does not "ma[ke] it a crime for an undercover narcotics agent to make a false statement to a drug peddler." Post , at 2. Criminal prohibitions do not generally apply to reasonable enforcement actions by officers of the law. See, e.g., 2 P. Robinson, Criminal Law Defenses §142(a), p. 121 (1984) ("Every American jurisdiction recognizes some form of law enforcement authority justification").It is one thing to acknowledge and accept such well defined (or even newly enunciated), generally applicable, background principles of assumed legislative intent. It is quite another to espouse the broad proposition that criminal statutes do not have to be read as broadly as they are written, but are subject to case-by-case exceptions. The problem with adopting such an expansive, user-friendly judicial rule, is that there is no way of knowing when, or how, the rule is to be invoked. As to the when: The only reason JUSTICE STEVENS adduces for invoking it here is that a felony conviction for this offense seems to him harsh. Which it may well be. But the instances in which courts may ignore harsh penalties are set forth in the Constitution, see Art. 1, §9; Art. III, §3; Amdt. 8; Amdt. 14, §1; and to go beyond them will surely leave us at sea. And as to the how: There is no reason in principle why the dissent chooses to mitigate the harshness by saying that §1001 does not embrace the "exculpatory no," rather than by saying that §1001 has no application unless the defendant has been warned of the consequences of lying, or indeed unless the defendant has been put under oath. We are again at sea.To be sure, some of this uncertainty would be eliminated, at our stage of judging, if we wrenched out of its context the principle quoted by the dissent from Chancellor Coke, that " communis opinio is of good authoritie in law," 3and if we applied that principle consistently to a consensus in the judgments of the courts of appeals. (Of course the courts of appeals themselves, and the district courts, would still be entirely at sea, until such time as a consensus would have developed.) But the dissent does not propose, and its author has not practiced, consistent application of the principle, see, e.g. , Hubbard v. United States, (STEVENS , J.) ("We think the text of §1001 forecloses any argument that we should simply ratify the body of cases adopting the judicial functions exception"); Chapman v. United States, (STEVENS , J., dissenting) (disagreeing with the unanimous conclusions of the courts of appeals that interpreted the criminal statute at issue); thus it becomes yet another user-friendly judicial rule to be invoked ad libitum .* * *In sum, we find nothing to support the "exculpatory no" doctrine except the many Court of Appeals decisions that have embraced it. While communis error facit jus may be a sadly accurate description of reality, it is not the normative basis of this Court's jurisprudence. Courts may not create their own limitations on legislation, no matter how alluring the policy arguments for doing so, and no matter how widely the blame may be spread. Because the plain language of §1001 admits of no exception for an "exculpatory no," we affirm the judgment of the Court of Appeals. It is so ordered.U.S. Supreme Court No. 96-1579 JAMES BROGAN, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT[January 26, 1998]JUSTICE SOUTER , concurring in part and concurring in the judgment.I join the opinion of the Court except for its response to petitioner's argument premised on the potential for prosecutorial abuse of 18 U.S.C. § 1001 as now written ( ante , 78). On that point I have joined JUSTICE GINSBURG 's opinion espousing congressional attention to the risks inherent in the statute's current breadth. U.S. Supreme Court No. 96-1579 JAMES BROGAN, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT[January 26, 1998]JUSTICE GINSBURG , with whom JUSTICE SOUTER joins, concurring in the judgment.Because a false denial fits the unqualified language of 18 U.S.C. § 1001 I concur in the affirmance of Brogan's conviction. I write separately, however, to call attention to the extraordinary authority Congress, perhaps unwittingly, has conferred on prosecutors to manufacture crimes. I note, at the same time, how far removed the "exculpatory no" is from the problems Congress initially sought to address when it proscribed falsehoods designed to elicit a benefit from the Government or to hinder Government operations. IAt the time of Brogan's offense, §1001 made it a felony "knowingly and willfully" to make "any false, fictitious or fraudulent statements or representations" in "any matter within the jurisdiction of any department or agency of the United States." 18 U.S.C. § 1001 (1988 ed.). That encompassing formulation arms Government agents with authority not simply to apprehend lawbreakers, but to generate felonies, crimes of a kind that only a Government officer could prompt. 1This case is illustrative. Two federal investigators paid an unannounced visit one evening to James Brogan's home. The investigators already possessed records indicating that Brogan, a union officer, had received cash from a company that employed members of the union Brogan served. (The agents gave no advance warning, one later testified, because they wanted to retain the element of surprise. App. 5.) When the agents asked Brogan whether he had received any money or gifts from the company, Brogan responded "No." The agents asked no further questions. After Brogan just said "No," however, the agents told him: (1) the Government had in hand the records indicating that his answer was false; and (2) lying to federal agents in the course of an investigation is a crime. Had counsel appeared on the spot, Brogan likely would have received and followed advice to amend his answer, to say immediately: "Strike that; I plead not guilty." But no counsel attended the unannounced interview, and Brogan divulged nothing more. Thus, when the interview ended, a federal offense had been completed-even though, for all we can tell, Brogan's unadorned denial misled no one.A further illustration. In United States v. Tabor , 788 F. 2d 714 (CA11 1986), an Internal Revenue Service agent discovered that Tabor, a notary public, had violated Florida law by notarizing a deed even though two signatories had not personally appeared before her (one had died five weeks before the document was signed). With this knowledge in hand, and without "warn[ing] Tabor of the possible consequences of her statements," id., at 718, the agent went to her home with a deputy sheriff and questioned her about the transaction. When Tabor, regrettably but humanly, denied wrongdoing, the Government prosecuted her under §1001. See id., at 716. An IRS agent thus turned a violation of state law into a federal felony by eliciting a lie that misled no one. (The Eleventh Circuit reversed the §1001 conviction, relying on the "exculpatory no" doctrine. Id., at 719.)As these not altogether uncommon episodes show, 2 §1001 may apply to encounters between agents and their targets "under extremely informal circumstances which do not sufficiently alert the person interviewed to the danger that false statements may lead to a felony conviction." United States v. Ehrlichman , 379 F. Supp. 291, 292 (DC 1974). Because the questioning occurs in a noncustodial setting, the suspect is not informed of the right to remain silent. Unlike proceedings in which a false statement can be prosecuted as perjury, there may be no oath, no pause to concentrate the speaker's mind on the importance of his or her answers. As in Brogan's case, the target may not be informed that a false "No" is a criminal offense until after he speaks.At oral argument, the Solicitor General forthrightly observed that §1001 could even be used to "escalate completely innocent conduct into a felony." Tr. of Oral Arg. 36. More likely to occur, "if an investigator finds it difficult to prove some elements of a crime, she can ask questions about other elements to which she already knows the answers. If the suspect lies, she can then use the crime she has prompted as leverage or can seek prosecution for the lie as a substitute for the crime she cannot prove." Note, False Statements to Federal Agents: Induced Lies and the Exculpatory No, 57 U. Chi. L. Rev. 1273, 1278 (1990) (footnote omitted). If the statute of limitations has run on an offense-as it had on four of the five payments Brogan was accused of accepting-the prosecutor can endeavor to revive the case by instructing an investigator to elicit a fresh denial of guilt. 3Prosecution in these circumstances is not an instance of Government "punishing the denial of wrongdoing more severely than the wrongdoing itself," a nte , at 7; it is, instead, Government generation of a crime when the underlying suspected wrongdoing is or has become nonpunishable. IIIt is doubtful Congress intended §1001 to cast so large a net. First enacted in 1863 as part of the prohibition against filing fraudulent claims with the Government, the false statement statute was originally limited to statements that related to such filings. See Act of Mar. 2, 1863, ch. 67, 12 Stat. 696-697. In 1918, Congress broadened the prohibition to cover other false statements made "for the purpose and with the intent of cheating and swindling or defrauding the Government of the United States." Act of Oct. 23, 1918, ch. 194, §35, 40 Stat. 1015-1016. But the statute, we held, remained limited to "cheating the Government out of property or money." United States v. Cohn, ."The restricted scope of the 1918 Act [as construed in Cohn ] became a serious problem with the advent of the New Deal programs in the 1930's."United States v. Yermian, (REHNQUIST , J., dissenting). The new regulatory agencies relied heavily on selfreporting to assure compliance; if regulated entities could file false reports with impunity, significant Government interests would be subverted even though the Government would not be deprived of any property or money. See generally United States v. Gilliland, . The Secretary of Interior, in particular, expressed concern that "there were at present no statutes outlawing, for example, the presentation of false documents and statements to the Department of the Interior in connection with the shipment of 'hot oil,' or to the Public Works Administration in connection with the transaction of business with that agency." United States v. Yermian , 468 U.S., at 80 (REHNQUIST , J., dissenting).In response to the Secretary's request, Congress amended the statute in 1934 to include the language that formed the basis for Brogan's prosecution. See Hubbard v. United States, ("We have repeat edly recognized that the 1934 Act was passed at the behest of 'the Secretary of the Interior to aid the enforcement of laws relating to the functions of the Department of the Interior.' ") (quoting United States v. Gilliland , 312 U.S., at 93-94). Since 1934, the statute, the relevant part of which remains the same today, 4has prohibited the making of "any false or fraudulent statements or representations ... 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." Act of June 18, 1934, ch. 587, §35, 48 Stat. 996.As the lower courts that developed the "exculpatory no" doctrine concluded, the foregoing history demonstrates that §1001's "purpose was to protect the Government from the affirmative, aggressive and voluntary actions of persons who take the initiative; and to protect the Government from being the victim of some positive statement which has the tendency and effect of perverting normal and proper governmental activities and functions." Paternostro v. United States , 311 F. 2d 298, 302 (CA5 1962); accord, United States v. Stark , 131 F. Supp. 190, 205 (Md. 1955). True, "the 1934 amendment, which added the current statutory language, was not limited by any specific set of circumstances that may have precipitated its passage." United States v. Rodgers, . Yet it is noteworthy that Congress enacted that amendment to address concerns quite far removed from suspects' false denials of criminal misconduct, in the course of informal interviews initiated by Government agents. Cf. ALI, Model Penal Code §241.3, Comment 1, p. 151 (1980) ("inclusion of oral misstatements" in §1001 was "almost [an] accidental consequenc[e] of the history of that law"). IIIEven if the encompassing language of §1001 precludes judicial declaration of an "exculpatory no" defense, the core concern persists: "The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime." Sherman v. United States, . 5The Government has not been blind to this concern. Notwithstanding the prosecution in this case and the others cited supra , at 2-3, and n. 2, the Department of Justice has long noted its reluctance to approve §1001 indictments for simple false denials made to investigators. Indeed, the Government once asserted before this Court that the arguments supporting the "exculpatory no" doctrine "are forceful even if not necessarily dispositive." Memorandum for United States in Nunley v. United States , O. T. 1977, No. 77-5069, p. 7; see also id., at 7-8 (explaining that "[t]he legislative history affords no express indication that Congress meant Section 1001 to prohibit simple false denials of guilt to Government officials having no regulatory responsibilities other than the discovery and deterrence of crime").In Nunley , we vacated a §1001 conviction and remanded with instructions to dismiss the indictment, at the Solicitor General's suggestion. Nunley v. United States , . The Government urged such a course because the prosecution had been instituted without prior approval from the Assistant Attorney General, and such permission was "normally refused" in cases like Nunley's, where the statements "essentially constitute[d] mere denials of guilt." Memorandum for United States , supra , at 8.Since Nunley , the Department of Justice has maintained a policy against bringing §1001 prosecutions for statements amounting to an "exculpatory no." At the time the charges against Brogan were filed, the United States Attorneys' Manual firmly declared: "Where the statement takes the form of an 'exculpatory no,' 18 U.S.C. § 1001 does not apply regardless who asks the question." United States Attorneys' Manual #2669-42.160 (Oct. 1, 1988). After the Fifth Circuit abandoned the "exculpatory no" doctrine in United States v. Rodriguez-Rios , 14 F. 3d 1040 (1994) (en banc) , the manual was amended to read: "It is the Department's policy that it is not appropriate to charge a Section 1001 violation where a suspect, during an investigation, merely denies his guilt in response to questioning by the government." United States Attorneys' Manual #266942.160 (Feb. 12, 1996). 6These pronouncements indicate, at the least, the dubious propriety of bringing felony prosecutions for bare exculpatory denials informally made to Government agents. 7 Although today's decision holds that such prosecutions can be sustained under the broad language of §1001, the Department of Justice's prosecutorial guide continues to caution restraint in each exercise of this large authority. IVThe Court's opinion does not instruct lower courts automatically to sanction prosecution or conviction under §1001 in all instances of false denials made to criminal investigators. The Second Circuit, whose judgment the Court affirms, noted some reservations. That court left open the question whether "to violate Section 1001, a person must know that it is unlawful to make such a false statement." United States v. Wiener , 96 F. 3d 35, 40 (1996). And nothing that court or this Court said suggests that "the mere denial of criminal responsibility would be sufficient to prove such [knowledge]." Ibid. Moreover, "a trier of fact might acquit on the ground that a denial of guilt in circumstances indicating surprise or other lack of reflection was not the product of the requisite criminal intent," ibid. , and a jury could be instructed that it would be permissible to draw such an inference. Finally, under the statute currently in force, a false statement must be "materia[l]" to violate §1001. See False Statements Accountability Act of 1996, Pub. L. 104-292, §2, 110 Stat. 3459.The controls now in place, however, do not meet the basic issue, i.e. , the sweeping generality of §1001's language. Thus, the prospect remains that an overzealous prosecutor or investigator-aware that a person has committed some suspicious acts, but unable to make a criminal case-will create a crime by surprising the suspect, asking about those acts, and receiving a false denial. Congress alone can provide the appropriate instruction.Congress has been alert to our decisions in this area, as its enactment of the False Statements Accountability Act of 1996 (passed in response to our decision in Hubbard v. United States, ) demonstrates. Similarly, after today's decision, Congress may advert to the "exculpatory no" doctrine and the problem that prompted its formulation.The matter received initial congressional consideration some years ago. Legislation to revise and recodify the federal criminal laws, reported by the Senate Judiciary Committee in 1981 but never enacted, would have established a "defense to a prosecution for an oral false statement to a law enforcement officer" if "the statement was made 'during the course of an investigation of an offense or a possible offense and the statement consisted of a denial, unaccompanied by any other false statement, that the declarant committed or participated in the commission of such offense.' " S. Rep. No. 97-307, p. 407 (1981). In common with the "exculpatory no" doctrine as it developed in the lower courts, this 1981 proposal would have made the defense "available only when the false statement consists solely of a denial of involvement in a crime." Ibid. It would not have protected a denial "if accompanied by any other false statement ( e.g. , the assertion of an alibi)." Ibid. 8The 1981 Senate bill covered more than an "exculpatory no" defense; it addressed frontally, as well, unsworn oral statements of the kind likely to be made without careful deliberation or knowledge of the statutory prohibition against false statements. The bill would have criminal- ized false oral statements to law enforcement officers only "where the statement is either volunteered (e.g., a false alarm or an unsolicited false accusation that another person has committed an offense) or is made after a warning, designed to impress on the defendant the seriousness of the interrogation and his obligation to speak truthfully." Id., at 408.More stringent revision, following the lead of the Model Penal Code and the 1971 proposal of a congressionally chartered law reform commission, would excise unsworn oral statements from §1001 altogether. See ALI, Model Penal Code §§241.3, 241.4, 241.5 (1980); National Commission on Reform of Federal Criminal Laws, Final Report §§1352, 1354 (1971). A recodification proposal reported by the House Judiciary Committee in 1980 adopted that approach. It would have applied the general false statement provision only to statements made in writing or recorded with the speaker's knowledge, see H. R. Rep. No. 96-1396, pp. 181-183 (1980); unsworn oral statements would have been penalized under separate provisions, and only when they entailed misprision of a felony, false implication of another, or false statements about an emergency, see id., at 182. The 1971 law reform commission would have further limited §1001; its proposal excluded from the false statement prohibition all "information given during the course of an investigation into possible commission of an offense unless the information is given in an official proceeding or the declarant is otherwise under a legal duty to give the information." National Commission on Reform of Federal Criminal Laws, Final Report §1352(3).In sum, an array of recommendations has been made to refine §1001 to block the statute's use as a generator of crime while preserving the measure's important role in protecting the workings of Government. I do not divine from the Legislature's silence any ratification of the "exculpatory no" doctrine advanced in lower courts. The ex tensive airing this issue has received, however, may better inform the exercise of Congress' lawmaking authority. U.S. Supreme Court No. 96-1579 JAMES BROGAN, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT[January 26, 1998]JUSTICE STEVENS , with whom JUSTICE BREYER joins, dissenting.Although I agree with nearly all of what Justice Ginsburg has written in her concurrence-a concurrence that raises serious concerns that the Court totally ignores-I dissent for the following reasons.The mere fact that a false denial fits within the unqualified language of 18 U.S.C. § 1001 is not, in my opinion, a sufficient reason for rejecting a well-settled interpretation of that statute. It is not at all unusual for this Court to conclude that the literal text of a criminal statute is broader than the coverage intended by Congress. See, e.g. , Staples v. United States , , 619 (1994); United States v. X-Citement Video, Inc., (departing from "most natural grammatical reading" of statute because of "anomalies which result from this construction," and presumptions with respect to scienter in criminal statutes and avoiding constitutional questions); Id. , at 81 (stating that lower court interpretation of statute rejected by the Court was "quite obviously the only grammatical reading ") (SCALIA , J., dissenting); Williams v. United States, (holding that statute prohibiting the making of false statements to a bank was inapplicable to depositing of a "bad check" because "the Government's interpretation ... would make a surprisingly broad range of unremarkable conduct a violation of federal law"); Sorrells v. United States, ("We are unable to conclude that it was the intention of the Congress in enacting [a Prohibition Act] statute that its processes of detection and enforcement should be abused by the instigation by government officials of an act on the part of persons otherwise innocent in order to lure them to its commission and to punish them"); United States v. Palmer , 3 Wheat. 610, 631 (1818) (holding that although "words 'any person or persons,' [in maritime robbery statute] are broad enough to comprehend every human being ... general words must not only be limited to cases within the jurisdiction of the state, but also to those objects to which the legislature intended to apply them") (Marshall, C. J.). Although the text of §1001, read literally, makes it a crime for an undercover narcotics agent to make a false statement to a drug peddler, I am confident that Congress did not intend any such result. As Justice Ginsburg has explained, it seems equally clear that Congress did not intend to make every "exculpatory no" a felony. 1Even if that were not clear, I believe the Court should show greater respect for the virtually uniform understanding of the bench and the bar that persisted for decades with, as Justice Ginsburg notes, ante, at 7-8, the approval of this Court as well as the Department of Justice. 2See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., (STEVENS , J., dissenting); McNally v. United States, , 376 (1987) (STEVENS , J. , dissenting). 3 Or, as Sir Edward Coke phrased it, "it is the common opinion, and communis opinio is of good authoritie in law." 41 E. Coke, Institutes 186a (15th ed. 1794).Accordingly, I respectfully dissent.

As a result of Sally Ordway Irvine's 1979 disclaimer of five-sixteenths of her interest in the corpus of a recently terminated trust that had been created by her grandfather in 1917, each of her five children received one-sixteenth of her share of the distributed trust principal. Her disclaimer was effective under Minnesota law even though she had learned of her contingent interest in the trust at least as early as 1931 when she became 21, but the Internal Revenue Service determined that the disclaimer brought about a gratuitous transfer that was subject to federal gift tax under Internal Revenue Code 2501(a)(1) and 2511(a). Mrs. Irvine died after she paid the tax and accrued interest, and respondents, representing her estate, filed this refund action. Arguing that the transaction was not excepted from gift tax under Treasury Regulation 25.2511-1(c)(2) (Regulation), the Government relied on Jewett v. Commissioner, , in which this Court construed the 1958 version of the Regulation to provide that the disclaimer of a remainder interest in a trust effects a taxable gift to the beneficiary of the disclaimer unless the disclaimant acts within a reasonable time after learning of the transfer that created the interest being disclaimed. Respondents attempted to distinguish Jewett as having dealt with a trust established in 1939, after the creation of the gift tax by the Revenue Act of 1932 (Act). The District Court ruled for respondents on cross-motions for summary judgment. The Court of Appeals affirmed, holding that the Regulation's express terms rendered it inapplicable to the trust in question; that state law therefore governed, and the federal gift tax did not apply because Mrs. Irvine's disclaimer was indisputably valid under state law; and that taxation of the transfer Page II effected by the disclaimer would violate the Act's prohibition of retroactive gift taxation.Held: The disclaimer of a remainder interest in a trust is subject to federal gift taxation when the creation of the interest (but not the disclaimer) occurred before enactment of the gift tax. Pp. 8-18. (a) Although the Internal Revenue Code's gift tax provisions embrace all gratuitous transfers of property having significant value, the Regulation affords an exception by providing that a disclaimer of property transferred from a decedent's estate does not result in a gift if it is unequivocal and effective under local law, and made "within a reasonable time after knowledge of the existence of the transfer." The Jewett Court held that "the transfer" in the 1958 version of the Regulation refers to the creation of the interest being disclaimed, with the "reasonable time" therefore beginning to run upon knowledge of the creation of the trust. Pp. 8-9. (b) If the Regulation applies to Mrs. Irvine's disclaimer, her act resulted in taxable gifts. The knowledge and capacity to act, which are presupposed by the requirement that a tax-free disclaimer be made within a reasonable time of the disclaimant's knowledge of the transfer of the interest to her, were present in this instance at least as early as Mrs. Irvine's 21st birthday in 1931. Although there is no bright line rule for timeliness in the absence of a statute or regulation providing one, Mrs. Irvine's delay for at least 47 years in making her disclaimer could not possibly be thought reasonable. Pp. 9-11. (c) Respondents' arguments that the Regulation is inapposite by its own terms to the facts of this case need not be resolved here, for the result of the Regulation's inapplicability would not be, as respondents claim, a freedom from gift taxation on a theory of borrowed state law. State property transfer rules do not translate into federal taxation rules because the principles underlying the two look to different objects. In order to defeat the claims of a disclaimant's creditors in the disclaimed property, the state rules apply the legal fiction that an effective disclaimer of a testamentary gift cancels the transfer to the disclaimant ab initio and substitutes a single transfer from the original donor to the disclaimant's beneficiary. In contrast, Congress enacted the gift tax as a supplement to the federal estate tax and a means of curbing estate tax avoidance. Since the reasons for defeating a disclaimant's creditors would furnish no reasons for defeating the gift tax, the Court in Jewett, supra, at 317, was undoubtedly correct to hold that Congress had not meant to incorporate state law fictions as touchstones of taxability when it enacted the Act. Absent such a Page III legal fiction, the federal gift tax is not struck blind by a disclaimer. Pp. 12-16. (d) Taxation of the transfer following Mrs. Irvine's disclaimer would not violate 501(b) of the Act, which provided that it would "not apply to a transfer made on or before the date of the enactment of this Act [June 6, 1932]." Section 501 merely prohibited application of the gift tax statute to transfers antedating the enactment of the Act; it did not prohibit taxation where, as here, interests created before the Act were transferred after enactment. Pp. 16-18. 981 F.2d 991, reversed.SOUTER, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and STEVENS, O'CONNOR, KENNEDY, THOMAS, and GINSBURG, JJ., joined, and in which SCALIA, J., joined except as to Part III-A. SCALIA, J., filed an opinion concurring in part and concurring in the judgment. BLACKMUN, J., took no part in the decision of the case. [ UNITED STATES v. IRVINE, ___ U.S. ___ (1994), 1] JUSTICE SOUTER delivered the opinion of the Court. In Jewett v. Commissioner, , we construed the 1958 version of Treasury Regulation 25.2511-1(c) to provide that the disclaimer of a remainder interest in a trust effects a taxable gift unless the disclaimant acts within a reasonable time after learning of the transfer that created the interest. This case presents the question whether the rule is the same, under current Treasury Regulation 25.2511-1(c)(2) (Regulation), when the creation of the interest (but not the disclaimer) occurred before enactment of the federal gift tax provisions of the Revenue Act of 1932. We hold that it is.IIn 1917, Lucius P. Ordway established an irrevocable inter vivos family trust, with his wife and their children as primary concurrent life income beneficiaries, to be succeeded by unmarried surviving spouses of the children and by grandchildren. The trust was to terminate upon the death of the last surviving primary income beneficiary, at which time the corpus would be distributed to Mr. Ordway's surviving grandchildren and the issue of any grandchildren who had died before [ UNITED STATES v. IRVINE, ___ U.S. ___ (1994), 2] termination. When the trust terminated on June 27, 1979, the corpus was subject to division into 13 equal shares among 12 grandchildren living and the issue of one who had died. Prior to distribution, on August 23, 1979, one of the grandchildren, Sally Ordway Irvine, filed a disclaimer of five-sixteenths of her interest in the trust principal. Mrs. Irvine had learned of her contingent interest in the trust at least as early as 1931 when she reached the age of 21, and she had begun receiving a share of the annual trust income after her father's death in 1966. Her disclaimer was nonetheless effective under a Minnesota statute on the books at the time, which permitted the disclaimer of a future interest at any time within six months of the event finally identifying the disclaimant and causing her interest to become indefeasibly fixed.1 As a result of her disclaimer, each of Mrs. Irvine's five children received one-sixteenth of her share of the distributed trust principal.Mrs. Irvine reported the disclaimer in a federal gift tax return, but did not treat it as resulting in a taxable gift. The Commissioner of Internal Revenue determined on audit that the disclaimer indirectly transferred property by gift within the meaning of Internal Revenue Code of 1986 2501(a)(1)2 and 2511(a),3 and was not [ UNITED STATES v. IRVINE, ___ U.S. ___ (1994), 3] excepted from gift tax under Treas.Reg. 25.2511-1(c)4 because it was not made "within a reasonable time after [Mrs. Irvine's] knowledge" of her grandfather's transfer creating her interest in the trust estate. Mrs. Irvine responded with an amended return treating the disclaimer as a taxable gift, on which she paid the resulting tax of $7,468,671.00, plus $2,086,627.51 in accrued interest on the deficiency.5 She then claimed a refund [ UNITED STATES v. IRVINE, ___ U.S. ___ (1994), 4] of the tax and interest, which the Internal Revenue Service denied.After Mrs. Irvine's death in 1987, respondents, representing her estate, filed this action for refund of the tax and interest in the United States District Court for the District of Minnesota. The Government continued to maintain that the partial disclaimer brought about a transfer subject to federal gift tax because Mrs. Irvine had not made it, as the Regulation requires, "within a reasonable time after knowledge of the [earlier] transfer" that created her interest in the trust estate. The Government relied on Jewett v. Commissioner, , in which this Court held that the "transfer" referred to in Treas.Reg. 25.2511-1(c), 26 CFR 25.2511-1(c) (1959) (promulgated in 1958), knowledge of which starts the clock ticking, occurs at the creation of the interest being disclaimed, not when its extent is finally ascertained or it becomes possessory. Jewett, supra, at 311-312.Respondents tried to distinguish Jewett as having dealt with a trust established in 1939, after the creation of the gift tax by the Revenue Act of 1932 (Act), whereas the Ordway trust had been created before the Act, in 1917. Respondents also argued that the "reasonable time" limitation did not apply, because the pre-Act, 1917 transfer creating the trust was not a "taxable transfer" of an interest, absent which the Regulation was inapplicable.6 On cross-motions for summary judgment, the [ UNITED STATES v. IRVINE, ___ U.S. ___ (1994), 5] District Court held that imposing the gift tax on Mrs. Irvine's disclaimer would amount to retroactive application of the gift tax in violation of the Act's provision that "[t]he tax shall not apply to a transfer made on or before the date of the enactment of this Act [June 6, 1932]." Revenue Act of 1932, ch. 209, 501(b), 47 Stat. 245. The District Court cited Ordway v. United States, 89-1 USTC § 13,802 (1989), in which the United States [ UNITED STATES v. IRVINE, ___ U.S. ___ (1994), 6] District Court for the Southern District of Florida had reached the same conclusion, on virtually identical facts, in a case involving a partial disclaimer by another beneficiary of the Ordway trust.A divided panel of the Court of Appeals for the Eighth Circuit reversed. 936 F.2d 343 (1991). It rejected the view that the Regulation is inapplicable to a trust created before enactment of the gift tax statute simply because the Regulation reaches only "`taxable transfers creating an interest in the person disclaiming made before January 1, 1977.'" Id., at 347 (emphasis in original). The Court of Appeals held that the transfer creating the trust was "taxable," relying on the provision of Treas.Reg. 25.2518-2(c)(3) that "a taxable transfer occurs when there is a completed gift for Federal gift tax purposes regardless of whether a gift tax is imposed on the completed gift." 936 F.2d, at 347-348. The court adopted the reasoning of its sister court for the Eleventh Circuit in Ordway v. United States, 908 F.2d 890 (1990), which held that a "taxable transfer" occurs within the meaning of the Regulation whenever there is "any transaction in which an interest in property is gratuitously passed or conferred upon another, even if that transaction was not subject to the gift tax." Id., at 895 (citation omitted). Applying the Regulation, the Court of Appeals for the Eighth Circuit held that Mrs. Irvine's disclaimer was subject to gift tax because she did not make it within a reasonable time after she learned of her interest in the trust. Finally, the divided panel also upheld application of the Act against the claim of retroactivity, holding it to be irrelevant that the trust antedated the 1932 enactment of the Act, since the tax was being imposed on the transfer brought about by the 1979 disclaimer, not on the inter vivos transfer that created the trust in 1917. 936 F.2d, at 346.Respondents' suggestion for rehearing en banc was granted, however, and the panel opinion was vacated. [ UNITED STATES v. IRVINE, ___ U.S. ___ (1994), 7] Unlike the panel, the en banc court affirmed the District Court, holding the Regulation inapplicable because its terms expressly limit its scope to "taxable transfers ... made before January 1, 1977." 981 F.2d 991 (CA8 1992). The creation of the Ordway trust in 1917 was not a "taxable transfer," the court reasoned, because the federal gift tax provisions had yet to be enacted: "It is fundamental that for a transfer to be taxable there must be an applicable tax in existence when the transfer is made. No such federal tax existed on January 16, 1917, when ... Mrs. Irvine's interest was created." Id., at 994. Given the inapplicability of the Regulation and its "reasonable time" requirement for tax-free disclaimer, the majority held that state law governed the effect of a disclaimer for federal gift tax purposes. See id., at 996 (citing Hardenbergh v. Commissioner, 198 F.2d 63 (CA8), cert. denied, ); 981 F.2d, at 998 (concurring opinion). Because Mrs. Irvine's disclaimer was indisputably valid under Minnesota law, the court held that the federal gift tax did not apply. Finally, the majority rejected the panel's analysis of retroactive application, indicating that taxation of the transfer effected by the disclaimer would violate the Act's prohibition of retroactive gift taxation. Id., at 994.In a concurring opinion, id., at 996-998, Judge Loken also concluded the Regulation was inapplicable not because of its limitation to "taxable transfers," but because it is limited to interests in "property transferred from a decedent ... by the decedent's will or by the law of descent and distribution," whereas the Ordway trust came from an inter vivos transfer. Judge Loken shared the majority view, however, that, because the Regulation was inapplicable, federal gift tax consequences of the disclaimer were a function of state law. The dissent took the position of the majority in the panel opinion, and of the Eleventh Circuit in Ordway v. United States, supra. See 981 F.2d, at 998-1002. [ UNITED STATES v. IRVINE, ___ U.S. ___ (1994), 8] The conflict prompted us to grant certiorari to determine whether a disclaimer made after enactment of the gift tax statute, of an interest created before enactment, is necessarily free of any consequent federal gift taxation. ___ (1993). We hold that it is not, and reverse.IIThe Internal Revenue Code of 1986 taxes "the transfer of property by gift," 26 U.S.C. 2501(a)(1),7 "whether the transfer is in trust or otherwise, whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible... .," 2511(a).8 We have repeatedly emphasized that this comprehensive language was chosen to embrace all gratuitous transfers, by whatever means, of property and property rights of significant value. See, e.g., Dickman v. Commissioner, ; Jewett v. Commissioner, 455 U.S., at 309-310; Smith v. Shaughnessy, . We held in Jewett, supra, at 310, that "the statutory language ... unquestionably encompasses an indirect transfer, effected by means of a disclaimer, of a contingent future interest in a trust," the practical effect of such a transfer being "to reduce the expected size of [the taxpayer's] taxable estate and to confer a gratuitous benefit upon the natural objects of [her] bounty... ."Treas.Reg. 25.2511-1(c)(1)9 restates the gift tax's [ UNITED STATES v. IRVINE, ___ U.S. ___ (1994), 9] broad scope by providing that the tax is payable on "any transaction in which an interest in property is gratuitously passed or conferred upon another, regardless of the means or device employed... ." The Regulation (subsection 1(c)(2)), on the other hand, affords an exception to the general rule of taxability, by providing that a disclaimer of property transferred by a decedent's will or the law of descent and distribution does not result in a gift if it is unequivocal and effective under local law, and made "within a reasonable time after knowledge of the existence of the transfer." As already noted, the Jewett Court held that "the transfer" in the 1958 version of the Regulation refers to the creation of the interest being disclaimed, with the "reasonable time" therefore beginning to run upon knowledge of the creation of the trust. See supra, at 4.IIIAOn one point, there cannot be any serious dispute, for it is clear that, if the Regulation applies to Mrs. Irvine's disclaimer, her act resulted in taxable gifts. The knowledge and capacity to act, which are presupposed by the requirement that a tax-free disclaimer be made within a reasonable time of the disclaimant's knowledge of the transfer of the interest to her, were present in this instance at least as early as Mrs. Irvine's 21st birthday in 1931.10 We need not decide whether a [ UNITED STATES v. IRVINE, ___ U.S. ___ (1994), 10] disclaimer good for gift tax purposes could be required to have been made before enactment of the gift tax, for Mrs. Irvine did not disclaim shortly after enactment of the Act, and the timeliness determination in this case would be the same whether the reasonable time was calculated from Mrs. Irvine's first knowledge of the interest (1931) or from the enactment of the federal gift tax statute (1932). Moreover, we understand the Government to have conceded that it would not have contested the timeliness of a disclaimer made within a reasonable time after the enactment of the Act. See Tr. of Oral Arg. 12.The determination of the amount of "reasonable time" that remained after Mrs. Irvine learned of the interest and reached majority status must be based upon the gift tax's purpose to curb avoidance of the estate tax. We have already observed, supra, at 8, that "the practical effect of [a disclaimer like this one is] to reduce the expected size of [the disclaimant's] taxable estate and to confer a gratuitous benefit upon the natural objects of [her] bounty... ." Jewett, 455 U.S., at 310. Accordingly, as the Court said in Jewett, "`[a]n important, if not the main, purpose of the gift tax was to prevent or compensate for avoidance of death taxes by taxing the gifts of property inter vivos which, but for the gifts, would be subject in its original or converted form to the tax laid upon transfers at death.'" Ibid. (quoting Estate of Sanford v. Commissioner, ). Hence the capacious language of Internal Revenue Code 2501(a)(1) and 2511(a), which encompasses all gratuitous transfers of property and property rights of significant value. See supra, at 9. [ UNITED STATES v. IRVINE, ___ U.S. ___ (1994), 11] "[T]he passage of time is crucial to the scheme of the gift tax." Jewett, supra, at 316, n. 17 (internal quotation marks and citation omitted). The opportunity to disclaim, and thereby to avoid gift as well as estate taxation, should not be so long as to provide a virtually unlimited opportunity to consider estate planning consequences. While a decision to disclaim even at the earliest opportunity may be made with appreciation of potential estate tax consequences, the passage of time puts the prospective disclaimant in a correspondingly superior position to determine whether her need to enjoy the property (and incur a tax for a subsequent gift of it or an increased estate tax if she retains it) outweighs the favorable estate and gift tax consequences of a disclaimer. Although there is no bright line rule for timeliness in the absence of a statute or regulation providing one, Mrs. Irvine's delay for at least 47 years after the clock began running, until she reached age 68, could not possibly be thought reasonable. By the date of her disclaimer, Mrs. Irvine was in a position to make a fairly precise determination of the advantage to be gained by a transfer diminishing her estate and its eventual taxation. If her decision were treated as timely, the requirement for a timely election would have no bite at all.BRespondents would avoid this result on two alternative grounds. They argue first that by its own terms, the Regulation does not apply on the facts of this case, with the consequence that taxability under the Internal Revenue Code turns on the efficacy of the disclaimer under state law. Second, respondents argue that even if the disclaimer would result in an otherwise taxable transfer in the absence of the governing Regulation, the tax on transfer of an interest created by an instrument antedating the enactment of the gift tax statute would [ UNITED STATES v. IRVINE, ___ U.S. ___ (1994), 12] be barred by the statutory prohibition of retroactive application.1The question of the Regulation's applicability under its own terms need not be resolved here, for the result of its inapplicability would not be freedom from gift taxation on a theory of borrowed state law or on any other rationale. The arguments for inapplicability may therefore be shortly stated, each having been raised at one point or another in the prior litigation of this case.The first argument turns on the Regulation's application to disclaimers of interests created by what it terms "taxable transfers," a phrase that on its face presupposes some source of taxability for the transfer. There was, however, no gift tax when the trust, including its remainder interests, was created in 1917, and the gift tax provisions of the Act did not render preenactment transfers taxable.11 The language is, to say the least, troublesome to the Government's position that the Regulation applies. The Government responds to the trouble by citing Treas.Reg. 25.2518-2(c)(3)12 (adopted in 1986, as was the Regulation), which deals with the new regime (not applicable here) for disclaimers of interests created after December 31, 1976,13 and defines [ UNITED STATES v. IRVINE, ___ U.S. ___ (1994), 13] "taxable transfer" for its purposes as covering transfers on which no tax is actually imposed (e.g., because a gift is chargeable against the current lifetime exemption, 26 U.S.C. 2503(b)). If this definition is thought to beg the question, the Government falls back to the argument that the predecessor regulation was not limited in application to interests derived from taxable transfers, and there was no intent in 1986 to narrow the scope covered by the 1958 version of the Regulation in any such way.The second argument rests on the Regulation's provision that "the transfer" to which it applies is subject to a timely, tax-free disclaimer "whether the transfer is effected by the decedent's will or by the law of descent and distribution," but only "where the law governing the administration of the decedent's estate" gives the recipient of the transferred interest a right to refuse it.14 As against these descriptions of the transfer's testamentary character, the text says nothing indicating that a taxable transfer from anyone other than a decedent may create an interest subject to a disclaimer free of gift tax. If the text is given its strict reading, then, it has no application to the interest in question here, which came into being not from a decedent's transfer by will or from application of the law of descent and distribution, but from Mr. Ordway's transfer during his lifetime, creating an irrevocable inter vivos trust.15 [ UNITED STATES v. IRVINE, ___ U.S. ___ (1994), 14] 2Even assuming the soundness of one or both of these arguments that the Regulation is inapposite, however, the disclaimer would not escape federal gift taxation by reference to state law rules giving effect to the disclaimer as causing a transfer to the beneficiary next in line. Any such reasoning would run counter to our holding in Jewett. In rejecting the argument that the 1958 version of the Regulation was being applied retroactively to the taxpayer's disadvantage in that case, the Jewett Court repudiated the "assumption that [the taxpayer] had a "right" to renounce the interest without tax consequences that was "taken away" by the 1958 Regulation. [The taxpayer] never had such a right." Jewett, 455 U.S., at 317. Only then did the Jewett Court go on to determine that the disclaimer at issue did not fall within the exemption from the gift tax provided by the Regulation, and was consequently taxable. Id., at 312-316. The Court followed the general and longstanding rule in federal tax cases that, although state law creates legal interests and rights in property, federal law determines whether and to what extent those interests will be taxed. See, e.g., Burnet v. Harmel; Morgan v. Commissioner, ; United States v. Mitchell, . The Court put it this way in United States v. Pelzer, :"[T]he revenue laws are to be construed in the light of their general purpose to establish a nationwide scheme of taxation uniform in its application. Hence their provisions are not to be taken as subject to state control or limitation unless the language or necessary implication of the section involved makes its application dependent on state law." [ UNITED STATES v. IRVINE, ___ U.S. ___ (1994), 15] Cases like Jewett and this one illustrate as well as any why it is that state property transfer rules do not translate into federal taxation rules. Under state property rules, an effective disclaimer of a testamentary gift16 is generally treated as relating back to the moment of the original transfer of the interest being disclaimed, having the effect of canceling the transfer to the disclaimant ab initio and substituting a single transfer from the original donor to the beneficiary of the disclaimer. See, e.g., Schoonover v. Osborne, 193 Iowa 474, 478, 187 N.W. 20, 22 (1922); Seifner v. Weller, 171 S.W.2d 617, 624 (Mo. 1943); Albany Hosp. v. Hanson, 214 N.Y. 435, 445, 108 N.E. 812, 815 (1915); Burritt v. Silliman, 13 N.Y. 93, 9798 (1855); Perkins v. Isley, 224 N.C. 793, 798, 32 S.E.2d 588, 591 (1945); see also 3 American Law of Property 14.15 (A. Casner ed. 1952). Although a state law right to disclaim with such consequences might be thought to follow from the common law principle that a gift is a bilateral transaction, requiring not only a donor's intent to give, but also a donee's acceptance, see, e.g., Wallace v. Moore, 219 Ga. 137, 139, 132 S.E.2d 37, 39 (1963); Gottstein v. Hedges, 210 Iowa 272, 275, 228 N.W. 93, 94 (1929); Pirie v. Le Saulnier, 161 Wis. 503, 507, 154 N.W. 993, 994 (1915); Blanchard v. Sheldon, 43 Vt. 512, 514 (1871), state law tolerance for delay in disclaiming reflects a less theoretical concern. An important consequence of treating a disclaimer as an ab initio defeasance is that [ UNITED STATES v. IRVINE, ___ U.S. ___ (1994), 16] the disclaimant's creditors are barred from reaching the disclaimed property. See, e.g., Gottstein v. Hedges, supra. The ab initio disclaimer thus operates as a legal fiction obviating a more straightforward rule defeating the claims of a disclaimant's creditors in the property disclaimed.The principles underlying the federal gift tax treatment of disclaimers look to different objects, however. As we have already stated, Congress enacted the gift tax as a supplement to the estate tax and a means of curbing estate tax avoidance. See supra, at 10-11. Since the reasons for defeating a disclaimant's creditors would furnish no reasons for defeating the gift tax as well, the Jewett Court was undoubtedly correct to hold that Congress had not meant to incorporate state law fictions as touchstones of taxability when it enacted the Act. Absent such a legal fiction, the federal gift tax is not struck blind by a disclaimer. And as we have already stated, supra, at 8-9, without the exception afforded in the Regulation,17 the gift tax statute provides a general rule of taxability for disclaimers such as respondent's.IVPresumably to ward off any attack on the federal gift tax resting on the possibility that its retroactive application would violate due process, see Untermeyer v. Anderson, 501(b) of the Act provided that it would "not apply to a transfer made on or before the date of the enactment of this Act [June 6, 1932]." Revenue Act of 1932, ch. 209, 501(b), 47 Stat. 245. The same provision has in substance been carried [ UNITED STATES v. IRVINE, ___ U.S. ___ (1994), 17] forward to this day.18 Respondents argue that even if the Regulation applies, or taxation would otherwise be authorized, taxation of the transfer following Mrs. Irvine's disclaimer would violate this limitation. The language that respondents use to frame this claim reveals the flaw in their position. Respondents argue that "[t]he government's interpretation of the 1986 Regulation to apply to interests created before enactment of the Act [i.e., to result in taxability] would be a retroactive application of the Act clearly contrary to Congressional intent." Brief for Respondents 26. But 501 merely prohibited application of the gift tax statute to transfers antedating the enactment of the Act; it did not prohibit taxation when interests created before the Act were transferred after enactment. Such post-enactment transfers are all that happened on the occasion of Mrs. Irvine's disclaimer. The critical events, the transfers of fractional portions of Mrs. Irvine's remainder to her children, occurred after enactment of the gift tax, though the interests transferred were created before that date. To argue otherwise, that the transfer to be taxed antedated the Act, would be to cling to the legal fiction that the disclaimer related back to the moment in 1917 when Lucius P. Ordway established the trust. This fiction may be indulged under state law as a device to regulate creditors' rights, but the Jewett Court clearly held that Congress enacted no such fantasy.19 In sum, the retroactivity argument is sufficiently [ UNITED STATES v. IRVINE, ___ U.S. ___ (1994), 18] answered by our statement in United States v. Jacobs, , that a tax "does not operate retroactively merely because some of the facts or conditions upon which its application depends came into being prior to the enactment of the tax."VThe Commissioner's assessment of federal gift tax on Mrs. Irvine's 1979 disclaimer was authorized by the statute. The judgment of the Court of Appeals is reversed. It is so ordered.JUSTICE BLACKMUN took no part in the decision of this case.

Petitioners, parents of District of Columbia (D.C.) school children, brought this action seeking damages and declaratory and injunctive relief for invasion of privacy that they claimed resulted from the dissemination of a congressional report on the D.C. school system that included identification of students in derogatory contexts. The named defendants included members of a House committee, Committee employees, a Committee investigator, and a consultant; the Public Printer and the Superintendent of Documents; and officials and employees connected with the school system. The Court of Appeals affirmed the District Court's dismissal of the complaint on the grounds that the first two categories of defendants were immune by reason of the Speech or Debate Clause, and that the D.C. officials and the legislative employees were protected by the official immunity doctrine recognized in Barr v. Matteo, . Held: 1. The congressional committee members, members of their staff, the consultant, and the investigator are absolutely immune under the Speech or Debate Clause insofar as they engaged in the legislative acts of compiling the report, referring it to the House, or voting for its publication. Pp. 311-313. 2. The Clause does not afford absolute immunity from private suit to persons who, with authorization from Congress, perform the function, which is not part of the legislative process, of publicly distributing materials that allegedly infringe upon the rights of individuals. The Court of Appeals, therefore, erred in holding that respondents who (except for the Committee members and personnel) were charged with such public distribution were protected by the Clause. Pp. 313-318. 3. The Public Printer and the Superintendent of Documents are protected by the doctrine of official immunity enunciated in Barr v. Matteo, supra, for publishing and distributing the report only to the extent that they served legitimate legislative functions in doing so, and the Court of Appeals erred in holding that their immunity extended beyond that limit. Pp. 318-324. App. D.C. 280, 459 F.2d 1304, reversed in part, affirmed in part, and remanded. WHITE, J., delivered the opinion of the Court, in which DOUGLAS, BRENNAN, MARSHALL, and POWELL, JJ., joined. DOUGLAS, J., filed a concurring opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 325. BURGER, C. J., filed an opinion concurring in part and dissenting in part, post, p. 331. BLACKMUN, J., filed an opinion concurring in part and dissenting in part, in which BURGER, C. J., joined, post, p. 332. REHNQUIST, J., filed an opinion concurring in part and dissenting in part, in which BURGER, C. J., and BLACKMUN, J., joined, and in Part I of which STEWART, J., joined, post, p. 338.Michael J. Valder argued the cause for petitioners. With him on the brief was Jean Camper Cahn.Fred M. Vinson, Jr., and William C. Cramer argued the cause for the Legislative respondents. With them on the brief were Robert S. Erdahl, James S. Rubin, Richard M. Haber, Benton L. Becker, and Walter C. DeVaughn. David P. Sutton argued the cause for the District of Columbia respondents. With him on the brief were C. Francis Murphy and Richard W. Barton.MR. JUSTICE WHITE delivered the opinion of the Court.This case concerns the scope of congressional immunity under the Speech or Debate Clause of the United States Constitution, Art. I, 6, cl. 1, as well as the reach of official immunity in the legislative context. See Barr v. Matteo, ; Tenney v. Brandhove, .By resolution adopted February 5, 1969, H. Res. 76, 91st Cong., 1st Sess., 115 Cong. Rec. 2784, the House of Representatives authorized the Committee on the District of Columbia or its subcommittee "to conduct a full and complete investigation and study of ... the organization, management, operation, and administration" of any department or agency of the government of the District of Columbia or of any independent agency or instrumentality of government operating solely within the District of Columbia. The Committee was given subpoena power and was directed to "report to the House as soon as practicable ... the results of its investigation and study together with such recommendations as it deems advisable." On December 8, 1970, a Special Select Subcommittee of the Committee on the District of Columbia submitted to the Speaker of the House a report, H. R. Rep. No. 91-1681 (1970), represented to be a summary of the Subcommittee's investigation and hearings devoted to the public school system of the District of Columbia. On the same day, the report was referred to the Committee of the Whole House on the State of the Union and was ordered printed. 116 Cong. Rec. 40311 (1970). Thereafter, the report was printed and distributed by the Government Printing Office pursuant to 44 U.S.C. 501 and 701.The 450-page report included among its supporting data some 45 pages that are the gravamen of petitioners' suit. Included in the pertinent pages were copies of absence sheets, lists of absentees, copies of test papers, and documents relating to disciplinary problems of certain specifically named students.1 The report stated that these materials were included to "give a realistic view" of a troubled school and "the lack of administrative efforts to rectify the multitudinous problems there," to show the level of reading ability of seventh graders who were given a fifth-grade history test, and to illustrate suspension and disciplinary problems.2 On January 8, 1971, petitioners, under pseudonyms, brought an action in the United States District Court for the District of Columbia on behalf of themselves, their children, and all other children and parents similarly situated. The named defendants were (1) the Chairman and members of the House Committee on the District of Columbia; (2) the Clerk, Staff Director, and Counsel of the Committee; (3) a consultant and an investigator for the Committee; (4) the Superintendent of Documents and the Public Printer; (5) the President and members of the Board of Education of the District of Columbia; (6) the Superintendent of Public Schools of the District of Columbia; (7) the principal of Jefferson Junior High School and one of the teachers at that school; and (8) the United States of America.Petitioners alleged that, by disclosing, disseminating, and publishing the information contained in the report, the defendants had violated the petitioners' and their children's statutory, constitutional, and common-law rights to privacy and that such publication had caused and would cause grave damage to the children's mental and physical health and to their reputations, good names, and future careers. Petitioners also alleged various violations of local law. Petitioners further charged that "unless restrained, defendants will continue to distribute and publish information concerning plaintiffs, their children and other students." The complaint prayed for an order enjoining the defendants from further publication, dissemination, and distribution of any report containing the objectionable material and for an order recalling the reports to the extent practicable and deleting the objectionable material from the reports already in circulation. Petitioners also asked for compensatory and punitive damages.3 The District Court, after a hearing on motions for a temporary restraining order and for an order against further distribution of the report, dismissed the action against the individual defendants on the ground that the conduct complained of was absolutely privileged.4 A divided panel of the United States Court of Appeals for the District of Columbia Circuit affirmed. Without determining whether the complaint stated a cause of action under the Constitution or any applicable law, the majority held that the Members of Congress, the Committee staff employees, and the Public Printer and Superintendent of Documents were immune from the liability asserted against them because of the Speech or Debate Clause and that the official immunity doctrine recognized in Barr v. Matteo, supra, barred any liability on the part of the District of Columbia officials as well as the legislative employees.5 We granted certiorari, . ITo "prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary," Gravel v. United States, , Art. I, 6, cl. 1, of the Constitution provides that "for any Speech or Debate in either House, they [Members of Congress] shall not be questioned in any other Place.""The Speech or Debate Clause was designed to assure a co-equal branch of the government wide freedom of speech, debate, and deliberation without intimidation or threats from the Executive Branch. It thus protects Members against prosecutions that directly impinge upon or threaten the legislative process." Id., at 616.6 The Speech or Debate Clause has been read "broadly to effectuate its purposes," United States v. Johnson, ; Gravel v. United States, supra, at 624, and includes within its protections anything "generally done in a session of the House by one of its members in relation to the business before it." Kilbourn v. Thompson, ; United States v. Johnson, supra, at 179; Gravel v. United States, supra, at 624; Powell v. McCormack, ; United States v. Brewster, , 512-513 (1972). Thus "voting by Members and committee reports are protected" and "a Member's conduct at legislative committee hearings, although subject to judicial review in various circumstances, as is legislation itself, may not be made the basis for a civil or criminal judgment against a Member because that conduct is within the `sphere of legitimate legislative activity.'" Gravel v. United States, supra, at 624.Without belaboring the matter further, it is plain to us that the complaint in this case was barred by the Speech or Debate Clause insofar as it sought relief from the Congressmen-Committee members, from the Committee staff, from the consultant, or from the investigator, for introducing material at Committee hearings that identified particular individuals, for referring the report that included the material to the Speaker of the House, and for voting for publication of the report. Doubtless, also, a published report may, without losing Speech or Debate Clause protection, be distributed to and used for legislative purposes by Members of Congress, congressional committees, and institutional or individual legislative functionaries. At least in these respects, the actions upon which petitioners sought to predicate liability were "legislative acts," Gravel v. United States, supra, at 618, and, as such, were immune from suit.7 Petitioners argue that including in the record of the hearings and in the report itself materials describing particular conduct on the part of identified children was actionable because unnecessary and irrelevant to any legislative purpose. Cases in this Court, however, from Kilbourn to Gravel pretermit the imposition of liability on any such theory. Congressmen and their aides are immune from liability for their actions within the "legislative sphere," Gravel v. United States, supra, at 624-625, even though their conduct, if performed in other than legislative contexts, would in itself be unconstitutional or otherwise contrary to criminal or civil statutes. Although we might disagree with the Committee as to whether it was necessary, or even remotely useful, to include the names of individual children in the evidence submitted to the Committee and in the Committee Report, we have no authority to oversee the judgment of the Committee in this respect or to impose liability on its Members if we disagree with their legislative judgment. The acts of authorizing an investigation pursuant to which the subject materials were gathered, holding hearings where the materials were presented, preparing a report where they were reproduced, and authorizing the publication and distribution of that report were all "integral part[s] of the deliberative and communicative processes by which Members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House." Id., at 625. As such, the acts were protected by the Speech or Debate Clause.Our cases make perfectly apparent, however, that everything a Member of Congress may regularly do is not a legislative act within the protection of the Speech or Debate Clause. "[T]he Clause has not been extended beyond the legislative sphere," and "[l]egislative acts are not all-encompassing." Id., at 624-625. Members of Congress may frequently be in touch with and seek to influence the Executive Branch of Government, but this conduct "though generally done, is not protected legislative activity." Id., at 625; United States v. Johnson, supra. Nor does the Speech or Debate Clause protect a private republication of documents introduced and made public at a committee hearing, although the hearing was unquestionably part of the legislative process. Gravel v. United States, supra.The proper scope of our inquiry, therefore, is whether the Speech or Debate Clause affords absolute immunity from private suit to persons who, with authorization from Congress, distribute materials which allegedly infringe upon the rights of individuals. The respondents insist that such public distributions are protected, that the Clause immunizes not only publication for the information and use of Members in the performance of their legislative duties but also must be held to protect "publications to the public through the facilities of Congress." Public dissemination, it is argued, will serve "the important legislative function of informing the public concerning matters pending before Congress ... ." Brief for Legislative Respondents 27.We do not doubt the importance of informing the public about the business of Congress. However, the question remains whether the act of doing so, simply because authorized by Congress, must always be considered "an integral part of the deliberative and communicative processes by which Members participate in committee and House proceedings" with respect to legislative or other matters before the House. Gravel v. United States, supra, at 625. A Member of Congress may not with impunity publish a libel from the speaker's stand in his home district, and clearly the Speech or Debate Clause would not protect such an act even though the libel was read from an official committee report.8 The reason is that republishing a libel under such circumstances is not an essential part of the legislative process and is not part of that deliberative process "by which Members participate in committee and House proceedings." Ibid. By the same token, others, such as the Superintendent of Documents or the Public Printer or legislative personnel, who participate in distribution of actionable material beyond the reasonable bounds of the legislative task, enjoy no Speech or Debate Clause immunity.Members of Congress are themselves immune for ordering or voting for a publication going beyond the reasonable requirements of the legislative function, Kilbourn v. Thompson, supra, but the Speech or Debate Clause no more insulates legislative functionaries carrying out such nonlegislative directives than it protected the Sergeant at Arms in Kilbourn v. Thompson when, at the direction of the House, he made an arrest that the courts subsequently found to be "without authority." 103 U.S., at 200.9 See also Powell v. McCormack, 395 U.S., at 504; cf. Dombrowski v. Eastland, . The Clause does not protect "criminal conduct threatening the security of the person or property of others, whether performed at the direction of the Senator in preparation for or in execution of a legislative act or done without his knowledge or direction." Gravel v. United States, supra, at 622. Neither, we think, does it immunize those who publish and distribute otherwise actionable materials beyond the reasonable requirements of the legislative function.10 Thus, we cannot accept the proposition that in order to perform its legislative function Congress not only must at times consider and use actionable material but also must be free to disseminate it to the public at large, no matter how injurious to private reputation that material might be. We cannot believe that the purpose of the Clause - "to prevent intimidation of legislators by the Executive and accountability before a possibly hostile judiciary," Gravel v. United States, supra, at 617; Powell v. McCormack, supra, at 502; United States v. Johnson, 383 U.S., at 181 - will suffer in the slightest if it is held that those who, at the direction of Congress or otherwise, distribute actionable material to the public at large have no automatic immunity under the Speech or Debate Clause but must respond to private suits to the extent that others must respond in light of the Constitution and applicable laws.11 To hold otherwise would be to invite gratuitous injury to citizens for little if any public purpose. We are unwilling to sanction such a result, at least absent more substantial evidence that, in order to perform its legislative function, Congress must not only inform the public about the fundamentals of its business but also must distribute to the public generally materials otherwise actionable under local law.Contrary to the suggestion of our dissenting Brethren, we cannot accept the proposition that our conclusion, that general, public dissemination of materials otherwise actionable under local law is not protected by the Speech or Debate Clause, will seriously undermine the "informing function" of Congress. To the extent that the Committee report is printed and internally distributed to Members of Congress under the protection of the Speech or Debate Clause, the work of Congress is in no way inhibited. Moreover, the internal distribution is "public" in the sense that materials internally circulated, unless sheltered by specific congressional order, are available for inspection by the press and by the public. We only deal, in the present case, with general, public distribution beyond the halls of Congress and the establishments of its functionaries, and beyond the apparent needs of the "due functioning of the [legislative] process." United States v. Brewster, 408 U.S., at 516.That the Speech or Debate Clause has finite limits is important for present purposes. The complaint before us alleges that the respondents caused the Committee report "to be distributed to the public," that "distribution of the report continues to the present," and that, "unless restrained, defendants will continue to distribute and publish" damaging information about petitioners and their children. It does not expressly appear from the complaint, nor is it contended in this Court, that either the Members of Congress or the Committee personnel did anything more than conduct the hearings, prepare the report, and authorize its publication. As we have stated, such acts by those respondents are protected by the Speech or Debate Clause and may not serve as a predicate for a suit. The complaint was therefore properly dismissed as to these respondents. Other respondents, however, are alleged to have carried out a public distribution and to be ready to continue such dissemination.In response to these latter allegations, the Court of Appeals, after receiving sufficient assurances from the respondents that they had no intention of seeking a republication or carrying out further distribution of the report, concluded that there was no basis for injunctive relief. But this left the question whether any part of the previous publication and public distribution by respondents other than the Members of Congress and Committee personnel went beyond the limits of the legislative immunity provided by the Speech or Debate Clause of the Constitution. Until that question was resolved, the complaint should not have been dismissed on threshold immunity grounds, unless the Court of Appeals was correct in ruling that the action against the other respondents was foreclosed by the doctrine of official immunity, a question to which we now turn.12 IIThe official immunity doctrine, which "has in large part been of judicial making," Barr v. Matteo, 360 U.S., at 569, confers immunity on Government officials of suitable rank for the reason that "officials of government should be free to exercise their duties unembarrassed by the fear of damage suits in respect of acts done in the course of those duties - suits which would consume time and energies which would otherwise be devoted to governmental service and the threat of which might appreciably inhibit the fearless, vigorous, and effective administration of policies of government." Id., at 571.13 The official-immunity doctrine seeks to reconcile two important considerations -"[O]n the one hand, the protection of the individual citizen against pecuniary damage caused by oppressive or malicious action on the part of officials of the Federal Government; and on the other, the protection of the public interest by shielding responsible governmental officers against the harassment and inevitable hazards of vindictive or ill-founded damage suits brought on account of action taken in the exercise of their official responsibilities." Id., at 565. In the Barr case, the Court reaffirmed existing immunity law but made it clear that the immunity conferred might not be the same for all officials for all purposes. Id., at 573; see also Tenney v. Brandhove, 341 U.S., at 378; Dombrowski v. Eastland, 387 U.S., at 85. Judges, like executive officers with discretionary functions, have been held absolutely immune regardless of their motive or good faith. Barr v. Matteo, supra, at 569; Pierson v. Ray, . But policemen and like officials apparently enjoy a more limited privilege. Id., at 555-558. Also, the Court determined in Barr that the scope of immunity from defamation suits should be determined by the relation of the publication complained of to the duties entrusted to the officer. Barr v. Matteo, supra, at 573-574; see also the companion case, Howard v. Lyons, . The scope of immunity has always been tied to the "scope of ... authority." Wheeldin v. Wheeler, . In the legislative context, for instance, "[t]his Court has not hesitated to sustain the rights of private individuals when it found Congress was acting outside its legislative role." Tenney v. Brandhove, supra, at 377. Thus, we have recognized "the immunity of legislators for acts within the legislative role," Pierson v. Ray, supra, at 554, but have carefully confined that immunity to protect only acts within "the sphere of legitimate legislative activity." Tenney v. Brandhove, supra, at 376; cf. Powell v. McCormack, supra.Because the Court has not fashioned a fixed, invariable rule of immunity but has advised a discerning inquiry into whether the contributions of immunity to effective government in particular contexts outweigh the perhaps recurring harm to individual citizens, there is no readymade answer as to whether the remaining federal respondents - the Public Printer and the Superintendent of Documents - should be accorded absolute immunity in this case. Of course, to the extent that they serve legislative functions, the performance of which would be immune conduct if done by Congressmen, these officials enjoy the protection of the Speech or Debate Clause. Our inquiry here, however, is whether, if they participate in publication and distribution beyond the legislative sphere, and thus beyond the protection of the Speech or Debate Clause, they are nevertheless protected by the doctrine of official immunity. Our starting point is at least a minimum familiarity with their functions and duties. The statutes of the United States created the office of Public Printer to manage and supervise the Government Printing Office, which, with certain exceptions, is the authorized printer for the various branches of the Federal Government. 44 U.S.C. 301. "Printing or binding may be done at the Government Printing Office only when authorized by law." 501. The Public Printer is authorized to do printing for Congress, 701-741, 901-910, as well as for the Executive and Judicial Branches of Government, 1101-1123. The Public Printer is authorized to appoint the Superintendent of Documents with duties concerning the distribution and sale of documents. 1701-1722.Under the applicable statutes, when either House of Congress orders a document printed, the Public Printer is to print the "usual number" unless a greater number is ordered. 701. The "usual number" is 1,682, to be divided between bound and unbound copies and distributed to named officers or offices of the House and Senate, to the Library of Congress, and to the Superintendent of Documents for further distribution "to the State libraries and designated depositories." Ibid.14 There are also statutory provisions for the printing of extra copies, 702, bills and resolutions, 706-708, public and private laws, postal conventions, and treaties, 709-712, journals, 713, the Congressional Directory, 721-722, memorial addresses, 723-724, and the Statutes at Large, 728-729. Section 733 provides that "[t]he Public Printer on order of a Member of Congress, on prepayment of the cost, may reprint documents and reports of committees together with the evidence papers submitted, or any part ordered printed by the Congress." With respect to printing for the Executive and Judicial Branches, it is provided that "[a] head of an executive department ... may not cause to be printed, and the Public Printer may not print, a document or matter unless it is authorized by law and necessary to the public business." 1102 (a). The executive departments and the courts are to requisition printing by certifying that it is "necessary for the public service." 1103.The Superintendent of Documents has charge of the distribution of all public documents except those printed for use of the executive departments, "which shall be delivered to the departments," and for either House of Congress, "which shall be delivered to the Senate Service Department and House of Representatives Publications Distribution Service." 1702. He is thus in charge of the public sale and distribution of documents. The Public Printer is instructed to "print additional copies of a Government publication, not confidential in character, required for sale to the public by the Superintendent of Documents," subject to regulation by the Joint Committee on Printing. 1705.It is apparent that under this statutory framework, the printing of documents and their general distribution to the public would be "within the outer perimeter" of the statutory duties of the Public Printer and the Superintendent of Documents. Barr v. Mateo, 360 U.S., at 575. Thus, if official immunity automatically attaches to any conduct expressly or impliedly authorized by law, the Court of Appeals correctly dismissed the complaint against these officials. This, however, is not the governing rule.The duties of the Public Printer and his appointee, the Superintendent of Documents, are to print, handle, distribute, and sell Government documents. The Government Printing Office acts as a service organization for the branches of the Government. What it prints is produced elsewhere and is printed and distributed at the direction of the Congress, the departments, the independent agencies and offices, or the Judicial Branch of the Government. The Public Printer and Superintendent of Documents exercise discretion only with respect to estimating the demand for particular documents and adjusting the supply accordingly. The existence of a Public Printer makes it unnecessary for every Government agency and office to have a printer of its own. The Printing Office is independently created and manned and invested with its own statutory duties; but, we do not think that its independent establishment carries with it an independent immunity. Rather, the Printing Office is immune from suit when it prints for an executive department for example, only to the extent that it would be if it were part of the department itself or, in other words, to the extent that the department head himself would be immune if he ran his own printing press and distributed his own documents. To hold otherwise would mean that an executive department could acquire immunity for non-immune materials merely by presenting the proper certificate to the Public Printer, who would then have the duty to print the material. Under such a holding, the department would have a seemingly fool-proof method for manufacturing immunity for materials which the court would not otherwise hold immune if not sufficiently connected with the "official duties" of the department. Howard v. Lyons, 360 U.S., at 597.Congress has conferred no express statutory immunity on the Public Printer or the Superintendent of Documents. Congress has not provided that these officials should be immune for printing and distributing materials where those who author the materials would not be. We thus face no statutory or constitutional problems in interpreting this doctrine of "judicial making." Barr v. Matteo, 360 U.S., at 569. We do, however, write in the shadow of Board of Regents of State Colleges v. Roth, , and Wisconsin v. Constantineau, , where the Court advised caution "[w]here a person's good name, reputation, honor, or integrity is at stake because of what the government is doing to him ... ." Id., at 437. We conclude that, for the purposes of the judicially fashioned doctrine of immunity, the Public Printer and the Superintendent of Documents are no more free from suit in the case before us than would be a legislative aide who made copies of the materials at issue and distributed them to the public at the direction of his superiors. See Dombrowski v. Eastland, . The scope of inquiry becomes equivalent to the inquiry in the context of the Speech or Debate Clause, and the answer is the same. The business of Congress is to legislate; Congressmen and aides are absolutely immune when they are legislating. But when they act outside the "sphere of legitimate legislative activity," Tenney v. Brandhove, 341 U.S., at 376, they enjoy no special immunity from local laws protecting the good name or the reputation of the ordinary citizen.Because we think the Court of Appeals applied the immunities of the Speech or Debate Clause and of the doctrine of official immunity too broadly, we must reverse its judgment and remand the case for appropriate further proceedings.15 We are unaware, from this record, of the extent of the publication and distribution of the report which has taken place to date. Thus, we have little basis for judging whether the legitimate legislative needs of Congress, and hence the limits of immunity, have been exceeded. These matters are for the lower courts in the first instance.Of course, like the Court of Appeals, we indicate nothing as to whether petitioners have pleaded a good cause of action or whether respondents have other defenses, constitutional or otherwise. We have dealt only with the threshold question of immunity.16 The judgment of the Court of Appeals is reversed in part and affirmed in part, and the case is remanded to the Court of Appeals for further proceedings consistent with this opinion. So ordered.

A provision of the Federal Tort Claims Act (FTCA), 28 U.S.C. 2401 (b), bars any tort claim against the United States unless it is presented in writing to the appropriate federal agency "within two years after such claim accrues." In 1968, several weeks after having an infected leg treated with neomycin (an antibiotic) at a Veterans' Administration (VA) hospital, respondent suffered a hearing loss, and in January 1969 was informed by a private physician that it was highly possible that the hearing loss was the result of the neomycin treatment. Subsequently, in the course of respondent's unsuccessful administrative appeal from the VA's denial of his claim for certain veterans' benefits based on the allegation that the neomycin treatment had caused his deafness, another private physician in June 1971 told respondent that the neomycin had caused his injury and should not have been administered. In 1972, respondent filed suit under the FTCA, alleging that he had been injured by negligent treatment at the VA hospital. The District Court rendered judgment for respondent, rejecting the Government's defense that respondent's claim was barred by the 2-year statute of limitations because it had accrued in January 1969, when respondent first learned that his hearing loss had probably resulted from the neomycin, and holding that respondent had no reason to suspect negligence until his conversation with the second physician in June 1971, less than two years before the action was commenced. The Court of Appeals affirmed, holding that if a medical malpractice claim does not accrue until a plaintiff is aware of his injury and its cause, neither should it accrue until he knows or should suspect that the doctor who caused the injury was legally blameworthy, and that here the limitations period was not triggered until the second physician indicated in June 1971 that the neomycin treatment had been improper.Held: A claim accrues within the meaning of 2401 (b) when the plaintiff knows both the existence and the cause of his injury, and not at a later time when he also knows that the acts inflicting the injury may constitute medical malpractice. Hence, respondent's claim accrued in January 1969 when he was aware of his injury and its probable cause, and thus was barred by the 2-year statute of limitations. Pp. 117-125. (a) Section 2401 (b) is the balance struck by Congress in the context of tort claims against the Government, and should not be construed so as to defeat its purpose of encouraging the prompt presentation of claims. Moreover, 2401 (b), being a condition of the FTCA's waiver of the United States' immunity from suit, should not be construed to extend such waiver beyond that which Congress intended. Pp. 117-118. (b) There is nothing in the FTCA's language or legislative history that provides a substantial basis for the Court of Appeals' construction of 2401 (b). Nor did the prevailing case law at the time the FTCA was passed lend support to the notion that tort claims in general or malpractice claims in particular do not accrue until a plaintiff learns that his injury was negligently inflicted. Pp. 119-120. (c) For statute of limitations purposes, a plaintiff's ignorance of his legal rights and his ignorance of the fact of his injury or its cause should not receive equal treatment. P. 122. (d) A plaintiff such as respondent, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community, and to excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute. Whether or not he is competently advised, or even whether he is advised, the putative malpractice plaintiff must determine within the period of limitations whether to sue or not, which is precisely the judgment that other tort plaintiffs must make. Pp. 123-124. 581 F.2d 1092, reversed.WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. STEVENS, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 125.Elinor Hadley Stillman argued the cause for the United States. With her on the brief were Solicitor General McCree, Assistant Attorney General Babcock, Deputy Solicitor General Easterbrook, and William Kanter.Benjamin Kuby argued the cause for respondent. With him on the brief were Paul N. Minkoff and Joan Saltzman. Mr. JUSTICE WHITE delivered the opinion of the Court.Under the Federal Tort Claims Act (Act),1 28 U.S.C. 2401 (b), a tort claim against the United States is barred unless it is presented in writing to the appropriate federal agency "within two years after such claim accrues." The issue in this case is whether the claim "accrues" within the meaning of the Act when the plaintiff knows both the existence and the cause of his injury or at a later time when he also knows that the acts inflicting the injury may constitute medical malpractice.IRespondent Kubrick, a veteran, was admitted to the Veterans' Administration (VA) hospital in Wilkes-Barre, Pa., in April 1968, for treatment of an infection of the right femur. Following surgery, the infected area was irrigated with neomycin, an antibiotic, until the infection cleared. Approximately six weeks after discharge, Kubrick noticed a ringing sensation in his ears and some loss of hearing. An ear specialist in Scranton, Pa., Dr. Soma, diagnosed the condition as bilateral nerve deafness. His diagnosis was confirmed by other specialists. One of them, Dr. Sataloff, secured Kubrick's VA hospital records and in January 1969, informed Kubrick that it was highly possible that the hearing loss was the result of the neomycin treatment administered at the hospital. Kubrick, who was already receiving disability benefits for a service-connected back injury, filed an application for an increase in benefits pursuant to 38 U.S.C. 351,2 alleging that the neomycin treatment had caused his deafness. The VA denied the claim in September 1969, and on resubmission again denied the claim, on the grounds that no causal relationship existed between the neomycin treatment and the hearing loss and that there was no evidence of "carelessness, accident, negligence, lack of proper skill, error in judgment or other fault on the part of the Government."In the course of pursuing his administrative appeal, Kubrick was informed by the VA that Dr. Soma had suggested a connection between Kubrick's loss of hearing and his prior occupation as a machinist. When questioned by Kubrick on June 2, 1971, Dr. Soma not only denied making the statement attributed to him but also told respondent that the neomycin had caused his injury and should not have been administered. On Dr. Sataloff's advice, respondent then consulted an attorney and employed him to help with his appeal. In rendering its decision in August 1972, the VA Board of Appeals recognized that Kubrick's hearing loss "may have been caused by the neomycin irrigation" but rejected the appeal on the ground that the treatment was in accordance with acceptable medical practices and procedures and that the Government was therefore faultless.3 Kubrick then filed suit under the Act, alleging that he had been injured by negligent treatment in the VA hospital.4 After trial, the District Court rendered judgment for Kubrick, rejecting, among other defenses, the assertion by the United States that Kubrick's claim was barred by the 2-year statute of limitations because the claim had accrued in January 1969, when he learned from Dr. Sataloff that his hearing loss had probably resulted from the neomycin. The District Court conceded that the lower federal courts had held with considerable uniformity that a claim accrues within the meaning of the Act when "the claimant has discovered, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged malpractice," 435 F. Supp. 166, 180 (ED Pa. 1977), and that notice of the injury and its cause normally were sufficient to trigger the limitations period. Id., at 184. As the District Court read the authorities, however, a plaintiff could avoid the usual rule by showing that he had exercised reasonable diligence and had no "reasonable suspicion" that there was negligence in his treatment. Id., at 185. "[W]e do not believe it reasonable to start the statute running until the plaintiff had reason at least to suspect that a legal duty to him had been breached." Ibid. Here, the District Court found, Kubrick had no reason to suspect negligence until his conversation with Dr. Soma in June 1971, less than two years prior to presentation of his tort claim.The District Court went on to hold, based on the expert testimony before it, that a reasonably competent orthopedic surgeon in the Wilkes-Barre community, which the VA doctor held himself out to be, should have known that irrigating Kubrick's wound with neomycin would cause deafness. It was therefore negligent to use that drug in that manner. Damages were determined and awarded.Except for remanding to resolve a setoff claimed by the United States,5 the Court of Appeals for the Third Circuit affirmed. 581 F.2d 1092 (1978). It ruled that even though a plaintiff is aware of his injury and of the defendant's responsibility for it, the statute of limitations does not run where the plaintiff shows that "in the exercise of due diligence he did not know, nor should he have known, facts which would have alerted a reasonable person to the possibility that the treatment was improper." Id., at 1097. We granted certiorari to resolve this important question of the administration of the statute, , and we now reverse.IIStatutes of limitations, which "are found and approved in all systems of enlightened jurisprudence," Wood v. Carpenter, , represent a pervasive legislative judgment that it is unjust to fail to put the adversary on notice to defend within a specified period of time and that "the right to be free of stale claims in time comes to prevail over the right to prosecute them." Railroad Telegraphers v. Railway Express Agency, . These enactments are statutes of repose; and although affording plaintiffs what the legislature deems a reasonable time to present their claims, they protect defendants and the courts from having to deal with cases in which the search for truth may be seriously impaired by the loss of evidence, whether by death or disappearance of witnesses, fading memories, disappearance of documents, or otherwise. United States v. Marion, , n. 14 (1971); Burnett v. New York Central R. Co., ; Chase Securities Corp. v. Donaldson, ; Missouri, K. & T. R. Co. v. Harriman, ; Bell v. Morrison, 1 Pet. 351, 360 (1828).Section 2401 (b), the limitations provision involved here, is the balance struck by Congress in the context of tort claims against the Government; and we are not free to construe it so as to defeat its obvious purpose, which is to encourage the prompt presentation of claims. Campbell v. Haverhill, ; Bell v. Morrison, supra, at 360. We should regard the plea of limitations as a "meritorious defense, in itself serving a public interest." Guaranty Trust Co. v. United States, .We should also have in mind that the Act waives the immunity of the United States and that in construing the statute of limitations, which is a condition of that waiver, we should not take it upon ourselves to extend the waiver beyond that which Congress intended. See Soriano v. United States, ; cf. Indian Towing Co. v. United States, . Neither, however, should we assume the authority to narrow the waiver that Congress intended. Indian Towing Co. v. United States, supra.It is in the light of these considerations that we review the judgment of the Court of Appeals.IIIIt is undisputed in this case that in January 1969 Kubrick was aware of his injury and its probable cause. Despite this factual predicate for a claim against the VA at that time, the Court of Appeals held that Kubrick's claim had not yet accrued and did not accrue until he knew or could reasonably be expected to know that in the eyes of the law, the neomycin treatment constituted medical malpractice. The Court of Appeals thought that in "most" cases knowledge of the causal connection between treatment and injury, without more, will or should alert a reasonable person that there has been an actionable wrong. 581 F.2d, at 1096. But it is apparent, particularly in light of the facts in this record, that the Court of Appeals' rule would reach any case where an untutored plaintiff, without benefit of medical or legal advice and because of the "technical complexity" of the case, id., at 1097, would not himself suspect that his doctors had negligently treated him. As we understand the Court of Appeals, the plaintiff in such cases need not initiate a prompt inquiry and would be free to sue at any time within two years from the time he receives or perhaps forms for himself a reasonable opinion that he has been wronged. In this case, for example, Kubrick would have been free to sue if Dr. Soma had not told him until 1975, or even 1980, instead of 1971, that the neomycin treatment had been a negligent act. There is nothing in the language or the legislative history of the Act that provides a substantial basis for the Court of Appeals' construction of the accrual language of 2401 (b).6 Nor did the prevailing case law at the time the Act was passed lend support for the notion that tort claims in general or malpractice claims in particular do not accrue until a plaintiff learns that his injury was negligently inflicted. Indeed, the Court of Appeals recognized that the general rule under the Act has been that a tort claim accrues at the time of the plaintiff's injury, although it thought that in medical malpractice cases the rule had come to be that the 2-year period did not begin to run until the plaintiff has discovered both his injury and its cause.7 But even so - and the United States was prepared to concede as much for present purposes - the latter rule would not save Kubrick's action since he was aware of these essential facts in January 1969. Reasoning, however, that if a claim does not accrue until a plaintiff is aware of his injury and its cause, neither should it accrue until he knows or should suspect that the doctor who caused his injury was legally blameworthy, the Court of Appeals went on to hold that the limitations period was not triggered until Dr. Soma indicated in June 1971 that the neomycin irrigation treatment had been improper.8 We disagree. We are unconvinced that for statute of limitations purposes a plaintiff's ignorance of his legal rights and his ignorance of the fact of his injury or its cause should receive identical treatment. That he has been injured in fact may be unknown or unknowable until the injury manifests itself; and the facts about causation may be in the control of the putative defendant, unavailable to the plaintiff or at least very difficult to obtain. The prospect is not so bleak for a plaintiff in possession of the critical facts that he has been hurt and who has inflicted the injury. He is no longer at the mercy of the latter. There are others who can tell him if he has been wronged, and he need only ask. If he does ask and if the defendant has failed to live up to minimum standards of medical proficiency, the odds are that a competent doctor will so inform the plaintiff.In this case, the trial court found, and the United States did not appeal its finding, that the treating physician at the VA hospital had failed to observe the standard of care governing doctors of his specialty in Wilkes-Barre, Pa., and that reasonably competent doctors in this branch of medicine would have known that Kubrick should not have been treated with neomycin.9 Crediting this finding, as we must, Kubrick need only have made inquiry among doctors with average training and experience in such matters to have discovered that he probably had a good cause of action. The difficulty is that it does not appear that Kubrick ever made any inquiry, although meanwhile he had consulted several specialists about his loss of hearing and had been in possession of all the facts about the cause of his injury since January 1969. Furthermore, there is no reason to doubt that Dr. Soma, who in 1971 volunteered his opinion that Kubrick's treatment had been improper, would have had the same opinion had the plaintiff sought his judgment in 1969.We thus cannot hold that Congress intended that "accrual" of a claim must await awareness by the plaintiff that his injury was negligently inflicted. A plaintiff such as Kubrick, armed with the facts about the harm done to him, can protect himself by seeking advice in the medical and legal community. To excuse him from promptly doing so by postponing the accrual of his claim would undermine the purpose of the limitations statute, which is to require the reasonably diligent presentation of tort claims against the Government.10 If there exists in the community a generally applicable standard of care with respect to the treatment of his ailment, we see no reason to suppose that competent advice would not be available to the plaintiff as to whether his treatment conformed to that standard. If advised that he has been wronged, he may promptly bring suit. If competently advised to the contrary, he may be dissuaded, as he should be, from pressing a baseless claim. Of course, he may be incompetently advised or the medical community may be divided on the crucial issue of negligence, as the experts proved to be on the trial of this case. But however or even whether he is advised, the putative malpractice plaintiff must determine within the period of limitations whether to sue or not, which is precisely the judgment that other tort claimants must make. If he fails to bring suit because he is incompetently or mistakenly told that he does not have a case, we discern no sound reason for visiting the consequences of such error on the defendant by delaying the accrual of the claim until the plaintiff is otherwise informed or himself determines to bring suit, even though more than two years have passed from the plaintiff's discovery of the relevant facts about injury.The District Court, 435 F. Supp., at 185, and apparently the Court of Appeals, thought its ruling justified because of the "technical complexity," 581 F.2d, at 1097, of the negligence question in this case. But determining negligence or not is often complicated and hotly disputed, so much so that judge or jury must decide the issue after listening to a barrage of conflicting expert testimony. And if in this complicated malpractice case, the statute is not to run until the plaintiff is led to suspect negligence, it would be difficult indeed not to apply the same accrual rule to medical and health claims arising under other statutes and to a whole range of other negligence cases arising under the Act and other federal statutes, where the legal implications or complicated facts make it unreasonable to expect the injured plaintiff, who does not seek legal or other appropriate advice, to realize that his legal rights may have been invaded. We also have difficulty ascertaining the precise standard proposed by the District Court and the Court of Appeals. On the one hand, the Court of Appeals seemed to hold that a Torts Claims Act malpractice claim would not accrue until the plaintiff knew or could reasonably be expected to know of the Government's breach of duty. Ibid. On the other hand, it seemed to hold that the claim would accrue only when the plaintiff had reason to suspect or was aware of facts that would have alerted a reasonable person to the possibility that a legal duty to him had been breached. Ibid. In any event, either of these standards would go far to eliminate the statute of limitations as a defense separate from the denial of breach of duty.IVIt goes without saying that statutes of limitations often make it impossible to enforce what were otherwise perfectly valid claims. But that is their very purpose, and they remain as ubiquitous as the statutory rights or other rights to which they are attached or are applicable. We should give them effect in accordance with what we can ascertain the legislative intent to have been. We doubt that here we have misconceived the intent of Congress when 2401 (b) was first adopted or when it was amended to extend the limitations period to two years. But if we have, or even if we have not but Congress desires a different result, it may exercise its prerogative to amend the statute so as to effect its legislative will.The judgment of the Court of Appeals is Reversed.

Obstruction of interstate commerce or an attempt to do so through the wrongful use by a labor union or its agents of actual or threatened force, violence or fear, in an attempt to compel an employer to pay "wages" to members of the union for imposed, unwanted, superfluous and fictitious "services," is a violation of the Hobbs Act, 18 U.S.C. 1951. Pp. 416-421. (a) The coverage of 18 U.S.C. 1951 is not confined to attempts to obtain money or other property for the extortioner's personal advantage; it applies also to attempts by a union or its agents to get jobs and pay for its members by threats and violence. Pp. 418-420. (b) The legislative history of the Act shows that it was intended to cover the employer-employee relationship. Pp. 418-419. (c) A different result is not required by the provision of Title II of the Hobbs Act that it should not affect the Clayton Act, the Norris-LaGuardia Act, the Railway Labor Act or the National Labor Relations Act, since there is nothing in those Acts indicating any protection for unions or their officials in attempts to get personal property through threats of force or violence. Pp. 419-420. (d) Since this legislation is directed at the protection of interstate commerce against injury from extortion, it is within the power of Congress. Pp. 420-421. 135 F. Supp. 162, reversed.Oscar H. Davis argued the cause for the United States. On the brief were Solicitor General Sobeloff, Assistant Attorney General Olney, Beatrice Rosenberg and Carl H. Imlay.Arthur M. Fitzgerald argued the cause for appellees. With him on the brief were Schaeffer O'Neill and William P. Roberts. MR. JUSTICE REED delivered the opinion of the Court.An indictment was found in the Southern District of Illinois against appellees Green and a local union. The jury adjudged them guilty under counts one and two thereof. The court sustained their separate motions in arrest of judgment, setting out in its order that its action was "solely" on the following grounds:"2. This court is without jurisdiction of the offense."(b) The facts alleged in the Indictment failed to set forth an offense against the United States such as to give this Court jurisdiction."(c) A proper construction of the statute in question clearly indicates that it does not cover the type of activity charged in this indictment; to interpret the Act in question as covering the type of activity charged in this Indictment is to extend the jurisdiction of this Court and the power of Congress beyond their Constitutional limits." Appeal was taken by the United States directly to this Court under 18 U.S.C. 3731.1 We noted probable jurisdiction. .The two counts in question were based upon alleged violations of 18 U.S.C. 1951, popularly known as the Hobbs Act. The pertinent statutory provisions are subsections (a) and (b) (2) thereof, reading as follows: "(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both. "(b) ... "(2) The term `extortion' means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." Each of the two counts charged appellees with acts of extortion under 1951 directed against a different employer. The extortions alleged consisted of attempts to obtain from the particular employer."his money, in the form of wages to be paid for imposed, unwanted, superfluous and fictitious services of laborers commonly known as swampers, in connection with the operation of machinery and equipment then being used and operated by said [employer] in the execution of his said contract for maintenance work on said levee, the attempted obtaining of said property from said [employer] as aforesaid being then intended to be accomplished and accomplished with the consent of said [employer], induced and obtained by the wrongful use, to wit, the use for the purposes aforesaid, of actual and threatened force, violence and fear made to said [employer], and his employees and agents then and there being; in violation of Section 1951 of Title 18, United States Code." Appellees each filed motions for acquittal or in the alternative for a new trial. These the trial court specifically denied. The opinion of the trial court, 135 F. Supp. 162, says nothing as to failure of evidence to support the allegations of the indictment, or as to trial errors. Instead the court relied upon the absence of criminality in the acts charged, and it was therefore logical for the trial court to deny acquittal and new trial.2 The court thought persuasive our recent cases which held union efforts to secure "made work" for their members were not unfair labor practices.3 From its view that extortion as defined in the Hobbs Act covers only the taking of property from another for the extortioner's personal advantage, the necessity to arrest the judgment followed. Rule 34, Fed. Rules Crim. Proc.We do not agree with that interpretation of the section. The Hobbs Act was passed after this Court had construed 2 of the Federal Anti-Racketeering Act of 1934, 48 Stat. 979, in United States v. Local 807, . Subsection (a) of 2 barred, with respect to interstate commerce, exaction of valuable considerations by force, violence or coercion, "not including, however, the payment of wages by a bona-fide employer to a bona-fide employee." We held in Local 807 that this exception covered members of a city truck drivers' union offering superfluous services to drive arriving trucks to their city destination with intent, if the truck owners refused their offer, to exact the wages by violence.4 In the Hobbs Act, 60 Stat. 420, carried forward as 18 U.S.C. 1951, which amended the Anti-Racketeering Act, the exclusion clause involved in the Local 807 decision was dropped. The legislative history makes clear that the new Act was meant to eliminate any grounds for future judicial conclusions that Congress did not intend to cover the employer-employee relationship.5 The words were defined to avoid any misunderstanding.Title II of the Hobbs Act provides that the provisions of the Act shall not affect the Clayton Act, 6 and 20, 38 Stat. 731, 738; the Norris-LaGuardia Act, 47 Stat. 70; the Railway Labor Act, 44 Stat. 577; or the National Labor Relations Act, 49 Stat. 449.6 There is nothing in any of those Acts, however, that indicates any protection for unions or their officials in attempts to get personal property through threats of force or violence. Those are not legitimate means for improving labor conditions.7 If the trial court intended by its references to the Norris-LaGuardia and Wagner Acts to indicate any such labor exception, which we doubt, it was in error. Apparently what the court meant is more clearly expressed by its statement, set out in the last paragraph of note 2 above, that the charged acts would be criminal only if they were used to obtain property for the personal benefit of the union or its agent, in this case Green. This latter holding is also erroneous. The city truckers in the Local 807 case similarly were trying by force to get jobs and pay from the out-of-state truckers by threats and violence. The Hobbs Act was meant to stop just such conduct. And extortion as defined in the statute in no way depends upon having a direct benefit conferred on the person who obtains the property.It is also stated in the opinion below that to interpret the Act as covering the activity charged would "extend the jurisdiction of the Court, and the power of Congress beyond their Constitutional limits." 135 F. Supp., at 162. The same language is in the order. Since in our view the legislation is directed at the protection of interstate commerce against injury from extortion, the court's holding is clearly wrong. We said in the Local 807 case that racketeering affecting interstate commerce was within federal legislative control. 315 U.S., at 536. Cf. Cleveland v. United States, ; Mitchell v. Vollmer & Co., .On this appeal the record does not contain the evidence upon which the court acted. The indictment charges interference with commerce by extortion in the words of the Act's definition of that crime. We rule only on the allegations of the indictment and hold that the acts charged against appellees fall within the terms of the Act. The order in arrest of judgment is reversed and the cause remanded to the District Court. It is so ordered.

Sections 101 (b) (1) (D) and 101 (b) (2) of the Immigration and Nationality Act of 1952, which have the effect of excluding the relationship between an illegitimate child and his natural father (as opposed to his natural mother) from the special preference immigration status accorded by the Act to the "child" or "parent" of a United States citizen or lawful permanent resident, held not to be unconstitutional. Pp. 792-800. (a) This Court's cases "have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control," Shaughnessy v. Mezei, ; see also Kleindienst v. Mandel, ; Harisiades v. Shaughnessy, , and no factors exist in the instant case warranting a more searching judicial scrutiny than has generally been applied in immigration cases. Pp. 792-796. (b) In enacting the challenged statutory provisions Congress was specifically concerned with clarifying the previous law so that the illegitimate child in relation to his mother would have the same status as a legitimate child, and the legislative history of those provisions reflects an intentional choice not to provide preferential immigration status by virtue of the relationship between an illegitimate child and his natural father. The distinction is one of many (such as those based on age) drawn by Congress pursuant to its determination to provide some - but not all - families with relief from various immigration restrictions that would otherwise hinder reunification of the family in this country. The decision as to where to draw the line is a policy question within Congress' exclusive province. Pp. 797-798. (c) Whether Congress' determination that preferential status is not warranted for illegitimate children and their natural fathers results from a perceived absence in most cases of close family ties or a concern with serious problems of proof that usually lurk in paternity determinations, it is not for the courts to probe and test the justifications for the legislative decision. Kleindienst v. Mandel, supra, at 770. Pp. 798-799. 406 F. Supp. 162, affirmed. POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. WHITE, J., filed a dissenting statement, post, p. 816. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J., joined, post, p. 800.Janet M. Calvo argued the cause for appellants pro hac vice. With her on the briefs were Kalman Finkel, John E. Kirklin, and Anita Fisher Barrett.Harold R. Tyler, Jr., argued the cause for appellees. On the brief were Solicitor General Bork, Assistant Attorney General Thornburgh, Kenneth S. Geller, and Sidney M. Glazer.MR. JUSTICE POWELL delivered the opinion of the Court.This case brings before us a constitutional challenge to 101 (b) (1) (D) and 101 (b) (2) of the Immigration and Nationality Act of 1952 (Act), 66 Stat. 182, as amended, 8 U.S.C. 1101 (b) (1) (D) and 1101 (b) (2).IThe Act grants special preference immigration status to aliens who qualify as the "children" or "parents" of United States citizens or lawful permanent residents. Under 101 (b) (1), a "child" is defined as an unmarried person under 21 years of age who is a legitimate or legitimated child, a stepchild, an adopted child, or an illegitimate child seeking preference by virtue of his relationship with his natural mother.1 The definition does not extend to an illegitimate child seeking preference by virtue of his relationship with his natural father. Moreover, under 101 (b) (2), a person qualifies as a "parent" for purposes of the Act solely on the basis of the person's relationship with a "child." As a result, the natural father of an illegitimate child who is either a United States citizen or permanent resident alien is not entitled to preferential treatment as a "parent."The special preference immigration status provided for those who satisfy the statutory "parent-child" relationship depends on whether the immigrant's relative is a United States citizen or permanent resident alien. A United States citizen is allowed the entry of his "parent" or "child" without regard to either an applicable numerical quota or the labor certification requirement. 8 U.S.C. 1151 (a), (b), 1182 (a) (14). On the other hand, a United States permanent resident alien is allowed the entry of the "parent" or "child" subject to numerical limitations but without regard to the labor certification requirement. 8 U.S.C. 1182 (a) (14); see 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure 2.40 n. 18 (rev. ed. 1975).2 Appellants are three sets of unwed natural fathers and their illegitimate offspring who sought, either as an alien father or an alien child, a special immigration preference by virtue of a relationship to a citizen or resident alien child or parent. In each instance the applicant was informed that he was ineligible for an immigrant visa unless he qualified for admission under the general numerical limitations and, in the case of the alien parents, received the requisite labor certification.3 Appellants filed this action in July 1974 in the United States District Court for the Eastern District of New York challenging the constitutionality of 101 (b) (1) and 101 (b) (2) of the Act under the First, Fifth, and Ninth Amendments. Appellants alleged that the statutory provisions (i) denied them equal protection by discriminating against natural fathers and their illegitimate children "on the basis of the father's marital status, the illegitimacy of the child and the sex of the parent without either compelling or rational justification"; (ii) denied them due process of law to the extent that there was established "an unwarranted conclusive presumption of the absence of strong psychological and economic ties between natural fathers and their children born out of wedlock and not legitimated"; and (iii) "seriously burden[ed] and infringe[d] upon the rights of natural fathers and their children, born out of wedlock and not legitimated, to mutual association, to privacy, to establish a home, to raise natural children and to be raised by the natural father." App. 11-12. Appellants sought to enjoin permanently enforcement of the challenged statutory provisions to the extent that the statute precluded them from qualifying for the special preference accorded other "parents" and "children."A three-judge District Court was convened to consider the constitutional issues. After noting that Congress' power to fashion rules for the admission of aliens was "exceptionally broad," the District Court held, with one judge dissenting, that the statutory provisions at issue were neither "wholly devoid of any conceivable rational purpose" nor "fundamentally aimed at achieving a goal unrelated to the regulation of immigration." Fiallo v. Levi, 406 F. Supp. 162, 165, 166 (1975). The court therefore granted judgment for the Government and dismissed the action.We noted probable jurisdiction sub nom. Fiallo v. Levi, , and for the reasons set forth below we affirm.IIAt the outset, it is important to underscore the limited scope of judicial inquiry into immigration legislation. This Court has repeatedly emphasized that "over no conceivable subject is the legislative power of Congress more complete than it is over" the admission of aliens. Oceanic Navigation Co. v. Stranahan, ; accord, Kleindienst v. Mandel, . Our cases "have long recognized the power to expel or exclude aliens as a fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control." Shaughnessy v. Mezei, ; see, e. g., Harisiades v. Shaughnessy, ; Lem Moon Sing v. United States, ; Fong Yue Ting v. United States, ; The Chinese Exclusion Case, . Our recent decisions have not departed from this long-established rule. Just last Term, for example, the Court had occasion to note that "the power over aliens is of a political character and therefore subject only to narrow judicial review." Hampton v. Mow Sun Wong, n. 21 (1976), citing Fong Yue Ting v. United States, supra, at 713; accord, Mathews v. Diaz, . And we observed recently that in the exercise of its broad power over immigration and naturalization, "Congress regularly makes rules that would be unacceptable if applied to citizens." Id., at 80.4 Appellants apparently do not challenge the need for special judicial deference to congressional policy choices in the immigration context,5 but instead suggest that a "unique coalescing of factors" makes the instant case sufficiently unlike prior immigration cases to warrant more searching judicial scrutiny. Brief for Appellants 52-55. Appellants first observe that since the statutory provisions were designed to reunite families wherever possible, the purpose of the statute was to afford rights not to aliens but to United States citizens and legal permanent residents. Appellants then rely on our border-search decisions in Almeida-Sanchez v. United States, , and United States v. Brignoni-Ponce, , for the proposition that the courts must scrutinize congressional legislation in the immigration area to protect against violations of the rights of citizens. At issue in the border-search cases, however, was the nature of the protections mandated by the Fourth Amendment with respect to Government procedures designed to stem the illegal entry of aliens. Nothing in the opinions in those cases suggests that Congress has anything but exceptionally broad power to determine which classes of aliens may lawfully enter the country. See 413 U.S., at 272; 422 U.S., at 883-884.Appellants suggest a second distinguishing factor. They argue that none of the prior immigration cases of this Court involved "double-barreled" discrimination based on sex and illegitimacy, infringed upon the due process rights of citizens and legal permanent residents, or implicated "the fundamental constitutional interests of United States citizens and permanent residents in a familial relationship." Brief for Appellants 53-54; see id., at 16-18. But this Court has resolved similar challenges to immigration legislation based on other constitutional rights of citizens, and has rejected the suggestion that more searching judicial scrutiny is required. In Kleindienst v. Mandel, supra, for example, United States citizens challenged the power of the Attorney General to deny a visa to an alien who, as a proponent of "the economic, international, and governmental doctrines of World communism," was ineligible to receive a visa under 8 U.S.C. 1182 (a) (28) (D) absent a waiver by the Attorney General. The citizen-appellees in that case conceded that Congress could prohibit entry of all aliens falling into the class defined by 1182 (a) (28) (D). They contended, however, that the Attorney General's statutory discretion to approve a waiver was limited by the Constitution and that their First Amendment rights were abridged by the denial of Mandel's request for a visa. The Court held that "when the Executive exercises this [delegated] power negatively on the basis of a facially legitimate and bona fide reason, the courts will neither look behind the exercise of that discretion, nor test it by balancing its justification against the First Amendment interests of those who seek personal communication with the applicant." 408 U.S., at 770. We can see no reason to review the broad congressional policy choice at issue here under a more exacting standard than was applied in Kleindienst v. Mandel, a First Amendment case.6 Finally, appellants characterize our prior immigration cases as involving foreign policy matters and congressional choices to exclude or expel groups of aliens that were "specifically and clearly perceived to pose a grave threat to the national security," citing Harisiades v. Shaughnessy, , "or to the general welfare of this country," citing Boutilier v. INS, . Brief for Appellants 54. We find no indication in our prior cases that the scope of judicial review is a function of the nature of the policy choice at issue. To the contrary, "[s]ince decisions in these matters may implicate our relations with foreign powers, and since a wide variety of classifications must be defined in the light of changing political and economic circumstances, such decisions are frequently of a character more appropriate to either the Legislature or the Executive than to the Judiciary," and "[t]he reasons that preclude judicial review of political questions also dictate a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization." Mathews v. Diaz, 426 U.S., at 81-82. See Harisiades v. Shaughnessy, supra, at 588-589. As Mr. Justice Frankfurter observed in his concurrence in Harisiades v. Shaughnessy: "The conditions of entry for every alien, the particular classes of aliens that shall be denied entry altogether, the basis for determining such classification, the right to terminate hospitality to aliens, the grounds on which such determination shall be based, have been recognized as matters solely for the responsibility of the Congress and wholly outside the power of this Court to control." 342 U.S., at 596-597. IIIAs originally enacted in 1952, 101 (b) (1) of the Act defined a "child" as an unmarried legitimate or legitimated child or stepchild under 21 years of age. The Board of Immigration Appeals and the Attorney General subsequently concluded that the failure of this definition to refer to illegitimate children rendered ineligible for preferential nonquota status both the illegitimate alien child of a citizen mother, Matter of A, 5 I. & N. Dec. 272, 283-284 (A. G. 1953), and the alien mother of a citizen born out of wedlock, Matter of F, 7 I. & N. Dec. 448 (B. I. A. 1957). The Attorney General recommended that the matter be brought to the attention of Congress, Matter of A, supra, at 284, and the Act was amended in 1957 to include what is now 8 U.S.C. 1101 (b) (1) (D). See n. 1, supra. Congress was specifically concerned with the relationship between a child born out of wedlock and his or her natural mother, and the legislative history of the 1957 amendment reflects an intentional choice not to provide preferential immigration status by virtue of the relationship between an illegitimate child and his or her natural father.7 This distinction is just one of many drawn by Congress pursuant to its determination to provide some - but not all - families with relief from various immigration restrictions that would otherwise hinder reunification of the family in this country. In addition to the distinction at issue here, Congress has decided that children, whether legitimate or not, cannot qualify for preferential status if they are married or are over 21 years of age. 8 U.S.C. 1101 (b) (1). Legitimated children are ineligible for preferential status unless their legitimation occurred prior to their 18th birthday and at a time when they were in the legal custody of the legitimating parent or parents. 1101 (b) (1) (C). Adopted children are not entitled to preferential status unless they were adopted before the age of 14 and have thereafter lived in the custody of their adopting or adopted parents for at least two years, 1101 (b) (1) (E). And stepchildren cannot qualify unless they were under 18 at the time of the marriage creating the stepchild relationship. 1101 (b) (1) (B).With respect to each of these legislative policy distinctions, it could be argued that the line should have been drawn at a different point and that the statutory definitions deny preferential status to parents and children who share strong family ties. Cf. Mathews v. Diaz, supra, at 83-84. But it is clear from our cases, see Part II, supra, that these are policy questions entrusted exclusively to the political branches of our Government, and we have no judicial authority to substitute our political judgment for that of the Congress.Appellants suggest that the distinction drawn in 101 (b) (1) (D) is unconstitutional under any standard of review since it infringes upon the constitutional rights of citizens and legal permanent residents without furthering legitimate governmental interests. Appellants note in this regard that the statute makes it more difficult for illegitimate children and their natural fathers to be reunited in this country than for legitimate or legitimated children and their parents, or for illegitimate children and their natural mothers. And appellants also note that the statute fails to establish a procedure under which illegitimate children and their natural fathers could prove the existence and strength of their family relationship. Those are admittedly the consequences of the congressional decision not to accord preferential status to this particular class of aliens, but the decision nonetheless remains one "solely for the responsibility of the Congress and wholly outside the power of this Court to control." Harisiades v. Shaughnessy, 342 U.S., at 597 (Frankfurter, J., concurring). Congress obviously has determined that preferential status is not warranted for illegitimate children and their natural fathers, perhaps because of a perceived absence in most cases of close family ties as well as a concern with the serious problems of proof that usually lurk in paternity determinations.8 See Trimble v. Gordon, ante, at 771. In any event, it is not the judicial role in cases of this sort to probe and test the justifications for the legislative decision.9 Kleindienst v. Mandel, 408 U.S., at 770.IVWe hold that 101 (b) (1) (D) and 101 (b) (2) of the Immigration and Nationality Act of 1952 are not unconstitutional by virtue of the exclusion of the relationship between an illegitimate child and his natural father from the preferences accorded by the Act to the "child" or "parent" of a United States citizen or lawful permanent resident. Affirmed.

In the circumstances of this case, the petition for writ of certiorari to the Supreme Court of Ohio is denied. Petitioner may file his application for habeas corpus in the appropriate United States District Court. His allegations raise serious questions under the Fourteenth Amendment and entitle him to a hearing. Reported below: 172 Ohio St. 385, 176 N. E. 2d 221.Petitioner pro se.Mark McElroy, Attorney General of Ohio, and Aubrey A. Wendt, Assistant Attorney General, for respondent.PER CURIAM.Petitioner was convicted in an Ohio state court of assault with intent to kill and of cutting with intent to kill, wound or maim the same person. He immediately sought a writ of habeas corpus which was denied on the ground that appeal was the proper remedy. He then attempted to appeal, but this was denied as out of time and the Supreme Court of Ohio affirmed this denial. He unsuccessfully sought habeas corpus twice more, the latest petition being to the Supreme Court of Ohio and alleging, among other matters, a denial of counsel at his trial and a deprivation of rights guaranteed by the Due Process Clause of the Fourteenth Amendment. The Supreme Court of Ohio denied the petition, holding that habeas corpus was not a substitute for appeal and was not available to remedy the defects alleged by petitioner. Petitioner now seeks our writ of certiorari to review that ruling. The petition for certiorari must be denied. The decision below and the several prior actions in the Ohio courts indicate that petitioner is without a state remedy to challenge his conviction upon the federal constitutional grounds asserted. In these circumstances, Darr v. Burford, , is not applicable and a prisoner may, without first seeking certiorari here, file his application for habeas corpus in the appropriate United States District Court. 28 U.S.C. 2254. Massey v. Moore, ; Frisbie v. Collins, . Petitioner's allegations, if true, would present serious questions under the Fourteenth Amendment, and those allegations would therefore entitle him to a hearing. Massey v. Moore, supra; Pennsylvania ex rel. Herman v. Claudy, .MR. JUSTICE FRANKFURTER took no part in the consideration or decision of this case.

A Delaware merchandising corporation sells directly to customers at its store in Delaware. It does not accept mail or telephone orders, and makes no solicitation of customers other than by newspaper, radio, and occasional direct mail advertising. Residents of nearby Maryland come to the store and make purchases which they take away or which are delivered to them in Maryland by common carrier or by the store's own truck. Maryland lays upon its residents an excise tax on "the use, storage, or consumption" in the State of such articles, and it requires every vendor to collect and remit the tax to the State. The Delaware store did not do this, and a truck belonging to it was seized in Maryland and held liable for the use tax on all goods sold to Maryland residents, however delivered. Held: The Maryland taxing act, as applied to this Delaware store, violates the Due Process Clause of the Fourteenth Amendment. Pp. 341-347. (a) Seizure of property by a State under pretext of taxation when there is no jurisdiction or power to tax is confiscation and a denial of due process of law. P. 342. (b) The Delaware corporation, by its acts or course of dealing, has not subjected itself to the taxing power of Maryland and has not afforded to that State a jurisdiction or power to impose upon it a liability for collection of the Maryland tax. Pp. 344-346. (c) Due process requires some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax. Pp. 344-345. (d) Maryland could not have reached this Delaware vendor with a sales tax on these sales, and cannot make them a basis for imposing on the vendor liability for use taxes due from Maryland residents. Pp. 345-346. (e) General Trading Co. v. State Tax Comm'n, , distinguished. Pp. 346-347. 201 Md. 535, 95 A. 2d 286, reversed and remanded.William L. Marbury argued the cause for appellant. With him on the brief were James Piper, William Poole and James L. Latchum. Francis D. Murnaghan, Jr., Assistant Attorney General of Maryland, argued the cause for appellee. With him on the brief were Edward D. E. Rollins, Attorney General, and J. Edgar Harvey, Deputy Attorney General.Opinion of the Court by MR. JUSTICE JACKSON, announced by MR. JUSTICE REED.Appellant is a Delaware merchandising corporation which only sells directly to customers at its store in Wilmington, Delaware. It does not take orders by mail or telephone. Residents of nearby Maryland come to its store and make purchases, some of which they carry away, some are delivered to them in Maryland by common carrier, and others by appellant's own truck. Maryland lays upon its residents an excise tax on "the use, storage or consumption" in the State of such articles,1a and it requires every vendor to collect and remit the tax to the State.2 This the appellant did not do. Finding appellant's truck in Maryland, the State seized it, and the State's highest court has held it liable for the use tax on all goods sold in the Delaware store to Maryland residents, however delivered.3 This was against appellant's timely contention that the Maryland taxing act, so construed, conflicts with the federal commerce power and attempts to extend the power of the State beyond its borders in violation of the Due Process Clause of the Fourteenth Amendment. The parties have stipulated facts in detail, and, so far as they seem important, we set them forth in the Appendix.4 The grounds advanced by Maryland for holding the Delaware vendor liable come to this: (1) the vendor's advertising with Delaware papers and radio stations, though not especially directed to Maryland inhabitants, reached, and was known to reach, their notice; (2) its occasional sales circulars mailed to all former customers included customers in Maryland; (3) it delivered some purchases to common carriers consigned to Maryland addresses; (4) it delivered other purchases by its own vehicles to Maryland locations. The question is whether these factors, separately or in the aggregate, in each or all of the above types of sales establish a state's power to impose a duty upon such an out-of-state merchant to collect and remit a purchaser's use tax.It is a venerable if trite observation that seizure of property by the state under pretext of taxation when there is no jurisdiction or power to tax is simple confiscation and a denial of due process of law. "No principle is better settled than that the power of a State, even its power of taxation, in respect to property, is limited to such as is within its jurisdiction." New York, L. E. & W. R. Co. v. Pennsylvania, . "Where there is jurisdiction neither as to person nor property, the imposition of a tax would be ultra vires and void. If the legislature of a State should enact that the citizens or property of another State or country should be taxed in the same manner as the persons and property within its own limits and subject to its authority, or in any other manner whatsoever, such a law would be as much a nullity as if in conflict with the most explicit constitutional inhibition. Jurisdiction is as necessary to valid legislative as to valid judicial action." St. Louis v. Ferry Co., 11 Wall. 423, 430.But visible territorial boundaries do not always establish the limits of a state's taxing power or jurisdiction. In the last twenty years, revenue needs have come to exceed the demands that legislatures feel it expedient to make upon accumulated wealth or property with fixed location within the state. The states therefore have turned to taxing activities connected with the movement of commerce, such as exchange and consumption. If there is some jurisdictional fact or event to serve as a conductor, the reach of the state's taxing power may be carried to objects of taxation beyond its borders. When it has the taxpayer within its power or jurisdiction, it may sometimes, through him, reach his extraterritorial income or transactions. On the other hand, if it has jurisdiction of his taxable property or transactions, it may sometimes, through these, reach the nonresident. Whether this is one of these cases we must inquire.We are dealing with a relatively new and experimental form of taxation.5 Taxation of sales or purchases and taxation of use or possession of purchases are complementary and related but serve very different purposes. The former, a fiscal measure of considerable importance, has the effect of increasing the cost to the consumer of acquiring supplies in the taxing state. The use tax, not in itself a relatively significant revenue producer,6 usually appears as a support to the sales tax in two respects. One is protection of the state's revenues by taking away from inhabitants the advantages of resort to untaxed out-of-state purchases. The other is protection of local merchants against out-of-state competition from those who may be enabled by lower tax burdens to offer lower prices. In this respect, the use tax has the same effect as a protective tariff becoming due not on purchase of the goods but at the moment of bringing them into the taxing states.7 The collection of the use tax from inhabitants is a difficult administrative problem, and if out-of-state vendors can be compelled to collect it and remit it to the taxing state, it simplifies administration. But this raises questions of great importance to particular taxpayers, to the course of commercial dealing among the states and as to appropriation by other states of tax resources properly belonging to the state where the event occurs. The practical and legal effect of the Maryland statute as it has been applied to this Delaware vendor is to make the vendor liable for a use tax due from the purchaser. In economic consequence, it is identical with making him pay a sales tax. The liability arises only because of a Delaware sale and is measured by its proceeds. But at the time of the sale, no one is liable for a Maryland use tax. That liability arises only upon importation of the merchandise to the taxing state, an event which occurs after the sale is complete and one as to which the vendor may have no control or even knowledge, at least as to merchandise carried away by the buyer. The consequence is that liability against the Delaware vendor is predicated upon use of the goods in another state and by another person. We do not understand the State to contend that it could lay a use tax upon mere possession of goods in transit by a carrier or vendor upon entering the State, nor do we see how such a tax could be consistent with the Commerce Clause.The question here is whether this vendor, by its acts or course of dealing, has subjected itself to the taxing power of Maryland or whether it has afforded that State a jurisdiction or power to create this collector's liability. Despite the increasing frequency with which the question arises, little constructive discussion can be found in responsible commentary as to the grounds on which to rest a state's power to reach extraterritorial transactions or nonresidents with tax liabilities. Our decisions are not always clear as to the grounds on which a tax is supported, especially where more than one exists; nor are all of our pronouncements during the experimental period of this type of taxation consistent or reconcilable. A few have been specifically overruled, while others no longer fully represent the present state of the law. But the course of decisions does reflect at least consistent adherence to one time-honored concept: that due process requires some definite link, some minimum connection, between a state and the person, property or transaction it seeks to tax.Thus, the Court has frequently held that domicile or residence, more substantial than mere presence in transit or sojourn, is an adequate basis for taxation, including income,8 property,9 and death10 taxes. Since the Fourteenth Amendment makes one a citizen of the state wherein he resides, the fact of residence creates universally recognized reciprocal duties of protection by the state and of allegiance and support by the citizen. The latter obviously includes a duty to pay taxes, and their nature and measure is largely a political matter. Of course, the situs of property may tax it regardless of the citizenship, domicile or residence of the owner, the most obvious illustration being a tax on realty laid by the state in which the realty is located.11 Also, the keeping of tangible12 or intangible13 personalty within a state may give it a similar taxable situs there (sometimes called a business or commercial situs or domicile). Certain activities or transactions carried on within a state, such as the use14 and sale15 of property, may give jurisdiction to tax whomsoever engages therein, and the use of highways may subject the use to certain types of taxation.16 These cases overlap with those in which incorporation by a state17 or permission to do business there18 forms the basis for proportionate taxation of a company, including its franchise, capital, income and property. Recent cases in which a taxable sale does not clearly take place within the taxing state, elements of the transaction occurring in different states, have presented peculiar difficulties,19 as have those where the party liable for a use tax does not use the product within the taxing state.20 We are unable to find in any of our cases a precedent for sustaining the liability asserted by Maryland here. In accordance with the principles of earlier cases, it was recently settled that Maryland could not have reached this Delaware vendor with a sales tax on these sales. McLeod v. Dilworth Co., . Can she then make the same Delaware sales a basis for imposing on the vendor liability for use taxes due from her own inhabitants? It would be a strange law that would make appellant more vulnerable to liability for another's tax than to a tax on itself.The decisions relied upon by Maryland do not, in our view, support her. This is not the case of a merchant entering a state to maintain a branch and engaging in admittedly taxable retail business but trying to allocate some part of his total sales to nontaxable interstate commerce. Under these circumstances, the State has jurisdiction to tax the taxpayer, and all that he can question on Due Process or Commerce Clause grounds is the validity of the allocation. Cf. Nelson v. Montgomery Ward & Co., ; Nelson v. Sears, Roebuck & Co., ; Norton Co. v. Department of Revenue, .The nearest support for Maryland's position is General Trading Co. v. State Tax Comm'n, . The writer of this opinion dissented in that case and, whether or not in so doing he made a correct application of principles of jurisdiction to the particular facts, it is clear that circumstances absent here were there present to justify the Court's approval of liability for collecting the tax. That was the case of an out-of-state merchant entering the taxing state through traveling sales agents to conduct continuous local solicitation followed by delivery of ordered goods to the customers, the only nonlocal phase of the total sale being acceptance of the order. Probably, except for credit reasons, acceptance was a mere formality, since one hardly incurs the cost of soliciting orders to reject. The Court could properly approve the State's decision to regard such a rivalry with its local merchants as equivalent to being a local merchant. But there is a wide gulf between this type of active and aggressive operation within a taxing state and the occasional delivery of goods sold at an out-of-state store with no solicitation other than the incidental effects of general advertising. Here was no invasion or exploitation of the consumer market in Maryland. On the contrary, these sales resulted from purchasers traveling from Maryland to Delaware to exploit its less tax-burdened selling market. That these inhabitants incurred a liability for the use tax when they used, stored or consumed the goods in Maryland, no one doubts. But the burden of collecting or paying their tax cannot be shifted to a foreign merchant in the absence of some jurisdictional basis not present here.In this view of the case, we need not consider whether the statute imposes an unjustifiable burden upon interstate commerce.The judgment appealed from is reversed and the case remanded for further proceedings not inconsistent herewith. Reversed and remanded. [For dissenting opinion, see post, p. 357.] APPENDIX TO OPINION OF THE COURT.[Footnote 1a] All footnotes to this opinion are carried in an Appendix, post, p. 347.

Petitioner's purchases and sales of corn futures in 1940 and 1942, which, though not "true hedges," were an integral part of its manufacturing business, held not capital-asset transactions under 117 (a) of the Internal Revenue Code of 1939, and gains and losses therefrom gave rise to ordinary income and ordinary deductions. Pp. 47-54. (a) The finding by both the Tax Court and the Court of Appeals that petitioner's purchases constitute "an integral part of its manufacturing business" is here sustained. Pp. 50-51. (b) Through its purchases of commodity futures, petitioner obtained partial insurance against its principal risk - the possibility of a price rise. P. 51. (c) The capital-asset provision of 117 is to be narrowly construed. P. 52. (d) Congress intended that profits and losses arising from the everyday operation of a business be considered as ordinary income or loss rather than capital gain or loss. P. 52. (e) The Treasury ruling, G. C. M. 17322, that hedging transactions were essentially to be regarded as insurance rather than dealings in capital assets and that gains and losses therefrom were ordinary business gains and losses, has been consistently followed by the courts as well as by the Commissioner and has had the tacit approval of Congress. Pp. 52-53. (f) The conclusion here reached is supported by practical considerations as well as by the statute. Pp. 53-54. 215 F.2d 513, affirmed.Jay O. Kramer and Samuel A. McCain argued the cause and filed a brief for petitioner.Charles K. Rice argued the cause for respondent. With him on the brief were Solicitor General Sobeloff, Assistant Attorney General Holland, Charles F. Barber, Ellis N. Slack, Hilbert P. Zarky and Harry Marselli. MR. JUSTICE CLARK delivered the opinion of the Court.This case concerns the tax treatment to be accorded certain transactions in commodity futures.1 In the Tax Court, petitioner Corn Products Refining Company contended that its purchases and sales of corn futures in 1940 and 1942 were capital-asset transactions under 117 (a) of the Internal Revenue Code of 1939. It further contended that its futures transactions came within the "wash sales" provisions of 118. The 1940 claim was disposed of on the ground that 118 did not apply, but for the year 1942 both the Tax Court and the Court of Appeals for the Second Circuit, 215 F.2d 513, held that the futures were not capital assets under 117. We granted certiorari, ,2 because of an asserted conflict with holdings in the Courts of Appeal for the Third, Fifth, and Sixth Circuits.3 Since we hold that these futures do not constitute capital assets in petitioner's hands, we do not reach the issue of whether the transactions were "wash sales." Petitioner is a nationally known manufacturer of products made from grain corn. It manufactures starch, syrup, sugar, and their byproducts, feeds and oil. Its average yearly grind of raw corn during the period 1937 through 1942 varied from thirty-five to sixty million bushels. Most of its products were sold under contracts requiring shipment in thirty days at a set price or at market price on the date of delivery, whichever was lower. It permitted cancellation of such contracts, but from experience it could calculate with some accuracy future orders that would remain firm. While it also sold to a few customers on long-term contracts involving substantial orders, these had little effect on the transactions here involved.4 In 1934 and again in 1936 droughts in the corn belt caused a sharp increase in the price of spot corn. With a storage capacity of only 2,300,000 bushels of corn, a bare three weeks' supply, Corn Products found itself unable to buy at a price which would permit its refined corn sugar, cerelose, to compete successfully with cane and beet sugar. To avoid a recurrence of this situation, petitioner, in 1937, began to establish a long position in corn futures "as a part of its corn buying program" and "as the most economical method of obtaining an adequate supply of raw corn" without entailing the expenditure of large sums for additional storage facilities. At harvest time each year it would buy futures when the price appeared favorable. It would take delivery on such contracts as it found necessary to its manufacturing operations and sell the remainder in early summer if no shortage was imminent. If shortages appeared, however, it sold futures only as it bought spot corn for grinding.5 In this manner it reached a balanced position with reference to any increase in spot corn prices. It made no effort to protect itself against a decline in prices.In 1940 it netted a profit of $680,587.39 in corn futures, but in 1942 it suffered a loss of $109,969.38. In computing its tax liability Corn Products reported these figures as ordinary profit and loss from its manufacturing operations for the respective years. It now contends that its futures were "capital assets" under 117 and that gains and losses therefrom should have been treated as arising from the sale of a capital asset.6 In support of this position it claims that its futures trading was separate and apart from its manufacturing operations and that in its futures transactions it was acting as a "legitimate capitalist." United States v. New York Coffee & Sugar Exchange, . It denies that its futures transactions were "hedges" or "speculative" dealings as covered by the ruling of General Counsel's Memorandum 17322, XV-2 Cum. Bull. 151, and claims that it is in truth "the forgotten man" of that administrative interpretation.Both the Tax Court and the Court of Appeals found petitioner's futures transactions to be an integral part of its business designed to protect its manufacturing operations against a price increase in its principal raw material and to assure a ready supply for future manufacturing requirements. Corn Products does not level a direct attack on these two-court findings but insists that its futures were "property" entitled to capital-asset treatment under 117 and as such were distinct from its manufacturing business. We cannot agree.We find nothing in this record to support the contention that Corn Products' futures activity was separate and apart from its manufacturing operation. On the contrary, it appears that the transactions were vitally important to the company's business as a form of insurance against increases in the price of raw corn. Not only were the purchases initiated for just this reason, but the petitioner's sales policy, selling in the future at a fixed price or less, continued to leave it exceedingly vulnerable to rises in the price of corn. Further, the purchase of corn futures assured the company a source of supply which was admittedly cheaper than constructing additional storage facilities for raw corn. Under these facts it is difficult to imagine a program more closely geared to a company's manufacturing enterprise or more important to its successful operation.Likewise the claim of Corn Products that it was dealing in the market as a "legitimate capitalist" lacks support in the record. There can be no quarrel with a manufacturer's desire to protect itself against increasing costs of raw materials. Transactions which provide such protection are considered a legitimate form of insurance. United States v. New York Coffee & Sugar Exchange, 263 U.S., at 619; Browne v. Thorn, . However, in labeling its activity as that of a "legitimate capitalist" exercising "good judgment" in the futures market, petitioner ignores the testimony of its own officers that in entering that market the company was "trying to protect a part of [its] manufacturing costs"; that its entry was not for the purpose of "speculating and buying and selling corn futures" but to fill an actual "need for the quantity of corn [bought] ... in order to cover ... what [products] we expected to market over a period of fifteen or eighteen months." It matters not whether the label be that of "legitimate capitalist" or "speculator"; this is not the talk of the capital investor but of the far-sighted manufacturer. For tax purposes petitioner's purchases have been found to "constitute an integral part of its manufacturing business" by both the Tax Court and the Court of Appeals, and on essentially factual questions the findings of two courts should not ordinarily be disturbed. Comstock v. Group of Investors, .Petitioner also makes much of the conclusion by both the Tax Court and the Court of Appeals that its transactions did not constitute "true hedging." It is true that Corn Products did not secure complete protection from its market operations. Under its sales policy petitioner could not guard against a fall in prices. It is clear, however, that petitioner feared the possibility of a price rise more than that of a price decline. It therefore purchased partial insurance against its principal risk, and hoped to retain sufficient flexibility to avoid serious losses on a declining market.Nor can we find support for petitioner's contention that hedging is not within the exclusions of 117 (a). Admittedly, petitioner's corn futures do not come within the literal language of the exclusions set out in that section. They were not stock in trade, actual inventory, property held for sale to customers or depreciable property used in a trade or business. But the capital-asset provision of 117 must not be so broadly applied as to defeat rather than further the purpose of Congress. Burnet v. Harmel, . Congress intended that profits and losses arising from the everyday operation of a business be considered as ordinary income or loss rather than capital gain or loss. The preferential treatment provided by 117 applies to transactions in property which are not the normal source of business income. It was intended "to relieve the taxpayer from ... excessive tax burdens on gains resulting from a conversion of capital investments, and to remove the deterrent effect of those burdens on such conversions." Burnet v. Harmel, 287 U.S., at 106. Since this section is an exception from the normal tax requirements of the Internal Revenue Code, the definition of a capital asset must be narrowly applied and its exclusions interpreted broadly. This is necessary to effectuate the basic congressional purpose. This Court has always construed narrowly the term "capital assets" in 117. See Hort v. Commissioner, ; Kieselbach v. Commissioner, .The problem of the appropriate tax treatment of hedging transactions first arose under the 1934 Tax Code revision.7 Thereafter the Treasury issued G. C. M. 17322, supra, distinguishing speculative transactions in commodity futures from hedging transactions. It held that hedging transactions were essentially to be regarded as insurance rather than a dealing in capital assets and that gains and losses therefrom were ordinary business gains and losses. The interpretation outlined in this memorandum has been consistently followed by the courts as well as by the Commissioner.8 While it is true that this Court has not passed on its validity, it has been well recognized for 20 years; and Congress has made no change in it though the Code has been re-enacted on three subsequent occasions. This bespeaks congressional approval. Helvering v. Winmill, . Furthermore, Congress has since specifically recognized the hedging exception here under consideration in the short-sale rule of 1233 (a) of the 1954 Code.9 We believe that the statute clearly refutes the contention of Corn Products. Moreover, it is significant to note that practical considerations lead to the same conclusion. To hold otherwise would permit those engaged in hedging transactions to transmute ordinary income into capital gain at will. The hedger may either sell the future and purchase in the spot market or take delivery under the future contract itself. But if a sale of the future created a capital transaction while delivery of the commodity under the same future did not, a loophole in the statute would be created and the purpose of Congress frustrated.The judgment is Affirmed.MR. JUSTICE HARLAN took no part in the consideration or decision of this case.

After petitioner was convicted of state offenses arising out of a robbery, he was tried and convicted of a federal offense arising out of the same robbery, in violation of the Government's policy against multiple prosecutions for the same act (the so-called Petite policy based on Petite v. United States, ). Government trial counsel had represented to the District Court that the Government had decided vigorously to prosecute the federal charges in spite of the prior state prosecution, when in fact the federal prosecution had not been authorized as required by the Petite policy. Thereafter, notwithstanding the Government's subsequent acknowledgement that the Petite policy had been violated, the District Court denied the Government's motion to dismiss the indictment pursuant to Fed. Rule Crim. Proc. 48 (a) (which provides that the Government may "by leave of court" file a dismissal of an indictment), on the ground, inter alia, that the prosecutor had acted in bad faith by representing to the court that he had been properly instructed to maintain the prosecution despite the prior state convictions. The Court of Appeals affirmed. Held: The District Court abused its discretion in denying the Government's motion to dismiss on the ground that the violation of the Petite policy resulted from prosecutorial misconduct rather than inadvertence. The salient issue is not whether the decision to prosecute was made in bad faith but rather whether the Government's later efforts to terminate the prosecution were similarly tainted with impropriety. It does not appear that there was any bad faith on the Government's part at the time it sought leave to dismiss the indictment but rather that the decision to terminate the prosecution, based as it was on the Petite policy, was motivated by considerations which cannot fairly be characterized as "clearly contrary to manifest public interest." The overriding purpose of that policy is to protect the individual from any unfairness associated with needless multiple prosecutions, and accordingly the defendant should receive the benefit of the policy whenever its application is urged by the Government. Certiorari granted; 544 F.2d 203, vacated and remanded. PER CURIAM.Petitioner's participation in a plot to rob safe-deposit boxes of the Doral Beach Hotel in Miami Beach, Fla., violated the laws of both the State of Florida and the United States. He has been tried, convicted, and sentenced to imprisonment by both sovereigns. He claims that his federal conviction was obtained in violation of established federal policy against multiple prosecutions for the same offense and, for that reason, should be set aside. The Solicitor General agrees and submits that the Court should summarily "vacate the judgment of the court of appeals and remand the case to the district court with instructions to dismiss the indictment."1 Based on our independent evaluation of the unusual circumstances disclosed by this record, we conclude that such summary disposition is appropriate.In February 1973, petitioner was charged with state offenses arising out of the Doral Beach Hotel robbery.2 In March 1973, an indictment was returned in the United States District Court for the Southern District of Florida, charging him with conspiracy to affect interstate commerce by robbery in violation of the Hobbs Act, 18 U.S.C. 1951.3 In May, petitioner was convicted of the state charges in the Dade County Circuit Court and sentenced to six years' imprisonment.4 A subsequent federal trial ended in a mistrial. Thereafter, the District Court questioned Government counsel regarding the need for another trial in view of petitioner's state convictions. Government counsel responded that he had been instructed by his superiors at the Department of Justice to pursue the federal prosecution vigorously because of their concern that the state convictions might be reversed on appeal. After a second jury trial, petitioner was convicted on the Hobbs Act charge; the District Court imposed a 12-year sentence to run concurrently with the state sentence.On appeal to the United States Court of Appeals for the Fifth Circuit, petitioner argued that his conviction had been obtained in violation of a longstanding federal policy against multiple prosecutions for the same act. See Petite v. United States, .5 The Government acknowledged that its Petite policy had been violated and moved the Court of Appeals to remand the case to the District Court to permit it to seek a dismissal of the indictment. The Court of Appeals granted the motion to remand.The Government then filed a motion to dismiss the indictment pursuant to Fed. Rule Crim. Proc. 48 (a).6 Noting that the Rule requires "leave of court," the District Court denied the motion because (1) the motion was not made until after the trial had been completed; and (2) the prosecutor had acted in bad faith by representing to the District Court that he had been properly instructed to maintain the prosecution notwithstanding the fact that petitioner had already been convicted of a state offense.7 The Government, joined by petitioner and his codefendant Washington, appealed from the denial of the motion to dismiss.A divided panel of the Fifth Circuit affirmed, In re Washington, 531 F.2d 1297 (1976). The Court of Appeals then granted a petition for rehearing en banc and, by a vote of 7 to 6, reaffirmed the panel's holding. In re Washington, 544 F.2d 203 (1976). All members of the court agreed that the Government's motion to dismiss was timely,8 but they disagreed on the question whether the prosecutor's bad faith justified the District Court's refusal to set aside defendant's conviction.The majority was of the view that the Government's unclean hands gave the District Court adequate reason to deny it relief,9 and that the defendant had no right to have an otherwise valid conviction dismissed simply because the Justice Department violated its own procedures.10 The dissenters were of the view that the District Court's inquiry should have been limited to the propriety of the Government's motivation in seeking a dismissal;11 under their view, the earlier misconduct was irrelevant and could not justify the judicial imposition of multiple convictions on the defendant.12 The policy described in the Petite case limits the federal prosecutor in the exercise of his discretion to initiate, or to withhold, prosecution for federal crimes. The policy is useful to the efficient management of limited Executive resources and encourages local responsibility in law enforcement.13 But it also serves the more important purpose of protecting the citizen from any unfairness that is associated with successive prosecutions based on the same conduct.In this respect, the policy represents the Government's response to repeated expressions of concern by Members of this Court. In United States v. Lanza, , for example, Mr. Chief Justice Taft quoted the following passage from Fox v. Ohio, 5 How. 410, 435 (1847): "It is almost certain, that, in the benignant spirit in which the institutions both of the state and federal systems are administered, an offender who should have suffered the penalties denounced by the one would not be subjected a second time to punishment by the other for acts essentially the same, unless indeed this might occur in instances of peculiar enormity, or where the public safety demanded extraordinary rigor." What has come to be known as the Petite policy was formulated by the Justice Department in direct response to this Court's opinions in Bartkus v. Illinois, , and Abbate v. United States, , holding that the Constitution does not deny the State and Federal Governments the power to prosecute for the same act. As these decisions recognize, in our federal system the State and Federal Governments have legitimate, but not necessarily identical, interests in the prosecution of a person for acts made criminal under the laws of both. These cases reflect the concern that if the Double Jeopardy Clause were applied when the sovereign with the greater interest is not the first to proceed, the administration of criminal justice may suffer. Bartkus v. Illinois, supra, at 137; Abbate v. United States, supra, at 195. Yet mindful of the potential for abuse in a rule permitting duplicate prosecutions, the Court noted that "[t]he greatest self-restraint is necessary when that federal system yields results with which a court is in little sympathy." Bartkus v. Illinois, supra, at 138.In response to the Court's continuing sensitivity to the fairness implications of the multiple prosecution power, the Justice Department adopted the policy of refusing to bring a federal prosecution following a state prosecution except when necessary to advance compelling interests of federal law enforcement.14 The Petite policy was designed to limit the exercise of the power to bring successive prosecutions for the same offense to situations comporting with the rationale for the existence of that power. Although not constitutionally mandated, this Executive policy serves to protect interests which, but for the "dual sovereignty" principle inherent in our federal system, would be embraced by the Double Jeopardy Clause. In light of the parallel purposes of the Government's Petite policy and the fundamental constitutional guarantee against double jeopardy, the federal courts should be receptive, not circumspect, when the Government seeks leave to implement that policy.Here, the Government filed a motion under Fed. Rule Crim. Proc. 48 (a) seeking "leave of court" to dismiss the federal charges against petitioner. Under the standard applied by the Court of Appeals, the District Court was empowered to withhold leave if the Government's decision to terminate this prosecution clearly disserved the public interest. United States v. Cowan, 524 F.2d 504, 513 (CA5 1975).15 Pursuant to the instructions of a superior at the Justice Department, Government trial counsel represented to the District Court that the United States had decided to vigorously prosecute the federal charges against petitioner in spite of the prior state prosecution. In fact, however, the federal prosecution had not been authorized as required by the Government's Petite policy. The Court of Appeals considered the prosecutor's representations incompatible with the public interest in preserving the integrity of the courts. The salient issue, however, is not whether the decision to maintain the federal prosecution was made in bad faith but rather whether the Government's later efforts to terminate the prosecution were similarly tainted with impropriety. Out examination of the record has not disclosed (and we will not presume) bad faith on the part of the Government at the time it sought leave to dismiss the indictment against petitioner. The decision to terminate this prosecution, based as it was on the Petite policy, was motivated by considerations which cannot fairly be characterized as "clearly contrary to manifest public interest." 524 F.2d, at 513.16 The overriding purpose of the Petite policy is to protect the individual from any unfairness associated with needless multiple prosecutions. The defendant, therefore, should receive the benefit of the policy whenever its application is urged by the Government.17 Without derogating from the concern expressed by the Court of Appeals regarding the actions of certain Government officials at an earlier stage in this prosecution, we agree with the Solicitor General that "[n]o action by the Department or the Court can now replace the waste of judicial and prosecutorial resources expended in obtaining petitioner's conviction ... [and] no societal interest would be vindicated by punishing further a defendant who has already been convicted and has received a substantial sentence in state court and who, the Department has determined, should not have been prosecuted by the federal government."It was, therefore, an abuse of the discretion of the District Court to refuse to grant the Government's motion on the ground that the violation of the Petite policy in this case resulted from prosecutorial misconduct rather than inadvertence. The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is vacated, and the case is remanded to the District Court for the purpose of dismissing the indictment. It is so ordered.MR. CHIEF JUSTICE BURGER, dissents.

Petitioner, in 1955, was engaged by the railroads in replacement of another motor carrier to transport passengers between rail terminals in Chicago. To block the replacement the city amended an ordinance primarily regulatory of taxicab companies by requiring new companies seeking to perform transfer services to obtain licenses by, inter alia, demonstrating their ability to satisfy the public convenience and necessity. This Court, rejecting the city's contention that the challenge was premature, invalidated that requirement in Chicago v. Atchison, T. & S. F. R. Co., , a suit brought by petitioner and the railroads. Thereafter the city repealed the invalid section, but added or left unchanged other provisions, so that under the amended ordinance the city still requires a license for each vehicle, for which a detailed application has to be filed and a fee paid. An applicant is required to hire only Chicago residents as drivers and to maintain its principal business place in Chicago. A license, which has to be renewed each year following the same detailed application procedure, will be issued if the city after investigation finds the applicant "qualified," and the vehicle for which the license is sought is in "safe and proper condition." The amended ordinance provides for a fine up to $100 a day for each violation of its provisions. Petitioner brought this action seeking a declaration that the ordinance imposes unconstitutional burdens on interstate commerce and regulates an area pre-empted by the Interstate Commerce Act. While that case was pending, the city again demanded that petitioner halt operations unless it "fully complied" with the ordinance, which it again amended to impose additional requirements, including the filing of detailed financial reports. The District Court dismissed petitioner's action as premature. The Court of Appeals affirmed. Held: 1. Petitioner's action is not premature. Though petitioner obtained its licenses after filing this suit, it has continued to operate only by paying the license fees into court and the city has continually demanded that petitioner fully comply with the ordinance or be subjected to penalties for not doing so. Pp. 357-358. 2. The ordinance is invalid as reserving to the city the power which the Interstate Commerce Act gives to the railroads of determining who may transfer interstate passengers and baggage between railroad terminals and as imposing requirements the total effect of which is to burden interstate commerce. Atchison, T. & S. F. R. Co., supra, followed. Pp. 358-360. 358 F.2d 55, reversed.Amos M. Mathews argued the cause for petitioner. With him on the briefs was David Axelrod.Raymond F. Simon argued the cause and filed a brief for respondents.Joseph H. Hays, James W. Nisbet, Ed White and J. D. Feeney filed a brief for Chicago Terminal Railroads, as amicus curiae, urging reversal.MR. JUSTICE BLACK delivered the opinion of the Court.This case arises from more than a decade of controversy between Railroad Transfer Service, Inc., and the City of Chicago over the city's persistent efforts to regulate Transfer's business, under contract with the railroads, of daily transporting by motor vehicle thousands of interstate railroad passengers between the city's rail terminals. In 1955 the railroads hired Transfer to replace another motor carrier in performing this interterminal transfer service. Bent on blocking this replacement, the city then amended Chapter 28 of its Municipal Code, which had before been primarily directed at regulating taxicab companies, to require that new companies seeking to perform the transfer service obtain licenses from the city by demonstrating, among other things, their ability to satisfy the public convenience and necessity. Because the city threatened to fine Transfer and arrest its drivers if it operated without a city license for each vehicle, Transfer, without attempting to obtain such licenses, and the railroads brought suit against the city to challenge the validity of the public-convenience-and-necessity section of the ordinance. In Chicago v. Atchison, T. & S. F. R. Co., , rejecting the city's argument that the challenge was premature, we held that section "completely invalid insofar as it applies to Transfer ... ." Id., at 89.In 1959, after our decision in Atchison, the city repealed the invalid section, added some new provisions, and amended or left unchanged others which clearly applied to Transfer but were not specifically dealt with in our Atchison opinion. The amended ordinance, still making it unlawful for Transfer to operate without obtaining licenses from the city,1 provides that an applicant for a license must, among other things:2 pay a license fee,3 hire only Chicago residents as its drivers,4 maintain its principal place of business in Chicago,5 and file a detailed written application.6 Upon receipt of an application, the city must investigate the applicant's "character and reputation ... as a law abiding citizen" and his "financial ability" to render "safe and comfortable" service, to replace and maintain equipment, and to pay all judgments arising out of vehicle operation. If the city finds that the applicant is "qualified" and that the vehicle for which the license is sought is in "safe and proper condition," the amended ordinance requires the city to issue the license.7 Licenses are valid for only one year, and under the amended ordinance a licensee must annually go through this detailed application procedure. Outstanding licenses are revocable on a number of grounds at the city's discretion.8 Finally, the ordinance provides a fine of up to $100 for each violation of any of its provisions and specifies that each day such violation continues shall be deemed a separate offense.9 With the ordinance thus amended, the city in 1960 demanded that Transfer apply for licenses. Transfer did so, after unsuccessfully attempting to pay the license fees under protest, and then brought this present lawsuit against the city, asking the District Court to declare the above-mentioned provisions of the ordinance invalid as unconstitutional burdens on interstate commerce and as unconstitutional attempts to regulate in an area preempted by the Interstate Commerce Act, 24 Stat. 379, as amended, 49 U.S.C. 1 et seq. While the case was pending, the city again demanded that Transfer cease and desist operations unless it "fully complied" with the ordinance10 and again amended its ordinance to impose new requirements on Transfer such as filing detailed financial reports and opening its books and records for city inspection.11 Nevertheless, the District Court dismissed Transfer's action as premature. Because Transfer had continued to operate by paying its license fees into court and because the city had taken no further action to enforce its ordinance, the Court of Appeals affirmed, holding Transfer's complaint premature and the ordinance valid on its face. 358 F.2d 55. We granted certiorari to consider these two holdings and conclude that the action is not premature and that the ordinance is invalid. First. The prematurity arguments which the city makes here are similar to the ones it made and we rejected in Atchison. Though the city argues that some of the challenged provisions of the ordinance do not apply to Transfer,12 the Court of Appeals clearly considered them applicable. Though the city argues that it does not retain as much power to deny Transfer a license as Transfer fears,13 it is clear that "the City claims at least some power ... to decide whether a motor carrier may transport passengers from one station to another." 357 U.S., at 85 (emphasis added). That was enough in Atchison to enable Transfer to attack the public-convenience-and-necessity requirement, even though the city there disclaimed any power to deny a license because of economic considerations. It is enough here. It is difficult to imagine a controversy more actual, alive, and ripe than this one. It has lasted for more than a decade. Though Transfer obtained its 1960 licenses after it filed this lawsuit to challenge the ordinance, it has continued to operate only by paying the license fees into court. The city has continually - and even while this case was pending - amended its ordinance to regulate Transfer further and has continually demanded that Transfer fully comply with the ordinance. Though the city now disclaims any power to "stop" Transfer's operations, it does not give up its power under the ordinance to fine Transfer and arrest its drivers for operating without licenses or its power to revoke for discretionary reasons all licenses which Transfer may obtain.14 In short, although Transfer continues to operate, it is only at the city's reluctant sufferance.15 If the ordinance is invalid insofar as it applies to Transfer, then, as we said in Atchison, "that company was not obligated to apply for a ... [license] and submit to the administrative procedures incident thereto before bringing this action." 357 U.S., at 89.Second. The rationale of Atchison compels our holding that the provisions of the ordinance now challenged by Transfer cannot be validly applied to it. In Atchison, recognizing that Transfer's "service is an integral part of interstate railroad transportation authorized and subject to regulation under the Interstate Commerce Act," id., at 89, we pointed to various provisions of the Act16 which in our view completely precluded the city "from exercising any veto power over such transfer service," id., at 85 (emphasis added). The Act, as we said in Atchison, gives the railroads, not the city, the "discretion to determine who may transfer interstate passengers and baggage between railroad terminals." Id., at 84-85. That power, that discretion, is precisely what the comprehensive licensing scheme of the amended ordinance purports to reserve to the city. It matters not that the city no longer seeks to exercise that power by requiring a showing of public convenience and necessity. The total effect of the current ordinance on Transfer's operations and the burdens it places on interstate commerce are the same. As we recognized in Atchison, the city retains authority to insist that Transfer obey "general safety regulations" such as traffic signals and speed limits. Id., at 88. Many of the provisions of the current ordinance, such as the requirements that Transfer maintain its principal place of business in Chicago, have its drivers reside in Chicago, file annually the most detailed financial reports, and open its books and records for city inspection, bear no resemblance to general safety regulations such as traffic signals and speed limits. Other provisions, if standing alone and enforced by means other than this particular licensing program, might possibly be justified as safety regulations.17 Castle v. Hayes Freight Lines, . But we need not decide that question now, for here each of these provisions is an integral part of, and cannot be divorced from, the comprehensive licensing scheme that the city seeks to impose as a whole on Transfer. See Adams Express Co. v. New York, . Here the city seeks to enforce each and all of these related requirements by denial of a license for noncompliance and then criminal sanctions for operation without a license. This is the "veto power" which Atchison held the city may not exercise. Reversed.MR. JUSTICE HARLAN would affirm the judgment below substantially for the reasons given in the opinion of Chief Judge Hastings for the Court of Appeals, 358 F.2d 55.[Footnote 1] 28-2. (The provisions herein cited are from the current Municipal Code.)[Footnote 2] No vehicle may be licensed until it has been inspected by the city and found to be "in safe operating condition and to have adequate ... facilities which are clean and in good repair for the comfort and convenience of passengers" ( 28-4), unless it has at least two doors on each side ( 28-4.1), and unless the licensee has a specified amount of public liability, property damage, and workmen's compensation insurance evidenced by policies filed with the city ( 28-12). The validity of these provisions is not specifically challenged by Transfer.[Footnote 3] Section 28-7 imposes an annual fee of $40 for each terminal vehicle, clearly defined in 28-1 (p) to include Transfer's vehicles, and provides that such fee "shall be applied to the cost of issuing such license, including, without being limited to, the investigations, inspections and supervision necessary therefor, and to the cost of regulating all operations of public passenger vehicles ... ."[Footnote 4] Provisions of Chapter 28 require that drivers be public chauffeurs licensed by the city, 28-1 (l), 28-9, and several provisions of Chapter 28.1 appear to make residence in the city a condition to being licensed as a chauffeur, e. g., 28.1-3, 28.1-9, and 28.1-14.[Footnote 5] Section 28-5.1, added for the first time in 1959.[Footnote 6] Section 28-5, describing the information to be contained in the application, was amended in 1959 to provide: "If the applicant is affiliated or to become affiliated or identified with any person [defined elsewhere to include a corporation] by ... service agreement, the application shall contain the full name, Chicago business address and telephone number of said affiliate, and a copy of the agreement with said affiliate, if any, shall be filed with the application." Since Transfer operates under a service contract with the railroads, it is conceivable that the railroads might be considered affiliates of Transfer. However, it is clear that the provisions of the ordinance requiring an affiliate to maintain its principal place of business in Chicago, to register with the Commissioner, to carry certain insurance, and to comply with all provisions of the ordinance and rules issued by the Commissioner, 28-5.1, 28-12.1, 28-13.1, cannot be validly applied to the railroads, and the city does not now suggest that they can.[Footnote 7] 28-6: "Upon receipt of an application for a public passenger vehicle license the commissioner shall cause an investigation to be made of the character and reputation of the applicant as a law abiding citizen; the financial ability of the applicant to render safe and comfortable transportation service, to maintain or replace the equipment for such service and to pay all judgments and awards which may be rendered for any cause arising out of the operation of a public passenger vehicle during the license period. If the commissioner shall find that the application, and all other statements and documents required to be filed with said application have been properly executed, and that the applicant is qualified to pursue the occupation of a cabman or coachman [defined in 28-1 (m) to include the proprietor of a terminal vehicle], the commissioner shall issue to him and in his name a license for each public passenger vehicle applied for, to terminate on the 31st day of December following the date of issue, provided that each said vehicle is registered in applicant's name and is in safe and proper condition at the time the license is issued." The italicized sentence was added in 1959.[Footnote 8] Prior to 1963 a license was subject to discretionary revocation only if it was obtained by an application in which a material fact was omitted or stated falsely. 28-15.1. This section was amended in 1963 to authorize revocation also where a licensee fails "to carry out any representation made to the Commissioner before the issuance of such license," and to make clear that revocation under this section may extend to all licenses held by a person who obtains any single license by misrepresentation. Under 28-14, the city's vehicle commissioner may suspend a license at any time that a vehicle becomes "unsafe for operation or ... unfit for public use," and "[i]n determining whether any ... vehicle is unfit for public use the commissioner shall give consideration to its effect on the health, comfort and convenience of passengers and its public appearance on the streets of the city."[Footnote 9] 28-32.[Footnote 10] The city also ordered Transfer's drivers to submit to medical examinations and fingerprinting.[Footnote 11] 28-30.1: "Every cabman, corporation and affiliate shall keep and provide accurate books and records of account of his operations at his place of business in the city. On or before May 1 of each year, every cabman, corporation and affiliate shall file with the Commissioner a profit and loss statement for the preceding calendar year, showing all his earnings and expenditures for operation, maintenance and repair of property, depreciation expense, premiums paid for workmen's compensation and public liability insurance, and taxes paid for unemployment insurance and social security, and all state and local license fees, property taxes and Federal income taxes, and a balance sheet taken at the close of said year. "The Commissioner ... shall have access to the property, books, contracts, accounts and records during normal business hours at said place of business, for such information as may be required for the effective administration and enforcement of the provisions of this chapter ... . "In addition to the foregoing reports, each cabman shall within thirty days after the six months' period ended December 31 and within thirty days after the six months' period ended June 30 of each year file a sworn statement with the Commissioner showing his gross fares collected and his operating expenses for the six months immediately preceding said dates." The italicized provisions were added in 1963. As first enacted in 1959, the section was applicable only to taxicab companies.[Footnote 12] For instance, the city argues that 28-30.1 does not apply to Transfer. But, as the Court of Appeals apparently recognized, the 1963 amendments of this section make its first two paragraphs applicable to Transfer. See note 11, supra.[Footnote 13] The city argues that its commissioner may only consider the so-called "safety factors" specifically enumerated in 28-6 in determining whether Transfer is "qualified" to perform the interterminal service. See n. 7, supra. Transfer, perhaps understandably, is afraid that the word "qualified" gives the commissioner unlimited discretion to consider the very same nonsafety factors that he previously could consider under the invalid public-convenience-and-necessity provision.[Footnote 14] At the same time the city was assuring the District Court that its threat to stop Transfer was an "idle" one, it was adding a new provision to the ordinance which seems custom-tailored to make Transfer's already precarious position more precarious. Section 28-31.2, added in 1963, provides: "No license which has been revoked, surrendered, cancelled or not applied for within a period of seven months after such license application is due, shall hereafter be issued."[Footnote 15] The city argues that Transfer cannot challenge the principal-place-of-business requirement because Transfer now has its principal, and only, place of business in Chicago. The provision quoted in n. 14, supra, makes it clear that neither Transfer, which might want to change its place of business, nor the railroads, which might want to hire another transfer agent or perform the service themselves, can afford to make any change prior to challenging the place-of-business requirement. Under 28-15, "[i]f any licensee abandons his ... place of business in the city ... all his licenses shall be revoked." After such revocation, no new licenses may be issued.[Footnote 16] In particular, we mentioned 49 U.S.C. 1 (4) and 3 (4) requiring the railroads to provide reasonable and proper facilities for the transfer of passengers between terminals, 15 (3) giving the Interstate Commerce Commission power to establish such service, and 302 (c) (2) providing that the interterminal service conducted by any motor carrier under contract with a railroad shall be regarded as transportation performed by the railroad and shall be subject to the same comprehensive scheme of regulation which applies to such transportation. Furthermore, under a proviso of 302 (c), the ICC retains power to treat interterminal service as motor carrier service under 304 for the purpose of regulating "qualifications and maximum hours of service of employees and safety of operation and equipment." Although, at the time we decided Atchison, the ICC had not adopted any special regulations for interterminal transfer service, we there noted that it could do so at any time under the Act, id., at 86-87, and since then, the ICC has, indeed, promulgated under 304 certain safety regulations which are specifically applicable to motor carriers engaged in such service. See generally 49 CFR 190.1 et seq.[Footnote 17] In Atchison we noted that the city retains authority to "exact reasonable fees for ... use of the local streets." Id., at 88. The license fees exacted here, however, were for the purpose of enforcing this invalid licensing scheme. See note 3, supra. Transfer cannot be compelled to pay them.

1. The Alien Registration Act of 1940, so far as it authorizes the deportation of a legally resident alien because of membership in the Communist Party, even though such membership terminated before enactment of the Act, was within the power of Congress under the Federal Constitution. Pp. 581-596. (a) The Act does not deprive the alien of liberty without due process of law in violation of the Fifth Amendment. Pp. 584-591. (1) The power to deport aliens is inherent in every sovereign state. Pp. 587-588. (2) The policy toward aliens is so exclusively entrusted to the political branches of the Government as to be largely immune from judicial inquiry or interference; and it cannot be said that the power has been so unreasonably or harshly exercised by Congress in this Act as to warrant judicial interference. Pp. 588-590. (3) The fact that the Act inflicts severe hardship on the individuals affected does not render it violative of the Due Process Clause. Pp. 590-591. (b) The Act does not abridge the aliens' freedom of speech and assembly in contravention of the First Amendment. Pp. 591-592. (c) The Act does not contravene the provision of Art. I, 9 of the Constitution forbidding ex post facto laws. Pp. 593-596.2. Procedural requirements of the Administrative Procedure Act are not mandatory as to proceedings which were instituted before the effective date of the Act. P. 583, n. 4. 3. One who consented to the same individual acting both as presiding officer and examining officer in administrative proceedings is without standing, on judicial review, to raise the objection that he was thereby denied procedural due process. P. 583, n. 4. 187 F.2d 137, affirmed.[Footnote *] Together with No. 206, Mascitti v. McGrath, Attorney General, on appeal from the United States District Court for the District of Columbia; and No. 264, Coleman v. McGrath, Attorney General, et al., also on appeal from the United States District Court for the District of Columbia. The cases are stated in the opinion of the Court, pp. 581-584. The judgments are affirmed, p. 596.Richard F. Watt argued the cause for petitioner in No. 43. With him on the brief was Walter F. Dodd.Jack Wasserman argued the cause for appellant in No. 206. With him on the brief was Filindo B. Masino.David Rein argued the cause for appellant in No. 264. With him on the brief was Joseph Forer.Robert L. Stern argued the cause for respondent in No. 43 and appellees in Nos. 206 and 264. With him on the brief were Solicitor General Perlman, Assistant Attorney General McInerney, Beatrice Rosenberg, John R. Wilkins and Charles Gordon.MR. JUSTICE JACKSON delivered the opinion of the Court.The ultimate question in these three cases is whether the United States constitutionally may deport a legally resident alien because of membership in the Communist Party which terminated before enactment of the Alien Registration Act, 1940.1 Harisiades, a Greek national, accompanied his father to the United States in 1916, when thirteen years of age, and has resided here since. He has taken a wife and sired two children, all citizens. He joined the Communist Party in 1925, when it was known as the Workers Party, and served as an organizer, Branch Executive Committeeman, secretary of its Greek Bureau, and editor of its paper "Empros." The party discontinued his membership, along with that of other aliens, in 1939, but he has continued association with members. He was familiar with the principles and philosophy of the Communist Party and says he still believes in them. He disclaims personal belief in use of force and violence and asserts that the party favored their use only in defense. A warrant for his deportation because of his membership was issued in 1930 but was not served until 1946. The delay was due to inability to locate him because of his use of a number of aliases. After hearings, he was ordered deported on the grounds that after entry he had been a member of an organization which advocates overthrow of the Government by force and violence and distributes printed matter so advocating. He sought release by habeas corpus, which was denied by the District Court.2 The Court of Appeals for the Second Circuit affirmed.3 Mascitti, a citizen of Italy, came to this country in 1920, at the age of sixteen. He married a resident alien and has one American-born child. He was a member of the Young Workers Party, the Workers Party and the Communist Party between 1923 and 1929. His testimony was that he knew the party advocated a proletarian dictatorship, to be established by force and violence if the capitalist class resisted. He heard some speakers advocate violence, in which he says he did not personally believe, and he was not clear as to the party policy. He resigned in 1929, apparently because he lost sympathy with or interest in the party. A warrant for his deportation issued and was served in 1946. After the usual administrative hearings he was ordered deported on the same grounds as Harisiades. He sought relief by declaratory judgment, which was denied without opinion by a three-judge District Court for the District of Columbia. His case comes to this Court by direct appeal.Mrs. Coleman, a native of Russia, was admitted to the United States in 1914, when thirteen years of age. She married an American citizen and has three children, citizens by birth. She admits being a member of the Communist Party for about a year, beginning in 1919, and again from 1928 to 1930, and again from 1936 to 1937 or 1938. She held no office and her activities were not significant. She disavowed much knowledge of party principles and program, claiming she joined each time because of some injustice the party was then fighting. The reasons she gives for leaving the party are her health and the party's discontinuance of alien memberships. She has been ordered deported because after entry she became a member of an organization advocating overthrow of the Government by force and violence. She sought an injunction on constitutional grounds, among others. Relief was denied, without opinion, by a three-judge District Court for the District of Columbia and her case also comes here by direct appeal.Validity of the hearing procedures is questioned for noncompliance with the Administrative Procedure Act, which we think is here inapplicable.4 Admittedly, each of these deportations is authorized and required by the letter, spirit and intention of the statute. But the Act is assailed on three grounds: (1) that it deprives the aliens of liberty without due process of law in violation of the Fifth Amendment; (2) that it abridges their freedoms of speech and assembly in contravention of the First Amendment; and (3) that it is an ex post facto law which Congress is forbidden to pass by Art. I, 9, cl. 3 of the Constitution.We have in each case a finding, approved by the court below, that the Communist Party during the period of the alien's membership taught and advocated overthrow of the Government of the United States by force and violence. Those findings are not questioned here.I.These aliens ask us to forbid their expulsion by a departure from the long-accepted application to such cases of the Fifth Amendment provision that no person shall be deprived of life, liberty or property without due process of law. Their basic contention is that admission for permanent residence confers a "vested right" on the alien, equal to that of the citizen, to remain within the country, and that the alien is entitled to constitutional protection in that matter to the same extent as the citizen. Their second line of defense is that if any power to deport domiciled aliens exists it is so dispersed that the judiciary must concur in the grounds for its exercise to the extent of finding them reasonable. The argument goes on to the contention that the grounds prescribed by the Act of 1940 bear no reasonable relation to protection of legitimate interests of the United States and concludes that the Act should be declared invalid. Admittedly these propositions are not founded in precedents of this Court.For over thirty years each of these aliens has enjoyed such advantages as accrue from residence here without renouncing his foreign allegiance or formally acknowledging adherence to the Constitution he now invokes. Each was admitted to the United States, upon passing formidable exclusionary hurdles, in the hope that, after what may be called a probationary period, he would desire and be found desirable for citizenship. Each has been offered naturalization, with all of the rights and privileges of citizenship, conditioned only upon open and honest assumption of undivided allegiance to our Government.5 But acceptance was and is not compulsory. Each has been permitted to prolong his original nationality indefinitely.So long as one thus perpetuates a dual status as an American inhabitant but foreign citizen, he may derive advantages from two sources of law - American and international. He may claim protection against our Government unavailable to the citizen. As an alien he retains a claim upon the state of his citizenship to diplomatic intervention on his behalf, a patronage often of considerable value. The state of origin of each of these aliens could presently enter diplomatic remonstrance against these deportations if they were inconsistent with international law, the prevailing custom among nations or their own practices.The alien retains immunities from burdens which the citizen must shoulder. By withholding his allegiance from the United States, he leaves outstanding a foreign call on his loyalties which international law not only permits our Government to recognize but commands it to respect. In deference to it certain dispensations from conscription for any military service have been granted foreign nationals.6 They cannot, consistently with our international commitments, be compelled "to take part in the operations of war directed against their own country."7 In addition to such general immunities they may enjoy particular treaty privileges.8 Under our law, the alien in several respects stands on an equal footing with citizens,9 but in others has never been conceded legal parity with the citizen.10 Most importantly, to protract this ambiguous status within the country is not his right but is a matter of permission and tolerance. The Government's power to terminate its hospitality has been asserted and sustained by this Court since the question first arose.11 War, of course, is the most usual occasion for extensive resort to the power. Though the resident alien may be personally loyal to the United States, if his nation becomes our enemy his allegiance prevails over his personal preference and makes him also our enemy, liable to expulsion or internment,12 and his property becomes subject to seizure and perhaps confiscation.13 But it does not require war to bring the power of deportation into existence or to authorize its exercise. Congressional apprehension of foreign or internal dangers short of war may lead to its use. So long as the alien elects to continue the ambiguity of his allegiance his domicile here is held by a precarious tenure.That aliens remain vulnerable to expulsion after long residence is a practice that bristles with severities. But it is a weapon of defense and reprisal confirmed by international law as a power inherent in every sovereign state.14 Such is the traditional power of the Nation over the alien and we leave the law on the subject as we find it.This brings us to the alternative defense under the Due Process Clause - that, granting the power, it is so unreasonably and harshly exercised by this enactment that it should be held unconstitutional.In historical context the Act before us stands out as an extreme application of the expulsion power. There is no denying that as world convulsions have driven us toward a closed society the expulsion power has been exercised with increasing severity, manifest in multiplication of grounds for deportation, in expanding the subject classes from illegal entrants to legal residents, and in greatly lengthening the period of residence after which one may be expelled.15 This is said to have reached a point where it is the duty of this Court to call a halt upon the political branches of the Government.It is pertinent to observe that any policy toward aliens is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.16 These restraints upon the judiciary, occasioned by different events, do not control today's decision but they are pertinent. It is not necessary and probably not possible to delineate a fixed and precise line of separation in these matters between political and judicial power under the Constitution. Certainly, however, nothing in the structure of our Government or the text of our Constitution would warrant judicial review by standards which would require us to equate our political judgment with that of Congress.Under the conditions which produced this Act, can we declare that congressional alarm about a coalition of Communist power without and Communist conspiracy within the United States is either a fantasy or a pretense? This Act was approved by President Roosevelt June 28, 1940, when a world war was threatening to involve us, as soon it did. Communists in the United States were exerting every effort to defeat and delay our preparations. Certainly no responsible American would say that there were then or are now no possible grounds on which Congress might believe that Communists in our midst are inimical to our security.Congress received evidence that the Communist movement here has been heavily laden with aliens and that Soviet control of the American Communist Party has been largely through alien Communists. It would be easy for those of us who do not have security responsibility to say that those who do are taking Communism too seriously and overestimating its danger. But we have an Act of one Congress which, for a decade, subsequent Congresses have never repealed but have strengthened and extended. We, in our private opinions, need not concur in Congress' policies to hold its enactments constitutional. Judicially we must tolerate what personally we may regard as a legislative mistake.We are urged, because the policy inflicts severe and undoubted hardship on affected individuals, to find a restraint in the Due Process Clause. But the Due Process Clause does not shield the citizen from conscription and the consequent calamity of being separated from family, friends, home and business while he is transported to foreign lands to stem the tide of Communism. If Communist aggression creates such hardships for loyal citizens, it is hard to find justification for holding that the Constitution requires that its hardships must be spared the Communist alien. When citizens raised the Constitution as a shield against expulsion from their homes and places of business, the Court refused to find hardship a cause for judicial intervention.17 We think that, in the present state of the world, it would be rash and irresponsible to reinterpret our fundamental law to deny or qualify the Government's power of deportation. However desirable world-wide amelioration of the lot of aliens, we think it is peculiarly a subject for international diplomacy. It should not be initiated by judicial decision which can only deprive our own Government of a power of defense and reprisal without obtaining for American citizens abroad any reciprocal privileges or immunities. Reform in this field must be entrusted to the branches of the Government in control of our international relations and treaty-making powers.We hold that the Act is not invalid under the Due Process Clause. These aliens are not entitled to judicial relief unless some other constitutional limitation has been transgressed, to which inquiry we turn.II.The First Amendment is invoked as a barrier against this enactment. The claim is that in joining an organization advocating overthrow of government by force and violence the alien has merely exercised freedoms of speech, press and assembly which that Amendment guarantees to him.The assumption is that the First Amendment allows Congress to make no distinction between advocating change in the existing order by lawful elective processes and advocating change by force and violence, that freedom for the one includes freedom for the other, and that when teaching of violence is denied so is freedom of speech.Our Constitution sought to leave no excuse for violent attack on the status quo by providing a legal alternative - attack by ballot. To arm all men for orderly change, the Constitution put in their hands a right to influence the electorate by press, speech and assembly. This means freedom to advocate or promote Communism by means of the ballot box, but it does not include the practice or incitement of violence.18 True, it often is difficult to determine whether ambiguous speech is advocacy of political methods or subtly shades into a methodical but prudent incitement to violence. Communist governments avoid the inquiry by suppressing everything distasteful. Some would have us avoid the difficulty by going to the opposite extreme of permitting incitement to violent overthrow at least unless it seems certain to succeed immediately. We apprehend that the Constitution enjoins upon us the duty, however difficult, of distinguishing between the two. Different formulae have been applied in different situations and the test applicable to the Communist Party has been stated too recently to make further discussion at this time profitable.19 We think the First Amendment does not prevent the deportation of these aliens. III.The remaining claim is that this Act conflicts with Art. I, 9, of the Constitution forbidding ex post facto enactments. An impression of retroactivity results from reading as a new and isolated enactment what is actually a continuation of prior legislation.During all the years since 1920 Congress has maintained a standing admonition to aliens, on pain of deportation, not to become members of any organization that advocates overthrow of the United States Government by force and violence, a category repeatedly held to include the Communist Party. These aliens violated that prohibition and incurred liability to deportation. They were not caught unawares by a change of law. There can be no contention that they were not adequately forewarned both that their conduct was prohibited and of its consequences.In 1939, this Court decided Kessler v. Strecker, , in which it was held that Congress, in the statute as it then stood, had not clearly expressed an intent that Communist Party membership remained cause for deportation after it ceased.20 The Court concluded that in the absence of such expression only contemporaneous membership would authorize deportation.The reaction of the Communist Party was to drop aliens from membership, at least in form, in order to immunize them from the consequences of their party membership.The reaction of Congress was that the Court had misunderstood its legislation. In the Act here before us it supplied unmistakable language that past violators of its prohibitions continued to be deportable in spite of resignation or expulsion from the party. It regarded the fact that an alien defied our laws to join the Communist Party as an indication that he had developed little comprehension of the principles or practice of representative government or else was unwilling to abide by them.However, even if the Act were found to be retroactive, to strike it down would require us to overrule the construction of the ex post facto provision which has been followed by this Court from earliest times. It always has been considered that that which it forbids is penal legislation which imposes or increases criminal punishment for conduct lawful previous to its enactment.21 Deportation, however severe its consequences, has been consistently classified as a civil rather than a criminal procedure.22 Both of these doctrines as original proposals might be debatable, but both have been considered closed for many years and a body of statute and decisional law has been built upon them. In Bugajewitz v. Adams, , Mr. Justice Holmes, for the Court, said: "It is thoroughly established that Congress has power to order the deportation of aliens whose presence in the country it deems hurtful. The determination by facts that might constitute a crime under local law is not a conviction of crime, nor is the deportation a punishment; it is simply a refusal by the Government to harbor persons whom it does not want. The coincidence of the local penal law with the policy of Congress is an accident... . The prohibition of ex post facto laws in Article I, 9, has no application ... and with regard to the petitioner it is not necessary to construe the statute as having any retrospective effect." Later, the Court said, "It is well settled that deportation, while it may be burdensome and severe for the alien, is not a punishment... . The inhibition against the passage of an ex post facto law by Congress in 9 of Article I of the Constitution applies only to criminal laws ... and not to a deportation act like this ... ." Mahler v. Eby, .It is urged against the foregoing opinions that in a few cases the ex post facto prohibition had been applied to what appeared to be civil disabilities. Fletcher v. Peck, 6 Cranch 87; Cummings v. Missouri, 4 Wall. 277; Ex parte Garland, 4 Wall. 333; Pierce v. Carskadon, 16 Wall. 234. The Court has since explained that those cases proceeded from the view that novel disabilities there imposed upon citizens were really criminal penalties for which civil form was a disguise. Burgess v. Salmon, . Those cases were known to the Justices who promulgated the above-quoted opinions but have never been considered to govern deportation. The facts of this case afford no basis for reconsidering or modifying the long-settled doctrine.It is contended that this policy allows no escape by reformation. We are urged to apply some doctrine of atonement and redemption. Congress might well have done so, but it is not for the judiciary to usurp the function of granting absolution or pardon. We cannot do so for deportable ex-convicts, even though they have served a term of imprisonment calculated to bring about their reformation.When the Communist Party as a matter of party strategy formally expelled alien members en masse, it destroyed any significance that discontinued membership might otherwise have as indication of change of heart by the individual. Congress may have believed that the party tactics threw upon the Government an almost impossible burden if it attempted to separate those who sincerely renounced Communist principles of force and violence from those who left the party the better to serve it. Congress, exercising the wide discretion that it alone has in these matters, declined to accept that as the Government's burden.We find none of the constitutional objections to the Act well founded. The judgments accordingly are Affirmed.MR. JUSTICE CLARK took no part in the consideration or decision of these cases.

Respondent Kimberly Ellerth quit her job after 15 months as a salesperson in one of petitioner Burlington Industries' many divisions, allegedly because she had been subjected to constant sexual harassment by one of her supervisors, Ted Slowik. Slowik was a mid-level manager who had authority to hire and promote employees, subject to higher approval, but was not considered a policy-maker. Against a background of repeated boorish and offensive remarks and gestures allegedly made by Slowik, Ellerth places particular emphasis on three incidents where Slowik's comments could be construed as threats to deny her tangible job benefits. Ellerth refused all of Slowik's advances, yet suffered no tangible retaliation and was, in fact, promoted once. Moreover, she never informed anyone in authority about Slowik's conduct, despite knowing Burlington had a policy against sexual harassment. In filing this lawsuit, Ellerth alleged Burlington engaged in sexual harassment and forced her constructive discharge, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . The District Court granted Burlington summary judgment. The Seventh Circuit en banc reversed in a decision that produced eight separate opinions and no consensus for a controlling rationale. Among other things, those opinions focused on whether Ellerth's claim could be categorized as one of quid pro quo harassment, and on whether the standard for an employer's liability on such a claim should be vicarious liability or negligence.Held: Under Title VII, an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, may recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor's actions, but the employer may interpose an affirmative de fense. Pp. 6-21.(a) The Court assumes an important premise yet to be established: a trier of fact could find in Slowik's remarks numerous threats to retaliate against Ellerth if she denied some sexual liberties. The threats, however, were not carried out. Cases based on carried-out threats are referred to often as " quid pro quo" cases, as distinct from bothersome attentions or sexual remarks sufficient to create a "hostile work environment." Those two terms do not appear in Title VII, which forbids only "discriminat[ion] against any individual with respect to his ... terms [or] conditions ... of employment, because of ... sex." §2000e-2(a)(1). In Meritor Savings Bank, FSB v. Vinson , , this Court distinguished between the two concepts, saying both are cognizable under Title VII, though a hostile environment claim requires harassment that is severe or pervasive. Meritor did not discuss the distinction for its bearing upon an employer's liability for discrimination, but held, with no further specifics, that agency principles controlled on this point. Id ., at 72. Nevertheless, in Meritor 's wake, Courts of Appeals held that, if the plaintiff established a quid pro quo claim, the employer was subject to vicarious liability. This rule encouraged Title VII plaintiffs to state their claims in quid pro quo terms, which in turn put expansive pressure on the definition. For example, the question presented here is phrased as whether Ellerth can state a quid pro quo claim, but the issue of real concern to the parties is whether Burlington has vicarious liability, rather than liability limited to its own negligence. This Court nonetheless believes the two terms are of limited utility. To the extent they illustrate the distinction between cases involving a carried-out threat and offensive conduct in general, they are relevant when there is a threshold question whether a plaintiff can prove discrimination. Hence, Ellerth's claim involves only unfulfilled threats, so it is a hostile work environment claim requiring a showing of severe or pervasive conduct. This Court accepts the District Court's finding that Ellerth made such a showing. When discrimination is thus proved, the factors discussed below, not the categories quid pro quo and hostile work environment, control on the issue of vicarious liability. Pp. 6-9.(b) In deciding whether an employer has vicarious liability in a case such as this, the Court turns to agency law principles, for Title VII defines the term "employer" to include "agents." §2000e(b). Given this express direction, the Court concludes a uniform and predictable standard must be established as a matter of federal law. The Court relies on the general common law of agency, rather than on the law of any particular State. Community for Creative NonViolence v. Reid, . The Restatement (Second) of Agency (hereinafter Restatement) is a useful beginning point, al though common-law principles may not be wholly transferable to Title VII. See Meritor , supra , at 72. Pp. 9-10.(c) A master is subject to liability for the torts of his servants committed while acting in the scope of their employment. Restatement §219(1). Although such torts generally may be either negligent or intentional, sexual harassment under Title VII presupposes intentional conduct. An intentional tort is within the scope of employment when actuated, at least in part, by a purpose to serve the employer. Id., §§228(1)(c), 230. Courts of Appeals have held, however, a supervisor acting out of gender-based animus or a desire to fulfill sexual urges may be actuated by personal motives unrelated and even antithetical to the employer's objectives. Thus, the general rule is that sexual harassment by a supervisor is not conduct within the scope of employment. Pp. 10-12.(d) However, scope of employment is not the only basis for employer liability under agency principles. An employer is subject to liability for the torts of its employees acting outside the scope of their employment when, inter alia, the employer itself was negligent or reckless, Restatement §219(2)(b), or the employee purported to act or to speak on behalf of the employer and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation, id., §219(2)(d). An employer is negligent, and therefore subject to liability under §219(2)(b), if it knew or should have known about sexual harassment and failed to stop it. Negligence sets a minimum standard for Title VII liability; but Ellerth seeks to invoke the more stringent standard of vicarious liability. Section 219(2)(d) makes an employer vicariously liable for sexual harassment by an employee who uses apparent authority (the apparent authority standard), or who was "aided in accomplishing the tort by the existence of the agency relation" (the aided in the agency relation standard). Pp. 12-14.(e) As a general rule, apparent authority is relevant where the agent purports to exercise a power which he or she does not have, as distinct from threatening to misuse actual power. Compare Restatement §§6 and 8. Because supervisory harassment cases involve misuse of actual power, not the false impression of its existence, apparent authority analysis is inappropriate. When a party seeks to impose vicarious liability based on an agent's misuse of delegated authority, the Restatement's aided in the agency relation rule provides the appropriate analysis. P. 14.(f) That rule requires the existence of something more than the employment relation itself because, in a sense, most workplace tortfeasors, whether supervisors or co-workers, are aided in accomplishing their tortious objective by the employment relation: Proximity and regular contact afford a captive pool of potential victims. Such an additional aid exists when a supervisor subjects a subordinate to a significant, tangible employment action, i.e. , a significant change in employment status, such as discharge, demotion, or undesirable reassignment. Every Federal Court of Appeals to have considered the question has correctly found vicarious liability in that circumstance. This Court imports the significant, tangible employment action concept for resolution of the vicarious liability issue considered here. An employer is therefore subject to vicarious liability for such actions. However, where, as here, there is no tangible employment action, it is not obvious the agency relationship aids in commission of the tort. Moreover, Meritor holds that agency principles constrain the imposition of employer liability for supervisor harassment. Limiting employer liability is also consistent with Title VII's purpose to the extent it would encourage the creation and use of anti-harassment policies and grievance procedures. Thus, in order to accommodate the agency principle of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of encouraging forethought by employers and saving action by objecting employees, the Court adopts, in this case and in Faragher v. Boca Raton , post, p. ___, the following holding: An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule. Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an antiharassment policy with a complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action. Pp. 15-20. (g) Given the Court's explanation that the labels quid pro quo and hostile work environment are not controlling for employer-liability purposes, Ellerth should have an adequate opportunity on remand to prove she has a claim which would result in vicarious liability. Although she has not alleged she suffered a tangible employment action at Slowik's hands, which would deprive Burlington of the affirmative defense, this is not dispositive. In light of the Court's decision, Burlington is still subject to vicarious liability for Slowik's activity, but should have an opportunity to assert and prove the affirmative defense. Pp. 20-21.123 F. 3d 490, affirmed.KENNEDY , J., delivered the opinion of the Court, in which REHNQUIST , C. J., and STEVENS , O'CONNOR , SOUTER , and BREYER , JJ., joined. GINSBURG , J., filed an opinion concurring in the judgment. THOMAS , J., filed a dissenting opinion, in which SCALIA , J., joined. 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.U.S. Supreme Court No. 97-569 BURLINGTON INDUSTRIES, INC., PETITIONER v. KIMBERLY B. ELLERTHON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT[June 26, 1998]JUSTICE KENNEDY delivered the opinion of the Court.We decide whether, under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U.S.C. § 2000e et seq ., an employee who refuses the unwelcome and threatening sexual advances of a supervisor, yet suffers no adverse, tangible job consequences, can recover against the employer without showing the employer is negligent or otherwise at fault for the supervisor's actions. ISummary judgment was granted for the employer, so we must take the facts alleged by the employee to be true. United States v. Diebold, Inc. (per curiam) . The employer is Burlington Industries, the petitioner. The employee is Kimberly Ellerth, the respondent. From March 1993 until May 1994, Ellerth worked as a salesperson in one of Burlington's divisions in Chicago, Illinois. During her employment, she alleges, she was subjected to constant sexual harassment by her supervisor, one Ted Slowik.In the hierarchy of Burlington's management structure, Slowik was a mid-level manager. Burlington has eight divisions, employing more than 22,000 people in some 50 plants around the United States. Slowik was a vice president in one of five business units within one of the divisions. He had authority to make hiring and promotion decisions subject to the approval of his supervisor, who signed the paperwork. See 912 F. Supp. 1101, 1119, n. 14 (ND Ill. 1996). According to Slowik's supervisor, his position was "not considered an upper-level management position," and he was "not amongst the decision-making or policy-making hierarchy." Ibid . Slowik was not Ellerth's immediate supervisor. Ellerth worked in a two-person office in Chicago, and she answered to her office colleague, who in turn answered to Slowik in New York.Against a background of repeated boorish and offensive remarks and gestures which Slowik allegedly made, Ellerth places particular emphasis on three alleged incidents where Slowik's comments could be construed as threats to deny her tangible job benefits. In the summer of 1993, while on a business trip, Slowik invited Ellerth to the hotel lounge, an invitation Ellerth felt compelled to accept because Slowik was her boss. App. 155. When Ellerth gave no encouragement to remarks Slowik made about her breasts, he told her to "loosen up" and warned, "[y]ou know, Kim, I could make your life very hard or very easy at Burlington." Id ., at 156.In March 1994, when Ellerth was being considered for a promotion, Slowik expressed reservations during the promotion interview because she was not "loose enough." Id ., at 159. The comment was followed by his reaching over and rubbing her knee. Ibid . Ellerth did receive the promotion; but when Slowik called to announce it, he told Ellerth, "you're gonna be out there with men who work in factories, and they certainly like women with pretty butts/legs." Id ., at 159-160.In May 1994, Ellerth called Slowik, asking permission to insert a customer's logo into a fabric sample. Slowik responded, "I don't have time for you right now, Kim-unless you want to tell me what you're wearing." Id ., at 78. Ellerth told Slowik she had to go and ended the call. Ibid . A day or two later, Ellerth called Slowik to ask permission again. This time he denied her request, but added something along the lines of, "are you wearing shorter skirts yet, Kim, because it would make your job a whole heck of a lot easier." Id ., at 79.A short time later, Ellerth's immediate supervisor cautioned her about returning telephone calls to customers in a prompt fashion. 912 F. Supp., at 1109. In response, Ellerth quit. She faxed a letter giving reasons unrelated to the alleged sexual harassment we have described. Ibid. About three weeks later, however, she sent a letter explaining she quit because of Slowik's behavior. Ibid .During her tenure at Burlington, Ellerth did not inform anyone in authority about Slowik's conduct, despite knowing Burlington had a policy against sexual harassment. Ibid . In fact, she chose not to inform her immediate supervisor (not Slowik) because " 'it would be his duty as my supervisor to report any incidents of sexual harassment.' " Ibid . On one occasion, she told Slowik a comment he made was inappropriate. Ibid .In October 1994, after receiving a right-to-sue letter from the Equal Employment Opportunity Commission (EEOC), Ellerth filed suit in the United States District Court for the Northern District of Illinois, alleging Burlington engaged in sexual harassment and forced her constructive discharge, in violation of Title VII. The District Court granted summary judgment to Burlington. The Court found Slowik's behavior, as described by Ellerth, severe and pervasive enough to create a hostile work environment, but found Burlington neither knew nor should have known about the conduct. There was no triable issue of fact on the latter point, and the Court noted Ellerth had not used Burlington's internal complaint procedures. Id ., at 1118. Although Ellerth's claim was framed as a hostile work environment complaint, the District Court observed there was a quid pro quo "component" to the hostile environment. Id ., at 1121. Proceeding from the premise that an employer faces vicarious liability for quid pro quo harassment, the District Court thought it necessary to apply a negligence standard because the quid pro quo merely contributed to the hostile work environment. See id ., at 1123. The District Court also dismissed Ellerth's constructive discharge claim.The Court of Appeals en banc reversed in a decision which produced eight separate opinions and no consensus for a controlling rationale. The judges were able to agree on the problem they confronted: Vicarious liability, not failure to comply with a duty of care, was the essence of Ellerth's case against Burlington on appeal. The judges seemed to agree Ellerth could recover if Slowik's unfulfilled threats to deny her tangible job benefits was sufficient to impose vicarious liability on Burlington. Jansen v. Packing Corp. of America , 123 F. 3d 490, 494 (CA7 1997) ( per curiam ). With the exception of Judges Coffey and Easterbrook, the judges also agreed Ellerth's claim could be categorized as one of quid pro quo harassment, even though she had received the promotion and had suffered no other tangible retaliation. Ibid .The consensus disintegrated on the standard for an employer's liability for such a claim. Six judges, Judges Flaum, Cummings, Bauer, Evans, Rovner, and Diane P. Wood, agreed the proper standard was vicarious liability, and so Ellerth could recover even though Burlington was not negligent. Ibid . They had different reasons for the conclusion. According to Judges Flaum, Cummings, Bauer, and Evans, whether a claim involves a quid pro quo determines whether vicarious liability applies; and they in turn defined quid pro quo to include a supervisor's threat to inflict a tangible job injury whether or not it was completed. Id ., at 499. Judges Wood and Rovner interpreted agency principles to impose vicarious liability on employers for most claims of supervisor sexual harassment, even absent a quid pro quo . Id ., at 565.Although Judge Easterbrook did not think Ellerth had stated a quid pro quo claim, he would have followed the law of the controlling State to determine the employer's liability, and by this standard, the employer would be liable here. Id ., at 552. In contrast, Judge Kanne said Ellerth had stated a quid pro quo claim, but negligence was the appropriate standard of liability when the quid pro quo involved threats only. Id ., at 505.Chief Judge Posner, joined by Judge Manion, disagreed. He asserted Ellerth could not recover against Burlington despite having stated a quid pro quo claim. According to Chief Judge Posner, an employer is subject to vicarious liability for "act[s] that significantly alter the terms or conditions of employment," or "company act[s]." Id ., at 515. In the emergent terminology, an unfulfilled quid pro quo is a mere threat to do a company act rather than the act itself, and in these circumstances, an employer can be found liable for its negligence only. Ibid . Chief Judge Posner also found Ellerth failed to create a triable issue of fact as to Burlington's negligence. Id ., at 517.Judge Coffey rejected all of the above approaches because he favored a uniform standard of negligence in almost all sexual harassment cases. Id ., at 518.The disagreement revealed in the careful opinions of the judges of the Court of Appeals reflects the fact that Congress has left it to the courts to determine controlling agency law principles in a new and difficult area of federal law. We granted certiorari to assist in defining the relevant standards of employer liability. __ (1998). IIAt the outset, we assume an important proposition yet to be established before a trier of fact. It is a premise assumed as well, in explicit or implicit terms, in the various opinions by the judges of the Court of Appeals. The premise is: a trier of fact could find in Slowik's remarks numerous threats to retaliate against Ellerth if she denied some sexual liberties. The threats, however, were not carried out or fulfilled. Cases based on threats which are carried out are referred to often as quid pro quo cases, as distinct from bothersome attentions or sexual remarks that are sufficiently severe or pervasive to create a hostile work environment. The terms quid pro quo and hostile work environment are helpful, perhaps, in making a rough demarcation between cases in which threats are carried out and those where they are not or are absent altogether, but beyond this are of limited utility.Section 703(a) of Title VII forbids"an employer"(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's ... sex."42 U.S.C. § 2000e-2(a)(1)." Quid pro quo " and "hostile work environment" do not appear in the statutory text. The terms appeared first in the academic literature, see C. MacKinnon, Sexual Harassment of Working Women (1979); found their way into decisions of the Courts of Appeals, see, e.g. , Henson v. Dundee , 682 F. 2d 897, 909 (CA11 1982); and were mentioned in this Court's decision in Meritor Savings Bank,FSB v. Vinson , . See generally E. Scalia, The Strange Career of Quid Pro Quo Sexual Harassment, 21 Harv. J. L. & Pub. Policy 307 (1998).In Meritor , the terms served a specific and limited pur pose. There we considered whether the conduct in question constituted discrimination in the terms or conditions of employment in violation of Title VII. We assumed, and with adequate reason, that if an employer demanded sexual favors from an employee in return for a job benefit, discrimination with respect to terms or conditions of employment was explicit. Less obvious was whether an employer's sexually demeaning behavior altered terms or conditions of employment in violation of Title VII. We distinguished between quid pro quo claims and hostile environment claims, see 477 U.S., at 65, and said both were cognizable under Title VII, though the latter requires harassment that is severe or pervasive. Ibid . The principal significance of the distinction is to instruct that Title VII is violated by either explicit or constructive alterations in the terms or conditions of employment and to explain the latter must be severe or pervasive. The distinction was not discussed for its bearing upon an employer's liability for an employee's discrimination. On this question Meritor held, with no further specifics, that agency principles controlled. Id ., at 72.Nevertheless, as use of the terms grew in the wake of Meritor , they acquired their own significance. The standard of employer responsibility turned on which type of harassment occurred. If the plaintiff established a quid pro quo claim, the Courts of Appeals held, the employer was subject to vicarious liability. See Davis v. Sioux City , 115 F. 3d 1365, 1367 (CA8 1997); Nichols v. Frank , 42 F. 3d 503, 513-514 (CA9 1994); Bouton v. BMW of North America, Inc. , 29 F. 3d 103, 106-107 (CA3 1994); Sauers v. Salt Lake County , 1 F. 3d 1122, 1127 (CA10 1993); Kauffman v. Allied Signal, Inc. , 970 F. 2d 178, 185-186 (CA6), cert. denied, ; Steele v. Offshore Shipbuilding, Inc. , 867 F. 2d 1311, 1316 (CA11 1989). The rule encouraged Title VII plaintiffs to state their claims as quid pro quo claims, which in turn put expansive pressure on the definition. The equivalence of the quid pro quo label and vicarious liability is illustrated by this case. The question presented on certiorari is whether Ellerth can state a claim of quid pro quo harassment, but the issue of real concern to the parties is whether Burlington has vicarious liability for Slowik's alleged misconduct, rather than liability limited to its own negligence. The question presented for certiorari asks:"Whether a claim of quid pro quo sexual harassment may be stated under Title VII ... . where the plaintiff employee has neither submitted to the sexual advances of the alleged harasser nor suffered any tangible effects on the compensation, terms, conditions or privileges of employment as a consequence of a refusal to submit to those advances?"Pet. for Cert. i.We do not suggest the terms quid pro quo and hostile work environment are irrelevant to Title VII litigation. To the extent they illustrate the distinction between cases involving a threat which is carried out and offensive conduct in general, the terms are relevant when there is a threshold question whether a plaintiff can prove discrimination in violation of Title VII. When a plaintiff proves that a tangible employment action resulted from a refusal to submit to a supervisor's sexual demands, he or she establishes that the employment decision itself constitutes a change in the terms and conditions of employment that is actionable under Title VII. For any sexual harassment preceding the employment decision to be actionable, however, the conduct must be severe or pervasive. Because Ellerth's claim involves only unfulfilled threats, it should be categorized as a hostile work environment claim which requires a showing of severe or pervasive conduct. See Oncale v. Sundowner Offshore Services, Inc.__, __ (1998) (slip op., at 6); Harris v. Forklift Systems, Inc., . For purposes of this case, we accept the District Court's finding that the alleged conduct was severe or pervasive. See supra , at 3. The case before us involves numerous alleged threats, and we express no opinion as to whether a single unfulfilled threat is sufficient to constitute discrimination in the terms or conditions of employment.When we assume discrimination can be proved, however, the factors we discuss below, and not the categories quid pro quo and hostile work environment, will be controlling on the issue of vicarious liability. That is the question we must resolve. IIIWe must decide, then, whether an employer has vicarious liability when a supervisor creates a hostile work environment by making explicit threats to alter a subordinate's terms or conditions of employment, based on sex, but does not fulfill the threat. We turn to principles of agency law, for the term "employer" is defined under Title VII to include "agents." 42 U.S.C. § 2000e(b); see Meritor , supra , at 72. In express terms, Congress has directed federal courts to interpret Title VII based on agency principles. Given such an explicit instruction, we conclude a uniform and predictable standard must be established as a matter of federal law. We rely "on the general common law of agency, rather than on the law of any particular State, to give meaning to these terms." Community for Creative Non-Violence v. Reid, . The resulting federal rule, based on a body of case law developed over time, is statutory interpretation pursuant to congressional direction. This is not federal common law in "the strictest sense, i.e. , a rule of decision that amounts, not simply to an interpretation of a federal statute ..., but, rather, to the judicial 'creation' of a special federal rule of decision." Atherton v. FDIC , . State court decisions, applying state employment discrimination law, may be instructive in applying general agency principles, but, it is interesting to note, in many cases their determinations of employer liability under state law rely in large part on federal court decisions under Title VII. E.g. , Arizona v. Schallock , 189 Ariz. 250, 259, 941 P. 2d 1275, 1284 (1997); Lehmann v. Toys 'R' Us, Inc. , 132 N. J. 587, 622, 626 A. 2d 445, 463 (1993); Thompson v. Berta Enterprises, Inc. , 72 Wash. App. 531, 537-539, 864 P. 2d 983, 986-988 (1994).As Meritor acknowledged, the Restatement (Second) of Agency (1957) (hereinafter Restatement), is a useful beginning point for a discussion of general agency principles. 477 U.S., at 72. Since our decision in Meritor , federal courts have explored agency principles, and we find useful instruction in their decisions, noting that "common-law principles may not be transferable in all their particulars to Title VII." Ibid . The EEOC has issued Guidelines governing sexual harassment claims under Title VII, but they provide little guidance on the issue of employer liability for supervisor harassment. See 29 CFR §1604.11(c) (1997) (vicarious liability for supervisor harassment turns on "the particular employment relationship and the job functions performed by the individual"). ASection 219(1) of the Restatement sets out a central principle of agency law:"A master is subject to liability for the torts of his servants committed while acting in the scope of their employment."An employer may be liable for both negligent and intentional torts committed by an employee within the scope of his or her employment. Sexual harassment under Title VII presupposes intentional conduct. While early decisions absolved employers of liability for the intentional torts of their employees, the law now imposes liability where the employee's "purpose, however misguided, is wholly or in part to further the master's business." W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts §70, p. 505 (5th ed. 1984) (hereinafter Prosser and Keeton on Torts). In applying scope of employment principles to intentional torts, however, it is accepted that "it is less likely that a willful tort will properly be held to be in the course of employment and that the liability of the master for such torts will naturally be more limited." F. Mechem, Outlines of the Law of Agency §394, p. 266 (P. Mechem 4th ed., 1952). The Restatement defines conduct, including an intentional tort, to be within the scope of employment when "actuated, at least in part, by a purpose to serve the [employer]," even if it is forbidden by the employer. Restatement §§228(1)(c), 230. For example, when a salesperson lies to a customer to make a sale, the tortious conduct is within the scope of employment because it benefits the employer by increasing sales, even though it may violate the employer's policies. See Prosser and Keeton on Torts §70, at 505-506.As Courts of Appeals have recognized, a supervisor acting out of gender-based animus or a desire to fulfill sexual urges may not be actuated by a purpose to serve the employer. See, e.g. , Harrison v. Eddy Potash, Inc. , 112 F. 3d 1437, 1444 (CA10 1997), cert. pending, No. 97-232; Torres v. Pisano , 116 F. 3d 625, 634, n. 10 (CA2 1997). But see Kauffman v. Allied Signal, Inc ., 970 F. 2d, at 184-185 (holding harassing supervisor acted within scope of employment, but employer was not liable because of its quick and effective remediation). The harassing supervisor often acts for personal motives, motives unrelated and even antithetical to the objectives of the employer. Cf. Mechem, supra , §368 ("for the time being [the supervisor] is conspicuously and unmistakably seeking a personal end"); see also Restatement §235, Illustration 2 (tort committed while "[a]cting purely from personal ill will" not within the scope of employment); §235, Illustration 3 (tort committed in retaliation for failing to pay the employee a bribe not within the scope of employment). There are instances, of course, where a supervisor engages in unlawful discrimination with the purpose, mistaken or otherwise, to serve the employer. E.g. , Sims v. Montgomery County Comm'n , 766 F. Supp. 1052, 1075 (MD Ala. 1990) (supervisor acting in scope of employment where employer has a policy of discouraging women from seeking advancement and "sexual harassment was simply a way of furthering that policy").The concept of scope of employment has not always been construed to require a motive to serve the employer. E.g. , Ira S. Bushey & Sons, Inc. v. United States , 398 F. 2d 167, 172 (CA2 1968). Federal courts have nonetheless found similar limitations on employer liability when applying the agency laws of the States under the Federal Tort Claims Act, which makes the Federal Government liable for torts committed by employees within the scope of employment. 28 U.S.C. § 1346(b); see, e.g. , Jamison v. Wiley , 14 F. 3d 222, 237 (CA4 1994) (supervisor's unfair criticism of subordinate's work in retaliation for rejecting his sexual advances not within scope of employment); Wood v. United States , 995 F. 2d 1122, 1123 (CA1 1993) (Breyer, C. J.) (sexual harassment amounting to assault and battery "clearly outside the scope of employment"); see also 2 L. Jayson & R. Longstreth, Handling Federal Tort Claims §9.07[4], p. 9-211 (1998).The general rule is that sexual harassment by a supervisor is not conduct within the scope of employment. BScope of employment does not define the only basis for employer liability under agency principles. In limited circumstances, agency principles impose liability on employers even where employees commit torts outside the scope of employment. The principles are set forth in the much-cited §219(2) of the Restatement:"(2)A master is not subject to liability for the torts of his servants acting outside the scope of their employment, unless: "(a)the master intended the conduct or the consequences, or "(b)the master was negligent or reckless, or "(c)the conduct violated a non-delegable duty of the master, or "(d)the servant purported to act or to speak on behalf of the principal and there was reliance upon apparent authority, or he was aided in accomplishing the tort by the existence of the agency relation."See also §219, Comment e (Section 219(2) "enumerates the situations in which a master may be liable for torts of servants acting solely for their own purposes and hence not in the scope of employment").Subsection (a) addresses direct liability, where the employer acts with tortious intent, and indirect liability, where the agent's high rank in the company makes him or her the employer's alter ego. None of the parties contend Slowik's rank imputes liability under this principle. There is no contention, furthermore, that a nondelegable duty is involved. See §219(2)(c). So, for our purposes here, subsections (a) and (c) can be put aside.Subsections (b) and (d) are possible grounds for imposing employer liability on account of a supervisor's acts and must be considered. Under subsection (b), an employer is liable when the tort is attributable to the employer's own negligence. §219(2)(b). Thus, although a supervisor's sexual harassment is outside the scope of employment because the conduct was for personal motives, an employer can be liable, nonetheless, where its own negligence is a cause of the harassment. An employer is negligent with respect to sexual harassment if it knew or should have known about the conduct and failed to stop it. Negligence sets a minimum standard for employer liability under Title VII; but Ellerth seeks to invoke the more strin gent standard of vicarious liability.Subsection 219(2)(d) concerns vicarious liability for intentional torts committed by an employee when the employee uses apparent authority (the apparent authority standard), or when the employee "was aided in accomplishing the tort by the existence of the agency relation" (the aided in the agency relation standard). Ibid . As other federal decisions have done in discussing vicarious liability for supervisor harassment, e.g. , Henson v. Dundee , 682 F. 2d 897, 909 (CA11 1982), we begin with §219(2)(d). CAs a general rule, apparent authority is relevant where the agent purports to exercise a power which he or she does not have, as distinct from where the agent threatens to misuse actual power. Compare Restatement §6 (defining "power") with §8 (defining "apparent authority"). In the usual case, a supervisor's harassment involves misuse of actual power, not the false impression of its existence. Apparent authority analysis therefore is inappropriate in this context. If, in the unusual case, it is alleged there is a false impression that the actor was a supervisor, when he in fact was not, the victim's mistaken conclusion must be a reasonable one. Restatement §8, Comment c ("Apparent authority exists only to the extent it is reasonable for the third person dealing with the agent to believe that the agent is authorized"). When a party seeks to impose vicarious liability based on an agent's misuse of delegated authority, the Restatement's aided in the agency relation rule, rather than the apparent authority rule, appears to be the appropriate form of analysis. DWe turn to the aided in the agency relation standard. In a sense, most workplace tortfeasors are aided in accomplishing their tortious objective by the existence of the agency relation: Proximity and regular contact may afford a captive pool of potential victims. See Gary v. Long , 59 F. 3d 1391, 1397 (CADC 1995). Were this to satisfy the aided in the agency relation standard, an employer would be subject to vicarious liability not only for all supervisor harassment, but also for all co-worker harassment, a result enforced by neither the EEOC nor any court of appeals to have considered the issue. See, e.g. , Blankenship v. Parke Care Centers, Inc ., 123 F. 3d 868, 872 (CA6 1997), cert. denied__ (1998) (sex discrimination); McKenzie v. Illinois Dept. of Transp. , 92 F. 3d 473, 480 (CA7 1996) (sex discrimination); Daniels v. Essex Group, Inc ., 937 F. 2d 1264, 1273 (CA7 1991) (race discrimination); see also 29 CFR 1604.11(d) (1997) ("knows or should have known" standard of liability for cases of harassment between "fellow employees"). The aided in the agency relation standard, therefore, requires the existence of something more than the employment relation itself.At the outset, we can identify a class of cases where, beyond question, more than the mere existence of the employment relation aids in commission of the harassment: when a supervisor takes a tangible employment action against the subordinate. Every Federal Court of Appeals to have considered the question has found vicarious liability when a discriminatory act results in a tangible employment action. See, e.g. , Sauers v. Salt Lake County , 1 F. 3d 1122, 1127 (CA10 1993) (" 'If the plaintiff can show that she suffered an economic injury from her supervisor's actions, the employer becomes strictly liable without any further showing ...' "). In Meritor , we acknowledged this consensus. See 477 U.S., at 70-71 ("[T]he courts have consistently held employers liable for the discriminatory discharges of employees by supervisory personnel, whether or not the employer knew, or should have known, or approved of the supervisor's actions"). Although few courts have elaborated how agency principles support this rule, we think it reflects a correct application of the aided in the agency relation standard.In the context of this case, a tangible employment action would have taken the form of a denial of a raise or a promotion. The concept of a tangible employment action appears in numerous cases in the Courts of Appeals discussing claims involving race, age, and national origin discrimination, as well as sex discrimination. Without endorsing the specific results of those decisions, we think it prudent to import the concept of a tangible employment action for resolution of the vicarious liability issue we consider here. A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. Compare Crady v. Liberty Nat. Bank & Trust Co. of Ind., 993 F. 2d 132, 136 (CA7 1993) ("A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation"), with Flaherty v. Gas Research Institute , 31 F. 3d 451, 456 (CA7 1994) (a "bruised ego" is not enough); Kocsis v. Multi-Care Management, Inc. , 97 F. 3d 876, 887 (CA6 1996) (demotion without change in pay, benefits, duties, or prestige insufficient) and Harlston v. McDonnell Douglas Corp. , 37 F. 3d 379, 382 (CA8 1994) (reassignment to more inconvenient job insufficient).When a supervisor makes a tangible employment decision, there is assurance the injury could not have been inflicted absent the agency relation. A tangible employment action in most cases inflicts direct economic harm. As a general proposition, only a supervisor, or other person acting with the authority of the company, can cause this sort of injury. A co-worker can break a co-worker's arm as easily as a supervisor, and anyone who has regular contact with an employee can inflict psychological injuries by his or her offensive conduct. See Gary , 59 F. 3d, at 1397; Henson , 682 F. 2d, at 910; Barnes v. Costle , 561 F. 2d 983, 996 (CADC 1977) (MacKinnon, J., concurring). But one co-worker (absent some elaborate scheme) cannot dock another's pay, nor can one co-worker demote another. Tangible employment actions fall within the special province of the supervisor. The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control.Tangible employment actions are the means by which the supervisor brings the official power of the enterprise to bear on subordinates. A tangible employment decision requires an official act of the enterprise, a company act. The decision in most cases is documented in official company records, and may be subject to review by higher level supervisors. E.g. , Shager v. Upjohn Co. , 913 F. 2d 398, 405 (CA7 1990) (noting that the supervisor did not fire plaintiff; rather, the Career Path Committee did, but the employer was still liable because the Committee functioned as the supervisor's "cat's-paw"). The supervisor often must obtain the imprimatur of the enterprise and use its internal processes. See Kotcher v. Rosa & Sullivan Appliance Center, Inc ., 957 F. 2d 59, 62 (CA2 1992) ("From the perspective of the employee, the supervisor and the employer merge into a single entity").For these reasons, a tangible employment action taken by the supervisor becomes for Title VII purposes the act of the employer. Whatever the exact contours of the aided in the agency relation standard, its requirements will always be met when a supervisor takes a tangible employment action against a subordinate. In that instance, it would be implausible to interpret agency principles to allow an employer to escape liability, as Meritor itself appeared to acknowledge. See, supra , at 15.Whether the agency relation aids in commission of supervisor harassment which does not culminate in a tangible employment action is less obvious. Application of the standard is made difficult by its malleable terminology, which can be read to either expand or limit liability in the context of supervisor harassment. On the one hand, a supervisor's power and authority invests his or her harassing conduct with a particular threatening character, and in this sense, a supervisor always is aided by the agency relation. See Meritor , 477 U.S., at 77 (Marshall, J., concurring in judgment) ("[I]t is precisely because the supervisor is understood to be clothed with the employer's authority that he is able to impose unwelcome sexual conduct on subordinates"). On the other hand, there are acts of harassment a supervisor might commit which might be the same acts a co-employee would commit, and there may be some circumstances where the supervisor's status makes little difference.It is this tension which, we think, has caused so much confusion among the Courts of Appeals which have sought to apply the aided in the agency relation standard to Title VII cases. The aided in the agency relation standard, however, is a developing feature of agency law, and we hesitate to render a definitive explanation of our understanding of the standard in an area where other important considerations must affect our judgment. In particular, we are bound by our holding in Meritor that agency principles constrain the imposition of vicarious liability in cases of supervisory harassment. See Meritor, supra , at 72 ("Congress' decision to define 'employer' to include any 'agent' of an employer, 42 U.S.C. § 2000e(b), surely evinces an intent to place some limits on the acts of employees for which employers under Title VII are to be held responsible"). Congress has not altered Meritor 's rule even though it has made significant amendments to Title VII in the interim. See Illinois Brick Co. v. Illinois, ("[W]e must bear in mind that considerations of stare decisis weigh heavily in the area of statutory construction, where Congress is free to change this Court's interpretation of its legislation").Although Meritor suggested the limitation on employer liability stemmed from agency principles, the Court acknowledged other considerations might be relevant as well. See, 477 U.S., at 72 ("common-law principles may not be transferable in all their particulars to Title VII"). For example, Title VII is designed to encourage the creation of antiharassment policies and effective grievance mechanisms. Were employer liability to depend in part on an employer's effort to create such procedures, it would effect Congress' intention to promote conciliation rather than litigation in the Title VII context, see EEOC v. Shell Oil Co., , and the EEOC's policy of encouraging the development of grievance procedures. See 29 CFR §1604.11(f) (1997); EEOC Policy Guidance on Sexual Harassment, 8 BNA FEP Manual 405:6699 (Mar. 19, 1990). To the extent limiting employer liability could encourage employees to report harassing conduct before it becomes severe or pervasive, it would also serve Title VII's deterrent purpose. See McKennon v. Nashville Banner Publishing Co., . As we have observed, Title VII borrows from tort law the avoidable consequences doctrine, see Ford Motor Co. v. EEOC, , n. 15 (1982), and the considerations which animate that doctrine would also support the limitation of employer liability in certain circumstances.In order to accommodate the agency principles of vicarious liability for harm caused by misuse of supervisory authority, as well as Title VII's equally basic policies of encouraging forethought by employers and saving action by objecting employees, we adopt the following holding in this case and in Faragher v. Boca Raton, post , also decided today. An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense. No affirmative defense is available, however, when the supervisor's harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment. IVRelying on existing case law which held out the promise of vicarious liability for all quid pro quo claims, see supra , at 7, Ellerth focused all her attention in the Court of Appeals on proving her claim fit within that category. Given our explanation that the labels quid pro quo and hostile work environment are not controlling for purposes of establishing employer liability, see supra , at 8, Ellerth should have an adequate opportunity to prove she has a claim for which Burlington is liable.Although Ellerth has not alleged she suffered a tangible employment action at the hands of Slowik, which would deprive Burlington of the availability of the affirmative defense, this is not dispositive. In light of our decision, Burlington is still subject to vicarious liability for Slowik's activity, but Burlington should have an opportunity to assert and prove the affirmative defense to liability. See supra , at 20-21.For these reasons, we will affirm the judgment of the Court of Appeals, reversing the grant of summary judgment against Ellerth. On remand, the District Court will have the opportunity to decide whether it would be appropriate to allow Ellerth to amend her pleading or supplement her discovery.The judgment of the Court of Appeals is affirmed. It is so ordered.U.S. Supreme Court No. 97-569 BURLINGTON INDUSTRIES, INC., PETITIONER v. KIMBERLY B. ELLERTHON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT[June 26, 1998]JUSTICE GINSBURG , concurring in the judgment.I agree with the Court's ruling that "the labels quid pro quo and hostile work environment are not controlling for purposes of establishing employer liability." Ante , at 2021. I also subscribe to the Court's statement of the rule governing employer liability, ante , at 20, which is substantively identical to the rule the Court adopts in Faragher v. Boca Raton , post , p. ___. U.S. Supreme Court No. 97-569 BURLINGTON INDUSTRIES, INC., PETITIONER v. KIMBERLY B. ELLERTHON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT[June 26, 1998]JUSTICE THOMAS , with whom JUSTICE SCALIA joins, dissenting.The Court today manufactures a rule that employers are vicariously liable if supervisors create a sexually hostile work environment, subject to an affirmative defense that the Court barely attempts to define. This rule applies even if the employer has a policy against sexual harassment, the employee knows about that policy, and the employee never informs anyone in a position of authority about the supervisor's conduct. As a result, employer liability under Title VII is judged by different standards depending upon whether a sexually or racially hostile work environment is alleged. The standard of employer liability should be the same in both instances: An employer should be liable if, and only if, the plaintiff proves that the employer was negligent in permitting the supervisor's conduct to occur. IYears before sexual harassment was recognized as "discriminat[ion] ... because of ... sex," 42 U.S.C. § 2000e2(a)(1), the Courts of Appeals considered whether, and when, a racially hostile work environment could violate Title VII. 1In the landmark case Rogers v. EEOC , 454 F. 2d 234 (1971), cert. denied, , the Court of Appeals for the Fifth Circuit held that the practice of racially segregating patients in a doctor's office could amount to discrimination in " 'the terms, conditions, or privileges' " of employment, thereby violating Title VII. Id., at 238 (quoting 42 U.S.C. § 2000e-2(a)(1)). The principal opinion in the case concluded that employment discrimination was not limited to the "isolated and distinguishable events" of "hiring, firing, and promoting." Id., at 238 (opinion of Goldberg, J.). Rather, Title VII could also be violated by a work environment "heavily polluted with discrimination," because of the deleterious effects of such an atmosphere on an employee's well-being. Ibid .Accordingly, after Rogers, a plaintiff claiming employment discrimination based upon race could assert a claim for a racially hostile work environment, in addition to the classic claim of so-called "disparate treatment." A disparate treatment claim required a plaintiff to prove an adverse employment consequence and discriminatory intent by his employer. See 1 B. Lindemann & P. Grossman, Employment Discrimination Law 10-11 (3d ed. 1996). A hostile environment claim required the plaintiff to show that his work environment was so pervaded by racial harassment as to alter the terms and conditions of his employment. See, e.g., Snell v. Suffolk Cty. , 782 F. 2d 1094, 1103 (CA2 1986) ("To establish a hostile atmosphere, ... plaintiffs must prove more than a few isolated incidents of racial enmity"); Johnson v. Bunny Bread Co. , 646 F. 2d 1250, 1257 (CA8 1981) (no violation of Title VII from infrequent use of racial slurs). This is the same standard now used when determining whether sexual harassment renders a work environment hostile. See Harris v. Forklift Systems, Inc., (actionable sexual harassment occurs when the workplace is " permeated with discriminatory intimidation, ridicule, and insult") (emphasis added) (internal quotation marks and citation omitted).In race discrimination cases, employer liability has turned on whether the plaintiff has alleged an adverse employment consequence, such as firing or demotion, or a hostile work environment. If a supervisor takes an adverse employment action because of race, causing the employee a tangible job detriment, the employer is vicariously liable for resulting damages. See ante, at 15. This is because such actions are company acts that can be performed only by the exercise of specific authority granted by the employer, and thus the supervisor acts as the employer. If, on the other hand, the employee alleges a racially hostile work environment, the employer is liable only for negligence: that is, only if the employer knew, or in the exercise of reasonable care should have known, about the harassment and failed to take remedial action. See, e.g., Dennis v. Cty. of Fairfax, 55 F. 3d 151, 153 (CA4 1995); Davis v. Monsanto Chemical Co. , 858 F. 2d 345, 349 (CA6 1988), cert. denied, . Liability has thus been imposed only if the employer is blameworthy in some way. See, e.g., Davis v. Monsanto Chemical Co. , supra, at 349; Snell v. Suffolk Cty., supra, at 1104; DeGrace v. Rumsfeld , 614 F. 2d 796, 805 (CA1 1980).This distinction applies with equal force in cases of sexual harassment. 2When a supervisor inflicts an adverse employment consequence upon an employee who has rebuffed his advances, the supervisor exercises the specific authority granted to him by his company. His acts, therefore, are the company's acts and are properly chargeable to it. See 123 F. 3d 490, 514 (1997) (Posner, C. J., dissenting); ante, at 17 ("Tangible employment actions fall within the special province of the supervisor. The supervisor has been empowered by the company as a distinct class of agent to make economic decisions affecting other employees under his or her control").If a supervisor creates a hostile work environment, however, he does not act for the employer. As the Court concedes, a supervisor's creation of a hostile work environment is neither within the scope of his employment, nor part of his apparent authority. See ante, at 10-14. Indeed, a hostile work environment is antithetical to the interest of the employer. In such circumstances, an employer should be liable only if it has been negligent. That is, liability should attach only if the employer either knew, or in the exercise of reasonable care should have known, about the hostile work environment and failed to take remedial action. 3 Sexual harassment is simply not something that employers can wholly prevent without taking extraordinary measures — constant video and audio surveillance, for example — that would revolutionize the workplace in a manner incompatible with a free society. See 123 F. 3d 490, 513 (Posner, C.J., dissenting). Indeed, such measures could not even detect incidents of harassment such as the comments Slowick allegedly made to respondent in a hotel bar. The most that employers can be charged with, therefore, is a duty to act reasonably under the circumstances. As one court recognized in addressing an early racial harassment claim:"It may not always be within an employer's power to guarantee an environment free from all bigotry... . [H]e can let it be known, however, that racial harassment will not be tolerated, and he can take all reasonable measures to enforce this policy... . But once an employer has in good faith taken those measures which are both feasible and reasonable under the circumstances to combat the offensive conduct we do not think he can be charged with discriminating on the basis of race."De Grace v. Rumsfeld, 614 F. 2d 796, 805 (1980).Under a negligence standard, Burlington cannot be held liable for Slowick's conduct. Although respondent alleged a hostile work environment, she never contended that Burlington had been negligent in permitting the harassment to occur, and there is no question that Burlington acted reasonably under the circumstances. The company had a policy against sexual harassment, and respondent admitted that she was aware of the policy but nonetheless failed to tell anyone with authority over Slowick about his behavior. See, ante, at 3. Burlington therefore cannot be charged with knowledge of Slowick's alleged harassment or with a failure to exercise reasonable care in not knowing about it. IIRejecting a negligence standard, the Court instead imposes a rule of vicarious employer liability, subject to a vague affirmative defense, for the acts of supervisors who wield no delegated authority in creating a hostile work environment. This rule is a whole-cloth creation that draws no support from the legal principles on which the Court claims it is based. Compounding its error, the Court fails to explain how employers can rely upon the affirmative defense, thus ensuring a continuing reign of confusion in this important area of the law.In justifying its holding, the Court refers to our comment in Meritor Savings Bank, FSB v. Vinson, , that the lower courts should look to "agency principles" for guidance in determining the scope of employer liability, id., at 72. The Court then interprets the term "agency principles" to mean the Restatement (Second) of Agency (1957). The Court finds two portions of the Restatement to be relevant: §219(2)(b), which provides that a master is liable for his servant's torts if the master is reckless or negligent, and §219(2)(d), which states that a master is liable for his servant's torts when the servant is "aided in accomplishing the tort by the existence of the agency relation." The Court appears to reason that a supervisor is "aided ... by ... the agency relation" in creating a hostile work environment because the supervisor's "power and authority invests his or her harassing conduct with a particular threatening character." Ante, at 18.Section 219(2)(d) of the Restatement provides no basis whatsoever for imposing vicarious liability for a supervisor's creation of a hostile work environment. Contrary to the Court's suggestions, the principle embodied in §219(2)(d) has nothing to do with a servant's "power and authority," nor with whether his actions appear "threatening." Rather, as demonstrated by the Restatement's illustrations, liability under §219(2)(d) depends upon the plaintiff's belief that the agent acted in the ordinary course of business or within the scope of his apparent authority. 4In this day and age, no sexually harassed employee can reasonably believe that a harassing supervisor is conducting the official business of the company or acting on its behalf. Indeed, the Court admits as much in demonstrating why sexual harassment is not committed within the scope of a supervisor's employment and is not part of his apparent authority. See ante, at 10-14.Thus although the Court implies that it has found guidance in both precedent and statute — see ante, at 9 ("The resulting federal rule, based on a body of case law developed over time, is statutory interpretation pursuant to congressional direction")--its holding is a product of willful policymaking, pure and simple. The only agency principle that justifies imposing employer liability in this context is the principle that a master will be liable for a servant's torts if the master was negligent or reckless in permitting them to occur; and as noted, under a negligence standard, Burlington cannot be held liable. See supra , at 5-6.The Court's decision is also in considerable tension with our holding in Meritor that employers are not strictly liable for a supervisor's sexual harassment. See Meritor Savings Bank, FSB v. Vinson, supra, at 72. Although the Court recognizes an affirmative defense — based solely on its divination of Title VII's gestalt , see ante, at 19 — it provides shockingly little guidance about how employers can actually avoid vicarious liability. Instead, it issues only Delphic pronouncements and leaves the dirty work to the lower courts:"While proof that an employer had promulgated an anti-harassment policy with complaint procedure is not necessary in every instance as a matter of law, the need for a stated policy suitable to the employment circumstances may appropriately be addressed in any case when litigating the first element of the defense. And while proof that an employee failed to fulfill the corresponding obligation of reasonable care to avoid harm is not limited to showing any unreasonable failure to use any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer's burden under the second element of the defense."Ante, at 20.What these statements mean for district courts ruling on motions for summary judgment — the critical question for employers now subject to the vicarious liability rule — remains a mystery. Moreover, employers will be liable notwithstanding the affirmative defense, even though they acted reasonably , so long as the plaintiff in question fulfilled her duty of reasonable care to avoid harm. See ibid. In practice, therefore, employer liability very well may be the rule. But as the Court acknowledges, this is the one result that it is clear Congress did not intend. See ante, at 18; Meritor Savings Bank, FSB v. Vinson, 477 U.S., at 72.The Court's holding does guarantee one result: There will be more and more litigation to clarify applicable legal rules in an area in which both practitioners and the courts have long been begging for guidance. It thus truly boggles the mind that the Court can claim that its holding will effect "Congress' intention to promote conciliation rather than litigation in the Title VII context." Ante, at 19. All in all, today's decision is an ironic result for a case that generated eight separate opinions in the Court of Appeals on a fundamental question, and in which we granted certiorari "to assist in defining the relevant standards of employer liability." Ante, at 5.***Popular misconceptions notwithstanding, sexual harassment is not a freestanding federal tort, but a form of employment discrimination. As such, it should be treated no differently (and certainly no better) than the other forms of harassment that are illegal under Title VII. I would restore parallel treatment of employer liability for racial and sexual harassment and hold an employer liable for a hostile work environment only if the employer is truly at fault. I therefore respectfully dissent.

The Navajo Nation has long sought damages under the Indian Tucker Act (ITA) for an asserted breach of fiduciary duty by the Secretary of the Interior in connection with his failure promptly to approve a royalty rate increase under a coal lease (Lease 8580) the Tribe executed in 1964. Six years ago, this Court held that "the Tribe's claim for compensation ... fails." United States v. Navajo Nation, 537 U. S. 488, 493 (Navajo I). The Court explained that in order to invoke the ITA and thereby bypass federal sovereign immunity, a tribe "must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties." Id., at 506. Holding that such duties were not imposed by the Indian Mineral Leasing Act of 1938 (IMLA), by the Indian Mineral Development Act of 1982 (IMDA), or by 25 U. S. C. §399, the Court reversed a judgment for the Tribe and remanded. The Court of Federal Claims then dismissed the Tribe's claim, but the Federal Circuit reversed, finding violations of duties imposed by the Navajo-Hopi Rehabilitation Act of 1950, 25 U. S. C. §§635(a), 638, and the Surface Mining Control and Reclamation Act of 1977, 30 U. S. C. §1300(e), as well as common-law duties arising from the Government's "comprehensive control" over tribal coal. Held: The Tribe's claim for compensation fails. None of the sources of law cited by the Federal Circuit and relied upon by the Tribe provides any more sound a basis for its lawsuit than those analyzed in Navajo I. Pp. 8-14. (a) Navajo I did not definitively terminate the Tribe's claim. Because the Court in that case did not analyze statutes other than the IMLA, the IMDA, and §399, it is conceivable, albeit unlikely, that another relevant statute might have provided a basis for the suit. However, Navajo I's reasoning — particularly its instruction to "train on specific rights-creating or duty-imposing statutory or regulatory prescriptions," 537 U. S., at 506 — left no room for that result based on the sources of law relied on below. P. 8. (b) Lease 8580 was not issued under §635(a), so the Tribe cannot invoke that law as a source of money-mandating duties. Section 635(a) authorizes leases only for terms of up to 25 years, renewable for up to another 25 years. In contrast, the IMLA allows "terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities." §396a. Mirroring the latter language, Lease 8580's indefinite term strongly suggests that it was negotiated and approved under the IMLA. This conclusion is not refuted by §635(a)'s saving clause or by testimony that coal leasing was a centerpiece of the Rehabilitation Act's program. Pp. 8-11. (c) Also unavailing is the argument that the Secretary violated §638's requirement that he follow the Tribe's recommendations in administering the "program authorized by this subchapter." The word "program" refers back to §631, which directs the Secretary to undertake "a program of basic improvements for the conservation and development of the [Tribe's] resources" and lists various projects to be included in the program. The statute certainly does not require the Secretary to follow recommendations of the Tribe as to royalty rates under coal leases executed pursuant to another Act. Pp. 11-12. (d) Title 30 U. S. C. §1300(e) is irrelevant. That provision applies only "[w]ith respect to leases issued after" the statute was enacted in 1977. Lease 8580 was issued in 1964; §1300(e) is therefore inapplicable. Pp. 12-13. (e) The Government's "comprehensive control" over Indian coal, alone, does not create enforceable fiduciary duties. The ITA limits cognizable claims to those arising under, inter alia, "the ... laws ... of the United States," 28 U. S. C. §1505, and Navajo I reiterated that the analysis must begin with "specific rights-creating or duty-imposing statutory or regulatory prescriptions," 537 U. S., at 506. If a statute or regulation imposes a trust relationship, then common-law principles are relevant in determining whether damages are available for breach of the duty, but the Tribe cannot identify a specific, applicable, trust-creating statute or regulation that the Government violated, so trust principles do not come into play here. Pp. 13-14.501 F. 3d 1327, reversed and remanded. Scalia, J., delivered the opinion for a unanimous Court. Souter, J., filed a concurring opinion, in which Stevens, J., joined.UNITED STATES, PETITIONER v. NAVAJO NATIONon writ of certiorari to the united states court of appeals for the federal circuit[April 6, 2009] Justice Scalia delivered the opinion of the Court. For over 15 years, the Indian Tribe known as the Navajo Nation has been pursuing a claim for money damages against the Federal Government based on an asserted breach of trust by the Secretary of the Interior in connection with his approval of amendments to a coal lease executed by the Tribe. The original lease took effect in 1964. The amendments were approved in 1987. The litigation was initiated in 1993. Six years ago, we held that "the Tribe's claim for compensation ... fails," United States v. Navajo Nation, 537 U. S. 488, 493 (2003) (Navajo I), but after further proceedings on remand the United States Court of Appeals for the Federal Circuit resuscitated it. 501 F. 3d 1327 (2007). Today we hold, once again, that the Tribe's claim for compensation fails. This matter should now be regarded as closed.I. Legal Background The Federal Government cannot be sued without its consent. FDIC v. Meyer, 510 U. S. 471, 475 (1994). Limited consent has been granted through a variety of statutes, including one colloquially referred to as the Indian Tucker Act: "The United States Court of Federal Claims shall have jurisdiction of any claim against the United States accruing after August 13, 1946, in favor of any tribe ... whenever such claim is one arising under the Constitution, laws or treaties of the United States, or Executive orders of the President, or is one which otherwise would be cognizable in the Court of Federal Claims if the claimant were not an Indian tribe, band or group." 28 U. S. C. §1505.The last clause refers to the (ordinary) Tucker Act, which waives immunity with respect to any claim "founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort." §1491(a)(1). Neither the Tucker Act nor the Indian Tucker Act creates substantive rights; they are simply jurisdictional provisions that operate to waive sovereign immunity for claims premised on other sources of law (e.g., statutes or contracts). United States v. Testan, 424 U. S. 392, 400 (1976); United States v. Mitchell, 445 U. S. 535, 538 (1980) (Mitchell I). The other source of law need not explicitly provide that the right or duty it creates is enforceable through a suit for damages, but it triggers liability only if it " 'can fairly be interpreted as mandating compensation by the Federal Government.' " Testan, supra, at 400 (quoting Eastport S. S. Corp. v. United States, 178 Ct. Cl. 599, 607, 372 F. 2d 1002, 1009 (1967)); see also United States v. Mitchell, 463 U. S. 206, 218 (1983) (Mitchell II); Navajo I, 537 U. S., at 503. As we explained in Navajo I, there are thus two hurdles that must be cleared before a tribe can invoke jurisdiction under the Indian Tucker Act. First, the tribe "must identify a substantive source of law that establishes specific fiduciary or other duties, and allege that the Government has failed faithfully to perform those duties." Id., at 506. "If that threshold is passed, the court must then determine whether the relevant source of substantive law 'can fairly be interpreted as mandating compensation for damages sustained as a result of a breach of the duties [the governing law] impose[s].' " Ibid. (alteration in original). At the second stage, principles of trust law might be relevant "in drawing the inference that Congress intended damages to remedy a breach." United States v. White Mountain Apache Tribe, 537 U. S. 465, 477 (2003).II. History of the Present CaseA. The Facts A comprehensive recitation of the facts can be found in Navajo I, supra, at 495-502. By way of executive summary: The Tribe occupies a large Indian reservation in the American Southwest, on which there are significant coal deposits. In 1964 the Secretary of the Interior approved a lease (Lease 8580), executed by the Tribe and the predecessor of Peabody Coal Company, allowing the company to engage in coal mining on a tract of the reservation in exchange for royalty payments to the Tribe. The term of the lease was set at "ten (10) years from the date hereof, and for so long thereafter as the substances produced are being mined by the Lessee in accordance with its terms, in paying quantities," App. 189; it is still in effect today. The royalty rates were originally set at a maximum of 37.5 cents per ton of coal, but the lease also said that the rates were "subject to reasonable adjustment by the Secretary of the Interior" after 20 years and again "at the end of each successive ten-year period thereafter." Id., at 194. The dispute in this case concerns the Tribe's attempt to secure such an adjustment to the royalty rate after the initial 20-year period elapsed in 1984. At that point, the Tribe requested that the Secretary exercise his power to increase the royalty rate, and the Director of the Bureau of Indian Affairs for the Navajo Area issued an opinion letter imposing a new rate of 20 percent of gross proceeds. Id., at 8-9. But Peabody filed an administrative appeal, and while it was pending the Tribe and the company reached a negotiated agreement to set a rate of 12.5 percent of gross proceeds instead. As a result, the Area Director's decision was vacated, the administrative appeal was dismissed, and the Secretary approved the amendments to the lease.B. This Litigation through Navajo I The Tribe launched the present lawsuit in 1993, claiming that the Secretary's actions in connection with the approval of the lease amendments constituted a breach of trust. In particular, the Tribe alleged that the Secretary, following upon improper ex parte contacts with Peabody, had delayed action on Peabody's administrative appeal in order to pressure the economically desperate Tribe to return to the bargaining table. This, the complaint charged, was in violation of the United States' fiduciary duty to act in the Indians' best interests. The Tribe sought $600 million in damages, invoking the Indian Tucker Act to bypass sovereign immunity. The Court of Federal Claims granted summary judgment to the United States, concluding that "the Navajo Nation has failed to present statutory authority which can be fairly interpreted as mandating compensation for the government's fiduciary wrongs," Navajo Nation v. United States, 46 Fed. Cl. 217, 236 (2000), and therefore could not sue under the Indian Tucker Act. The Federal Circuit reversed that ruling and held that the Indian Mineral Leasing Act of 1938 (IMLA), 52 Stat. 347, 25 U. S. C. §396a et seq., among other statutes, gave the Government broad control over mineral leasing on Indian lands, thus creating a fiduciary duty enforceable through suits for monetary damages. Navajo Nation v. United States, 263 F. 3d 1325, 1330-1332 (2001). Finding that the Government had in fact violated its obligations, the Court of Appeals reinstated the suit. We granted certiorari, United States v. Navajo Nation, 535 U. S. 1111 (2002), and (as described by the author of the ensuing opinion, concurring in a companion case) considered "the threshold question" presented by the Tribe's attempt to invoke the Indian Tucker Act: "[W]hether the IMLA and its regulations impose any concrete substantive obligations, fiduciary or otherwise, on the Government," White Mountain, supra, at 480 (Ginsburg, J., concurring). The answer was an unequivocal no. The relevant provision of the IMLA provided as follows:"[U]nallotted lands within any Indian reservation or lands owned by any tribe ... may, with the approval of the Secretary of the Interior, be leased for mining purposes, by authority of the tribal council or other authorized spokesmen for such Indians, for terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities." 25 U. S. C. §396a.Another provision of the IMLA authorized the Secretary to promulgate regulations governing operations under such leases, §396d, but during the relevant period the regulations applicable to coal leases, beyond setting a minimum royalty rate of 10 cents per ton, 25 CFR §211.15(c) (1985), did not limit the Secretary's approval authority. We construed the IMLA in light of its purpose: to "enhance tribal self-determination by giving Tribes, not the Government, the lead role in negotiating mining leases with third parties." Navajo I, 537 U. S., at 508. Consistent with that goal, the IMLA gave the Secretary not a "comprehensive managerial role," id., at 507, but only the power to approve coal leases already negotiated by Tribes. That authority did not create, expressly or otherwise, a trust duty with respect to coal leasing and so there existed no enforceable fiduciary obligations that the Tribe could sue the Government for having neglected. Id., at 507-508. We distinguished Mitchell II, which involved a series of statutes and regulations that gave the Federal Government "full responsibility to manage Indian resources and land for the benefit of the Indians." 463 U. S., at 224. Title 25 U. S. C. §406(a) permitted Indians to sell timber with the consent of the Secretary of the Interior, but directed the Secretary to base his decisions on "a consideration of the needs and best interests of the Indian owner and his heirs" and enumerated specific factors to guide that decisionmaking. We understood that statute — in combination with several other provisions and the applicable regulations — to create a fiduciary duty with respect to Indian timber. Mitchell II, supra, at 219-224. But neither the IMLA nor its regulations established any analogous duties or obligations in the coal context. Navajo I, supra, at 507-508. Nor did the other statutes cited by the Tribe — 25 U. S. C. §399 and the Indian Mineral Development Act of 1982 (IMDA), 96 Stat. 1938, 25 U. S. C. §2101 et seq.--help its case. Section 399 "is not part of the IMLA and [did] not govern Lease 8580," Navajo I, 537 U. S., at 509; rather, it granted to the Secretary the power to lease Indian land on his own say-so. We therefore found it irrelevant to the question whether "the Secretary's more limited approval role under the IMLA" created any enforceable duties. Ibid. And while the IMDA did set standards to govern the Secretary's approval of other mining-related agreements, Lease 8580 "falls outside the IMDA's domain," ibid.; that law was accordingly beside the point. Having resolved that "we ha[d] no warrant from any relevant statute or regulation to conclude that [the Secretary's] conduct implicated a duty enforceable in an action for damages under the Indian Tucker Act," this Court reversed the Federal Circuit's judgment in favor of the Tribe and "remanded for further proceedings consistent with this opinion." Id., at 514.C. Proceedings on Remand On remand, the Tribe argued that even if its suit could not be maintained on the basis of the IMLA, the IMDA, or §399, a "network" of other statutes, treaties, and regulations could provide the basis for its claims. The Government objected that our opinion foreclosed that possibility, but the Federal Circuit disagreed and remanded for consideration of the argument in the first instance. 347 F. 3d 1327 (2003). The Court of Federal Claims, however, persisted in its original decision to dismiss the Tribe's claim, explaining that nothing in the suggested "network" succeeded in tying "specific laws or regulatory provisions to the issue at hand," namely, the Secretary's approval of royalty rates in coal leases negotiated by tribes. 68 Fed. Cl. 805, 811 (2005). Once again the Federal Circuit reversed, this time relying primarily on three statutory provisions — two sections of the Navajo-Hopi Rehabilitation Act of 1950, 64 Stat. 46, 25 U. S. C. §§635(a), 638; and one section of the Surface Mining Control and Reclamation Act of 1977, 30 U. S. C. §1300(e)--to allow the Tribe's claim to proceed. The Court held that the Government had violated the specific duties created by those statutes, as well as "common law trust duties of care, candor, and loyalty" that arise from the comprehensive control over tribal coal that is exercised by the Government. 501 F. 3d 1327, 1346 (2007). Once again we granted the Government's petition for a writ of certiorari. 554 U. S. ___ (2008).III. AnalysisA. Threshold Matter The Government points to our categorical concluding language in Navajo I: "[W]e have no warrant from any relevant statute or regulation to conclude that [the Secretary's] conduct implicated a duty enforceable in an action for damages under the Indian Tucker Act," 537 U. S., at 514. This proves, the Government claims, that this Court definitively terminated the Tribe's claim last time around, so that the lower court's later resurrection of the suit was flatly inconsistent with our mandate. But, to be fair, our opinion (like the Court of Appeals decision we were reviewing, Navajo Nation, 263 F. 3d, at 1327, 1330-1331) did not analyze any statutes beyond the IMLA, the IMDA, and §399. It is thus conceivable, albeit unlikely, that some other relevant statute, though invoked by the Tribe at the outset of the litigation, might have gone unmentioned by the Federal Circuit and unanalyzed by this Court. So we cannot say that our mandate completely foreclosed the possibility that such a statute might allow for the Tribe to succeed on remand. What we can say, however, is that our reasoning in Navajo I — in particular, our emphasis on the need for courts to "train on specific rights-creating or duty-imposing statutory or regulatory prescriptions," 537 U. S., at 506 — left no room for that result based on the sources of law that the Court of Appeals relied upon.B. 25 U. S. C. §635(a) The first of the two discussed provisions of the Navajo-Hopi Rehabilitation Act of 1950 — like the IMLA — permits Indians to lease reservation lands if the Secretary approves of the deal: "Any restricted Indian lands owned by the Navajo Tribe, members thereof, or associations of such members ... may be leased by the Indian owners, with the approval of the Secretary of the Interior, for public, religious, educational, recreational, or business purposes, including the development or utilization of natural resources in connection with operations under such leases. All leases so granted shall be for a term of not to exceed twenty-five years, but may include provisions authorizing their renewal for an additional term of not to exceed twenty-five years, and shall be made under such regulations as may be prescribed by the Secretary... . Nothing contained in this section shall be construed to repeal or affect any authority to lease restricted Indian lands conferred by or pursuant to any other provision of law." 25 U. S. C. §635(a).The Tribe contends that this section renders the Government liable for any breach of trust in connection with the approval of leases executed pursuant to the authority it grants. Whether or not that is so, the provision only even arguably matters if Lease 8580 was issued under its authority. In Navajo I we presumed, as did the parties, that the lease had been issued pursuant to the IMLA. 537 U. S., at 495. But now the Tribe has changed its tune, and contends that Lease 8580 was approved under §635(a), not under the IMLA at all. Brief for Respondent 39. The Government says otherwise. Section 635(a) permits leasing only for "public, religious, educational, recreational, or business purposes," and the Government contends that mining is not embraced by those terms. While leases under §635(a) may provide for "the development or utilization of natural resources," they may do so only "in connection with operations under such leases," i.e., in connection with operations for the enumerated purposes. By contrast, mining leases were permitted and governed by the IMLA even before the Navajo-Hopi Rehabilitation Act was enacted in 1950. We need not decide whether the Government is correct on that point, or whether mining could ever qualify as a "business purpose" under the statute, because the Tribe's argument suffers from a more fundamental problem. Section 635(a) authorizes leases only for terms of up to 25 years, renewable for up to another 25 years. In contrast, the IMLA allows "for terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities." 25 U. S. C. §396a. Lease 8580, mirroring the latter language, sets a term of "ten (10) years from the date hereof, and for so long thereafter as the substances produced are being mined by the Lessee in accordance with its terms, in paying quantities." App. 189. That indefinite lease term strongly suggests that it was negotiated by the Tribe and approved by the Secretary under the powers authorized by the IMLA, not the Rehabilitation Act. The Tribe's only responses to this apparently fatal defect in its argument are (1) that §635(a) expressly leaves unaffected "any authority to lease restricted Indian lands conferred by or pursuant to any other provision of law," including the authority to lease for indefinite terms; and (2) that Stewart Udall, who served as Secretary of the Interior during the 1960's, recently testified that "coal leasing and related development was the centerpiece of the resources development program" under the Rehabilitation Act, id., at 569. As to the former: That is precisely the point. Section 635(a) creates a supplemental authority for leasing Indian land; it does not displace authority granted elsewhere. But in light of the different conditions attached to the different grants, it is apparent that a particular lease must be executed and approved pursuant to a particular authorization. The saving clause in §635(a) does not allow the Tribe to mix-and-match, to combine the (allegedly) duty-creating mechanism of the Rehabilitation Act with the indefinite lease term of the IMLA. It must be one or the other, and the record persuasively demonstrates that Lease 8580 is an IMLA lease. As to Secretary Udall's testimony: That is not inconsistent with our conclusion. The Interior Department may have viewed coal leasing as an important part of the program to rehabilitate the Navajo Tribe but that does not prove that Lease 8580 was issued pursuant to the supplemental leasing authority granted by the Rehabilitation Act, rather than the pre-existing leasing authority of the IMLA preserved by the Rehabilitation Act. The latter, perhaps because of its longer lease terms, was evidently preferable to the Tribe or the coal company or both. Because the lease in this case "falls outside" §635(a)'s "domain," Navajo I, supra, at 509, the Tribe cannot invoke it as a source of money-mandating rights or duties.C. 25 U. S. C. §638 Next, the Tribe points to a second provision in the Navajo-Hopi Rehabilitation Act: "The Tribal Councils of the Navajo and Hopi Tribes and the Indian communities affected shall be kept informed and afforded opportunity to consider from their inception plans pertaining to the program authorized by this subchapter. In the administration of the program, the Secretary of the Interior shall consider the recommendations of the tribal councils and shall follow such recommendations whenever he deems them feasible and consistent with the objectives of this subchapter." 25 U. S. C. §638.In the Tribe's view, the Secretary violated this provision by failing promptly to abide by its wishes to affirm the Area Director's order increasing the royalty rate under Lease 8580 to a full 20 percent of gross proceeds. We cannot agree. The "program" twice mentioned in §638 refers back to the Act's opening provision, which directs the Secretary to undertake "a program of basic improvements for the conservation and development of the resources of the Navajo and Hopi Indians, the more productive employment of their manpower, and the supplying of means to be used in their rehabilitation." §631. The statute then enumerates various projects to be included in that program, and authorizes appropriation of funds (in specific amounts) for each. E.g., "Soil and water conservation and range improvement work, $10,000,000." §631(1). The only listed project even remotely related to this case is "[s]urveys and studies of timber, coal, mineral, and other physical and human resources." §631(3). Of course a lease is neither a survey nor a study. To read §638 as imposing a money-mandating duty on the Secretary to follow recommendations of the Tribe as to royalty rates under coal leases executed pursuant to another Act, and to allow for the enforcement of that duty through the Indian Tucker Act, would simply be too far a stretch.D. 30 U. S. C. §1201 et seq. The final statute invoked by the Tribe is the most easily dispensed with. The Surface Mining Control and Reclamation Act of 1977 (SMCRA), 91 Stat. 445, 30 U. S. C. §1201 et seq., is a comprehensive statute that regulates all surface coal mining operations. See generally §1202; Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 268-272 (1981). One section of the Act, §1300, deals with coal mining specifically on Indian lands, and the Tribe cites subsection (e): "With respect to leases issued after [the date of enactment of this Act], the Secretary shall include and enforce terms and conditions in addition to those required by subsections (c) and (d) of this section as may be requested by the Indian tribe in such leases." According to the Tribe, this provision requires the Secretary to enforce whatever terms the Indians request with respect to coal leases. In light of the fact that the referenced subsections (c) and (d) refer exclusively to environmental protection standards, that interpretation is highly suspect. In any event, because Lease 8580 was issued in 1964 — some 13 years before the date of enactment of the SMCRA — the provision is categorically inapplicable. The Federal Circuit concluded otherwise on the theory that the amendments to the lease were approved after 1977. But §1300(e) is limited to leases "issued" after that date; and even the Tribe does not contend that a lease is "issued" whenever it is amended. The SMCRA is irrelevant here.E. Government's "Comprehensive Control" over Coal The Federal Circuit's opinion also suggested that the Government's "comprehensive control" over coal on Indian land gives rise to fiduciary duties based on common-law trust principles. It noted that the Government had conducted surveys and studies of the Tribe's coal resources, 501 F. 3d, at 1341; that the Interior Department imposed various requirements on coal mining operations on Indian land — regulating, for example, "signs and markers, postmining use of land, backfilling and grading, waste disposal, topsoil handling, protection of hydrologic systems, revegetation, and steep-slope mining," id., at 1342; and that the Government in practice exercised control over the calculation of coal values and quantities for royalty purposes, even though such control was codified by regulation only after the events at issue here, id., at 1342-1343. The Federal Government's liability cannot be premised on control alone. The text of the Indian Tucker Act makes clear that only claims arising under "the Constitution, laws or treaties of the United States, or Executive orders of the President" are cognizable (unless the claim could be brought by a non-Indian plaintiff under the ordinary Tucker Act). 28 U. S. C. §1505. In Navajo I we reiterated that the analysis must begin with "specific rights-creating or duty-imposing statutory or regulatory prescriptions." 537 U. S., at 506. If a plaintiff identifies such a prescription, and if that prescription bears the hallmarks of a "conventional fiduciary relationship," White Mountain, 537 U. S., at 473, then trust principles (including any such principles premised on "control") could play a role in "inferring that the trust obligation [is] enforceable by damages," id., at 477. But that must be the second step of the analysis, not (as the Federal Circuit made it) the starting point. Navajo I determined that the IMLA, which governs the lease at issue here, does not create even a " 'limited trust relationship' " with respect to coal leasing. Navajo I, supra, at 508 (quoting Mitchell I, 445 U. S., at 542). Since the statutes discussed in the preceding subparts, supra, at 8-13, do not apply to the lease at all, they likewise create no such relationship. Because the Tribe cannot identify a specific, applicable, trust-creating statute or regulation that the Government violated, we do not reach the question whether the trust duty was money mandating. Thus, neither the Government's "control" over coal nor common-law trust principles matter.* * * None of the sources of law cited by the Federal Circuit and relied upon by the Tribe provides any more sound a basis for its breach-of-trust lawsuit against the Federal Government than those we analyzed in Navajo I. This case is at an end. The judgment of the Court of Appeals is reversed, and the case is remanded with instructions to affirm the Court of Federal Claims' dismissal of the Tribe's complaint. It is so ordered.UNITED STATES, PETITIONER v. NAVAJO NATIONon writ of certiorari to the united states court of appeals for the federal circuit[April 6, 2009] Justice Souter, with whom Justice Stevens joins, concurring. I am not through regretting that my position in United States v. Navajo Nation, 537 U. S. 488, 514-521 (2003) (dissenting opinion), did not carry the day. But it did not, and I agree that the precedent of that case calls for the result reached here.

The Waialua Agricultural Company is a corporation engaged in the growing, harvesting and processing of sugar cane at its plantation in the Territory of Hawaii. In the Federal District Court, it sought a declaratory judgment that its operations are exempt from the overtime provisions of the Fair Labor Standards Act of 1938. By a counterclaim under 16 (b) of the Act, certain of its employees sought to recover unpaid overtime compensation. The action related only to work performed between Nov. 20, 1946, and Sept. 14, 1947. Held: 1. Since Waialua exports virtually its entire output for sale throughout the United States, its operations are subject to regulation by Congress through exercise of the commerce power. Wickard v. Filburn, . Pp. 258-259. 2. The provision of the Fair Labor Standards Act exempting agriculture is coterminous with the sum of those activities necessary in the cultivation of crops, their harvesting, and their "preparation for market, delivery to storage or to market or to carriers for transportation to market." Pp. 259-260. 3. Waialua's railroad workers, who not only haul cane from the fields to the processing plant but also transport farming implements and field laborers on a narrow-gauge railway extending throughout the plantation, are within the agriculture exemption of the Act. Pp. 260-263. (a) The Act draws no distinction between large and small farms or between mechanized and nonmechanized agriculture. P. 261. (b) The agriculture exemption is not forfeited merely because Waialua uses a method ordinarily not associated with agriculture - a railroad - to transport the cane from the fields to the mill. P. 261. (c) Congress did not intend to deprive farmers having their own mills of the exemption it afforded farmers who do not. P. 261. (d) The transportation of farm implements, supplies and field workers to and from the fields is a necessary part of the agricultural enterprise and clearly within the exemption. P. 262. (e) Upon the facts here presented, the administrative practice also requires that the railroad employees be classified as within the agriculture exemption. Pp. 262-263. 4. Employees who repair the mechanical implements used in farming - tractors, cane loaders, cane cars, etc. - are within the agriculture exemption. Pp. 263-264. 5. Employees working in Waialua's sugar-processing plant are not within the agriculture exemption of the Act. Pp. 264-270. 6. The exemption prescribed by 7 (c) from the overtime provisions of the Act for employers "engaged in the ... processing of ... sugarcane ... into sugar" applies to employees of Waialua during the processing season while making emergency repairs in the mill, cleaning the equipment during the week-end shutdown, and performing other tasks closely and intimately connected with the processing operation; it also applies to employees doing repair work on the mill equipment in Waialua's shops in the mill area; but it does not apply to employees doing permanent repairs, overhaul and reconditioning during the three-month off-season. Pp. 270-271. 7. Employees engaged in the maintenance of Waialua Village and in the repair of the company's dwelling houses rented to employees are not within the coverage of the Act. Pp. 271-272. 8. In view of the insufficiency of relevant data in the record, the rights of the remaining employees involved in this litigation (employees in the laboratory, the cement products plant and the power plant) are not here decided but may be decided by the trial court on remand; and that court may also make any necessary reassessment in overtime compensation due employees. P. 272. 216 F.2d 466, reversed.[Footnote *] Together with No. 358, Waialua Agricultural Co., Ltd. v. Maneja et al., also on certiorari to the same court.Richard Gladstein argued the cause for Maneja et al. With him on the brief was Norman Leonard.By invitation of the Court, , Bessie Margolin argued the cause for the Secretary of Labor, as amicus curiae, urging reversal. With her on the brief were Solicitor General Sobeloff, Stuart Rothman and Harold S. Saxe.Refus G. Poole argued the cause for the Waialua Agricultural Co., Ltd. With him on the brief were Livingston Jenks, Milton C. Denbo and Philip Levy.Paul E. Mathias filed a brief for the American Farm Bureau Federation, as amicus curiae, supporting the Waialua Agricultural Co., Ltd.MR. JUSTICE CLARK delivered the opinion of the Court.This case involves, primarily, the coverage of the agriculture exemption1 of the Fair Labor Standards Act of 1938, 52 Stat. 1060, as amended, 29 U.S.C. 201 et seq. The petitioners are 31 employees of respondent corporation,2 which is engaged in the growing, harvesting and processing of sugar cane at its plantation in the Territory of Hawaii. Respondent seeks a declaratory judgment that its operations are exempt from the overtime provisions of the Act, while the petitioners, through a counter-claim under 16 (b) of the Act, seek to recover unpaid overtime compensation. The action pertains only to work performed between November 20, 1946, and September 14, 1947.Waialua owns and operates what might be called the agricultural analogue of the modern industrial assembly line. On its plantation, consisting of some ten thousand acres of land, it cultivates sugar cane which it processes into raw sugar and molasses. It utilizes the year-round growing season to produce a steady supply of cane and employs in its operations over a thousand persons, many at specialized tasks. Some move from field to field preparing the soil, fertilizing, planting seed or cultivating. Others attend to the irrigation of the fields. As the cane crop matures, crews of employees move in with mechanical cane harvesters that cut and throw the cane into railroad cars. The cane is then taken over portable tracks laid into the growing fields to Waialua's mainline railroad, which runs throughout the plantation, and from there skilled railroad workers transport the cane to the processing plant. Freshly cut sugar cane is extremely perishable and must be processed within a few days of harvesting or serious spoilage will result. The processing plant is typical of such modern industrial facilities and is manned by employees specially trained in its operation. It has all of the equipment needed to receive the freshly cut cane from the railroad cars and process it into raw sugar and molasses. Adjacent to the processing plant are warehouses where the raw sugar and molasses are stored preparatory to shipment to the United States.A tremendous variety of work must be done to keep this enterprise going, and Waialua employs persons versed in each operation. In addition to those employed as indicated above, about a hundred more work in repair shops as mechanics, electricians, welders, carpenters, plumbers and painters. They keep Waialua's highly mechanized enterprise operating, making not only emergency repairs but complete overhauls of the railroad, milling, harvesting and other equipment. Waialua also maintains a plant for the manufacture of concrete products (paving blocks and flumes for irrigation ditches), an electric generating plant in the same building as the mill, and a laboratory for the testing of its soil, water, cane and raw sugar.In addition to all this, Waialua owns a village where the great majority of its employees live. Known as Waialua Village, it was originally built when housing for the employees was inadequate, and is located on plantation property within the limits of the City of Honolulu. Within the town are several hundred houses and business establishments, all occupied on a rental basis, together with recreational areas and other town facilities. The respondent furnishes all the maintenance work for its village, employing street cleaners, road graders and janitors. Proceedings Below.The trial judge found that all the employees were outside of the agriculture exemption save those engaged directly in agricultural work in the fields, in loading the freshly cut cane into cane cars, and in hauling the loaded cars to the mainline railroad. Those employees working in the sugar mill were found to be under the special processing provisions of 7 (c) of the Act. As to the other employees, the court entered judgment for overtime as well as liquidated damages and attorney's fees. 97 F. Supp. 198. The Court of Appeals reversed, believing that "the entire cause was tainted by apparent collusion" because stipulations covered the commerce features of the case. It thought that "agriculture is not commerce, interstate or foreign," and that "[f]ederal regulation of agriculture invades the reversed rights of the states. United States v. Butler, ... . But cf., Wickard v. Filburn, ." It indicated, further, that even if the suit were not collusive, the workers would not be entitled to the relief claimed because all of them came within the agriculture exemption of the Act. 216 F.2d 466 (1954). Despite this reasoning, the Court of Appeals refused to dismiss petitioners' counterclaim but remanded it to the trial court "for proceedings in accordance with this opinion." We granted certiorari, believing that the proper administration of the Act requires a resolution of the questions presented. .We are in full agreement with the parties that the first ground relied upon by the Court of Appeals is incorrect. It is not necessary now to consider the vitality of United States v. Butler, supra, for that decision expressly reversed the question of whether the regulation of agriculture was within the commerce power,3 and Wickard v. Filburn, supra, decided the question in favor of the congressional power. In view of the fact that Waialua exports virtually its entire output for sale throughout the United States, we find ourselves unable to say that the stipulation with respect to the power of Congress was collusive. The Scope of the Agriculture Exemption.Congress exempted agriculture from the terms of the FLSA in broad, inclusive terms: SEC. 3. "(f) `Agriculture' includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in section 15 (g) of the Agricultural Marketing Act, as amended), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market." The exemption was meant to embrace the whole field of agriculture, and sponsors of the legislation so stated, 81 Cong. Rec. 7648, 7658. This Court also has had occasion to comment on its broad coverage. See Addison v. Holly Hill Co., . Nevertheless, no matter how broad the exemption, it was meant to apply only to agriculture and we are left with the problem of what is and what is not properly included within that term.From the very beginning of the legislative consideration of the Act, a comprehensive exemption of agricultural labor was a primary consideration of the Congress. Nevertheless, before its final language developed, the agriculture exemption ran the gamut of extensive debates and amendments, each of the latter invariably broadening its scope. Exempting "any person employed in agriculture," its first comprehensive definition declared "farming in all its branches" to be exempt, including "any practices ordinarily performed by a farmer as an incident to such farming operations." S. 2475, Calendar No. 905, 75th Cong., 1st Sess. 51. Although this language was described by those in charge of the bill in the Senate as "perhaps, the most comprehensive definition of agriculture which has been included in any one legislative proposal," 81 Cong. Rec. 7648, its coverage was broadened until it became coterminous with the sum of those activities necessary in the cultivation of crops, their harvesting, and their "preparation for market, delivery to storage or to market or to carriers for transportation to market." Our main problem is to determine which activities of Waialua come within this definition, thus exempting the persons so employed from the provisions of the Act. The Railroad Workers.Waialua's railroad workers not only haul cane from the fields to the processing plant but also transport farming implements and field laborers on the narrow-gauge railway extending throughout the plantation. For numerous reasons, we feel that these employees fall within the comprehensive wording of the agriculture exemption. Nowhere in the Act was any attempt made to draw a distinction between large and small farms or between mechanized and nonmechanized agriculture. In fact, the very opposite appears, since Congress in 1949 specifically refused to draw a distinction between large and small farms similar to the distinctions drawn in the size of newspapers or telephone companies. See H. R. Rep. No. 267, 81st Cong., 1st Sess., p. 24. Compare FLSA, as amended, 13 (a) (8), 13 (a) (11), 13 (a) (15).In view of this, we cannot hold that merely because Waialua uses a method ordinarily not associated with agriculture - a railroad - to transport the cane from the fields to the mill, it has forfeited its agriculture exemption. Where a farmer thus uses extraordinary methods, we must look to the function performed. Certainly no one would argue that the agriculture exemption did not apply to farm laborers who took the cane to the plant in wheelbarrows. There is no reason to construe the FLSA so as to discourage modernization in performing this same function.Furthermore, had Waialua not owned a mill, its transportation activities from field to mill would come squarely within the agriculture exemptions covering "delivery to storage or to market or to carriers for transportation to market." We do not believe the Congress intended to deprive farmers having their own mills of the exemption it afforded farmers who do not. In the debate on the amendment extending exemption to "delivery to market," its sponsor made clear that auxiliary activity of the kind here involved would be included within that term. 81 Cong. Rec. 7888. Similarly, the exemption clearly covers the transportation of farm implements, supplies and field workers to and from the fields. Being performed "on a farm as an incident to or in conjunction with such farming operations," this activity is a necessary part of the agricultural enterprise.Although the original administrative interpretation squarely supports our conclusion in regard to such hauling activity,4 it is insisted that the administrative practice has been to the contrary since Bowie v. Gonzalez, 117 F.2d 11 (1941). We have examined the press release relied on and find that it stated only that the exemption "does not apply to sugar mill employees, even if the only cane ground in such a mill is cane grown by the sugar mill owner in his own fields," and made no reference to employees engaged in transporting the cane to the mill.5 Subsequent statements by the Administrator merely make the coverage of this activity a question of fact to be determined on an ad hoc basis.6 We see no basis for the assertion, therefore, that the administrative practice since 1941 has been to exclude from the exemption the transportation of cane from field to mill. Moreover, Bowie itself established no such rule, save with regard to the transportation of sugar cane of independent growers. The judgment left all employees transporting sugar cane grown by the mill company in the exempt status. In the subsequent case of Calaf v. Gonzalez, 127 F.{4)d 934 (1942), the same Court of Appeals warned that a different problem would be present if the heart of the transportation system and the situs of the employment of workers were located at the plantation. We do not believe that either Bowie or Calaf is apposite. The factual situation here is that Waialua's transportation system is all either in or contiguous to its fields, save the necessary trackage at the mill to accommodate cane cars arriving from various sections of the plantation. The railroad is used exclusively for the effectuation of the agricultural function of transporting exempt agricultural workers to the fields, together with their equipment and supplies, and hauling freshly cut cane to the processing plant. Without it or some other "haul," the land could not be cultivated and the cane, after harvest, would spoil in the fields and be lost. We believe that under the facts here presented the administrative practice also requires that the railroad employees be classified as within the agriculture exemption. The Workers Employed in the Repair Shops.By a parity of reasoning, those employees who repair the mechanical implements used in farming are also included within the agriculture exemption. Every farmer, big or little, must keep his farming equipment in proper repair, and the fact that Waialua's size has permitted it to achieve an extraordinary degree of specialization should not deprive it of this exemption. Here, the relatively small number of employees assigned to the repair activities - working only on Waialua's machinery and equipment - indicates that, far from being a farmer who conducts a repair business on the side, Waialua is merely performing a subordinate and necessary task incident to its agricultural operations. Indeed, the very necessity of integrating these tasks with Waialua's main operation - without which the entire farming operation would soon become hopelessly stalled - is strong reason to consider the repairmen within the exemption. This reasoning, of course, applies only to those employees engaged in the repair of equipment used in performing agricultural functions: tractors, cane loaders, cane cars, and so forth. The repair work on mill equipment is considered under the processing exemption, infra. The Employees in Waialua's Sugar Processing Plant.The legislative history of the FLSA indicates that the mill employees present a borderline case. Indeed, this very question, i. e., whether the grinding of one's own sugar cane comes within the exemption, was posed and left unresolved in the debates, 81 Cong. Rec. 7657-7658. The sponsors of the Act made clear, however, that "a farmer erecting on his farm a factory and manufacturing anything you please, whether something he grows or not, who employs many people to manufacture it, and then ships it in interstate commerce ... would not make the manufacturing ... a farming operation." 81 Cong. Rec. 7658. From this and from discussions of other borderline cases, it is clear that we must look to all the facts surrounding a given process or operation to determine whether it is incident to or in conjunction with farming.In making such a particularized determination, we may consider first the criteria set forth by the Wage-Hour Administrator in 1949, 35 WHM 371, 373. He proposed the following as relevant factors:(a) The size of the ordinary farming operations. There can be no question here that such operations are substantial, and that Waialua's sugar-raising activities are no mere facade for an otherwise industrial venture.(b) The type of product resulting from the operation in question. Here the products are raw sugar and molasses. There is some ground for considering these as strictly agricultural commodities, since the unmilled sugar cane is highly perishable and unmarketable as such. On the other hand, the milling operation transforms sugar cane from its raw and natural state, and there is support in the Senate debates for the view that a process resulting in such a change is more akin to manufacturing than to agriculture. See 81 Cong. Rec. 7659-7660, 7877-7878.(c) The investment in the processing operation as opposed to the ordinary farming activities. Here the mill accounts for 29% of Waialua's total investment in the plantation.(d) The time spent in processing and in ordinary farming. Waialua's mill operations account for 23% of the man-hours worked during the year.(e) The extent to which ordinary farmworkers do processing. There is but slight interchange of workmen. The over-all picture discloses essentially separate working forces for mill operations and for farming.(f) The degree of separation by the employer between the various operations. The plantation organization calls for separate departments to handle the processing activities and field work.(g) The degree of industrialization. The mill workers here, as observed in the Bowie case, are typical factory workers, and from its external characteristics the milling operation is certainly an industrial venture.But in making the factual determination, we must keep in mind that the question here presented is a limited one: is the milling operation part of the agricultural venture? If it is agriculture, albeit industrialized and involving highly specialized mechanical tasks, we must hold it to be within the agriculture exemption. Thus we must add to the factors above some consideration of what is ordinarily done by farmers with regard to this type of operation. It is true that the word "ordinarily" appeared in an earlier version of the exemption and was subsequently stricken, but the inquiry is nonetheless a pertinent one. It has a very direct bearing in determining whether the milling operation is really incident to farming.Our major domestic sugar-producing areas are in Louisiana, Puerto Rico and Hawaii. Statistics for 1948 reveal that the 5,957 sugar farms in Louisiana have their sugar processed in 47 independent mills and in 12 co-operatives. Marketing Sugarcane in Louisiana (U.S. Dept. Agric. 1949) 1, 23; Agricultural, Manufacturing and Income Statistics for the Domestic Sugar Areas (U.S. Dept. Agric. 1954) 84. While the independent mills own 40% of the cane-producing acreage, there is no indication that these customarily process only the sugar cane grown on their own lands. For the same year, Puerto Rican sugar from 14,772 farms was processed in 35 "centrals." The Marketing of Sugarcane in Puerto Rico (U.S. Dept. Agric. 1950) 2; Agricultural, Manufacturing and Income Statistics for the Domestic Sugar Areas, supra, at 121. Again the practice is not for the individual farmer to grind his own sugar. The statistics for Hawaii disclose only 34 and 30 farms for 1947 and 1948 respectively. But these low figures resulted from a classification which counted only the "plantations." When smaller independent farms were included in the 1951 figures, the number of Hawaiian sugar farms jumped to 786. Agricultural, Manufacturing and Income Statistics for the Domestic Sugar Areas, supra, at 137. In addition, there are some 1,500 or 1,800 small "adherent planters" producing sugar cane in Hawaii. See Hearings before the House Committee on Education and Labor on H. R. 2033, 81st Cong., 1st Sess., p. 1173. According to information furnished by the Sugar Division of the United States Department of Agriculture, there are about twenty-six sugar mills in Hawaii processing cane produced by all these farmers. Ten of these, like Waialua, are engaged exclusively in the processing of their own cane; the remaining sixteen process cane grown by others as well as their own.7 The pertinent ratio, however, is not the proportion of millers who grow their own cane but the percentage of farmers who engage in milling. Thus, while sugar milling by farmers is more prevalent in Hawaii than in the other sugar-producing areas, it is very doubtful that these milling operations can be considered a normal incident to the cultivation of sugar cane, even in the context of the Hawaiian sugar industry.From a consideration of all the relevant factors, the question would be an extremely close one in gauging whether this milling operation is farming or manufacturing. But we do not stop here. The status under the FLSA of farmers milling their own sugar is influenced by a number of extraneous legislative factors - their position vis-a-vis the agriculture exemption may well be sui generis. Some time after the inconclusive floor debate on sugar processing, there was included in 7 (c) a total exemption of this activity from the overtime provisions of the Act. This may well have been considered a satisfactory answer to the difficult problems posed in determining whether sugar processing came within the agriculture exemption. But we cannot be sure of this, because 7 (c) includes similar exemptions for operations like cotton ginning, which also come within the agriculture exemption if performed by the farmer on his own crops. More significant is the omission of sugar milling from the exemption provided by 13 (a) (10) for various processing operations performed within the area of production. This exemption was designed to meet the protests of many legislators who argued that the broad agriculture exemption permitted large farming units to process their own products without subjecting themselves to the terms of the Act, while the small farmer, who did not have the equipment necessary for such processing, had to bear the cost of operations covered by the Act. Section 13 (a) (10) exempted employees "within the area of production ... engaged in handling, packing, storing, ginning, compressing, pasteurizing, drying, preparing in their raw or natural state, or canning of agricultural or horticultural commodities for market." Thus, for example, the cotton farmer without a gin was placed on an equal footing with farmers who ginned their own cotton, since each could have their cotton ginned by employees who were covered by neither the wage nor the hour provisions of the Act. But sugar milling is not included within the "area of production" exemption, since in the course of this processing the sugar cane is changed from its "raw or natural state." See 35 WHM 365. Senator Schwellenbach, one of the most ardent advocates of equalization in the status of large and small farmers, considered this change in the product as marking the dividing line between processing as an agricultural function and processing as a manufacturing operation. See 81 Cong. Rec. 7659-7660, 7877-7879. The "area of production" exemption reflects this dichotomy. Thus all other forms of quasi-industrial processing - ginning, canning, packing, etc. - which might be used as analogies for including sugar milling within the agriculture exemption are repeated in 13 (a) (10). Congress would not have omitted sugar milling from the "area of production" exemption if it had not concluded that it also fell outside the agriculture exemption. We think that adherence to the congressional scheme requires us to hold that sugar milling is outside the agriculture exemption and that its exemption from the hours provision by virtue of 7 (c) marks the outer limit of congressional concession to this type of processing. By so holding, we not only equalize the status of all sugar farmers with regard to FLSA coverage of milling operations on their product, but we equalize the impact of the Act on all sugar mills, those which grind their own cane and those grinding their neighbors' as well.We note, further, that such an interpretation closes a gap that would otherwise exist in the federal wage regulation of persons engaged in producing sugar for interstate commerce. The FLSA clearly reaches those engaged in refining sugar, cf. FLSA 7 (c), and the Sugar Act provides for reasonable wages for those engaged in the "production, cultivation, or harvesting" of sugar cane. 50 Stat. 909, 61 Stat. 930, 7 U.S.C. 1131. The latter terminology has been construed to extend to the mainline railroad workers, e. g., 7 CFR, 1941 Supp., 802.34d, leaving unregulated only the wages of sugar-mill employees - unless, as we hold here, these factory workers are beyond the terms of the agriculture exemption.Waialua makes much of the fact that the Administrator originally construed the agriculture exemption as covering the grinding of the farmer's own sugar cane. Interpretative Bulletin No. 14, supra. The Administrator revised his construction in 1941 to accord with his interpretation of several cases in the First Circuit dealing with the Puerto Rican sugar industry, and from that time he has maintained that sugar milling is not exempt, even if the farmer is engaged exclusively in the milling of his own cane. See Press Release, supra, at note 5. The revised construction of the Administrator - and the fact that farmers milling their own sugar cane were covered only by 7 (c) - were reported to the congressional committees considering amendments to the FLSA. See Hearings before a Subcommittee of the Senate Committee on Education and Labor on S. 1349, 79th Cong., 1st Sess., pp. 1049-1050; Hearings before a Subcommittee of the Senate Committee on Labor and Public Welfare on S. 49 et al., 80th Cong., 2d Sess., p. 318; Hearings before a Subcommittee of the Senate Committee on Labor and Public Welfare on S. 58 et al., 81st Cong., 1st Sess., pp. 973-974; Hearings before the House Committee on Education and Labor on H. R. 2033, 81st Cong., 1st Sess., p. 1166. But when the Act was amended in 1949 Congress did not overrule this interpretation. It provided instead that any "order, regulation, or interpretation of the Administrator" in effect on the effective date of the 1949 amendments "shall remain in effect ... except to the extent that any such order, regulation, interpretation ... may be inconsistent with the provisions of this Act ... ." 63 Stat. 920. We relied on this section in Alstate Construction Co. v. Durkin, , in upholding a regulation of the Administrator which similarly had been changed, reported to Congress in its revised form, and left unaltered by the 1949 Act. We come to the same conclusion in this case, and hold the Administrator's interpretation unimpaired by the 1949 Amendments. It therefore follows that the employees working in the processing plant are not within the agriculture exemption. The Processing Exemption.Although the mill workers are not within the agriculture exemption, they are nevertheless exempt from the overtime provisions of the Act. Section 7 (c) specifically provides that the overtime provisions of the Act shall not apply to "an employer engaged in the ... processing of ... sugarcane ... into sugar (but not refined sugar)," and this exemption extends to "employees in any place of employment [where the processing is carried on]." This, we feel, covers the workmen during the processing season while making emergency repairs in the mill, cleaning the equipment during the week-end shutdown, and performing other tasks closely and intimately connected with the processing operation. Repair work on the mill equipment in Waialua's shops in the mill area is also within the exemption. See 35 WHM 360-361. During the three-month off-season, however, a complete overhaul and reconditioning is given the entire mill equipment and no processing work is performed. Since 7 (c) on its face covers only those employees who work in the place of employment where the processor is so engaged, we cannot extend its coverage to include within the overtime exemption permanent repairs, overhaul and reconditioning during this three-month off-season. See Heaburg v. Independent Oil Mill, 46 F. Supp. 751; Abram v. San Joaquin Cotton Oil Co., 49 F. Supp. 393. Cf. Mitchell v. Stinson, 217 F.2d 210, 217 (C. A. 1st Cir.). The Waialua Village Workers.We now come to those workers employed in the maintenance of Waialua Village. This village seems to be an ordinary town, except for the fact that Waialua performs the usual civic functions. It rents its dwelling houses to employees and others on a purely voluntary basis. In fact, the adjacent Haleiwa Village, not owned by Waialua, houses some of the employees. Under the 1949 Amendments to the Act, the work of the employees in maintaining the town clearly is not covered. 63 Stat. 911, 29 U.S.C. 203 (j). The question presented in this case, therefore, is of small import in itself. Even so, to come within the coverage of the Act prior to this amendment, the activity of such employees must have a "close and immediate tie with the process of production." Kirschbaum Co. v. Walling, . We do not believe such a tenuous relation as here established is sufficient. This activity is sufficiently regulated by the requirements of Hawaiian law. Revised Laws of Hawaii, 1945, Title 9, Ch. 75, 4351-4366. Congress made it clear that it intended to "leave local business to the protection of the states," Walling v. Jacksonville Paper Co., , and "did not see fit ... to exhaust its constitutional power over commerce," 10 East 40th St. Bldg. v. Callus, . For these reasons, we believe that the employees working in the maintenance of the village and the repair of the respondent's dwelling houses are not covered by the provisions of the Act.In view of the state of the record, we are unable to determine the rights of the remaining employees involved in this litigation. We do not have sufficient data to decide whether the employees in the laboratory, the cement products plant and the power plant are within the agriculture or sugar-processing exemption. On remand, the problems arising in those operations - small though they be in the over-all picture - may be decided in the light of the considerations set down in this opinion. Likewise, the trial court may make any necessary reassessment in overtime compensation due employees. The judgment of the Court of Appeals, accordingly, is reversed and the cause is remanded to the District Court for proceedings consistent with this opinion. Reversed and remanded.

The General Mining Act of 1872 provided that until a patent issued for a mineral location on lands belonging to the United States "not less than $100 worth of labor shall be performed or improvements made during each year," and that a patent could issue on a showing that the claimant had expended $500 of labor or improvements on the claim. Failure to do the assessment work generally entitled others to relocate the claim. Under the Mineral Lands Leasing Act of 1920 lands theretofore open to location and acquisition of title became available only on a lease basis, but a Saving Clause covered valid claims existent on February 25, 1920, "and thereafter maintained in compliance with the laws under which initiated." All the claims involved in this suit were canceled by the Secretary of the Interior in the early 1930's because the annual assessment work, required by the 1872 Act, had not been performed. In attempting to establish their oil shale claims in Colorado under the 1872 Act, respondents brought this action in the District Court to require the Secretary of the Interior to patent the claims or to expunge his rulings canceling the claims for lack of annual assessment work and to enjoin him from enforcing them. The District Court and the Court of Appeals, ruling in favor of respondents, held that the Department of the Interior had no jurisdiction to cancel the claims. The courts relied on Wilbur v. Krushnic, , and Ickes v. Virginia-Colorado Development Corp., , where this Court declined to interpret the Mineral Leasing Act as requiring the return to the Government of full possessory rights to lands subject to oil shale claims for defaults in assessment work. The decisions indicated that failure to perform such work made the claims subject to relocation by others but not forfeiture to the Government. Held: The Saving Clause of the Mineral Leasing Act makes the United States the beneficiary of all claims that are invalid for lack of assessment work or otherwise, and the Department of the Interior had subject matter jurisdiction to determine whether respondents' claims were "maintained" within the meaning of that clause, including the performance of adequate assessment work. Krushnic, supra, and Virginia-Colorado, supra, must be confined to situations where there has been substantial compliance with the assessment work. Pp. 51-58. 406 F.2d 759, reversed and remanded.DOUGLAS, J., delivered the opinion of the Court, in which BLACK, BRENNAN, and BLACKMUN, JJ., joined. BURGER, C. J., and STEWART, J., filed a dissenting statement, post, p. 61. HARLAN, WHITE, and MARSHALL, JJ., took no part in the consideration or decision of the case.Peter L. Strauss argued the cause for petitioner. With him on the briefs were Solicitor General Griswold, Assistant Attorney General Kashiwa, S. Billingsley Hill, Thos. L. McKevitt, and Edmund B. Clark.Fowler Hamilton argued the cause for respondents. With him on the briefs for respondents Oil Shale Corp. et al. were Richard W. Hulbert and Donald L. Morgan. John D. Knodell, Jr., Fred M. Winner, and Warren O. Martin filed a brief for respondents Umpleby et al.MR. JUSTICE DOUGLAS delivered the opinion of the Court.This case involves six groups of claims to oil shale located in Colorado and asserted under the General Mining Act of 1872, 17 Stat. 91, now 30 U.S.C. 22, 26, 28, and 29. Section 28 provides that until a patent issued "not less than $100 worth of labor shall be performed or improvements made during each year."1 And 29 provides that a patent to the claim could issue on a showing that the claimant had expended $500 worth of labor or improvements on the claim. These claims are not patented and were canceled in the early 1930's on the ground that the amount of labor or improvements specified in 28 had not been made "during each year."2 Some of the claimants in this case applied for patents between 1955 and 1962. The General Land Office rejected the patent applications because the claims had been canceled. On appeal, the Secretary of the Interior, acting through the Solicitor, ruled that these cancellations were effective, later judicial determinations of the invalidity of the grounds for cancellation notwithstanding. Union Oil Co., 71 I. D. 169.3 These claimants then sought an order to compel the Department to issue the patents. They argued that the Land Office was without authority to cancel the claims when it did and that the Secretary of the Interior had nullified all the contest proceedings in 1935. In the alternative, they sought judicial review of those contest rulings. Respondent Oil Shale Corp. commenced this action in the District Court, not to require the Secretary to issue a patent, but to expunge the rulings of the Secretary canceling the claims and to enjoin him from enforcing them. All the cases were consolidated for trial in the District Court. The District Court granted the relief, 261 F. Supp. 954, and the Court of Appeals affirmed, 406 F.2d 759, both holding that cancellations for lack of assessment work were void because the Department did not have jurisdiction over the subject matter. The case is here on petition for certiorari, which we granted to consider whether Wilbur v. Krushnic, , and Ickes v. Virginia-Colorado Development Corp., , had been correctly construed and applied to invalidate the Secretary's action in protection of the public domain.Before we come to a consideration of the Krushnic and Virginia-Colorado cases it should be noted that in 1920, Congress by enacting 21 of the Mineral Lands Leasing Act, 41 Stat. 445, 30 U.S.C. 241 (a), completely changed the national policy over the disposition of oil shale lands. Thereafter such lands were no longer open to location and acquisition of title but only to lease. But 37 contained a Saving Clause which covered "valid claims existent on February 25, 1920, and thereafter maintained in compliance with the laws under which initiated, which claims may be perfected under such laws, including discovery." 30 U.S.C. 193. Respondents contend that their claims fall within that exception.Respondents assert that a like claim was recognized and approved in the Krushnic case. In that case, however, labor in the statutory amount had been performed, including the aggregate amount of $500. The only default was in the failure to perform labor for one year during the period. Mandamus for the issuance of a patent was directed, the Court saying: "Prior to the passage of the Leasing Act, annual performance of labor was not necessary to preserve the possessory right, with all the incidents of ownership ..., as against the United States, but only as against subsequent relocators. So far as the government was concerned, failure to do assessment work for any year was without effect. Whenever $500 worth of labor in the aggregate had been performed, other requirements aside, the owner became entitled to a patent, even though in some years annual assessment labor had been omitted." 280 U.S., at 317. The Court further held that the claims were "maintained" within the Saving Clause of the Leasing Act by a resumption of the assessment work before a challenge of the claim by the United States had intervened.Virginia-Colorado also involved claims on which labor had been expended except for one year. It was alleged, however, that the claimant had planned to resume the assessment work but for the Secretary's adverse action and that the claims had not been abandoned. The Court held that the claims had been "maintained" within the meaning of the Saving Clause of the Leasing Act of 1920.Those two cases reflect a judicial attitude of fair treatment for claimants who have substantially completed the assessment work required by 30 U.S.C. 28. There are, however, dicta both in Virginia-Colorado and in Krushnic that the failure to do assessment work gives the Government no ground for forfeiture but inures only to the benefit of relocators.Indeed 30 U.S.C. 28, which derives from the 1872 Act, as already noted,4 provides that upon the failure to do the assessment work, "the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made," provided the assessment work has not been "resumed" upon the claim "after failure and before such location." It is therefore argued that so far as the 1872 Act is concerned the failure to do the assessment work concerns not the Government but only "rival or adverse claimants."5 The problem in those two cases and the present one concerns the Saving Clause in the Leasing Act which, as noted, makes available for patent "valid claims existent on February 25, 1920, and thereafter maintained in compliance with the laws under which initiated." Concededly, failure to maintain a claim made it "subject to disposition only" by leasing by the United States. See 37 of the 1920 Act, 30 U.S.C. 193. Hence if we assume, arguendo, that failure to do assessment work as provided in the 1872 Act concerned at the time only the claimant and any subsequent relocator, the United States, speaking through the Secretary of the Interior, became a vitally interested party by reason of the 1920 Act. For it was by that Act that Congress reclaimed portions of the public domain so that land might be disposed of by a different procedure (leasing) to the same end (oil shale production6) or devoted to wholly different purposes7 within the purview of public policy as determined by Congress.It appears that shortly before 1920 oil shale claims were affected by a speculative fever. Then came a period of calm. By the late forties and continuing into the sixties speculators sought out the original locators or their heirs, obtained quitclaim deeds from them, and thereupon eliminated all other record titleholders by performing assessment work for one year.8 It appears that 94 of the 98 claims involved in the present litigation were of that character. There is nothing reprehensible in the practice, if the procedure is one which Congress has approved. But the command of the 1872 Act is that assessment work of $100 be done "during each year" and the Saving Clause of 37 of the 1920 Act requires that for lands to escape the leasing requirement the claims must be "maintained in compliance with the laws under which initiated."The legislative history of the 1872 Act does not throw much light on the problem. Senator Cole, proponent of that Act, explained, however, that the requirement of assessment work was made to adopt the Spanish law which granted mining titles but subjected them "to what they term denouncement of the title or defeasance of the title upon a failure to work the mine after a certain time." Cong. Globe, 42d Cong., 2d Sess., 2459 (1872). While the objective of the 1872 Act was to open the lands "to a beneficial use by some other party," once the original claimant defaulted, the defeasance inevitably accrued to the United States, owner of the fee. On that premise it would seem that the dicta in Krushnic and in Virginia-Colorado are not valid.The history of the 1920 Act throws a little light on the problem.In the Senate there was considerable debate over the addition of the words "including discovery" at the end of 37, which contains the Saving Clause. "Mr. JONES of New Mexico. Suppose we use the words `including discovery.' "Mr. SMOOT. Very well; if the Senator desires to insert the words `including discovery' I shall offer no objection. "Mr. WALSH of Montana. Mr. President, I was going to say to Senators that to my mind discovery does not necessarily perfect the claim, because the claimant would not be entitled to a patent unless he had performed $500 worth of work, and in a just sense his claim would not be protected. "Mr. SMOOT. The words `under such laws' cover everything - the $500 worth of work, discovery, and everything else. "Mr. WALSH of Montana. But the words `including discovery,' now proposed, it seems to me, will make it plain. "Mr. SMOOT. I have no objection to those words going in the bill." 58 Cong. Rec. 4584.9 The "perfection" of the claims "under such laws" thus seemingly meant compliance with "everything" under 30 U.S.C. 28, which taken literally would mean assessment work of $100 "during each year."If we were to hold to the contrary that enforcement of the assessment work of 28 was solely at the private initiative of relocators, the "maintenance" provision of 37 becomes largely illusory, because relocation of oil shale claims became impossible after the 1920 Act. So if enforcement of the assessment work requirement of 28 were dependent solely on the activities and energies of oil shale relocators, there was no effective enforcement device. While the area covered by the claims might possibly be relocated for wholly different purposes, the likelihood was so remote that the Court of Appeals concluded that: "The old claims were thus sheltered by the 1920. Act." 406 F.2d, at 763. That meant that a claim could remain immune from challenge by anyone with or without any assessment work, in complete defiance of the 1872 Act.The Court concluded in Virginia-Colorado that the lapse in assessment work was no basis for a charge of abandonment. 295 U.S., at 645-646. We construe that statement to mean that on the facts of that case failure to do the assessment work was not sufficient to establish abandonment. But it was well established that the failure to do assessment work was evidence of abandonment. Union Oil Co. v. Smith, ; Donnelly v. United States, . If, in fact, a claim had been abandoned, then the relocators were not the only ones interested. The United States had an interest in retrieving the lands. See G. Widman, T. Brightwell, & J. Haggard, Legal Study of Oil Shale on Public Lands 189-193 (1969). The policy of leasing oil shale lands under the 1920 Act gave the United States a keen interest in recapturing those which had not been "maintained" within the meaning of 37 of that Act. We agree with the Court in Krushnic and Virginia-Colorado that every default in assessment work does not cause the claim to be lost. Defaults, however, might be the equivalent of abandonment; and we now hold that token assessment work, or assessment work that does not substantially satisfy the requirements of 30 U.S.C. 28, is not adequate to "maintain" the claims within the meaning of 37 of the Leasing Act. To hold otherwise would help defeat the policy that made the United States, as the prospective recipient of royalties, a beneficiary of these oil shale claims. We cannot support Krushnic and Virginia-Colorado on so broad a ground. Rather, their dicta to the contrary, we conclude that they must be confined to situations where there had been substantial compliance with the assessment work requirements of the 1872 Act, so that the "possessory title" of the claimant, granted by 30 U.S.C. 26, will not be disturbed on flimsy or insubstantial grounds.Unlike the claims in Krushnic and Virginia-Colorado, the Land Commissioner's findings indicate that the present claims had not substantially met the conditions of 28 respecting assessment work. Therefore we cannot say that Krushnic and Virginia-Colorado control this litigation. We disagree with the dicta in these opinions that default in doing the assessment work inures only to the benefit of relocators, as we are of the view that 37 of the 1920 Act makes the United States the beneficiary of all claims invalid for lack of assessment work or otherwise. It follows that the Department of the Interior had, and has, subject matter jurisdiction over contests involving the performance of assessment work. We conclude therefore that the judgments below must be reversed.Respondents rely upon the response of the Department of the Interior to the Virginia-Colorado case in which the Secretary declared the contest in that case to be "void." He also declared that "other Departmental decisions in conflict with this decision are hereby overruled." Shale Oil Co., 55 I. D. 287, 290. This decision, they argue, nullified the previous contest proceedings in which their claims were voided. Moreover, they contend that this administrative rule of 35 years, upon which the Department itself has relied, may not now be retroactively changed. In addition, they claim that these contest decisions, if still valid, are subject to direct judicial review at this time, testing both substantive and procedural errors, such as lack of notice.10 These contentions present questions not decided below. Therefore, on remand all issues relevant to the current validity of those contest proceedings will be open, including the availability of judicial review at this time. To the extent that they are found void, not controlling, or subject to review, all issues relevant to the invalidity of the claims will be open, including inadequate assessment work, abandonment, fraud, and the like. Likewise all issues concerning the time, amount, and nature of the assessment work will be open so that the claimants will have an opportunity to bring their claims within the narrow ambit of Krushnic and Virginia-Colorado, as we have construed and limited these opinions. Reversed and remanded.MR. JUSTICE HARLAN, MR. JUSTICE WHITE, and MR. JUSTICE MARSHALL took no part in the consideration or decision of this case. APPENDIX TO OPINION OF THE COURT One group of claims in question was composed of 48 (Bute) claims located by nine individuals between December 1919 and January 1920, shortly before February 25, 1920, the cutoff date for prior valid claims recognized by the Saving Clause of the 1920 Act.1a The records show an entry in February 1921 of a "Notice in Lieu of Labor."2a No other entries were made. In 1954, a man by the name of Ertl acquired the claims of two of this group. In 1955, he filed an "Affidavit of Annual Labor" and published a forfeiture notice in the newspaper.3a In 1956, he acquired a decree in a Colorado court quieting title in him to all interests in all the claims of this group. Another group of 18 (Atlas) claims was located in December 1919 by nine individuals. In February 1921, a "Notice in Lieu of Labor" was filed. No other instruments were filed. In 1954, Ertl acquired the interests of two of this group. In July 1955, he filed an "Affidavit of Annual Labor" and published a forfeiture notice. In September, a man named Dutton acquired an interest in the claims of two locators of this group and, in May 1956, Ertl quieted title in himself to the entire group. Another group of 20 (Camp Bird) claims was located in 1920. No instruments were filed regarding annual labor. In 1955, Mr. Dutton acquired the interests of two of the eight locators, and Mr. Ertl acquired the interests of four in 1956. Ertl filed an "Affidavit of Annual Labor" and published a forfeiture notice. Dutton responded and a court quieted title in the two of them, 75% in Ertl and 25% in Dutton.In January, Ertl transferred all his interest in the above claims to Energy Resources Technology Land, Inc. (ERTL). Mr. Dutton transferred any interest he held in the above claims to ERTL and ERTL conveyed title to 16 of the Bute claims, Nos. 33-48, to Dutton. These 16 claims were eventually purchased by Oil Shale Corp. for $1,536,000. In 1963, Oil Shale leased all of the remaining claims from ERTL for $148,000 per year. Forty-six of the Bute claims, including the 16 purchased by Oil Shale, nine of the Atlas claims and all 20 of the Camp Bird claims are involved in the litigation here.Another group of 20 claims (Carbon 1-8 and Elizabeth 1-12) passed through several hands, and after notice and forfeiture, as above, is held by Wasatch Development Co. and Joseph Umpleby. Sixteen of these are involved here. Another group of four (SW, NW, NE, & SE) claims has a similar history, and three of those are involved here. The last group of claims (Oyler 1-4) is the only group in which there has been no claim of forfeiture. All four of these are involved here.

On Appeal From the United States District Court for the Eastern District of South Carolina. Mr. David W. Robinson, of Washington, D.C., for appellants. Mr. Donald Russell, of Spartenburg, S.C., for appellees. Mr. Justice MURPHY delivered the opinion of the Court. A South Carolina statute provides that life insurance companies and their agents may not operate an under- [ Daniel v. Family Security Life Ins. Co. ], 221] taking business, and undertakers may not serve as agents for life insurance companies. Criminal sanctions are provided. Act No. 787, S.C. Acts of 1948, 45 Stat. at Large, p. 1947.1 Respondents brought action before a three-judge District Court in the Eastern District of South Carolina, seeking an injunction forbidding the enforcement of the statute. 28 U.S.C. 380, now 28 U.S.C. 2281, 2284, 28 U.S.C.A. 2281, 2284. The court, one judge dissenting, upheld respondents' contentions that the statute, as applied in this case, did not provide that due process of law and equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution of the United States. A permanent injunction issued, D.C., 79 F.Supp. 62, and the South Caro- , 222] lina Attorney General has appealed to this Court. 28 U.S.C. 380, now 28 U.S.C. 1253, 2281, 28 U.S.C.A. 1253, 2281. The respondent insurance company is incorporated and licensed to do business in South Carolina, and conforms with the comprehensive code of insurance regulations established by Act No. 232, S.C.Acts of 1947, 45 Stat. at Large, p. 322. The other respondents are its officers and directors. It issues life insurance with cash benefits ranging from $125 to $750. The amount of outstanding policies had reached a total of $838, 375 in May of 1948, compared to nothing in February of the same year. Most of the company's agents are undertakers. Parties to the insurance contract contemplate use of the policy's proceeds to pay funeral expenses. A 'facility of payment' clause might justify payment of proceeds to an undertaker for the insured's funeral. at the time of the trial, respondent company was the only concern in South Carolina selling 'funeral insurance' as an established practice. For many years South Carolina has prohibited the payment of insurance proceeds in merchandise or services. Act No. 205, S.C. Acts of 1929, 36 Stat. at Large p. 234; S.C. Code of 1942, 7984; Act No. 232, S.C. Acts of 1947, 65, 45 Stat. at Large, p. 350. Possibilities of fraud, misunderstanding in valuation, and the comparatively useless character of the merchandise delivered or services rendered make respondents readily concede the desirability of this ban. Other states have similar statutes. 2 The South Carolina lagislature might well have concluded that funeral insurance, although paid in cash, carries the same evils that are present in policies payable in merchandise or services: the beneficiary's tendency to deliver the policy's proceeds to the agent-undertaker for whatever funeral the money will buy, whether or not an , 223] expensive ceremony is consistent with the needs of the survivors. 3 Considerations which might have been influential include the likelihood of overreach on the part of insurance companies, and the possibilities of monopoly control detailed in affidavits introduced in the court below. The South Carolina legislature is not alone in seeing evils in this kind of insurance, and in invoking its police powers to combat them. See the similar provisions in N.Y. Insurance Law, Consol.Laws, c. 28, 165(c); Fla.Code, 639.02, F.S.A.; Ga.Code, 56-9920; Page's Ohio General Code, 666(1946) (see Robbins v. Hennessey, 86 Ohio St. 181, 99 N.E. 319); Md. Code, Art. 48A, 110 (1939). And see the summary of critical arguments in Business Week, October 20, 1945, pp. 48, 51. Yet the court below held that the statute is 'arbitrary and discriminative and designed to destroy, and will destroy, the plaintiff insurance company and its business, * * * it seems obvious from the record that this legislation had its genesis in the desire of the existing insurance companies to eliminate the plaintiff company as a competitor . * * *' 79 F.Supp. at pages 70, 68. The court found that the respondent's policies are actuarially sound; that funeral insurance is desirable; and that the other South Carolina insurance regulations are 'ample' to correct any evils resulting from respondents' business. , 224] The Court concluded that the statute now before us is so unreasonable that it offends the Due Process Clause. First. It is said that the 'insurance lobby' obtained this statute from the South Carolina legislature. But a judiciary must judge by results, not by the varied factors which may have determined legislators' votes. We cannot undertake a search for motive in testing constitutionality. See Hammer v. Dagenhart, A.L.R. 649, Ann.Cas.1918E, 724, overruled in United States v. Darby, , 132 A.L.R. 1430. Compare Bailey v. Drexel Furniture Co., A.L.R. 1432, and United States v. Constantine, , with Sunshine Anthracite Coal Co. v. Adkins, , 912. Compare United States v. Butler, S. Ct. 312, 102 A.L.R. 914, with Steward Machine Co. v. Davis, , 893, 109 A.L.R. 1293, and Cincinnati Soap Co. v. United States, . Second. Despite evidence to the contrary, respondents see no evil to be corrected by this legislation. We are asked to agree with respondents and call the statute arbitrary and unreasonable. Looking through the form of this plea to its essential basis, we cannot fail to recognize it as an argument for invalidity because this Court disagrees with the desirability of the legislation. We rehearse the obvious when we say t at our function is thus misconceived. We are not equipped to decide desirability; and a court cannot eliminate measures which do not happen to suit its tastes if it seeks to maintain a democratic system. The forum for the correction of ill-considered legislation is a responsive legislature. We cannot say that South Carolina is not entitled to call the funeral insurance business an evil. Nor can we say that the statute has no relation to the elimination of those evils. There our inquiry must stop. 4 , 225] This rationale did not find expression in Liggett Co. v. Baldridge, , on which respondents rely. According to the majority in Liggett, 'A state cannot, 'under the guise of protecting the public, arbitrarily interfere with private business or prohibit lawful occupations or impose unreasonable and unnecessary restrictions upon them." at page 113, 49 S.Ct. at page 59. But a pronounced shift of emphasis since the Liggett case has deprived the words 'unreasonable' and 'arbitrary' of the content for which respondents contend. See Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., ; where the cases are reviewed. The Liggett case, however, was concerned with a statute far different from the one we are considering now. Pennsylvania required drug store owners to be licensed pharmacists. Because the statute was directed at owners, who might have no connection with the pharmaceutical branches of modern drug stores, a divided Court thought the measure unreasonable. The Pennsylvania statute was clearly less adapted to the recognized evil than the provision now before us. The Liggett case, on its facts, is not authority for the invalidation of the South Carolina Mortuary Act. The South Carolina statute, on its face, does not contravene the provisions of the Fourteenth Amendment. Neither does it offend the Amendment as applied to these respondents. 5 We reverse the judgment below. Reversed.

Petitioner, a resident of the Philippines, sued in the Court of Claims to recover just compensation for the requisitioning by Philippine guerrilla forces of certain equipment and supplies during the Japanese occupation of the Philippine Islands. The suit was filed more than six years after the last alleged requisition. Held: The suit was barred by the six-year statute of limitations. Pp. 270-277. (a) The period of limitation applicable to petitioner's case in the Court of Claims was not affected by his having filed a claim with the Army Claims Service. Pp. 273-275. (b) The existence of hostilities during the Japanese occupation of the Philippines did not toll the statute of limitations in petitioner's case. Hanger v. Abbott, 6 Wall. 532, distinguished. Pp. 275-276. (c) Limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied. P. 276. (d) Petitioner's suit was not filed within three years after the cessation of hostilities, and would be barred even if the three-year limitation of the statute were applicable. Pp. 276-277. 133 Ct. Cl. 971, affirmed on other grounds.Prew Savoy and George W. Foley argued the cause for petitioner. On the brief were Mr. Savoy and Jay Pfotenhauer.Roger D. Fisher argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Doub, Melvin Richter and William W. Ross.MR. JUSTICE CLARK delivered the opinion of the Court.This suit was filed in the Court of Claims by petitioner, a resident of the Philippines, to recover just compensation for the requisitioning by Philippine guerrilla forces of certain foodstuffs, supplies, equipment, and merchandise during the Japanese occupation of the Philippine Islands. While decision on the merits would require a determination of the status of Philippine guerrillas as a unit operating in the service of the United States, we do not reach that question. We have determined that the Court of Claims lacks jurisdiction because the claim was not filed within the period provided by the statute, 62 Stat. 976, 28 U.S.C. 2501.1 On July 26, 1941, pursuant to the Philippine Independence Act,2 President Roosevelt ordered the Philippine Army into the service of the armed forces of the United States.3 After the fall of Bataan and Corregidor in 1942, elements of this Philippine Army fled to the hills and continued military resistance against the Japanese as guerrilla units. These units, from time to time, requisitioned and commandeered supplies from Philippine civilians. Petitioner contends that these units were part of the United States Army having implied authority to bind the United States to pay for such supplies. He alleges that from September 1942 until the last requisition in January 1945 he delivered supplies to these guerrilla units of the value of $119,765.75. He filed a claim for this amount with the United States Army Claims Service on March 30, 1948. This claim was denied on June 21, 1948.Thereafter on April 26, 1951, more than six years after the last alleged requisition, this action was filed in the United States Court of Claims. The Government moved to dismiss on several grounds, including (1) that the statutory limitation period had run, and (2) that the units were part of the Philippine forces for which the United States was in no manner responsible. In a per curiam order, 133 Ct. Cl. 971, after issue was drawn on the pleadings, the Court of Claims dismissed the suit on the authority of Logronio v. United States, 132 Ct. Cl. 596, 133 F. Supp. 395 (1955). In effect, this reaffirmed its earlier holdings that members of the guerrilla units of the Philippine Army were not part of the Army of the United States.4 The limitation question was not passed upon.We granted certiorari, , to determine the validity of the claims of the petitioner and others in like position. After issuance of the writ in this case, the Court of Claims in Compania Maritima v. United States, 136 Ct. Cl. ___, 145 F. Supp. 935 (1956), held that a Philippine resident seeking redress against the United States was under a legal disability while hostilities between Japan and the United States continued. The court further held that the claim of such a person must be filed within three years "after the disability ceases," i. e., by September 2, 1948. Apprehensive that this rule might be applied to his case, petitioner requested and we granted permission to argue the limitation question which, as we have said, had been raised but not considered at the time of the dismissal by the Court of Claims.Petitioner urges that his suit was timely filed because he was first required to present his claim to the Army Claims Service before he could prosecute the action in the Court of Claims. This administrative procedure, he points out, was not exhausted until June 21, 1948, and this suit was filed on April 26, 1951, less than three years thereafter. But, if he should fail with this contention, he argues that the war suspended the running of the statute and it was, therefore, tolled until September 2, 1945, when hostilities ceased with Japan. We cannot agree with either contention.It has been settled since Kendall v. United States, , that the Congress in creating the Court of Claims restricted that court's jurisdiction. In Kendall this Court held that the Congress in the Act creating the Court of Claims gave the Government's consent to be sued therein only in certain classes of claims and that no others might be asserted against it, including "claims which are declared barred if not asserted within the time limited by the statute." Id., at 125. As to the latter cases, jurisdiction was given only over those filed "within six years after such claim first accrues," unless the claimant was "under legal disability or beyond the seas at the time the claim accrues," in which event suit must "be filed within three years after the disability ceases." 62 Stat. 976, 28 U.S.C. 2501. As was said in Kendall, supra, "The court cannot superadd to those enumerated ...," it having "no more authority to engraft [another] disability upon the statute than a disability arising from sickness, surprise, or inevitable accident, which might prevent a claimant from suing within the time prescribed." Id., at 125.Petitioner asserts that his action did not accrue until the denial of the claim by the Army Claims Service. At the same time, he admits that the claim filed there was based on the alleged delivery of supplies, etc., on the promise of future payment. The claim, if allowed, was against the Philippine Government, not the United States.5 The claim asserted in this proceeding, on the contrary, is against the United States and based on the alleged taking of property without just compensation in violation of the Fifth Amendment. Petitioner would have us hold that this just compensation case could not be filed until after an administrative denial of his claim filed with the Army Claims Service. But, even if the claims were laid on the same theory and each was directed against the United States, Congress has made no such requirement. It has not so restricted the jurisdiction of the Court of Claims.6 Under the circumstances, for us to say that the exhaustion of administrative remedies in such case is a prerequisite to the jurisdiction of the Court of Claims would but "engraft [another] disability upon the statute" and thus frustrate the purpose of Congress. Furthermore, it would be a limitless extension of the period of limitation that Congress expressly provided for the prosecution of claims against the Government in the Court of Claims. This we cannot do.We now reach petitioner's second contention. The cause of action as alleged by petitioner was for just compensation for supplies, etc., taken from him by guerrillas during the Japanese occupation of the Philippines. He alleges in his complaint that the action, if any he has, accrued at the time of the taking and could only be maintained within six years thereafter but for the existence of the hostilities which he claims tolled the statute. He depends on Hanger v. Abbott, 6 Wall. 532 (1868), to support this position. Such reliance is misplaced. That case involved private citizens, not the Government. It has no applicability to claims against the sovereign. See Haycraft v. United States, 22 Wall. 81 (1875).To permit the application of the doctrine urged by petitioner would impose the tolling of the statute in every time-limit-consent Act passed by the Congress. For example, statutes permitting suits for tax refunds, tort actions, alien property litigation, patent cases, and other claims against the Government would all be affected. Strangely enough, Congress would be required to provide expressly in each statute that the period of limitation was not to be extended by war. But Congress was entitled to assume that the limitation period it prescribed meant just that period and no more. With this intent in mind, Congress has passed specific legislation each time it has seen fit to toll such statutes of limitations because of war.7 And this Court has long decided that limitations and conditions upon which the Government consents to be sued must be strictly observed and exceptions thereto are not to be implied. United States v. Sherwood, , and cases there cited. Furthermore, even if hostilities prevented petitioner from filing his claim and this condition could be regarded as creating a "disability," the claim would nonetheless be barred by the express terms of this statute because not filed within three years after the cessation of hostilities, to wit, before September 2, 1948. Likewise, if petitioner claimed such a disability under the Trading with the Enemy Act,8 he would not better his position, for timely action was necessary by the same date. The same is true of any claim under the disability specifically provided for "persons beyond the seas,"9 even if this provision were applicable to petitioner. Such applicability has not been urged and we do not pass upon it.We are not unmindful that the enforcement of this rule might result in hardship in some cases, and perhaps frustrate the expectations of some Philippine citizens who in good faith supplied recognized guerrilla units. Such considerations are not for us, as this Court can enforce relief against the sovereign only within the limits established by Congress. Petitioner here had six years within which to act. He filed no claim whatever until after the expiration of three years from the date he alleges the last taking occurred. This claim was filed with the Army Claims Service on the basis of an alleged contract. That claim was denied within less than three months after it was filed. This left petitioner over two and a half years additional time to pursue his just compensation remedy. Still he did nothing for almost three years, when he filed this suit in the Court of Claims. By that time his claim, on any theory, was barred by statute. The judgment is therefore. Affirmed.

* The electoral district lines for Georgia's congressional delegation are here a second time, appeal now being taken from the District Court's rulings and determinations on remand after Miller v. Johnson___, in which this Court affirmed the finding that the State's Eleventh District was unconstitutional because race was a predominant factor in its drawing, id., at ___. The plan challenged contained three majority black districts, and after remand the complaint was amended to challenge another of these, the then Second District, which the trial court found was also improperly drawn under Miller. The court deferred to Georgia's Legislature to draw a new plan, but the legislature could not reach agreement. The court then drew its own plan, containing but one majority black district, the Fifth; this Court declined to stay the order; and the 1996 general elections were held under it. The appellants, various voters and the United States, now seek to set the trial court's plan aside, claiming that it does not adequately take into account the interests of Georgia's black population.Held: The District Court's redistricting plan is not unconstitutional. Pp. 3-26.(a) The trial court did not exceed its remedial power under the general rule of Upham v. Seamon, , whereby courts drawing voting district lines must be guided by the legislative policies underlying the existing plan, to the extent they do not lead to violations of the Constitution or the Voting Rights Act of 1965 (Act). Appellants' argument that this rule required the trial court to adopt three majority black districts, as in the 1992 plan at issue in Miller, or two such districts, as in the Georgia Legislature's original 1991 plan, is unavailing, given the background against which the legislature — and later the trial court — attempted to draw districts. The considerable evidence of Justice Department pressure on Georgia to create the maximum number of majority black districts, leading the state legislature to act based on an overriding concern with race, disturbed any sound basis for the trial court to defer to the 1991 plan; the unconstitutional predominance of race in the 1992 plan's provenance of the Second and Eleventh Districts caused them to be improper departure points; and the proposals for either two or three majority black districts in plans urged in the remedy phase of this litigation were flawed by evidence of predominant racial motive in their design. Thus, the trial court acted well within its discretion in deciding it could not draw two majority black districts without engaging in racial gerrymandering. Pp. 3-14.(b) The court ordered plan does not contravene §2 of the Act, a violation of which occurs if "it is shown that the political processes leading to ... election ... are not equally open to participation by members of [a racial minority] ... ," 42 U.S.C. § 1973(b). The Court rejects appellants' contrary position premised on impermissible vote dilution in the trial court's failure to create a second majority black district. A plaintiff seeking to establish such dilution must, inter alia, meet three requirements set forth in Thornburg v. Gingles, . Because the trial court found, without clear error, that the black population was not sufficiently compact for a second majority black district, the first of these factors is not satisfied. Nor can it be said, given evidence of significant white crossover voting, that the trial court clearly erred in finding insufficient racial polarization to meet the second and third Gingles factors, that the minority group is "politically cohesive" and that the majority votes sufficiently as a bloc to enable it to defeat the minority's preferred candidate. The Court disagrees with appellants' arguments that the trial court's §2 findings are not owed deference because its rulings that §2 required maintenance of the Fifth District but not creation of a new majority black district are inconsistent, because it did not hold a separate hearing on whether its remedial plan violated §2, and because it barred private intervention to defend the Second District's constitutionality. Pp. 15-20.(c) The plan does not violate §5 of the Act, which requires that covered jurisdictions obtain either administrative preclearance by the United States Attorney General or approval from the United States District Court for the District of Columbia for any voting procedurechange, and that such a change "not have the purpose [or] effect of denying or abridging the right to vote on account of race or color," 42 U.S.C. § 1973c. The section aims to prevent changes leading to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise. Beer v. United States, . Although a court devised redistricting plan such as the one at issue need not be precleared under §5, Connor v. Johnson, (per curiam), the court should take into account the appropriate §5 standards in fashioning such a plan, McDaniel v. Sanchez, . Even were this Court to accept one of appellants' proposed benchmarks for measuring retrogression, their desired remedy would be impermissible because they have not demonstrated it was possible to create a second majority black district within constitutional bounds. Moreover, none of their proposed benchmarks — the 1991 plan, the State's supposed policy of creating two majority black districts, and the 1992 plan shorn of its constitutional defects — was ever in effect, and thus none could operate as a benchmark under the Attorney General's regulations and, e.g., Holder v. Hall, . Nor can the 1992 plan, constitutional defects and all, be the benchmark, since §5 cannot be used to freeze in place the very aspects of a plan found unconstitutional. The appropriate benchmark is, in fact, what the District Court concluded it would be: the 1982 plan, in effect for a decade. Appellants have not shown that black voters in any particular district suffered a retrogression in their voting strength under the court plan measured against the 1982 plan. Pp. 20-23.(d) The plan does not violate the constitutional guarantee of one person, one vote under Article I, §2. Although court ordered districts must ordinarily achieve that provision's goal of population equality with little more than de minimis variation, e.g., Chapman v. Meier, , slight deviations are allowed upon enunciation of unique features or historically significant state policies, id., at 26, including, e.g., the desire to respect municipal boundaries and to preserve the cores of prior districts, Karcher v. Daggett, . Here, the trial court's plan has an overall population deviation lower than any other plan presented to it which was not otherwise constitutionally defective. Moreover, the court recited in detail those factors supporting the plan's slight deviation, including Georgia's strong historical preference for not splitting counties outside the Atlanta area and for not splitting precincts, as well as the State's interests in maintaining core districts and communities of interest, given its unusually high number of counties. Even if this Court found the plan's population deviation unacceptable, the solution would not be adoption of appellants' constitutionally infirm, race based, plans,but simply the shifting of a few precincts to even out the districts with the greatest deviations. Moreover, equitable considerations — the passage of more than six years since the census on which appellants' data is based and Georgia's ongoing and dramatic population shifts and changes — disfavor requiring yet another reapportionment to correct the court plan's deviation. See id., at 732. Pp. 23-26.922 F. Supp 1556, affirmed.Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, and Thomas, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, Souter, and Ginsburg, JJ., joined.----------------------------------------------------------------------------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, Wash ington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.U.S. Supreme CourtNos. 95-1425 and 95-1460LUCIOUS ABRAMS, Jr., G. L. AVERY, WILLIAM GARY CHAMBERS, Sr., and KAREN WATSON, APPELLANTS 95-1425 v. DAVIDA JOHNSON et al. UNITED STATES, APPELLANT 95-1460on appeals from the united states district court for the southern district of georgia[June 19, 1997]Justice Kennedy delivered the opinion of the Court.The electoral district lines for Georgia's congressional delegation are before us a second time, appeal now being taken from the trial court's rulings and determinations after our remand in Miller v. Johnson___ (1995). The three judge panel of the United States District Court for the Southern District of Georgia was affirmed in Miller after it found the Eleventh Congressional District unconstitutional as then drawn. Race, we held, must not be a predominant factor in drawing the district lines. Id., at ___ (slip op., at 14-15).Given the contorted shape of the district and the undue predominance of race in drawing its lines, it was unlikely the district could be redrawn without changing most or all of Georgia's congressional districts, 11 in total number. The plan being challenged contained three majority black districts, and after our remand the complaint was amended to challenge another of these,the then Second District. The trial court found this district, too, was improperly drawn under the standards we confirmed in Miller. Johnson v. Miller, 922 F. Supp. 1552 (1995).For the task of drawing a new plan, the court deferred to Georgia's legislature, but the legislature could not reach agreement. The court then drew its own plan, Johnson v. Miller, 922 F. Supp. 1556 (1995); we declined to stay the order; and the 1996 general elections were held under it. The court's plan contained but one majority black district. The absence of a second, if not a third, majority black district has become the principal point of contention. Though the elections have been completed, the plan remains in effect until changed by a valid legislative act, and the appellants ask us to set it aside.The private appellants are various voters, defendant intervenors below, who contend that the interests of Georgia's black population were not adequately taken into account. The United States, also a defendant intervenor, joins in the appeal. The state officials, defendants below, do not object to the plan and appeared before us as appellees to defend it. The other set of appellees are the private plaintiffs below, who argued that racial gerrymandering under the previous plan violated their right to equal protection.The private appellants attack the court's plan on five grounds. First, citing Upham v. Seamon, , they say the District Court erred in disregarding the State's legislative policy choices and in making more changes than necessary to cure constitutional defects in the previous plan. Second and third, they allege the plan violates §§2 and 5 of the Voting Rights Act of 1965, 42 U.S.C. §§ 1973 1973c. Fourth, they argue the court's plan contains significant population deviations and so violates the constitutional one person, one vote requirement. Fifth, they claim the District Court erredin not allowing private intervention on the question of the Second District's unconstitutionality. The Justice Department included questions one, two, and four in its jurisdictional statement. Private appellants did not brief their fifth contention, and we will not address it. The remaining challenges are unavailing as well, and we affirm the judgment of the District Court.We first address appellants' argument that the court exceeded the remedial power authorized by our decisions, particularly Upham v. Seamon, supra, by failing to follow policies of the state legislature. When faced with the necessity of drawing district lines by judicial order, a court, as a general rule, should be guided by the legislative policies underlying the existing plan, to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act. 456 U.S., at 43. Much of the argument from the parties centers around what legislative redistricting principles the District Court should have acknowledged in drawing its plan. The appellants say the relevant redistricting guideline should be the three majority black districts of the precleared plan at issue in Miller v. Johnson; and, if not, the two majority black districts in an earlier legislative effort. These contentions require us to recite some of the background against which the Georgia Legislature — and later the trial court — attempted to draw the districts.Much of the history is recounted in Miller v. Johnson, and we repeat only some of it here. The need for redistricting arose in 1990 when Georgia, because of its population increase, went from 10 authorized congressional seats to 11. To move ahead with redistricting, a special session of the legislature opened in August 1991. Because Georgia is a covered jurisdiction under §4(b) ofthe Voting Rights Act, 42 U.S.C. § 1973b(b), §5 of the Act requires it to obtain either administrative preclearance by the Attorney General or approval by the United States District Court for the District of Columbia for any change in a "standard, practice, or procedure with respect to voting." 42 U.S.C. § 1973c. The proposed change must not have the purpose or effect "of denying or abridging the right to vote on account of race or color." Ibid. The legislature submitted a plan to the Attorney General for preclearance on October 1, 1991. See Appendix to this opinion, (hereinafter Appendix), fig. 1. The plan contained two majority black districts, the Fifth and the Eleventh. Previously, Georgia had one majority black district, the Fifth.The Department of Justice refused preclearance of this plan in January 1992. It then refused preclearance of a second plan submitted by the legislature, also with two majority black districts. In its second refusal, the Department of Justice cited several alternative plans proposing three majority black districts, including one called the "max black" plan, drafted by the American Civil Liberties Union (ACLU) for the General Assembly's black caucus. At that point, the General Assembly set out to create three majority black districts to gain preclearance. See Appendix, fig. 2. The plan as adopted used the ACLU's max black plan as a model. One of the three majority black districts, the Eleventh, was a geographic " `monstrosity, stretching from Atlanta to Savannah. Its core is the plantation country in the center of the state, lightly populated, but heavily black. It links by narrow corridors the black neighborhoods in Augusta, Savannah and southern DeKalb County.' " 515 U. S., at ___ (slip op., at 7) (quoting M. Barone & G. Ujifusa, Almanac of American Politics 356 (1994)). The district as so drawn served its purpose, however, which was to secure preclearance from the Department of Justice.On November 4, 1992, elections were held under the new plan, and all three majority black districts elected black candidates. In 1994, five white voters from the Eleventh District filed suit in the United States District Court for the Southern District of Georgia, alleging a racial gerrymander in the lines of the Eleventh District, in violation of the Equal Protection Clause as interpreted in Shaw v. Reno, . The District Court panel found the district invalid, with one judge dissenting. Johnson v. Miller, 864 F. Supp. 1354 (1994).We affirmed. Miller v. Johnson___ (1995). We rejected appellants' argument that "regardless of the legislature's purposes, a plaintiff must demonstrate that a district's shape is so bizarre that it is unexplainable other than on the basis of race." Id., at ___ (slip op., at 9). We said "the essence of the equal protection claim recognized in Shaw is that the State has used race as a basis for separating voters into districts." Id., at ___, ___ (slip op., at 9-10). And we explained that "[t]he plaintiff's burden is to show, either through circumstantial evidence of a district's shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature's decision to place a significant number of voters within or without a particular district." Id., at ___ (slip op., at 15).We upheld two principal findings of the district court indicating race was the predominant factor in constructing the Eleventh District. First, it was " `exceedingly obvious' " from the district's contorted shape, together with the relevant racial demographics, that it was designed to bring in black populations. Id., at ___ (slip op., at 15-16) (quoting 864 F. Supp., at 1375). Second, considerable evidence — including the State's own concessions — showed that the General Assembly was driven by "a predominant, overriding desire" to create threemajority black districts to satisfy the Department of Justice. 515 U. S., at ___ (slip op., at 16). The Justice Department, indeed, " `would accept nothing less than abject surrender to its maximization agenda.' " Ibid. (quoting 864 F. Supp., at 1366, n. 11).We then considered whether the race based districting satisfied strict scrutiny because it was narrowly tailored to achieve a compelling governmental interest. As we noted, "[o]ur presumptive skepticism of all racial classifications" prohibited us "from accepting on its face the Justice Department's conclusion that racial districting is necessary under the Voting Rights Act." 515 U. S., at ___ (slip op., at 21). After reviewing the evidence, we concluded that "[i]nstead of grounding its objections on evidence of a discriminatory purpose, it would appear the Government was driven by its policy of maximizing majority black districts." Id., at ___ (slip op., at 23-24).On remand, the district court deferred to the Georgia Legislature, giving it time to draw a new congressional map. The governor called a special session of the General Assembly, which met from August 14 to September 12, 1995. The legislature, however, deadlocked on the congressional reapportionment plan. The Georgia House of Representatives adopted a plan with two majority black districts, Status Report of Defendants Miller, Howard, and Cleland, Aug. 31, 1995, Record, Pleadings Vol. 11, Doc. No. 295, while the Senate adopted a plan with one. Status Report of Defendants Miller, Howard, and Cleland, Sept. 5, 1995, id., Doc. No. 300. On September 13, 1995, defendants notified the district court that the legislature was unable to resolve its differences and had adjourned, leaving the district court to develop a remedy.Plaintiffs had moved to amend their complaint to challenge the Second District as unconstitutional on the same grounds as the Eleventh District, and the courtreceived additional evidence for the purpose. None of the private defendant intervenors lived in the Second District and, assuming their lack of standing to defend it, they asked for the addition of other parties. The court disallowed the request, ruling the State could defend this aspect of the plan under review.The court found that race was the "overriding and predominant factor" in drawing the Second District's borders. 922 F. Supp., at 1553. The district, the court noted, split 12 of the district's 35 counties, 28 of its precincts, and numerous cities. Linda Meggers, the Director of Reapportionment Services for the Georgia General Assembly, was qualified as an expert witness and testified it was not possible to create a majority black Second District without including the black population centers in Columbus and Muscogee County, Albany and Dougherty County, and Macon and Bibb County, which account for most of these splits. She also testified that in constructing the Second District, she followed the ACLU's max black plan. Id., at 1554-1555. As with the Eleventh District, the trial court found no compelling reason for the race based districting of the Second District sufficient to survive strict scrutiny. The appellants do not appeal the determination by the trial court that the Second District as drawn could not survive scrutiny under the standards set forth in Miller, but they do say the trial court erred in not devising a second majority black district for its own plan.During the remedy phase, the defendants proposed a variety of plans. One was the 1991 unprecleared plan passed by the Georgia Legislature, with two majority black districts. The Eleventh District in the 1991 plan closely resembled the Eleventh District in the precleared plan, which has been found improper. The ACLU submitted four plans. One of these, ACLU 1A, with two majority black districts, was known as the "least change" plan because it was designed to make the minimalchanges perceived to be necessary to correct constitutional defects in the existing plan. Another of the ACLU plans, Abrams A, had three majority black districts. Abrams A split nine counties in the Second District and three in the Eleventh, and for racial reasons. Yet another plan, Abrams C had two majority black districts. And a plan jointly sponsored by John Lewis, a black Democrat member of the U. S. House of Representatives from Georgia, and Newt Gingrich, a white Republican member — the Lewis Gingrich Amici R plan — contained two majority black districts. In response, it is said, to a submission by plaintiffs, the Justice Department submitted its "Illustrative Plan." The Justice Department did not do so, however, until after the evidence closed. The Plan contained two majority black districts and split two counties outside the Atlanta area and numerous precincts. The plaintiffs objected to the submission. The District Court mentioned the Illustrative Plan in its opinion but did not give an explicit ruling on the objection. The late submission prevented the Justice Department's demographer from being cross examined about racial motivations, and for this reason its significance must be discounted.The District Court considered the plans submitted by the various parties and then adopted its own. See Appendix, fig. 3. Noting the Justice Department's thorough "subversion of the redistricting process" since the 1990 census, it based its plan on the State's 1972 and 1982 plans. 922 F. Supp., at 1563. The court first had to decide where to locate the new Eleventh District, and did so in an area of significant population growth near Atlanta, so as to displace the fewest counties. It then considered Georgia's traditional redistricting principles based on maintaining: district cores, four traditional "corner districts" in the corners of the State, political subdivisions such as counties and cities, and an urban majority black district in the Atlanta area. Protecting incumbents from contests with each other was another factor, which the court subordinated to the others because it was "inherently more political." Id., at 1565. The District Court stated that, in fashioning a remedy, it considered the possibility of creating a second majority black district but decided doing so would require it to "subordinate Georgia's traditional districting policies and consider race predominantly, to the exclusion of both constitutional norms and common sense." Id., at 1566. Georgia did not have a black population of sufficient concentration to allow creation of a second majority black district, the court found, adding that if it had the court "would have included one since Georgia's legislature probably would have done so." Id., at 1567, n. 16. The resulting plan contained one majority black district, the Fifth. The plan split no counties outside the Atlanta area. The District Court rejected potential objections to the plan based on §§2 and 5 of the Voting Rights Act and the constitutional requirement of one person, one vote.Given this background, appellants say, the District Court's plan violates our direction in Upham v. Seamon to take account of legislative preferences. In Upham, the district court considered a reapportionment plan passed by the Texas Legislature. The Attorney General had objected under §5 of the Voting Rights Act to a specific part of the plan, namely the lines drawn for two contiguous districts in south Texas. He had approved the other 25 districts. The trial court, required to draw new lines, redrew not just the two districts found objectionable and their neighbors but also some unrelated districts in Dallas County, hundreds of miles to the north. 456 U.S., at 38. In the absence of a finding that the legislature's reapportionment plan offended either the Constitution or the Voting Rights Act, weheld, the district court "was not free ... to disregard the political program" of the state legislature. Id., at 43. See also White v. Weiser, .The instant case presents a quite different situation from Upham, and for several reasons. In the first place, the precleared plan is not owed Upham deference to the extent the plan subordinated traditional districting principles to racial considerations. Upham called on courts to correct — not follow — constitutional defects in districting plans. Upham, 456 U.S., at 43. In Miller, we found that when the Georgia Legislature yielded to the Justice Department's threats, it also adopted the Justice Department's entirely race focused approach to redistricting — the max black policy. Miller, 515 U. S., at ___ (slip op., at 14-15). Using the precleared plan as the basis for a remedy would validate the very maneuvers that were a major cause of the unconstitutional districting.Second, the constitutional violation here affects a large geographic area of the State; any remedy of necessity must affect almost every district. In Upham, only 2 contiguous districts out of 27 were in violation. Here, as the district court pointed out, 2 of 11 districts were found unconstitutional, on opposite sides of the State, districts containing between them all or parts of nearly a third of Georgia's counties. 922 F. Supp., at 1561. Almost every major population center in Georgia was split along racial lines. Under the circumstances, the district court was justified in making substantial changes to the existing plan consistent with Georgia's traditional districting principles, and considering race as a factor but not allowing it to predominate. This approach conforms to the rule explained in Upham.Appellants' most specific objection under Upham is that the court's plan does not contain two majority black districts. In particular, they point to the State's original 1991 redistricting plan, denied preclearance, whichcontained two majority black districts. As we have suggested above, however, the State was subjected to steady Justice Department pressure to create the maximum number of majority black districts, and there is considerable evidence the State was predominantly driven by this consideration even in developing its 1991 plan. In support of their position, appellants rely on broad assertions in the State's brief in this Court in Johnson v. Miller that the original plan "was not perceived as a `racial gerrymander.' " Brief for Miller Appellants in Miller v. Johnson, O. T. 1994, No. 94-631, p. 49. Against these assertions, appellees point to the testimony of Ms. Meggers, Director of Reapportionment Services for the Georgia General Assembly, that the second majority black district was originally designed as a concession to the Justice Department's max black policy. After being presented with a proposed map of the Eleventh District, "[t]he initial response in our office was that's ridiculous." "It was said that it doesn't make any sense and I said maybe not, but ... we may get in trouble with the Justice Department if we don't draw [it] ... like that and I think that was ... the main reason" it was originally drawn. Tr. 431-432 (Oct. 30, 1995). Ms. Meggers referred to an "understanding" between the leadership in the legislature and the black caucus that a second majority black district would be created. Id., at 431. The testimony of several legislators indicated that any such understanding was arrived at in the shadow of the Justice Department's max black goal, and that all other policies were to give way to this racial consideration. Robert Hanner, chairman of the House Reapportionment Committee, so indicated in his testimony. Id., at 74-75. Sonny Dixon, a member of the House Reapportionment Committee, confirmed this account and said legislators felt pressure from the Justice Department in 1990 to create all possible majority black districts. Id., at 81. Thomas Murphy,Speaker of the Georgia House of Representatives in 1990 and now, said in his deposition that the initial 1991 reapportionment plan was based on "what we at least perceived to be the direction and instructions of the Justice Department." Deposition of Thomas B. Murphy, Record 22-23; see also id., at 4, 6. This evidence all refers to development of the original 1991 legislative plan, not the 1992 precleared plan, and thus undermines the contention that the legislature's original plan should have been controlling on the District Court.There is strong support, then, for finding the second majority black district in Georgia's 1991 unprecleared plan resulted in substantial part from the Justice Department's policy of creating the maximum number of majority black districts. It is not Justice Department interference per se that is the concern, but rather the fact that Justice Department pressure led the State to act based on an overriding concern with race. Given this background, it would have been most problematic for the trial court to insist on retaining a second majority black district without regard to other, neutral districting factors. The trial court did not adopt this course. Instead, it gave careful consideration to creation of a second black district on grounds that a black voting population was one factor in drawing a district; and it concluded it could not draw the second majority black district without allowing that one consideration to predominate over other traditional and neutral districting principles, principles which were a valid expression of legislative policy. There is ample basis in the record to support these conclusions. No other plan demonstrated a second majority black district could be drawn while satisfying the constitutional requirement that race not predominate over traditional districting principles. The District Court said in its opinion that "[i]f Georgia had a concentrated minority population large enough to create a second majority minoritydistrict without subverting traditional districting principles, the Court would have included one since Georgia's legislature probably would have done so." 922 F. Supp., at 1567, n. 16. The statements of several witnesses support the trial court's independent conclusion it was not possible to do so. Ms. Meggers testified that, unless race was the predominant motive, a second majority black district could not be drawn in Georgia. Tr. 434-435 (Oct. 30, 1995). Speaker Murphy doubted "very seriously" a second majority black district could be drawn in Georgia without violating the principles we laid down in Miller. Deposition, Oct. 26, 1995, Record 24.The court found the 1991 unprecleared plan shared many of the constitutional defects of the precleared plan. Among other things, it connected the south DeKalb County urban black population with the mainly rural east Georgian minority population. 922 F. Supp., at 1563, n. 9. Indeed, the Eleventh District in the 1991 plan in many respects was almost the geographical monstrosity it became in the precleared plan. The ACLU plans were introduced at the remedial hearing by Selwyn Carter, an employee of the Atlanta based private Southern Regional Council whose job was to draw and advocate reapportionment plans across the South. Mr. Carter said his "basic goal" in preparing the plans was "[t]o show that it is possible to draw a plan in which African American voters comprise approximately 50 percent of the voting age population of a district and at the same time show that race was not a factor." Tr. 296 (Oct. 30, 1995). The "least change" plan, ACLU 1A, has numerous flaws. Besides its high population deviation, to be discussed, the Eleventh District has an iguana like shape betraying the same invidious purpose we condemned in Miller. The only two plans close to the trial court's in terms of population deviation are Abrams A and the Justice Department's IllustrativePlan. Abrams A, with its three majority black districts, splits nine counties in the Second District and three in the Eleventh, as well as numerous other counties in different parts of the State. The twisted shapes of its Second and Eleventh Districts again bear witness to racial motivation. The Illustrative Plan splits Bibb County — a county never before split in apportionment plans — to subsume Macon's black population. Although the Justice Department submitted the plan after the close of evidence, and in consequence its demographer could not be cross examined on the question of racial motivation, the District Court recognized its apparent racial impetus. 922 F. Supp., at 1561, n. 4. Indeed, the Justice Department acknowledged a racial motivation at oral argument before the Court. Tr. of Oral Arg. 12, 16. The Justice Department also suggested it was proper to split Bibb County because the mayor and city council of Macon supported splitting the county and city into different districts. Id., at 13. Macon's alleged urge to be segregated for congressional districting purposes, however, cannot vitiate the Equal Protection rights of the Eleventh District's objecting voters.Interference by the Justice Department, leading the state legislature to act based on an overriding concern with race, disturbed any sound basis to defer to the 1991 unprecleared plan; the unconstitutional predominance of race in the provenance of the Second and Eleventh Districts of the 1992 precleared plan caused them to be improper departure points; and the proposals for either two or three majority black districts in plans urged upon the trial court in the remedy phase were flawed by evidence of predominant racial motive in their design. In these circumstances, the trial court acted well within its discretion in deciding it could not draw two majority black districts without itself engaging in racial gerrymandering.The court ordered plan is not violative of §2 of the Voting Rights Act. We reject appellants' contrary position, which is premised on impermissible vote dilution in the court's failure to create a second majority black district. Section 2 of the Voting Rights Act applies to any "voting qualification or prerequisite to voting or standard, practice, or procedure ... imposed or applied by any State or political subdivision ... ." 42 U.S.C. § 1973(a). On its face, §2 does not apply to a court ordered remedial redistricting plan, but we will assume courts should comply with the section when exercising their equitable powers to redistrict. A violation of §2 occurs if "it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of [a racial minority] ... in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973(b).Our decision in Thornburg v. Gingles, , set out the basic framework for establishing a vote dilution claim against at large, multimember districts; we have since extended the framework to single member districts. Growe v. Emison, . Plaintiffs must show three threshold conditions: first, the minority group "is sufficiently large and geographically compact to constitute a majority in a single member district"; second, the minority group is "politically cohesive"; and third, the majority "votes sufficiently as a bloc to enable it ... to defeat the minority's preferred candidate." 478 U.S., at 50-51. Once plaintiffs establish these conditions, the court considers whether, "on the totality of circumstances," minorities have been denied an "equal opportunity" to "participate in the political process and to elect representatives of their choice." 42 U.S.C. § 1973(b).The trial court found that to create a second majority black district in Georgia would require subordinating Georgia's traditional districting policies and allowing race to predominate. 922 F. Supp., at 1566. We considered the determination in our discussion above and concluded it was well founded. If race is the predominant motive in creating districts, strict scrutiny applies, Bush v. Vera___, ___ (1996) (slip op., at 6-8), and the districting plan must be narrowly tailored to serve a compelling governmental interest in order to survive. We have assumed, without deciding, that compliance with §2 can be a compelling state interest. See, e.g., id., at ___ (slip op., at 23-24); Miller v. Johnson, 515 U. S., at ___ (slip op., at 20-21). Here, there was no "strong basis in evidence," Shaw v. Reno, 509 U.S., at 656 (internal quotation marks omitted), to conclude that vote dilution, in violation of §2, would occur in consequence of the court's plan. In fact, none of the three Gingles factors, the threshold findings for a vote dilution claim, were established here. See Bush, supra, at ___%___ (slip op., at 22-25).Here the District Court found, without clear error, that the black population was not sufficiently compact for a second majority black district. 922 F. Supp., at 1567. So the first of the Gingles factors is not satisfied. As we have noted before, §2 does not require a State to create, on predominantly racial lines, a district that is not "reasonably compact." Johnson v. De Grandy, . And the §2 compactness inquiry should take into account "traditional districting principles such as maintaining communities of interest and traditional boundaries." Bush, supra, at ___ (slip op., at 23).The trial court also found the second and third Gingles factors — the extent of racially polarized voting — wanting. In the Eleventh District inquiry, theDistrict Court found that §2 did not justify drawing racial lines, and it discussed evidence of racial polarization at great length. The court found the statistical evidence was for the most part inconclusive and conflicting, but that the State's expert, Dr. Joseph Katz, was convincing in his refutation of Dr. Allan Lichtman, the United States' expert. 864 F. Supp., at 1388. The court found "a significant degree of crossover voting in Georgia and the Eleventh District," id., at 1390, and that the record "fail[ed] to demonstrate ... chronic bloc voting." Id., at 1392. The court found that the average percentage of whites voting for black candidates across Georgia ranged from 22% to 38%, and the average percentage of blacks voting for white candidates ranged from 20% to 23%. Id., at 1390. As the court noted, "[b]lack and black preferred candidates in Georgia have achieved many electoral victories in local and statewide elections and have received significant — occasionally overwhelming --support from both black and white voters within the Eleventh Congressional District." Id., at 1390-1391. The results of the 1992 Democratic primary in the Eleventh District suggested to the court "a general willingness of white voters to vote for black candidates": black candidates in that primary received about 55% of the white vote, and Cynthia McKinney, a black, won the runoff against a white with 23% of the white vote. Id., at 1391.For the inquiry concerning the Second District and the remedy, appellants relied exclusively on the Eleventh District trial record. After the remedy hearing, the District Court reaffirmed its earlier findings and cited additional evidence of crossover voting. 922 F. Supp., at 1567. At the hearing concerning the Second District, Ms. Meggers stated that election results in the district indicated significant white crossover voting, and Representative Sanford Bishop, the black congressman elected in the Second District, agreed. Tr. 438, 142 (Oct. 30,1995).Appellants take issue with the district court's assessment of the level of white crossover voting, but argue that, in any event, the level of polarization the district court found is sufficient to satisfy the Gingles threshold. Under the circumstances, we cannot say the district court clearly erred in finding insufficient racial polarization in voting to meet the Gingles requirements. The results of the 1996 general elections tend to support the district court's earlier finding of "a general willingness of white voters to vote for black candidates." 864 F. Supp., at 1391. All three black incumbents won elections under the court plan, two in majority white districts running against white candidates. (In Gingles, the Court indicated that incumbency is a "special circumstanc[e]" to be taken into account in evaluating racial bloc voting. 478 U.S., at 57. And in this case, the black candidates' success in two majority white districts, quite different from their previous districts, is testimony to the "general willingness" of whites to vote for blacks.) These results also underscore the weakness of the Justice Department's methodology of calculating the likelihood of a black preferred candidate winning based on strict racial percentages. Brief for United States 27, and n. 18. The Justice Department predicted that a black preferred candidate "would likely be foreclosed from winning" in the court plan's Tenth District, and that "[t]he same result would follow even more clearly" in the court's Fourth District, which had a black voting age population of 33%. Id., at 27. In fact, Representative McKinney won in the Fourth District.Appellants argue the District Court's findings on §2 are inconsistent and not owed deference, since the court held §2 required maintenance of the majority black Fifth District but not creation of a new majority black district. The District Court found the black population in theFifth District "is sufficiently compact and, being an urban minority population, has a sufficiently strong community of interest to warrant being a majority minority district." 922 F. Supp., at 1568. The court also said the probability of electing a candidate is below 50% when the percentage of black registered voters is 50%, ibid., and therefore the percentage of black registered voters should be kept as close to 55% as possible in the Fifth District. (The District Court noted, however, that it was uncomfortable using percentages of registered voters rather than voting age population, since "that in essence condones voter apathy." Id., at 1568, n. 18.) The court made no explicit findings about differences in the racial polarization of voting between the Fifth and Eleventh Districts.We do not agree that the District Court's maintenance of the Fifth District as a majority black district under §2 indicates its §2 findings in reference to other districts are conflicting and not entitled to deference. The District Court noted that maintenance of a majority black district in the Atlanta area — created in 1972 for compliance with the Voting Rights Act-had become a state districting policy. 922 F. Supp., at 1565. Further, it is possible, although we do not express any opinion on the subject, that changing the racial majority of the district would have violated §5 retrogression principles.Private appellants also argue no deference is due the District Court's §2 finding both because the court did not hold a separate hearing on whether its remedial plan violated §2 and because it barred private intervention to defend the constitutionality of the Second District. We do not agree. First, neither our precedents nor the Act require the court to hold a separate hearing on the adequacy under §2 of a remedial plan. Second, the private defendant intervenors had ample opportunity to present evidence of the need for a second majority black district under §2 at the remedy hearing, in whichthey fully participated. The finding that appellants have not shown the threshold Gingles factors for a §2 violation is owed deference, and we find it not clearly erroneous.The private appellants contend the District Court's plan also violates §5 of the Voting Rights Act. Although the Justice Department did not include this claim in its jurisdictional statement, it agrees with private appellants and briefed the issue.As we noted above, §5 requires covered jurisdictions to obtain either administrative preclearance by the Attorney General or approval from the United States District Court for the District of Columbia for any change in a "standard, practice, or procedure with respect to voting," and requires that the proposed change "not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973c. We have explained that "the purpose of §5 has always been to insure that no voting procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." Beer v. United States, .The question arises whether a court decree is subject to §5. We have held that "[a] decree of the United States District Court is not within reach of Section 5 of the Voting Rights Act" such that it must be precleared. Connor v. Johnson, (per curiam). The exception applies to judicial plans, devised by the court itself, not to plans submitted to the court by the legislature of a covered jurisdiction in response to a determination of unconstitutionality. McDaniel v. Sanchez, . Here, the District Court made clear it had devised its own plan, a proposition not in dispute. In Sanchez, we emphasizedlanguage in a Senate Committee report saying that, although preclearance does not apply to court devised plans, " `in fashioning the plan, the court should follow the appropriate Section 5 standards, including the body of administrative and judicial precedents developed in Section 5 cases.' " 452 U.S., at 149 (quoting S. Rep. No. 94-295, p. 19 (1975)). This is a reasonable standard, at the very least as an equitable factor to take into account, if not as a statutory mandate.Appellants, however, have some difficulty fixing on a benchmark against which to measure any retrogression. Private appellants say the benchmark should be either the State's initial 1991 plan, containing two majority black districts, or the State's "policy and goal of creating two majority black districts." Brief for Appellants 48. The Justice Department, for its part, contends the proper benchmark is the 1992 precleared plan, altered to cure its constitutional defects.Here, as we have noted above in our discussions of both Upham and §2, appellants have not demonstrated it was possible to create a second majority black district within constitutional bounds. So, even were we to accept one of their proposed benchmarks, their desired remedy would be unconstitutional. As it happens, none of appellants' proposed benchmarks is appropriate. The private appellants' first proposal was not in effect in Georgia because it was refused preclearance. It thus could not operate as a benchmark under the Attorney General's regulations:"In determining whether a submitted change is retrogressive the Attorney General will normally compare the submitted change to the voting practice or procedure in effect at the time of the submission. If the existing practice or procedure upon submission was not in effect on the jurisdiction's applicable date for coverage ... and is not otherwise legally enforceable under section 5, it cannot serve as abenchmark, and ... the comparison shall be with the last legally enforceable practice or procedure used by the jurisdiction." 28 CFR § 51.54(b)(1) (1996).See also Holder v. Hall, ("Under §5, then, the proposed voting practice is measured against the existing voting practice ... . The baseline for comparison is present by definition; it is the existing status... . [T]here is little difficulty in discerning the two voting practices to compare to determine whether retrogression would occur."); Reno v. Bossier Parish School Board, ante, at 5-6. There are sound reasons for requiring benchmarks to be plans that have been in effect; otherwise a myriad of benchmarks would be proposed in every case, with attendant confusion. This rule is all the more appropriate when one considers the attempt to use as a benchmark the State's supposed policy of creating two majority black districts. And the Justice Department's proposed benchmark — the 1992 plan shorn of its constitutional defects — was also never in effect. Nor can the 1992 plan, constitutional defects and all, be the benchmark. Section 5 cannot be used to freeze in place the very aspects of a plan found unconstitutional.The appropriate benchmark is, in fact, what the District Court concluded it would be: the 1982 plan, in effect for a decade. 922 F. Supp., at 1569, n. 20. Appellants have not shown that black voters in any particular district suffered a retrogression in their voting strength under the court plan measured against the 1982 plan. Absent such proof, there is no violation of §5. We reject appellants' assertion that, even using the 1982 plan as a benchmark, the court's plan is retrogressive. They claim that under the 1982 plan one of the ten districts (10%) was majority black, while under the District Court's plan one of eleven districts (9%) is majority black, and therefore blacks do not have thesame electoral opportunities under the District Court's plan. Under that logic, each time a State with a majority minority district was allowed to add one new district because of population growth, it would have to be majority minority. This the Voting Rights Act does not require.Finally, appellants contend the District Court's plan violates the constitutional guarantee of one person, one vote under Article I, §2. This provision requires congressional districts to achieve population equality "as nearly as is practicable." Wesberry v. Sanders, . Court ordered districts are held to higher standards of population equality than legislative ones. A court ordered plan should "ordinarily achieve the goal of population equality with little more than de minimis variation." Chapman v. Meier, ; Connor v. Finch, (same). Here the district court was not designing districts to remedy a one person, one vote violation, but courts should keep in mind that "absolute population equality [is] the paramount objective." Karcher v. Daggett, . Slight deviations are allowed under certain circumstances. Chapman, supra, at 26 ("With a court plan, any deviation from approximate population equality must be supported by enunciation of historically significant state policy or unique features."); Connor, supra, at 419-420 (same); Karcher, supra, at 740 ("Any number of consistently applied legislative policies might justify some variance, including, for instance, making districts compact, respecting municipal boundaries, preserving the cores of prior districts, and avoiding contests between incumbent[s].").To help in interpreting what follows, we explain a few terms. Overall population deviation is the difference inpopulation between the two districts with the greatest disparity. Average population deviation is the average of all districts' deviation from perfect one person, one vote allocation. If population allocation in Georgia were perfect, each district would have 588,928 people, according to 1990 census data.Here, the District Court plan has an overall population deviation of 0.35%, and an average deviation of 0.11%. The plan has a lower deviation than: the 1992 plan (with its 0.93% overall deviation and its 0.35% average deviation); the 1982 plan; or "any other plan presented to the Court which was not otherwise constitutionally defective." 922 F. Supp., at 1561. Private appellants and amici in fact proposed plans with much higher deviations. ACLU 1A, the "least change" plan, had an overall population deviation of 0.94%; Abrams C had an overall deviation of 0.99%; and the Lewis Gingrich Amici R plan came in last place with an overall deviation of 1.86%. The only plans with lower overall deviations than the court's plan were the Justice Department's Illustrative Plan (0.19%) and the ACLU's Abrams A (0.29%), whose constitutional infirmities are discussed above.The District Court recited in detail those state policies and conditions which support the plan's slight deviations. The court explained Georgia's "strong historical preference" for not splitting counties outside the Atlanta area, 922 F. Supp., at 1561, and for not splitting precincts, id., at 1562. (The court observed that some splitting of precincts was unavoidable in Cobb County because of noncontiguous annexation patterns, and that it had split some precincts in Clayton County to achieve lower population deviations. Id., at 1562, n. 6.) The court acknowledged that maintaining political subdivisions alone was not enough to justify less than perfect deviation in a court plan. See, e.g., Kirkpatrick v. Preisler, ("[W]e do notfind legally acceptable the argument that variances are justified if they necessarily result from a State's attempt to avoid fragmenting political subdivisions by drawing congressional district lines along existing county, municipal, or other political subdivision boundaries."). The District Court, in conformance with this standard, considered splitting counties outside the Atlanta area, but found other factors "unique to Georgia" weighed against it. See Chapman, supra, at 26. These included maintaining core districts and communities of interest. Georgia has an unusually high number of counties: 159, the greatest number of any State in the Union apart from the much larger Texas. These small counties represent communities of interest to a much greater degree than is common, and we agree with the District Court that "such a proliferation" provides "ample building blocks for acceptable voting districts without chopping any of those blocks in half." 864 F. Supp., at 1377.In any case, even if we had found the court plan's population deviation unacceptable, the solution would not be adoption of the constitutionally infirm, because race based, plans of appellants. Indeed, before this Court at oral argument private appellants acknowledged the remedy for any one person, one vote violation would not be creation of a second majority black district. Tr. of Oral Arg. 28-29. Rather, we would require some very minor changes in the court's plan — a few shiftings of precincts — to even out districts with the greatest deviations.That exercise, however, and appellant's objections to the court plan's slight population deviations, are increasingly futile. We are now more than six years from the last census, on which appellants' data is based. The difference between the court plan's average deviation (0.11%) and the Illustrative Plan's (0.07%) is 0.04%, which represents 328 people out of a perfect districtpopulation of 588,928. The population of Georgia has not stood still. Georgia is one of the fastest growing States, and continues to undergo population shifts and changes. U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 29 (1996) (Table 28) (showing Georgia tied for seventh place among the States in percentage of population growth from 1990 to 1995, with 11.2% growth). In light of these changes, the tinkerings appellants propose would not reflect Georgia's true population distribution in any event. The Karcher Court, in explaining the absolute equality standard, acknowledged that "census data are not perfect," and that "population counts for particular localities are outdated long before they are completed." 462 U.S., at 732. Karcher was written only two years from the previous census, however, and we are now more than six years from one. The magnitude of population shifts since the census is far greater here than was likely to be so in Karcher. These equitable considerations disfavor requiring yet another reapportionment to correct the deviation.The task of redistricting is best left to state legislatures, elected by the people and as capable as the courts, if not more so, in balancing the myriad factors and traditions in legitimate districting policies. Here, the legislative process was first distorted and then unable to reach a solution. The District Court was left to embark on a delicate task with limited legislative guidance. The court was careful to take into account traditional state districting factors, and it remained sensitive to the constitutional requirement of equal protection of the laws.* * *The judgment of the District Court is affirmed.It is so ordered.[Graphic omitted: see printed opinion.]---------------------------------------------------------------------------- U.S. Supreme CourtNos. 95-1425 and 95-1460LUCIOUS ABRAMS, Jr., G. L. AVERY, WILLIAM GARY CHAMBERS, Sr., and KAREN WATSON, APPELLANTS 95-1425 v. DAVIDA JOHNSON et al. UNITED STATES, APPELLANT 95-1460on appeals from the united states district court for the southern district of georgia[June 19, 1997]Justice Breyer, with whom Justice Stevens, Justice Souter, and Justice Ginsburg join, dissenting.Georgia elects 11 Members of the United States House of Representatives. Georgia's African American voting age population is just over 1.7 million, or about 27 percent of a total voting age population of about 6.5 million. See Miller v. Johnson___, ___ (1995) (slip op., at 4). In 1992 Georgia's Legislature redrew congressional district boundaries so as to create an African American voting age majority in 3 of 11 districts. This Court held that three district plan unconstitutional. Id., at ___ (slip op., at 27). On remand, the District Court, inter alia, drew up a new redistricting plan with one majority minority district. Johnson v. Miller, 922 F. Supp. 1556, 1560-1561 (SD Ga. 1995). The basic legal issue before us now is whether the District Court should have retained (not one but) two majority minority districts.The majority holds that the District Court couldlawfully create a new districting plan that retained only one such district. But in my view that decision departs dramatically from the Georgia Legislature's preference for two such districts — a preference embodied in the legislature's earlier congressional district plans. A two district plan is not unconstitutional. And the District Court here, like the District Court in Upham v. Seamon, , "was not free ... to disregard the political program of the ... Legislature." For that reason, and others, I dissent.The majority fully understands the relevance, and the importance, here of this Court's Upham decision. In Upham the Court said:" `[J]ust as a federal district court ... should follow the policies and preferences of the State, as expressed ... in the reapportionment plans proposed by the state legislature, whenever adherence to state policy does not detract from the requirements of the Federal Constitution, ... a district court should similarly honor state policies in the context of congressional reapportionment.' " Id., at 41 (quoting White v. Weiser, ).The majority here, referring to this language, agrees:"[A] court, as a general rule, should be guided by the legislative policies underlying the existing plan, to the extent those policies do not lead to violations of the Constitution or the Voting Rights Act." Ante, at 3 (citing Upham, supra, at 43).It is therefore common ground among us that the District Court should have drawn boundaries so as to leave two majority minority districts rather than one — unless there was no such state policy or preference; unless the creation of two such districts would have violated the Constitution or the Voting Rights Act of1965; or unless doing so simply would have proved impractical in light of other important districting objectives. See Upham, supra, at 41-42 (quoting White, supra, at 794-795. Unlike the majority, I cannot find present here any of these three countervailing justifications.No one denies that, if one looks at the redistricting plans proposed by the Georgia Legislature, one will find in them expressions of state "policies and preferences" for two majority minority districts. Id., at 41; see also Appendix, figure 1, infra. After the 1990 Census, which increased the size of Georgia's congressional delegation from 10 to 11, App. in Miller v. Johnson, O. T. 1994, No. 94-631, p. 9, the state legislature began a lengthy political process of redistricting and considered the majority minority district issue, among others. Id., at 10-14; see also Deposition of Linda Meggers, Record 11-17, 20-22, 32-33, 85 (May 6, 1994). The legislature proposed one plan in 1991 with two such districts. See Appendix, figure 1, infra. When the United States Department of Justice (DOJ or Justice Department) denied preclearance under §5 of the Voting Rights Act of 1965 (VRA), 42 U.S.C. § 1973 the legislature proposed a second plan, which also contained two such districts. Subsequently the legislature proposed a third plan with three such districts — a plan approved by the Justice Department but struck down by this Court in Miller, supra.What the District Court and the majority deny is that the "preferences" expressed in these three redistricting plans reflect the Georgia Legislature's true preference. The District Court said that "Georgia's current plan was not the product of Georgia's legislative will," but rather "was tainted by unconstitutional DOJ interference" into the "process" that produced the plan. 922 F. Supp., at1560. The majority repeats the District Court's comment about DOJ's "thorough `subversion of the redistricting process' since the 1990 census," ante, at 8, adds that the "State was predominantly driven" by "steady Justice Department pressure," ante, at 10, and concludes:"Interference by the Justice Department ... disturbed any sound basis to defer to the 1991 unprecleared plan... ." Ante, at 14.I believe, however, that the majority's conclusion — its reason for refusing to recognize the Georgia Legislature's two district preference — is wrong both as a matter of fact and as a matter of law.The conclusion is factually inadequate because the testimony cited, ante, at 11, to show unusual DOJ pressure in the 1991 redistricting process shows nothing unusual. It shows only that the Justice Department told Georgia that it must comply with the VRA, which statement Georgia legislators might have considered an exhortation to create more than one majority minority district. Tr. 16 (Apr. 18, 1994); id., at 431-433 (Oct. 30, 1995); Deposition of Linda Meggers, Record 20 (May 6, 1994). Indeed, the record indicates that a number of Georgia legislators affirmatively wanted two majority minority districts. Tr. 431-432 (Oct. 30, 1995); Deposition of Linda Meggers, Record 22, 32 (May 6, 1994). It also shows that the 1991 two district plan was the result of an " `understanding' between the leadership in the legislature and the black caucus"; See ante, at 11; see also Tr. 32 (Apr. 18, 1994), id., at 431-432 (Oct. 30, 1995); Deposition of Linda Meggers, Record 22, 32 (May 6, 1994); that the 1991 "two district" plan (as the State conceded) "was not perceived as a `racial gerrymander,' " ante, at 11 (quoting Brief for Appellants Miller et al. in Miller v. Johnson, O. T. 1994, No. 94-631, p. 49); andthat the 1991 "two district" plan (as the District Court found) "like most redistricting efforts, was the culmination of committee meetings, public hearings, examination of various districting proposals, and many hours spent with an extremely sophisticated computer." Johnson v. Miller, 864 F. Supp. 1354, 1363 (1994). Indeed, much of the departmental "interference" to which the majority refers took place after adoption of the 1991 Plan, see ante, at 4; Tr. 21, 39-40, 43, 75 (Oct. 30, 1995); Deposition of Linda Meggers, Record 79-80 (May 6, 1994); Miller, supra, at ___ (slip op., at 4-5); App. in No. 94-641, p. 16, and likely reflected departmental concern related to Georgia's voting discrimination history. See Busbee v. Smith, 549 F. Supp. 494, 500, aff'd, ; App. 139-140.The majority is legally wrong because this Court has said that a court should determine a State's redistricting preferences by looking to the "plans proposed by the state legislature," Upham, 456 U.S., at 41 (quoting White, 412 U.S., at 794-795), not by evaluating the various political pressures that might have led individual legislators to vote one way rather than another (or, for that matter, by reviewing after the fact testimony regarding legislative intent). Cf. Upham, supra, at 41; Weiser, 412 U.S., at 794-795; see also Karcher v. Daggett, . "Districting plans," like other legislative acts, "are integrated bundles of compromises, deals, and principles." Bush v. Vera___, ___ (1996) (slip op., at 17) (Souter, J., dissenting) (quoting Pildes & Niemi, Expressive Harms, "Bizarre Districts," and Voting Rights: Evaluating Election District Appearances after Shaw v. Reno, 92 Mich. L. Rev. 483, 585-586 (1993)). District plans, like other legislative Acts, may reflect not only reasoned argument but also political pressures, brought to bear by many different individuals and groups using subtle or unsubtle suggestions, promises or threats, of votes,support, publicity, and even lawsuits.How can a court say that a legislative Act is legitimate — that it reflects legislative preferences or policies — when those who reason or cajole (or threaten suit) are farmers, businessmen, or consumer groups, but that the same legislative Act becomes illegitimate — that it does not reflect "true" legislative policy or preference — simply because those who seek to persuade (or threaten suit) represent the Justice Department. One cannot say that the Department's power is any less legitimate than that exercised by the many other groups that seek to influence legislative decisions; and its employees' sworn duty to uphold the law would seem more suitably characterized as a reason for paying greater attention to its views rather than as a reason for heeding them less. Regardless, I am not aware of any legal principle that supports the kind of distinction (among legislative pressures) that the District Court made; and the District Court's necessary reliance upon such a distinction, by itself, should warrant vacating the District Court's decision.Moreover, what reason is there to believe that Georgia's Legislature did not "really" want the two majority minority districts that its earlier plans created? There is — as I indicated earlier — evidence that a number of legislators did want two majority minority districts. See, supra, at 4-5. And the legislature was aware of Georgia's long, well documented history of past discrimination in voting. See Busbee, supra; Rogers v. Lodge, ; Gray v. Sanders, ; see also Morris v. Fortson, 261 F. Supp. 538, 541 (ND Ga. 1966); Lodge v. Buxton, 639 F. 2d 1358, 1378 (CA5 1981) (racial bloc voting in Burke County); Carrollton Branch of NAACP v. Stallings, 829 F. 2d 1547, 1559 (CA11 1987) (racial bloc voting in Carroll County); Cross v. Baxter, 604 F. 2d 875, 880, n. 8 (CA5 1979); Paige v. Gray, 437 F. Supp. 137, 158 (MD Ga.1977) (Albany, Ga.); Pitts v. Busbee, 395 F. Supp. 35, 40 (ND Ga. 1975) (Fulton County); Bailey v. Vining, 514 F. Supp. 452, 461 (M.D. Ga. 1981) (Putnam County); Wilkes County v. United States, 450 F. Supp. 1171, 1174 (DDC 1978); see generally E. Foner, Reconstruction: America's Unfinished Revolution, 1863-1877, pp. 423-424 (1988); McDonald, Binford, & Johnson, Georgia, in Quiet Revolution in the South: The Impact of the Voting Rights Act, 1965-1990, pp. 67-74 (C. Davidson & B. Grofman eds. 1994).The Georgia Legislature was likely aware of the many unfortunate consequences that have flowed from this history. They include the facts that, when Congress first enacted the VRA, fewer than 30 percent of African Americans eligible to vote in Georgia had registered to vote, ibid., and that no African American had represented Georgia in Congress since Reconstruction, App. 140, when Congressman Jefferson Franklin Long briefly represented the State. B. Ragsdale & J. Treese, Black Americans in Congress, 1870-1989, p. 81 (1990).The Georgia Legislature also might have thought that some degree (indeed, a less than proportionate amount of) majority minority districting could help to overcome some of the problems these facts suggest. Forty two members of Georgia's (180 member) House of Representatives themselves were elected from majority black districts; 30 of those members are black, 12 are white. App. 116. One hundred thirty eight members of Georgia's House were elected from majority white districts; 1 of those members is black, 137 are white. Ibid. Forty three members of Georgia's (56 member) Senate are elected from majority white districts; all of those members are white. Ibid. Until 1972, Georgia had not elected any African American Members of Congress since Reconstruction. 1 Reference Library of Black America 67 (K. Estell ed. 1994). Since then, it has elected a total of 4. Sherman, Diluting Black Votes for a StrongerVoice; Politicians Debate Impact of Remap, Atlanta Journal Constitution, Dec. 17, 1995. Each of those members originally represented a majority minority district (although two of them were recently re elected as incumbents after boundary changes created white majorities in their districts). Ante, at 17.These circumstances help to explain why the 1991 Georgia Legislature might have thought that the creation of two majority minority districts would help overcome race related barriers — barriers erected by history and prejudice, reinforced by inertia and nonparticipation. Not only the three district plan, but also the 1991 Plan and the first (unprecleared) 1992 Plan suggest that that is what the legislature did think. And I can find no reason in the record not to take at face value what all the legislature's plans thereby suggest, namely that two majority minority districts represents a significant legislative "policy and preference."The majority says that the legislature's two district preference is not owed Upham deference because a plan that embodied that preference is (or would be) "flawed by evidence of predominant racial motive," ante, at 14, or based upon race to a degree not reasonably necessary to comply with §2 of the VRA, 42 U.S.C. § 1973. The majority means that a two district plan would be unlawful — that it would violate the Constitution as interpreted in Miller. I cannot agree.Miller considered the constitutionality of a three district plan. Its five Justice majority included one member who subsequently made clear that, even if racial considerations "predominate" in a State's drawing of a district boundary, that district is nonetheless lawful (because there is a compelling, hence redeeming interest) if the State has "a strong basis in evidence for concluding" that the district would otherwise violate VRA §2. Bush, supra, at ___ (O'Connor, J., concurring) (slip op., at 6); see also Miller, supra, at ___ (slip op., at 20 ); Shaw v. Reno, . That " `strong basis in evidence' need not take any particular form," Bush, supra, at ___ (O'Connor, J., concurring) (slip op., at 6), and where it is present, the State "may create a majority minority district without awaiting judicial findings." Ibid.; see also Wygant v. Jackson Bd. of Ed., (O'Connor, J., concurring); McDaniel v. Barresi, . The majority does not reject this standard. Ante, at 15-16. And it cannot deny that there is a "strong basis in the evidence" for believing that, after the 1990 Census, VRA §2, §5, or both, required the creation of a second majority minority district.As the majority agrees, §2 requires a second majority minority district here, if the "totality of the circumstances" suggests that racial minorities are excluded from "participat[ing] in the political process" and "elect[ing] representatives of their choice," 42 U.S.C. § 1973(b), and the evidence shows that (1) the minority group "is sufficiently large and geographically compact to constitute a majority" in a second "single member district;" (2) the minority group is "politically cohesive;" and (3) the majority "votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate." Thornburg v. Gingles, .The majority discusses only these last (Gingles) requirements at any length. As to the first requirement — compactness — the plans before the District Court raised two possibilities: first, the creation of a majority minority district in southwest Georgia — in approximately the area labeled District 2 in the court's plan (Appendix, figure 2, infra); and second, the creation of the majority minority district in southeastern central Georgia — in approximately the area labeled District 11 in the JusticeDepartment's Illustrative Plan (Appendix, figure 3, infra).The first possibility could have involved a compactly shaped district. Regardless, the DOJ's Illustrative Plan (which the District Court considered on the merits, 922 F. Supp., at 1561 n.4) suggests a newly drawn District 11 with an African American population of 54.60 percent, an African American voting age population of 51.04 percent, and a population deviation of 0.10 (This deviation percentage — the highest in the Illustrative Plan — was still lower than the deviation in two of the districts contained in the Court Plan.) It suggests that the District Court's statement that "the only way Georgia could create a majority minority district out of the minority concentrations in east central Georgia was to link" rural and urban communities by using "land bridges and appendages" similar to those used in the unconstitutional 1992 plan, 922 F. Supp., at 1567, n. 15, was erroneous. The proposed district is different from its unconstitutional predecessor. It does not try to build a land bridge linking southern Atlanta with Savannah. Compare Miller, 515 U. S., at ____ (slip op., at 6-7). And its boundaries are far more regular.Moreover, it strikes me that the District Court's finding that a district in east central Georgia that encompassed both rural and urban African American communities could not be "compact" confuses a number of issues. Shaw v. Reno, and Miller compactness, which concerns the shape or boundaries of a district differs from §2 compactness, which concerns a minority group's compactness. Additionally, where (as here) the racial minority group is geographically compact, see Appendix, infra, at the fact that communities are rural or urban has more to do with political cohesiveness — whether communities share common interests — than with §2 compactness. To my knowledge, no case has ever held that rural and urban racial minorities cannot togethercreate a compact minority for §2 compactness purposes. Moreover, it seems clear that rural and urban African American voters who live near each other might share important common interests; and I have found nothing in the record that suggests that the rural and urban black voters here, living near each other, do not share many common interests — in respect to many important legislative matters. See Karlan & Levinson, Why Voting Is Different, 84 Calif. L. Rev. 1201, 1216-1220 (1996); see also Gingles, supra, at 64 (citing Butler, Constitutional and Statutory Challenges to Election Structures: Dilution and the Value of the Right to Vote, 42 La. L. Rev. 851, 902 (1982), and S. Verba & N. Nie, Participation in America 151-152 (1972)).The District Court considered the remaining two Gingles, factors (the minority's "political cohesiveness" and the majority's "bloc voting") under a single rubric, which the majority calls "the extent of racially polarized voting." Ante, at 16. Of course, Georgia's history, including the political results that I have mentioned before — the fact that African American representatives have come almost exclusively from majority minority districts — strongly support the existence of that "polarization." Moreover, appellants produced experts who testified that the percentage of District 11 white voters willing to vote for a black candidate varied from 0 to 26 percent, while the number of black voters willing to vote for a white candidate varied from 3 to 11 percent. App. 54-61, 69-70, 72. Other expert testimony suggested less polarization (placing the relevant numbers at 22 to 38 percent white for black and 20 percent to 23 percent black for white). Johnson v. Miller, 864 F. Supp. 1354, 1390 (SD Ga. 1994). But that other testimony rested in considerable part on local (and judicial, and primary) election results with multiple candidates or other special features that discouraged racial bloc voting, and for that reason they may have overstated the significance of thenumerical results. See App. 93-94; Gingles, 478 U.S., at 57, nn. 25 and 26.Regardless, as the majority says, the District Court found the statistical evidence inconclusive and "conflicting." 922 F. Supp., at 1567. And the District Court conceded the existence of "some degree of vote polarization." Ibid. (It simply said that the "degree" was not " `alarming.' " Ibid.). That African American incumbents were reelected does not, without more, disprove polarization. Gingles, supra, at 75 (citing S. Rep. No. 97-417, p. 29 (1982)) (quoting Zimmer v. McKeithen, 485 F. 2d 1297, 1307 (CA5 1973) (en banc), aff'd sub nom. East Carroll Parish School Bd. v. Marshall, (per curiam) ("[T]he election of a few minority candidates does not `necessarily' foreclose the possibility of dilution of the black vote ... "); at 57, 478 U. S., (quoting S. Rep. No. 97-417, supra, at 29, n. 215) (listing incumbency as a special factor in assessing vote polarization).The majority says that, despite this evidence, the District Court's findings — of no §2 violation and no §5 violation — are adequately supported. Ante, at 19, 22. But that is because the District Court asked the wrong question. We need not decide whether the evidence shows the failure to create a second majority minority district violates §2. Cf. ante, at 14-19 (Nor, for that matter, need we decide whether the consequent reduction of such districts from 1 in 10 to 1 in 11 would, other things being equal, violate §5 — which it might do. Cf. ante, at 19-22.). The question is not about whether the evidence proves §2 in fact requires two majority minority districts. The question is whether the evidence is strong enough to justify a legislature's reasonable belief that that was so. The record rather clearly demonstrates a "strong basis in the evidence" for believing that §2 or §5 required two majority minority districts. The Legislature thus could very reasonablyhave believed that was so. And, that is what I had believed the law, as set forth in this Court's opinions, required as legal justification for a district that otherwise would violate the basic predominant factor test of Miller.This legal distinction — between whether a plan really violates §2 or might well violate §2 — may seem technical. But it is not. A legal rule that permits legislatures to take account of race only when §2 really requires them to do so is a rule that shifts the power to redistrict from legislatures to federal courts (for only the latter can say what §2 really requires). A rule that rests upon a reasonable view of the evidence (i.e., that permits the legislature to use race if it has a %strong basis" for believing it necessary to do so) is a rule that leaves at least a modicum of discretionary (race related) redistricting authority in the hands of legislators. Again (and at a minimum), the District Court's use of the wrong test requires vacating its judgment.To create a second majority minority district is not impractical nor would doing so significantly interfere with other important districting objectives. The easiest way to understand why this is so is to look at three plans that I have placed in the Appendix, infra. I shall call the Georgia Legislature's 1991 two district reapportionment Plan A. Appendix, figure 1, infra. I shall call the one district plan adopted by the court Plan B. Appendix, figure 2, infra. And I shall call the two district Illustrative Plan proposed by the Justice Department Plan C. Appendix, figure 3, infra. Inspection of the three plans suggests that the District Court's plan (B) is very similar to the other two (A and C) but for one critical feature, namely that it has one majority minority district rather than two.Now consider the three plans in respect to each of thefive districting considerations that the District Court called traditional and important. They are: (a) retaining one district in each corner of the state; (b) creating an urban minority district; (c) maintaining political subdivisions; (d) protecting incumbents; and (e) maintaining traditional district cores. 922 F. Supp., at 1564-1565.All three plans are identical in respect to the first two considerations. Each maintains districts in three of the four state corners; each creates at least one urban minority district. Plan B — the District Court's plan — is marginally superior in respect to the third criterion (maintaining political subdivisions). Plan B splits six counties within the Atlanta area but none outside the Atlanta area. Id., at 1564. Plan C splits two counties (Bibb and Muscogee) outside the Atlanta area. (Appellants, however, advance nonracial justifications for the latter splits.)Plan C is superior to Plan B in respect to the remaining two considerations. Plan C displaces no incumbents. Plan B displaces three incumbents (including two African Americans). Plan C maintains all district cores. Plan B moves many more Georgians into new districts.Plan C has certain other advantages: It maintains, as provided in the Legislature's 1991 Plan, 138 of Georgia's 159 counties. Plan B maintains 123. Plan C has greater population uniformity among its districts. And, of course, Plan C provides for two majority minority districts — the number the Legislature provided in two of its three redistricting plans.I add one point. This is not a suit in which there are claims of interference with the right to cast a ballot or "dilution" of the majority's vote. Cf. White v. Regester, , Reynolds v. Sims, , and Gomillion v. Lightfoot, ; see also Karlan & Levinson, 84 Calif. L. Rev., supra, at 1212-1216. Rather, the legislature's plans, insofar as they were race conscious, sought only to prevent whatthe legislature could reasonably have believed to be unlawful vote dilution — i.e., to prevent a violation of VRA §2, or perhaps §5. See Tr. 103 (Oct. 30, 1995, Testimony of Representative Sanford Bishop). Given this fact and given the three sets of considerations just mentioned, I do not see how the majority, consistently with Upham, can affirm the District Court's determination.In other cases dissenting judges have expressed concerns that the Court's holdings and particularly its test--%predominant racial motive"--would prove unworkable, that they would improperly shift redistricting authority from legislatures to courts, and that they would prevent the legitimate use (among others the remedial use) of race as a political factor in redistricting, sometimes making unfair distinctions between racial minorities and others. See, e.g., Shaw v. Reno, 509 U.S., at 676-679 (Stevens, J., dissenting); id., at 679-687 (Souter, J., dissenting); Miller, 515 U. S., at ___ (Stevens, J., dissenting) (slip op., at 1); id., at ___ (Ginsburg, J., dissenting) (slip op., at 1); Bush, 517 U. S., at ___ (Stevens, J., dissenting) (slip op., at 1); id., at ___ (Souter, J., dissenting) (slip op., at 1); Shaw v. Hunt___, ___ (1996) (Stevens, J., dissenting) (slip op., at 1). This suit exacerbates those concerns.Legislators, for example, may ask just what the words "predominant racial motive" mean. The question has no obvious answer because racial motives (here efforts to include some additional African American voters in a particular district) never explain a predominant portion of a district's entire boundary (most of which inevitably reflects county lines, other geographical features, and sometimes even a discriminatory history, see App. at 120-121); yet those motives always predominate in respect to those voters (whether few or many) whom thelegislature, with consciousness of race, places for that reason in one district rather than another. More importantly, here, unlike other cases that use somewhat similar words, the Court has not turned to other considerations, such as discriminatory intent, or vote dilution, or even a district's bizarre geographical shape, to help explain, or to limit the scope of, the words themselves. Cf. Shaw v. Hunt, supra; Regester, supra, Reynolds, supra; and Gomillion, supra. Thus, given today's suit, a legislator might reasonably wonder whether he can ever knowingly place racial minorities in a district because, for example, he considers them part of a "community" already there; because he thinks doing so will favor the Democrats (or the Republicans); because he wants to help an African American incumbent; because he believes doing so will encourage participation in the political process by racial minorities in whom historical discrimination has induced apathy; because he believes that doing so will help those same voters secure representatives that better reflect their needs and desires; or simply because he wants to see more racial minorities elected to office in a Nation that has become increasingly diverse.The Court has not said that the Constitution forbids the use of race in all these instances. See Adarand Constructors, Inc. v. Peña, , ___ (1995); see also Shaw v. Reno, supra, at 646-647; Miller, supra, at ___ (slip op., at 19 ); Bush, supra, at ___ (Stevens, J., dissenting) (slip op., at 1); Wygant v. Jackson Bd. of Ed., ; Richmond v. J. A. Croson Co., . If the use of race as a criterion is wrong in some, but not all, of these instances, the legislator will need to know when, and why. And the legislator will need a legal principle that tells him whether, or when, the answers to such questions vary depending upon whether the group is racial or reflects, say, economics, education, or national origin. Miller, supra, at ___ (Ginsburg, J., dissenting) (slip op., at 12-13). It seems particularly difficult — without the use of some guiding or limiting principle, such as intent, vote dilution, or even bizarre district shape — to find principled legal answers to what, in the redistricting context, are traditionally political questions.The decision also increases the risk of significant judicial entanglement in the inherently political redistricting process. See, e.g., Bush, supra, at ___ (Stevens, J., dissenting) (slip op., at 39); Miller, supra, at ___ (Ginsburg, J., dissenting) (slip op., at 2); see also Growe v. Emison, ; Voinovich v. Quilter, ; Chapman v. Meier, ; White, supra, at 795; Reynolds, 377 U.S., at 586; Colegrove v. Green, . A Court test that forbids the overt use of race in any (or all) of the circumstances listed above will simultaneously permit plaintiffs to bring lawsuits complaining about the covert use of what was overtly forbidden. Any redistricting plan will generate potentially injured plaintiffs, willing and able to carry on their political battles in a judicial forum. And judges (unable to refer say to intent, dilution, shape, or some other limiting principle) will find it difficult to dismiss those claims — particularly if (as the majority here says) the law, deprives the legislature even of such defenses as a reasonable belief that a particular use of race was legally required.Nor can I find any legal principle that might constitute a simple, administrable stopping place — a principle that could serve the same function in this context as does the one person one vote rule in the context of reapportionment. See Miller, supra, at ___ (Ginsburg, J., dissenting) (slip op., at 6). A simple "color blind" test — a test that rules out race consciousness across the board — will not work. Bush, supra, at ___ (Souter, J., dissenting) (slip op., at 18-19). Legislators can andshould use race consciously to prevent creating districting plans that discriminate against racial minorities, say by "diluting" their votes. Cf. Adarand Constructors, Inc., supra, at ___. Moreover, this Court, recognizing the harm caused by slavery and 80 subsequent years of legal segregation has held that legislators, within limits, can make conscious use of race in an effort to overcome the present effects of past discrimination. Ibid.; see also Shaw v. Reno, supra, at 646-647; Miller, 515 U. S., at ___ (slip op., at 19 ). There may be other instances as well. Further, any test that applied only to race, ignoring, say, religion or national origin, would place at a disadvantage the very group, African Americans, whom the Civil War Amendments sought to help, see Miller, supra, at ___ (Ginsburg, J., dissenting) (slip op., at 4-5). But judicial administration of a test that applied to all such voter group characteristics would involve courts yet more deeply in the basically political task of drawing and redrawing district boundaries.In focusing on these practical considerations, I repeat what previous dissents have argued. I do so because the holding here underscores the problems mentioned in those earlier dissents; and those problems, in turn, cast further doubt upon the soundness of today's decision.I do not necessarily agree or disagree with those other aspects of the majority's opinion that I have not mentioned. But I shall stop with the main point. The Court, perhaps by focusing upon what it considered to be unreasonably pervasive positive use of race as a redistricting factor, has created a legal doctrine that will unreasonably restrict legislators' use of race, even for the most benign, or antidiscriminatory purposes. And that doctrine will draw the Court too deeply into an area of legislative responsibility. For the reasons setforth here, and in previous dissenting opinions, I do not believe that the Constitution embodies the doctrine that the majority enunciates. And I believe that Upham requires us to vacate the District Court's judgment and remand the suit.[Graphic omitted: see printed opinion.]

Petitioner was tried for rape in North Carolina, an offense punishable by death unless the jury recommends life imprisonment. The prosecution was permitted to challenge for cause all prospective jurors who stated that they were opposed to capital punishment or had conscientious scruples against imposing the death penalty. A rifle which was introduced at the trial was obtained by a search of petitioner's grandmother's house, where he resided. Four officers appeared at the home, announced that they had a warrant to search it, and were told by the owner to "[g]o ahead." At the hearing on a motion to suppress, which was denied, the prosecutor stated that he did not rely on a warrant to justify the search, but on consent. The jury found petitioner guilty, but recommended life imprisonment, and the State Supreme Court affirmed. Held: 1. Petitioner has adduced no evidence to support his claim that a jury from which those who are opposed to capital punishment or have conscientious scruples against imposing the death penalty are excluded for cause is necessarily "prosecution prone," warranting reversal of his conviction for denial of his Sixth and Fourteenth Amendment rights to an impartial jury. Witherspoon v. Illinois, ante, p. 510. P. 545. 2. A search cannot be justified as lawful on the basis of consent when that "consent" has been given only after the official conducting the search has asserted that he possesses a warrant; there is no consent under such circumstances. Pp. 546-550. 3. Because the rifle, which was erroneously admitted into evidence, was plainly damaging against petitioner, its admission was not harmless error. Chapman v. California, . P. 550. 270 N.C. 521, 155 S. E. 2d 173, reversed and remanded.Norman B. Smith argued the cause and filed briefs for petitioner, pro hac vice.Harry W. McGalliard, Deputy Attorney General of North Carolina, argued the cause for respondent. With him on the brief was T. W. Bruton, Attorney General. Briefs of amici curiae were filed by Jack Greenberg, James M. Nabrit III, Michael Meltsner, Leroy D. Clark, Norman C. Amaker, and Charles S. Ralston for the NAACP Legal Defense and Educational Fund, Inc., et al., and by F. Lee Bailey, pro se.MR. JUSTICE STEWART delivered the opinion of the Court.The petitioner was brought to trial in a North Carolina court upon a charge of rape, an offense punishable in that State by death unless the jury recommends life imprisonment.1 Among the items of evidence introduced by the prosecution at the trial was a .22-caliber rifle allegedly used in the commission of the crime. The jury found the petitioner guilty, but recommended a sentence of life imprisonment.2 The trial court imposed that sentence, and the Supreme Court of North Carolina affirmed the judgment.3 We granted certiorari4 to consider two separate constitutional claims pressed unsuccessfully by the petitioner throughout the litigation in the North Carolina courts. First, the petitioner argues that his constitutional right to an impartial jury was violated in this capital case when the prosecution was permitted to challenge for cause all prospective jurors who stated that they were opposed to capital punishment or had conscientious scruples against imposing the death penalty. Secondly, the petitioner contends that the .22-caliber rifle introduced in evidence against him was obtained by the State in a search and seizure violative of the Fourth and Fourteenth Amendments. I. In Witherspoon v. Illinois, ante, p. 510, we have held that a death sentence cannot constitutionally be executed if imposed by a jury from which have been excluded for cause those who, without more, are opposed to capital punishment or have conscientious scruples against imposing the death penalty. Our decision in Witherspoon does not govern the present case, because here the jury recommended a sentence of life imprisonment. The petitioner argues, however, that a jury qualified under such standards must necessarily be biased as well with respect to a defendant's guilt, and that his conviction must accordingly be reversed because of the denial of his right under the Sixth and Fourteenth Amendments to trial by an impartial jury. Duncan v. Louisiana, ante, p. 145; Turner v. Louisiana, ; Irvin v. Dowd, . We cannot accept that contention in the present case. The petitioner adduced no evidence to support the claim that a jury selected as this one was is necessarily "prosecution prone,"5 and the materials referred to in his brief are no more substantial than those brought to our attention in Witherspoon.6 Accordingly, we decline to reverse the judgment of conviction upon this basis. II. The petitioner lived with his grandmother, Mrs. Hattie Leath, a 66-year-old Negro widow, in a house located in a rural area at the end of an isolated mile-long dirt road. Two days after the alleged offense but prior to the petitioner's arrest, four white law enforcement officers - the county sheriff, two of his deputies, and a state investigator - went to this house and found Mrs. Leath there with some young children. She met the officers at the front door. One of them announced, "I have a search warrant to search your house." Mrs. Leath responded, "Go ahead," and opened the door. In the kitchen the officers found the rifle that was later introduced in evidence at the petitioner's trial after a motion to suppress had been denied.At the hearing on this motion, the prosecutor informed the court that he did not rely upon a warrant to justify the search, but upon the consent of Mrs. Leath.7 She testified at the hearing, stating, among other things:"Four of them came. I was busy about my work, and they walked into the house and one of them walked up and said, `I have a search warrant to search your house,' and I walked out and told them to come on in... . He just come on in and said he had a warrant to search the house, and he didn't read it to me or nothing. So, I just told him to come on in and go ahead and search, and I went on about my work. I wasn't concerned what he was about. I was just satisfied. He just told me he had a search warrant, but he didn't read it to me. He did tell me he had a search warrant. ... . . "... He said he was the law and had a search warrant to search the house, why I thought he could go ahead. I believed he had a search warrant. I took him at his word... . I just seen them out there in the yard. They got through the door when I opened it. At that time, I did not know my grandson had been charged with crime. Nobody told me anything. They didn't tell me anything, just picked it up like that. They didn't tell me nothing about my grandson."8 Upon the basis of Mrs. Leath's testimony, the trial court found that she had given her consent to the search, and denied the motion to suppress.9 The Supreme Court of North Carolina approved the admission of the evidence on the same basis.10 The issue thus presented is whether a search can be justified as lawful on the basis of consent when that "consent" has been given only after the official conducting the search has asserted that he possesses a warrant.11 We hold that there can be no consent under such circumstances.When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving that the consent was, in fact, freely and voluntarily given.12 This burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority.13 A search conducted in reliance upon a warrant cannot later be justified on the basis of consent if it turns out that the warrant was invalid.14 The result can be no different when it turns out that the State does not even attempt to rely upon the validity of the warrant, or fails to show that there was, in fact, any warrant at all.15 When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search. The situation is instinct with coercion - albeit colorably lawful coercion. Where there is coercion there cannot be consent.We hold that Mrs. Leath did not consent to the search, and that it was constitutional error to admit the rifle in evidence against the petitioner. Mapp v. Ohio, . Because the rifle was plainly damaging evidence against the petitioner with respect to all three of the charges against him, its admission at the trial was not harmless error. Chapman v. California, .16 The judgment of the Supreme Court of North Carolina is, accordingly, reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

Employer's discharge of employees because they gave written sworn statements to a National Labor Relations Board field examiner investigating an unfair labor practice charge filed against the employer, but who had neither filed the charge nor testified at a formal hearing on the charge, constituted a violation of 8 (a) (4) of the National Labor Relations Act. Pp. 121-125. 435 F.2d 1296, reversed and remanded.BLACKMUN, J., delivered the opinion for a unanimous Court.William Terry Bray argued the cause for petitioner. With him on the brief were Solicitor General Griswold, Peter G. Nash, Norton J. Come, and Paul J. Spielberg.Donald W. Jones argued the cause and filed a brief for respondent.William B. Barton and Harry J. Lambeth filed a brief for Associated Builders & Contractors, Inc., as amicus curiae.MR. JUSTICE BLACKMUN delivered the opinion of the Court.Section 8 of the National Labor Relations Act, as amended, 61 Stat. 140, 29 U.S.C. 158, provides: "SEC. 8. (a) It shall be an unfair labor practice for an employer - "(1) to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7; ... . . "(4) to discharge or otherwise discriminate against an employee because he has filed charges or given testimony under this Act." ... . . Section 7 of the Act, as amended, 61 Stat. 140, 29 U.S.C. 157, provides: "SEC. 7. Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection ... ." This case presents the issue whether an employer's retaliatory discharge of an employee who gave a written sworn statement to a National Labor Relations Board field examiner investigating an unfair labor practice charge filed against the employer, but who had not filed the charge or testified at a formal hearing on it, constitutes a violation of 8 (a) (1) or of 8 (a) (4) of the Act. The Board, with one member not participating, unanimously held that it was. 177 N. L. R. B. 504 (1969). The United States Court of Appeals for the Eighth Circuit, by a unanimous panel vote, held otherwise and denied enforcement. 435 F.2d 1296 (1971). The Court of Appeals did not reach other issues raised by the employer. We granted certiorari in order to review a decision that appeared to have an important impact upon the administration of the Act. .IThere is testimony in the record, credited by the trial examiner and adopted by the Board, to the following effect:The respondent Robert Scrivener is a small electrical contractor in Springfield, Missouri. He does business as an individual proprietor under the name of AA Electric Company. On March 18, 1968, five of Scrivener's six employees signed cards authorizing a union1 to represent them in collective bargaining. The next day business agent Moore advised Mr. Scrivener of the union's majority status and asked to negotiate a contract. Scrivener examined the cards, but refused the request.Mr. Scrivener then visited his jobsites and complained to his employees about their action. On March 20 he dismissed card-signers Cockrum, Smith, and Wilson, and hired Hunt, a journeyman, and Statton, a helper. Hunt had worked for Scrivener on prior occasions.On March 21 the union filed charges with the Board alleging that the company had violated 8 (a) (1), (3), and (5) of the Act. On March 26 the three dischargees returned to work. The next day, however, Cockrum and Smith again were released on the ground that there was a lack of work. The two new employees and Perryman, the sole nonsigner among the six original employees, were retained. Smith was again recalled on April 1 and, with the other card-signers, except Cockrum, continued to work until April 18.On April 17 a field examiner from the Board's regional office met with Mr. Scrivener and discussed the charges that had been filed. That evening the examiner interviewed the five card-signers at the union hall. He took affidavits or sworn statements from all except Cockrum who was not then working for Scrivener. On April 18 Scrivener inquired of at least two of the men whether they had met and been interviewed by the examiner the evening before. At the end of the day Scrivener dismissed the four who had given the statements; he did so with the explanation that he had no work for them to do. Perryman, Hunt, and Statton continued to work on the three houses and the 11-unit apartment building the company had under construction at the time.On May 13 the union filed an amended charge adding the allegation that the dismissal of the four men on April 18 was because they had given the statements to the examiner in connection with the earlier charge, and that this was a violation of 8 (a) (1) and 8 (a) (4). Three of the men returned to work in May or early June. The fourth was never recalled.A complaint was issued on both the original charge and the added allegation.IIThe Board, in agreement with the trial examiner, concluded that the April 18 dismissal of the four employees was "in retaliation against them for having met with and given evidence to a Board field examiner investigating unfair labor practice charges which had been filed against" Scrivener; that "[t]he investigation of charges filed is an integral and essential stage of Board proceedings"; and that this conduct violated 8 (a) (1) and 8 (a) (4). 177 N. L. R. B., at 504. The customary order to cease and desist, to reinstate the four employees with back pay, and to post notices was issued. The Board concluded, however, in disagreement with the trial examiner and with one member dissenting, "that it will not effectuate the policies of the Act for the Board to assert jurisdiction herein over the alleged independent and unrelated violations of Section 8 (a) (1), (3), and (5) of the Act," and dismissed those portions of the complaint. Id., at 504, 505.The Court of Appeals, per curiam, relying on its earlier decision in NLRB v. Ritchie Mfg. Co., 354 F.2d 90 (CA8 1965), held that 8 (a) (4) does not "encompass discharge of employees for giving written sworn statements to Board field examiners." In Ritchie the court had stated, "We are reluctant to hold that 8 (a) (4) can be extended to cover preliminary preparations for giving testimony." 354 F.2d, at 101.2 In the present case, the court refused to uphold the Board's finding that the challenged discharges violated 8 (a) (1) as well as 8 (a) (4) since "[t]o do so would be to overrule Ritchie implicitly, and we are not prepared to take that action." 435 F.2d, at 1297.IIIThe view of the Court of Appeals is that 8 (a) (4) of the Act serves to protect an employee against an employer's reprisal only for filing an unfair labor practice charge or for giving testimony at a formal hearing, and that it affords him no protection for otherwise participating in the investigative stage or, in particular, for giving an affidavit or sworn statement to the investigating field examiner.We disagree for several reasons.1. Construing 8 (a) (4) to protect the employee during the investigative stages, as well as in connection with the filing of a formal charge or the giving of formal testimony, comports with the objective of that section. Mr. Justice Black, in no uncertain terms, spelled out the congressional purpose:"Congress has made it clear that it wishes all persons with information about such practices to be completely free from coercion against reporting them to the Board. This is shown by its adoption of 8 (a) (4) which makes it an unfair labor practice for an employer to discriminate against an employee because he has filed charges. And it has been held that it is unlawful for an employer to seek to restrain an employee in the exercise of his right to file charges" (citations omitted). Nash v. Florida Industrial Comm'n, . This complete freedom is necessary, it has been said, "to prevent the Board's channels of information from being dried up by employer intimidation of prospective complainants and witnesses." John Hancock Mut. Life Ins. Co. v. NLRBApp. D.C. 261, 263, 191 F.2d 483, 485 (1951). It is also consistent with the fact that the Board does not initiate its own proceedings; implementation is dependent "upon the initiative of individual persons." Nash v. Florida Industrial Comm'n, supra, 389 U.S., at 238; NLRB v. Industrial Union of Marine & Shipbuilding Workers, .2. The Act's reference in 8 (a) (4) to an employee who "has filed charges or given testimony," could be read strictly and confined in its reach to formal charges and formal testimony. It can also be read more broadly. On textual analysis alone, the presence of the preceding words "to discharge or otherwise discriminate" reveals, we think, particularly by the word "otherwise," an intent on the part of Congress to afford broad rather than narrow protection to the employee. This would be consistent with 8 (a) (4)'s purpose and objective hereinabove described. A similar question with respect to the word "evidence" in 11 (1) and (2) of the Act, 29 U.S.C. 161 (1) and (2), was considered in NLRB v. Wyman-Gordon Co., , and was resolved by a broad and not a narrow construction.3 That precedent is pertinent here.3. This broad interpretation of 8 (a) (4) accords with the Labor Board's view entertained for more than 35 years. Section 8 (a) (4) had its origin in the National Industrial Recovery Act, 48 Stat. 195. Executive Order No. 6711, issued May 15, 1934, under that Act (10 NRA Codes of Fair Competition 949), provided, "No employer ... shall dismiss or demote any employee for making a complaint or giving evidence with respect to an alleged violation ... ." The first Labor Board interpreted that phrase to protect the employee not only as to formal testimony, but also as to the giving of information relating to violations of the NIRA. New York Rapid Transit Corp., 1 N. L. R. B. Dec. 192 (1934) (affidavits); Ralph A. Freundlich, Inc., 2 N. L. R. B. Dec. 147, 148 (1935) (state court testimony). In 8 (a) (4) the word "testimony," rather than "evidence," appears. But the new language was described as "merely a reiteration" of the Executive Order language and it was stated that the "need for this provision is attested" by the above-cited Board decisions. Comparison of S. 2926 (73d Cong.) and S. 1958 (74th Cong.), Senate Committee Print 29, 1 Leg. Hist. of National Labor Relations Act 1319, 1355 (1949).4 4. This interpretation, in our view, also squares with the practicalities of appropriate agency action. An employee who participates in a Board investigation may not be called formally to testify or may be discharged before any hearing at which he could testify. His contribution might be merely cumulative or the case may be settled or dismissed before hearing. Which employees receive statutory protection should not turn on the vagaries of the selection process or on other events that have no relation to the need for protection. It would make less than complete sense to protect the employee because he participates in the formal inception of the process (by filing a charge) or in the final, formal presentation, but not to protect his participation in the important developmental stages that fall between these two points in time. This would be unequal and inconsistent protection and is not the protection needed to preserve the integrity of the Board process in its entirety.5 5. The Board's subpoena power also supports this interpretation. Section 11 of the Act, 29 U.S.C. 161, gives the Board this power for "the purpose of all hearings and investigations." Once an employee has been subpoenaed he should be protected from retaliatory action regardless of whether he has filed a charge or has actually testified. Judge Lumbard pertinently described it: "It is, we think, a permissible inference that Congress intended the protection to be as broad as the [subpoena] power." Pedersen v. NLRB, 234 F.2d 417, 420 (CA2 1956). Under this reasoning, if employees of Scrivener had been subpoenaed, they would have been protected. There is no basis for denying similar protection to the voluntary participant.6. The approach to 8 (a) (4) generally has been a liberal one in order fully to effectuate the section's remedial purpose. In M & S Steel Co. v. NLRB, 353 F.2d 80 (CA5 1965), the court sustained the Board's finding, 148 N. L. R. B. 789, 792-795 (1964), that 8 (a) (4) was violated by the discharge of an employee, Williams, because he gave a statement to a field examiner. In NLRB v. Dal-Tex Optical Co., 310 F.2d 58, 60-61 (CA5 1962), the court sustained the Board, 131 N. L. R. B. 715, 721 (1961), in affording protection to an employee, Whitaker, who appeared but did not testify at a Board hearing. See John Hancock Mut. Life Ins. Co. v. NLRB, supra, and NLRB v. Syracuse Stamping Co., 208 F.2d 77, 79-80 (CA2 1953).6 We are aware of no substantial countervailing considerations. We therefore conclude that an employer's discharge of an employee because the employee gave a written sworn statement to a Board field examiner investigating an unfair labor practice charge filed against the employer constitutes a violation of 8 (a) (4) of the National Labor Relations Act.Having reached this conclusion, it is unnecessary for us to determine whether the employer's action is also a violation of 8 (a) (1), and we expressly refrain from so doing.IVA final comment about the jurisdictional aspects of the case is perhaps in order. The Board found that Scrivener's operations were too small to satisfy the Board's self-imposed and published $50,000 outflow-inflow jurisdictional standard for non-retail enterprises. See Siemons Mailing Service, 122 N. L. R. B. 81, 85 (1958). It also found, however, that Scrivener's operations were sufficient to "have an impact on and affect interstate commerce," 177 N. L. R. B., at 504, and thus were within the Board's statutory jurisdiction as defined by 10 (a) of the Act, 29 U.S.C. 160 (a). This prompted the Board to assert jurisdiction over the 8 (a) (1) and (4) claim of retaliation, but to refuse to exercise jurisdiction over the original 8 (a) (1), (3), and (5) claims on the ground that the latter would have "no immediate impact on the vindication of the right of an individual to resort to the Board's processes ... ." 177 N. L. R. B., at 505. Scrivener, as a consequence, complains that relief for him against a claimed unfair labor practice on the part of the union is unavailable.The employer's complaint of jurisdictional unfairness is understandable. See, however, Pedersen v. NLRB, supra, 234 F.2d 417. As we read the opinion of the Court of Appeals, this issue and that of the sufficiency of the evidence, and perhaps others, were not reached when that court decided the 8 (a) (4) issue as it did. We note that that court described the Board's jurisdiction to act as "marginal." 435 F.2d, at 1296. In any event, this and any other issues may be canvassed on remand.The judgment of the Court of Appeals is reversed and the case is remanded for further proceedings. It is so ordered.

After being declared a delinquent, petitioner was ordered to report for induction pursuant to Selective Service regulations, which permitted the ordering of a declared delinquent to report for induction even though he had not been found acceptable for military service. When petitioner did not report as ordered, he was prosecuted and convicted for failure to report for induction. Following a remand by the Court of Appeals for reconsideration in the light of the intervening decision of this Court in Gutknecht v. United States, , the District Court concluded that Gutknecht did not affect the conviction, and the Court of Appeals affirmed. While petitioner's petition for certiorari was pending in this Court, the Court of Appeals decided United States v. Fox, 454 F.2d 593, wherein on the authority of Gutknecht, that court reversed a conviction based on facts virtually identical to those on which petitioner's conviction was based. This Court subsequently denied certiorari in the petitioner's case. After beginning his sentence, petitioner brought this collateral proceeding under 28 U.S.C. 2255, asserting that the Court of Appeals in the Fox case had effected a change in the law of the Ninth Circuit after affirmance of his conviction and that the holding in Fox required that his conviction be set aside. The District Court summarily denied relief. The Court of Appeals affirmed on the ground that because petitioner had unsuccessfully litigated the Gutknecht issue on direct review, the court's earlier affirmance was "the law of the case" and precluded petitioner from securing relief under 2255 on the basis of an intervening change in law. Held: 1. Even though the legal issue raised in a prior direct appeal from petitioner's conviction was determined against petitioner, he is not precluded from raising the issue in a 2255 proceeding "if new law has been made ... since the trial and appeal." Kaufman v. United States, . Pp. 341-342. 2. The fact that petitioner's claim is grounded "in the laws of the United States" rather than in the Constitution does not preclude its assertion in a 2255 proceeding, particularly since 2255 permits a federal prisoner to assert a claim that his confinement is "in violation of the Constitution or laws of the United States." Sunal v. Large, , distinguished. Pp. 342-346. 3. The issue that petitioner raises is cognizable in a 2255 proceeding. Pp. 346-347. 472 F.2d 596, reversed and remanded.STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and DOUGLAS, BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., joined. POWELL, J., filed an opinion concurring in part and dissenting in part, post, p. 347. REHNQUIST, J., filed a dissenting opinion, post, p. 350.Marvin M. Karpatkin argued the cause for petitioner. With him on the briefs was Melvin L. Wulf.Edmund W. Kitch argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Petersen, Deputy Solicitor General Frey, Jerome M. Feit, and Frederick W. Read III.MR. JUSTICE STEWART delivered the opinion of the Court.This case involves the availability of collateral relief from a federal criminal conviction based upon an intervening change in substantive law. While the question presented is a relatively narrow one, it arises as the result of a rather complicated chain of events.IIn February 1965, the petitioner, Joseph Anthony Davis, was classified I-A by his draft board and ordered to report for a pre-induction physical examination. Davis failed to appear on the appointed date. He later informed his local board that his failure to report was due to illness. Although the board attempted to arrange a second date for the pre-induction physical, its attempts to communicate with the petitioner were frustrated by his failure to keep the board apprised of his correct mailing addresses. As a result, the local board's communications to the petitioner were returned to the board stamped "addressee unknown," and Davis again failed to report for the physical. In December 1965, the board sent the petitioner a warning that it was considering declaring him a delinquent because of his failure to report for the second pre-induction physical.1 This communication was also returned to the board stamped "addressee unknown."After another unsuccessful attempt to communicate with the petitioner, the local board declared him a delinquent, pursuant to 32 CFR 1642.4 (a) (1967),2 both because of his failure to report for the second preinduction physical and because of his failure to keep the local board informed of his current address.3 At the same time the board mailed the petitioner a delinquency notice. Shortly after the delinquency declaration, the board sent the petitioner an order directing him to report for induction into the Armed Forces. Once again, the order was returned to the board stamped "addressee unknown." Several months later, the board sent the petitioner a second order to report for induction. This time the order was mailed to a St. Paul, Minnesota, address that Davis had used when requesting a duplicate draft card. Although there was no indication that Davis did not receive the induction order, he once again failed to report as ordered. This second failure to report for induction resulted in the petitioner's prosecution and conviction under 50 U.S.C. App. 462 (a).4 At the time that the local board issued the second induction order, 32 CFR 1631.7 (a) (1967) provided that registrants could be ordered to report for induction only after they "[had] been found acceptable for service in the Armed Forces and ... the local board [had] mailed [them] a Statement of Acceptability ... at least 21 days before the date fixed for induction." Since, at the time of his induction order, Davis had not yet appeared for a physical examination to determine his acceptability, quite obviously neither one of these requirements was satisfied. The regulation, however, went on to provide that "a registrant classified in Class I-A or Class I-A-O who is a delinquent may be selected and ordered to report for induction to fill an induction call notwithstanding the fact that he has not been found acceptable for service in the Armed Forces and has not been mailed a Statement of Acceptability ... ." The only other registrants similarly excepted from these prerequisites were those who had volunteered for induction. In light of this proviso, the local board evidently concluded that the preconditions to induction stated in 1631.7 (a) were inapplicable to the petitioner, whom it had earlier declared to be a delinquent, and that it was thus free to issue an induction order to the petitioner.5 Davis appealed his conviction to the Court of Appeals for the Ninth Circuit. While that appeal was pending, this Court announced its decision in Gutknecht v. United States, . In Gutknecht a Selective Service registrant's induction had been accelerated because his local board had declared him a delinquent.6 When he failed to report for induction as ordered, he was prosecuted and convicted under 50 U.S.C. App. 462. The delinquent registrant's accelerated induction was ordered in accordance with another portion of 32 CFR 1631.7 (a) that, like the provision applicable to Davis, called for exceptional treatment for registrants whom a local board had declared delinquent. Local boards were authorized by 32 CFR 1642.4 to issue a declaration of delinquency "[w]henever a registrant ... failed to perform any duty or duties required of him under the selective service law," other than to report as ordered for induction or for civilian work. Both Davis and Gutknecht were declared delinquent on the authority of 1642.4.7 In Gutknecht, the Court held that the Selective Service regulations that accelerated the induction of delinquent registrants by shifting them to the first priority in the order of call were punitive in nature and, as such, were without legislative sanction.8 Accordingly, the Court concluded that the registrant could not be prosecuted for failure to comply with an induction order issued pursuant to these regulations.After Gutknecht, the Court of Appeals remanded the petitioner's case to the District Court "without limitation of scope but especially for consideration ... in the light of the intervening decision of Gutknecht v. United States." 432 F.2d 1009, 1010 (1970). On remand, the District Court, after conducting a hearing, concluded that the petitioner's induction had not been accelerated because of his delinquency status and that Gutknecht therefore did not affect his conviction.9 On appeal, the Court of Appeals affirmed. 447 F.2d 1376.While Davis' subsequent petition for certiorari was pending in this Court, the Court of Appeals for the Ninth Circuit decided United States v. Fox, 454 F.2d 593. The circumstances leading to Fox's induction order were virtually identical to those in the petitioner's case. Like Davis, "Fox was declared delinquent by his Selective Service Board ... for his failure to appear for preinduction physical examinations as ordered ... ." Ibid. Prior to receiving his induction order, "Fox ... was never found to be `acceptable for service' and he was [not] mailed a Statement of Acceptability ... at least 21 days before his induction date ... ." "[T]hus the only authority the Local Board had for its order to Fox to report for induction was the provision of 1631.7 (b)10 for delinquents to be called without a previous finding of acceptability or the mailing of a Statement of Acceptability 21 days before induction." Id., at 595. This was the same regulation on which the board's induction order to Davis had been predicated.At Fox's post-Gutknecht trial for failure to report for induction, "the government offered evidence ... to show that Fox's induction order was not accelerated by the declaration of delinquency." "The trial judge found no acceleration and convicted." Id., at 593-594. The Court of Appeals reversed Fox's conviction on the authority of Gutknecht. The court held that "Fox's induction was accelerated by the declaration of delinquency as a matter of law [because] [w]ithout the declaration, the Board could not have ordered him to report for induction." Id., at 594. Thus, the court concluded "that the [induction] order ... was illegal and created no duty on Fox's part to report for induction." Id., at 595.In opposing Davis' petition for certiorari, the Solicitor General conceded that "the holdings in Fox and in [Davis] are inconsistent," but nevertheless urged the Court to deny certiorari in that "the conflict is an intracircuit one ... [to] be resolved by the Ninth Circuit itself ... ." Supplemental Memorandum for the United States in Opposition 2 (No. 71-661, O. T. 1971). We denied Davis' petition for certiorari. .After an unsuccessful attempt to secure a rehearing in the Court of Appeals, Davis was remitted to federal custody to commence serving his three-year sentence. He then instituted the present collateral proceeding under 28 U.S.C. 2255, which permits "[a] prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... [to] move the court which imposed the sentence to vacate, set aside or correct the sentence." In his 2255 motion, Davis asserted that the Court of Appeals for the Ninth Circuit had in the Fox case effected a change in the law of that Circuit after the affirmance of his conviction, and that its holding in Fox required his conviction to be set aside. The District Court summarily denied the petitioner's motion.11 On appeal, the Court of Appeals affirmed without considering the merits of the petitioner's claim on the ground that "[t]he decision on the direct appeal is the law of the case," and that therefore any "new law, or change in law" resulting from its decision in United States v. Fox would "not [be] applied in this circuit under circumstances such as here presented." 472 F.2d 596. Because the case presents a seemingly important question concerning the extent to which relief under 28 U.S.C. 2255 is available by reason of an intervening change in law, we granted certiorari. .IIThe sole issue before the Court in the present posture of this case is the propriety of the Court of Appeals' judgment that a change in the law of that Circuit after the petitioner's conviction may not be successfully asserted by him in a 2255 proceeding.12 Thus, our inquiry is confined to the availability of a 2255 proceeding for the resolution of Davis' claim to relief from his conviction.Because the petitioner had unsuccessfully litigated the Gutknecht issue on direct review, the Court of Appeals held that its earlier affirmance was "the law of the case" and precluded the petitioner from asserting on collateral attack his claim that its Fox decision had subsequently changed the law of the Ninth Circuit on that issue. In this Court, the Solicitor General's brief concedes that the opinion of the Court of Appeals in this regard "is not consonant with this Court's holding in Sanders v. United States, ."13 In Sanders, the Court held, inter alia, that even though the legal issue raised in a 2255 motion "was determined against [the applicant] on the merits on a prior application," "the applicant may [nevertheless] be entitled to a new hearing upon showing an intervening change in the law ... ." Sanders v. United States, . The same rule applies when the prior determination was made on direct appeal from the applicant's conviction, instead of in an earlier 2255 proceeding, "if new law has been made ... since the trial and appeal." Kaufman v. United States, . Thus, the Court of Appeals erred in holding that "the law of the case," as determined in the earlier appeal from the petitioner's conviction, precluded him from securing relief under 2255 on the basis of an intervening change in law.Nevertheless, the Solicitor General contends that we should affirm the judgment of the Court of Appeals because the petitioner's claim is not "of constitutional dimension" (Brief for United States 34) and thus is not cognizable in a 2255 collateral proceeding. At the outset, we note that the Government's position finds scant support in the text of 2255, which permits a federal prisoner to assert a claim that his confinement is "in violation of the Constitution or laws of the United States." (Emphasis added.)It is argued forcefully in a dissenting opinion today that this language, which appears in the first paragraph of 2255, is somehow qualified by the third paragraph of the statute, which provides:"If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate." The dissent of MR. JUSTICE REHNQUIST rejects any suggestion that the language concerning "sentence[s] ... otherwise open to collateral attack" can encompass a claim that a confinement under that sentence violates the "laws of the United States," contending that this would reduce the remaining language regarding "a denial or infringement of constitutional rights" to surplusage. Indeed, the nub of the dissent is that 2255 "does not speak of an illegal `confinement' ... or even of an illegal conviction, but rather of illegal sentences." Post, at 356. (Emphasis in original.) Although this microscopic analysis of 2255 surely shows that the statutory language is somewhat lacking in precision, the resulting shadow that the dissenting opinion would cast over the statute totally disappears in the light of its legislative history.That history makes clear that 2255 was intended to afford federal prisoners a remedy identical in scope to federal habeas corpus. As the Court pointed out in United States v. Hayman, , the "history of Section 2255 shows that it was passed at the instance of the Judicial Conference to meet practical difficulties that had arisen in administering the habeas corpus jurisdiction of the federal courts. Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners' rights of collateral attack upon their convictions. On the contrary, the sole purpose was to minimize the difficulties encountered in habeas corpus hearings by affording the same rights in another and more convenient forum." Thus, there can be no doubt that the grounds for relief under 2255 are equivalent to those encompassed by 2254, the general federal habeas corpus statute, under which relief is available on the ground that "[a person] is in custody in violation of the Constitution or laws or treaties of the United States." (Emphasis added.) Furthermore, although the dissent of MR. JUSTICE REHNQUIST derides the view that the words "otherwise open to collateral attack" are intended to be "a catch-all phrase," post, at 358, the legislative history fully supports that view. In recommending to Congress what eventually became 2255, the Judicial Conference Committee on Habeas Corpus Procedure stated that "[t]he motion remedy broadly covers all situations where the sentence is `open to collateral attack.' As a remedy, it is intended to be as broad as habeas corpus."14 No microscopic reading of 2255 can escape either the clear and simple language of 2254 authorizing habeas corpus relief "on the ground that [the prisoner] is in custody in violation of the ... laws ... of the United States" or the unambiguous legislative history showing that 2255 was intended to mirror 2254 in operative effect. Thus, we cannot agree that the third paragraph of 2255 was in any fashion designed to mark a retreat from the clear statement that 2255 encompasses a prisoner's claim of "the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States." Accordingly, we conclude that the text of the statute cannot sustain the Government's position that only claims "of constitutional dimension" are cognizable under 2255.Moreover, there is no support in the prior holdings of this Court for the proposition that a claim is not cognizable under 2255 merely because it is grounded in the "laws of the United States" rather than the Constitution. It is true, of course, that in Sunal v. Large, , the Court held that the nonconstitutional claim in that case could not be asserted to set aside a conviction on collateral attack. But Sunal was merely an example of "the general rule ... that the writ of habeas corpus will not be allowed to do service for an appeal." Id., at 178. "Appeals could have been taken in these cases, but they were not." Id., at 177. The Court was careful to point out that "if Sunal and Kulick had pursued the appellate course and failed, their cases would be quite different. But since they chose not to pursue the remedy which they had, we do not think they should now be allowed to justify their failure by saying they deemed any appeal futile." Id., at 181. Moreover, "[t]he case [was] not one where the law was changed after the time for appeal had expired." Ibid. Thus, Sunal cannot be read to stand for the broad proposition that nonconstitutional claims can never be asserted in collateral attacks upon criminal convictions.15 Rather, the implication would seem to be that, absent the particular considerations regarded as dispositive in that case, the fact that a contention is grounded not in the Constitution, but in the "laws of the United States" would not preclude its assertion in a 2255 proceeding.This is not to say, however, that every asserted error of law can be raised on a 2255 motion. In Hill v. United States, , for example, we held that "collateral relief is not available when all that is shown is a failure to comply with the formal requirements" of a rule of criminal procedure in the absence of any indication that the defendant was prejudiced by the asserted technical error. We suggested that the appropriate inquiry was whether the claimed error of law was "a fundamental defect which inherently results in a complete miscarriage of justice," and whether "[i]t ... present[s] exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent." Id., at 428 (internal quotation marks omitted). The Court did not suggest that any line could be drawn on the basis of whether the claim had its source in the Constitution or in the "laws of the United States."In this case, the petitioner's contention is that the decision in Gutknecht v. United States, as interpreted and applied by the Court of Appeals for the Ninth Circuit in the Fox case after his conviction was affirmed, establishes that his induction order was invalid under the Selective Service Act and that he could not be lawfully convicted for failure to comply with that order. If this contention is well taken, then Davis' conviction and punishment are for an act that the law does not make criminal. There can be no room for doubt that such a circumstance "inherently results in a complete miscarriage of justice" and "present[s] exceptional circumstances" that justify collateral relief under 2255. Therefore, although we express no view on the merits of the petitioner's claim, we hold that the issue he raises is cognizable in a 2255 proceeding.The judgment of the Court of Appeals is accordingly reversed and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

In this state negligence and deceit lawsuit, a jury found that Jesse Williams' death was caused by smoking and that petitioner Philip Morris, which manufactured the cigarettes he favored, knowingly and falsely led him to believe that smoking was safe. In respect to deceit, it awarded $821,000 in compensatory damages and $79.5 million in punitive damages to respondent, the personal representative of Williams' estate. The trial court reduced the latter award, but it was restored by the Oregon Court of Appeals. The State Supreme Court rejected Philip Morris' arguments that the trial court should have instructed the jury that it could not punish Philip Morris for injury to persons not before the court, and that the roughly 100-to-1 ratio the $79.5 million award bore to the compensatory damages amount indicated a "grossly excessive" punitive award. Held: 1. A punitive damages award based in part on a jury's desire to punish a defendant for harming nonparties amounts to a taking of property from the defendant without due process. Pp. 4-10. (a) While "[p]unitive damages may properly be imposed to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition," BMW of North America, Inc. v. Gore, 517 U. S. 559, 568, unless a State insists upon proper standards to cabin the jury's discretionary authority, its punitive damages system may deprive a defendant of "fair notice ... of the severity of the penalty that a State may impose," id., at 574; may threaten "arbitrary punishments," State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408, 416; and, where the amounts are sufficiently large, may impose one State's (or one jury's) "policy choice" upon "neighboring States" with different public policies, BMW, supra, at 571-572. Thus, the Constitution imposes limits on both the procedures for awarding punitive damages and amounts forbidden as "grossly excessive." See Honda Motor Co. v. Oberg, 512 U. S. 415, 432. The Constitution's procedural limitations are considered here. Pp. 4-5. (b) The Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury inflicted on strangers to the litigation. For one thing, a defendant threatened with punishment for such injury has no opportunity to defend against the charge. See Lindsey v. Normet, 405 U. S. 56, 66. For another, permitting such punishment would add a near standardless dimension to the punitive damages equation and magnify the fundamental due process concerns of this Court's pertinent cases — arbitrariness, uncertainty, and lack of notice. Finally, the Court finds no authority to support using punitive damages awards to punish a defendant for harming others. BMW, supra, at 568, n.11, distinguished. Respondent argues that showing harm to others is relevant to a different part of the punitive damages constitutional equation, namely, reprehensibility. While evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk to the general public, and so was particularly reprehensible, a jury may not go further and use a punitive damages verdict to punish a defendant directly for harms to those nonparties. Given the risks of unfairness, it is constitutionally important for a court to provide assurance that a jury is asking the right question; and given the risks of arbitrariness, inadequate notice, and imposing one State's policies on other States, it is particularly important that States avoid procedure that unnecessarily deprives juries of proper legal guidance. Pp. 5-8. (c) The Oregon Supreme Court's opinion focused on more than reprehensibility. In rejecting Philip Morris' claim that the Constitution prohibits using punitive damages to punish a defendant for harm to nonparties, it made three statements. The first — that this Court held in State Farm only that a jury could not base an award on dissimilar acts of a defendant — was correct, but this Court now explicitly holds that a jury may not punish for harm to others. This Court disagrees with the second statement — that if a jury cannot punish for the conduct, there is no reason to consider it — since the Due Process Clause prohibits a State's inflicting punishment for harm to nonparties, but permits a jury to consider such harm in determining reprehensibility. The third statement — that it is unclear how a jury could consider harm to nonparties and then withhold that consideration from the punishment calculus — raises the practical problem of how to know whether a jury punished the defendant for causing injury to others rather than just took such injury into account under the rubric of reprehensibility. The answer is that state courts cannot authorize procedures that create an unreasonable and unnecessary risk of any such confusion occurring. Although States have some flexibility in determining what kind of procedures to implement to protect against that risk, federal constitutional law obligates them to provide some form of protection where the risk of misunderstanding is a significant one. Pp. 8-10. 2. Because the Oregon Supreme Court's application of the correct standard may lead to a new trial, or a change in the level of the punitive damages award, this Court will not consider the question whether the award is constitutionally "grossly excessive." P. 10.340 Ore. 35, 127 P. 3d 1165, vacated and remanded. Breyer, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Souter, and Alito, JJ., joined. Stevens, J., and Thomas, J., filed dissenting opinions. Ginsburg, J., filed a dissenting opinion, in which Scalia and Thomas, JJ., joined.PHILIP MORRIS USA, PETITIONER v. MAYOLAWILLIAMS, personal representative of theESTATE OF JESSE D. WILLIAMS,DECEASEDon writ of certiorari to the supreme court of oregon[February 20, 2007] Justice Breyer delivered the opinion of the Court. The question we address today concerns a large state-court punitive damages award. We are asked whether the Constitution's Due Process Clause permits a jury to base that award in part upon its desire to punish the defendant for harming persons who are not before the court (e.g., victims whom the parties do not represent). We hold that such an award would amount to a taking of "property" from the defendant without due process.I This lawsuit arises out of the death of Jesse Williams, a heavy cigarette smoker. Respondent, Williams' widow, represents his estate in this state lawsuit for negligence and deceit against Philip Morris, the manufacturer of Marlboro, the brand that Williams favored. A jury found that Williams' death was caused by smoking; that Williams smoked in significant part because he thought it was safe to do so; and that Philip Morris knowingly and falsely led him to believe that this was so. The jury ultimately found that Philip Morris was negligent (as was Williams) and that Philip Morris had engaged in deceit. In respect to deceit, the claim at issue here, it awarded compensatory damages of about $821,000 (about $21,000 economic and $800,000 noneconomic) along with $79.5 million in punitive damages. The trial judge subsequently found the $79.5 million punitive damages award "excessive," see, e.g., BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996), and reduced it to $32 million. Both sides appealed. The Oregon Court of Appeals rejected Philip Morris' arguments and restored the $79.5 million jury award. Subsequently, Philip Morris sought review in the Oregon Supreme Court (which denied review) and then here. We remanded the case in light of State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408 (2003). 540 U. S. 801 (2003). The Oregon Court of Appeals adhered to its original views. And Philip Morris sought, and this time obtained, review in the Oregon Supreme Court. Philip Morris then made two arguments relevant here. First, it said that the trial court should have accepted, but did not accept, a proposed "punitive damages" instruction that specified the jury could not seek to punish Philip Morris for injury to other persons not before the court. In particular, Philip Morris pointed out that the plaintiff 's attorney had told the jury to "think about how many other Jesse Williams in the last 40 years in the State of Oregon there have been. ... In Oregon, how many people do we see outside, driving home ... smoking cigarettes? ... [C]igarettes ... are going to kill ten [of every hundred]. [And] the market share of Marlboros [i.e., Philip Morris] is one-third [i.e., one of every three killed]." App. 197a, 199a. In light of this argument, Philip Morris asked the trial court to tell the jury that "you may consider the extent of harm suffered by others in determining what [the] reasonable relationship is" between any punitive award and "the harm caused to Jesse Williams" by Philip Morris' misconduct, "[but] you are not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own in which other juries can resolve their claims ... ." Id., at 280a. The judge rejected this proposal and instead told the jury that "[p]unitive damages are awarded against a defendant to punish misconduct and to deter misconduct," and "are not intended to compensate the plaintiff or anyone else for damages caused by the defendant's conduct." Id., at 283a. In Philip Morris' view, the result was a significant likelihood that a portion of the $79.5 million award represented punishment for its having harmed others, a punishment that the Due Process Clause would here forbid. Second, Philip Morris pointed to the roughly 100-to-1 ratio the $79.5 million punitive damages award bears to $821,000 in compensatory damages. Philip Morris noted that this Court in BMW emphasized the constitutional need for punitive damages awards to reflect (1) the "reprehensibility" of the defendant's conduct, (2) a "reasonable relationship" to the harm the plaintiff (or related victim) suffered, and (3) the presence (or absence) of "sanctions," e.g., criminal penalties, that state law provided for comparable conduct, 517 U. S., at 575-585. And in State Farm, this Court said that the longstanding historical practice of setting punitive damages at two, three, or four times the size of compensatory damages, while "not binding," is "instructive," and that "[s]ingle-digit multipliers are more likely to comport with due process." 538 U. S., at 425. Philip Morris claimed that, in light of this case law, the punitive award was "grossly excessive." See TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443, 458 (1993) (plurality opinion); BMW, supra, at 574-575; State Farm, supra, at 416-417. The Oregon Supreme Court rejected these and other Philip Morris arguments. In particular, it rejected Philip Morris' claim that the Constitution prohibits a state jury "from using punitive damages to punish a defendant for harm to nonparties." 340 Ore. 35, 51-52, 127 P. 3d 1165, 1175 (2006). And in light of Philip Morris' reprehensible conduct, it found that the $79.5 million award was not "grossly excessive." Id., at 63-64, 127 P. 3d, at 1181-1182. Philip Morris then sought certiorari. It asked us to consider, among other things, (1) its claim that Oregon had unconstitutionally permitted it to be punished for harming nonparty victims; and (2) whether Oregon had in effect disregarded "the constitutional requirement that punitive damages be reasonably related to the plaintiff's harm." Pet. for Cert. (I). We granted certiorari limited to these two questions. For reasons we shall set forth, we consider only the first of these questions. We vacate the Oregon Supreme Court's judgment, and we remand the case for further proceedings.II This Court has long made clear that "[p]unitive damages may properly be imposed to further a State's legitimate interests in punishing unlawful conduct and deterring its repetition." BMW, supra, at 568. See also Gertz v. Robert Welch, Inc., 418 U. S. 323, 350 (1974); Newport v. Fact Concerts, Inc., 453 U. S. 247, 266-267 (1981); Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 22 (1991). At the same time, we have emphasized the need to avoid an arbitrary determination of an award's amount. Unless a State insists upon proper standards that will cabin the jury's discretionary authority, its punitive damages system may deprive a defendant of "fair notice ... of the severity of the penalty that a State may impose," BMW, supra, at 574; it may threaten "arbitrary punishments," i.e., punishments that reflect not an "application of law" but "a decisionmaker's caprice," State Farm, supra, at 416, 418 (internal quotation marks omitted); and, where the amounts are sufficiently large, it may impose one State's (or one jury's) "policy choice," say as to the conditions under which (or even whether) certain products can be sold, upon "neighboring States" with different public policies, BMW, supra, at 571-572. For these and similar reasons, this Court has found that the Constitution imposes certain limits, in respect both to procedures for awarding punitive damages and to amounts forbidden as "grossly excessive." See Honda Motor Co. v. Oberg, 512 U. S. 415, 432 (1994) (requiring judicial review of the size of punitive awards); Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U. S. 424, 443 (2001) (review must be de novo); BMW, supra, at 574-585 (excessiveness decision depends upon the reprehensibility of the defendant's conduct, whether the award bears a reasonable relationship to the actual and potential harm caused by the defendant to the plaintiff, and the difference between the award and sanctions "authorized or imposed in comparable cases"); State Farm, supra, at 425 (excessiveness more likely where ratio exceeds single digits). Because we shall not decide whether the award here at issue is "grossly excessive," we need now only consider the Constitution's procedural limitations.III In our view, the Constitution's Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation. For one thing, the Due Process Clause prohibits a State from punishing an individual without first providing that individual with "an opportunity to present every available defense." Lindsey v. Normet, 405 U. S. 56, 66 (1972) (internal quotation marks omitted). Yet a defendant threatened with punishment for injuring a nonparty victim has no opportunity to defend against the charge, by showing, for example in a case such as this, that the other victim was not entitled to damages because he or she knew that smoking was dangerous or did not rely upon the defendant's statements to the contrary. For another, to permit punishment for injuring a nonparty victim would add a near standardless dimension to the punitive damages equation. How many such victims are there? How seriously were they injured? Under what circumstances did injury occur? The trial will not likely answer such questions as to nonparty victims. The jury will be left to speculate. And the fundamental due process concerns to which our punitive damages cases refer — risks of arbitrariness, uncertainty and lack of notice — will be magnified. State Farm, 538 U. S., at 416, 418; BMW, 517 U. S., at 574. Finally, we can find no authority supporting the use of punitive damages awards for the purpose of punishing a defendant for harming others. We have said that it may be appropriate to consider the reasonableness of a punitive damages award in light of the potential harm the defendant's conduct could have caused. But we have made clear that the potential harm at issue was harm potentially caused the plaintiff. See State Farm, supra, at 424 ("[W]e have been reluctant to identify concrete constitutional limits on the ratio between harm, or potential harm, to the plaintiff and the punitive damages award" (emphasis added)). See also TXO, 509 U. S., at 460-462 (plurality opinion) (using same kind of comparison as basis for finding a punitive award not unconstitutionally excessive). We did use the term "error-free" (in BMW) to describe a lower court punitive damages calculation that likely included harm to others in the equation. 517 U. S., at 568, n. 11. But context makes clear that the term "error-free" in the BMW footnote referred to errors relevant to the case at hand. Although elsewhere in BMW we noted that there was no suggestion that the plaintiff "or any other BMW purchaser was threatened with any additional potential harm" by the defendant's conduct, we did not purport to decide the question of harm to others. Id., at 582. Rather, the opinion appears to have left the question open. Respondent argues that she is free to show harm to other victims because it is relevant to a different part of the punitive damages constitutional equation, namely, reprehensibility. That is to say, harm to others shows more reprehensible conduct. Philip Morris, in turn, does not deny that a plaintiff may show harm to others in order to demonstrate reprehensibility. Nor do we. Evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible — although counsel may argue in a particular case that conduct resulting in no harm to others nonetheless posed a grave risk to the public, or the converse. Yet for the reasons given above, a jury may not go further than this and use a punitive damages verdict to punish a defendant directly on account of harms it is alleged to have visited on nonparties. Given the risks of unfairness that we have mentioned, it is constitutionally important for a court to provide assurance that the jury will ask the right question, not the wrong one. And given the risks of arbitrariness, the concern for adequate notice, and the risk that punitive damages awards can, in practice, impose one State's (or one jury's) policies (e.g., banning cigarettes) upon other States — all of which accompany awards that, today, may be many times the size of such awards in the 18th and 19th centuries, see id., at 594-595 (Breyer, J., concurring)--it is particularly important that States avoid procedure that unnecessarily deprives juries of proper legal guidance. We therefore conclude that the Due Process Clause requires States to provide assurance that juries are not asking the wrong question, i.e., seeking, not simply to determine reprehensibility, but also to punish for harm caused strangers.IV Respondent suggests as well that the Oregon Supreme Court, in essence, agreed with us, that it did not authorize punitive damages awards based upon punishment for harm caused to nonparties. We concede that one might read some portions of the Oregon Supreme Court's opinion as focusing only upon reprehensibility. See, e.g., 340 Ore., at 51, 127 P. 3d, at 1175 ("[T]he jury could consider whether Williams and his misfortune were merely exemplars of the harm that Philip Morris was prepared to inflict on the smoking public at large"). But the Oregon court's opinion elsewhere makes clear that that court held more than these few phrases might suggest. The instruction that Philip Morris said the trial court should have given distinguishes between using harm to others as part of the "reasonable relationship" equation (which it would allow) and using it directly as a basis for punishment. The instruction asked the trial court to tell the jury that "you may consider the extent of harm suffered by others in determining what [the] reasonable relationship is" between Philip Morris' punishable misconduct and harm caused to Jesse Williams, "[but] you are not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own in which other juries can resolve their claims ... ." App. 280a (emphasis added). And as the Oregon Supreme Court explicitly recognized, Philip Morris argued that the Constitution "prohibits the state, acting through a civil jury, from using punitive damages to punish a defendant for harm to nonparties." 340 Ore., at 51-52, 127 P. 3d, at 1175. The court rejected that claim. In doing so, it pointed out (1) that this Court in State Farm had held only that a jury could not base its award upon "dissimilar" acts of a defendant. 340 Ore., at 52-53, 127 P. 3d, at 1175-1176. It added (2) that "[i]f a jury cannot punish for the conduct, then it is difficult to see why it may consider it at all." Id., at 52, n. 3, 127 P. 3d, at 1175, n. 3. And it stated (3) that "[i]t is unclear to us how a jury could 'consider' harm to others, yet withhold that consideration from the punishment calculus." Ibid. The Oregon court's first statement is correct. We did not previously hold explicitly that a jury may not punish for the harm caused others. But we do so hold now. We do not agree with the Oregon court's second statement. We have explained why we believe the Due Process Clause prohibits a State's inflicting punishment for harm caused strangers to the litigation. At the same time we recognize that conduct that risks harm to many is likely more reprehensible than conduct that risks harm to only a few. And a jury consequently may take this fact into account in determining reprehensibility. Cf., e.g., Witte v. United States, 515 U. S. 389, 400 (1995) (recidivism statutes taking into account a criminal defendant's other misconduct do not impose an " 'additional penalty for the earlier crimes,' but instead ... 'a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one' " (quoting Gryger v. Burke, 334 U. S. 728, 732 (1948))). The Oregon court's third statement raises a practical problem. How can we know whether a jury, in taking account of harm caused others under the rubric of reprehensibility, also seeks to punish the defendant for having caused injury to others? Our answer is that state courts cannot authorize procedures that create an unreasonable and unnecessary risk of any such confusion occurring. In particular, we believe that where the risk of that misunderstanding is a significant one — because, for instance, of the sort of evidence that was introduced at trial or the kinds of argument the plaintiff made to the jury — a court, upon request, must protect against that risk. Although the States have some flexibility to determine what kind of procedures they will implement, federal constitutional law obligates them to provide some form of protection in appropriate cases.V As the preceding discussion makes clear, we believe that the Oregon Supreme Court applied the wrong constitutional standard when considering Philip Morris' appeal. We remand this case so that the Oregon Supreme Court can apply the standard we have set forth. Because the application of this standard may lead to the need for a new trial, or a change in the level of the punitive damages award, we shall not consider whether the award is constitutionally "grossly excessive." We vacate the Oregon Supreme Court's judgment and remand the case for further proceedings not inconsistent with this opinion.It is so ordered.PHILIP MORRIS USA, PETITIONER v. MAYOLA WILLIAMS, personal representative of the ESTATE OF JESSE D. WILLIAMS, DECEASEDon writ of certiorari to the supreme court of oregon[February 20, 2007] Justice Stevens, dissenting. The Due Process Clause of the Fourteenth Amendment imposes both substantive and procedural constraints on the power of the States to impose punitive damages on tortfeasors. See State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408 (2003); Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U. S. 424 (2001); BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996); Honda Motor Co. v. Oberg, 512 U. S. 415 (1994); TXO Production Corp. v. Alliance Resources Corp., 509 U. S. 443 (1993). I remain firmly convinced that the cases announcing those constraints were correctly decided. In my view the Oregon Supreme Court faithfully applied the reasoning in those opinions to the egregious facts disclosed by this record. I agree with Justice Ginsburg's explanation of why no procedural error even arguably justifying reversal occurred at the trial in this case. See post, p. ___. Of greater importance to me, however, is the Court's imposition of a novel limit on the State's power to impose punishment in civil litigation. Unlike the Court, I see no reason why an interest in punishing a wrongdoer "for harming persons who are not before the court," ante, at 1, should not be taken into consideration when assessing the appropriate sanction for reprehensible conduct. Whereas compensatory damages are measured by the harm the defendant has caused the plaintiff, punitive damages are a sanction for the public harm the defendant's conduct has caused or threatened. There is little difference between the justification for a criminal sanction, such as a fine or a term of imprisonment, and an award of punitive damages. See Cooper Industries, 532 U. S., at 432. In our early history either type of sanction might have been imposed in litigation prosecuted by a private citizen. See Steel Co. v. Citizens for Better Environment, 523 U. S. 83, 127-128 (1998) (Stevens, J., concurring in judgment). And while in neither context would the sanction typically include a pecuniary award measured by the harm that the conduct had caused to any third parties, in both contexts the harm to third parties would surely be a relevant factor to consider in evaluating the reprehensibility of the defendant's wrongdoing. We have never held otherwise. In the case before us, evidence attesting to the possible harm the defendant's extensive deceitful conduct caused other Oregonians was properly presented to the jury. No evidence was offered to establish an appropriate measure of damages to compensate such third parties for their injuries, and no one argued that the punitive damages award would serve any such purpose. To award compensatory damages to remedy such third-party harm might well constitute a taking of property from the defendant without due process, see ante, at 1. But a punitive damages award, instead of serving a compensatory purpose, serves the entirely different purposes of retribution and deterrence that underlie every criminal sanction. State Farm, 538 U. S., at 416. This justification for punitive damages has even greater salience when, as in this case, see Ore. Rev. Stat. §31.735(1) (2003), the award is payable in whole or in part to the State rather than to the private litigant.1 While apparently recognizing the novelty of its holding, ante, at 9, the majority relies on a distinction between taking third-party harm into account in order to assess the reprehensibility of the defendant's conduct — which is permitted — from doing so in order to punish the defendant "directly"--which is forbidden. Ante, at 7. This nuance eludes me. When a jury increases a punitive damages award because injuries to third parties enhanced the reprehensibility of the defendant's conduct, the jury is by definition punishing the defendant — directly — for third-party harm.2 A murderer who kills his victim by throwing a bomb that injures dozens of bystanders should be punished more severely than one who harms no one other than his intended victim. Similarly, there is no reason why the measure of the appropriate punishment for engaging in a campaign of deceit in distributing a poisonous and addictive substance to thousands of cigarette smokers statewide should not include consideration of the harm to those "bystanders" as well as the harm to the individual plaintiff. The Court endorses a contrary conclusion without providing us with any reasoned justification. It is far too late in the day to argue that the Due Process Clause merely guarantees fair procedure and imposes no substantive limits on a State's lawmaking power. See, e.g., Moore v. East Cleveland, 431 U. S. 494, 544 (1977) (White, J., dissenting); Poe v. Ullman, 367 U. S. 497, 540-541 (1961) (Harlan, J., dissenting); Whitney v. California, 274 U. S. 357, 373 (1927) (Brandeis, J., concurring). It remains true, however, that the Court should be "reluctant to expand the concept of substantive due process because guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended." Collins v. Harker Heights, 503 U. S. 115, 125 (1992). Judicial restraint counsels us to "exercise the utmost care whenever we are asked to break new ground in this field." Ibid. Today the majority ignores that sound advice when it announces its new rule of substantive law. Essentially for the reasons stated in the opinion of the Supreme Court of Oregon, I would affirm its judgment.PHILIP MORRIS USA, PETITIONER v. MAYOLA WILLIAMS, personal representative of the ESTATE OF JESSE D. WILLIAMS, DECEASEDon writ of certiorari to the supreme court of oregon[February 20, 2007] Justice Thomas, dissenting. I join Justice Ginsburg's dissent in full. I write separately to reiterate my view that " 'the Constitution does not constrain the size of punitive damages awards.' " State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408, 429-430 (2003) (Thomas, J., dissenting) (quoting Cooper Industries, Inc. v. Leatherman Tool Group, Inc., 532 U. S. 424, 443 (2001) (Thomas, J., concurring)). It matters not that the Court styles today's holding as "procedural" because the "procedural" rule is simply a confusing implementation of the substantive due process regime this Court has created for punitive damages. See Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 26-27 (1991) (Scalia, J., concurring in judgment) ("In 1868 ... punitive damages were undoubtedly an established part of the American common law of torts. It is ... clear that no particular procedures were deemed necessary to circumscribe a jury's discretion regarding the award of such damages, or their amount"). Today's opinion proves once again that this Court's punitive damages jurisprudence is "insusceptible of principled application." BMW of North America, Inc. v. Gore, 517 U. S. 559, 599 (1996) (Scalia, J., joined by Thomas, J., dissenting).PHILIP MORRIS USA, PETITIONER v. MAYOLA WILLIAMS, personal representative of the ESTATE OF JESSE D. WILLIAMS, DECEASEDon writ of certiorari to the supreme court of oregon[February 20, 2007] Justice Ginsburg, with whom Justice Scalia and Justice Thomas join, dissenting. The purpose of punitive damages, it can hardly be denied, is not to compensate, but to punish. Punish for what? Not for harm actually caused "strangers to the litigation," ante, at 5, the Court states, but for the reprehensibility of defendant's conduct, ante, at 7-8. "[C]onduct that risks harm to many," the Court observes, "is likely more reprehensible than conduct that risks harm to only a few." Ante, at 9. The Court thus conveys that, when punitive damages are at issue, a jury is properly instructed to consider the extent of harm suffered by others as a measure of reprehensibility, but not to mete out punishment for injuries in fact sustained by nonparties. Ante, at 7-9. The Oregon courts did not rule otherwise. They have endeavored to follow our decisions, most recently in BMW of North America, Inc. v. Gore, 517 U. S. 559 (1996), and State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U. S. 408 (2003), and have "deprive[d] [no jury] of proper legal guidance," ante, at 7. Vacation of the Oregon Supreme Court's judgment, I am convinced, is unwarranted. The right question regarding reprehensibility, the Court acknowledges, ante, at 8, would train on "the harm that Philip Morris was prepared to inflict on the smoking public at large." Ibid. (quoting 340 Ore. 35, 51, 127 P. 3d 1165, 1175 (2006)). See also 340 Ore., at 55, 127 P. 3d, at 1177 ("[T]he jury, in assessing the reprehensibility of Philip Morris's actions, could consider evidence of similar harm to other Oregonians caused (or threatened) by the same conduct." (emphasis added)). The Court identifies no evidence introduced and no charge delivered inconsistent with that inquiry. The Court's order vacating the Oregon Supreme Court's judgment is all the more inexplicable considering that Philip Morris did not preserve any objection to the charges in fact delivered to the jury, to the evidence introduced at trial, or to opposing counsel's argument. The sole objection Philip Morris preserved was to the trial court's refusal to give defendant's requested charge number 34. See id., at 54, 127 P. 3d, at 1176. The proposed instruction read in pertinent part: "If you determine that some amount of punitive damages should be imposed on the defendant, it will then be your task to set an amount that is appropriate. This should be such amount as you believe is necessary to achieve the objectives of deterrence and punishment. While there is no set formula to be applied in reaching an appropriate amount, I will now advise you of some of the factors that you may wish to consider in this connection."(1) The size of any punishment should bear a reasonable relationship to the harm caused to Jesse Williams by the defendant's punishable misconduct. Although you may consider the extent of harm suffered by others in determining what that reasonable relationship is, you are not to punish the defendant for the impact of its alleged misconduct on other persons, who may bring lawsuits of their own in which other juries can resolve their claims and award punitive damages for those harms, as such other juries see fit.. . . . ."(2) The size of the punishment may appropriately reflect the degree of reprehensibility of the defendant's conduct — that is, how far the defendant has departed from accepted societal norms of conduct." App. 280a.Under that charge, just what use could the jury properly make of "the extent of harm suffered by others"? The answer slips from my grasp. A judge seeking to enlighten rather than confuse surely would resist delivering the requested charge. The Court ventures no opinion on the propriety of the charge proposed by Philip Morris, though Philip Morris preserved no other objection to the trial proceedings. Rather than addressing the one objection Philip Morris properly preserved, the Court reaches outside the bounds of the case as postured when the trial court entered its judgment. I would accord more respectful treatment to the proceedings and dispositions of state courts that sought diligently to adhere to our changing, less than crystalline precedent.* * * For the reasons stated, and in light of the abundant evidence of "the potential harm [Philip Morris'] conduct could have caused," ante, at 6 (emphasis deleted), I would affirm the decision of the Oregon Supreme Court.FOOTNOTESFootnote 1 The Court's holding in Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257 (1989), distinguished, for the purposes of appellate review under the Excessive Fines Clause of the Eighth Amendment, between criminal sanctions and civil fines awarded entirely to the plaintiff. The fact that part of the award in this case is payable to the State lends further support to my conclusion that it should be treated as the functional equivalent of a criminal sanction. See id., at 263-264. I continue to agree with Justice O'Connor and those scholars who have concluded that the Excessive Fines Clause is applicable to punitive damages awards regardless of who receives the ultimate payout. See id., at 286-299 (O'Connor, J., concurring in part and dissenting in part).Footnote 2 It is no answer to refer, as the majority does, to recidivism statutes. Ante, at 9. In that context, we have distinguished between taking prior crimes into account as an aggravating factor in penalizing the conduct before the court versus doing so to punish for the earlier crimes. Ibid. But if enhancing a penalty for a present crime because of prior conduct that has already been punished is permissible, it is certainly proper to enhance a penalty because the conduct before the court, which has never been punished, injured multiple victims.

The underlying controversy stems from a venture to produce gas in the North Sea's Heimdal Field. In 1976, respondents Marathon Oil Company and Marathon International Oil Company acquired respondent Marathon Petroleum Norge (Norge) and Marathon Petroleum Company (Norway) (MPCN). Following the acquisition, Norge assigned its license to produce gas in the Heimdal Field to MPCN, which then contracted to sell 70% of its share of the Heimdal gas production to a group of European buyers, including petitioner Ruhrgas AG. MPCN's sales agreement with Ruhrgas and the other European buyers provided that disputes would be settled by arbitration in Sweden. In 1995, Marathon Oil Company, Marathon International Oil Company, and Norge (collectively Marathon) sued Ruhrgas in Texas state court, asserting state-law claims of fraud, tortious interference with prospective business relations, participation in breach of fiduciary duty, and civil conspiracy. Marathon alleged that Ruhrgas had defrauded it into financing MPCN's development of the Heimdal Field and that Ruhrgas had diminished the value of the license Norge had assigned to MPCN. Ruhrgas removed the case to the District Court, asserting three bases for federal jurisdiction: diversity of citizenship, see 28 U. S. C. §1332, on the theory that Norge, the only nondiverse plaintiff, had been fraudulently joined; federal question, see §1331, because Marathon's claims raised questions of international relations; and 9 U. S. C. §205, which authorizes removal of cases relating to international arbitration agreements. Ruhrgas moved to dismiss the complaint for lack of personal jurisdiction. Marathon moved to remand the case to the state court for lack of federal subject-matter jurisdiction. The District Court granted Ruhrgas' motion. Noting that Texas' long-arm statute authorizes personal jurisdiction to the extent allowed by the Due Process Clause of the Federal Constitution, the court addressed the constitutional question and concluded that Ruhrgas' contacts with Texas were insufficient to support personal jurisdiction. The en banc Fifth Circuit vacated and remanded, holding that, in removed cases, district courts must decide issues of subject-matter jurisdiction first, reaching issues of personal jurisdiction only if subject-matter jurisdiction is found to exist. The court derived "counsel against" recognizing judicial discretion to proceed directly to personal jurisdiction from Steel Co. v. Citizens for Better Environment, 523 U. S. 83, in which this Court held that Article III generally requires a federal court to satisfy itself of its subject-matter jurisdiction before it considers the merits of a case. The Fifth Circuit limited its holding to removed cases, perceiving in them the most grave threat that federal courts would usurp state courts' residual jurisdiction.Held: In cases removed from state court to federal court, as in cases originating in federal court, there is no unyielding jurisdictional hierarchy requiring the federal court to adjudicate subject-matter jurisdiction before considering a challenge to personal jurisdiction. Pp. 7-13. (a) The Fifth Circuit erred in according absolute priority to the subject-matter jurisdiction requirement on the ground that it is nonwaivable and delimits federal-court power, while restrictions on a court's jurisdiction over the person are waivable and protect individual rights. Although the character of the two jurisdictional bedrocks unquestionably differs, the distinctions do not mean that subject-matter jurisdiction is ever and always the more "fundamental." Personal jurisdiction, too, is an essential element of district court jurisdiction, without which the court is powerless to proceed to an adjudication. Employers Reinsurance Corp. v. Bryant,299 U. S. 374, 382. In this case, indeed, the impediment to subject-matter jurisdiction on which Marathon relies — lack of complete diversity — rests on statutory interpretation, not constitutional command. Marathon joined an alien plaintiff (Norge) as well as an alien defendant (Ruhrgas). If the joinder of Norge is legitimate, the complete diversity required by §1332, but not by Article III of the Constitution, see State Farm Fire & Casualty Co. v. Tashire,386 U. S. 523, 530-531, is absent. In contrast, Ruhrgas relies on the constitutional due process safeguard to stop the court from proceeding to the merits of the case. See Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee,456 U. S. 694, 702. The Steel Co. jurisdiction-before-merits principle does not dictate a sequencing of jurisdictional issues. A court that dismisses for want of personal jurisdiction, without first ruling on subject-matter jurisdiction, makes no assumption of law-declaring power that violates the separation of powers principles underlying Steel Co. Pp. 8-10. (b) The Court rejects Marathon's assertion that it is particularly offensive in removed cases to rule on personal jurisdiction without first deciding subject-matter jurisdiction, because the federal court's personal jurisdiction determination may preclude the parties from relitigating the very same issue in state court. See Baldwin v. Iowa State Traveling Men's Assn.,283 U. S. 522, 524-527. Issue preclusion in subsequent state-court litigation may also attend a federal court's subject-matter determination. For example, if a federal court concludes that state law does not allow damages sufficient to meet the amount in controversy for diversity jurisdiction, see 28 U. S. C. §1332(a), and remands to the state court on that basis, the federal court's ruling on permissible state-law damages may bind the parties in state court. Most essentially, federal and state courts are complementary systems for administering justice. Cooperation and comity, not competition and conflict, are essential to the federal design. A State's dignitary interest bears consideration when a district court exercises discretion in a case of this order. If personal jurisdiction raises difficult questions of state law, and subject-matter jurisdiction is resolved as easily as personal jurisdiction, a district court will ordinarily conclude that federalism concerns tip the scales in favor of initially ruling on the motion to remand. In other cases, however, the district court may find that overriding concerns of judicial economy and restraint warrant immediate dismissal for lack of personal jurisdiction. The federal design allows leeway for sensitive judgments of this sort. See Younger, 401 U. S., at 44. Pp. 10-12. (c) In most instances, subject-matter jurisdiction will involve no arduous inquiry, and both expedition and sensitivity to state courts' coequal stature should impel the federal court to dispose of that issue first. Where, as here, however, a district court has before it a straightforward personal jurisdiction issue presenting no complex state-law question, and the alleged defect in subject-matter jurisdiction raises a difficult and novel question, the court does not abuse its discretion by turning directly to personal jurisdiction. Pp. 12-13.145 F. 3d 211, reversed and remanded. Ginsburg, J., delivered the opinion for a unanimous Court. RUHRGAS AG, PETITIONER v. MARATHON OIL COMPANY et al.on writ of certiorari to the united states court of appeals for the fifth circuit[May 17, 1999] Justice Ginsburg delivered the opinion of the Court. This case concerns the authority of the federal courts to adjudicate controversies. Jurisdiction to resolve cases on the merits requires both authority over the category of claim in suit (subject-matter jurisdiction) and authority over the parties (personal jurisdiction), so that the court's decision will bind them. In Steel Co. v. Citizens for Better Environment, 523 U. S. 83 (1998), this Court adhered to the rule that a federal court may not hypothesize subject-matter jurisdiction for the purpose of deciding the merits. Steel Co. rejected a doctrine, once approved by several Courts of Appeals, that allowed federal tribunals to pretermit jurisdictional objections "where (1) the merits question is more readily resolved, and (2) the prevailing party on the merits would be the same as the prevailing party were jurisdiction denied." Id., at 93. Recalling "a long and venerable line of our cases," id., at 94, Steel Co. reiterated: "The requirement that jurisdiction be established as a threshold matter ... is `inflexible and without exception,' " id., at 94-95 (quoting Mansfield, C. & L. M. R. Co. v. Swan,111 U. S. 379, 382 (1884)); for "[j]urisdiction is power to declare the law," and " `[w]ithout jurisdiction the court cannot proceed at all in any cause,' " 523 U. S., at 94 (quoting Ex parte McCardle, 7 Wall. 506, 514 (1869)). The Court, in Steel Co., acknowledged that "the absolute purity" of the jurisdiction-first rule had been diluted in a few extraordinary cases, 523 U. S., at 101, and Justice O'Connor, joined by Justice Kennedy, joined the majority on the understanding that the Court's opinion did not catalog "an exhaustive list of circumstances" in which exceptions to the solid rule were appropriate, id., at 110. Steel Co. is the backdrop for the issue now before us: If, as Steel Co. held, jurisdiction generally must precede merits in dispositional order, must subject-matter jurisdiction precede personal jurisdiction on the decisional line? Or, do federal district courts have discretion to avoid a difficult question of subject-matter jurisdiction when the absence of personal jurisdiction is the surer ground? The particular civil action we confront was commenced in state court and removed to federal court. The specific question on which we granted certiorari asks "[w]hether a federal district court is absolutely barred in all circumstances from dismissing a removed case for lack of personal jurisdiction without first deciding its subject-matter jurisdiction." Pet. for Cert. i. We hold that in cases removed from state court to federal court, as in cases originating in federal court, there is no unyielding jurisdictional hierarchy. Customarily, a federal court first resolves doubts about its jurisdiction over the subject matter, but there are circumstances in which a district court appropriately accords priority to a personal jurisdiction inquiry. The proceeding before us is such a case.I The underlying controversy stems from a venture to produce gas in the Heimdal Field of the Norwegian North Sea. In 1976, respondents Marathon Oil Company and Marathon International Oil Company acquired Marathon Petroleum Company (Norway) (MPCN) and respondent Marathon Petroleum Norge (Norge). See App. 26.1 Before the acquisition, Norge held a license to produce gas in the Heimdal Field; following the transaction, Norge assigned the license to MPCN. See Record, Exhs. 61 and 62 to Document 64. In 1981, MPCN contracted to sell 70% of its share of the Heimdal gas production to a group of European buyers, including petitioner Ruhrgas AG. See Record, Exh. 1 to Document 63, pp. 90, 280. The parties' agreement was incorporated into the Heimdal Gas Sales Agreement (Heimdal Agreement), which is "governed by and construed in accordance with Norwegian Law," Record, Exh. B, Tab 1 to Pet. for Removal, Heimdal Agreement, p. 102; disputes thereunder are to be "exclusively and finally ... settled by arbitration in Stockholm, Sweden, in accordance with" International Chamber of Commerce rules, id., at 100.II Marathon Oil Company, Marathon International Oil Company, and Norge (collectively, Marathon) filed this lawsuit against Ruhrgas in Texas state court on July 6, 1995, asserting state-law claims of fraud, tortious interference with prospective business relations, participation in breach of fiduciary duty, and civil conspiracy. See App. 33-40. Marathon Oil Company and Marathon International Oil Company alleged that Ruhrgas and the other European buyers induced them with false promises of "premium prices" and guaranteed pipeline tariffs to invest over $300 million in MPCN for the development of the Heimdal Field and the erection of a pipeline to Ruhrgas' plant in Germany. See id., at 26-28; Brief for Respondents 1-2. Norge alleged that Ruhrgas' effective monopolization of the Heimdal gas diminished the value of the license Norge had assigned to MPCN. See App. 31, 33, 357; Brief for Respondents 2. Marathon asserted that Ruhrgas had furthered its plans at three meetings in Houston, Texas, and through a stream of correspondence directed to Marathon in Texas. See App. 229, 233. Ruhrgas removed the case to the District Court for the Southern District of Texas. See 145 F. 3d 211, 214 (CA5 1998). In its notice of removal, Ruhrgas asserted three bases for federal jurisdiction: diversity of citizenship, see 28 U. S. C. §1332 (1994 ed. and Supp. III), on the theory that Norge, the only nondiverse plaintiff, had been fraudulently joined;2 federal question, see §1331, because Marathon's claims "raise[d] substantial questions of foreign and international relations, which are incorporated into and form part of the federal common law," App. 274; and 9 U. S. C. §205, which authorizes removal of cases "relat[ing] to" international arbitration agreements.3 See 145 F. 3d, at 214-215; 115 F. 3d 315, 319-321 (CA5), vacated and rehearing en banc granted, 129 F. 3d 746 (1997). Ruhrgas moved to dismiss the complaint for lack of personal jurisdiction. Marathon moved to remand the case to the state court for lack of federal subject-matter jurisdiction. See 145 F. 3d, at 215. After permitting jurisdictional discovery, the District Court dismissed the case for lack of personal jurisdiction. See App. 455. In so ruling, the District Court relied on Fifth Circuit precedent allowing district courts to adjudicate personal jurisdiction without first establishing subject-matter jurisdiction. See id., at 445. Texas' long-arm statute, see Tex. Civ. Prac. & Rem. Code Ann. §17.042 (1997), authorizes personal jurisdiction to the extent allowed by the Due Process Clause of the Federal Constitution. See App. 446; Kawasaki Steel Corp. v. Middleton, 699 S. W. 2d 199, 200 (Tex. 1985). The District Court addressed the constitutional question and concluded that Ruhrgas' contacts with Texas were insufficient to support personal jurisdiction. See App. 445-454. Finding "no evidence that Ruhrgas engaged in any tortious conduct in Texas," id., at 450, the court determined that Marathon's complaint did not present circumstances adequately affiliating Ruhrgas with Texas, see id., at 448.4 A panel of the Court of Appeals for the Fifth Circuit concluded that "respec[t]" for "the proper balance of federalism" impelled it to turn first to "the formidable subject matter jurisdiction issue presented." 115 F. 3d, at 318. After examining and rejecting each of Ruhrgas' asserted bases of federal jurisdiction, see id., at 319-321,5 the Court of Appeals vacated the judgment of the District Court and ordered the case remanded to the state court, see id., at 321. This Court denied Ruhrgas' petition for a writ of certiorari, which was limited to the question whether subject-matter jurisdiction existed under 9 U. S. C. §205. See 522 U. S. 967 (1997). The Fifth Circuit, on its own motion, granted rehearing en banc, thereby vacating the panel decision. See 129 F. 3d 746 (1997). In a 9-to-7 decision, the en banc court held that, in removed cases, district courts must decide issues of subject-matter jurisdiction first, reaching issues of personal jurisdiction "only if subject-matter jurisdiction is found to exist." 145 F. 3d, at 214. Noting Steel Co.'s instruction that subject-matter jurisdiction must be " `established as a threshold matter,' " 145 F. 3d, at 217 (quoting 523 U. S., at 94), the Court of Appeals derived from that decision "counsel against" recognition of judicial discretion to proceed directly to personal jurisdiction. 145 F. 3d, at 218. The court limited its holding to removed cases; it perceived in those cases the most grave threat that federal courts would "usur[p] ... state courts' residual jurisdiction." Id., at 219.6 Writing for the seven dissenters, Judge Higginbotham agreed that subject-matter jurisdiction ordinarily should be considered first. See id., at 231. If the challenge to personal jurisdiction involves no complex state-law questions, however, and is more readily resolved than the challenge to subject-matter jurisdiction, the District Court, in the dissenters' view, should take the easier route. See ibid. Judge Higginbotham regarded the District Court's decision dismissing Marathon's case as illustrative and appropriate: While Ruhrgas' argument under 9 U. S. C. §205 presented a difficult issue of first impression, its personal jurisdiction challenge raised "[n]o substantial questions of purely state law," and "could be resolved relatively easily in [Ruhrgas'] favor." 145 F. 3d, at 232-233. We granted certiorari, 525 U. S. __ (1998), to resolve a conflict between the Circuits7 and now reverse.III Steel Co. held that Article III generally requires a federal court to satisfy itself of its jurisdiction over the subject matter before it considers the merits of a case. "For a court to pronounce upon [the merits] when it has no jurisdiction to do so," Steel Co. declared, "is ... for a court to act ultra vires." 523 U. S., at 101-102. The Fifth Circuit incorrectly read Steel Co. to teach that subject-matter jurisdiction must be found to exist, not only before a federal court reaches the merits, but also before personal jurisdiction is addressed. See 145 F. 3d, at 218.A The Court of Appeals accorded priority to the requirement of subject-matter jurisdiction because it is nonwaiv-able and delimits federal-court power, while restrictions on a court's jurisdiction over the person are waivable and protect individual rights. See id., at 217-218. The character of the two jurisdictional bedrocks unquestionably differs. Subject-matter limitations on federal jurisdiction serve institutional interests. They keep the federal courts within the bounds the Constitution and Congress have prescribed. Accordingly, subject-matter delineations must be policed by the courts on their own initiative even at the highest level. See Steel Co., 523 U. S., at 94-95; Fed. Rule Civ. Proc. 12(h)(3) ("Whenever it appears ... that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."); 28 U. S. C. §1447(c) (1994 ed., Supp. III) ("If at any time before final judgment [in a removed case] it appears that the district court lacks subject matter jurisdiction, the case shall be remanded."). Personal jurisdiction, on the other hand, "represents a restriction on judicial power ... as a matter of individual liberty." Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee,456 U. S. 694, 702 (1982). Therefore, a party may insist that the limitation be observed, or he may forgo that right, effectively consenting to the court's exercise of adjudicatory authority. See Fed. Rule Civ. Proc. 12(h)(1) (defense of lack of jurisdiction over the person waivable); Insurance Corp. of Ireland, 456 U. S., at 703 (same). These distinctions do not mean that subject-matter jurisdiction is ever and always the more "fundamental." Personal jurisdiction, too, is "an essential element of the jurisdiction of a district ... court," without which the court is "powerless to proceed to an adjudication." Employers Reinsurance Corp. v. Bryant,299 U. S. 374, 382 (1937). In this case, indeed, the impediment to subject-matter jurisdiction on which Marathon relies — lack of complete diversity — rests on statutory interpretation, not constitutional command. Marathon joined an alien plaintiff (Norge) as well as an alien defendant (Ruhrgas). If the joinder of Norge is legitimate, the complete diversity required by 28 U. S. C. §1332 (1994 ed. and Supp. III), but not by Article III, see State Farm Fire & Casualty Co. v. Tashire,386 U. S. 523, 530-531 (1967), is absent. In contrast, Ruhrgas relies on the constitutional safeguard of due process to stop the court from proceeding to the merits of the case. See Insurance Corp. of Ireland, 456 U. S., at 702 ("The requirement that a court have personal jurisdiction flows ... from the Due Process Clause."). While Steel Co. reasoned that subject-matter jurisdiction necessarily precedes a ruling on the merits, the same principle does not dictate a sequencing of jurisdictional issues. "[A] court that dismisses on ... non-merits grounds such as ... personal jurisdiction, before finding subject-matter jurisdiction, makes no assumption of law-declaring power that violates the separation of powers principles underlying Mansfield and Steel Company." In re Papandreou, 139 F. 3d 247, 255 (CADC 1998). It is hardly novel for a federal court to choose among threshold grounds for denying audience to a case on the merits. Thus, as the Court observed in Steel Co., district courts do not overstep Article III limits when they decline jurisdiction of state-law claims on discretionary grounds without determining whether those claims fall within their pendent jurisdiction, see Moor v. County of Alameda,411 U. S. 693, 715-716 (1973), or abstain under Younger v. Harris,401 U. S. 37 (1971), without deciding whether the parties present a case or controversy, see Ellis v. Dyson,421 U. S. 426, 433-434 (1975). See Steel Co., 523 U. S., at 100-101, n. 3; cf. Arizonans for Official English v. Arizona,520 U. S. 43, 66-67 (1997) (pretermitting challenge to appellants' standing and dismissing on mootness grounds).B Maintaining that subject-matter jurisdiction must be decided first even when the litigation originates in federal court, see Tr. of Oral Arg. 21; Brief for Respondents 13, Marathon sees removal as the more offensive case, on the ground that the dignity of state courts is immediately at stake. If a federal court dismisses a removed case for want of personal jurisdiction, that determination may preclude the parties from relitigating the very same personal jurisdiction issue in state court. See Baldwin v. Iowa State Traveling Men's Assn.,283 U. S. 522, 524-527 (1931) (personal jurisdiction ruling has issue-preclusive effect). Issue preclusion in subsequent state-court litigation, however, may also attend a federal court's subject-matter determination. Ruhrgas hypothesizes, for example, a defendant who removes on diversity grounds a state-court suit seeking $50,000 in compensatory and $1 million in punitive damages for breach of contract. See Tr. of Oral Arg. 10-11. If the district court determines that state law does not allow punitive damages for breach of contract and therefore remands the removed action for failure to satisfy the amount in controversy, see 28 U. S. C. §1332(a) (1994 ed., Supp. III) ($75,000), the federal court's conclusion will travel back with the case. Assuming a fair airing of the issue in federal court, that court's ruling on permissible state-law damages may bind the parties in state court, although it will set no precedent otherwise governing state-court adjudications. See Chicot County Drainage Dist. v. Baxter State Bank,308 U. S. 371, 376 (1940) ("[Federal courts'] determinations of [whether they have jurisdiction to entertain a case] may not be assailed collaterally."); Restatement (Second) of Judgments §12, p. 115 (1980) ("When a court has rendered a judgment in a contested action, the judgment [ordinarily] precludes the parties from litigating the question of the court's subject matter jurisdiction in subsequent litigation."). Similarly, as Judge Higginbotham observed, our "dualistic ... system of federal and state courts" allows federal courts to make issue-preclusive rulings about state law in the exercise of supplemental jurisdiction under 28 U. S. C. §1367. 145 F. 3d, at 231, and n. 7. Most essentially, federal and state courts are complementary systems for administering justice in our Nation. Cooperation and comity, not competition and conflict, are essential to the federal design. A State's dignitary interest bears consideration when a district court exercises discretion in a case of this order. If personal jurisdiction raises "difficult questions of [state] law," and subject-matter jurisdiction is resolved "as eas[ily]" as personal jurisdiction, a district court will ordinarily conclude that "federalism concerns tip the scales in favor of initially ruling on the motion to remand." Allen v. Ferguson, 791 F. 2d 611, 616 (CA7 1986). In other cases, however, the district court may find that concerns of judicial economy and restraint are overriding. See, e.g., Asociacion Nacional de Pescadores v. Dow Quimica, 988 F. 2d 559, 566-567 (CA5 1993) (if removal is nonfrivolous and personal jurisdiction turns on federal constitutional issues, "federal intrusion into state courts' authority ... is minimized"). The federal design allows leeway for sensitive judgments of this sort. " `Our Federalism' ""does not mean blind deference to `States' Rights' any more than it means centralization of control over every important issue in our National Government and its courts. The Framers rejected both these courses. What the concept does represent is a system in which there is sensitivity to the legitimate interests of both State and National Governments." Younger, 401 U. S., at 44. The Fifth Circuit and Marathon posit that state-court defendants will abuse the federal system with opportunistic removals. A discretionary rule, they suggest, will encourage manufactured, convoluted federal subject-matter theories designed to wrench cases from state court. See 145 F. 3d, at 219; Brief for Respondents 28-29. This specter of unwarranted removal, we have recently observed, "rests on an assumption we do not indulge — that district courts generally will not comprehend, or will balk at applying, the rules on removal Congress has prescribed... . The well-advised defendant ... will foresee the likely outcome of an unwarranted removal — a swift and nonreviewable remand order, see 28 U. S. C. §§1447(c), (d), attended by the displeasure of a district court whose authority has been improperly invoked." Caterpillar Inc. v. Lewis,519 U. S. 61, 77-78 (1996).C In accord with Judge Higginbotham, we recognize that in most instances subject-matter jurisdiction will involve no arduous inquiry. See 145 F. 3d, at 229 ("engag[ing]" subject-matter jurisdiction "at the outset of a case ... [is] often ... the most efficient way of going"). In such cases, both expedition and sensitivity to state courts' coequal stature should impel the federal court to dispose of that issue first. See Cantor Fitzgerald, L. P. v. Peaslee, 88 F. 3d 152, 155 (CA2 1996) (a court disposing of a case on personal jurisdiction grounds "should be convinced that the challenge to the court's subject-matter jurisdiction is not easily resolved"). Where, as here, however, a district court has before it a straightforward personal jurisdiction issue presenting no complex question of state law, and the alleged defect in subject-matter jurisdiction raises a difficult and novel question, the court does not abuse its discretion by turning directly to personal jurisdiction.8 * * * For the reasons stated, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.It is so ordered.FOOTNOTESFootnote 1 Ruhrgas is a German corporation; Norge is a Norwegian corporation. See App. 21, 22. Marathon Oil Company, an Ohio corporation, and Marathon International Oil Company, a Delaware corporation, moved their principal places of business from Ohio to Texas while the venture underlying this case was in formation. See id., at 21, 239, and n. 11. Footnote 2 A suit between "citizens of a State and citizens or subjects of a foreign state" lies within federal diversity jurisdiction. 28 U. S. C. §1332(a)(2). Section 1332 has been interpreted to require "complete diversity." See Strawbridge v. Curtiss, 3 Cranch 267 (1806); R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 1528-1531 (4th ed. 1996). The foreign citizenship of defendant Ruhrgas, a German corporation, and plaintiff Norge, a Norwegian corporation, rendered diversity incomplete.Footnote 3 Title 9 U. S. C. §205 allows removal "[w]here the subject matter of an action or proceeding pending in a State court relates to an arbitration agreement or award falling under the Convention [on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958]." Footnote 4 Respecting the three meetings Ruhrgas attended in Houston, Texas, see supra, at 4, the District Court concluded that Marathon had not shown that Ruhrgas pursued the alleged pattern of fraud and misrepresentation during the Houston meetings. See App. 449. The court further found that Ruhrgas attended those meetings "due to the [Heimdal Agreement] with MPCN." Id., at 450. As the Heimdal Agreement provides for arbitration in Sweden, the court reasoned, "Ruhrgas could not have expected to be haled into Texas courts based on these meetings." Ibid. The court also determined that Ruhrgas did not have "systematic and continuous contacts with Texas" of the kind that would "subject it to general jurisdiction in Texas." Id., at 453 (citing Helicopteros Nacionales de Colombia, S. A. v. Hall,466 U. S. 408 (1984)). Footnote 5 The Court of Appeals concluded that whether Norge had a legal interest in the Heimdal license notwithstanding its assignment to MPCN likely turned on difficult questions of Norwegian law; Ruhrgas therefore could not show, at the outset, that Norge had been fraudulently joined as a plaintiff to defeat diversity. See 115 F. 3d 315, 319-320 (CA5), vacated and rehearing en banc granted, 129 F. 3d 746 (1997). The appeals court also determined that Marathon's claims did not "strike at the sovereignty of a foreign nation," so as to raise a federal question on that account. 115 F. 3d, at 320. Finally, the court concluded that Marathon asserted claims independent of the Heimdal Agreement and that the case therefore did not "relat[e] to" an international arbitration agreement under 9 U. S. C. §205. See 115 F. 3d, at 320-321.Footnote 6 The Fifth Circuit remanded the case to the District Court for it to consider the "nove[l]" subject-matter jurisdiction issues presented. 145 F. 3d 211, 225 (CA5 1998). The appeals court "express[ed] no opinion" on the vacated panel decision which had held that the District Court lacked subject-matter jurisdiction. Id., at 225, n. 23.Footnote 7 The Court of Appeals for the Second Circuit has concluded that district courts have discretion to dismiss a removed case for want of personal jurisdiction without reaching the issue of subject-matter jurisdiction. See Cantor Fitzgerald, L. P. v. Peaslee, 88 F. 3d 152, 155 (1996).Footnote 8 Ruhrgas suggests that it would be appropriate simply to affirm the District Court's holding that it lacked personal jurisdiction over Ruhrgas. See Brief for Petitioner 38-39, and n. 20. That issue is not within the question presented and is properly considered by the Fifth Circuit on remand.

[Footnote *] Together with No. 70-212, Northeast Airlines, Inc., et al. v. New Hampshire Aeronautics Commission et al., on appeal from the Supreme Court of New Hampshire, argued February 24, 1972. In No. 70-99 respondents challenged a "use and service charge" of $1 "for each passenger enplaning any commercial aircraft operated from the Dress Memorial Airport" in Evansville, Indiana. The funds were to be used for the improvement and maintenance of the airport. The Indiana Supreme Court, upholding the lower court, held the charge to be an unreasonable burden on interstate commerce in violation of Art. I, 8, of the Constitution. In No. 70-212 a New Hampshire statute levied a service charge of $1 for each passenger enplaning a scheduled commercial airliner weighing 12,500 pounds or more, and a 50 charge for each passenger enplaning a scheduled aircraft weighing less than 12,500 pounds. Fifty percent of the funds were allocated to the State's aeronautical fund, with the balance going to the municipalities or airport authorities owning the public landing areas. The New Hampshire Supreme Court sustained the constitutionality of the statute. Held: The charges imposed in these cases are constitutional. Pp. 711-722. (a) A charge designed to make the user of state-provided facilities pay a reasonable fee for their construction and maintenance may constitutionally be imposed on interstate and intrastate users alike. Crandall v. Nevada, 6 Wall. 35, distinguished. Pp. 711-717. (b) The charges, applicable to both interstate and intrastate flights, do not discriminate against interstate commerce and travel. P. 717. (c) Although not all users of the airport facilities are subject to the fees, and there are distinctions among different classes of passengers and aircraft, the charges reflect a fair, albeit imperfect, approximation of the use of the facilities by those for whose benefit they are imposed, and the exemptions are not wholly unreasonable. Pp. 717-719. (d) The airlines have not shown the charges to be excessive in relation to the costs incurred by the taxing authorities in constructing and maintaining airports with public funds. New Hampshire's decision to reimburse local expenditures through unrestricted revenues is not a matter of concern to the airlines. Pp. 719-720. (e) The charges do not conflict with any federal policies furthering uniform national regulation of air transportation. Pp. 720-721. (f) There is no suggestion here that the charges do not advance the constitutionally permissible objective of having interstate commerce bear a fair share of airport costs. P. 722. No. 70-99, ___ Ind. ___, 265 N. E. 2d 27, reversed: No. 70-212, 111 N. H. 5, 273 A. 2d 676, affirmed.BRENNAN, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, WHITE, MARSHALL, BLACKMUN, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting opinion, post, p. 722. POWELL, J., took no part in the consideration or decision of the cases.Howard P. Trockman argued the cause for petitioners in No. 70-99. With him on the briefs was James F. Flynn. John K. Mallory, Jr., argued the cause for respondents in No. 70-99 and for appellants in No. 70-212. With him on the brief in No. 70-99 were Fred P. Bamberger, J. Eugene Marans, and Jeffrey R. Kinney. With him on the brief in No. 70-212 were Joseph A. Millimet and Mr. Marans. W. Michael Dunn, Assistant Attorney General of New Hampshire, argued the cause for appellees in No. 70-212. With him on the brief was Warren B. Rudman, Attorney General.Donald G. Alexander filed a brief for the National League of Cities as amicus curiae urging reversal in No. 70-99. MR. JUSTICE BRENNAN delivered the opinion of the Court.The question is whether a charge by a State or municipality of $1 per commercial airline passenger to help defray the costs of airport construction and maintenance violates the Federal Constitution. Our answer is that, as imposed in these two cases, the charge does not violate the Federal Constitution.No. 70-99. Evansville-Vanderburgh Airport Authority District was created by the Indiana Legislature to operate Dress Memorial Airport in Evansville, Indiana. Under its authority to enact ordinances adopting rates and charges to be collected from users of the airport facilities and services, the Airport Authority enacted Ordinance No. 33 establishing "a use and service charge of One Dollar ($1.00) for each passenger enplaning any commercial aircraft operated from the Dress Memorial Airport." The commercial airlines are required to collect and remit the charge, less 6% allowed to cover the airlines' administrative costs in doing so. The moneys collected are held by the Airport Authority "in a separate fund for the purpose of defraying the present and future costs incurred by said Airport Authority in the construction, improvement, equipment, and maintenance of said Airport and its facilities for the continued use and future enjoyment by all users thereof."Respondents challenged the constitutionality of the charge in an action filed in the Superior Court of Vanderburgh County, Indiana. The court held that the charge constituted an unreasonable burden on interstate commerce in violation of Art. I, 8, of the Federal Constitution and permanently enjoined enforcement of the ordinance. The Indiana Supreme Court affirmed, ___ Ind. ___, 265 N. E. 2d 27 (1970). We granted certiorari, . We reverse. No. 70-212. Chapter 391 of the 1969 Laws of New Hampshire, amending N. H. Rev. Stat. Ann. 422:3, 422:43, 422:45, requires every interstate and intrastate "common carrier of passengers for hire by aircraft on a regular schedule" that uses any of New Hampshire's five publicly owned and operated airports to "pay a service charge of one dollar with respect to each passenger emplaning1 upon its aircraft with a gross weight of 12,500 pounds or more, or a service charge of fifty cents with respect to each passenger emplaning upon its aircraft with a gross weight of less than 12,500 pounds." Fifty percent of the moneys collected are allocated to the State's aeronautical fund and 50% "to the municipalities or the airport authorities owning the public landing areas at which the fees ... were imposed." The airlines are authorized to pass on the charge to the passenger.2 Appellants brought this action in the Superior Court of Merrimack Country, New Hampshire, and challenged the constitutionality of the charge as to scheduled commercial flights on the grounds of repugnancy to the Commerce Clause, the Equal Protection Clause of the Fourteenth Amendment, and the provisions of the Federal Constitution protecting the right to travel. The Superior Court, without decision, transferred the action to the New Hampshire Supreme Court, and that court sustained the constitutionality of the statute. 111 N. H. 5, 273 A. 2d 676 (1971). We noted probable jurisdiction, .3 We affirm.We begin our analysis with consideration of the contention of the commercial airlines in both cases that the charge is constitutionally invalid under the Court's decision in Crandall v. Nevada, 6 Wall. 35 (1868). There the Court invalidated a Nevada statute that levied a "tax of one dollar upon every person leaving the State by any railroad, stage coach, or other vehicle engaged or employed in the business of transporting passengers for hire." The Court approached the problem as one of whether levy of "any tax of that character," whatever its amount, impermissibly burdened the constitutionally protected right of citizens to travel. In holding that it did, the Court reasoned: "[I]f the State can tax a railroad passenger one dollar, it can tax him one thousand dollars. If one State can do this, so can every other State. And thus one or more States covering the only practicable routes of travel from the east to the west, or from the north to the south, may totally prevent or seriously burden all transportation of passengers from one part of the country to the other." Id., at 46.4 The Nevada charge, however, was not limited, as are the Indiana and New Hampshire charges before us, to travelers asked to bear a fair share of the costs of providing public facilities that further travel. The Nevada tax applied to passengers traveling interstate by privately owned transportation, such as railroads. Thus the tax was charged without regard to whether Nevada provided any facilities for the passengers required to pay the tax. Cases decided since Crandall have distinguished it on that ground and have sustained taxes "designed to make [interstate] commerce bear a fair share of the cost of the local government whose protection it enjoys." Freeman v. Hewit, .5 For example, in Hendrick v. Maryland, , a District of Columbia resident was convicted of driving in Maryland without paying a fee charged to help defray the costs of road construction and repair. He challenged his conviction on the ground that the fee burdened interstate commerce in violation of the rights of citizens to travel into and through the State. The Court rejected that argument, holding that:"[W]here a State at its own expense furnishes special facilities for the use of those engaged in commerce, interstate as well as domestic, it may exact compensation therefor. The amount of the charges and the method of collection are primarily for determination by the State itself; and so long as they are reasonable and are fixed according to some uniform, fair and practical standard they constitute no burden on interstate commerce. Transportation Co. v. Parkersburg, ; Huse v. Glover, , 549; Monongahela Navigation Co. v. United States, , 330; Minnesota Rate Cases, ; and authorities cited. The action of the State must be treated as correct unless the contrary is made to appear. In the instant case there is no evidence concerning the value of the facilities supplied by the State, the cost of maintaining them, or the fairness of the methods adopted for collecting the charges imposed; and we cannot say from a mere inspection of the statute that its provisions are arbitrary or unreasonable." Id., at 624. The Court expressly distinguished Crandall, saying: "There is no solid foundation for the claim that the statute directly interferes with the rights of citizens of the United States to pass through the State, and is consequently bad according to the doctrine announced in Crandall v. Nevada, 6 Wall. 35. In that case a direct tax was laid upon the passenger for the privilege of leaving the State; while here the statute at most attempts to regulate the operation of dangerous machines on the highways and to charge for the use of valuable facilities." Ibid.6 We therefore regard it as settled that a charge designed only to make the user of state-provided facilities pay a reasonable fee to help defray the costs of their construction and maintenance may constitutionally be imposed on interstate and domestic users alike. The principle that burdens on the right to travel are constitutional only if shown to be necessary to promote a compelling state interest has no application in this context. See Shapiro v. Thompson, . The facility provided at public expense aids rather than hinders the right to travel. A permissible charge to help defray the cost of the facility is therefore not a burden in the constitutional sense.The Indiana and New Hampshire Supreme Courts differed in appraising their respective charges in terms of whether the charge was for the use of facilities in aid of travel provided by the public. The Indiana Supreme Court held that the Evansville charge "is not reasonably related to the use of the facilities which benefit from the tax ... ." ___ Ind., at ___, 265 N. E. 2d, at 31. The New Hampshire Supreme Court, on the other hand, held that the New Hampshire charge was a "fee for the use of facilities furnished by the public" that did not "exceed reasonable compensation for the use provided." 111 N. H., at 9, 273 A. 2d, at 678, 679.In addressing the question, we do not think it particularly important whether the charge is imposed on the passenger himself, to be collected by the airline, or on the airline, to be passed on to the passenger if it chooses. In either case, it is the act of enplanement and the consequent use of runways and other airport facilities that give rise to the obligation. Our inquiry is whether the use of airport facilities occasioned by enplanement is a permissible incident on which to levy these fees, regardless of whether the airline or its passengers bear the formal responsibility for their payment.Our decisions concerning highway tolls are instructive. They establish that the States are empowered to develop "uniform, fair and practical" standards for this type of fee. While the Court has invalidated as wholly unrelated to road use a toll based on the carrier's seating capacity, Interstate Transit, Inc. v. Lindsey, ; Sprout v. South Bend, , and the amount of gasoline over 20 gallons in the carrier's gas tank, McCarroll v. Dixie Greyhound Lines, Inc., , we have sustained numerous tolls based on a variety of measures of actual use, including: horsepower, Hendrick v. Maryland, supra; Kane v. New Jersey, ; number and capacity of vehicles, Clark v. Poor, ; mileage within the State, Interstate Busses Corp. v. Blodgett, ; gross-ton mileage, Continental Baking Co. v. Woodring, ; carrying capacity, Hicklin v. Coney, ; and manufacturer's rated capacity and weight of trailers, Dixie Ohio Express Co. v. State Revenue Comm'n, .We have also held that a State may impose a flat fee for the privilege of using its roads, without regard to the actual use by particular vehicles, so long as the fee is not excessive. Aero Mayflower Transit Co. v. Georgia Public Service Comm'n, ; Morf v. Bingaman, ; Aero Mayflower Transit Co. v. Board of Railroad Comm'rs, . And in Capitol Greyhound Lines v. Brice, , the Court sustained a Maryland highway toll of "2% upon the fair market value of motor vehicles used in interstate commerce." That toll was supplemental to a standard mileage charge imposed by the State, so that "the total charge as among carriers [did] vary substantially with the mileage traveled." Id., at 546. It was there argued, however, that the correlation between tax and use was not precise enough to sustain the toll as a valid user charge. Noting that the tax "should be judged by its result, not its formula, and must stand unless proven to be unreasonable in amount for the privilege granted," id., at 545, the Court rejected the argument:"Complete fairness would require that a state tax formula vary with every factor affecting appropriate compensation for road use. These factors, like those relevant in considering the constitutionality of other state taxes, are so countless that we must be content with `rough approximation rather than precision.' Harvester Co. v. Evatt, . Each additional factor adds to administrative burdens of enforcement, which fall alike on taxpayers and government. We have recognized that such burdens may be sufficient to justify states in ignoring even such a key factor as mileage, although the result may be a tax which on its face appears to bear with unequal weight upon different carriers. Aero Transit Co. v. Georgia Comm'n, . Upon this type of reasoning rests our general rule that taxes like that of Maryland here are valid unless the amount is shown to be in excess of fair compensation for the privilege of using state roads." Id., at 546-547. Thus, while state or local tolls must reflect a "uniform, fair and practical standard" relating to public expenditures, it is the amount of the tax, not its formula, that is of central concern. At least so long as the toll is based on some fair approximation of use or privilege for use, as was that before us in Capitol Greyhound, and is neither discriminatory against interstate commerce nor excessive in comparison with the governmental benefit conferred, it will pass constitutional muster, even though some other formula might reflect more exactly the relative use of the state facilities by individual users.The Indiana and New Hampshire charges meet those standards. First, neither fee discriminates against interstate commerce and travel. While the vast majority of passengers who board flights at the airports involved are traveling interstate, both interstate and intrastate flights are subject to the same charges. Furthermore, there is no showing of any inherent difference between these two classes of flights, such that the application of the same fee to both would amount to discrimination against one or the other. See Nippert v. Richmond, .Second, these charges reflect a fair, if imperfect, approximation of the use of facilities for whose benefit they are imposed. We recognize that in imposing a fee on the boarding of commercial flights, both the Indiana and New Hampshire measures exempt in whole or part a majority of the actual number of persons who use facilities of the airports involved. Their number includes certain classes of passengers, such as active members of the military and temporary layovers,7 deplaning commercial passengers,8 and passengers on noncommercial flights,9 nonscheduled commercial flights,10 and commercial flights on light aircraft.11 Also exempt are nonpassenger users, such as persons delivering or receiving air-freight shipments, meeting or seeing off passengers, dining at airport restaurants, and working for employers located on airport grounds. Nevertheless, these exceptions are not wholly unreasonable. Certainly passengers as a class may be distinguished from other airport users, if only because the boarding of flights requires the use of runways and navigational facilities not occasioned by nonflight activities. Furthermore, business users, like shops, restaurants, and private parking concessions, do contribute to airport upkeep through rent, a cost that is passed on in part at least to their patrons. And since the visitor who merely sees off or meets a passenger confers a benefit on the passenger himself, his use of the terminal may reasonably be considered to be included in the passenger's fee.The measures before us also reflect rational distinctions among different classes of passengers and aircraft. Commercial air traffic requires more elaborate navigation and terminal facilities, as well as longer and more costly runway systems, than do flights by smaller private planes.12 Commercial aviation, therefore, may be made to bear a larger share of the cost of facilities built primarily to meet its special needs, whether that additional charge is levied on a per-flight basis in the form of higher takeoff and landing fees, or as a toll per passenger-use in the form of a boarding fee. In short, distinctions based on aircraft weight or commercial versus private use do not render these charges wholly irrational as a measure of the relative use of the facilities for whose benefit they are levied. Nor does the fact that they are levied on the enplanement of commercial flights, but not deplanement. It is not unreasonable to presume that passengers enplaning at an airport also deplane at the same airport approximately the same number of times. The parties in No. 70-99, for example, have stipulated that the number of passengers enplaning and deplaning at Dress Memorial Airport in 1967 was virtually the same. Thus, a fee levied only on the boarding of commercial aircraft can reasonably be supposed to cover a charge on use by passengers when they deplane.13 Third, the airlines have not shown these fees to be excessive in relation to costs incurred by the taxing authorities. The record in No. 70-99 shows that in 1965 the Evansville-Vanderburgh Airport Authority paid bond retirement costs of $166,000 for capital improvements at Dress Memorial Airport, but recovered only $9,700 of these costs in the form of airport revenue. The airport's revenues covered only $63,000 of the Authority's $184,000 bond costs in 1966, $87,000 of $182,000 in 1967, and $65,000 of $178,000 in 1968. The respondents in No. 70-99 have advanced no evidence that a $1 boarding fee, if permitted to go into effect, would do more than meet these past, as well as current, deficits. Appellants in No. 70-212 have likewise failed to offer proof of excessiveness.This omission in No. 70-212 suffices to dispose of the final attack by appellants in that case on the New Hampshire statute. Appellants argue that the statute "on its face belies any legislative intent to impose an exaction based solely on use" because only 50% of its revenue is allocated to the state aeronautical fund while "the remaining fifty per cent is allocated to the municipalities or airport authorities owning the landing areas at which the fees were imposed in the form of unrestricted general revenues." Brief 51-52. Yet so long as the funds received by local authorities under the statute are not shown to exceed their airport costs, it is immaterial whether those funds are expressly earmarked for airport use. The State's choice to reimburse local expenditures through unrestricted rather than restricted revenues is not a matter of concern to these appellants. See Clark v. Poor, 274 U.S., at 557; Morf v. Bingaman, 298 U.S., at 412; Aero Mayflower Transit Co. v. Board of Railroad Comm'rs, 332 U.S., at 502-505.We conclude, therefore, that the provisions before us impose valid charges on the use of airport facilities constructed and maintained with public funds. Furthermore, we do not think that they conflict with any federal policies furthering uniform national regulation of air transportation. No federal statute or specific congressional action or declaration evidences a congressional purpose to deny or pre-empt state and local power to levy charges designed to help defray the costs of airport construction and maintenance. A contrary purpose is evident in the Airport and Airway Development Act of 1970, 84 Stat. 219, 49 U.S.C. 1701 et seq. That Act provides that as "a condition precedent to his approval of an airport development project," the Secretary of Transportation must determine that"the airport operator or owner will maintain a fee and rental structure for the facilities and services being provided the airport users which will make the airport as self-sustaining as possible under the circumstances existing at that particular airport, taking into account such factors as the volume of traffic and economy of collection." 49 U.S.C. 1718 (8). The commercial airlines argue in these cases that a proliferation of these charges in airports over the country will eventually follow in the wake of a decision sustaining the validity of the Indiana and New Hampshire fees, and that this is itself sufficient reason to adjudge the charges repugnant to the Commerce Clause. "If such levies were imposed by each airport along a traveller's route, the total effect on the cost of air transportation could be prohibitive, the competitive structure of air carriers could be affected, and air transportation, compared to other forms of transportation, could be seriously impaired." Brief for Appellants in No. 70-212, p. 44. The argument relies on Bibb v. Navajo Freight Lines, Inc., . There the Court invalidated an Illinois statute requiring that trucks and trailers using Illinois highways be equipped at the state line with a contour mudguard of specified design. The lower courts had found that the contour mudguard possessed no advantages in terms of safety over the conventional flap permitted in all other States and indeed created safety hazards. But there is no suggestion that the Indiana and New Hampshire charges do not in fact advance the constitutionally permissible objective of having interstate commerce bear a fair share of the costs to the States of airports constructed and maintained for the purpose of aiding interstate air travel. In that circumstance, "[a]t least until Congress chooses to enact a nation-wide rule, the power will not be denied to the State[s]." Freeman v. Hewit, 329 U.S., at 253; see also Southern Pacific Co. v. Arizona, .The judgment in No. 70-99 is reversed; the judgment in No. 70-212 is affirmed. It is so ordered.MR. JUSTICE POWELL took no part in the consideration or decision of these cases.

The Akron City Council enacted a fair housing ordinance which established a Commission on Equal Opportunity in Housing to enforce the antidiscrimination sections through conciliation or persuasion, if possible, or, if not, through orders judicially enforceable. Thereafter, a proposal for an amendment to the city charter, which had been placed on the ballot by petition, was passed. It provided that any ordinance (including any in effect) which regulates the use, sale, advertisement, transfer, listing assignment, lease, sublease, or financing of real property on the basis of race, color, religion, national origin, or ancestry must first be approved by a majority of the voters before becoming effective. The trial court denied appellant's housing discrimination complaint, holding that the fair housing ordinance was rendered ineffective by the charter amendment, and the Ohio Supreme Court affirmed, finding that the amendment was not repugnant to the Equal Protection Clause. Held: 1. The case is not moot. Neither the 1968 Civil Rights Act (which specifically preserves local fair housing laws), nor the 1866 Civil Rights Act, was intended to pre-empt local housing ordinances; the Ohio Act of October 30, 1965 (which concerns "commercial" housing), does not apply to this case; and the Akron ordinance provides an enforcement mechanism unmatched by either state or federal legislation. Pp. 388-389. 2. The charter amendment contains an explicitly racial classification treating racial housing matters differently from other racial and housing matters and places special burdens on racial and religious minorities within the governmental process by making it more difficult for them to secure legislation on their behalf. Pp. 389-391. 3. Racial classifications "bear a heavier burden of justification" than other classifications, and here Akron has not justified its discrimination against minorities, which constitutes a denial of the equal protection of the laws. Pp. 391-393. 12 Ohio St. 2d 116, 233 N. E. 2d 129, reversed. Robert L. Carter argued the cause for appellant. With him on the brief were Norman Purnell, Bernard R. Roetzel, and Lewis M. Steel.Alvin C. Vinopal argued the cause for appellees. With him on the brief was William R. Baird.Louis F. Claiborne argued the cause for the United States, as amicus curiae, urging reversal. With him on the brief were Solicitor General Griswold, Assistant Attorney General Pollak, Francis X. Beytagh, Jr., and Nathan Lewin.MR. JUSTICE WHITE delivered the opinion of the Court.The question in this case is whether the City of Akron, Ohio, has denied a Negro citizen, Nellie Hunter, the equal protection of its laws by amending the city charter to prevent the city council from implementing any ordinance dealing with racial, religious, or ancestral discrimination in housing without the approval of the majority of the voters of Akron.The Akron City Council in 1964 enacted a fair housing ordinance premised on a recognition of the social and economic losses to society which flow from substandard, ghetto housing and its tendency to breed discrimination and segregation contrary to the policy of the city to "assure equal opportunity to all persons to live in decent housing facilities regardless of race, color, religion, ancestry or national origin." Akron Ordinance No. 873-1964 1. A Commission on Equal Opportunity in Housing was established by the ordinance in the office of the Mayor to enforce the antidiscrimination sections of the ordinance through conciliation or persuasion if possible, but, if not, then through "such order as the facts warrant," based upon a hearing at which witnesses may be subpoenaed, and entitled to enforcement in the courts. Akron Ordinance No. 873-1964, as amended by Akron Ordinance No. 926-1964. Seeking to invoke this machinery which had been established by the city for her benefit, Nellie Hunter addressed a complaint to the Commission asserting that a real estate agent had come to show her a list of houses for sale, but that on meeting Mrs. Hunter the agent "stated that she could not show me any of the houses on the list she had prepared for me because all of the owners had specified they did not wish their houses shown to negroes." Mrs. Hunter's affidavit met with the reply that the fair housing ordinance was unavailable to her because the city charter had been amended to provide: "Any ordinance enacted by the Council of The City of Akron which regulates the use, sale, advertisement, transfer, listing assignment, lease, sublease or financing of real property of any kind or of any interest therein on the basis of race, color, religion, national origin or ancestry must first be approved by a majority of the electors voting on the question at a regular or general election before said ordinance shall be effective. Any such ordinance in effect at the time of the adoption of this section shall cease to be effective until approved by the electors as provided herein." Akron City Charter 137. The proposal for the charter amendment had been placed on the ballot at a general election upon petition of more than 10% of Akron's voters, and the amendment had been duly passed by a majority.Appellant then brought an action in the Ohio courts on behalf of the municipality, herself, and all others similarly situated, to obtain a writ of mandamus requiring the Mayor to convene the Commission and to require the Commission and the Director of Law to enforce the fair housing ordinance and process her complaint. The trial court initially held the enforcement provisions of the fair housing ordinance invalid under state law, but the Supreme Court of Ohio reversed, State ex rel. Hunter v. Erickson, 6 Ohio St. 2d 130, 216 N. E. 2d 371 (1966). On remand, the trial court held that the fair housing ordinance was rendered ineffective by the charter amendment, and the Supreme Court of Ohio affirmed, holding that the charter amendment was not repugnant to the Equal Protection Clause of the Constitution.Akron contends that this case has been rendered moot by the passage of the Civil Rights Act of 1968, Pub. L. 90-284, 82 Stat. 73, the decision of this Court in Jones v. Alfred H. Mayer Co., , and the passage of an Ohio Act effective October 30, 1965, Ohio Rev. Code Ann., Tit. 41, c. 4112. It is true that each of these events is related to open housing, but none of the legislation involved was intended to pre-empt local housing ordinances or provide rights and remedies which are effective substitutes for the Akron law.The 1968 Civil Rights Act specifically preserves and defers to local fair housing laws,1 and the 1866 Civil Rights Act2 considered in Jones should be read together with the later statute on the same subject, United States v. Stewart, ; Talbot v. Seeman, 1 Cranch 1, 34-35 (1801), so as not to pre-empt the local legislation which the far more detailed Act of 1968 so explicitly preserves. If the Ohio statute mooted the case, surely the Ohio Supreme Court would have so held when the validity of the Akron ordinance was twice before it after the Ohio statute was passed. Moreover, the sections of the Ohio law which are crucial here apply only to "commercial housing," and on any reading we can imagine do not apply to Mrs. Hunter's case,3 though the Akron ordinance does. Finally, the case cannot be considered moot since the Akron ordinance provides an enforcement mechanism unmatched by either state or federal legislation. Unlike state or federal programs, the Akron ordinance brings local people together for conciliation and persuasion by and before a local tribunal. It is precisely this sort of very localized solution to which Congress meant to defer. We therefore reject the contention that this case is moot.Akron argues that this case is unlike Reitman v. Mulkey, in that here the city charter declares no right to discriminate in housing, authorizes and encourages no housing discrimination, and places no ban on the enactment of fair housing ordinances. But we need not rest on Reitman to decide this case. Here, unlike Reitman, there was an explicitly racial classification treating racial housing matters differently from other racial and housing matters.By adding 137 to its Charter the City of Akron, which unquestionably wields state power,4 not only suspended the operation of the existing ordinance forbidding housing discrimination, but also required the approval of the electors before any future ordinance could take effect.5 Section 137 thus drew a distinction between those groups who sought the law's protection against racial, religious, or ancestral discriminations in the sale and rental of real estate and those who sought to regulate real property transactions in the pursuit of other ends. Those who sought, or would benefit from, most ordinances regulating the real property market remained subject to the general rule: the ordinance would become effective 30 days after passage by the City Council, or immediately if passed as an emergency measure, and would be subject to referendum only if 10% of the electors so requested by filing a proper and timely petition.6 Passage by the Council sufficed unless the electors themselves invoked the general referendum provisions of the city charter. But for those who sought protection against racial bias, the approval of the City Council was not enough. A referendum was required by charter at a general or regular election, without any provision for use of the expedited special election ordinarily available. The Akron charter obviously made it substantially more difficult to secure enactment of ordinances subject to 137.Only laws to end housing discrimination based on "race, color, religion, national origin or ancestry" must run 137's gantlet. It is true that the section draws no distinctions among racial and religious groups. Negroes and whites, Jews and Catholics are all subject to the same requirements if there is housing discrimination against them which they wish to end. But 137 nevertheless disadvantages those who would benefit from laws barring racial, religious, or ancestral discriminations as against those who would bar other discriminations or who would otherwise regulate the real estate market in their favor. The automatic referendum system does not reach housing discrimination on sexual or political grounds, or against those with children or dogs, nor does it affect tenants seeking more heat or better maintenance from landlords, nor those seeking rent control, urban renewal, public housing, or new building codes.Moreover, although the law on its face treats Negro and white, Jew and gentile in an identical manner, the reality is that the law's impact falls on the minority. The majority needs no protection against discrimination and if it did, a referendum might be bothersome but no more than that. Like the law requiring specification of candidates' race on the ballot, Anderson v. Martin, , 137 places special burdens on racial minorities within the governmental process. This is no more permissible than denying them the vote, on an equal basis with others. Cf. Gomillion v. Lightfoot, ; Reynolds v. Sims, ; Avery v. Midland County, . The preamble to the open housing ordinance which was suspended by 137 recited that the population of Akron consists of "people of different race, color, religion, ancestry or national origin, many of whom live in circumscribed and segregated areas, under sub-standard, unhealthful, unsafe, unsafe, unsanitary and overcrowded conditions, because of discrimination in the sale, lease, rental and financing of housing." Such was the situation in Akron. It is against this background that the referendum required by 137 must be assessed.Because the core of the Fourteenth Amendment is the prevention of meaningful and unjustified official distinctions based on race, Slaughter-House Cases, 16 Wall. 36, 71 (1873); Strauder v. West Virginia, ; Ex parte Virginia, ; McLaughlin v. Florida, ; Loving v. Virginia, , racial classifications are "constitutionally suspect," Bolling v. Sharpe, , and subject to the "most rigid scrutiny," Korematsu v. United States, . They "bear a far heavier burden of justification" than other classifications, McLaughlin v. Florida, .We are unimpressed with any of Akron's justifications for its discrimination. Characterizing it simply as a public decision to move slowly in the delicate area of race relations emphasizes the impact and burden of 137, but does not justify it. The amendment was unnecessary either to implement a decision to go slowly, or to allow the people of Akron to participate in that decision.7 Likewise, insisting that a State may distribute legislative power as it desires and that the people may retain for themselves the power over certain subjects may generally be true, but these principles furnish no justification for a legislative structure which otherwise would violate the Fourteenth Amendment. Nor does the implementation of this change through popular referendum immunize it. Lucas v. Colorado General Assembly, . The sovereignty of the people is itself subject to those constitutional limitations which have been duly adopted and remain unrepealed. Even though Akron might have proceeded by majority vote at town meeting on all its municipal legislation, it has instead chosen a more complex system. Having done so, the State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person's vote or give any group a smaller representation than another of comparable size. Cf. Reynolds v. Sims, ; Avery v. Midland County, .We hold that 137 discriminates against minorities, and constitutes a real, substantial, and invidious denial of the equal protection of the laws. Reversed.

1. The District Court's denial of a new trial, upon remittitur of part of the verdict in this case, was not without support in the record, and its action should not have been disturbed by the Court of Appeals. P. 77.2. This Court refuses to decide constitutional questions when the record discloses other grounds of decision, whether or not properly raised here by the parties. P. 78. 216 F.2d 772, reversed.Henry Hammer argued the cause and filed a brief for petitioner.Sidney S. Alderman argued the cause for respondent. With him on the brief were Henry L. Walker and Frank G. Tompkins, Jr.PER CURIAM.We reverse the judgment of the Court of Appeals without reaching the constitutional challenge to that court's jurisdiction to review the denial by the trial court of a motion for a new trial on the ground that the verdict was excessive. Even assuming such appellate power to exist under the Seventh Amendment, we find that the Court of Appeals was not justified, on this record, in regarding the denial of a new trial, upon a remittitur of part of the verdict, as an abuse of discretion. For apart from that question, as we view the evidence we think that the action of the trial court was not without support in the record, and accordingly that its action should not have been disturbed by the Court of Appeals. We need not consider respondent's contention that only the jurisdictional question was presented by the petition for certiorari, for in reversing on the above ground we follow the traditional practice of this Court of refusing to decide constitutional questions when the record discloses other grounds of decision, whether or not they have been properly raised before us by the parties. See Peters v. Hobby, ; Alma Motor Co. v. Timken-Detroit Axle Co., , 136, 142.

In denying petitioners' motion to suppress cocaine found in their car, the District Court ruled that the police had reasonable suspicion to stop and question petitioners, and probable cause to remove one of the interior panels where a package containing the cocaine was found. The Court of Appeals ultimately affirmed both determinations, reviewing each "deferentially," and "for clear error," and finding no clear error in either instance.Held: The ultimate questions of reasonable suspicion to stop and probable cause to make a warrantless search should be reviewed de novo. The principal components of either inquiry are (1) a determination of the historical facts leading up to the stop or search, and (2) a decision on the mixed question of law and fact whether the historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause. Independent appellate review of the latter determination is consistent with the position taken by this Court, see, e.g., Brinegar v. United States, ; will prevent unacceptably varied results based on the interpretation of similar facts by different trial judges, see id., at 171; is necessary if appellate courts are to maintain control of, and to clarify, the pertinent legal rules, see Miller v. Fenton, ; and will tend to unify precedent and to provide police with a defined set of rules which, in most instances, will make it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement, see, e.g., New York v. Belton, . However, a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn therefrom by resident judges, who view such facts in light of the community's distinctive features and events, and by local police, who view the facts through the lens of their experience and expertise. Pp. 5-10. 16 F. 3d 714 and 52 F. 3d 328, vacated and remanded. Rehnquist, C. J., delivered the opinion of the Court, in which Stevens, O'Connor, Kennedy, Souter, Thomas, Ginsburg, and Breyer, JJ., joined. Scalia, J., filed a dissenting opinion. 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, Wash-ington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.[End of Syllabus]U.S. Supreme Court No. 95-5257 SAUL ORNELAS and ISMAEL ORNELAS-LEDESMA, Petitioners v. UNITED STATES On Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit [May 28,1996] Chief Justice Rehnquist delivered the opinion of the Court. Petitioners each pleaded guilty to possession of cocaine with intent to distribute. They reserved their right to appeal the District Court's denial of their motion to suppress the cocaine found in their car. The District Court had found reasonable suspicion to stop and question petitioners as they entered their car, and probable cause to remove one of the interior panels where a package containing two kilos of cocaine was found. The Court of Appeals opined that the findings of reasonable suspicion to stop, and probable cause to search, should be reviewed "deferentially," and "for clear error." We hold that the ultimate questions of reasonable suspicion and probable cause to make a warrantless search should be reviewed de novo. The facts are not disputed. In the early morning of a December day in 1992, Detective Michael Pautz, a 20-year veteran of the Milwaukee County Sheriff's Department with 2 years specializing in drug enforcement, was conducting drug-interdiction surveillance in downtown Milwaukee. Pautz noticed a 1981 two-door Oldsmobile with California license plates in a motel parking lot. The car attracted Pautz's attention for two reasons: because older model, two-door General Motors cars are a favorite with drug couriers because it is easy to hide things in them; and because California is a "source State" for drugs. Detective Pautz radioed his dispatcher to inquire about the car's registration. The dispatcher informed Pautz that the owner was either Miguel Ledesma Ornelas or Miguel Ornelas Ledesma from San Jose, California; Pautz was unsure which name the dispatcher gave. Detective Pautz checked the motel registry and learned that an Ismael Ornelas accompanied by a second man had registered at 4:00 a.m., without reservations. Pautz called for his partner, Donald Hurrle, a detective with approximately 25 years of law enforcement experience, assigned for the past 6 years to the drug enforcement unit. When Hurrle arrived at the scene, the officers contacted the local office of the Drug Enforcement Administration (DEA) and asked DEA personnel to run the names Miguel Ledesma Ornelas and Ismael Ornelas through the Narcotics and Dangerous Drugs Information System (NADDIS), a federal database of known and suspected drug traffickers. Both names appeared in NADDIS. The NADDIS report identified Miguel Ledesma Ornelas as a heroin dealer from El Centro, California, and Ismael Ornelas, Jr. as a cocaine dealer from Tucson, Arizona. The officers then summoned Deputy Luedke and the department's drug-sniffing dog, Merlin. Upon their arrival, Detective Pautz left for another assignment. Detective Hurrle informed Luedke of what they knew and together they waited. Sometime later, petitioners emerged from the motel and got into the Oldsmobile. Detective Hurrle approached the car, identified himself as a police officer, and inquired whether they had any illegal drugs or contraband. Petitioners answered "No." Hurrle then asked for identification and was given two California driver's licenses bearing the names Saul Ornelas and Ismael Ornelas. Hurrle asked them if he could search the car and petitioners consented. The men appeared calm, but Ismael was shaking somewhat. Deputy Luedke, who over the past nine years had searched approximately 2,000 cars for narcotics, searched the Oldsmobile's interior. He noticed that a panel above the right rear passenger armrest felt somewhat loose and suspected that the panel might have been removed and contraband hidden inside. Luedke would testify later that a screw in the door jam adjacent to the loose panel was rusty, which to him meant that the screw had been removed at some time. Luedke dismantled the panel and discovered two kilograms of cocaine. Petitioners were arrested. Petitioners filed pretrial motions to suppress, alleging that the police officers violated their Fourth Amendment rights when the officers detained them in the parking lot and when Deputy Luedke searched inside the panel without a warrant. 1 The Government conceded in the court below that when the officers approached petitioners in the parking lot, a reasonable person would not have felt free to leave, so the encounter was an investigatory stop. See 16 F. 3d 714, 716 (CA7 1994). An investigatory stop is permissible under the Fourth Amendment if supported by reasonable suspicion, Terry v. Ohio, , and a warrantless search of a car is valid if based on probable cause, California v. Acevedo, . After conducting an evidentiary hearing, the Magistrate Judge concluded that the circumstances gave the officers reasonable suspicion, but not probable cause. The Magistrate found, as a finding of fact, that there was no rust on the screw and hence concluded that Deputy Luedke had an insufficient basis to conclude that drugs would be found within the panel. The Magistrate nonetheless recommended that the District Court deny the suppression motions because he thought, given the presence of the drug-sniffing dog, that the officers would have found the cocaine by lawful means eventually and therefore the drugs were admissible under the inevitable discovery doctrine. See Nix v. Williams, . The District Court adopted the Magistrate's recommendation with respect to reasonable suspicion, but not its reasoning as to probable cause. The District Court thought that the model, age, and source-State origin of the car, and the fact that two men traveling together checked into a motel at 4 o'clock in the morning without reservations, formed a drug-courier profile and that this profile together with the NADDIS reports gave rise to reasonable suspicion of drug-trafficking activity; in the court's view, reasonable suspicion became probable cause when Deputy Luedke found the loose panel. Accordingly, the court ruled that the cocaine need not be excluded. 2 The Court of Appeals reviewed deferentially the District Court's determinations of reasonable suspicion and probable cause; it would reverse only upon a finding of "clear error." 3 16 F. 3d, at 719. The court found no clear error in the reasonable-suspicion analysis and affirmed that determination. Ibid. With respect to the probable-cause finding, however, the court remanded the case for a determination on whether Luedke was credible when testifying about the loose panel. Id., at 721-722. On remand, the Magistrate Judge expressly found the testimony credible. The District Court accepted the finding, and once again ruled that probable cause supported the search. The Seventh Circuit held that determination not clearly erroneous. Judgt. order reported at 52 F. 3d 328 (1995). We granted certiorari to resolve the conflict among the Circuits over the applicable standard of appellate review. ___ (1996). 4 Articulating precisely what "reasonable suspicion" and "probable cause" mean is not possible. They are commonsense, nontechnical conceptions that deal with " `the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.' " Illinois v. Gates, (quoting Brinegar v. United States, ); see United States v. Sokolow, . As such, the standards are "not readily, or even usefully, reduced to a neat set of legal rules." Gates, supra, at 232. We have described reasonable suspicion simply as "a particularized and objective basis" for suspecting the person stopped of criminal activity, United States v. Cortez, , and probable cause to search as existing where the known facts and circumstances are sufficient to warrant a man of reasonable prudence in the belief that contraband or evidence of a crime will be found, see Brinegar, supra, at 175-176; Gates, supra, at 238. We have cautioned that these two legal principles are not "finely-tuned standards," comparable to the standards of proof beyond a reasonable doubt or of proof by a preponderance of the evidence. Gates, supra, at 235. They are instead fluid concepts that take their substantive content from the particular contexts in which the standards are being assessed. Gates, supra, at 232; Brinegar, supra, at 175 ("The standard of proof [for probable cause] is ... correlative to what must be proved"); Ker v. California, ("This Cour[t] [has a] long-established recognition that standards of reasonableness under the Fourth Amendment are not susceptible of Procrustean application"; "[e]ach case is to be decided on its own facts and circumstances" (internal quotation marks omitted)); Terry v. Ohio, supra, at 29 (the limitations imposed by the Fourth Amendment "will have to be developed in the concrete factual circumstances of individual cases"). The principal components of a determination of reasonable suspicion or probable cause will be the events which occurred leading up to the stop or search, and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion or to probable cause. The first part of the analysis involves only a determination of historical facts, but the second is a mixed question of law and fact: "[T]he historical facts are admitted or established, the rule of law is undisputed, and the issue is whether the facts satisfy the [relevant] statutory [or constitutional] standard, or to put it another way, whether the rule of law as applied to the established facts is or is not violated." Pullman-Standard v. Swint, , n. 19 (1982). We think independent appellate review of these ultimate determinations of reasonable suspicion and probable cause is consistent with the position we have taken in past cases. We have never, when reviewing a probable-cause or reasonable-suspicion determination ourselves, expressly deferred to the trial court's determination. See, e.g., Brinegar, supra (rejecting district court's conclusion that the police lacked probable cause); Alabama v. White, (conducting independent review and finding reasonable suspicion). A policy of sweeping deference would permit, "[i]n the absence of any significant difference in the facts," "the Fourth Amendment's incidence [to] tur[n] on whether different trial judges draw general conclusions that the facts are sufficient or insufficient to constitute probable cause." Brinegar, supra, at 171. Such varied results would be inconsistent with the idea of a unitary system of law. This, if a matter-of-course, would be unacceptable. In addition, the legal rules for probable cause and reasonable suspicion acquire content only through application. Independent review is therefore necessary if appellate courts are to maintain control of, and to clarify the legal principles. See Miller v. Fenton, (where the "relevant legal principle can be given meaning only through its application to the particular circumstances of a case, the Court has been reluctant to give the trier of fact's conclusions presumptive force and, in so doing, strip a federal appellate court of its primary function as an expositor of law"). Finally, de novo review tends to unify precedent and will come closer to providing law enforcement officers with a defined " `set of rules which, in most instances, makes it possible to reach a correct determination beforehand as to whether an invasion of privacy is justified in the interest of law enforcement.' " New York v. Belton, ; see also Thompson v. Keohane___, ___ (1995) (slip op., at 16) ("[T]he law declaration aspect of independent review potentially may guide police, unify precedent, and stabilize the law," and those effects "serve legitimate law enforcement interests"). It is true that because the mosaic which is analyzed for a reasonable-suspicion or probable-cause inquiry is multi-faceted, "one determination will seldom be a useful `precedent' for another," Gates, supra, at 238, n. 11. But there are exceptions. For instance, the circumstances in Brinegar, supra, and Carroll v. United States, were so alike that we concluded that reversing the Circuit Court's decision in Brinegar was necessary to be faithful to Carroll. Brinegar, supra, at 178 ("Nor ... can we find in the present facts any substantial basis for distinguishing this case from the Carroll case"). We likewise recognized the similarity of facts in United States v. Sokolow, and Florida v. Royer, (in both cases, the defendant traveled under an assumed name; paid for an airline ticket in cash with a number of small bills; traveled from Miami, a source city for illicit drugs; and appeared nervous in the airport). The same was true both in United States v. Ross, and California v. Acevedo, , see id., at 572 ("The facts in this case closely resemble the facts in Ross"); and in United States v. Mendenhall, , and Reid v. Georgia, , see id., at 443 (Powell, J., concurring) ("facts [in Mendenhall] [are] remarkably similar to those in the present case"). And even where one case may not squarely control another one, the two decisions when viewed together may usefully add to the body of law on the subject. The Court of Appeals, in adopting its deferential standard of review here, reasoned that de novo review for warrantless searches would be inconsistent with the " `great deference' " paid when reviewing a decision to issue a warrant, see Illinois v. Gates, . See United States v. Spears, 965 F. 2d 262, 269-271 (CA7 1992). We cannot agree. The Fourth Amendment demonstrates a "strong preference for searches conducted pursuant to a warrant," Gates, supra, at 236, and the police are more likely to use the warrant process if the scrutiny applied to a magistrate's probable-cause determination to issue a warrant is less than that for warrantless searches. Were we to eliminate this distinction, we would eliminate the incentive. We therefore hold that as a general matter determinations of reasonable suspicion and probable cause should be reviewed de novo on appeal. Having said this, we hasten to point out that a reviewing court should take care both to review findings of historical fact only for clear error and to give due weight to inferences drawn from those facts by resident judges and local law enforcement officers. A trial judge views the facts of a particular case in light of the distinctive features and events of the community; likewise a police officer views the facts through the lens of his police experience and expertise. The background facts provide a context for the historical facts, and when seen together yield inferences that deserve deference. For example, what may not amount to reasonable suspicion at a motel located alongside a transcontinental highway at the height of the summer tourist season may rise to that level in December in Milwaukee. That city is unlikely to have been an overnight stop selected at the last minute by a traveler coming from California to points east. The 85-mile width of Lake Michigan blocks any further eastward progress. And while the city's salubrious summer climate and seasonal attractions bring many tourists at that time of year, the same is not true in December. Milwaukee's average daily high temperature in that month is 31 degrees and its average daily low is 17 degrees; the percentage of possible sunshine is only 38 percent. It is a reasonable inference that a Californian stopping in Milwaukee in December is either there to transact business or to visit family or friends. The background facts, though rarely the subject of explicit findings, inform the judge's assessment of the historical facts. In a similar vein, our cases have recognized that a police officer may draw inferences based on his own experience in deciding whether probable cause exists. See, e.g., United States v. Ortiz, . To a layman the sort of loose panel below the back seat arm rest in the automobile involved in this case may suggest only wear and tear, but to Officer Luedke, who had searched roughly 2,000 cars for narcotics, it suggested that drugs may be secreted inside the panel. An appeals court should give due weight to a trial court's finding that the officer was credible and the inference was reasonable. We vacate the judgments and remand the case to the Court of Appeals to review de novo the District Court's determinations that the officer had reasonable suspicion and probable cause in this case. It is so ordered. Justice Scalia, dissenting. The Court today decides that a district court's determinations whether there was probable cause to justify a warrantless search and reasonable suspicion to make an investigatory stop should be reviewed de novo. We have in the past reviewed some mixed questions of law and fact on a de novo basis, and others on a deferential basis, depending upon essentially practical considerations. Because, with respect to the questions at issue here, the purpose of the determination and its extremely fact-bound nature will cause de novo review to have relatively little benefit, it is in my view unwise to require courts of appeals to undertake the searching inquiry that standard requires. I would affirm the judgment of the Court of Appeals. As the Court recognizes, determinations of probable cause and reasonable suspicion involve a two-step process. First, a court must identify all of the relevant historical facts known to the officer at the time of the stop or search; and second, it must decide whether, under a standard of objective reasonableness, those facts would give rise to a reasonable suspicion justifying a stop or probable cause to search. See ante, at 6-7. Because this second step requires application of an objective legal standard to the facts, it is properly characterized as a mixed question of law and fact. See ante, at 7; Pullman-Standard v. Swint, , n. 19 (1982). Merely labeling the issues "mixed questions," however, does not establish that they receive de novo review. While it is well settled that appellate courts "accep[t] findings of fact that are not `clearly erroneous' but decid[e] questions of law de novo," First Options of Chicago, Inc. v. Kaplan___, ___ (1995) (slip op., at 9), there is no rigid rule with respect to mixed questions. We have said that "deferential review of mixed questions of law and fact is warranted when it appears that the district court is `better positioned' than the appellate court to decide the issue in question or that probing appellate scrutiny will not contribute to the clarity of legal doctrine." Salve Regina College v. Russell, (citing Miller v. Fenton, ). These primary factors that counsel in favor of deferential review of some mixed questions of law and fact-expertise of the district court and lack of law-clarifying value in the appellate decision-are ordinarily present with respect to determinations of reasonable suspicion and probable cause. The factual details bearing upon those determinations are often numerous and (even when supported by uncontroverted police testimony) subject to credibility determinations. An appellate court never has the benefit of the district court's intimate familiarity with the details of the case-nor the full benefit of its hearing of the live testimony, unless the district court makes specific findings on the "totality of the circumstances" bearing upon the stop or search. As we recognized in Cooter & Gell v. Hartmarx Corp., , a case holding that deferential (abuse-of-discretion) review should be applied to a district court's Federal Rule of Civil Procedure 11 determination that an attorney did not conduct a reasonable inquiry or entertain a "substantiated belief" regarding the nonfrivolousness of the complaint, see id., at 393: a district court, "[f]amiliar with the issues and litigants ... is better situated than the court of appeals to marshal the pertinent facts and apply the fact-dependent legal standard ... ." Id., at 402. Moreover, as the Court acknowledges, "reasonable suspicion" and "probable cause" are "commonsense, nontechnical conceptions that deal with ` "the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." ' " Ante, at 5-6 (quoting Illinois v. Gates, (quoting Brinegar v. United States, )). Where a trial court makes such commonsense determinations based on the totality of circumstances, it is ordinarily accorded deference. What we said in a case concerning the question whether certain payments were a "gift" excludable from income under the Internal Revenue Code, is equally pertinent here."Decision of the issue presented in these cases must be based ultimately on the application of the fact-finding tribunal's experience with the mainsprings of human conduct to the totality of the facts of each case. The nontechnical nature of the ... standard, the close relationship of it to the data of practical human experience, and the multiplicity of relevant factual elements, with their various combinations, creating the necessity of ascribing the proper force to each, confirm us in our conclusion that primary weight in this area must be given to the conclusions of the trier of fact." Commissioner v. Duberstein, . With respect to the second factor counseling in favor of deferential review, level of law-clarifying value in the appellate decision: Law clarification requires generalization, and some issues lend themselves to generalization much more than others. Thus, in Pierce v. Underwood, , a principal basis for our applying an abuse-of-discretion standard to a district court's determination that the United States' litigating position was "substantially justified" within the meaning of the Equal Access to Justice ActC. Section(s) 2412(d), was that the question was "a multifarious and novel question, little susceptible, for the time being at least, of useful generalization." Ibid. Probable cause and reasonable suspicion determinations are similarly resistant to generalization. As the Court recognizes, these are "fluid concepts," " `not readily, or even usefully, reduced to a neat set of legal rules' "; and "because the mosaic which is analyzed for a reasonable-suspicion or probable-cause inquiry is multifaceted, `one determination will seldom be a useful "precedent" for another.' " Ante, at 6, 8 (quoting Illinois v. Gates, supra, at 232, 238, n. 11). The Court maintains that there will be exceptions to this-that fact-patterns will occasionally repeat themselves, so that a prior de novo appellate decision will provide useful guidance in a similar case. Ante, at 8-9. I do not dispute that, but I do not understand why we should allow the exception to frame the rule. Here, as in Anderson v. Bessemer City, , "[d]uplication of the trial judge's efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact de-termination at a huge cost in diversion of judicial resources." The facts of this very case illustrate the futility of attempting to craft useful precedent from the fact-intensive review demanded by determinations of probable cause and reasonable suspicion. On remand, in conducting de novo review, the Seventh Circuit might consider, inter alia, the following factors relevant to its determination whether there was probable cause to conduct a warrantless search and reasonable suspicion justifying the investigatory stop: (i) the two NADDIS tips; (ii) that the car was a 1981 two-door General Motors product; (iii) that the car was from California, a source state; (iv) that the car was in Milwaukee; (v) that it was December; (vi) that one suspect checked into the hotel at 4 a.m.; (vii) that he did not have reservations; (viii) that he had one traveling companion; (ix) that one suspect appeared calm but shaking; and (x) that there was a loose panel in the car door. If the Seventh Circuit were to find that this unique confluence of factors supported probable cause and reasonable suspicion, the absence of any one of these factors in the next case would render the precedent inapplicable. Of course, even when all of the factors are replicated, use of a de novo standard as opposed to a deferential standard will provide greater clarity only where the latter would not suffice to set the trial court's conclusion aside. For where the appellate court holds, on the basis of deferential review, that it was reversible error for a district court to find probable cause or reasonable suspicion in light of certain facts, it advances the clarity of the law just as much as if it had reversed the district court after conducting plenary review. In the present case, an additional factor counseling against de novo review must be mentioned: The prime benefit of de novo appellate review in criminal cases is, of course, to prevent a miscarriage of justice that might result from permitting the verdict of guilty to rest upon the legal determinations of a single judge. But the issue in these probable-cause and reasonable-suspicion cases is not innocence but deterrence of unlawful police conduct. That deterrence will not be at all lessened if the trial judge's determination, right or wrong, is subjected to only deferential review. The Court is wrong in its assertion, ante, at 9, that unless there is a dual standard of review-deferential review of a magistrate's decision to issue a warrant, and de novo review of a district court's ex post facto approval of a warrantless search-the incentive to obtain a warrant would be eliminated. In United States v. Leon, , we held that "reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate ... should be admissible in the prosecutor's case in chief." Only a warrant can provide this assurance that the fruits of even a technically improper search will be admissible. Law enforcement officers would still have ample incentive to proceed by warrant. Finally, I must observe that the Court does not appear to have the courage of its conclusions. In an apparent effort to reduce the unproductive burden today's decision imposes upon appellate courts, or perhaps to salvage some of the trial court's superior familiarity with the facts that it has cast aside, the Court suggests that an appellate court should give "due weight" to a trial court's finding that an officer's inference of wrongdoing (i.e., his assessment of probable cause to search), was reasonable. Ante, at 10. The Court cannot have it both ways. This finding of "reasonableness" is precisely what it has told us the appellate court must review de novo; and in de novo review, the "weight due" to a trial court's finding is zero. In the last analysis, there-fore, the Court's opinion seems to me not only wrong but contradictory. * * * I would affirm the judgment of the Seventh Circuit on the ground that it correctly applied a deferential standard of review to the District Court's findings of probable cause and reasonable suspicion.

After this Court decided, in Seminole Tribe of Fla. v. Florida,517 U. S. 44, that Congress lacks power under Article I to abrogate the States' sovereign immunity in federal court, the Federal District Court dismissed a Fair Labor Standards Act of 1938 suit filed by petitioners against their employer, respondent Maine. Subsequently, petitioners filed the same action in state court. Although the FLSA purports to authorize private actions against States in their own courts, the trial court dismissed the suit on the ground of sovereign immunity. The Maine Supreme Judicial Court affirmed.Held: 1. The Constitution's structure and history and this Court's authoritative interpretations make clear that the States' immunity from suit is a fundamental aspect of the sovereignty they enjoyed before the Constitution's ratification and retain today except as altered by the plan of the Convention or certain constitutional Amendments. Under the federal system established by the Constitution, the States retain a "residuary and inviolable sovereignty." The Federalist No. 39, p. 245. They are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty. The founding generation considered immunity from private suits central to this dignity. The doctrine that a sovereign could not be sued without its consent was universal in the States when the Constitution was drafted and ratified. In addition, the leading advocates of the Constitution gave explicit assurances during the ratification debates that the Constitution would not strip States of sovereign immunity. This was also the understanding of those state conventions that addressed state sovereign immunity in their ratification documents. When, just five years after the Constitution's adoption, this Court held that Article III authorized a private citizen of another State to sue Georgia without its consent, Chisholm v. Georgia, 2 Dall. 419, the Eleventh Amendment was ratified. An examination of Chisholm indicates that the case, not the Amendment, deviated from the original understanding, which was to preserve States' traditional immunity from suit. The Amendment's text and history also suggest that Congress acted not to change but to restore the original constitutional design. Finally, the swiftness and near unanimity with which the Amendment was adopted indicate that the Court had not captured the original understanding. This Court's subsequent decisions reflect a settled doctrinal understanding that sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution. Since the Amendment confirmed rather than established sovereign immunity as a constitutional principal, it follows that that immunity's scope is demarcated not by the text of the Amendment alone but by fundamental postulates implicit in the constitutional design. Pp. 3-20. 2. The States' immunity from private suit in their own courts is beyond congressional power to abrogate by Article I legislation. Pp. 20-45. (a) Congress may exercise its Article I powers to subject States to private suits in their own courts only if there is compelling evidence that States were required to surrender this power to Congress pursuant to the constitutional design. Blatchford v. Native Village of Noatak,501 U. S. 775, 781. Pp. 20-21. (b) Neither the Constitution's text nor the Court's recent sovereign immunity decisions establish that States were required to relinquish this portion of their sovereignty. Pp. 21-31. (1) The Constitution, by delegating to Congress the power to establish the supreme law of the land when acting within its enumerated powers, does not foreclose a State from asserting immunity to claims arising under federal law merely because that law derives not from the State itself but from the national power. See, e.g., Hans v. Louisiana,134 U. S. 1. Moreover, the specific Article I powers delegated to Congress do not necessarily include the incidental authority to subject States to private suits as a means of achieving objectives otherwise within the enumerated powers' scope. Those decisions that have endorsed this contention, see, e.g., Parden v. Terminal R. Co. of Ala. Docks Dept.,377 U. S. 184, 190-194, have been overruled, see, e.g.,College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., ante, at ___. Pp. 21-26. (2) Isolated statements in some of this Court's cases suggest that the Eleventh Amendment is inapplicable in state courts. This is a truism as to the Amendment's literal terms. However, the Amendment's bare text is not an exhaustive description of States' constitutional immunity, and the cases do not decide the question whether States retain immunity in their own courts notwithstanding an attempted abrogation by Congress. Pp. 26-31. (c) Whether Congress has the authority under Article I to abrogate a State's immunity in its own courts is, then, a question of first impression. History, practice, precedent, and the Constitution's structure show no compelling evidence that this derogation of the States' sovereignty is inherent in the constitutional compact. Pp.31-48. (1) Turning first to evidence of the original understanding of the Constitution: The founders silence regarding the States' immunity from suit in their own courts, despite the controversy regarding state sovereign immunity in federal court, suggests the sovereign's right to assert immunity from suit in its own courts was so well established that no one conceived the new Constitution would alter it. The arguments raised for and against the Constitution during ratification confirm this strong inference. Similarly, nothing in Chisholm, the catalyst for the Eleventh Amendment, suggested the States were not immune from suits in their own courts. The Amendment's language, furthermore, was directed toward Article III, the only constitutional provision believed to call state sovereign immunity into question; and nothing in that Article suggested the States could not assert immunity in their own courts or that Congress had the power to abrogate such immunity. Finally, implicit in a proposal rejected by Congress — which would have limited the Amendment's scope to cases where States had made available a remedy in their own courts — was the premise that States retained their immunity and the concomitant authority to decide whether to allow private suits against the sovereign in their own courts. Pp. 31-34. (2) The historical analysis is supported by early congressional practice. Early Congresses enacted no statutes purporting to authorize suits against nonconsenting States in state court, and statutes purporting to authorize such suits in any forum are all but absent in the Nation's historical experience. Even recent statutes provide no evidence of an understanding that Congress has a greater power to subject States to suit in their own courts than in federal courts. Pp. 34-35. (3) The theory and reasoning of this Court's earlier cases also suggest that States retain constitutional immunity from suit in their own courts. The States' immunity has been described in sweeping terms, without reference to whether a suit was prosecuted in state or federal court. See, e.g., Briscoe v. Bank of Kentucky, 11 Pet. 257, 321-322. The Court has said on many occasions that the States retain their immunity in their own courts, see, e.g., Beers v. Arkansas, 20 How. 527, 529, and has relied on that as a premise in its Eleventh Amendment rulings, see, e.g.,Hans v. Louisiana, supra, at 10. Pp. 35-39. (4) A review of the essential principles of federalism and the state courts' special role in the constitutional design leads to the conclusion that a congressional power to subject nonconsenting States to private suits in their own courts is inconsistent with the Constitution's structure. Federalism requires that Congress accord States the respect and dignity due them as residuary sovereigns and joint participants in the Nation's governance. Immunity from suit in federal courts is not enough to preserve that dignity, for the indignity of subjecting a nonconsenting State to the coercive process of judicial tribunals at the instance of private parties exists regardless of the forum. In some ways, a congressional power to authorize suits against States in their own courts would be even more offensive to state sovereignty than a power to authorize suits in a federal forum, since a sovereign's immunity in its own courts has always been understood to be within the sole control of the sovereign itself. Further, because the Federal Government retains its own immunity from suit in state and federal court, this Court is reluctant to conclude that States are not entitled to a reciprocal privilege. Underlying constitutional form are considerations of great substance. Private suits against nonconsenting States may threaten their financial integrity, and the surrender of immunity carries with it substantial costs to the autonomy, decisionmaking ability, and sovereign capacity of the States. A general federal power to authorize private suits for money damages would also strain States' ability to govern in accordance with their citizens' will, for judgment creditors compete with other important needs and worthwhile ends for access to the public fisc, necessitating difficult decisions involving the most sensitive and political of judgments. A national power to remove these decisions regarding the allocation of scarce resources from the political processes established by the citizens of the States and commit their resolution to judicial decrees mandated by the Federal Government and invoked by the private citizen would blur not only the State and National Governments' distinct responsibilities but also the separate duties of the state government's judicial and political branches. Congress cannot abrogate States' sovereign immunity in federal court; were the rule different here, the National Government would wield greater power in state courts than in federal courts. This anomaly cannot be explained by reference to the state courts' special role in the constitutional design. It would be unprecedented to infer from the fact that Congress may declare federal law binding and enforceable in state courts the further principle that Congress' authority to pursue federal objectives through state courts exceeds not only its power to press other branches of the State into its service but also its control over federal courts. The constitutional provisions upon which this Court has relied in finding state courts peculiarly amendable to federal command, moreover, do not distinguish those courts from the Federal Judiciary. No constitutional precept would admit of a congressional power to require state courts to entertain federal suits which are not within the United States' judicial power and could not be heard in federal courts. Pp. 39-46. 3. A State's constitutional privilege to assert its sovereign immunity in its own courts does not confer upon the State a concomitant right to disregard the Constitution or valid federal law. States and their officers are bound by obligations imposed by the Constitution and federal statutes that comport with the constitutional design. Limits implicit in the constitutional principle of sovereign immunity strike the proper balance between the supremacy of federal law and the separate sovereignty of the States. The first limit is that sovereign immunity bars suits only in the absence of consent. Many States have enacted statutes consenting to suits and have consented to some suits pursuant to the plan of the Convention or to subsequent constitutional Amendments. The second important limit is that sovereign immunity bars suits against States but not against lesser entities, such as municipal corporations, or against state officers for injunctive or declaratory relief or for money damages when sued in their individual capacities. Pp. 46-48. 4. Maine has not waived its immunity. It adheres to the general rule that a specific legislative enactment is required to waive sovereign immunity. Although petitioners contend that Maine discriminated against federal rights by claiming immunity from this suit, there is no evidence that it has manipulated its immunity in a systematic fashion to discriminate against federal causes of action. To the extent Maine has chosen to consent to certain classes of suits while maintaining its immunity from others, it has done no more than exercise a privilege of sovereignty. P. 49.715 A. 2d 172, affirmed. Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and O'Connor, Scalia, and Thomas, JJ., joined. Souter, J., filed a dissenting opinion, in which Stevens, Ginsburg, and Breyer, JJ., joined. JOHN H. ALDEN, et al., PETITIONERS v. MAINEon writ of certiorari to the supreme judicial court of maine[June 23, 1999] Justice Kennedy delivered the opinion of the Court. In 1992, petitioners, a group of probation officers, filed suit against their employer, the State of Maine, in the United States District Court for the District of Maine. The officers alleged the State had violated the overtime provisions of the Fair Labor Standards Act of 1938 (FLSA), 52 Stat. 1060, as amended, 29 U. S. C. §201 et seq., and sought compensation and liquidated damages. While the suit was pending, this Court decided Seminole Tribe of Fla. v. Florida,517 U. S. 44 (1996), which made it clear that Congress lacks power under Article I to abrogate the States' sovereign immunity from suits commenced or prosecuted in the federal courts. Upon consideration of Seminole Tribe, the District Court dismissed petitioners' action, and the Court of Appeals affirmed. Mills v. Maine, 118 F. 3d 37 (CA1 1997). Petitioners then filed the same action in state court. The state trial court dismissed the suit on the basis of sovereign immunity, and the Maine Supreme Judicial Court affirmed. 715 A. 2d 172 (1998). The Maine Supreme Judicial Court's decision conflicts with the decision of the Supreme Court of Arkansas, Jacoby v. Arkansas Dept. of Ed., 331 Ark. 508, 962 S. W. 2d 773 (1998), and calls into question the constitutionality of the provisions of the FLSA purporting to authorize private actions against States in their own courts without regard for consent, see 29 U. S. C. §§216(b), 203(x). In light of the importance of the question presented and the conflict between the courts, we granted certiorari. 525 U. S. ___ (1998). The United States intervened as a petitioner to defend the statute. We hold that the powers delegated to Congress under Article I of the United States Constitution do not include the power to subject nonconsenting States to private suits for damages in state courts. We decide as well that the State of Maine has not consented to suits for overtime pay and liquidated damages under the FLSA. On these premises we affirm the judgment sustaining dismissal of the suit.I The Eleventh Amendment makes explicit reference to the States' immunity from suits "commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U. S. Const., Amdt. 11. We have, as a result, sometimes referred to the States' immunity from suit as "Eleventh Amendment immunity." The phrase is convenient shorthand but something of a misnomer, for the sovereign immunity of the States neither derives from nor is limited by the terms of the Eleventh Amendment. Rather, as the Constitution's structure, and its history, and the authoritative interpretations by this Court make clear, the States' immunity from suit is a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution, and which they retain today (either literally or by virtue of their admission into the Union upon an equal footing with the other States) except as altered by the plan of the Convention or certain constitutional Amendments.A Although the Constitution establishes a National Government with broad, often plenary authority over matters within its recognized competence, the founding document "specifically recognizes the States as sovereign entities." Seminole Tribe of Fla. v. Florida, supra, at 71, n. 15; accord, Blatchford v. Native Village of Noatak,501 U. S. 775, 779 (1991) ("[T]he States entered the federal system with their sovereignty intact"). Various textual provisions of the Constitution assume the States' continued existence and active participation in the fundamental processes of governance. See Printz v. United States,521 U. S. 898, 919 (1997) (citing Art. III, §2; Art. IV, §§2-4; Art. V). The limited and enumerated powers granted to the Legislative, Executive, and Judicial Branches of the National Government, moreover, underscore the vital role reserved to the States by the constitutional design, see, e.g., Art. I, §8; Art. II, §§2-3; Art. III, §2. Any doubt regarding the constitutional role of the States as sovereign entities is removed by the Tenth Amendment, which, like the other provisions of the Bill of Rights, was enacted to allay lingering concerns about the extent of the national power. The Amendment confirms the promise implicit in the original document: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." U. S. Const., Amdt. 10; see also Printz, supra, at 919; New York v. United States,505 U. S. 144, 156-159, 177 (1992). The federal system established by our Constitution preserves the sovereign status of the States in two ways. First, it reserves to them a substantial portion of the Nation's primary sovereignty, together with the dignity and essential attributes inhering in that status. The States "form distinct and independent portions of the supremacy, no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere." The Federalist No. 39, p. 245 (C. Rossiter ed. 1961) (J. Madison). Second, even as to matters within the competence of the National Government, the constitutional design secures the founding generation's rejection of "the concept of a central government that would act upon and through the States" in favor of "a system in which the State and Federal Governments would exercise concurrent authority over the people — who were, in Hamilton's words, `the only proper objects of government.' " Printz, supra, at 919-920 (quoting The Federalist No. 15, at 109); accord, New York, supra, at 166 ("The Framers explicitly chose a Constitution that confers upon Congress the power to regulate individuals, not States"). In this the founders achieved a deliberate departure from the Articles of Confederation: Experience under the Articles had "exploded on all hands" the "practicality of making laws, with coercive sanctions, for the States as political bodies." 2 Records of the Federal Convention of 1787, p. 9 (M. Farrand ed. 1911) (J. Madison); accord, The Federalist No. 20, at 138 (J. Madison & A. Hamilton); 3 Annals of America 249 (1976) (J. Iredell). The States thus retain "a residuary and inviolable sovereignty." The Federalist No. 39, at 245. They are not relegated to the role of mere provinces or political corporations, but retain the dignity, though not the full authority, of sovereignty.B The generation that designed and adopted our federal system considered immunity from private suits central to sovereign dignity. When the Constitution was ratified, it was well established in English law that the Crown could not be sued without consent in its own courts. See Chisholm v. Georgia, 2 Dall. 419, 437-446 (1793) (Iredell, J., dissenting) (surveying English practice); cf. Nevada v. Hall,440 U. S. 410, 414 (1979) ("The immunity of a truly independent sovereign from suit in its own courts has been enjoyed as a matter of absolute right for centuries. Only the sovereign's own consent could qualify the absolute character of that immunity"). In reciting the prerogatives of the Crown, Blackstone — whose works constituted the preeminent authority on English law for the founding generation — underscored the close and necessary relationship understood to exist between sovereignty and immunity from suit:"And, first, the law ascribes to the king the attribute of sovereignty, or pre-eminence... . Hence it is, that no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him. For all jurisdiction implies superiority of power... ." 1 W. Blackstone, Commentaries on the Laws of England 234-235 (1765). Although the American people had rejected other aspects of English political theory, the doctrine that a sovereign could not be sued without its consent was universal in the States when the Constitution was drafted and ratified. See Chisholm, supra, at 434-435 (Iredell, J., dissenting) ("I believe there is no doubt that neither in the State now in question, nor in any other in the Union, any particular Legislative mode, authorizing a compulsory suit for the recovery of money against a State, was in being either when the Constitution was adopted, or at the time the judicial act was passed"); Hans v. Louisiana,134 U. S. 1, 16 (1890) ("The suability of a State, without its consent, was a thing unknown to the law. This has been so often laid down and acknowledged by courts and jurists that it is hardly necessary to be formally asserted"). The ratification debates, furthermore, underscored the importance of the States' sovereign immunity to the American people. Grave concerns were raised by the provisions of Article III which extended the federal judicial power to controversies between States and citizens of other States or foreign nations. As we have explained: "Unquestionably the doctrine of sovereign immunity was a matter of importance in the early days of independence. Many of the States were heavily indebted as a result of the Revolutionary War. They were vitally interested in the question whether the creation of a new federal sovereign, with courts of its own, would automatically subject them, like lower English lords, to suits in the courts of the `higher' sovereign." Hall, supra, at 418 (footnote omitted). The leading advocates of the Constitution assured the people in no uncertain terms that the Constitution would not strip the States of sovereign immunity. One assurance was contained in The Federalist No. 81, written by Alexander Hamilton: "It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal... . [T]here is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign Will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without waging war against the contracting State; and to ascribe to the federal courts, by mere implication, and in destruction of the preexisting right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable." Id., at 487-488 (emphasis in original).At the Virginia ratifying convention, James Madison echoed this theme: "Its jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court... . "... It appears to me that this [clause] can have no operation but this — to give a citizen a right to be heard in the federal courts, and if a state should condescend to be a party, this court may take cognizance of it." 3 J. Elliot, Debates on the Federal Constitution 533 (2d ed. 1854) (hereinafter Elliot's Debates).When Madison's explanation was questioned, John Marshall provided immediate support: "With respect to disputes between a state and the citizens of another state, its jurisdiction has been decried with unusual vehemence. I hope no Gentleman will think that a state will be called at the bar of the federal court. Is there no such case at present? Are there not many cases in which the Legislature of Virginia is a party, and yet the State is not sued? It is not rational to suppose, that the sovereign power shall be dragged before a court. The intent is, to enable states to recover claims of individuals residing in other states. I contend this construction is warranted by the words. But, say they, there will be partiality in it if a State cannot be defendant ... It is necessary to be so, and cannot be avoided. I see a difficulty in making a state defendant, which does not prevent its being plaintiff." 3 id., at 555. Although the state conventions which addressed the issue of sovereign immunity in their formal ratification documents sought to clarify the point by constitutional amendment, they made clear that they, like Hamilton, Madison, and Marshall, understood the Constitution as drafted to preserve the States' immunity from private suits. The Rhode Island Convention thus proclaimed that "[i]t is declared by the Convention, that the judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state." 1 id., at 336. The convention sought, in addition, an express amendment "to remove all doubts or controversies respecting the same." Ibid. In a similar fashion, the New York Convention "declare[d] and ma[d]e known," 1 id., at 327, its understanding "[t]hat the judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state," 1 id., at 329. The convention proceeded to ratify the Constitution "[u]nder these impressions, and declaring that the rights aforesaid cannot be abridged or violated, and that the explanations aforesaid are consistent with the said Constitution, and in confidence that the amendments which shall have been proposed to the said Constitution will receive an early and mature consideration." Ibid. Despite the persuasive assurances of the Constitution's leading advocates and the expressed understanding of the only state conventions to address the issue in explicit terms, this Court held, just five years after the Constitution was adopted, that Article III authorized a private citizen of another State to sue the State of Georgia without its consent. Chisholm v. Georgia, 2 Dall. 419 (1793). Each of the four Justices who concurred in the judgment issued a separate opinion. The common theme of the opinions was that the case fell within the literal text of Article III, which by its terms granted jurisdiction over controversies "between a State and Citizens of another State," and "between a State, or the Citizens thereof, and foreign States, Citizens, or Subjects." U. S. Const., Art. III, §2. The argument that this provision granted jurisdiction only over cases in which the State was a plaintiff was dismissed as inconsistent with the ordinary meaning of "between," and with the provision extending jurisdiction to "Controversies between two or more States," which by necessity contemplated jurisdiction over suits to which States were defendants. Two Justices also argued that sovereign immunity was inconsistent with the principle of popular sovereignty established by the Constitution, see 2 Dall.,at 454-458 (Wilson, J.); id., at 470-472 (Jay, C. J.); although the others did not go so far, they contended that the text of Article III evidenced the States' surrender of sovereign immunity as to those provisions extending jurisdiction over suits to which States were parties, see id., at452 (Blair, J.); id., at 468 (Cushing, J.). Justice Iredell dissented, relying on American history, id., at 434-435, English history, id., at 437-446, and the principles of enumerated powers and separate sovereignty, id., at 435-436, 448, 449-450. See generally Hans,134 U. S., at 12 ("The other justices were more swayed by a close observance of the letter of the Constitution, without regard to former experience and usage ... . Justice Iredell, on the contrary, contended that it was not the intention to create new and unheard of remedies, by subjecting sovereign States to actions at the suit of individuals, (which he conclusively showed was never done before,) but only ... to invest the federal courts with jurisdiction to hear and determine controversies and cases, between the parties designated, that were properly susceptible of litigation in courts"). The Court's decision "fell upon the country with a profound shock." 1 C. Warren, The Supreme Court in United States History 96 (rev. ed. 1926); accord, Hans, supra, at 11; Principality of Monaco v. Mississippi,292 U. S. 313, 325 (1934); Seminole Tribe,517 U. S., at 69. "Newspapers representing a rainbow of opinion protested what they viewed as an unexpected blow to state sovereignty. Others spoke more concretely of prospective raids on state treasuries." D. Currie, The Constitution in Congress: The Federalist Period 1789-1801, p. 196 (1997). The States, in particular, responded with outrage to the decision. The Massachusetts Legislature, for example, denounced the decision as "repugnant to the first principles of a federal government," and called upon the State's Senators and Representatives to take all necessary steps to "remove any clause or article of the Constitution, which can be construed to imply or justify a decision, that, a State is compellable to answer in any suit by an individual or individuals in any Court of the United States." 15 Papers of Alexander Hamilton 314 (H. Syrett & J. Cooke eds. 1969). Georgia's response was more intemperate: Its House of Representatives passed a bill providing that anyone attempting to enforce the Chisholm decision would be " `guilty of felony and shall suffer death, without benefit of clergy, by being hanged.' " Currie, supra, at 196. An initial proposal to amend the Constitution was introduced in the House of Representatives the day after Chisholm was announced; the proposal adopted as the Eleventh Amendment was introduced in the Senate promptly following an intervening recess. Currie, supra, at 196. Congress turned to the latter proposal with great dispatch; little more than two months after its introduction it had been endorsed by both Houses and forwarded to the States. 4 Annals of Congress 25, 30, 477, 499 (1794); 1 Stat. 402. Each House spent but a single day discussing the Amendment, and the vote in each House was close to unanimous. See 4 Annals, at 30-31, 476-478 (the Senate divided 23 to 2; the House 81 to 9). All attempts to weaken the Amendment were defeated. Congress in succession rejected proposals to limit the Amendment to suits in which "the cause of action shall have arisen before the ratification of the amendment," or even to cases " `[W]here such State shall have previously made provision in their own Courts, whereby such suit may be prosecuted to effect' "; it refused as well to make an exception for " `cases arising under treaties made under the authority of the United States.' " 4 id., 30, 476. It might be argued that the Chisholm decision was a correct interpretation of the constitutional design and that the Eleventh Amendment represented a deviation from the original understanding. This, however, seems unsupportable. First, despite the opinion of Justice Iredell, the majority failed to address either the practice or the understanding that prevailed in the States at the time the Constitution was adopted. Second, even a casual reading of the opinions suggests the majority suspected the decision would be unpopular and surprising. See, e.g., 2 Dall., at 454-455 (Wilson, J.) (condemning the prevailing conception of sovereignty); id., at 468 (Cushing, J.) ("If the Constitution is found inconvenient in practice in this or any other particular, it is well that a regular mode is pointed out for amendment"); id., at 478-479 (Jay, C. J.) ("[T]here is reason to hope that the people of [Georgia] will yet perceive that [sovereign immunity] would not have been consistent with [republican] equality"); cf. id., at 419-420 (attorney for Chisholm) ("I did not want the remonstrance of Georgia, to satisfy me, that the motion, which I have made is unpopular. Before that remonstrance was read, I had learnt from the acts of another State, whose will must be always dear to me, that she too condemned it"). Finally, two Members of the majority acknowledged that the United States might well remain immune from suit despite Article III's grant of jurisdiction over "Controversies to which the United States shall be a Party," see id., at 469 (Cushing, J.); id., at 478 (Jay, C. J.), and, invoking the example of actions to collect debts incurred before the Constitution was adopted, one raised the possibility of "exceptions," suggesting the rule of the case might not "extend to all the demands, and to every kind of action," see id., at 479 (Jay, C. J.). These concessions undercut the crucial premise that either the Constitution's literal text or the principal of popular sovereignty necessarily overrode widespread practice and opinion. The text and history of the Eleventh Amendment also suggest that Congress acted not to change but to restore the original constitutional design. Although earlier drafts of the Amendment had been phrased as express limits on the judicial power granted in Article III, see, e.g., 3 Annals of Congress 651-652 (1793) ("The Judicial Power of the United States shall not extend to any suits in law or equity, commenced or prosecuted against one of the United States ..."), the adopted text addressed the proper interpretation of that provision of the original Constitution, see U. S. Const., Amdt. 11 ("The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States ..."). By its terms, then, the Eleventh Amendment did not redefine the federal judicial power but instead overruled the Court:"This amendment, expressing the will of the ultimate sovereignty of the whole country, superior to all legislatures and all courts, actually reversed the decision of the Supreme Court. It did not in terms prohibit suits by individuals against the States, but declared that the Constitution should not be construed to import any power to authorize the bringing of such suits. ... The supreme court had construed the judicial power as extending to such a suit, and its decision was thus overruled." Hans, 134 U. S., at 11. The text reflects the historical context and the congressional objective in endorsing the Amendment for ratification. Congress chose not to enact language codifying the traditional understanding of sovereign immunity but rather to address the specific provisions of the Constitution that had raised concerns during the ratification debates and formed the basis of the Chisholm decision. Cf. 15 Papers of Alexander Hamilton, at 314 (quoted supra, at 10). Given the outraged reaction to Chisholm, as well as Congress' repeated refusal to otherwise qualify the text of the Amendment, it is doubtful that if Congress meant to write a new immunity into the Constitution it would have limited that immunity to the narrow text of the Eleventh Amendment:"Can we suppose that, when the Eleventh Amendment was adopted, it was understood to be left open for citizens of a State to sue their own state in federal courts, whilst the idea of suits by citizens of other states, or of foreign states, was indignantly repelled? Suppose that Congress, when proposing the Eleventh Amendment, had appended to it a proviso that nothing therein contained should prevent a State from being sued by its own citizens in cases arising under the Constitution or laws of the United States, can we imagine that it would have been adopted by the States? The supposition that it would is almost an absurdity on its face." Hans, supra, at 14-15.The more natural inference is that the Constitution was understood, in light of its history and structure, to preserve the States' traditional immunity from private suits. As the Amendment clarified the only provisions of the Constitution that anyone had suggested might support a contrary understanding, there was no reason to draft with a broader brush. Finally, the swiftness and near unanimity with which the Eleventh Amendment was adopted suggest "either that the Court had not captured the original understanding, or that the country had changed its collective mind most rapidly." D. Currie, The Constitution in the Supreme Court: The First Century 18, n. 101 (1985). The more reasonable interpretation, of course, is that regardless of the views of four Justices in Chisholm, the country as a whole — which had adopted the Constitution just five years earlier — had not understood the document to strip the States' of their immunity from private suits. Cf. Currie, The Constitution in Congress, at 196 ("It is plain that just about everybody in Congress agreed the Supreme Court had misread the Constitution"). Although the dissent attempts to rewrite history to reflect a different original understanding, its evidence is unpersuasive. The handful of state statutory and constitutional provisions authorizing suits or petitions of right against States only confirms the prevalence of the traditional understanding that a State could not be sued in the absence of an express waiver, for if the understanding were otherwise, the provisions would have been unnecessary. The constitutional amendments proposed by the New York and Rhode Island Conventions undercut rather than support the dissent's view of history, see supra, at 8, and the amendments proposed by the Virginia and North Carolina Conventions do not cast light upon the original understanding of the States' immunity to suit. It is true that, in the course of all but eliminating federal-question and diversity jurisdiction, see 3 Elliot's Debates, at 660-661 (amendment proposed by the Virginia Convention limiting the federal-question jurisdiction to suits arising under treaties and the diversity jurisdiction to suits between parties claiming lands under grants from different states); 4 id., at 246 (identical amendment proposed by the North Carolina Convention), the amendments would have removed the language in the Constitution relied upon by the Chisholm Court. While the amendments do reflect dissatisfaction with the scope of federal jurisdiction as a general matter, there is no evidence that they were directed toward the question of sovereign immunity or that they reflect an understanding that the States would be subject to private suits without consent under Article III as drafted. The dissent's remaining evidence cannot bear the weight the dissent seeks to place on it. The views voiced during the ratification debates by Edmund Randolph and James Wilson, when reiterated by the same individuals in their respective capacities as advocate and Justice in Chisholm, were decisively rejected by the Eleventh Amendment, and General Pinkney did not speak to the issue of sovereign immunity at all. Furthermore, Randolph appears to have recognized that his views were in tension with the traditional understanding of sovereign immunity, see 3 Elliot's Debates, at 573 ("I think, whatever the law of nations may say, that any doubt respecting the construction that a state may be plaintiff, and not defendant, is taken away by the words where a state shall be a party"), and Wilson and Pinkney expressed a radical nationalist vision of the constitutional design that not only deviated from the views that prevailed at the time but, despite the dissent's apparent embrace of the position, remains startling even today, see post, at 18 (quoting with approval Wilson's statement that " `the government of each state ought to be subordinate to the government of the United States' "). Nor do the controversial early suits prosecuted against Maryland and New York reflect a widespread understanding that the States had surrendered their immunity to suit. Maryland's decision to submit to process in Vanstophorst v. Maryland, 2 Dall. 401 (1791), aroused great controversy, see Marcus & Wexler, Suits Against States: Diversity of Opinion In The 1790s, 1993 J. Sup. Ct. History 73, 74-75, and did not go unnoticed by the Supreme Court, see Chisholm, 2 Dall., at 429-430 (Iredell, J., dissenting). In Oswald v. New York, the State refused to respond to the plaintiff's summons until after the decision in Chisholm had been announced; even then it at first asserted the defense that it was "a free, sovereign and independent State," and could not be "drawn or compelled" to defend the suit. Marcus & Wexler, supra, at 76-77 (internal quotation marks omitted). And, though the Court's decision in Chisholm may have had "champions `every bit as vigorous in defending their interpretation of the Constitution as were those partisans on the other side of the issue' " post, at 37, the vote on the Eleventh Amendment makes clear that they were decidedly less numerous. See supra, at 11. In short, the scanty and equivocal evidence offered by the dissent establishes no more than what is evident from the decision in Chisholm--that some members of the founding generation disagreed with Hamilton, Madison, Marshall, Iredell, and the only state conventions formally to address the matter. The events leading to the adoption of the Eleventh Amendment, however, make clear that the individuals who believed the Constitution stripped the States of their immunity from suit were at most a small minority. Not only do the ratification debates and the events leading to the adoption of the Eleventh Amendment reveal the original understanding of the States' constitutional immunity from suit, they also underscore the importance of sovereign immunity to the founding generation. Simply put, "The Constitution never would have been ratified if the States and their courts were to be stripped of their sovereign authority except as expressly provided by the Constitution itself." Atascadero State Hospital v. Scanlon,473 U. S. 234, 239, n. 2 (1985); accord, Edelman v. Jordan,415 U. S. 651, 660 (1974).C The Court has been consistent in interpreting the adoption of the Eleventh Amendment as conclusive evidence "that the decision in Chisholm was contrary to the well-understood meaning of the Constitution," Seminole Tribe, 517 U. S., at 69, and that the views expressed by Hamilton, Madison, and Marshall during the ratification debates, and by Justice Iredell in his dissenting opinion in Chisholm, reflect the original understanding of the Constitution. See, e.g., Hans, supra, at 12, 14-15, 18-19; Principality of Monaco, 292 U. S., at 325; Edelman, supra, at 660, n. 9; Seminole Tribe, supra, at 70, and nn. 12-13. In accordance with this understanding, we have recognized a "presumption that no anomalous and unheard-of proceedings or suits were intended to be raised up by the Constitution — anomalous and unheard of when the constitution was adopted." Hans,134 U. S., at 18; accord, id., at 15. As a consequence, we have looked to "history and experience, and the established order of things," id., at 14, rather than "[a]dhering to the mere letter" of the Eleventh Amendment, id., at 13, in determining the scope of the States' constitutional immunity from suit. Following this approach, the Court has upheld States' assertions of sovereign immunity in various contexts falling outside the literal text of the Eleventh Amendment. In Hans v. Louisiana, the Court held that sovereign immunity barred a citizen from suing his own State under the federal-question head of jurisdiction. The Court was unmoved by the petitioner's argument that the Eleventh Amendment, by its terms, applied only to suits brought by citizens of other States: "It seems to us that these views of those great advocates and defenders of the Constitution were most sensible and just, and they apply equally to the present case as to that then under discussion. The letter is appealed to now, as it was then, as a ground for sustaining a suit brought by an individual against a State. The reason against it is as strong in this case as it was in that. It is an attempt to strain the Constitution and the law to a construction never imagined or dreamed of." 134 U. S., at 14-15.Later decisions rejected similar requests to conform the principle of sovereign immunity to the strict language of the Eleventh Amendment in holding that nonconsenting States are immune from suits brought by federal corporations, Smith v. Reeves,178 U. S. 436 (1900), foreign nations, Principality of Monaco, supra, or Indian tribes, Blatchford v. Native Village of Noatak,501 U. S. 775 (1991), and in concluding that sovereign immunity is a defense to suits in admiralty, though the text of the Eleventh Amendment addresses only suits "in law or equity," Ex parte New York,256 U. S. 490 (1921). These holdings reflect a settled doctrinal understanding, consistent with the views of the leading advocates of the Constitution's ratification, that sovereign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself. See, e.g.,Idaho v. Coeur d'Alene Tribe of Idaho,521 U. S. 261, 267-268 (1997) (acknowledging "the broader concept of immunity, implicit in the Constitution, which we have regarded the Eleventh Amendment as evidencing and exemplifying"); Seminole Tribe, supra, at 55-56; Pennhurst State School and Hospital v. Halderman,465 U. S. 89, 98-99 (1984); Ex parte New York, supra, at 497. The Eleventh Amendment confirmed rather than established sovereign immunity as a constitutional principle; it follows that the scope of the States' immunity from suit is demarcated not by the text of the Amendment alone but by fundamental postulates implicit in the constitutional design. As we explained in Principality of Monaco: "Manifestly, we cannot rest with a mere literal application of the words of §2 of Article III, or assume that the letter of the Eleventh Amendment exhausts the restrictions upon suits against non-consenting States. Behind the words of the constitutional provisions are postulates which limit and control. There is the essential postulate that the controversies, as contemplated, shall be found to be of a justiciable character. There is also the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been `a surrender of this immunityin the plan of the convention.' " 292 U. S., at 322-323 (quoting The Federalist No. 81, at 487) (footnote omitted).Or, as we have more recently reaffirmed:"Although the text of the Amendment would appear to restrict only the Article III diversity jurisdiction of the federal courts, `we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition ... which it confirms.' Blatchford v. Native Village of Noatak, [supra, at 779]. That presupposition, first observed over a century ago in Hans v. Louisiana,[supra], has two parts: first, that each State is a sovereign entity in our federal system; and second, that ` "[i]t is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent," ' id., at 13 (emphasis deleted), quoting The Federalist No. 81, p. 487 ..." Seminole Tribe, supra, at 54.Accord, Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc.,506 U. S. 139, 146 (1993) ("The Amendment is rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity").II In this case we must determine whether Congress has the power, under Article I, to subject nonconsenting States to private suits in their own courts. As the foregoing discussion makes clear, the fact that the Eleventh Amendment by its terms limits only "[t]he Judicial power of the United States" does not resolve the question. To rest on the words of the Amendment alone would be to engage in the type of ahistorical literalism we have rejected in interpreting the scope of the States' sovereign immunity since the discredited decision in Chisholm. Seminole Tribe, 517 U. S., at 68; see also id., at 69 (quoting Principality of Monaco, supra, at 326, and Hans, 134 U. S., at 15) ("[W]e long have recognized that blind reliance upon the text of the Eleventh Amendment is `to strain the Constitution and the law to a construction never imagined or dreamed of ' "). While the constitutional principle of sovereign immunity does pose a bar to federal jurisdiction over suits against nonconsenting States, see, e.g.,Principality of Monaco, 292 U. S., at 322-323, this is not the only structural basis of sovereign immunity implicit in the constitutional design. Rather, "[t]here is also the postulate that States of the Union, still possessing attributes of sovereignty, shall be immune from suits, without their consent, save where there has been `a surrender of this immunity in the plan of the convention.' " Ibid. (quoting The Federalist No. 81, at 487); accord, Blatchford, supra, at 781; Seminole Tribe, supra, at 68. This separate and distinct structural principle is not directly related to the scope of the judicial power established by Article III, but inheres in the system of federalism established by the Constitution. In exercising its Article I powers Congress may subject the States to private suits in their own courts only if there is "compelling evidence" that the States were required to surrender this power to Congress pursuant to the constitutional design. Blatchford,501 U. S., at 781.A Petitioners contend the text of the Constitution and our recent sovereign immunity decisions establish that the States were required to relinquish this portion of their sovereignty. We turn first to these sources.1 Article I, §8 grants Congress broad power to enact legislation in several enumerated areas of national concern. The Supremacy Clause, furthermore, provides: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... , 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." U. S. Const., Art. VI.It is contended that, by virtue of these provisions, where Congress enacts legislation subjecting the States to suit, the legislation by necessity overrides the sovereign immunity of the States. As is evident from its text, however, the Supremacy Clause enshrines as "the supreme Law of the Land" only those federal Acts that accord with the constitutional design. See Printz,521 U. S., at 924. Appeal to the Supremacy Clause alone merely raises the question whether a law is a valid exercise of the national power. See The Federalist No. 33, at 204 (A. Hamilton) ("But it will not follow from this doctrine that acts of the larger society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land"); Printz, supra, at 924-925. The Constitution, by delegating to Congress the power to establish the supreme law of the land when acting within its enumerated powers, does not foreclose a State from asserting immunity to claims arising under federal law merely because that law derives not from the State itself but from the national power. A contrary view could not be reconciled with Hans v. Louisiana, supra, which sustained Louisiana's immunity in a private suit arising under the Constitution itself; with Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo.,411 U. S. 279, 283 (1973), which recognized that the FLSA was binding upon Missouri but nevertheless upheld the State's immunity to a private suit to recover under that Act; or with numerous other decisions to the same effect. We reject any contention that substantive federal law by its own force necessarily overrides the sovereign immunity of the States. When a State asserts its immunity to suit, the question is not the primacy of federal law but the implementation of the law in a manner consistent with the constitutional sovereignty of the States. Nor can we conclude that the specific Article I powers delegated to Congress necessarily include, by virtue of the Necessary and Proper Clause or otherwise, the incidental authority to subject the States to private suits as a means of achieving objectives otherwise within the scope of the enumerated powers. Although some of our decisions had endorsed this contention, see Parden v. Terminal R. Co. of Ala. Docks Dept.,377 U. S. 184, 190-194 (1964); Pennsylvania v. Union Gas Co.,491 U. S. 1, 13-23 (1989) (plurality opinion), they have since been overruled, see Seminole Tribe, supra, at 63-67, 72; College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., ante, p. ____ . As we have recognized in an analogous context:"When a `La[w] ... for carrying into Execution' the Commerce Clause violates the principle of state sovereignty reflected in the various constitutional provisions ... it is not a `La[w] ... proper for carrying into Execution the Commerce Clause,' and is thus, in the words of The Federalist, `merely [an] ac[t] of usurpation' which `deserve[s] to be treated as such.' " Printz, supra, at 923-924 (quoting The Federalist No. 33, at 204 (A. Hamilton)) (ellipses and alterations in Printz). The cases we have cited, of course, came at last to the conclusion that neither the Supremacy Clause nor the enumerated powers of Congress confer authority to abrogate the States' immunity from suit in federal court. The logic of the decisions, however, does not turn on the forum in which the suits were prosecuted but extends to state-court suits as well. The dissenting opinion seeks to reopen these precedents, contending that state sovereign immunity must derive either from the common law (in which case the dissent contends it is defeasible by statute) or from natural law (in which case the dissent believes it cannot bar a federal claim). See post, at 41. As should be obvious to all, this is a false dichotomy. The text and the structure of the Constitution protect various rights and principles. Many of these, such as the right to trial by jury and the prohibition on unreasonable searches and seizures, derive from the common law. The common-law lineage of these rights does not mean they are defeasible by statute or remain mere common-law rights, however. They are, rather, constitutional rights, and form the fundamental law of the land. Although the sovereign immunity of the States derives at least in part from the common-law tradition, the structure and history of the Constitution make clear that the immunity exists today by constitutional design. The dissent has provided no persuasive evidence that the founding generation regarded the States' sovereign immunity as defeasible by federal statute. While the dissent implies this view was held by Madison and Marshall, see post, at 20, nothing in the comments made by either individual at the ratification conventions states, or even implies, such an understanding. Although the dissent seizes upon Justice Iredell's statutory analysis in Chisholm in attempt to attribute this view to Justice Iredell, see post, at 30-31, citing Chisholm, 2 Dall., at 449 (Iredell, J., dissenting), Justice Iredell's views on the underlying constitutional question are clear enough from other portions of his dissenting opinion:"So much, however, has been said on the Constitution, that it may not be improper to intimate that my present opinion is strongly against any construction of it, which will admit, under any circumstances, a compulsive suit against a State for the recovery of money. I think every word in the Constitution may have its full effect without involving this consequence, and that nothing but express words, or an insurmountable implication (neither of which I consider, can be found in this case) would authorize the deduction of so high a power." Id., at 449-450. Despite the dissent's assertion to the contrary, the fact that a right is not defeasible by statute means only that it is protected by the Constitution, not that it derives from natural law. Whether the dissent's attribution of our reasoning and conclusions to natural law results from analytical confusion or rhetorical device, it is simply inaccurate. We do not contend the founders could not have stripped the States of sovereign immunity and granted Congress power to subject them to private suit but only that they did not do so. By the same token, the contours of sovereign immunity are determined by the founders' understanding, not by the principles or limitations derived from natural law. The dissent has offered no evidence that the founders believed sovereign immunity extended only to cases where the sovereign was the source of the right asserted. No such limitation existed on sovereign immunity in England, where sovereign immunity was predicated on a different theory altogether. See 1 F. Pollock & F. Maitland, History of English Law 518 (2d ed. 1909), quoted in Nevada v. Hall,440 U. S., at 415, n. 6 (" `[The King] can not be compelled to answer in his own court, but this is true of every petty lord of every petty manor' "); accord, 3 W. Holdsworth, A History of English Law 465 (3d ed. 1927) ("[N]o feudal lord could be sued in his own court"). It is doubtful whether the King was regarded, in any meaningful sense, as the font of the traditions and customs which formed the substance of the common law, yet he could not be sued on a common-law claim in his own courts. And it strains credibility to imagine that the King could have been sued in his own court on, say, a French cause of action. In light of the ratification debates and the history of the Eleventh Amendment, there is no reason to believe the founders intended the Constitution to preserve a more restricted immunity in the United States. On the contrary, Congress' refusal to modify the text of the Eleventh Amendment to create an exception to sovereign immunity for cases arising under treaties, see supra, at 11, suggests the States' sovereign immunity was understood to extend beyond state-law causes of action. And surely the dissent does not believe that sovereign immunity poses no bar to a state-law suit against the United States in federal court, or that the Federal Tort Claims Act effected a contraction, rather than an expansion, of the United States' amenability to suit.2 There are isolated statements in some of our cases suggesting that the Eleventh Amendment is inapplicable in state courts. See Hilton v. South Carolina Public Railways Comm'n,502 U. S. 197, 204-205 (1991); Will v. Michigan Dept. of State Police,491 U. S. 58, 63 (1989); Atascadero State Hospital v. Scanlon,473 U. S., at 239-240, n. 2; Maine v. Thiboutot,448 U. S. 1, 9, n. 7 (1980); Nevada v. Hall,440 U. S., at 418-421. This, of course, is a truism as to the literal terms of the Eleventh Amendment. As we have explained, however, the bare text of the Amendment is not an exhaustive description of the States' constitutional immunity from suit. The cases, furthermore, do not decide the question presented here — whether the States retain immunity from private suits in their own courts notwithstanding an attempted abrogation by the Congress. Two of the cases discussing state-court immunity may be dismissed out of hand. The footnote digressions in Atascadero State Hospital and Thiboutot were irrelevant to either opinion's holding or rationale. The discussion in Will was also unnecessary to the decision; our holding that 42 U. S. C. §1983 did not create a cause of action against the States rendered it unnecessary to determine the scope of the States' constitutional immunity from suit in their own courts. Our opinions in Hilton and Hall, however, require closer attention, for in those cases we sustained suits against States in state courts. In Hilton we held that an injured employee of a state-owned railroad could sue his employer (an arm of the State) in state court under the Federal Employers' Liability Act (FELA), 53 Stat. 1404, 45 U. S. C. §§51-60. Our decision was "controlled and informed" by stare decisis. 502 U. S.,at 201. A generation earlier we had held that because the FELA made clear that all who operated railroads would be subject to suit by injured workers, States that chose to enter the railroad business after the statute's enactment impliedly waived their sovereign immunity from such suits. See Parden, supra. Some States had excluded railroad workers from the coverage of their workers' compensation statutes on the assumption that FELA provided adequate protection for those workers. Hilton, supra, at 202. Closing the courts to FELA suits against state employers would have dislodged settled expectations and required an extensive legislative response. Ibid. There is language in Hilton which gives some support to the position of petitioners here but our decision did not squarely address, much less resolve, the question of Congress' power to abrogate States' immunity from suit in their own courts. The respondent in Hilton, the South Carolina Public Railways Commission, neither contested Congress' constitutional authority to subject it to suits for money damages nor raised sovereign immunity as an affirmative defense. See Brief for Respondent in No. 90-848, O. T. 1991, pp. 7, n. 14, 21. Nor was the State's litigation strategy surprising. Hilton was litigated and decided in the wake of Union Gas, and before this Court's decisions in New York,Printz, and Seminole Tribe. At that time it may have appeared to the State that Congress' power to abrogate its immunity from suit in any court was not limited by the Constitution at all, so long as Congress made its intent sufficiently clear. Furthermore, our decision in Parden was based on concepts of waiver and consent. Although later decisions have undermined the basis of Parden's reasoning, see, e.g.,Welch v. Texas Dept. of Highways and Public Transp.,483 U. S. 468, 476-478 (1987) (recognizing that Parden erred in finding a clear congressional intent to subject the States to suit); College Savings Bank, ante, at ____ (overruling Parden's theory of constructive waiver), we have not questioned the general proposition that a State may waive its sovereign immunity and consent to suit, see Seminole Tribe,517 U. S., at 65. Hilton, then, must be read in light of the doctrinal basis of Parden, the issues presented and argued by the parties, and the substantial reliance interests drawn into question by the litigation. When so read, we believe the decision is best understood not as recognizing a congressional power to subject nonconsenting States to private suits in their own courts, nor even as endorsing the constructive waiver theory of Parden, but as simply adhering, as a matter of stare decisis and presumed historical fact, to the narrow proposition that certain States had consented to be sued by injured workers covered by the FELA, at least in their own courts. In Hall we considered whether California could subject Nevada to suit in California's courts and determined the Constitution did not bar it from doing so. We noted that "[t]he doctrine of sovereign immunity is an amalgam of two quite different concepts, one applicable to suits in the sovereign's own courts and the other to suits in the courts of another sovereign." 440 U. S., at 414. We acknowledged that "[t]he immunity of a truly independent sovereign from suit in its own courts has been enjoyed as a matter of absolute right for centuries. Only the sovereign's own consent could qualify the absolute character of that immunity," ibid, that "the notion that immunity from suit is an attribute of sovereignty is reflected in our cases," id., at 415, and that "[t]his explanation adequately supports the conclusion that no sovereign may be sued in its own courts without its consent," id., at 416. We sharply distinguished, however, a sovereign's immunity from suit in the courts of another sovereign:"[B]ut [this explanation] affords no support for a claim of immunity in another sovereign's courts. Such a claim necessarily implicates the power and authority of a second sovereign; its source must be found either in an agreement, express or implied, between the two sovereigns, or in the voluntary decision of the second to respect the dignity of the first as a matter of comity." Ibid.Since we determined the Constitution did not reflect an agreement between the States to respect the sovereign immunity of one another, California was free to determine whether it would respect Nevada's sovereignty as a matter of comity. Our opinion in Hall did distinguish a State's immunity from suit in federal court from its immunity in the courts of other States; it did not, however, address or consider any differences between a State's sovereign immunity in federal court and in its own courts. Our reluctance to find an implied constitutional limit on the power of the States cannot be construed, furthermore, to support an analogous reluctance to find implied constitutional limits on the power of the Federal Government. The Constitution, after all, treats the powers of the States differently from the powers of the Federal Government. As we explained in Hall:"[I]n view of the Tenth Amendment's reminder that powers not delegated to the Federal Government nor prohibited to the States are reserved to the States or to the people, the existence of express limitations on state sovereignty may equally imply that caution should be exercised before concluding that unstated limitations on state power were intended by the Framers." Id., at 425 (footnote omitted).The Federal Government, by contrast, "can claim no powers which are not granted to it by the constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication." Martin v. Hunter's Lessee, 1 Wheat. 304, 326 (1816); see also City of Boerne v. Flores,521 U. S. 507, 516 (1997); United States v. Lopez,514 U. S. 549, 552 (1995). Our decision in Hall thus does not support the argument urged by petitioners here. The decision addressed neither Congress' power to subject States to private suits nor the States' immunity from suit in their own courts. In fact, the distinction drawn between a sovereign's immunity in its own courts and its immunity in the courts of another sovereign, as well as the reasoning on which this distinction was based, are consistent with, and even support, the proposition urged by the respondent here — that the Constitution reserves to the States a constitutional immunity from private suits in their own courts which cannot be abrogated by Congress. Petitioners seek support in two additional decisions. In Reich v. Collins,513 U. S. 106 (1994), we held that, despite its immunity from suit in federal court, a State which holds out what plainly appears to be "a clear and certain" postdeprivation remedy for taxes collected in violation of federal law may not declare, after disputed taxes have been paid in reliance on this remedy, that the remedy does not in fact exist. Id., at 108. This case arose in the context of tax-refund litigation, where a State may deprive a taxpayer of all other means of challenging the validity of its tax laws by holding out what appears to be a "clear and certain" postdeprivation remedy. Ibid.; see also Fair Assessment in Real Estate Assn., Inc. v. McNary,454 U. S. 100 (1981). In this context, due process requires the State to provide the remedy it has promised. Cf. Hudson v. Palmer,468 U. S. 517, 539 (1984) (O'Connor, J., concurring). The obligation arises from the Constitution itself; Reich does not speak to the power of Congress to subject States to suits in their own courts. In Howlett v. Rose,496 U. S. 356 (1990), we held that a state court could not refuse to hear a §1983 suit against a school board on the basis of sovereign immunity. The school board was not an arm of the State, however, so it could not assert any constitutional defense of sovereign immunity to which the State would have been entitled. See Mt. Healthy City Bd. of Ed. v. Doyle,429 U. S. 274, 280 (1977). In Howlett, then, the only question was "whether a state-law defense of `sovereign immunity' is available to a school board otherwise subject to suit in a Florida court even though such a defense would not be available if the action had been brought in a federal forum." 496 U. S., at 358-359. The decision did not address the question of Congress' power to compel a state court to entertain an action against a nonconsenting State.B Whether Congress has authority under Article I to abrogate a State's immunity from suit in its own courts is, then, a question of first impression. In determining whether there is "compelling evidence" that this derogation of the States' sovereignty is "inherent in the constitutional compact," Blatchford,501 U. S., at 781, we continue our discussion of history, practice, precedent, and the structure of the Constitution.1 We look first to evidence of the original understanding of the Constitution. Petitioners contend that because the ratification debates and the events surrounding the adoption of the Eleventh Amendment focused on the States' immunity from suit in federal courts, the historical record gives no instruction as to the founding generation's intent to preserve the States' immunity from suit in their own courts. We believe, however, that the founders' silence is best explained by the simple fact that no one, not even the Constitution's most ardent opponents, suggested the document might strip the States of the immunity. In light of the overriding concern regarding the States' war-time debts, together with the well known creativity, foresight, and vivid imagination of the Constitution's opponents, the silence is most instructive. It suggests the sovereign's right to assert immunity from suit in its own courts was a principle so well established that no one conceived it would be altered by the new Constitution. The arguments raised against the Constitution confirm this strong inference. In England, the rule was well established that "no lord could be sued by a vassal in his own court, but each petty lord was subject to suit in the courts of a higher lord." Hall,440 U. S., at 414-415. It was argued that, by analogy, the States could be sued without consent in federal court. Id., at 418. The point of the argument was that federal jurisdiction under Article III would circumvent the States' immunity from suit in their own courts. The argument would have made little sense if the States were understood to have relinquished the immunity in all events. The response the Constitution's advocates gave to the argument is also telling. Relying on custom and practice — and, in particular, on the States' immunity from suit in their own courts, see 3 Elliot's Debates, at 555 (Marshall)--they contended that no individual could sue a sovereign without its consent. It is true the point was directed toward the power of the Federal Judiciary, for that was the only question at issue. The logic of the argument, however, applies with even greater force in the context of a suit prosecuted against a sovereign in its own courts, for in this setting, more than any other, sovereign immunity was long established and unquestioned. See Hall, supra, at 414. Similarly, while the Eleventh Amendment by its terms addresses only "the Judicial power of the United States," nothing in Chisholm, the catalyst for the Amendment, suggested the States were not immune from suits in their own courts. The only Justice to address the issue, in fact, was explicit in distinguishing between sovereign immunity in federal court and in a State's own courts. See 2 Dall., at 452 (Blair, J.) ("When sovereigns are sued in their own Courts, such a method [a petition of right] may have been established as the most respectful form of demand; but we are not now in a State-Court; and if sovereignty be an exemption from suit in any other than the sovereign's own Courts, it follows that when a State, by adopting the Constitution, has agreed to be amenable to the judicial power of the United States, she has, in that respect, given up her right of sovereignty"). The language of the Eleventh Amendment, furthermore, was directed toward the only provisions of the constitutional text believed to call the States' immunity from private suits into question. Although Article III expressly contemplated jurisdiction over suits between States and individuals, nothing in the Article or in any other part of the Constitution suggested the States could not assert immunity from private suit in their own courts or that Congress had the power to abrogate sovereign immunity there. Finally, the Congress which endorsed the Eleventh Amendment rejected language limiting the Amendment's scope to cases where the States had made available a remedy in their own courts. See supra, at 11. Implicit in the proposal, it is evident, was the premise that the States retained their immunity and the concomitant authority to decide whether to allow private suits against the sovereign in their own courts. In light of the language of the Constitution and the historical context, it is quite apparent why neither the ratification debates nor the language of the Eleventh Amendment addressed the States' immunity from suit in their own courts. The concerns voiced at the ratifying conventions, the furor raised by Chisholm, and the speed and unanimity with which the Amendment was adopted, moreover, underscore the jealous care with which the founding generation sought to preserve the sovereign immunity of the States. To read this history as permitting the inference that the Constitution stripped the States of immunity in their own courts and allowed Congress to subject them to suit there would turn on its head the concern of the founding generation — that Article III might be used to circumvent state-court immunity. In light of the historical record it is difficult to conceive that the Constitution would have been adopted if it had been understood to strip the States of immunity from suit in their own courts and cede to the Federal Government a power to subject nonconsenting States to private suits in these fora.2 Our historical analysis is supported by early congressional practice, which provides "contemporaneous and weighty evidence of the Constitution's meaning." Printz, 521 U. S.,at 905 (internal quotation marks omitted). Although early Congresses enacted various statutes authorizing federal suits in state court, see id., at 906-907 (listing statutes); Testa v. Katt,330 U. S. 386, 389-390 (1947), we have discovered no instance in which they purported to authorize suits against nonconsenting States in these fora. The "numerousness of these statutes [authorizing suit in state court], contrasted with the utter lack of statutes" subjecting States to suit, "suggests an assumed absence of such power." 521 U. S.,at 907-908. It thus appears early Congresses did not believe they had the power to authorize private suits against the States in their own courts. Not only were statutes purporting to authorize private suits against nonconsenting States in state courts not enacted by early Congresses, statutes purporting to authorize such suits in any forum are all but absent from our historical experience. The first statute we confronted that even arguably purported to subject the States to private actions was the FELA. See Parden,377 U. S., at 187 ("Here, for the first time in this Court, a State's claim of immunity against suit by an individual meets a suit brought upon a cause of action expressly created by Congress"). As we later recognized, however, even this statute did not clearly create a cause of action against the States. See Welch,483 U. S., at 476-478. The provisions of the FLSA at issue here, which were enacted in the aftermath of Parden, are among the first statutory enactments purporting in express terms to subject nonconsenting States to private suits. Although similar statutes have multiplied in the last generation, "they are of such recent vintage that they are no more probative than the [FLSA] of a constitutional tradition that lends meaning to the text. Their persuasive force is far outweighed by almost two centuries of apparent congressional avoidance of the practice." 521 U. S., at 918. Even the recent statutes, moreover, do not provide evidence of an understanding that Congress has a greater power to subject States to suit in their own courts than in federal courts. On the contrary, the statutes purport to create causes of actions against the States which are enforceable in federal, as well as state, court. To the extent recent practice thus departs from longstanding tradition, it reflects not so much an understanding that the States have surrendered their immunity from suit in their own courts as the erroneous view, perhaps inspired by Parden and Union Gas, that Congress may subject nonconsenting States to private suits in any forum.3 The theory and reasoning of our earlier cases suggest the States do retain a constitutional immunity from suit in their own courts. We have often described the States' immunity in sweeping terms, without reference to whether the suit was prosecuted in state or federal court. See, e.g.,Briscoe v. Bank of Kentucky, 11 Pet. 257, 321-322 (1837) ("No sovereign state is liable to be sued without her consent"); Board of Liquidation v. McComb,92 U. S. 531, 541 (1876) ("A State, without its consent, cannot be sued by an individual"); In re Ayers, 123 U. S. 443,506 (1887) (same); Great Northern Life Ins. Co. v. Read,322 U. S. 47, 51 (1944) ("The inherent nature of sovereignty prevents actions against a state by its own citizens without its consent"). We have said on many occasions, furthermore, that the States retain their immunity from private suits prosecuted in their own courts. See, e.g.,Beers v. Arkansas, 20 How. 527, 529 (1858) ("It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission"); Railroad Co. v. Tennessee,101 U. S. 337, 339 (1880) ("The principle is elementary that a State cannot be sued in its own courts without its consent. This is a privilege of sovereignty"); Cunningham v. Macon & Brunswick R. Co.,109 U. S. 446, 451 (1883) ("It may be accepted as a point of departure unquestioned, that neither a State nor the United States can be sued as defendant in any court in this country without their consent, except in the limited class of cases in which a State may be made a party in the Supreme Court of the United States by virtue of the original jurisdiction conferred on this court by the Constitution"); Louisiana ex rel. New York Guaranty & Indemnity Co. v. Steele,134 U. S. 230, 232 (1890) (finding a suit against a state official in state court to be "clearly within the principle" of the Eleventh Amendment decisions); Hess v. Port Authority Trans-Hudson Corporation,513 U. S. 30, 39 (1994) ("The Eleventh Amendment largely shields the States from suit in federal court without their consent, leaving the parties with claims against a State to present them, if the State permits, in the State's own tribunals"); Seminole Tribe,517 U. S., at 71, n. 14 ("[T]his Court is empowered to review a question of federal law arising from a state court decision where a State has consented to suit"); see also Great Northern Life Ins. Co. v. Read,322 U. S., at 59 (Frankfurter, J., dissenting) ("The Eleventh Amendment has put state immunity from suit into the Constitution. Therefore, it is not in the power of individuals to bring any State into court — the State's or that of the United States — except with its consent"); accord, id., at 51, 53 (majority opinion); cf. Quern v. Jordan,440 U. S. 332, 440 (1979); Green v. Mansour,474 U. S. 64, 71 (1985). We have also relied on the States' immunity in their own courts as a premise in our Eleventh Amendment rulings. See Hans,134 U. S., at 10 ("It is true the amendment does so read, and, if there were no other reason or ground for abating his suit, it might be maintainable; and then we should have this anomalous result [that a State may be sued by its own citizen though not by the citizen of another State, and that a State] may be thus sued in the federal courts, although not allowing itself to be sued in its own courts. If this is the necessary consequence of the language of the Constitution and the law, the result is no less startling and unexpected than [Chisholm]"); id., at 18 ("The state courts have no power to entertain suits by individuals against a State without its consent. Then how does the Circuit Court, having only concurrent jurisdiction, acquire any such power?"). In particular, the exception to our sovereign immunity doctrine recognized in Ex parte Young,209 U. S. 123 (1908), is based in part on the premise that sovereign immunity bars relief against States and their officers in both state and federal courts, and that certain suits for declaratory or injunctive relief against state officers must therefore be permitted if the Constitution is to remain the supreme law of the land. As we explained in General Oil Co. v. Crain,209 U. S. 211 (1908), a case decided the same day as Ex parte Young and extending the rule of that case to state-court suits:"It seems to be an obvious consequence that as a State can only perform its functions through its officers, a restraint upon them is a restraint upon its sovereignty from which it is exempt without its consent in the state tribunals, and exempt by the Eleventh Amendment of the Constitution of the United States, in the national tribunals. The error is in the universality of the conclusion, as we have seen. Necessarily to give adequate protection to constitutional rights a distinction must be made between valid and invalid state laws, as determining the character of the suit against state officers. And the suit at bar illustrates the necessity. If a suit against state officers is precluded in the national courts by the Eleventh Amendment to the Constitution, and may be forbidden by a State to its courts, as it is contended in the case at bar that it may be, without power of review by this court, it must be evident that an easy way is open to prevent the enforcement of many provisions of the Constitution ... . See Ex parte Young, ante, p. 123, where this subject is fully discussed and the cases reviewed." 209 U. S., at 226-227.Had we not understood the States to retain a constitutional immunity from suit in their own courts, the need for the Ex parte Young rule would have been less pressing, and the rule would not have formed so essential a part of our sovereign immunity doctrine. See Idaho v. Coeur d'Alene Tribe of Idaho,521 U. S., at 270-271 (principal opinion). As it is settled doctrine that neither substantive federal law nor attempted congressional abrogation under Article I bars a State from raising a constitutional defense of sovereign immunity in federal court, see Part II-A-1, supra, our decisions suggesting that the States retain an analogous constitutional immunity from private suits in their own courts support the conclusion that Congress lacks the Article I power to subject the States to private suits in those fora.4 Our final consideration is whether a congressional power to subject nonconsenting States to private suits in their own courts is consistent with the structure of the Constitution. We look both to the essential principles of federalism and to the special role of the state courts in the constitutional design. Although the Constitution grants broad powers to Congress, our federalism requires that Congress treat the States in a manner consistent with their status as residuary sovereigns and joint participants in the governance of the Nation. See, e.g.,United States v. Lopez,514 U. S., at 583 (concurring opinion); Printz,521 U. S., at 935; New York,505 U. S., at 188. The founding generation thought it "neither becoming nor convenient that the several States of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer the complaints of private persons." In re Ayers,123 U. S., at 505. The principle of sovereign immunity preserved by constitutional design "thus accords the States the respect owed them as members of the federation." Puerto Rico Aqueduct and Sewer Authority,506 U. S., at 146; accord, Coeur d'Alene Tribe, supra, at 268 (recognizing "the dignity and respect afforded a State, which the immunity is designed to protect"). Petitioners contend that immunity from suit in federal court suffices to preserve the dignity of the States. Private suits against nonconsenting States, however, present "the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties," In re Ayers, supra, at 505; accord, Seminole Tribe, 517 U. S., at 58, regardless of the forum. Not only must a State defend or default but also it must face the prospect of being thrust, by federal fiat and against its will, into the disfavored status of a debtor, subject to the power of private citizens to levy on its treasury or perhaps even government buildings or property which the State administers on the public's behalf. In some ways, of course, a congressional power to authorize private suits against nonconsenting States in their own courts would be even more offensive to state sovereignty than a power to authorize the suits in a federal forum. Although the immunity of one sovereign in the courts of another has often depended in part on comity or agreement, the immunity of a sovereign in its own courts has always been understood to be within the sole control of the sovereign itself. See generally Hall,440 U. S., at 414-418. A power to press a State's own courts into federal service to coerce the other branches of the State, furthermore, is the power first to turn the State against itself and ultimately to commandeer the entire political machinery of the State against its will and at the behest of individuals. Cf. Coeur d'Alene Tribe, supra, at 276. Such plenary federal control of state governmental processes denigrates the separate sovereignty of the States. It is unquestioned that the Federal Government retains its own immunity from suit not only in state tribunals but also in its own courts. In light of our constitutional system recognizing the essential sovereignty of the States, we are reluctant to conclude that the States are not entitled to a reciprocal privilege. Underlying constitutional form are considerations of great substance. Private suits against nonconsenting States — especially suits for money damages — may threaten the financial integrity of the States. It is indisputable that, at the time of the founding, many of the States could have been forced into insolvency but for their immunity from private suits for money damages. Even today, an unlimited congressional power to authorize suits in state court to levy upon the treasuries of the States for compensatory damages, attorney's fees, and even punitive damages could create staggering burdens, giving Congress a power and a leverage over the States that is not contemplated by our constitutional design. The potential national power would pose a severe and notorious danger to the States and their resources. A congressional power to strip the States of their immunity from private suits in their own courts would pose more subtle risks as well. "The principle of immunity from litigation assures the states and the nation from unanticipated intervention in the processes of government." Great Northern Life Ins. Co. v. Read,322 U. S., at 53. When the States' immunity from private suits is disregarded, "the course of their public policy and the administration of their public affairs" may become "subject to and controlled by the mandates of judicial tribunals without their consent, and in favor of individual interests." In re Ayers, supra, at 505. While the States have relinquished their immunity from suit in some special contexts — at least as a practical matter — see Part III, infra, this surrender carries with it substantial costs to the autonomy, the decisionmaking ability, and the sovereign capacity of the States. A general federal power to authorize private suits for money damages would place unwarranted strain on the States' ability to govern in accordance with the will of their citizens. Today, as at the time of the founding, the allocation of scarce resources among competing needs and interests lies at the heart of the political process. While the judgment creditor of the State may have a legitimate claim for compensation, other important needs and worthwhile ends compete for access to the public fisc. Since all cannot be satisfied in full, it is inevitable that difficult decisions involving the most sensitive and political of judgments must be made. If the principle of representative government is to be preserved to the States, the balance between competing interests must be reached after deliberation by the political process established by the citizens of the State, not by judicial decree mandated by the Federal Government and invoked by the private citizen. "It needs no argument to show that the political power cannot be thus ousted of its jurisdiction and the judiciary set in its place." Louisiana v. Jumel,107 U. S. 711, 727-728 (1883). By " `split[ting] the atom of sovereignty,' " the founders established " `two orders of government, each with its own direct relationship, its own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.' " Saenz v. Roe, 526 U. S. ____, ___, n. 17 (1999), quoting U. S. Term Limits, Inc. v. Thornton,514 U. S. 779, 838 (1995) (concurring opinion). "The Constitution thus contemplates that a State's government will represent and remain accountable to its own citizens." Printz,521 U. S., at 920. When the Federal Government asserts authority over a State's most fundamental political processes, it strikes at the heart of the political accountability so essential to our liberty and republican form of government. The asserted authority would blur not only the distinct responsibilities of the State and National Governments but also the separate duties of the judicial and political branches of the state governments, displacing "state decisions that `go to the heart of representative government.' " Gregory v. Ashcroft,501 U. S. 452, 461 (1991). A State is entitled to order the processes of its own governance, assigning to the political branches, rather than the courts, the responsibility for directing the payment of debts. See id., at 460 ("Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign"). If Congress could displace a State's allocation of governmental power and responsibility, the judicial branch of the State, whose legitimacy derives from fidelity to the law, would be compelled to assume a role not only foreign to its experience but beyond its competence as defined by the very constitution from which its existence derives. Congress cannot abrogate the States' sovereign immunity in federal court; were the rule to be different here, the National Government would wield greater power in the state courts than in its own judicial instrumentalities. Cf. Howlett,496 U. S., at 365 (noting the anomaly that would arise if "a State might be forced to entertain in its own courts suits from which it was immune in federal court"); Hilton,502 U. S., at 206 (recognizing the "federalism-related concerns that arise when the National Government uses the state courts as the exclusive forum to permit recovery under a congressional statute"). The resulting anomaly cannot be explained by reference to the special role of the state courts in the constitutional design. Although Congress may not require the legislative or executive branches of the States to enact or administer federal regulatory programs, see Printz, supra, at 935; New York,505 U. S., at 188, it may require state courts of "adequate and appropriate" jurisdiction, Testa,330 U. S., at 394, "to enforce federal prescriptions, insofar as those prescriptions relat[e] to matters appropriate for the judicial power," Printz, supra, at 907. It would be an unprecedented step, however, to infer from the fact that Congress may declare federal law binding and enforceable in state courts the further principle that Congress' authority to pursue federal objectives through the state judiciaries exceeds not only its power to press other branches of the State into its service but even its control over the federal courts themselves. The conclusion would imply that Congress may in some cases act only through instrumentalities of the States. Yet, as Chief Justice Marshall explained, "No trace is to be found in the constitution of an intention to create a dependence of the government of the Union on those of the States, for the execution of the great powers assigned to it. Its means are adequate to its ends; and on those means alone was it expected to rely for the accomplishment of its ends." McCulloch v. Maryland, 4 Wheat. 316, 424 (1819); cf. Osborn v. Bank of United States, 9 Wheat. 738, 821 (1824) ("It is not insinuated, that the judicial power, in cases depending on the character of the cause, cannot be exercised in the first instance, in the Courts of the Union, but must first be exercised in the tribunals of the State"). The provisions of the Constitution upon which we have relied in finding the state courts peculiarly amenable to federal command, moreover, do not distinguish those courts from the Federal Judiciary. The Supremacy Clause does impose specific obligations on state judges. There can be no serious contention, however, that the Supremacy Clause imposes greater obligations on state-court judges than on the Judiciary of the United States itself. The text of Article III, §1, which extends federal judicial power to enumerated classes of suits but grants Congress discretion whether to establish inferior federal courts, does give strong support to the inference that state courts may be opened to suits falling within the federal judicial power. The Article in no way suggests, however, that state courts may be required to assume jurisdiction that could not be vested in the federal courts and forms no part of the judicial power of the United States. We have recognized that Congress may require state courts to hear only "matters appropriate for the judicial power," Printz,521 U. S., at 907. Our sovereign immunity precedents establish that suits against nonconsenting States are not "properly susceptible of litigation in courts," Hans,134 U. S., at 12, and, as a result, that "[t]he `entire judicial power granted by the Constitution' does not embrace authority to entertain such suits in the absence of the State's consent." Principality of Monaco,292 U. S., at 329 (quoting Ex parte New York,256 U. S., at 497); accord, 292 U. S., at 322-323 (private suits against nonconsenting sovereigns are not "of a justiciable character"). We are aware of no constitutional precept that would admit of a congressional power to require state courts to entertain federal suits which are not within the judicial power of the United States and could not be heard in federal courts. As we explained in Erie R. Co. v. Tompkins,304 U. S. 64 (1938):"[T]he Constitution of the United States ... recognizes and preserves the autonomy and independence of the States — independence in their legislative and independence in their judicial departments. Supervision over either the legislative or the judicial action of the States is in no case permissible except as to matters by the Constitution specifically authorized or delegated to the United States. Any interference with either, except as thus permitted, is an invasion of the authority of the State and, to that extent, a denial of its independence." Id., at 78-79. In light of history, practice, precedent, and the structure of the Constitution, we hold that the States retain immunity from private suit in their own courts, an immunity beyond the congressional power to abrogate by Article I legislation.III The constitutional privilege of a State to assert its sovereign immunity in its own courts does not confer upon the State a concomitant right to disregard the Constitution or valid federal law. The States and their officers are bound by obligations imposed by the Constitution and by federal statutes that comport with the constitutional design. We are unwilling to assume the States will refuse to honor the Constitution or obey the binding laws of the United States. The good faith of the States thus provides an important assurance that "[t]his Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land." U. S. Const., Art. VI. Sovereign immunity, moreover, does not bar all judicial review of state compliance with the Constitution and valid federal law. Rather, certain limits are implicit in the constitutional principle of state sovereign immunity. The first of these limits is that sovereign immunity bars suits only in the absence of consent. Many States, on their own initiative, have enacted statutes consenting to a wide variety of suits. The rigors of sovereign immunity are thus "mitigated by a sense of justice which has continually expanded by consent the suability of the sovereign." Great Northern Life Ins. Co. v. Read,322 U. S., at 53. Nor, subject to constitutional limitations, does the Federal Government lack the authority or means to seek the States' voluntary consent to private suits. Cf. South Dakota v. Dole,483 U. S. 203 (1987). The States have consented, moreover, to some suits pursuant to the plan of the Convention or to subsequent constitutional amendments. In ratifying the Constitution, the States consented to suits brought by other States or by the Federal Government. Principality of Monaco, supra, at 328-329 (collecting cases). A suit which is commenced and prosecuted against a State in the name of the United States by those who are entrusted with the constitutional duty to "take Care that the Laws be faithfully executed," U. S. Const., Art. II, §3, differs in kind from the suit of an individual: While the Constitution contemplates suits among the members of the federal system as an alternative to extralegal measures, the fear of private suits against nonconsenting States was the central reason given by the founders who chose to preserve the States' sovereign immunity. Suits brought by the United States itself require the exercise of political responsibility for each suit prosecuted against a State, a control which is absent from a broad delegation to private persons to sue nonconsenting States. We have held also that in adopting the Fourteenth Amendment, the people required the States to surrender a portion of the sovereignty that had been preserved to them by the original Constitution, so that Congress may authorize private suits against nonconsenting States pursuant to its §5 enforcement power. Fitzpatrick v. Bitzer,427 U. S. 445 (1976). By imposing explicit limits on the powers of the States and granting Congress the power to enforce them, the Amendment "fundamentally altered the balance of state and federal power struck by the Constitution." Seminole Tribe,517 U. S., at 59. When Congress enacts appropriate legislation to enforce this Amendment, see City of Boerne v. Flores,521 U. S. 507 (1997), federal interests are paramount, and Congress may assert an authority over the States which would be otherwise unauthorized by the Constitution. Fitzpatrick, supra, at 456. The second important limit to the principle of sovereign immunity is that it bars suits against States but not lesser entities. The immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity which is not an arm of the State. See, e.g.,Mt. Healthy City Bd. of Ed. v. Doyle,429 U. S., at 280; Lincoln County v. Luning,133 U. S. 529 (1890). Nor does sovereign immunity bar all suits against state officers. Some suits against state officers are barred by the rule that sovereign immunity is not limited to suits which name the State as a party if the suits are, in fact, against the State. See, e.g.,In re Ayers,123 U. S., at 505-506; Idaho v. Coeur d'Alene Tribe of Idaho,521 U. S., at 270 ("The real interests served by the Eleventh Amendment are not to be sacrificed to elementary mechanics of captions and pleading"). The rule, however, does not bar certain actions against state officers for injunctive or declaratory relief. Compare Ex parte Young,209 U. S. 123 (1908), and In re Ayers, supra, with Coeur d'Alene Tribe of Idaho,supra,Seminole Tribe, supra, and Edelman v. Jordan,415 U. S. 651 (1974). Even a suit for money damages may be prosecuted against a state officer in his individual capacity for unconstitutional or wrongful conduct fairly attributable to the officer himself, so long as the relief is sought not from the state treasury but from the officer personally. Scheuer v. Rhodes,416 U. S. 232, 237-238 (1974); Ford Motor Co. v. Department of Treasury of Ind.,323 U. S. 459, 462 (1945). The principle of sovereign immunity as reflected in our jurisprudence strikes the proper balance between the supremacy of federal law and the separate sovereignty of the States. See Pennhurst State School and Hospital v. Halderman,465 U. S., at 105. Established rules provide ample means to correct ongoing violations of law and to vindicate the interests which animate the Supremacy Clause. See Green v. Mansour,474 U. S., at 68. That we have, during the first 210 years of our constitutional history, found it unnecessary to decide the question presented here suggests a federal power to subject nonconsenting States to private suits in their own courts is unnecessary to uphold the Constitution and valid federal statutes as the supreme law.IV The sole remaining question is whether Maine has waived its immunity. The State of Maine "regards the immunity from suit as `one of the highest attributes inherent in the nature of sovereignty,' " Cushing v. Cohen, 420 A. 2d 919, 923 (Me. 1981) (quoting Drake v. Smith, 390 A. 2d 541, 543 (Me. 1978)), and adheres to the general rule that "a specific authority conferred by an enactment of the legislature is requisite if the sovereign is to be taken as having shed the protective mantle of immunity," 420 A. 2d, at 923. Petitioners have not attempted to establish a waiver of immunity under this standard. Although petitioners contend the State has discriminated against federal rights by claiming sovereign immunity from this FLSA suit, there is no evidence that the State has manipulated its immunity in a systematic fashion to discriminate against federal causes of action. To the extent Maine has chosen to consent to certain classes of suits while maintaining its immunity from others, it has done no more than exercise a privilege of sovereignty concomitant to its constitutional immunity from suit. The State, we conclude, has not consented to suit.V This case at one level concerns the formal structure of federalism, but in a Constitution as resilient as ours form mirrors substance. Congress has vast power but not all power. When Congress legislates in matters affecting the States, it may not treat these sovereign entities as mere prefectures or corporations. Congress must accord States the esteem due to them as joint participants in a federal system, one beginning with the premise of sovereignty in both the central Government and the separate States. Congress has ample means to ensure compliance with valid federal laws, but it must respect the sovereignty of the States. In apparent attempt to disparage a conclusion with which it disagrees, the dissent attributes our reasoning to natural law. We seek to discover, however, only what the Framers and those who ratified the Constitution sought to accomplish when they created a federal system. We appeal to no higher authority than the Charter which they wrote and adopted. Theirs was the unique insight that freedom is enhanced by the creation of two governments, not one. We need not attach a label to our dissenting colleagues' insistence that the constitutional structure adopted by the founders must yield to the politics of the moment. Although the Constitution begins with the principle that sovereignty rests with the people, it does not follow that the National Government becomes the ultimate, preferred mechanism for expressing the people's will. The States exist as a refutation of that concept. In choosing to ordain and establish the Constitution, the people insisted upon a federal structure for the very purpose of rejecting the idea that the will of the people in all instances is expressed by the central power, the one most remote from their control. The Framers of the Constitution did not share our dissenting colleagues' belief that the Congress may circumvent the federal design by regulating the States directly when it pleases to do so, including by a proxy in which individual citizens are authorized to levy upon the state treasuries absent the States' consent to jurisdiction. The case before us depends upon these principles. The State of Maine has not questioned Congress' power to prescribe substantive rules of federal law to which it must comply. Despite an initial good-faith disagreement about the requirements of the FLSA, it is conceded by all that the State has altered its conduct so that its compliance with federal law cannot now be questioned. The Solicitor General of the United States has appeared before this Court, however, and asserted that the federal interest in compensating the States' employees for alleged past violations of federal law is so compelling that the sovereign State of Maine must be stripped of its immunity and subjected to suit in its own courts by its own employees. Yet, despite specific statutory authorization, see 29 U. S. C. §216(c), the United States apparently found the same interests insufficient to justify sending even a single attorney to Maine to prosecute this litigation. The difference between a suit by the United States on behalf of the employees and a suit by the employees implicates a rule that the National Government must itself deem the case of sufficient importance to take action against the State; and history, precedent, and the structure of the Constitution make clear that, under the plan of the Convention, the States have consented to suits of the first kind but not of the second. The judgment of the Supreme Judicial Court of Maine isAffirmed. JOHN H. ALDEN, et al., PETITIONERS v. MAINEon writ of certiorari to the supreme judicial court of maine[June 23, 1999] Justice Souter, with whom Justice Stevens, Justice Ginsburg, and Justice Breyer join, dissenting. In Seminole Tribe of Fla. v. Florida,517 U. S. 44 (1996), a majority of this Court invoked the Eleventh Amendment to declare that the federal judicial power under Article III of the Constitution does not reach a private action against a State, even on a federal question. In the Court's conception, however, the Eleventh Amendment was understood as having been enhanced by a "background principle" of state sovereign immunity (understood as immunity to suit), see id., at 72, that operated beyond its limited codification in the Amendment, dealing solely with federal citizen-state diversity jurisdiction. To the Seminole Tribe dissenters, of whom I was one, the Court's enhancement of the Amendment was at odds with constitutional history and at war with the conception of divided sovereignty that is the essence of American federalism. Today's issue arises naturally in the aftermath of the decision in Seminole Tribe. The Court holds that the Constitution bars an individual suit against a State to enforce a federal statutory right under the Fair Labor Standards Act of 1938 (FLSA), 29 U. S. C. §201 et seq. (1994 ed. and Supp. III), when brought in the State's courts over its objection. In thus complementing its earlier decision, the Court of course confronts the fact that the state forum renders the Eleventh Amendment beside the point, and it has responded by discerning a simpler and more straightforward theory of state sovereign immunity than it found in Seminole Tribe: a State's sovereign immunity from all individual suits is a "fundamental aspect" of state sovereignty "confirm[ed]" by the Tenth Amendment. Ante, at 2, 3. As a consequence, Seminole Tribe's contorted reliance on the Eleventh Amendment and its background was presumably unnecessary; the Tenth would have done the work with an economy that the majority in Seminole Tribe would have welcomed. Indeed, if the Court's current reasoning is correct, the Eleventh Amendment itself was unnecessary. Whatever Article III may originally have said about the federal judicial power, the embarrassment to the State of Georgia occasioned by attempts in federal court to enforce the State's war debt could easily have been avoided if only the Court that decided Chisholm v. Georgia, 2 Dall. 419 (1793), had understood a State's inherent, Tenth Amendment right to be free of any judicial power, whether the court be state or federal, and whether the cause of action arise under state or federal law. The sequence of the Court's positions prompts a suspicion of error, and skepticism is confirmed by scrutiny of the Court's efforts to justify its holding. There is no evidence that the Tenth Amendment constitutionalized a concept of sovereign immunity as inherent in the notion of statehood, and no evidence that any concept of inherent sovereign immunity was understood historically to apply when the sovereign sued was not the font of the law. Nor does the Court fare any better with its subsidiary lines of reasoning, that the state-court action is barred by the scheme of American federalism, a result supposedly confirmed by a history largely devoid of precursors to the action considered here. The Court's federalism ignores the accepted authority of Congress to bind States under the FLSA and to provide for enforcement of federal rights in state court. The Court's history simply disparages the capacity of the Constitution to order relationships in a Republic that has changed since the founding. On each point the Court has raised it is mistaken, and I respectfully dissent from its judgment.I The Court rests its decision principally on the claim that immunity from suit was "a fundamental aspect of the sovereignty which the States enjoyed before the ratification of the Constitution," ante, at 2, an aspect which the Court understands to have survived the ratification of the Constitution in 1788 and to have been "confirm[ed]" and given constitutional status, ante, at 3, by the adoption of the Tenth Amendment in 1791. If the Court truly means by "sovereign immunity" what that term meant at common law, see ante, at 25, its argument would be insupportable. While sovereign immunity entered many new state legal systems as a part of the common law selectively received from England, it was not understood to be indefeasible or to have been given any such status by the new National Constitution, which did not mention it. See Seminole Tribe, supra, at 132-142, 160-162, and n. 55 (Souter, J., dissenting). Had the question been posed, state sovereign immunity could not have been thought to shield a State from suit under federal law on a subject committed to national jurisdiction by Article I of the Constitution. Congress exercising its conceded Article I power may unquestionably abrogate such immunity. I set out this position at length in my dissent in Seminole Tribe and will not repeat it here.1 The Court does not, however, offer today's holding as a mere corollary to its reasoning in Seminole Tribe, substituting the Tenth Amendment for the Eleventh as the occasion demands, and it is fair to read its references to a "fundamental aspect" of state sovereignty as referring not to a prerogative inherited from the Crown, but to a conception necessarily implied by statehood itself. The conception is thus not one of common law so much as of natural law, a universally applicable proposition discoverable by reason. This, I take it, is the sense in which the Court so emphatically relies on Alexander Hamilton's reference in The Federalist No. 81 to the States' sovereign immunity from suit as an "inherent" right, see ante, at 6, a characterization that does not require, but is at least open to, a natural law reading. I understand the Court to rely on the Hamiltonian formulation with the object of suggesting that its conception of sovereign immunity as a "fundamental aspect" of sovereignty was a substantially popular, if not the dominant, view in the periods of Revolution and Confederation. There is, after all, nothing else in the Court's opinion that would suggest a basis for saying that the ratification of the Tenth Amendment gave this "fundamental aspect" its constitutional status and protection against any legislative tampering by Congress.2 The Court's principal rationale for today's result, then, turns on history: was the natural law conception of sovereign immunity as inherent in any notion of an independent State widely held in the United States in the period preceding the ratification of 1788 (or the adoption of the Tenth Amendment in 1791)? The answer is certainly no. There is almost no evidence that the generation of the Framers thought sovereign immunity was fundamental in the sense of being unalterable. Whether one looks at the period before the framing, to the ratification controversies, or to the early republican era, the evidence is the same. Some Framers thought sovereign immunity was an obsolete royal prerogative inapplicable in a republic; some thought sovereign immunity was a common-law power defeasible, like other common-law rights, by statute; and perhaps a few thought, in keeping with a natural law view distinct from the common-law conception, that immunity was inherent in a sovereign because the body that made a law could not logically be bound by it. Natural law thinking on the part of a doubtful few will not, however, support the Court's position.A The American Colonies did not enjoy sovereign immunity, that being a privilege understood in English law to be reserved for the Crown alone; "antecedent to the Declaration of Independence, none of the colonies were, or pretended to be, sovereign states," 1 J. Story, Commentaries on the Constitution §207, p. 149 (5th ed. 1891). Several colonial charters, including those of Massachusetts, Connecticut, Rhode Island, and Georgia, expressly specified that the corporate body established thereunder could sue and be sued. See 5 Sources and Documents of United States Constitutions 36 (W. Swindler ed. 1975) (Massachusetts); 2 id., at 131 (Connecticut); 8 id., at 363 (Rhode Island); 2 id., at 434 (Georgia). Other charters were given to individuals, who were necessarily subject to suit. See Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1897 (1983). If a colonial lawyer had looked into Blackstone for the theory of sovereign immunity, as indeed many did, he would have found nothing clearly suggesting that the Colonies as such enjoyed any immunity from suit. "[T]he law ascribes to the king the attribute of sovereignty, or pre-eminence," said Blackstone, 1 W. Blackstone, Commentaries *241 (hereinafter Blackstone), and for him, the sources for this notion were Bracton3 and Acts of Parliament that declared the Crown imperial. Id., at *241-*242. It was simply the King against whom "no suit or action can be brought ... even in civil matters, because no court can have jurisdiction over him." Id., at *242.4 If a person should have "a just demand upon the king, he must petition him in his court of chancery, where his chancellor will administer right as a matter of grace though not upon compulsion." Id., at *243. It is worth pausing here to note that after Blackstone had explained sovereign immunity at common law, he went on to say that the common-law tradition was compatible with sovereign immunity as discussed by writers on "natural law":"And this is entirely consonant to what is laid down by the writers on natural law. `A subject,' says Puffendorf, `so long as he continues a subject, hath no way to oblige his prince to give him his due, when he refuses it; though no wise prince will ever refuse to stand to a lawful contract. And, if the prince gives the subject leave to enter an action against him, upon such contract, in his own courts, the action itself proceeds rather upon natural equity, than upon the municipal laws.' For the end of such action is not to compel the prince to observe the contract, but to persuade him." Ibid. (footnote omitted).5 Next Blackstone quoted Locke's explanation for immunity, according to which the risks of overreaching by " `a heady prince' " are " `well recompensed by the peace of the public and security of the government, in the person of the chief magistrate, being thus set out of the reach of danger.' " Ibid. (quoting J. Locke, Second Treatise of Civil Government §205 (1690 J. Gough ed. 1947)). By quoting Pufendorf and Locke, Blackstone revealed to his readers a legal-philosophical tradition that derived sovereign immunity not from the immemorial practice of England but from general theoretical principles. But although Blackstone thus juxtaposed the common-law and natural law6 conceptions of sovereign immunity, he did not confuse them. It was as well he did not, for although the two conceptions were arguably "consonant" in England, where according to Blackstone, the Crown was sovereign,7 their distinct foundations could make a difference in America, where the location of sovereignty was an issue that independence would raise with some exigence.B Starting in the mid-1760's, ideas about sovereignty in colonial America began to shift as Americans argued that, lacking a voice in Parliament, they had not in any express way consented to being taxed. See B. Bailyn, The Ideological Origins of the American Revolution 204-219 (1968); G. Wood, The Creation of the American Republic, 1776-1787, pp. 347-348 (1969). The story of the subsequent development of conceptions of sovereignty is complex and uneven; here, it is enough to say that by the time independence was declared in 1776, the locus of sovereignty was still an open question, except that almost by definition, advocates of independence denied that sovereignty with respect to the American Colonies remained with the King in Parliament. As the concept of sovereignty was unsettled, so was that of sovereign immunity. Some States appear to have understood themselves to be without immunity from suit in their own courts upon independence.8 Connecticut and Rhode Island adopted their pre-existing charters as constitutions, without altering the provisions specifying their suability. See Gibbons, 83 Colum. L. Rev., at 1898, and nn. 42-43. Other new States understood themselves to be inheritors of the Crown's common-law sovereign immunity and so enacted statutes authorizing legal remedies against the State parallel to those available in England.9 There, although the Crown was immune from suit, the contemporary practice allowed private litigants to seek legal remedies against the Crown through the petition of right or the monstrans de droit in the Chancery or Exchequer. See 3 Blackstone *256-257. A Virginia statute provided: "Where the auditors according to their discretion and judgment shall disallow or abate any article of demand against the commonwealth, and any person shall think himself aggrieved thereby, he shall be at liberty to petition the high court of chancery or the general court, according to the nature of his case, for redress, and such court shall proceed to do right thereon; and a like petition shall be allowed in all other cases to any other person who is entitled to demand against the commonwealth any right in law or equity." 9 W. Hening, Statutes at Large: Being a Collection of the Laws of Virginia 536, 540 (1821); see Pfander, Sovereign Immunity and the Right to Petition: Toward a First Amendment Right to Pursue Judicial Claims Against the Government, 91 Nw. U. L. Rev. 899, 939-940, and n. 142 (1997).This "petition" was clearly reminiscent of the English petition of right, as was the language "shall proceed to do right thereon," which paralleled the formula of royal approval, "soit droit fait al partie," technically required before a petition of right could be adjudicated. See 3 Blackstone *256; Pfander, supra, at 940, and nn. 143-144. A New York statute similarly authorized petition to the court of chancery by anyone who thought himself aggrieved by the state auditor general's resolution of his account with the State. See An Act Directing a Mode for the Recovery of Debts due to, and the Settlement of Accounts with this State, March 30, 1781, in The First Laws of the State of New York 192 (1782 ed., reprinted 1984); see also Pfander, supra, at 941, and n. 145. Pennsylvania not only adopted a law conferring the authority to settle accounts upon the Comptroller General, see Act of Apr. 13, 1782, ch. 959, 2 Laws of the Commonwealth of Pennsylvania 19 (1810), but in 1785 provided for appeal from such adjudications to the Pennsylvania Supreme Court, where a jury trial could be had, see id., at 26-27; Pfander, supra, at 941, n. 147. Although in at least one recorded case before the Pennsylvania Supreme Court the Commonwealth, citing Blackstone, pleaded common-law sovereign immunity, see Respublica v. Sparhawk, 1 Dall. 357, 363 (Pa. 1788), the Supreme Court of Pennsylvania did not reach this argument, concluding on other grounds that it lacked jurisdiction.10 Two years after this decision, under the influence of James Wilson, see C. Jacobs, The Eleventh Amendment and Sovereign Immunity 25, and 169, n. 53 (1972), Pennsylvania adopted a new constitution, which provided that "[s]uits may be brought against the commonwealth in such manner, in such courts, and in such cases as the legislature may by law direct." Pa. Const., Art. IX, §11 (1790), reprinted in 8 Sources and Documents of United States Constitutions, at 293; see also Pfander, supra, at 928, n. 101.11 Around the time of the Constitutional Convention, then, there existed among the States some diversity of practice with respect to sovereign immunity; but despite a tendency among the state constitutions to announce and declare certain inalienable and natural rights of men and even of the collective people of a State, see, e.g., Pennsylvania Constitution, Art. III (1776), 8 Sources and Documents of United States Constitutions, supra, at 278 ("That the people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same"), no State declared that sovereign immunity was one of those rights. To the extent that States were thought to possess immunity, it was perceived as a prerogative of the sovereign under common law. And where sovereign immunity was recognized as barring suit, provisions for recovery from the State were in order, just as they had been at common law in England.C At the Constitutional Convention, the notion of sovereign immunity, whether as natural law or as common law, was not an immediate subject of debate, and the sovereignty of a State in its own courts seems not to have been mentioned. This comes as no surprise, for although the Constitution required state courts to apply federal law, the Framers did not consider the possibility that federal law might bind States, say, in their relations with their employees.12 In the subsequent ratification debates, however, the issue of jurisdiction over a State did emerge in the question whether States might be sued on their debts in federal court, and on this point, too, a variety of views emerged and the diversity of sovereign immunity conceptions displayed itself. The only arguable support for the Court's absolutist view that I have found among the leading participants in the debate surrounding ratification was the one already mentioned, that of Alexander Hamilton in The Federalist No. 81, where he described the sovereign immunity of the States in language suggesting principles associated with natural law: "It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated [that States might be sued on their debts in federal court] must be merely ideal. ... The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will." The Federalist No. 81, pp. 548-549 (J. Cooke ed. 1961).Hamilton chose his words carefully, and he acknowledged the possibility that at the Convention the States might have surrendered sovereign immunity in some circumstances, but the thrust of his argument was that sovereign immunity was "inherent in the nature of sovereignty."13 An echo of Pufendorf may be heard in his reference to "the conscience of the sovereign";14 and the universality of the phenomenon of sovereign immunity, which Hamilton claimed ("the general sense and the general practice of mankind"), is a peculiar feature of the natural law conception. The apparent novelty and uniqueness of Hamilton's employment of natural law terminology to explain the sovereign immunity of the States is worth remarking, because it stands in contrast to formulations indicating no particular position on the natural-law-versus-common-law origin, to the more widespread view that sovereign immunity derived from common law, and to the more radical stance that the sovereignty of the people made sovereign immunity out of place in the United States. Hamilton's view is also worth noticing because, in marked contrast to its prominence in the Court's opinion today, as well as in Seminole Tribe, 517 U. S., at 54, and in Hans v. Louisiana,134 U. S. 1, 13 (1890), cf. Great Northern Life Ins. Co. v. Read,322 U. S. 47, 51 (1944), it found no favor in the early Supreme Court, see infra, at 21-22. In the Virginia ratifying convention, Madison was among those who debated sovereign immunity in terms of the result it produced, not its theoretical underpinnings. He maintained that "[i]t is not in the power of individuals to call any state into court," 3 J. Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 533 (2d ed. 1836) (hereinafter Elliot's Debates), and thought that the phrase "in which a State shall be a Party" in Article III, §2, must be interpreted in light of that general principle, so that "[t]he only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court." Ibid.15 John Marshall argued along the same lines against the possibility of federal jurisdiction over private suits against States, and he invoked the immunity of a State in its own courts in support of his argument:"I hope that no gentleman will think that a state will be called at the bar of the federal court. Is there no such case at present? Are there not many cases in which the legislature of Virginia is a party, and yet the state is not sued? It is not rational to suppose that the sovereign power should be dragged before a court." Id., at 555. There was no unanimity among the Virginians either on state- or federal-court immunity, however, for Edmund Randolph anticipated the position he would later espouse as plaintiff's counsel in Chisholm v. Georgia, 2 Dall. 419 (1793). He contented himself with agnosticism on the significance of what Hamilton had called "the general practice of mankind," and argued that notwithstanding any natural law view of the nonsuability of States, the Constitution permitted suit against a State in federal court: "I think, whatever the law of nations may say, that any doubt respecting the construction that a state may be plaintiff, and not defendant, is taken away by the words where a state shall be a party." 3 Elliot's Debates 573. Randolph clearly believed that the Constitution both could and in fact by its language did trump any inherent immunity enjoyed by the States; his view on sovereign immunity in state court seems to have been that the issue was uncertain ("whatever the law of nations may say"). At the farthest extreme from Hamilton, James Wilson made several comments in the Pennsylvania Convention that suggested his hostility to any idea of state sovereign immunity. First, he responded to the argument that "the sovereignty of the states is destroyed" if they are sued by the United States, "because a suiter in a court must acknowledge the jurisdiction of that court, and it is not the custom of sovereigns to suffer their names to be made use of in this manner." 2 id., at 490. For Wilson, "[t]he answer [was] plain and easy: the government of each state ought to be subordinate to the government of the United States." Ibid.16 Wilson was also pointed in commenting on federal jurisdiction over cases between a State and citizens of another State: "When this power is attended to, it will be found to be a necessary one. Impartiality is the leading feature in this Constitution; it pervades the whole. When a citizen has a controversy with another state, there ought to be a tribunal where both parties may stand on a just and equal footing." Id., at 491. Finally, Wilson laid out his view that sovereignty was in fact not located in the States at all: "Upon what principle is it contended that the sovereign power resides in the state governments? The honorable gentleman has said truly, that there can be no subordinate sovereignty. Now, if there cannot, my position is, that the sovereignty resides in the people; they have not parted with it; they have only dispensed such portions of the power as were conceived necessary for the public welfare." Id., at 443.17 While this statement did not specifically address sovereign immunity, it expressed the major premise of what would later become Justice Wilson's position in Chisholm: that because the people, and not the States, are sovereign, sovereign immunity has no applicability to the States. From a canvass of this spectrum of opinion expressed at the ratifying conventions, one thing is certain. No one was espousing an indefeasible, natural law view of sovereign immunity. The controversy over the enforceability of state debts subject to state law produced emphatic support for sovereign immunity from eminences as great as Madison and Marshall, but neither of them indicated adherence to any immunity conception outside the common law.D At the close of the ratification debates, the issue of the sovereign immunity of the States under Article III had not been definitively resolved, and in some instances the indeterminacy led the ratification conventions to respond in ways that point to the range of thinking about the doctrine. Several state ratifying conventions proposed amendments and issued declarations that would have exempted States from subjection to suit in federal court.18 The New York Convention's statement of ratification included a series of declarations framed as proposed amendments, among which was one stating "That the judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state." 1 Elliot's Debates 329.19 Whether that amendment was meant to alter or to clarify Article III as ratified is uncertain, but regardless of its precise intent, New York's response to the draft proposed by the Convention of 1787 shows that there was no consensus at all on the question of state suability (let alone on the underlying theory of immunity doctrine). There was, rather, an unclear state of affairs which it seemed advisable to stabilize. The Rhode Island Convention, when it finally ratified on June 16, 1790, called upon its representatives to urge the passage of a list of amendments. This list incorporated language, some of it identical to that proposed by New York, in the following form: "It is declared by the Convention, that the judicial power of the United States, in cases in which a state may be a party, does not extend to criminal prosecutions, or to authorize any suit by any person against a state; but, to remove all doubts or controversies respecting the same, that it be especially expressed, as a part of the Constitution of the United States, that Congress shall not, directly or indirectly, either by themselves or through the judiciary, interfere with any one of the states ... in liquidating and discharging the public securities of any one state." 1 id., at 336.Even more clearly than New York's proposal, this amendment appears to have been intended to clarify Article III as reflecting some theory of sovereign immunity, though without indicating which one. Unlike the Rhode Island proposal, which hinted at a clarification of Article III, the Virginia and North Carolina ratifying conventions proposed amendments that by their terms would have fundamentally altered the content of Article III. The Virginia Convention's proposal for a new Article III omitted entirely the language conferring federal jurisdiction over a controversy between a State and citizens of another State, see 3 id., at 660-661, and the North Carolina Convention proposed an identical amendment, see 4 id., at 246-247. These proposals for omission suggest that the conventions of Virginia and North Carolina thought they had subjected themselves to citizen suits under Article III as enacted, and that they wished not to have done so.20 There is, thus, no suggestion in their resolutions that Article III as drafted was fundamentally at odds with an indefeasible natural law sovereignty, or witha conception that went to the essence of what it meant to be a State. At all events, the state ratifying conventions' felt need for clarification on the question of state suability demonstrates that uncertainty surrounded the matter even at the moment of ratification. This uncertainty set the stage for the divergent views expressed in Chisholm.E If the natural law conception of sovereign immunity as an inherent characteristic of sovereignty enjoyed by the States had been broadly accepted at the time of the founding, one would expect to find it reflected somewhere in the five opinions delivered by the Court in Chisholm v. Georgia, 2 Dall. 419 (1793). Yet that view did not appear in any of them. And since a bare two years before Chisholm, the Bill of Rights had been added to the original Constitution, if the Tenth Amendment had been understood to give federal constitutional status to state sovereign immunity so as to endue it with the equivalent of the natural law conception, one would be certain to find such a development mentioned somewhere in the Chisholm writings. In fact, however, not one of the opinions espoused the natural law view, and not one of them so much as mentioned the Tenth Amendment. Not even Justice Iredell, who alone among the Justices thought that a State could not be sued in federal court, echoed Hamilton or hinted at a constitutionally immutable immunity doctrine. Chisholm presented the questions whether a State might be made a defendant in a suit brought by a citizen of another State, and if so, whether an action of assumpsit would lie against it. See id., at 420 (questions presented).21 In representing Chisholm, Edmund Randolph, the Framer22 and then Attorney General, not only argued for the necessity of a federal forum to vindicate private rights against the States, see id., at 422, but rejected any traditional conception of sovereignty. He said that the sovereignty of the States, which he acknowledged, id., at 423, was no barrier to jurisdiction, because "the present Constitution produced a new order of things. It derives its origin immediately from the people ... . The States are in fact assemblages of these individuals who are liable to process," ibid. Justice Wilson took up the argument for the sovereignty of the people more vociferously. Building on a conception of sovereignty he had already expressed at the Pennsylvania ratifying convention, see supra, at 18-19, he began by noting what he took to be the pregnant silence of the Constitution regarding sovereignty: "To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established the Constitution. They might have announced themselves `SOVEREIGN' people of the United States: But serenely conscious of the fact, they avoided the ostentatious declaration." 2 Dall. at 454.As if to contrast his own directness23 with the Framers' delicacy, the Framer-turned-Justice explained in no uncertain terms that Georgia was not sovereign with respect to federal jurisdiction (even in a diversity case):"As a Judge of this Court, I know, and can decide upon the knowledge, that the citizens of Georgia, when they acted upon the large scale of the Union, as a part of the `People of the United States,' did not surrender the Supreme or Sovereign Power to that State; but, as to the purposes of the Union, retained it to themselves. As to the purposes of the Union, therefore, Georgiais NOT a sovereign State." Id., at 457.This was necessarily to reject any natural law conception of sovereign immunity as inherently attached to an American State, but this was not all. Justice Wilson went on to identify the origin of sovereign immunity in the feudal system that had, he said, been brought to England and to the common law by the Norman Conquest. After quoting Blackstone's formulation of the doctrine as it had developed in England, he discussed it in the most disapproving terms imaginable:"This last position [that the King is sovereign and no court can have jurisdiction over him] is only a branch of a much more extensive principle, on which a plan of systematic despotism has been lately formed in England, and prosecuted with unwearied assiduity and care. Of this plan the author of the Commentaries was, if not the introducer, at least the great supporter. He has been followed in it by writers later and less known; and his doctrines have, both on the other and this side of the Atlantic, been implicitly and generally received by those, who neither examined their principles nor their consequences[.] The principle is, that all human law must be prescribed by a superior. This principle I mean not now to examine. Suffice it, at present to say, that another principle, very different in its nature and operations, forms, in my judgment, the basis of sound and genuine jurisprudence; laws derived from the pure source of equality and justice must be founded on the CONSENT of those, whose obedience they require. The sovereign, when traced to his source, must be found in the man." Id., at 458.With this rousing conclusion of revolutionary ideology and rhetoric, Justice Wilson left no doubt that he thought the doctrine of sovereign immunity entirely anomalous in the American Republic. Although he did not speak specifically of a State's immunity in its own courts, his view necessarily requires that such immunity would not have been justifiable as a tenet of absolutist natural law. Chief Justice Jay took a less vehement tone in his opinion, but he, too, denied the applicability of the doctrine of sovereign immunity to the States. He explained the doctrine as an incident of European feudalism, id., at 471, and said that by contrast,"[n]o such ideas obtain here; at the Revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects (unless the African slaves among us may be so called) and have none to govern but themselves; the citizens of America are equal as fellow citizens, and as joint tenants in the sovereignty." Id., at 471-472.From the difference between the sovereignty of princes and that of the people, Chief Justice Jay argued, it followed that a State might be sued. When a State sued another State, as all agreed it could do in federal court, all the people of one State sued all the people of the other. "But why it should be more incompatible, that all the people of a State should be sued by one citizen, than by one hundred thousand, I cannot perceive, the process in both cases being alike; and the consequences of a judgment alike." Id., at 473. Finally, Chief Justice Jay pointed out, Article III authorized suits between a State and citizens of another State. Although the Chief Justice reserved judgment on whether the United States might be sued by a citizen, given that the courts must rely on the Executive to implement their decisions, he made it clear that this reservation was practical, and not theoretical: "I wish the State of society was so far improved, and the science of Government advanced to such a degree of perfection, as that the whole nation could in the peaceable course of law, be compelled to do justice, and be sued by individual citizens." Id., at 478. Although Chief Justice Jay did not speak specifically to the question of state sovereign immunity in state court, his theory shows that he considered not the States, but the people collectively, to be sovereign; and there is thus no reason to think he would have denied that the people of the Nation could override any state claim to sovereign immunity in a matter committed to the Nation. Justice Cushing's opinion relied on the express language of Article III to hold that Georgia might be sued in federal court. He dealt shortly with the objection that States' sovereignty would be thereby restricted so that States would be reduced to corporations: "As to corporations, all States whatever are corporations or bodies politic. The only question is, what are their powers?" Id., at 468. Observing that the Constitution limits the powers of the States in numerous ways, he concluded that "no argument of force can be taken from the sovereignty of States. Where it has been abridged, it was thought necessary for the greater indispensable good of the whole." Ibid. From the opinion, it is not possible to tell with certainty what Justice Cushing thought about state sovereign immunity in state court, although his introductory remark is suggestive. The case, he wrote, "turns not upon the law or practice of England, although perhaps it may be in some measure elucidated thereby, nor upon the law of any other country whatever; but upon the Constitution established by the people of the United States." Id., at 466. It is clear that he had no sympathy for a view of sovereign immunity inherent in statehood and untouchable by national legislative authority. Justice Blair, like Justice Cushing, relied on Article III, and his brief opinion shows that he acknowledged state sovereign immunity, but common-law immunity in state court. First, Justice Blair asked hypothetically whether a verdict against the plaintiff would be preclusive if the plaintiff "should renew his suit against the State, in any mode in which she may permit herself to be sued in her own Courts." Id., at 452. Second, he commented that there was no need to require the plaintiff to proceed by way of petition:"When sovereigns are sued in their own Courts, such a method may have been established as the most respectful form of demand; but we are not now in a State-Court; and if sovereignty be an exemption from suit in any other than the sovereign's own Courts, it follows that when a State, by adopting the Constitution, has agreed to be amenable to the judicial power of the United States, she has, in that respect, given up her right of sovereignty." Ibid.It is worth noting that for Justice Blair, the petition brought in state court was properly called a suit. This reflects the contemporary practice of his native Virginia, where, as we have seen, supra, at 10-11, suits as of right against the State were authorized by statute. Justice Blair called sovereignty "an exemption from suit in any other than the sovereign's own Courts" because he assumed that, in its own courts, a sovereign will naturally permit itself to be sued as of right. Justice Iredell was the only Member of the Court to hold that the suit could not lie; but if his discussion was far-reaching, his reasoning was cautious. Its core was that the Court could not assume a waiver of the State's common-law sovereign immunity where Congress had not expressly passed such a waiver. See 2 Dall., at 449 (dissenting opinion). Although Justice Iredell added, in what he clearly identified as dictum, that he was "strongly against" any construction of the Constitution "which will admit, under any circumstances, a compulsive suit against a State for the recovery of money," ibid.,24 he made it equally clear that he understood sovereign immunityas a common-law doctrine passed to the States withindependence:"No other part of the common law of England, it appears to me, can have any reference to this subject, but that part of it which prescribes remedies against the crown. Every State in the Union in every instance where its sovereignty has not been delegated to the United States, I consider to be as compleatly sovereign, as the United States are in respect to the powers surrendered. The United States are sovereign as to all the powers of Government actually surrendered: Each State in the Union is sovereign as to all the powers reserved. It must necessarily be so, because the United States have no claim to any authority but such as the States have surrendered to them: Of course the part not surrenderred must remain as it did before." Id., at 435.This did not mean, of course, that the States had not delegated to Congress the power to subject them to suit, but merely that such a delegation would have been necessary on Justice Iredell's view. In sum, then, in Chisholm two Justices (Jay and Wilson), both of whom had been present at the Constitutional Convention, took a position suggesting that States should not enjoy sovereign immunity (however conceived) even in their own courts; one (Cushing) was essentially silent on the issue of sovereign immunity in state court; one (Blair) took a cautious position affirming the pragmatic view that sovereign immunity was a continuing common law doctrine and that States would permit suit against themselves as of right; and one (Iredell) expressly thought that state sovereign immunity at common-law rightly belonged to the sovereign States. Not a single Justice suggested that sovereign immunity was an inherent and indefeasible right of statehood, and neither counsel for Georgia before the Circuit Court, see supra, at 24, n. 21, nor Justice Iredell seems even to have conceived the possibility that the new Tenth Amendment produced the equivalent of such a doctrine. This dearth of support makes it very implausible for today's Court to argue that a substantial (let alone a dominant) body of thought at the time of the framing understood sovereign immunity to be an inherent right of statehood, adopted or confirmed by the Tenth Amendment.25 The Court's discomfort is evident in its obvious recognition that its natural law or Tenth Amendment conception of state sovereign immunity is insupportable if Chisholm stands. Hence the Court's attempt to discount the Chisholm opinions, an enterprise in which I believe it fails. The Court, citing Hans v. Louisiana,134 U. S. 1 (1890), says that the Eleventh Amendment "overruled" Chisholm, ante, at 12, but the animadversion is beside the point. The significance of Chisholm is its indication that in 1788 and 1791 it was not generally assumed (indeed, hardly assumed at all) that a State's sovereign immunity from suit in its own courts was an inherent, and not merely a comon-law, advantage. On the contrary, the testimony of five eminent legal minds of the day confirmed that virtually everyone who understood immunity to be legitimate saw it as a common-law prerogative (from which it follows that it was subject to abrogation by Congress as to a matter within Congress's Article I authority). The Court does no better with its trio of arguments to undercut Chisholm's legitimacy: that the Chisholm majority "failed to address either the practice or the understanding that prevailed in the States at the time the Constitution was adopted," ante, at 11; that "the majority suspected the decision would be unpopular and surprising," ibid.; and that "two Members of the majority acknowledged that the United States might well remain immune from suit despite" Article III, ante, at 12. These three claims do not, of course, go to the question whether state sovereign immunity was understood to be "fundamental" or "inherent," but in any case, none of them is convincing. With respect to the first, Justice Blair in fact did expressly refer to the practice of state sovereign immunity in state court, and acknowledged the petition of right as an appropriate and normal practice. This aside, the Court would have a legitimate point if it could show that the Chisholm majority took insufficient account of a body of practice that somehow indicated a widely held absolutist conception of state sovereign immunity untouchable and untouched by the Constitution. But of course it cannot.26 As for the second point, it is a remarkable doctrine that would hold anticipation of unpopularity the benchmark of constitutional error. In any event, the evidence proffered by the Court is merely this: that Justice Wilson thought the prerevolutionary conception of sovereignty misguided, 2 Dall., at 454-455; that Justice Cushing stated axiomatically that the Constitution could always be amended, id., at 468; that Chief Justice Jay noted that the losing defendant might still come to understand that sovereign immunity is inconsistent with republicanism, id., at 478-479; and that Attorney General Randolph admitted that the position he espoused was unpopular not only in Georgia, but also in another State, probably Virginia.27 These items boil down to the proposition that the Justices knew (as who could not, with such a case before him) that at the ratifying conventions the significance of sovereign immunity had been, as it still was, a matter of dispute. This reality does not detract from, but confirms, the view that the Framers showed no intent to recognize sovereign immunity as an immutably inherent power of the States. As to the third objection, that two Justices noted that the United States might possess sovereign immunity notwithstanding Article III, I explained, supra, at 28, that Chief Justice Jay thought this possibility was purely practical, not at all legal, and without any implication for state immunity vis-à-vis federal claims. Justice Cushing was so little troubled by the possibility he raised that he wrote, "If this be a necessary consequence, it must be so," Chisholm, supra, at 469, and simply suggested a textual reading that might have led to a different consequence. Nor can the Court make good on its claim that the enactment of the Eleventh Amendment retrospectively reestablished the view that had already been established at the time of the framing (though eluding the perception of all but one Member of the Supreme Court), and hence "acted ... to restore the original constitutional design," ante, at 12.28 There was nothing "established" about the position espoused by Georgia in the effort to repudiate its debts, and the Court's implausible suggestion to the contrary merely echoes the brio of its remark in Seminole Tribe that Chisholm was "contrary to the well-understood meaning of the Constitution." 517 U. S., at 69 (citing Principality of Monaco v. Mississippi,292 U. S. 313, 325 (1934)). The fact that Chisholm was no conceptual aberration is apparent from the ratification debates and the several state requests to rewrite Article III. There was no received view either of the role this sovereign immunity would play in the circumstances of the case or of a conceptual foundation for immunity doctrine at odds with Chisholm's reading of Article III. As an author on whom the Court relies, see ante, at 14, has it, "there was no unanimity among the Framers that immunity would exist," D. Currie, The Constitution in the Supreme Court: The First Century 19 (1985).29 It should not be surprising, then, to realize that although much post-Chisholm discussion was disapproving (as the States saw their escape from debt cut off), the decision had champions "every bit as vigorous in defending their interpretation of the Constitution as were those partisans on the other side of the issue." Marcus & Wexler, Suits Against States: Diversity of Opinion In The 1790s, 1993 J. Sup. Ct. Hist. 73, 83; see, e.g., 5 Documentary History of the Supreme Court, supra, at 251-252, 252-253, 262-264, 268-269 (newspaper articles supporting holding in Chisholm); 5 Documentary History, supra n. 17, at 616 (statement of a Committee of Delaware Senate in support of holding in Chisholm). The federal citizen-state diversity jurisdiction was settled by the Eleventh Amendment; Article III was not "restored."F It is clear enough that the Court has no historical predicate to argue for a fundamental or inherent theory of sovereign immunity as limiting authority elsewhere conferred by the Constitution or as imported into the Constitution by the Tenth Amendment. But what if the facts were otherwise and a natural law conception of state sovereign immunity in a State's own courts were implicit in the Constitution? On good authority, it would avail the State nothing, and the Court would be no less mistaken than it is already in sustaining the State's claim today. The opinion of this Court that comes closer to embodying the present majority's inherent, natural law theory of sovereign immunity than any other I can find was written by Justice Holmes in Kawananakoa v. Polyblank,205 U. S. 349 (1907).30 I do not, of course, suggest that Justice Holmes was a natural law jurist, see "Natural Law," in O. Holmes, Collected Legal Papers 312 (1920) ("The jurists who believe in natural law seem to me to be in that na ;ve state of mind that accepts what has been familiar and accepted ... as something that must be accepted"). But in Kawananakoa he not only gave a cogent restatement of the natural law view of sovereign immunity, but one that includes a feature (omitted from Hamilton's formulation) explaining why even the most absolutist version of sovereign immunity doctrine actually refutes the Court's position today: the Court fails to realize that under the natural law theory, sovereign immunity may be invoked only by the sovereign that is the source of the right upon which suit is brought. Justice Holmes said so expressly: "A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." Kawananakoa, supra, at 353. His cited authorities stand in the line that today's Court purports to follow: Hobbes, Bodin, Sir John Eliot, and Baldus de Ubaldis. Hobbes, in the cited work, said this: "The sovereign of a Commonwealth, be it an assembly or one man, is not subject to the civil laws. For having power to make and repeal laws, he may, when he pleaseth, free himself from that subjection by repealing those laws that trouble him, and making of new; and consequently he was free before. For he is free that can be free when he will: nor is it possible for any person to be bound to himself, because he that can bind can release; and therefore he that is bound to himself only is not bound." Leviathan ch. 26, §2, p. 130.Jean Bodin produced a similar explanation nearly three-quarters of a century before Hobbes, see J. Bodin, Les six livres de la republique, Bk. 1, ch. 8 (1577); Six Books of the Commonwealth 28 (M. Tooley transl. 1967) ("[T]he sovereign ... cannot in any way be subject to the commands of another, for it is he who makes law"). Eliot cited Baldus for the crux of the theory: majesty is "a fulness of power subject to noe necessitie, limitted within no rules of publicke Law," 1 J. Eliot, De Jure Maiestatis: or Political Treatise of Government 15 (A. Grosart ed. 1882), and Baldus himself made the point in observing that no one is bound by his own statute as of necessity, see Commentary of Baldus on the statute Digna vox in Justinian's Code 1.14.4, Lectura super Codice folio 51b (Chapter De Legibus et constitutionibus) (Venice ed. 1496) ("nemo suo statuto ligatur necessitative"). The "jurists who believe in natural law" might have reproved Justice Holmes for his general skepticism about the intrinsic value of their views, but they would not have faulted him for seeing the consequence of their position: if the sovereign is not the source of the law to be applied, sovereign immunity has no applicability. Justice Holmes indeed explained that in the case of multiple sovereignties, the subordinate sovereign will not be immune where the source of the right of action is the sovereign that is dominant. See Kawananakoa, 205 U. S., at 353, 354 (District of Columbia not immune to private suit, because private rights there are "created and controlled by Congress and not by a legislature of the District"). Since the law in this case proceeds from the national source, whose laws authorized by Article I are binding in state courts, sovereign immunity cannot be a defense. After Garcia v. San Antonio Metropolitan Transit Authority,469 U. S. 528 (1985), Justice Holmes's logically impeccable theory yields the clear conclusion that even in a system of "fundamental" state sovereign immunity, a State would be subject to suit eo nomine in its own courts on a federal claim. There is no escape from the trap of Holmes's logic save recourse to the argument that the doctrine of sovereign immunity is not the rationally necessary or inherent immunity of the civilians, but the historically contingent, and to a degree illogical, immunity of the common law. But if the Court admits that the source of sovereign immunity is the common law, it must also admit that the common-law doctrine could be changed by Congress acting under the Commerce Clause. It is not for me to say which way the Court should turn; but in either case it is clear that Alden's suit should go forward.II The Court's rationale for today's holding based on a conception of sovereign immunity as somehow fundamental to sovereignty or inherent in statehood fails for the lack of any substantial support for such a conception in the thinking of the founding era. The Court cannot be counted out yet, however, for it has a second line of argument looking not to a clause-based reception of the natural law conception or even to its recognition as a "background principle," see Seminole Tribe, 517 U. S., at 72, but to a structural basis in the Constitution's creation of a federal system. Immunity, the Court says, "inheres in the system of federalism established by the Constitution," ante, at 21, its "contours [being] determined by the founders' understanding, not by the principles or limitations derived from natural law," ante, at 25. Again, "[w]e look both to the essential principles of federalism and to the special role of the state courts in the constitutional design." Ante, at 39. That is, the Court believes that the federal constitutional structure itself necessitates recognition of some degree of state autonomy broad enough to include sovereign immunity from suit in a State's own courts, regardless of the federal source of the claim asserted against the State. If one were to read the Court's federal structure rationale in isolation from the preceding portions of the opinion, it would appear that the Court's position on state sovereign immunity might have been rested entirely on federalism alone. If it had been, however, I would still be in dissent, for the Court's argument that state court sovereign immunity on federal questions is inherent in the very concept of federal structure is demonstrably mistaken.A The National Constitution formally and finally repudiated the received political wisdom that a system of multiple sovereignties constituted the "great solecism of an imperium in imperio," cf. Bailyn, The Ideological Origins of the American Revolution, at 223.31 Once "the atom of sovereignty" had been split, U. S. Term Limits, Inc. v. Thornton,514 U. S. 779, 838 (1995) (Kennedy, J., concurring), the general scheme of delegated sovereignty as between the two component governments of the federal system was clear, and was succinctly stated by Chief Justice Marshall: "In America, the powers of sovereignty are divided between the government of the Union, and those of the States. They are each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other." McCulloch v. Maryland, 4 Wheat. 316, 410 (1819).32 Hence the flaw in the Court's appeal to federalism. The State of Maine is not sovereign with respect to the national objective of the FLSA.33 It is not the authority that promulgated the FLSA, on which the right of action in this case depends. That authority is the United States acting through the Congress, whose legislative power under Article I of the Constitution to extend FLSA coverage to state employees has already been decided, see Garcia v. San Antonio Metropolitan Transit Authority,469 U. S. 528 (1985), and is not contested here. Nor can it be argued that because the State of Maine creates its own court system, it has authority to decide what sorts of claims may be entertained there, and thus in effect to control the right of action in this case. Maine has created state courts of general jurisdiction; once it has done so, the Supremacy Clause of the Constitution, Art. VI, cl. 2, which requires state courts to enforce federal law and state-court judges to be bound by it, requires the Maine courts to entertain this federal cause of action. Maine has advanced no " `valid excuse,' " Howlett v. Rose,496 U. S. 356, 369 (1990) (quoting Douglas v. New York, N. H. & H. R. Co.,279 U. S. 377, 387-88 (1929)), for its courts' refusal to hear federal-law claims in which Maine is a defendant, and sovereign immunity cannot be that excuse, simply because the State is not sovereign with respect to the subject of the claim against it. The Court's insistence that the federal structure bars Congress from making States susceptible to suit in their own courts is, then, plain mistake.34 B It is symptomatic of the weakness of the structural notion proffered by the Court that it seeks to buttress the argument by relying on "the dignity and respect afforded a State, which the immunity is designed to protect," ante, at 39 (quoting Idaho v. Coeur d'Alene Tribe of Idaho,521 U. S. 261, 268 (1997)), and by invoking the many demands on a State's fisc, ante, at 41-42. Apparently beguiled by Gilded Era language describing private suits against States as " `neither becoming nor convenient,' " ante, at 39 (quoting In re Ayers,123 U. S. 443, 505 (1887)), the Court calls "immunity from private suits central to sovereign dignity," ante, at 4, and assumes that this "dignity" is a quality easily translated from the person of the King to the participatory abstraction of a republican State, see, e.g.,ante, at 40 ("[C]ongressional power to authorize private suits against nonconsenting States in their own courts would be ... offensive to state sovereignty"). The thoroughly anomalous character of this appeal to dignity is obvious from a reading of Blackstone's description of royal dignity, which he sets out as a premise of his discussion ofsovereignty:"First, then, of the royal dignity. Under every monarchical establishment, it is necessary to distinguish the prince from his subjects... . The law therefore ascribes to the king ... certain attributes of a great and transcendent nature; by which the people are led to consider him in the light of a superior being, and to pay him that awful respect, which may enable him with greater ease to carry on the business of government. This is what I understand by the royal dignity, the several branches of which we will now proceed to examine." 1 Blackstone *241.It would be hard to imagine anything more inimical to the republican conception, which rests on the understanding of its citizens precisely that the government is not above them, but of them, its actions being governed by law just like their own. Whatever justification there may be for an American government's immunity from private suit, it is not dignity.35 See United States v. Lee,106 U. S. 196, 208 (1882). It is equally puzzling to hear the Court say that "federal power to authorize private suits for money damages would place unwarranted strain on the States' ability to govern in accordance with the will of their citizens." Ante, at 41-42. So long as the citizens' will, expressed through state legislation, does not violate valid federal law, the strain will not be felt; and to the extent that state action does violate federal law, the will of the citizens of the United States already trumps that of the citizens of the State: the strain then is not only expected, but necessarily intended. Least of all does the Court persuade by observing that "other important needs" than that of the "judgment creditor" compete for public money, ante, at 42. The "judgment creditor" in question is not a dunning bill- collector, but a citizen whose federal rights have been violated, and a constitutional structure that stints on enforcing federal rights out of an abundance of delicacy toward the States has substituted politesse in place of respect for the rule of law.36 III If neither theory nor structure can supply the basis for the Court's conceptions of sovereign immunity and federalism, then perhaps history might. The Court apparently believes that because state courts have not historically entertained Commerce Clause-based federal-law claims against the States, such an innovation carries a presumption of unconstitutionality. See ante, at 34 (arguing that absence of statutes authorizing suits against States in state court suggests an assumed absence of such power). At the outset, it has to be noted that this approach assumes a more cohesive record than history affords. In Hilton v. South Carolina Public Railways Comm'n,502 U. S. 197 (1991) (Kennedy, J.), a case the Court labors mightily to distinguish, see ante, at 26-27,37 we held that a state-owned railroad could be sued in state court under the Federal Employers' Liability Act, 45 U. S. C. §§51-60, notwithstanding the lack of an express congressional statement, because " `the Eleventh Amendment does not apply in state courts.' " Hilton, supra, at 205 (quoting Will v. Michigan Dept. of State Police,491 U. S. 58, 63-64 (1989)).38 But even if the record were less unkempt, the problem with arguing from historical practice in this case is that past practice, even if unbroken, provides no basis for demanding preservation when the conditions on which the practice depended have changed in a constitutionally relevant way. It was at one time, though perhaps not from the framing, believed that "Congress' authority to regulate the States under the Commerce Clause" was limited by "certain underlying elements of political sovereignty ... deemed essential to the States' `separate and independent existence.' " See Garcia, 469 U. S., at 547-548 (quoting Lane County v. Oregon, 7 Wall. 71, 76 (1869)). On this belief, the preordained balance between state and federal sovereignty was understood to trump the terms of Article I and preclude Congress from subjecting States to federal law on certain subjects. (From time to time, wage and hour regulation has been counted among those subjects, see infra, at 52.) As a consequence it was rare, if not unknown, for state courts to confront the situation in which federal law enacted under the Commerce Clause provided the authority for a private right of action against a State in state court. The question of state immunity from a Commerce Clause-based federal-law suit in state court thus tended not to arise for the simple reason that acts of Congress authorizing such suits did not exist. Today, however, in light of Garcia, supra (overruling National League of Cities v. Usery,426 U. S. 833 (1976)), the law is settled that federal legislation enacted under the Commerce Clause may bind the States without having to satisfy a test of undue incursion into state sovereignty. "[T]he fundamental limitation that the constitutional scheme imposes on the Commerce Clause to protect the `States as States' is one of process rather than one of result." Garcia, supra, at 554. Because the commerce power is no longer thought to be circumscribed, the dearth of prior private federal claims entertained against the States in state courts does not tell us anything, and reflects nothing but an earlier and less expansive application of the commerce power. Least of all is it to the point for the Court to suggest that because the Framers would be surprised to find States subjected to a federal-law suit in their own courts under the commerce power, the suit must be prohibited by the Constitution. See ante, at 31-34 (arguing on the basis of the "historical record" that the Constitution would not have been adopted if it had been understood to allow suit against States in state court under federal law). The Framers' intentions and expectations count so far as they point to the meaning of the Constitution's text or the fair implications of its structure, but they do not hover over the instrument to veto any application of its principles to a world that the Framers could not have anticipated. If the Framers would be surprised to see States subjected to suit in their own courts under the commerce power, they would be astonished by the reach of Congress under the Commerce Clause generally. The proliferation of Government, State and Federal, would amaze the Framers, and the administrative state with its reams of regulations would leave them rubbing their eyes. But the Framers' surprise at, say, the FLSA, or the Federal Communications Commission, or the Federal Reserve Board is no threat to the constitutionality of any one of them, for a very fundamental reason:"[W]hen we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago." Missouri v. Holland,252 U. S. 416, 433 (1920) (Holmes, J.)." `We must never forget,' said Mr. Chief Justice Marshall in McCulloch, [4 Wheat., at] 407, `that it is a Constitution we are expounding.' Since then this Court has repeatedly sustained the exercise of power by Congress, under various clauses of that instrument, over objects of which the Fathers could not have dreamed." Olmstead v. United States,277 U. S. 438, 472 (1928) (Brandeis, J. dissenting).IVA If today's decision occasions regret at its anomalous versions of history and federal theory, it is the more regrettable in being the second time the Court has suddenly changed the course of prior decision in order to limit the exercise of authority over a subject now concededly within the Article I jurisdiction of the Congress. The FLSA, which requires employers to pay a minimum wage, was first enacted in 1938, with an exemption for States acting as employers. See Maryland v. Wirtz,392 U. S. 183, 185-186 (1968). In 1966, it was amended to remove the state employer exemption so far as it concerned workers in hospitals, institutions, and schools. See id., at 186-187, and n. 6. In Wirtz, the Court upheld the amendment over the dissent's argument that extending the FLSA to these state employees was "such a serious invasion of state sovereignty protected by the Tenth Amendment that it is ... not consistent with our constitutional federalism." Id., at 201 (opinion of Douglas, J.). In 1974, Congress again amended the FLSA, this time "extend[ing] the minimum wage and maximum hour provisions to almost all public employees employed by the States and by their various political subdivisions." National League of Cities, 426 U. S., at 836. This time the Court went the other way: in National League of Cities, the Court held the extension of the Act to these employees an unconstitutional infringement of state sovereignty, id., at 852; for good measure, the Court overturned Wirtz, dismissing its reasoning as no longer authoritative, see426 U. S., at 854-855. But National League of Cities was not the last word. In Garcia, decided some nine years later, the Court addressed the question whether a municipally owned mass-transit system was exempt from the FLSA. 469 U. S., at 534, 536. In holding that it was not, the Court overruled National League of Cities, see 469 U. S., at 557, this time taking the position that Congress was not barred by the Constitution from binding the States as employers under the Commerce Clause, id., at 554. As already mentioned, the Court held that whatever protection the Constitution afforded to the States' sovereignty lay in the constitutional structure, not in some substantive guarantee. Ibid.39 Garcia remains good law, its reasoning has not been repudiated, and it has not been challenged here. The FLSA has not, however, fared as well in practice as it has in theory. The Court in Seminole Tribe created a significant impediment to the statute's practical application by rendering its damages provisions unenforceable against the States by private suit in federal court. Today's decision blocking private actions in state courts makes the barrier to individual enforcement a total one.B The Court might respond to the charge that in practice it has vitiated Garcia by insisting, as counsel for Maine argued, Brief for Respondent 11-12, that the United States may bring suit in federal court against a State for damages under the FLSA, on the authority of United States v. Texas,143 U. S. 621, 644-645 (1892). See also Seminole Tribe, 517 U. S., at 71, n. 14. It is true, of course, that the FLSA does authorize the Secretary of Labor to file suit seeking damages, see 29 U. S. C. §216(c), but unless Congress plans a significant expansion of the National Goverment's litigating forces to provide a lawyer whenever private litigation is barred by today's decision and Seminole Tribe, the allusion to enforcement of private rights by the National Government is probably not much more than whimsy. Facing reality, Congress specifically found, as long ago as 1974, "that the enforcement capability of the Secretary of Labor is not alone sufficient to provide redress in all or even a substantial portion of the situations where compliance is not forthcoming voluntarily." S. Rep. No. 93-690, p. 27 (1974). One hopes that such voluntary compliance will prove more popular than it has in Maine, for there is no reason today to suspect that enforcement by the Secretary of Labor alone would likely prove adequate to assure compliance with this federal law in the multifarious circumstances of some 4.7 million employees of the 50 States of the Union.40 The point is not that the difficulties of enforcement should drive the Court's decision, but simply that where Congress has created a private right to damages, it is implausible to claim that enforcement by a public authority without any incentive beyond its general enforcement power will ever afford the private right a traditionally adequate remedy. No one would think the remedy adequate if private tort claims against a State could only be brought by the National Government: the tradition of private enforcement, as old as the common law itself, is the benchmark. But wage claims have a lineage of private enforcement just as ancient, and a claim under the FLSA is a claim for wages due on work performed. Denying private enforcement of an FLSA claim is thus on par with closing the courthouse door to state tort victims unaccompanied by a lawyer from Washington. So there is much irony in the Court's profession that it grounds its opinion on a deeply rooted historical tradition of sovereign immunity, when the Court abandons a principle nearly as inveterate, and much closer to the hearts of the Framers: that where there is a right, there must be a remedy. Lord Chief Justice Holt could state this as an unquestioned proposition already in 1702, as he did in Ashby v. White, 6 Mod. 45, 53-54, 87 Eng. Rep. 808, 815 (K.B.):"If an Act of Parliament be made for the benefit of any person, and he is hindered by another of that benefit, by necessary consequence of law he shall have an action; and the current of all the books is so." Ibid. (citation omitted).41 Blackstone considered it "a general and indisputable rule, that where there is a legal right, there is also a legal remedy, by suit or action at law, whenever that right is invaded." 3 Blackstone *23. The generation of the Framers thought the principle so crucial that several States put it into their constitutions.42 And when Chief Justice Marshall asked about Marbury, "If he has a right, and that right has been violated, do the laws of his country afford him a remedy?," Marbury v. Madison, 1 Cranch 137, 162 (1803), the question was rhetorical, and the answer clear: "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury. One of the first duties of government is to afford that protection. In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court." Id., at 163. Yet today the Court has no qualms about saying frankly that the federal right to damages afforded by Congress under the FLSA cannot create a concomitant private remedy. The right was "made for the benefit of" petitioners; they have been "hindered by another of that benefit"; but despite what has long been understood as the "necessary consequence of law," they have no action, cf. Ashby, supra, at 55, 87 Eng. Rep., at 815. It will not do for the Court to respond that a remedy was never available where the right in question was against the sovereign. A State is not the sovereign when a federal claim is pressed against it, and even the English sovereign opened itself to recovery and, unlike Maine, provided the remedy to complement the right. To the Americans of the founding generation it would have been clear (as it was to Chief Justice Marshall) that if the King would do right, the democratically chosen Government of the United States could do no less.43 The Chief Justice's contemporaries might well have reacted to the Court's decision today in the words spoken by Edmund Randolph when responding to the objection to jurisdiction in Chisholm: "[The Framers] must have viewed human rights in their essence, not in their mere form." 2 Dall., at 423.V The Court has swung back and forth with regrettable disruption on the enforceability of the FLSA against the States, but if the present majority had a defensible position one could at least accept its decision with an expectation of stability ahead. As it is, any such expectation would be na ;ve. The resemblance of today's state sovereign immunity to the Lochner era's industrial due process is striking. The Court began this century by imputing immutable constitutional status to a conception of economic self-reliance that was never true to industrial life and grew insistently fictional with the years, and the Court has chosen to close the century by conferring like status on a conception of state sovereign immunity that is true neither to history nor to the structure of the Constitution. I expect the Court's late essay into immunity doctrine will prove the equal of its earlier experiment in laissez-faire, the one being as unrealistic as the other, as indefensible, and probably as fleeting.FOOTNOTESFootnote 1 The Court inexplicably protests that "the right to trial by jury and the prohibition on unreasonable searches and seizures ... derive from the common law," ante, at 23, but are nonetheless indefeasible. I cannot imagine how this could be thought relevant to my argument. These rights are constitutional precisely because they are enacted in the Sixth and Fourth Amendments, respectively, while the general prerogative of sovereign immunity appears nowhere in the Constitution. My point is that the common-law rights that were not enacted into the Constitution were universally thought defeasible by statute. Footnote 2 I am assuming that the Court does not put forward the theory of the "fundamental aspect" as a newly derived conception of its own, necessarily comprehended by the Tenth Amendment guarantee only as a result of logic independent of any intention of the Framers. Nor does the Court argue, and I know of no reason to suppose, that every legal advantage a State might have enjoyed at common law was assumed to be an inherent attribute of all sovereignties, or was constitutionalized wholesale by the Tenth Amendment, any more than the Ninth Amendment constitutionalized all common-law individual rights.Footnote 3 Bracton is the earliest source for the common-law immunity of the King, and his explanation is essentially practical: "Si autem ab eo petatur, cum breve non currat contra ipsum, locus erit supplicationi, quod factum suum corrigat et emendet." That is, "If [justice] is asked of him, since no writ runs against him there will [only] be opportunity for a petition, that he correct and amend his act." 2 Bracton, De Legibus et Consuetudinibus Angliae 33 (G. Woodbine ed., S. Thorne transl. 1968) (London 1569 ed., folio 5b, Bk. I, ch. 8). The fact that no writ ran against the King was "no peculiar privilege; for no feudal lord could be sued in his own court." 3 W. Holdsworth, History of English Law 465 (3d ed. 1927). " `He can not be compelled to answer in his own court, but this is true of every petty lord of every petty manor; that there happens to be in this world no court above his court is, we may say, an accident.' " See Nevada v. Hall,440 U. S. 410, 415, n. 6 (1979) (quoting 1 F. Pollock & F. Maitland, History of English Law 518 (2d ed. 1899)). It was this same view of the immunity that came down to Blackstone, who cited Finch for the view that the King must be petitioned and not sued. See H. Finch, Law, or a Discourse Thereof, in Four Books 255 (1678 ed. reprinted 1992) ("Here in place of action against the King petition must be made unto him in the Chancery, or in Parliament, for no action did ever lie against the K[ing] at the Common Law, but the party is driven to his petition" (footnotes omitted)); 1 Blackstone *242.Footnote 4 As I explain, infra this page and 8-9, this common-law conception of sovereign immunity differed from the natural-law version, which understood immunity as derived from the fact that the sovereign was the font of the law, which could not bind him. I do not dispute, indeed I insist, that in England it was the common-law version that existed, and so it is beside the point for the Court to protest that the King could not be sued under French law in his own courts, see ante, at 25; naturally not, since the common-law conception was not couched in terms of who was the font of the law. This said, I note that it is surprising for the Court to say that "[i]t is doubtful whether the King was regarded ... as the font of the traditions and customs which formed the substance of the common law," ibid. Although Bracton said that "law makes the king," 2 Bracton, at 33, he also said that the unwritten law of England could properly be called law only to the extent that "the authority of the king or prince [has] first been added thereto," id., at 19, and he spoke of "these English laws and customs, by the authority of kings," id., at 21. The judges who announced the common law sat "in the place of the king," id., at 20, and so in practice the common law certainly derived from him. Thus, at least for the most part, "[t]he custom of the king's court is the custom of England, and becomes the common law." 1 Pollock & Maitland, supra n. 3, at 184. But for this, Blackstone would probably not have remarked that the natural law theory produced a result "consonant" with the common law, 1 Blackstone *243; see infra this page and 9.Footnote 5 For the original of the quoted passage, see 1 S. Pufendorf, De Jure Naturae et Gentium Libri Octo 915 (1688 ed. reprinted 1934); for a modern translation, see 2 S. Pufendorf, De Jure Naturae et Gentium Libri Octo 1344-1345 (transl. C. & W. Oldfather 1934) (hereinafter Pufendorf). Elsewhere in the same chapter, Pufendorf expressly derives the impossibility of enforcing a King's promises against him from natural law theory: "Therefore, since a king enjoys natural liberty, if he has discovered any fault in a pact of his making, he can of his own authority serve notice upon the other party that he refuses to be obligated by reason of that fault; nor does he have to secure of the other [party to the pact] a release from a thing [namely, the pact] which, of its own nature, is incapable of producing an obligation or right." Id., at 1342-1343.Footnote 6 The Court says that to call its approach "natural law" is "an apparent attempt to disparage," ante, at 50. My object, however, is not to call names but to show that the majority is wrong, and in doing that it is illuminating to explain the conceptual tradition on which today's majority draws, one that can be traced to the Court's opinion from its origins in Roman sources. I call this conception the "natural law" view of sovereign immunity, despite the historical ambiguities associated with the term, because the expression by such figures as Pufendorf, Hobbes, and Locke, of the doctrine that the sovereign might not be sued, was associated with a concept of sovereignty itself derived from natural law. See Pufendorf 1103-1104; T. Hobbes, Leviathan Part 2, chs. 17-18 (1651), in 23 Great Books of the Western World 99-104 (1952) (hereinafter Leviathan) (describing sovereignty as the result of surrender of individual natural rights to single authority); J. Locke, Second Treatise of Civil Government §§95-99 (1690 J. Gough ed. 1947) (describing political community formed by individual consent out of a state of nature). The doctrine that the sovereign could not be sued by his subjects might have been thought by medieval civil lawyers to belong to jus gentium, the law of nations, which was a type of natural law; or perhaps in its original form it might have been understood as a precept of positive, written law. The earliest source for this conception is a statement of Ulpian's recorded in the Digest, I.3.31, and much interpreted by medieval jurists, "Princeps legibus solutus est"; "The emperor is not bound by statutes." See 1 The Digest of Justinian 13 (T. Mommsen & P. Krueger eds., A. Watson transl. 1985); Tierney, The Prince Is Not Bound by the Laws: Accursius and the Origins of the Modern State, 5 Comparative Studies in Society and History 378 (1963); K. Pennington, The Prince and the Law, 1200-1600: Sovereignty and Rights in the Western Legal Tradition 77-79 (1993). Through its reception and discussion in the continental legal tradition, where it related initially to the Emperor, but also eventually to a King, to the Pope, and even to a city-state, see id., at 90, this conception of sovereign immunity developed into a theoretical model applicable to any sovereign body. Thus Hobbes could begin his discussion of the subject by saying, "The sovereign of a Commonwealth, be it an assembly or one man, is not subject to the civil laws." Leviathan ch. 26, p. 130. There is debate on the degree to which different medieval interpreters of the maxim Princeps legibus solutus est understood natural or divine law to limit the prince's freedom from the statutes. See Tierney, supra, at 390-394; Pennington, supra, at 206-208; J. Canning, The Political Thought of Baldus de Ubaldis 74-79 (1987).Footnote 7 A better formulation would have clarified that sovereignty resided in the King in Parliament, which was the dominant view by the later 17th century. See, e.g., G. Wood, The Creation of the American Republic, 1776-1787, p. 347 (1969).Footnote 8 The Court claims that the doctrine of sovereign immunity was "universal in the States when the Constitution was drafted and ratified," ante, at 5, but the examples of Connecticut and Rhode Island suggest that this claim is overstated. It is of course true that these States' preservation without comment of their colonial suability could be construed merely as a waiver of sovereign immunity, and not as a denial of the principle. But in light of these States' silence as to any change in their status as suable bodies, it would be tendentious so to understand it. The Court relies for its claim on Justice Iredell's statement in Chisholm v. Georgia, 2 Dall. 419 (1793), that there was "no doubt" that no State had " `any particular Legislative mode, authorizing a compulsory suit for the recovery of money against a State ... either when the Constitution was adopted, or at the time the judicial act was passed.' " Ante, at 5 (quoting Chisholm,supra, at 434-435). But as the cases of Rhode Island and Connecticut demonstrate, Justice Iredell was simply wrong. As I have had occasion to say elsewhere, that an assertion of historical fact has been made by a Justice of the Court does not make it so. See Seminole Tribe of Fla. v. Florida,517 U. S. 44, 107, n. 5 (1996) (dissenting opinion).Footnote 9 The Court seems to think I have overlooked this point, that the exceptions imply a rule, see ante, at 15 (provisions for chancery petitions "only confir[m]" immunity enjoyed by these States). The reason for canvassing the spectrum of state thought and practice is not to deny the undoubted place of sovereign immunity in most States' courts, but to examine what turns out to be the scanty evidence that the States understood sovereign immunity in the indefeasible, civilian, natural law sense, necessary to support the Court's position here. Footnote 10 In a suit against Virginia in the Court of Common Pleas for Philadelphia County, Virginia pleaded sovereign immunity in natural law terms, and the sheriff was excused from making return of the writ attaching Virginia's goods, seeNathan v. Virginia, 1 Dall. 77, n. (1781), but this was only after the Supreme Executive Council of the Commonwealth had already ordered the goods returned and, in any event, involved the immunity of one State in the courts of another, and not the distinct immunity of a State in her own courts, see Nevada v. Hall,440 U. S., at 414.Footnote 11 Whether this formulation was a constitutional waiver of sovereign immunity or an affirmative repudiation of its applicability is uncertain, but the broad language opening the courts to all suits, and the apparent desire to exceed the previously available statutory scheme, would appear to support the latter interpretation.Footnote 12 The Court says, "the founders' silence is best explained by the simple fact that no one, not even the Constitution's most ardent opponents, suggested the document might strip States of the immunity." Ante, at 31-32. In fact, a stalwart supporter of the Constitution, James Wilson, laid the groundwork for just such a view at the Pennsylvania Convention, see infra, at 18-19. For the most part, it is true, the surviving records of the ratifying conventions do not suggest that much thought was given to the issue of suit against States in their own courts. But this silence does not tell us that the Framers' generation thought the prerogative so well settled as to be an inherent right of States, and not a common-law creation. It says only that at the conventions, the issue was not on the participants' minds because the nature of sovereignty was not always explicitly addressed.Footnote 13 In Seminole Tribe, I explained that Hamilton had in mind state sovereign immunity only with respect to diversity cases applying state contract law. See 517 U. S., at 145-149 (dissenting opinion). Here I intend simply to point out that with respect to state law, in the main Hamilton spoke consistently with deriving sovereign immunity from a natural law model. That he did so is consistent with his focus on state law; Hamilton almost certainly knew that the natural law theory of sovereign immunity extended only to rights created by the sovereign, and so would not have applied to federal-question claims against a State in either state or federal court. Thus when the Court claims that subjecting States to suit in state court "would turn on its head the concern of the founding generation — that Article III might be used to circumvent state-court immunity" ante, at 34, it has failed to realize that even those Framers who, like Hamilton, aimed to preserve state sovereign immunity, had in mind only state immunity on state-law claims, not federal questions.Footnote 14 Pufendorf's discussion of sovereign immunity, just before the passage quoted by Blackstone, begins (in a modern translation): "Now although promises and pacts are as binding upon the conscience of a king as upon that of any private citizen, there is, nevertheless, this difference between the obligation of a king and that of subjects, namely, that it is no trouble for the former to exact what is owed him from a subject, when he demurs, while a citizen, so long as he remains such, has no means within his power to recover his due from a king against his will." 2 Pufendorf 1344-1345.Footnote 15 Madison seems here to have overlooked the possibility of concurrent jurisdiction between the Supreme Court's original jurisdiction and that of state courts.Footnote 16 The Court says this statement of Wilson's is "startling even today," ante, at 15, but it is hard to see what is so startling, then or now, about the proposition that, since federal law may bind state governments, the state governments are in this sense subordinate to the national. The Court seems to have forgotten that one of the main reasons a Constitutional Convention was necessary at all was that under the Articles of Confederation Congress lacked the effective capacity to bind the States. The Court speaks as if the Supremacy Clause did not exist, or McCulloch v. Maryland, 4 Wheat. 316 (1819), had never been decided. Nor is the Court correct to say that the views of Wilson, Randolph, and General Charles Cotesworth Pinckney, see n. 17, infra, "cannot bear the weight" I put upon them, ante, at 15. Indeed, the yoke is light, since I intend these Framers only to do their part in showing that a diversity of views with respect to sovereignty and sovereign immunity existed at the several state conventions, and that this diversity stands in the way of the Court's assumption that the founding generation understood sovereign immunity in the natural law sense as indefeasibly "fundamental" to statehood. Finally, the Court calls Wilson's view "a radical nationalist vision of the constitutional design," ante, at 15, apparently in an attempt to discount it. But while Wilson's view of sovereignty was indeed radical in its deviation from older conceptions, this hardly distanced him from the American mainstream, and in October 1787, Washington himself called Wilson "as able, candid, & honest a member as any in Convention," 5 Papers of George Washington: Confederation Series 379 (W. Abbot & D. Twohig eds. 1997). Footnote 17 Nor was Wilson alone in this theory. At the South Carolina Convention, General Charles Cotesworth Pinckney, who had attended the Philadelphia Convention, took the position that the States never enjoyed individual and unfettered sovereignty, because the Declaration of Independence was an act of the Union, not of the particular States. See 4 Elliot's Debates 301. In his view, the Declaration "sufficiently confutes the ... doctrine of the individual sovereignty and independence of the several states... . The separate independence and individual sovereignty of the several states were never thought of by the enlightened band of patriots who framed this Declaration; the several states are not even mentioned by name in any part of it,--as if it was intended to impress this maxim on America, that our freedom and independence arose from our union, and that without it we could neither be free nor independent." Ibid.Footnote 18 "[T]he grand objection, that the states were made subject to the action of an individual, still remained for several years, notwithstanding the concurring dissent of several states at the time of accepting the constitution." St. G. Tucker, 1 Blackstone's Commentaries with Notes of Reference to the Constitution and Laws of the Federal Government of the United States; and of the Commonwealth of Virginia, App. 352 (1803). In a footnote, Tucker specified that "[t]he several conventions of Massachusetts, New Hampshire, Rhode Island, New York, Virginia, and North Carolina, proposed amendments in this respect." Ibid. The proposed amendments of the latter four States, which may be found in Elliot's Debates, are discussed immediately infra, at 21-23. The extant published versions of the proposed amendments of Massachusetts and New Hampshire do not include such a proposed amendment. See, e.g., 1 Elliot's Debates, 322-323 (nine proposed amendments of Massachusetts); 2 id., at 177-178 (same); H. R. Doc. No. 398, 69th Cong., 1st Sess., 1018-1020 (1927) (same); 1 Elliot's Debates, 325-326 (12 proposed amendments of New Hampshire); H. R. Doc. No. 398, supra, at 1025-1026 (same).Footnote 19 It is conceivable that the New York Convention, which was after all the intended audience for The Federalist, thought that the States had some sort of an inherent right against being sued in federal court. But this is unlikely, because numerous other of the proposed amendments declared so-called "rights" in no uncertain terms, see, e.g., 1 Elliot's Debates 328 ("[T]he people have an equal, natural, and unalienable right freely and peaceably to exercise their religion"; trial by jury is "one of the greatest securities to the rights of a free people"; "[T]he people have a right peaceably to assemble together"), whereas the proposed amendment regarding suits against States simply stated that the judicial power "does not extend ... to authorize any suit by any person against a state," and said nothing about any rights, inherent or otherwise. Id., at 329.Footnote 20 The Court says "there is no evidence that [the proposed amendments] were directed toward the question of sovereign immunity or that they reflect an understanding that the States would be subject to private suits without consent under Article III as drafted." Ante, at 15. No evidence, that is, except the proposed amendments themselves, which would have omitted the Citizen-State Diversity Clause. If the proposed omission is not evidence going to sovereign immunity to private suits, one wonders what would satisfy the Court.Footnote 21 The case had first been brought before the Federal Circuit Court for the District of Georgia, over which Justice Iredell and District Judge Nathaniel Pendleton had presided. Ultimately, Justice Iredell held that the Circuit Court had no jurisdiction in the case because Congress had not conferred such jurisdiction on it. See 5 Documentary History of the Supreme Court of the United States, 1789-1800, pp. 128-129, 154 (M. Marcus ed. 1994). Georgia had maintained that it was "a free, sovreign, and independent State, and ... cannot be drawn or compelled, nor at any Time past hath been accustomed to be, or could be drawn or compelled to answer against the will of the said State of Georgia, before any Justices of the federal Circuit Court for the District of Georgia or before any Justices of any Court of Law or Equity whatever." Plea to the Jurisdiction, Oct. 17, 1791, id., at 143. Chisholm demurred to the plea on the apparent ground that while the plea alleged that Georgia could not be compelled to appear before any court, Article III expressly declared that the federal judicial power extended to all controversies between a State and citizens of another State. Demurrer, id., at 144. In his unreported opinion, Justice Iredell dispensed with this demurrer. He first stated that the plea sufficiently alleged that the District Court lacked jurisdiction. Id., at 150. He added that in any case, the existence of Congress's constitutional authority to create courts to hear controversies between a State and citizens of another State did not mean that Congress had in fact created such courts. Id., at 151. Third, Justice Iredell pointed out that the right to create courts for cases in which a State was a party did not mean that Congress could confer jurisdiction in cases like the one at bar, because the word "controversies" in Article III might refer only to situations "where such controversies could formerly have been maintained" in state court. Since "under the jurisdiction of a particular State Sovereigns may be liable in some instances but not in others," just as "[i]n England the property in possession of the crown can be affected by an adverse Process, tho' certainly the King cannot be sued for the recovery of a sum of money," ibid., it appeared to Justice Iredell that under some conditions Article III did not authorize suits against States.Footnote 22 Framer but not signer.Footnote 23 Justice Wilson hinted that in his own private view, citizens of the States had not conferred sovereignty in the sense of absolute authority upon their state governments, because they had retained some rights to themselves: "[A]ccording to some writers, every State, which governs itself without any dependence on another power, is a sovereign State. Whether, with regard to her own citizens, this is the case of the State of Georgia; whether those citizens have done, as the individuals of England are said, by their late instructors, to have done, surrendered the Supreme Power to the State or Government, and reserved nothing to themselves; or whether, like the people of other States, and of the United States, the citizens of Georgia have reserved the Supreme Power in their own hands; and on that Supreme Power have made the State dependent, instead of being sovereign; these are questions, to which, as a Judge in this cause, I can neither know nor suggest the proper answers; though, as a citizen of the Union, I know, and am interested to know, that the most satisfactory answers can be given." Chisholm, 2 Dall. 457, at (1793) (citation omitted).Footnote 24 The basis for the dictum may be found earlier in the opinion, where Justice Iredell explained that it was uncertain whether Article III's extension of the federal judicial power to cases between a State and citizens of another State "is to be construed as intending merely a transfer of jurisdiction from one tribunal to another, or as authorizing the Legislature to provide laws for the decision of all possible controversies in which a State may be involved with an individual, without regard to any prior exemption." Id., at 436. Justice Iredell seems to have believed that Article III authorized only the former; in other words, that the Framers intended to permit Article III jurisdiction in suits against a State only where some other existing court could also hear such a claim. Because in Justice Iredell's view, state courts could nowhere hear suits against a State at the time of ratification, see id., at 434-435, it followed that Article III probably did not authorize such suits. Justice Iredell's reasoning, it must be said, differed markedly from the reasoning the Court adopts today. Justice Iredell believed simply that the Clause in Article III extending jurisdiction to controversies between a State and citizens of another State did not confer any extra law-making authority on Congress that was not found elsewhere in the Constitution. Because he could conceive of no other constitutional provision authorizing Congress to create a private right of action against a State, he concluded that none could exist. Today, of course, it is established that the commerce power authorizes Congress to create private rights as against the States. See Garcia v. San Antonio Metropolitan Transit Authority,469 U. S. 528 (1985). The Court today takes the altogether different tack of arguing that state immunity from suit in state court was an inherent right of States preserved by the Tenth Amendment. Whatever Justice Iredell might have thought of this argument, it gets no support from his opinion.Footnote 25 It only makes matters worse for the Court that two States, New York and Maryland, voluntarily subjected themselves to suit in the Supreme Court around the time of Chisholm. See Marcus & Wexler, Suits Against States: Diversity of Opinion In The 1790s, 1993 J. Sup. Ct. Hist. 73, 74-78. At the Court's February Term, 1791, before Chisholm, Maryland entered a plea (probably as to the merits) in Van Staphorst v. Maryland, see 1993 J. Sup. Ct. Hist., at 74, a suit brought by a foreign citizen for debts owed by the State, but then settled the suit to avoid the establishment of an adverse precedent on immunity, see id., at 75. In Oswald v. New York, an action that commenced before Chisholm but that was continued after it, New York initially objected to jurisdiction, see 1993 J. Sup. Ct. Hist., at 77, but the suit was tried to a jury in the Supreme Court, and after New York lost, it paid the full jury verdict out of the State's treasury, id., at 78.Footnote 26 The Court thinks that Justice Iredell's adversion to state practice gives reason to think so, see ante, at 11 ("[D]espite the opinion of Justice Iredell, the majority failed to address ..."). Even if Justice Iredell had been right about state practice, failure to respond to a specific argument raised by another Justice (as opposed to counsel) has even less significance with respect to this early Supreme Court opinion than it would have today, because the Justices may not have afforded one another the opportunity to read their opinions before they were announced. See 1 J. Goebel, the Oliver Wendell Holmes Devise: History of the Supreme Court of the United States, Antecedents and Beginnings to 1801, p. 728 (1971) ("There are hints ... that there may have been no conference and that each Justice arrived at his conclusion independently without knowing what each of his brethren had decided"). Indeed, since "opinions were given only orally in the Supreme Court in the 1790s," 5 Documentary History of the Supreme Court, supra n. 21, at 164, n., it is possible that the opinion as reported by Dallas followed a document prepared by Wilson after the oral announcement of the opinion, ibid.; see also id., at xxiv-xxv, in which case it is possible that the other Justices never heard certain arguments until publication.Footnote 27 The circumlocution "another State, whose will must be always dear to me," Chisholm, 2 Dall., at 419, hints at Randolph's home State. It seems odd to suggest that Randolph's acknowledgment of the unpopularity of his position in two States would somehow support the thought that the view was incorrect. Randolph himself had urged the same position at the Virginia ratifying convention, see supra, at 16-17, and so knew perfectly well that Virginia had ratified with full knowledge that his position might be the law.Footnote 28 It is interesting to note a case argued in the Supreme Court of Pennsylvania in 1798, in which counsel for the Commonwealth urged a version of the point that the Court makes here, and said that "[t]he language of the amendment, indeed, does not import an alteration of the Constitution, but an authoritative declaration of its true construction." Respublica v. Cobbet, 3 Dall. 467, 472 (Pa. 1798). The Court expressly repudiated the historical component of this claim in an opinion by its Chief Justice: "When the judicial law [i.e., the Judiciary Act of 1789] was passed, the opinion prevailed that States might be sued, which by this amendment is settled otherwise." Id., at 475 (M'Kean, C. J.). Footnote 29 The Court might perhaps respond that if the role of state sovereign immunity was not the subject of universal consensus in 1792, the enactment of the Eleventh Amendment brought the doctrine into the constitutional realm. The strongest form of this view must maintain that, notwithstanding the Amendment's silence regarding state courts and its exclusive focus on the federal judicial power, the motivation of the Framers of the Eleventh Amendment must have been affirmatively to embrace the position that the States enjoyed the immunity from suit previously enjoyed by the Crown. On this account, the Framers of the Eleventh Amendment said nothing about sovereign immunity in state court because it never occurred to them that such immunity could be questioned; had they thought of this possibility, they would have considered it absurd that States immune in federal court could be subjected to suit in their own courts.The first trouble with this view is that it assumes that the Eleventh Amendment was intended to reach all federal law suits, and not only those arising under diversity jurisdiction. If the Framers of the Eleventh Amendment had in mind only diversity cases, as the Court was prepared to concede in Seminole Tribe, see 517 U. S., at 69-70 ("The text dealt in terms only with the problem presented by the decision in Chisholm ... . [I]t seems unlikely that much thought was given to the prospect of federal-question jurisdiction over the States"), then it might plausibly follow that the Framers of that Amendment assumed that States possessed sovereign immunity in their own courts with respect to state law. But it certainly does not follow that the Amendment's authors would have thought that States enjoyed immunity in state court on questions of federal law. To accept this would require one to believe that the Framers of the Eleventh Amendment were blind to an extremely anomalous application of sovereign immunity, under which a State is immune even when it is not the font of the law under which it is sued, cf. infra, at 39, 41. The Court today may labor under the misapprehension that sovereign immunity can apply where the sovereign is not the font of law, but the Court adduces no evidence to suggest that the Framers of the Eleventh Amendment held such a view. And the Framers were much closer than the Court to the theory of sovereign immunity according to which the font of law may not be subject to suit under that law. This leaves the Court in the position of supporting its view of what the Eleventh Amendment means by the "historical" assertion that the Framers must have intended it to mean the same.Footnote 30 The temptation to look to the natural law conception had shown up occasionally before Justice Holmes's appointment, and goes back at least to Beers v. Arkansas, 20 How. 527 (1858), in which Chief Justice Taney wrote for the Court that "[i]t is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission," id., at 529. But nothing turned on this pronouncement, because the outcome in the case would have been the same had sovereign immunity been understood as a common-law property of the States. In Nichols v. UnitedStates, 7 Wall. 122 (1869), Justice Davis wrote that "[e]very government has an inherent right to protect itself against suits ... . The principle is fundamental, [and] applies to every sovereign power ... ." Id., at 126. This description came in dicta, and the origin of the immunity had no bearing on the decision. Justice Bradley quoted both Hamilton and Chief Justice Taney in Hans v. Louisiana,134 U. S. 1, 13, 17 (1890), but nothing there depended on the natural law approach, and in the main the opinion, whatever its other demerits, see Seminole Tribe, supra, at 119 (Souter, J. dissenting), understood state sovereign immunity as a common-law concept, see Hans, supra, at 16 ("The suability of a State without its consent was a thing unknown to the law"). And the Court in Seminole Tribe may possibly have intended to hint at the natural law background of sovereign immunity when it said approvingly that the decision in Hans " `found its roots not solely in the common law of England, but in the much more fundamental "jurisprudence in all civilized nations." ' " Seminole Tribe, supra, at 69 (quoting Hans, supra, at 17, in turn quoting Beers v. Arkansas, supra, at 529). The Court's occasional seduction by the natural law view should not, however, obscure its basic adherence to the common-law approach. In United States v. Lee,106 U. S. 196 (1882), the Court explained that "the doctrine is derived from the laws and practices of our English ancestors," id., at 205, and added approvingly that the petition of right "has been as efficient in securing the rights of suitors against the crown in all cases appropriate to judicial proceedings, as that which the law affords to the subjects of the King in legal controversies among themselves," ibid. The Court went on to notice that at common law one reason given for sovereign immunity was the "absurdity" of the King's writ running against the King, id., at 206, but, recognizing the distinct situation in the United States, the Court admitted candidly that "it is difficult to see on what solid foundation of principle the exemption from liability to suit rests," ibid. Even the dissent there discussed in great detail the common-law heritage of the doctrine. See id., at 227-234 (opinion of Gray, J.).Footnote 31 The authority of the view that Parliament's sovereignty must be indivisible had already been eroded in the decade before independence. Iredell himself, as early as 1774, rejected the applicability of the theory "to the case of several distinctandindependentlegislatures each engaged within a separate scale and employed about different objects," in the course of arguing for the possibility of a kind of proto-federalist relationship between the Colonies and the King. Iredell, Address to the Inhabitants of Great Britain, in 1 G. McRee, Life and Correspondence of James Iredell 205, 219 (1857, reprinted 1949); see Bailyn, The Ideological Origins of the American Revolution, at 224-225, and n. 64.Footnote 32 This is entirely consistent with, and indeed is a corollary of, the statement quoted by the Court that the States are " `no more subject, within their respective spheres, to the general authority than the general authority is subject to them, within its own sphere.' " Ante, at 4 (quoting The Federalist No. 39, p. 245 (J. Madison)). The point is that matters subject to federal law are within the federal sphere, and so the States are subject to the general authority where such matters are concerned.Footnote 33 It is therefore sheer circularity for the Court to talk of the "anomaly," ante, at 43, that would arise if a State could be sued on federal law in its own courts, when it may not be sued under federal law in federal court, Seminole Tribe, supra. The short and sufficient answer is that the anomaly is the Court's own creation: the Eleventh Amendment was never intended to bar federal-question suits against the States in federal court. The anomaly is that Seminole Tribe, an opinion purportedly grounded in the Eleventh Amendment, should now be used as a lever to argue for state sovereign immunity in state courts, to which the Eleventh Amendment by its terms does not apply.Footnote 34 Perhaps as a corollary to its view of sovereign immunity as to some degree indefeasible because "fundamental," the Court frets that the "power to press a State's own courts into federal service to coerce the other branches of the State ... is the power first to turn the State against itself and ultimately to commandeer the entire political machinery of the State against its will and at the behest of individuals." Ante, at 40. But this is to forget that the doctrine of separation of powers prevails in our Republic. When the state judiciary enforces federal law against state officials, as the Supremacy Clause requires it to do, it is not turning against the State's executive any more than we turn against the Federal Executive when we apply federal law to the United States: it is simply upholding the rule of law. There is no "commandeering" of the State's resources where the State is asked to do no more than enforce federal law.Footnote 35 Furthermore, the very idea of dignity ought also to imply that the State should be subject to, and not outside of, the law. It is surely ironic that one of the loci classici of Roman law regarding the imperial prerogative begins with (and is known by) the assertion that it is appropriate to the Emperor's dignity that he acknowledge (or, on some readings, at least claim) that he is bound by the laws. See Digna Vox, Justinian's Code 1.4.14 ("Digna vox maiestate regnantis legis alligatum se principem profiteri") ("It is a statement worthy of the majesty of the ruler for the Prince to profess himself bound by the laws"); see Pennington, The Prince and the Law, 1200-1600, at 78, and n. 6.Footnote 36 The Court also claims that subjecting States to suit puts power in the hands of state courts that the State may wish to assign to its legislature, thus assigning the state judiciary a role "foreign to its experience but beyond its competence . . . ." Ante, at 43. This comes perilously close to legitimizing political defiance of valid federal law.Footnote 37 In its discussion of Hilton, the Court attempts to explain away the State's failure to raise a sovereign immunity defense by acknowledging candidly that when that case was decided, "it may have appeared to the State that Congress' power to abrogate its immunity from suit in any court was not limited by the Constitution at all." Ante, at 27. The reasoning of Hilton suggests that it appeared not only to the State, but also to the Court, that Congress could abrogate state sovereign immunity in state court. If Congress could not, then there would have been no jurisdiction in the case. The Court never even hinted that constitutional structure, much less the Tenth Amendment, might bar the suit, even though the dissent stressed that "the principle of federalism underlying the [Eleventh] Amendment pervades the constitutional structure," 502 U. S., at 209 (opinion of O'Connor, J.).Footnote 38 Nor does Poindexter v. Greenhow,114 U. S. 270 (1885), one of the Virginia Coupon Cases, fit comfortably with the assumption that state courts have exercised no disputed jurisdiction over their own governments on federal questions. Under its Funding Act of 1871, Virginia had issued bonds that specified on their face that the attached coupons should be receivable at and after maturity for all taxes, debts, dues, and demands due the State. Id., at 278. In 1882, however, Virginia passed a law requiring its tax collectors to accept nothing but gold, silver, or currency in payment of taxes. Id., at 275. After the bonds reached maturity, Poindexter used them to pay state property taxes; Greenhow, the local tax collector, ignored the payment and took possession of an office desk in Poindexter's possession to sell it for unpaid taxes. Poindexter brought a common-law action in detinue against the tax collector in state court for recovery of the desk, arguing that the later Virginia statute barring use of the coupons violated the Contracts Clause. Greenhow defended, inter alia, on the theory that the suit was "substantially an action against the State of Virginia, to which it has not assented." Id., at 285. The Court rejected this claim by applying to the State of Virginia reasoning akin to, though broader than, that later adopted in Ex parte Young,209 U. S. 123 (1908). We held that, where state legislative action is unconstitutional, it "is not the word or deed of the State, but is the mere wrong and trespass of those individual persons who falsely speak and act in its name," 114 U. S., at 290. Because the original bonds were binding contracts, the obligation of which Virginia could not constitutionally impair, "[t]he true and real Commonwealth which contracted the obligation is incapable in law of doing anything in derogation of it." Id., at 293. It therefore could not be argued that the tax collector was acting on behalf of the State, because "[t]he State of Virginia has done none of these things with which this defence charges her. The defendant in error is not her officer, her agent, or her representative, in the matter complained of, for he has acted not only without her authority, but contrary to her express commands." Ibid. Although the tax collector had done nothing more than collect taxes under duly enacted state law, he was held to be liable to suit. Thus in the only case to have come before this Court specifically involving a claim of state sovereign immunity of constitutional magnitude in a State's own court, jurisdiction was upheld.Footnote 39 Garcia demonstrates that, contra the Court's suggestion, the FLSA does not impermissibly act upon the States, see ante, at 4. Rather, the FLSA, enacted lawfully pursuant to the commerce power, treats the States like other employers. The Court seems to have misunderstood Hamilton's statement in The Federalist No. 15 that the citizens are " `the only proper objects of government,' " ante, at 4 (quoting Printz v. United States,521 U. S. 898, 919-920 (1997)). Hamilton's point is not, as the Court seems to think, that the National Government should dictate nothing to the States in order to protect their residual sovereignty. To the contrary, Hamilton, who was arguing against the extreme respect for state sovereignty in the Articles of Confederation, meant precisely that the National Government should not act as the leader of a "league," The Federalist No. 15, p. 95 (J. Cooke ed. 1961), mediating among several sovereignties, but as a "national government," ibid., with power to produce obedience through the "COERCION of the magistracy," ibid. Hamilton is therefore the wrong person to quote for the proposition that the National Government may not act upon the States, since his point was that the National Government should not be limited to acting through the medium of the States.Footnote 40 The most recent available data give 4,732,608 as the total number of employees of the 50 States of the Union, see State Government Employment Data: March 1997, http:/www.census.gov/pub/govs/apes/ 97stus.txt.Footnote 41 The principle is even older with respect to rights created by statute, like the FLSA rights here, than it is for common-law damages. Lord Holt in fact argued that the well-established principle in the context of statutory rights applied to common law rights as well. See Ashby v. White, 6 Mod., at 54, 87 Eng. Rep., at 816 ("Now if this be so in case of an Act of Parliament, why shall not common law be so too? For sure the common law is as forcible as any Act of Parliament"). A still older formulation of the statutory right appears in a note in Coke's Reports: "[W]hen any thing is prohibited by an Act, although that the Act doth not give an action, yet action lieth upon it." 12 Co. Rep. 100. Coke's Institutes yield a similar statement: "When any act doth prohibit any wrong or vexation, though no action be particularly named in the act, yet the party grieved shall have an action grounded upon this statute." 1 E. Coke, The Second Part of the Institutes of the Laws of England 117 (1797) (reprinted in 5B 2d Historical Writngs in Law and Jurisprudence (1986)). In our case, of course, the statute expressly gives an action.Footnote 42 See, e.g., A Declaration of Rights and Fundamental Rules of the Delaware State §12 (1776), 2 Sources and Documents of United States Constitutions, at 197, 198; Md. Const. Art. XVII (1776), 4 id., at 372, 373; Mass. Const. Art. XI, (1780), 5 id., at 92, 94; Ky. Const. Art. XII, cl. 13 (1792), 4 id., at 142, 150; Tenn. Const. Art. XI, §17 (1796), 9 id., at 141, 148.Footnote 43 Unfortunately, and despite the Court's professed "unwilling[ness] to assume the States will refuse to honor the Constitution and obey the binding laws of the United States," ante, at 46, that presumption of the sovereign's good-faith intention to follow the laws has managed somehow to disappear in the intervening two centuries, despite the general trend toward greater, not lesser, government accountability. Anyone inclined toward economic theories of history may look at the development of sovereign immunity doctrine in this country and see that it has been driven by the great and recurrent question of state debt, both in the aftermath of Chisholm and in the last quarter of the 19th century, see Seminole Tribe, 517 U. S., at 120-122 (Souter, J., dissenting). And no matter what one may think of the quality of the legal doctrine that the problem of state debt has helped to produce, one can at least argue that States' periodic attempts to repudiate their debts were not purely or egregiously lawless, because those who held state-issued bonds may well have valued and purchased them with the knowledge that default was a real possibility.Maine's refusal to follow federal law in the case before us, however, is of a different order. Far from defaulting on debt to eyes-open creditors, Maine is simply withholding damages from private citizens to whom they appear to be due. Before Seminole Tribe was decided, petitioners here were the beneficiaries of a District Court ruling to the effect that they were entitled to some coverage, and hence to some amount of damages, under the FLSA. Mills v. Maine, 839 F. Supp. 3 (Me. 1993). Before us, Maine has not claimed that petitioners are not covered by the FLSA, but only that it is protected from suit. Indeed, Maine acknowledges that it may be sued by the United States in federal court for damages on the very same claim, Brief for Respondent 12-13, and we are told that Maine now pays employees like petitioners overtime as covered by the FLSA, id., at 3. Why the State of Maine has not rendered this case unnecessary by paying damages to petitioners under the FLSA of its own free will remains unclear to me. The Court says that "it is conceded by all that the State has altered its conduct so that its compliance with federal law cannot now be questioned." Ante, at 50. But the ambiguous qualifier "now" allows the Court to avoid the fact that whatever its forward-looking compliance, the State still has not paid damages to petitioners; had it done so, the case before us would be moot.

During the penalty phase of respondent Lashley's capital murder trial, his counsel requested that the jury be instructed on the mitigating circumstance that Lashley had no significant criminal history. However, when neither Lashley's counsel nor the prosecutor presented proof of the mitigating circumstance, the trial judge refused to give the requested instruction and Lashley was sentenced to death. Subsequently a Federal District Court dismissed Lashley's habeas petition, rejecting his claim that the state judge's failure to give the instruction violated due process. The Court of Appeals granted relief, holding that this Court's decision in Lockett v. Ohio, , required the State, which was in a peculiarly advantageous position to show a significant prior criminal history, to come forward with evidence or else the court must instruct the jury on the mitigating circumstance.Held: State courts are not obligated by the Constitution to give mitigating circumstance instructions when no evidence is offered to support them. Because the jury heard no evidence concerning Lashley's prior criminal history, the trial judge did not err in refusing to give the requested instruction. States are not better positioned than defendants to adduce evidence of a defendant's own criminal history. Assuming, arguendo, that a presumption of innocence of other crimes did attach at Lashley's sentencing, he still was not constitutionally entitled to a "presumption of innocence" instruction. Certiorari granted; 957 F. 2d 1495, reversed.PER CURIAM.*a I Respondent Frederick Lashley brutally beat and stabbed to death his 55-year-old, physically impaired cousin and foster mother, Janie Tracy, in the course of robbing her. An adult in the eyes of Missouri law at age 17, Lashley was convicted of capital murder, Mo.Rev.Stat. 565.001 (1978) (repealed Oct. 1, 1984), and sentenced to death. At a conference preceding the penalty phase of the trial, one of Lashley's attorneys asked the judge to instruct the jury on the mitigating circumstance that "[t]he defendant ha[d] no significant history of prior criminal activity," Mo.Rev.Stat. 565.012.3(1) (1978) (current version Mo.Rev.Stat. 565.032.3(1) (Supp. 1991)). App. to Pet. for Cert. A-86 to A-87. Defense counsel sought this instruction even though she repeatedly asserted that she would not try to show that Lashley lacked a criminal past. Id. at A-84, A-86. At the same time, she moved for an order prohibiting the State from cross-examining defense witnesses as to Lashley's juvenile record. Id. at A-83, A-84. Such questioning may not have been permissible under Missouri law. See Mo.Rev.Stat. 211.271 (1986). In any event, the judge did not expressly rule on the latter motion. See Lashley v. Armontrout, 957 F.2d 1495, 1501, n. 1 (1992) ("[T]he trial court was not called upon to rule in respect to the admissibility of defendant's juvenile record"). The judge did indicate, however, that Lashley would not be entitled to the requested instruction without supporting evidence. App. to Pet. for Cert. A-84, A-87. Perhaps Lashley's attorneys chose not to make the necessary proffer because they feared that the prosecutor would be permitted to respond with evidence that Lashley had engaged in criminal activity as a juvenile. One of the attorneys so testified in a state collateral proceeding. Tr. 29 (Apr. 10, 1985). Or perhaps defense counsel sought to avoid opening the door to evidence that Lashley had committed other crimes as an adult. As the Missouri Supreme Court observed, the record indicates that, following his arrest, Lashley confessed to committing several other crimes after attaining adult status.* State v. Lashley, 667 S.W.2d 712, 716 (Mo.), cert. denied, ; see also 667 S.W.2d at 717 (Blackmar, J., concurring in part and dissenting in part). Whatever their reasons, Lashley's lawyers presented no proof that he lacked a significant criminal history. Nor did the prosecutor submit any evidence that would support the mitigating circumstance. The trial judge refused to give the jury the "no significant history of prior criminal activity" instruction. The Missouri Supreme Court affirmed. It reasoned that Missouri law requires mitigating circumstance instructions to be supported by some evidence, see, e.g., State v. Battle, 661 S.W.2d 487, 492 (Mo. 1983), cert. denied, ; see also State v. Williams, 652 S.W.2d 102, 114 (Mo. 1983), and none was offered here. State v. Lashley, supra, at 715-716. Lashley filed a petition for a writ of habeas corpus in the United States District Court for the Eastern District of Missouri. He alleged that the trial judge's failure to give the requested instruction violated due process. The District Court dismissed the claim. Lashley v. Armontrout, No. 87-897C(2) (ED Mo., June 9, 1988). A divided panel of the Court of Appeals for the Eighth Circuit, however, granted relief. Lashley v. Armontrout, 957 F.2d 1495 (1992). The Court of Appeals thought that the trial judge's ruling violated the Eighth Amendment under Lockett v. Ohio, . In the majority's view, Lockett requires the State - which is in a peculiarly advantageous position to show a significant prior criminal history, if indeed Lashley has such a history - to come forward with evidence, or else the court must tell the jury it may consider the requested mitigating circumstance." 957 F.2d at 1502. The court held that "the lack of any evidence whatever of Lashley's prior criminal activity entitled [him] to the requested instruction." Ibid. As Judge Fagg explained in dissent, see id. at 1502-1504, the majority plainly misread our precedents. We have held that the sentencer must be allowed to consider in mitigation any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death. Lockett, supraat 604 (plurality opinion) (emphasis added). Accord, Penry v. Lynaugh, ; Eddings v. Oklahoma, ; see also Penry, supraat 327 ("[S]o long as the class of murderers subject to capital punishment is narrowed, there is no constitutional infirmity in a procedure that allows a jury to recommend mercy based on the mitigating evidence introduced by a defendant" (emphasis added)). But we never have suggested that the Constitution requires a state trial court to instruct the jury on mitigating circumstances in the absence of any supporting evidence. On the contrary, we have said that, to comply with due process, state courts need give jury instructions in capital cases only if the evidence so warrants. See Hopper v. Evans, . And, answering a question expressly reserved in Lockett, we recently made clear that a State may require the defendant "`to bear the risk of nonpersuasion as to the existence of mitigating circumstances.'" Walton v. Arizona, (plurality opinion) (quoting Lockett, supraat 609, n. 16); see also at 669-673 (SCALIA J., concurring in part and concurring in judgment) (rejecting Lockett). In Walton, we rejected a challenge to a state statute that imposed on capital defendants the burden of establishing the existence of mitigating circumstances by a preponderance of the evidence - a higher evidentiary standard, we note, than Missouri has adopted. Discerning no constitutional imperative ... that would require the [sentencer] to consider the mitigating circumstances claimed by a defendant unless the State negated themat 650, we concluded that, [s]o long as a State's method of allocating the burdens of proof does not lessen the State's burden ... to prove the existence of aggravating circumstances, a defendant's constitutional rights are not violated by placing on him the burden of proving mitigating circumstances sufficiently substantial to call for leniency, ibid. Even prior to Walton, other lower courts rejected arguments similar to Lashley's. For example, in State v. Fullwood, 323 N.C. 371, 373 S.E.2d 518 (1988), vacated and remanded on other grounds, , the court held that the trial judge did not err by refusing to submit to the jury a "no significant history of prior criminal activity" instruction where neither the defendant nor the State introduced evidence to support it. 323 N.C., at 394, 373 S.E.2d at 532; see also Hutchins v. Garrison, 724 F.2d 1425, 1436-1437 (CA4 1983) (where defendant did not request a criminal history mitigating instruction and the record did not support it, any error resulting from failure to give the instruction was an error of state law only), cert. denied, . In DeLuna v. Lynaugh, 890 F.2d 720 (1989), the Fifth Circuit held that a capital defendant was not entitled to a mitigating instruction under Penry because he had made a "tactical decision" not to introduce supporting evidence that would have "opened the door to the introduction in evidence of a prior criminal record." 890 F.2d at 722. Accord, May v. Collins, 904 F.2d 228, 232 (CA5 1990), cert. denied, . In short, until the Court of Appeals' decision in this case, it appears that lower courts consistently applied the principles established by Lockett and its progeny. Today we make explicit the clear implication of our precedents: nothing in the Constitution obligates state courts to give mitigating circumstance instructions when no evidence is offered to support them. Because the jury heard no evidence concerning Lashley's prior criminal history, the trial judge did not err in refusing to give the requested instruction. We are not persuaded by the Court of Appeals' assertion that the State was uniquely situated to prove whether or not Lashley had a significant prior criminal history. As an initial matter, Missouri law does not demand proof that a mitigating circumstance exists; it requires only some supporting evidence. Lashley acknowledged in his federal habeas petition that his attorneys could have put forward some evidence that he lacked a significant prior criminal history; indeed, he contended that they were constitutionally ineffective for failing to do so. App. to Pet. for Cert. A- 71. There is no reason to suppose, as the dissent suggests, post at 288, that Lashley would be required to testify in order to receive the mitigating instruction. Before the state trial court, the prosecution submitted that testimony by Lashley's acquaintances would suffice. App. to Pet. for Cert. A-83. On these facts, we cannot say that the State unfairly required Lashley to prove a negative. Nor are we convinced that, as a general rule, States are better positioned than criminal defendants to adduce evidence of the defendants' own criminal history. While the prosecution may have ready access to records of crimes committed within its own jurisdiction, the same may not be true when the defendant has committed crimes in other jurisdictions, perhaps over a period of many years. And any presentence report that is created is available to both the government and the defense. In this case, Lashley has not suggested that he was unable to offer his presentence report as evidence that his prior criminal record was insignificant. Moreover, the statutory mitigating circumstance refers not to arrests or convictions, but more broadly to "criminal activity." To the extent that this includes criminal conduct that has not resulted in formal charges, no one is better able than the defendant to make the required proffer.II The dissent contends that this case is not about the requirements of Lockett at all, but about the "presumption of innocence." Post at 281. The question the dissent raises is indeed "novel," ibid.; it apparently was not raised in either the District Court or the Court of Appeals, and it was not presented to this Court. Nor does the dissent's argument compel a different result. To be sure, we have said that [t]he presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice. Estelle v. Williams, . The presumption operates at the guilt phase of a trial to remind the jury that the State has the burden of establishing every element of the offense beyond a reasonable doubt. Taylor v. Kentucky, , n. 12 (1978). But even at the guilt phase, the defendant is not entitled automatically to an instruction that he is presumed innocent of the charged offense. Kentucky v. Whorton, (per curiam). An instruction is constitutionally required only when, in light of the totality of the circumstances, there is a " genuine danger'" that the jury will convict based on something other than the State's lawful evidence, proved beyond a reasonable doubt. Ibid. (quoting Taylor, supra, at 488). Once the defendant has been convicted fairly in the guilt phase of the trial, the presumption of innocence disappears. See Herrera v. Collins, ; id. at 443 (B. J., dissenting). We have not considered previously whether a presumption that the defendant is innocent of other crimes attaches at the sentencing phase. But even assuming that such a presumption does attach, Lashley was not entitled to a "presumption of innocence" instruction. Under our precedents, the instruction would have been constitutionally required only if the circumstances created a genuine risk that the jury would conclude, from factors other than the State's evidence, that the defendant had committed other crimes. See, e.g., Whorton, supraat 788-789. Lashley does not contend that any such circumstances existed in this case. As the dissent acknowledges, post at 281, the record before the jury was completely silent on the question whether Lashley had committed prior offenses. The jury was specifically instructed that the State had the burden of proving the existence of any aggravating circumstances "beyond a reasonable doubt." Instructions Nos. 20-21, Record 77, 79 (Jan. 29, 1982). Nothing disturbed the presumption that Lashley was a first offender. The "circumstances" on which the dissent relies, post at 284-285, had no bearing on the jurors' perceptions. Lashley's age and the sentence to which he was subject were irrelevant to the question whether the jury might conclude improperly that he was a repeat offender. The dissent assigns special weight to the fact that defense counsel may have decided not to introduce evidence concerning Lashley's prior criminal history for fear that the State would introduce Lashley's juvenile record. We note that, had the trial court improperly admitted evidence of Lashley's juvenile record, defense counsel could have objected and preserved the issue for appeal. In any event, the only impact that defense counsel's decision not to make the necessary proffer could have had on the jury was to deprive it of possible testimony that Lashley lacked a criminal history. Without such testimony, the record before the jury was still silent on the question of Lashley's criminal past. Thus, assuming, arguendo, that a presumption of innocence did attach at Lashley's sentencing, under Whorton, he was not constitutionally entitled to a "presumption of innocence" instruction. Lashley's motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment of the Court of Appeals is reversed. It is so ordered.[Footnote *a] JUSTICE SOUTER joins only Part I of this opinion.[Footnote *] At the guilt phase of the trial, defense counsel moved to exclude "some confessions regarding 7 other crimes," including burglary, robbery, and stealing. Tr. 425 (Jan. 27, 1982). The motion was made not on the ground that the crimes were connected to the charged offense, cf. post at 280, n. 1, or that they were committed while Lashley was a juvenile, but because they were "extremely prejudicial" and "[ir]relevant" to Lashley's guilt or innocence of the murder. Motion in Limine, Record 143 (Jan. 21, 1982). In a pretrial conference, defense counsel specifically stated that at least one of the crimes had been committed "a week or two" before the murder - that is, when Lashley was already an adult. Tr. 425 (Jan. 27, 1982). The presentence report contains additional evidence. Under the heading "Adult Arrest Record," the report indicates that Lashley was arrested for three offenses (robbery, burglary, and stealing) the day after his arrest for the present crime. Missouri Dept. of Social Services, Div. of Probation and Parole 2 (Mar. 23, 1982). JUSTICE STEVENS, with whom JUSTICE BLACKMUN joins, dissenting. Thirty days after his 17th birthday, respondent entered his cousin's home, murdered her, and stole about $15. He was promptly arrested and made a series of confessions to the police. A portion of one of those confessions apparently referred to other crimes, but that portion was not admitted into evidence, and is not in the record. Although it seems probable that several of those "other" crimes were committed in connection with the murder, a comment by respondent's counsel in a pretrial conference indicates that one of them involved the same victim's house "a week or two beforehand."1 The record tells us nothing about the manner in which that specific statement was elicited, the seriousness of the incident, the dates when that or any of the other incidents occurred, or even whether counsel's description of the statement was accurate. Yet that one vague reference may now explain the Court's willingness to reinstate respondent's death sentence without hearing argument on the merits of the novel and important constitutional question that the case presents. That question is whether the presumption of innocence (uncontradicted in any way by the prosecution) supports an instruction to the jury at sentencing that the capital defendant's lack of a significant criminal history is a factor mitigating against its imposition of the death penalty. The Court acknowledges that the defendant's testimonial assertion of innocence would support the instruction, see ante at 277; it fails to recognize that the presumption of innocence does so as well. The question arises because the record on which the jury relied in imposing the death sentence contains no evidence of any criminal activity by respondent except the serious felony for which he has been convicted and sentenced. Speculation by appellate judges, see ante at 273-274, about a matter that was neither available to the sentencing authority nor mentioned by the State in its petition in this Court is not a substitute for admissible evidence presented in an adversary proceeding.2 Speculation about his juvenile record is impermissible; state law prohibits any use of such evidence in adult criminal proceedings.3 Accordingly, as the case comes to us, the record is silent on the question whether respondent led an entirely blameless life prior to this offense. Missouri's capital sentencing statute provides that the absence of any significant history of prior criminal activity is a circumstance militating against the imposition of the death penalty.4 In Missouri, therefore - as in the many States with the same statutory mitigating factor - the jury should be so instructed when the record contains no evidence of any prior record of criminal activity. The legal basis for the Court's summary disposition of this case is the general rule that a trial judge's instructions to the jury must normally relate to evidence in the record. That general rule, however, has no application to an instruction on the presumption of innocence in an ordinary criminal trial. In my opinion, the general rule is equally inapplicable in the capital sentencing process when the defendant requests an instruction explaining the statutory mitigating circumstance at issue in this case.I It has been settled for almost a century that the presumption of innocence, when uncontradicted, is an adequate substitute for affirmative evidence. In 1895, the Court held that refusing to give an instruction on the presumption of innocence was reversible error, explaining that this presumption is an instrument of proof created by the law in favor of one accused, whereby his innocence is established until sufficient evidence is introduced to overcome the proof which the law has created. Coffin v. United States, . A few years later, in his landmark treatise on evidence, Professor Thayer, while noting that a presumption is not itself evidence, concluded:"What appears to be true may be stated thus: -"1. A presumption operates to relieve the party in whose favor it works from going forward in argument or evidence."2. It serves therefore the purposes of a prima facie case, and in that sense it is, temporarily, the substitute or equivalent for evidence." J. Thayer, A Preliminary Treatise on Evidence at the Common Law, Appendix B, p. 575 (1898) (hereinafter Thayer).5 The presumption of innocence plays a unique role in criminal proceedings. As Chief Justice Burger explained in his opinion for the Court in Estelle v. Williams, : "The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice. Long ago this Court stated:"`The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.' Coffin v. United States, , 453 (1895)." Id. at 503. The failure to instruct the jury on the presumption may violate the Due Process Clause of the Fourteenth Amendment even when a proper instruction on the prosecution's burden of proving guilt beyond a reasonable doubt has been given. Taylor v. Kentucky, . Whether the omission amounts to a constitutional violation in a noncapital case depends on "the totality of the circumstances," Kentucky v. Whorton, . In my judgment, the instruction should always be given in a capital case. That conclusion is not essential to my appraisal of the capital case before us today, however, because the totality of circumstances here included respondent's age, the sentence to which he was subject, and - of special importance - the trial judge's erroneous refusal to prohibit cross-examination about his juvenile record. As Chief Judge Arnold explained: [T]rial counsel made a reasonable effort to introduce [affirmative evidence showing that petitioner had no significant criminal history], but was prevented from doing so by an incorrect ruling of the state trial court. The court told counsel that, if she insisted on offering evidence that Lashley had no criminal record, it would permit the state to counter this evidence by showing that petitioner had committed juvenile offenses. This ruling was flatly contrary to state law. Lashley v. Armontrout, 957 F.2d 1495, 1500, n. 1 (CA8 1992).6 This erroneous ruling by the trial judge unquestionably explains why the record contains no specific testimony about respondent's prior criminal history. Even though due process may not automatically entitle a defendant to an instruction that he is presumed innocent of other offenses at the penalty phase of the trial, under Whorton, supra, the instruction should certainly be given when a trial court error is responsible for the absence of evidence supporting the instruction. The failure to instruct the jury on the presumption of innocence at the guilt phase of respondent's trial - whether or not respondent had presented any evidence of his innocence - would have been constitutional error requiring reversal of his conviction. Under our holding in Lockett v. Ohio, , the comparable refusal in this case was also constitutional error requiring the vacation of respondent's death sentence.7 The Court of Appeals, therefore, properly set aside a sentence of death imposed by a jury uninformed that the state legislature had expressly authorized it to withhold that sentence because the defendant had no prior criminal record.8 II The mitigating factor in question corresponds precisely to the presumption of innocence. When the trial record reveals no prior criminal history at all, the presumption serves as "a prima facie case, and in that sense it is, temporarily, the substitute or equivalent for evidence," Thayer, 575, that a criminal defendant is blameless in spite of his indictment, and that, even after conviction of one crime, he is presumptively innocent of all other crimes. The State cannot refute the presumption of innocence at the guilt phase of the trial without presenting any evidence that the defendant committed the act for which he was indicted; similarly, it has no basis for objecting to a mitigating instruction on the absence of a prior criminal history if it has done nothing to rebut the prima facie case established by the presumption of innocence at the sentencing phase of the trial.9 In this case, as the Court expressly acknowledges, nothing in the record "disturbed the presumption that Lashley was a first offender." Ante at 279. There was no danger that the "jury might conclude improperly that he was a repeat offender." Ibid. What was lacking, however, was advice to the jury that Missouri law draws a distinction between first offenders and repeat offenders, and provides that membership in one class rather than the other shall be considered a mitigating fact no matter how serious the offense committed by the defendant may be. Failure to advise the jury about the mitigating effect of his status as first offender is just as unfair as the failure to advise the jury that it should consider evidence offered by a defendant "as mitigating evidence, and that it could give mitigating effect to that evidence in imposing sentence." Penry v. Lynaugh, (emphasis in original).10 Because "no one is better able than the defendant to make the required proffer," ante at 278, the Court considers it fair to require him to attest to his own innocence of any criminal history before the jury may be allowed to rely on the mitigating circumstance when it considers putting him to death. This suggestion is inconsistent with our refusal to allow the capital sentencing process to burden the defendant's Fifth Amendment privilege against self-incrimination.11 It obviously would have been constitutional error for the prosecutor or the judge to comment on the defendant's failure to testify at the guilt or sentencing phase of the trial; it is equally wrong to deny him an otherwise appropriate mitigating instruction because he failed to testify. Admittedly, my analysis of the case enables the respondent to obtain a double benefit from his youth. That he was barely 17 years old when he committed the offense is itself a mitigating circumstance; it also serves to shield any earlier misbehavior from scrutiny when his life is at stake. I believe, however, that such a double benefit is entirely appropriate when a State seeks to take the life of a young person. To deny that benefit undermines important protections that the law has traditionally provided to youthful offenders because of their lesser moral culpability and greater potential for rehabilitation. It is doubly disturbing that the Court acts summarily in this case, thus expediting the execution of a defendant who, I firmly believe, should not be eligible for the death penalty at all. See Thompson v. Oklahoma, (plurality pinion). I respectfully dissent.

Mr.Stanley M. Silverberg, of Washington, D.C., for petitioner. Mr. George R. Sommer, of Newark, N.J., for respondent. Mr. Justice DOUGLAS delivered the opinion of the Court.DP A criminal information was brought against Bruno for having wilfully sold1 waste paper at prices higher than the ceilings established by Maximum Price Regulation 30. 2 The information contained five counts, each count charging a sale of a carload lot in 1944 at prices above the established ceilings. The jury found Bruno guilty on all five counts. He was sentenced to imprisonment for six months and fined $500. The judgment of conviction was reversed by the Circuit Court of Appeals. 3 Cir., 153 F.2d 843. The case is here on a petition for a writ of certiorari which we granted because of an asserted conflict in principle between the decision below and United States ex rel. Bowles v. Seidmon, 154 F.2d 228, in the Seventh Circuit Court of Appeals. Bruno was in charge of a business, owned by a relative, which bought and sold waste paper. Carrano was a middleman who bought waste paper from Bruno on orders from Carrano's customers. The paper was shipped by Bruno direct to the customers, Carrano paying Bruno the price. In each of the five sales challenged here Carrano ordered from Bruno a grade of paper known as No. 1 assorted kraft. In each Bruno invoiced the shipment as such and charged the ceiling price for that grade of waste paper. Carrano paid Bruno the invoice price. It appears that the orders were subject to inspection and approval of the waste paper by the customers; that they customarily made the inspections on receipt of the shipments; and that if the paper was below the grade at which it had been invoiced, the customers would pay Carrano the lower ceiling price, Carrano debiting Bruno with the difference. Each of the five shipments in question was inspected by the customer on its arrival. It was discovered that each shipment was largely composed of corrugated paper, a grade carrying a lower ceiling price. In three cases the customers paid Carrano only for the quality of waste paper received. Carrano thereupon debited Bruno with the difference. In two cases the customer did not complain of the upgrading and Bruno retained the over-charges. 3 Moreover, the debits to Bruno in the three instances mentioned followed on the heels of an investigation by the Office of Price Administration. It also appears that the debits were not shown on Bruno's books. His ledger showed sales, not at the invoice price, but at lower prices. The concealed amounts were explained by Bruno as constituting his commissions on the sales. The District Court charged the jury that 'before you can find him guilty, there must have been in his mind an intention not to set a price and then have it adjusted afterwards according to the truth of the situation, but an intent to fix this price and charge it and get away with it-an intent to commit the crime, the formation of a purpose in his mind when he did this thing, to get more money for that paper than the ceiling price established by law.' 4 The court also charged that there could be no conviction if Bruno did not sell the waste paper 'with the intent of receiving higher than ceiling price, and did not actually receive higher than ceiling price'. We think it was proper to submit the case to the jury. The evidence seems to us ample to support the conviction. There was false grading in each invoice. The sales were not made at a price to be determined on the customers' inspection of the grade. They were made at specific invoice prices which were above the ceiling. The goods were delivered at those prices; and those were the prices actually paid. In some instances there was a subsequent adjustment of the price to conform to the price ceiling for the grade actually shipped. But in others there was not. And bearing on the integrity of the system were two other facts-(1) the debits made followed the OPA investigation; (2) the inflated prices were not disclosed on Bruno's books. In a seller's market upgrading may be a convenient device for black market operations. As the Circuit Court of Appeals noted, when paper is scarce the seller may send not what is ordered but what he has, on the assumption that manufacturers will be glad to take any kind of paper they can get. In view of the inadequacy of the supply, buyers cannot always be expected to reject upgraded shipments or insist upon price adjustments. The facts of this case sustain that theory, for in two instances no price adjustment was sought or made. In view of all the circumstances, the jury could well conclude that the system adopted by Bruno was designed to bring him more for the goods than was lawful. Reversed.

Petitioner was convicted in a Federal District Court of violating 18 U.S.C. 1001 by filing, under 9 (h) of the National Labor Relation Act, as president of a labor union, an affidavit stating falsely that he was not a member of the Communist Party or affiliated with such Party. Crucial testimony against him was given by two paid undercover agents for the F. B. I., who stated on cross-examination that they had made regular oral or written reports to the F. B. I. on the matters about which they had testified. Petitioner moved for the production of these reports in court for inspection by the judge with a view to their possible use by petitioner in impeaching such testimony. His motions were denied. Held: Denial of the motions was erroneous, and the conviction is reversed. Pp. 658-672. (a) Petitioner was not required to lay a preliminary foundation for his motion, showing inconsistency between the contents of the reports and the testimony of the government agents, because a sufficient foundation was established by their testimony that their reports were of the events and activities related in their testimony. Gordon v. United States, , distinguished. Pp. 666-668. (b) Petitioner was entitled to an order directing the Government to produce for inspection all written reports of the F. B. I. agents in its possession, and, when orally made, as recorded by the F. B. I., touching the events and activities as to which they testified at the trial. P. 668. (c) Petitioner is entitled to inspect the reports to decide whether to use them in his defense. Pp. 668-669. (d) The practice of producing government documents to the trial judge for his determination of relevancy and materiality, without hearing the accused, is disapproved. P. 669. (e) Only after inspection of the reports by the accused, must the trial judge determine admissibility of the contents and the method to be employed for the elimination of parts immaterial or irrelevant. P. 669. (f) Criminal action must be dismissed when the Government, on the ground of privilege, elects not to comply with an order to produce, for the accused's inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at the trial. Pp. 669-672. (g) The burden is the Government's, not to be shifted to the trial judge, to decide whether the public prejudice of allowing the crime to go unpunished is greater than that attendant upon the possible disclosure of state secrets and other confidential information in the Government's possession. P. 672. 226 F.2d 540, 553, reversed.John T. McTernan argued the cause for petitioner. With him on the brief was Nathan Witt.John V. Lindsay argued the cause for the United States. With him on the brief were Solicitor General Rankin, Assistant Attorney General Tompkins, Clinton B. D. Brown and Harold D. Koffsky.MR. JUSTICE BRENNAN delivered the opinion of the Court.On April 28, 1950, the petitioner, as president of Amalgamated Bayard District Union, Local 890, International Union of Mine, Mill & Smelter Workers, filed an "Affidavit of Non-Communist Union Officer" with the National Labor Relations Board, pursuant to 9 (h) of the National Labor Relations Act.1 He has been convicted under a two-count indictment charging that he violated 18 U.S.C. 10012 by falsely swearing in that affidavit that he was not on April 28, 1950, a member of the Communist Party or affiliated with such Party. The Court of Appeals for the Fifth Circuit affirmed the conviction,3 and also an order of the District Court denying the petitioner's motion for a new trial.4 This Court granted certiorari.5 Two alleged trial errors are presented for our review. Harvey F. Matusow and J. W. Ford, the Government's principal witnesses, were Communist Party members paid by the Federal Bureau of Investigation contemporaneously to make oral or written reports of Communist Party activities in which they participated. They made such reports to the F. B. I. of activities allegedly participated in by the petitioner, about which they testified at the trial. Error is asserted in the denial by the trial judge of the petitioner's motions to direct the Government to produce these reports for inspection and use in cross-examining Matusow and Ford. Error is also alleged in the instructions given to the jury on membership, affiliation, and the credibility of informers.6 Former Party members testified that they and the petitioner, as members of the Communist Party of New Mexico, had been expressly instructed to conceal their membership and not to carry membership cards. They also testified that the Party kept no membership records or minutes of membership meetings, and that such meetings were secretly arranged and clandestinely held. One of the witnesses said that special care was taken to conceal the Party membership of members, like the petitioner, "occupying strategic and important positions in labor unions and other organizations where public knowledge of their membership to non-Communists would jeopardize their position in the organization." Accordingly, the Government did not attempt to prove the petitioner's alleged membership in the Communist Party on April 28, 1950, with any direct admissions by the petitioner of membership, by proof of his compliance with Party membership requirements, or that his name appeared upon a membership roster, or that he carried a membership card.The evidence relied upon by the Government was entirely circumstantial. It consisted of testimony of conduct of the petitioner from early 1946 through October 15, 1949, and of Matusow's testimony concerning alleged conversations between him and the petitioner at a vacation ranch in July or August 1950, and concerning a lecture delivered by the petitioner at the ranch. The Government also attached probative weight to the action of the petitioner in executing and filing an Affidavit of Non-Communist Union Officer on October 15, 1949, because of the events surrounding the filing of that affidavit. The Government bridged the gap between October 15, 1949, and July or August 1950 with the testimony of Ford that, during that period, the Party took no disciplinary action against the petitioner for defection or deviation, and did not replace the petitioner in the Party office which Ford testified the petitioner held as a member of the Party State Board.The first alleged Party activity of the petitioner preceded his union employment. A witness, who was a Party member in the spring of 1946, testified that, at that time, he and the petitioner were present at a closed Party meeting at the home of the Party chairman for Colorado, where the petitioner, a veteran of World War II, led in urging that veterans who were Party members spread out into several veterans' organizations and not all join the same one, the better to further Party work.Later in 1946 the petitioner was employed by the International Union of Mine, Mill & Smelter Workers as business agent for several local unions in the Silver City-Bayard, New Mexico, area. It was testified that one of the petitioner's first acts was to meet with the International Union's then Regional Director for the Southwest, a Communist Party member, and with the Communist Party organizer for the area, to develop plans for organizing a Party group within each of those locals, which later merged to form Amalgamated Local 890 under the petitioner's presidency.J. W. Ford was a member of the Communist Party of New Mexico from 1946 to September 1950 and, from 1948, was a member of the State Board and a Party security officer. He said that in 1948 he became a paid undercover agent for the F. B. I.7 and reported regularly upon Party activities and meetings. He testified that the petitioner was also a Party and a State Board member, and he related in detail occurrences at five closed Party meetings which he said the petitioner attended.At the first meeting, in August 1948, Ford said the Party members worked out a plan to support the petitioner's candidacy for Congress on the ticket of the Progressive Party. At the second meeting, in February 1949, Ford said that the petitioner and other Communist Party members were appointed delegates to a meeting of the Mexican-American Association in Phoenix, Arizona, to further a Party plan to infiltrate that organization and to use it for the Party's purposes. At the third meeting, in April 1949, Ford said that the Party's state organization was completed, and the petitioner was appointed to the State Board and the Party leader in the southern half of the State. At the fourth meeting, in May 1949, Ford said that the petitioner gave a progress report upon his success in recruiting Party members among labor groups, and offered to use Local 890's newspaper, "The Union Worker," which he edited, to support issues of Party interest. At the fifth meeting, in August 1949, Ford said that preparations were made for another meeting later in that month of the Mexican-American Association in Albuquerque, and that the delegates, including the petitioner, were instructed to give vigorous support to the meeting but to take care not to make themselves conspicuous in the proceedings.Ford's duties as a Party security officer were to keep watch on all Party members and to report "any particular defections from the Communist philosophy or any peculiar actions, statements or associations, which would endanger the security of the Communist Party of the state." If any defection reported by a security officer were considered important, the member "would be called in and would be either severely reprimanded or criticized, or disciplined. If he refused to accept such discipline he would either be suspended or expelled." Ford testified that, between August 1949 and September 1950, when Ford ceased his activities with the New Mexico Party, there was no disciplinary action taken against the petitioner and, to his knowledge, the petitioner was not replaced in his position on the State Board of the Communist Party.The events leading up to the petitioner's execution and filing, on October 15, 1949, of an Affidavit of Non-Communist Union Officer were testified to by a former International Union representative, a Communist Party member during 1947 to 1949. He said that, about 17 months before, in May or June 1948, a meeting of Party members, holding offices in locals of the International Union of Mine, Mill & Smelter Workers, was held in Denver to formulate plans for combatting a movement, led by non-Communists, to secede from the International Union. He said that the Party members, including the petitioner, were informed of Party policy not to sign affidavits required by 9 (h) of the then recently enacted Taft-Hartley Act. There was no testimony that that policy changed before October 15, 1949.The affidavit was filed shortly before a C. I. O. convention was scheduled to expel the Mine-Mill International and other unions from its membership. After filing the affidavit, the petitioner and other Local 890 officers published an article in "The Union Worker" charging that the contemplated C. I. O. action was part of a program of "right-wing unions ... gobbling up chunks of militant unions... . Our International Union and its officers have swallowed a lot of guff, a lot of insults. But that is not the point... . Now that our Union has signed the phony affidavits we can defend ourselves ... in case of raids. We do not fear attack from that quarter any longer."Matusow was a member of the Communist Party of New York and was a paid undercover agent for the F. B. I. before he went to New Mexico.8 In July or August 1950, he spent a 10-day vacation on a ranch near Taos, New Mexico, with the petitioner and a number of other people. He testified to several conversations with the petitioner there. He said he twice told the petitioner of his desire to transfer his membership from the New York to the New Mexico Party, and that on both occasions the petitioner applauded the idea and told him, "we can use you out here, we need more active Party members." On one of these occasions, Matusow said, the petitioner asked him for suggestions for a lecture the petitioner was preparing for delivery at the ranch, particularly as to what the New York Communists were doing about the Stockholm Peace Appeal. Matusow described to the petitioner a "do-day" program adopted in New York when the Party members were doers, not talkers, and performed some activity, such as painting signs around a baseball stadium urging support for the Peace Appeal. He testified that the petitioner showed great interest in the idea and said he might bring it back to his fellow Party members in Silver City.Matusow testified that the petitioner delivered his planned lecture, informed his audience of the "do-day" idea, praised the Soviet Union's disarmament plan, referred to the United States as the aggressor in Korea, and urged all to read the "Daily People's World," identified by Matusow as the "West Coast Communist Party newspaper." Another witness, an expelled member of Amalgamated Local 890, testified that petitioner, during 1950, 1951 and 1952, repeatedly urged at union meetings that the union members read that paper.Matusow also testified that, in one of their conversations, the petitioner told him of a program he was developing with leaders of the Mexican Miners Union to negotiate simultaneous expiration dates of collective bargaining agreements, to further a joint action of Mexican and American workers to cut off production to slow down the Korean War effort. Matusow also testified that when he told the petitioner that he had joined the Taos Chapter of the Mexican-American Association, the petitioner told him that this was proper Communist work because the Association was key organization, controlled by the Party, for Communist activities in New Mexico and that he, the petitioner, was active in the Association in the Silver City area.9 Ford and Matusow were subjected to vigorous cross-examination about their employment as informers for the F. B. I. Ford testified that in 1948 he went to the F. B. I. and offered his services, which were accepted. He thereafter regularly submitted reports to the F. B. I., "sometimes once a week, sometimes once a month, and at various other times; maybe three or four times a week, depending on the number of meetings ... [he] attended and the distance between the meetings." He said that his reports were made immediately following each meeting, while the events were still fresh in his memory. He could not recall, however, which reports were oral and which in writing.The petitioner moved "for an order directing an inspection of reports of the witness Ford to the Federal Bureau of Investigation dealing with each of the meetings which he said that he attended with the defendant Jencks in the years 1948 and 1949." The trial judge, without stating reasons, denied the motion.Matusow, on his cross-examination, testified that he made both oral and written reports to the F. B. I. on events at the ranch, including his conversations with the petitioner. The trial judge, again without reasons, denied the motion to require "the prosecution to produce in Court the reports submitted to the F. B. I. by this witness [Matusow] concerning matters which he saw or heard at the ... Ranch during the period that he was a guest there ... ."10 The Government opposed petitioner's motions at the trial upon the sole ground that a preliminary foundation was not laid of inconsistency between the contents of the reports and the testimony of Matusow and Ford. The Court of Appeals rested the affirmance primarily upon that ground.11 Both the trial court and the Court of Appeals erred. We hold that the petitioner was not required to lay a preliminary foundation of inconsistency, because a sufficient foundation was established by the testimony of Matusow and Ford that their reports were of the events and activities related in their testimony.The reliance of the Court of Appeals upon Gordon v. United States, , is misplaced. It is true that one fact mentioned in this Court's opinion was that the witness admitted that the documents involved contradicted his testimony. However, to say that Gordon held a preliminary showing of inconsistency a prerequisite to an accused's right to the production for inspection of documents in the Government's possession, is to misinterpret the Court's opinion. The necessary essentials of a foundation, emphasized in that opinion, and present here, are that "[t]he demand was for production of ... specific documents and did not propose any broad or blind fishing expedition among documents possessed by the Government on the chance that something impeaching might turn up. Nor was this a demand for statements taken from persons or informants not offered as witnesses." (Emphasis added.) 344 U.S., at 419. We reaffirm and re-emphasize these essentials. "For production purposes, it need only appear that the evidence is relevant, competent, and outside of any exclusionary rule ... ." 344 U.S., at 420.The crucial nature of the testimony of Ford and Matusow to the Government's case is conspicuously apparent. The impeachment of that testimony was singularly important to the petitioner. The value of the reports for impeachment purposes was highlighted by the admissions of both witnesses that they could not remember what reports were oral and what written, and by Matusow's admission: "I don't recall what I put in my reports two or three years ago, written or oral, I don't know what they were."Every experienced trial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls treacherous memory. Flat contradiction between the witness' testimony and the version of the events given in his reports is not the only test of inconsistency. The omission from the reports of facts related at the trial, or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examining process of testing the credibility of a witness' trial testimony.Requiring the accused first to show conflict between the reports and the testimony is actually to deny the accused evidence relevant and material to his defense. The occasion for determining a conflict cannot arise until after the witness has testified, and unless he admits conflict, as in Gordon, the accused is helpless to know or discover conflict without inspecting the reports.12 A requirement of a showing of conflict would be clearly incompatible with our standards for the administration of criminal justice in the federal courts and must therefore be rejected. For the interest of the United States in a criminal prosecution "... is not that it shall win a case, but that justice shall be done... ." Berger v. United States, .13 This Court held in Goldman v. United States, , that the trial judge had discretion to deny inspection when the witness "... does not use his notes or memoranda [relating to his testimony] in court ... ." We now hold that the petitioner was entitled to an order directing the Government to produce for inspection all reports of Matusow and Ford in its possession, written and, when orally made, as recorded by the F. B. I., touching the events and activities as to which they testified at the trial. We hold, further, that the petitioner is entitled to inspect the reports to decide whether to use them in his defense. Because only the defense is adequately equipped to determine the effective use for purpose of discrediting the Government's witness and thereby furthering the accused's defense, the defense must initially be entitled to see them to determine what use may be made of them. Justice requires no less.14 The practice of producing government documents to the trial judge for his determination of relevancy and materiality, without hearing the accused, is disapproved.15 Relevancy and materiality for the purposes of production and inspection, with a view to use on cross-examination, are established when the reports are shown to relate to the testimony of the witness. Only after inspection of the reports by the accused, must the trial judge determine admissibility - e. g., evidentiary questions of inconsistency, materiality and relevancy - of the contents and the method to be employed for the elimination of parts immaterial or irrelevant. See Gordon v. United States, 344 U.S., at 418.In the courts below the Government did not assert that the reports were privileged against disclosure on grounds of national security, confidential character of the reports, public interest or otherwise. In its brief in this Court, however, the Government argues that, absent a showing of contradiction, "[t]he rule urged by petitioner ... disregards the legitimate interest that each party - including the Government - has in safeguarding the privacy of its files, particularly where the documents in question were obtained in confidence. Production of such documents, even to a court, should not be compelled in the absence of a preliminary showing by the party making the request." The petitioner's counsel, believing that Court of Appeals' decisions imposed such a qualification, restricted his motions to a request for production of the reports to the trial judge for the judge's inspection and determination whether and to what extent the reports should be made available to the petitioner.It is unquestionably true that the protection of vital national interests may militate against public disclosure of documents in the Government's possession. This has been recognized in decisions of this Court in civil causes where the Court has considered the statutory authority conferred upon the departments of Government to adopt regulations "not inconsistent with law, for ... use ... of the records, papers ... appertaining" to his department.16 The Attorney General has adopted regulations pursuant to this authority declaring all Justice Department records confidential and that no disclosure, including disclosure in response to subpoena, may be made without his permission.17 But this Court has noticed, in United States v. Reynolds, , the holdings of the Court of Appeals for the Second Circuit18 that, in criminal causes "... the Government can invoke its evidentiary privileges only at the price of letting the defendant go free. The rationale of the criminal cases is that, since the Government which prosecutes an accused also has the duty to see that justice is done, it is unconscionable to allow it to undertake prosecution and then invoke its governmental privileges to deprive the accused of anything which might be material to his defense... ." 345 U.S., at 12.In United States v. Andolschek, 142 F.2d 503, 506, Judge Learned Hand said: "... While we must accept it as lawful for a department of the government to suppress documents, even when they will help determine controversies between third persons, we cannot agree that this should include their suppression in a criminal prosecution, founded upon those very dealings to which the documents relate, and whose criminality they will, or may, tend to exculpate. So far as they directly touch the criminal dealings, the prosecution necessarily ends any confidential character the documents may possess; it must be conducted in the open, and will lay bare their subject matter. The government must choose; either it must leave the transactions in the obscurity from which a trial will draw them, or it must expose them fully. Nor does it seem to us possible to draw any line between documents whose contents bears directly upon the criminal transactions, and those which may be only indirectly relevant. Not only would such a distinction be extremely difficult to apply in practice, but the same reasons which forbid suppression in one case forbid it in the other, though not, perhaps, quite so imperatively... ." We hold that the criminal action must be dismissed when the Government, on the ground of privilege, elects not to comply with an order to produce, for the accused's inspection and for admission in evidence, relevant statements or reports in its possession of government witnesses touching the subject matter of their testimony at the trial. Accord, Roviaro v. United States, . The burden is the Government's not to be shifted to the trial judge, to decide whether the public prejudice of allowing the crime to go unpunished is greater than that attendant upon the possible disclosure of state secrets and other confidential information in the Government's possession. Reversed.MR. JUSTICE FRANKFURTER joins the opinion of the Court, but deeming that the questions relating to the instructions to the jury should be dealt with, since a new trial has been directed, he agrees with the respects in which, and the reasons for which, MR. JUSTICE BURTON finds them erroneous.MR. JUSTICE WHITTAKER took no part in the consideration or decision of this case.

Petitioner motor carrier filed suit in a Nebraska trial court, claiming, inter alia, that certain "retaliatory" taxes and fees the State imposed on motor carriers and vehicles such as his, which are registered in other States but operate in Nebraska, constituted an unlawful burden on interstate commerce and that respondents were liable under 42 U.S.C. 1983. Among other things, the court concluded that the taxes and fees violated the Commerce Clause and permanently enjoined respondents from assessing, levying, or collecting them; but it dismissed petitioner's 1983 claim. The State Supreme Court affirmed the dismissal, holding that there is no cause of action under 1983 for Commerce Clause violations because the Clause allocates power between the State and Federal Governments, and does not establish individual rights against the government.Held: Suits for violations of the Commerce Clause may be brought under 1983. Pp. 443-451. (a) A broad construction of 1983 is compelled by the statutory language, which speaks of deprivations of "any rights, privileges, or immunities secured by the Constitution and laws." It is also supported by 1983's legislative history and by this Court's decisions, which have rejected attempts to limit the types of constitutional rights that are encompassed within the phrase "rights, privileges, or immunities," see, e.g., Lynch v. Household Finance Corp., . Pp. 443-446. (b) The Commerce Clause confers "rights, privileges, or immunities" within the meaning of 1983. In addition to conferring power on the Federal Government, the Clause is a substantive restriction on permissible state regulation of interstate commerce. And individuals injured by state action violating this aspect of the Clause may sue and obtain injunctive and declaratory relief. The three considerations for determining whether a federal statute confers a "right" within the meaning of 1983 - that the provision creates obligations binding on the governmental unit, that the plaintiff's interest is not too vague and amorphous to be beyond the judiciary's competence to enforce, and that the provision was intended to benefit the plaintiff - also weigh in favor of recognition of a right under the Clause. Respondents' argument that the Clause was not designed to benefit the individual has been implicitly rejected, Boston Stock Exchange v. State Tax Comm'n, , n. 3, and this Court's repeated references to "rights" under the Clause constitute a recognition that it was intended to benefit those who are engaged in interstate commerce, see, e.g., Crutcher v. Kentucky, . Respondents' attempt to analogize the Commerce Clause to the Supremacy Clause, which does not confer "rights, privileges, or immunities" under 1983, is also rejected. Unlike the Commerce Clause, the Supremacy Clause is not a source of federal rights, but merely secures federal rights by according them priority when they come into conflict with state law. The fact that the protection from interference with trade conferred by the Commerce Clause may be qualified or eliminated by Congress does not mean that it cannot be a "right," for, until Congress does so, such protection operates as a guarantee of freedom for private conduct that the State may not abridge. Pp. 446-451. 234 Neb. 427, 451 N.W.2d 676, reversed and remanded.WHITE, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, STEVENS, O'CONNOR, SCALIA, and SOUTER, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which REHNQUIST, C.J., joined, post, p. 451.Richard E. Allen argued the cause and filed briefs for petitioner.L. Jay Barter, Assistant Attorney General of Nebraska, argued the cause for respondents. With him on the brief were Robert M. Spire, Attorney General, and Arthur E. Wilmarth, Jr.,* [Footnote *] Andrew L. Frey, Kenneth S. Geller, Andrew J. Pincus, Daniel R. Barney, Robert Digges, Jr., Laurie T. Baulig, and William S. Busker filed a brief for American Trucking Associations, Inc., as amicus curiae urging reversal.Charles Rothfeld and Benna Ruth Solomon filed a brief for the National Conference of State Legislature et al. as amicus curiae urging affirmance.JUSTICE WHITE delivered the opinion of the Court.This case presents the question whether suits for violations of the Commerce Clause may be brought under 93 Stat. 1284, as amended, 42 U.S.C. 1983. We hold that they may. IPetitioner does business as an unincorporated motor carrier with his principal place of business in Ohio. He owns tractors and trailers that are registered in Ohio and operated in several States, including Nebraska. On December 17, 1984, he filed a class action suit in a Nebraska trial court challenging the constitutionality of certain "retaliatory" taxes and fees imposed by the State of Nebraska on motor carriers with vehicles registered in other States and operated in Nebraska.1 In his complaint, petitioner claimed, inter alia, that the taxes and fees constituted an unlawful burden on interstate commerce and that respondents were liable under 42 U.S.C. 1983. Petitioner sought declaratory and injunctive relief, refunds of all retaliatory taxes and fees paid, and attorney's fees and costs.After a bench trial based on stipulated facts, the court concluded that the taxes and fees at issue violated the Commerce Clause "because they are imposed only on motor carriers whose vehicles are registered outside the State of Nebraska, while no comparable tax or fee is imposed on carriers whose vehicles are registered in the State of Nebraska." App. to Pet. for Cert. 29a. It therefore permanently enjoined respondents from "assessing, levying, or collecting" the taxes and fees. Id., at 30a. The court also held that petitioner was entitled to attorney's fees and expenses under the equitable "common fund" doctrine. The court, however, entered judgment for respondents on the remaining claims, including the 1983 claim. Petitioner appealed the dismissal of his 1983 claim, and respondents cross-appealed the trial court's allowance of attorney's fees and expenses under the common fund doctrine. Respondents did not however, appeal the trial court's determination that the retaliatory taxes and fees violated the Commerce Clause.The Supreme Court of Nebraska affirmed the dismissal of petitioner's 1983 claim, but reversed the trial court's allowance of fees and expenses under the common fund doctrine. See Dennis v. State, 234 Neb. 427, 451 N.W.2d 676 (1990). With respect to the 1983 claim, the Nebraska Supreme Court held that "[d]espite the broad language of 1983 ... there is no cause of action under 1983 for violations of the commerce clause." Id., at 430, 451 N.W.2d, at 678. The court relied largely on the reasoning in Consolidated Freightways Corp. of Delaware v. Kassel, 730 F.2d 1139 (CA8), cert. denied, , which held that claims under the Commerce Clause are not cognizable under 1983 because, among other things, "the Commerce Clause does not establish individual rights against government, but instead allocates power between the state and federal governments." 730 F.2d, at 1144.As the Supreme Court of Nebraska recognized, see 234 Neb., at 430, 451 N.W.2d, at 678, there is a division of authority on the question whether claims for violations of the Commerce Clause may be brought under 1983.2 We granted certiorari to resolve this issue, , and we now reverse. IIA broad construction of 19833 is compelled by the statutory language, which speaks of deprivations of "any rights, privileges, or immunities secured by the Constitution and laws." (Emphasis added.) Accordingly, we have "repeatedly held that the coverage of [ 1983] must be broadly construed." Golden State Transit Corp. v. Los Angeles, . The legislative history of the section also stresses that, as a remedial statute, it should be "`liberally and beneficently construed.'" Monell v. New York City Dept. of Social Services, (quoting Rep. Shellabarger, Cong. Globe, 42d Cong., 1st Sess., App. 68 (1871)).4 As respondents argue, the "prime focus" of 1983 and related provisions was to ensure "a right of action to enforce the protections of the Fourteenth Amendment and the federal laws enacted pursuant thereto," Chapman v. Houston Welfare Rights Organization, , but the Court has never restricted the section's scope to the effectuation of that goal. Rather, we have given full effect to its broad language, recognizing that 1983 "provide[s] a remedy, to be broadly construed, against all forms of official violation of federally protected rights." Monell, supra, at 700-701. Thus, for example, we have refused to limit the phrase "and laws" in 1983 to civil rights or equal protection laws. See Maine v. Thiboutot, , 6-8 (1980).Even more relevant to this case, we have rejected attempts to limit the types of constitutional rights that are encompassed within the phrase "rights, privileges, or immunities." For example, in Lynch v. Household Finance Corp., , we refused to limit the phrase to "personal" rights, as opposed to "property" rights.5 We first noted that neither the words nor the legislative history of the statute distinguished between personal and property rights. Id., at 543. We also rejected that distinction because of the "virtual impossibility" of applying it, particularly in "mixed" cases involving both types of rights. Id., at 550-551. We further concluded that "the dichotomy between personal liberties and property rights is a false one... . The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is, in truth, a `personal' right, whether the `property' in question be a welfare check, a home, or a savings account." Id., at 552. See also United States v. Price, .Petitioner contends that the Commerce Clause confers "rights, privileges, or immunities" within the meaning of 1983. We agree. The Commerce Clause provides that "Congress shall have Power ... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S. Const., Art. I, 8, cl. 3. Although the language of that Clause speaks only of Congress' power over commerce, "the Court long has recognized that it also limits the power of the States to erect barriers against interstate trade." Lewis v. BT Investment Managers, Inc., .6 Respondents argue, as the court below held, that the Commerce Clause merely allocates power between the Federal and State Governments, and does not confer "rights." Brief for Respondents 14-17. There is no doubt that the Commerce Clause is a power-allocating provision, giving Congress preemptive authority over the regulation of interstate commerce. It is also clear, however, that the Commerce Clause does more than confer power on the Federal Government; it is also a substantive "restriction on permissible state regulation" of interstate commerce. Hughes v. Oklahoma, . The Commerce Clause "has long been recognized as a self-executing limitation on the power of the States to enact laws imposing substantial burdens on such commerce." South-Central Timber Development, Inc. v. Wunnicke, . In addition, individuals injured by state action that violates this aspect of the Commerce Clause may sue and obtain injunctive and declaratory relief. See, e.g., McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Dept. of Business Regulation of Fla., . Indeed, the trial court in the case before us awarded petitioner such relief, and respondents do not contest that decision. We have also recently held that taxpayers who are required to pay taxes before challenging a state tax that is subsequently determined to violate the Commerce Clause are entitled to retrospective relief "that will cure any unconstitutional discrimination against interstate commerce during the contested tax period." Id., at 51. This combined restriction on state power and entitlement to relief under the Commerce Clause amounts to a "right, privilege, or immunity" under the ordinary meaning of those terms.7 The Court has often described the Commerce Clause as conferring a "right" to engage in interstate trade free from restrictive state regulation. In Crutcher v. Kentucky, , in which the Court struck down a license requirement imposed on certain out-of-state companies, the Court stated: "To carry on interstate commerce is not a franchise or a privilege granted by the State; it is a right which every citizen of the United States is entitled to exercise under the Constitution and laws of the United States." Id., at 57. Similarly, Western Union Telegraph Co. v. Kansas ex rel. Coleman, , referred to "the substantial rights of those engaged in interstate commerce." And Garrity v. New Jersey, , declared that engaging in interstate commerce is a "righ[t] of constitutional stature." More recently, Boston Stock Exchange v. State Tax Comm'n, , held that regional stock exchanges had standing to challenge a tax on securities transactions as violating the Commerce Clause because, among other things, the exchanges were "asserting their right under the Commerce Clause to engage in interstate commerce free of discriminatory taxes on their business and they allege that the transfer tax indirectly infringes on that right." Id., at 320, n. 3.Last Term, in Golden State Transit Corp. v. Los Angeles, , we set forth three considerations for determining whether a federal statute confers a "right" within the meaning of 1983:"In deciding whether a federal right has been violated, we have considered 1. whether the provision in question creates obligations binding on the governmental unit, or rather "does no more than express a congressional preference for certain kinds of treatment." Pennhurst State School and Hospital v. Halderman, . 2. The interest the plaintiff asserts must not be `too vague and amorphous' to be `beyond the competence of the judiciary to enforce.' Wright v. Roanoke Redevelopment and Housing Authority, . 3. We have also asked whether the provision in question was `intend[ed] to benefit' the putative plaintiff. Id., at 430; see also id., at 433 (O'CONNOR, J., dissenting) (citing Cort v. Ash, ). Id., at 106. See also Wilder v. Virginia Hospital Assn., . Respondents do not dispute that the first two considerations weigh in favor of recognition of a right here, but seize upon the third consideration - intent to benefit the plaintiff - arguing that the Commerce Clause does not confer rights within the meaning of 1983 because it was not designed to benefit individuals, but rather was designed to promote national economic and political union. Brief for Respondents 19-24.This argument, however, was implicitly rejected in Boston Stock Exchange, supra, at 321, n. 3, where we found that the plaintiffs were arguably within the "zone of interests" protected by the Commerce Clause. Moreover, the Court's repeated references to "rights" under the Commerce Clause constitute a recognition that the Clause was intended to benefit those who, like petitioner, are engaged in interstate commerce. The "[c]onstitutional protection against burdens on commerce is for [their] benefit... ." Morgan v. Virginia, . As Justice Jackson, writing for the Court, eloquently explained: "Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation, that no home embargoes will withhold his exports, and no foreign state will, by customs duties or regulations, exclude them. Likewise, every consumer may look to the free competition from every producing area in the Nation to protect him from exploitation by any. Such was the vision of the Founders; such has been the doctrine of this Court which has given it reality. H. P. Hood & Sons, Inc. v. Du Mond, . Respondents attempt to analogize the Commerce Clause to the Supremacy Clause, Brief for Respondents 17-18, which we have held does not, by itself, confer any "rights, privileges, or immunities" within the meaning of 1983. See Golden State, supra, at 106; Chapman, 441 U.S., at 613. The Supremacy Clause, however, is "not a source of any federal rights"; rather, it "`secure[s]' federal rights by according them priority whenever they come in conflict with state law." Ibid. By contrast, the Commerce Clause, of its own force, imposes limitations on state regulation of commerce, and is the source of a right of action in those injured by regulations that exceed such limitations.8 Respondents also argue that the protection from interference with trade conferred by the Commerce Clause cannot be a "right," because it is subject to qualification or elimination by Congress. Brief for Respondents 21. That argument proves too much, however, because federal statutory rights may also be altered or eliminated by Congress. Until Congress does so, such rights operate as "a guarantee of freedom for private conduct that the State may not abridge." Golden State, supra, at 112. The same is true of the Commerce Clause.9 IIIWe conclude that the Supreme Court of Nebraska erred in holding that petitioner's Commerce Clause claim could not be brought under 42 U.S.C. 1983. The judgment of the Supreme Court of Nebraska is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered.

Petitioner, a membership corporation with "a special interest in the conservation and sound maintenance of the national parks, game refuges, and forests of the country," brought this suit for a declaratory judgment and an injunction to restrain federal officials from approving an extensive skiing development in the Mineral King Valley in the Sequoia National Forest. Petitioner relies on 10 of the Administrative Procedure Act, which accords judicial review to a "person suffering legal wrong because of agency action, or [who is] adversely affected or aggrieved by agency action within the meaning of a relevant statute." On the theory that this was a "public" action involving questions as to the use of natural resources, petitioner did not allege that the challenged development would affect the club or its members in their activities or that they used Mineral King, but maintained that the project would adversely change the area's aesthetics and ecology. The District Court granted a preliminary injunction. The Court of Appeals reversed, holding that the club lacked standing, and had not shown irreparable injury. Held: A person has standing to seek judicial review under the Administrative Procedure Act only if he can show that he himself has suffered or will suffer injury, whether economic or otherwise. In this case, where petitioner asserted no individualized harm to itself or its members, it lacked standing to maintain the action. Pp. 731-741. 433 F.2d 24, affirmed.STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and WHITE and MARSHALL, JJ., joined. DOUGLAS, J., post, p. 741, BRENNAN, J., post, p. 755, and BLACKMUN, J., post, p. 755, filed dissenting opinions. POWELL and REHNQUIST, JJ., took no part in the consideration or decision of the case.Leland R. Selna, Jr., argued the cause for petitioner. With him on the briefs was Matthew P. Mitchell. Solicitor General Griswold argued the cause for respondents. With him on the brief were Assistant Attorney General Kashiwa, Deputy Assistant Attorney General Kiechel, William Terry Bray, Edmund B. Clark, and Jacques B. Gelin.Briefs of amici curiae urging reversal were filed by Anthony A. Lapham and Edward Lee Rogers for the Environmental Defense Fund; by George J. Alexander and Marcel B. Poche for the National Environmental Law Society; and by Bruce J. Terris and James W. Moorman for the Wilderness Society et al.Briefs of amici curiae urging affirmance were filed by E. Lewis Reid and Calvin E. Baldwin for the County of Tulare; by Robert C. Keck for the American National Cattlemen's Assn. et al.; and by Donald R. Allen for the Far West Ski Assn. et al.MR. JUSTICE STEWART delivered the opinion of the Court.IThe Mineral King Valley is an area of great natural beauty nestled in the Sierra Nevada Mountains in Tulare County, California, adjacent to Sequoia National Park. It has been part of the Sequoia National Forest since 1926, and is designated as a national game refuge by special Act of Congress.1 Though once the site of extensive mining activity, Mineral King is now used almost exclusively for recreational purposes. Its relative inaccessibility and lack of development have limited the number of visitors each year, and at the same time have preserved the valley's quality as a quasiwilderness area largely uncluttered by the products of civilization. The United States Forest Service, which is entrusted with the maintenance and administration of national forests, began in the late 1940's to give consideration to Mineral King as a potential site for recreational development. Prodded by a rapidly increasing demand for skiing facilities, the Forest Service published a prospectus in 1965, inviting bids from private developers for the construction and operation of a ski resort that would also serve as a summer recreation area. The proposal of Walt Disney Enterprises, Inc., was chosen from those of six bidders, and Disney received a three-year permit to conduct surveys and explorations in the valley in connection with its preparation of a complete master plan for the resort.The final Disney plan, approved by the Forest Service in January 1969, outlines a $35 million complex of motels, restaurants, swimming pools, parking lots, and other structures designed to accommodate 14,000 visitors daily. This complex is to be constructed on 80 acres of the valley floor under a 30-year use permit from the Forest Service. Other facilities, including ski lifts, ski trails, a cog-assisted railway, and utility installations, are to be constructed on the mountain slopes and in other parts of the valley under a revocable special-use permit. To provide access to the resort, the State of California proposes to construct a highway 20 miles in length. A section of this road would traverse Sequoia National Park, as would a proposed high-voltage power line needed to provide electricity for the resort. Both the highway and the power line require the approval of the Department of the Interior, which is entrusted with the preservation and maintenance of the national parks.Representatives of the Sierra Club, who favor maintaining Mineral King largely in its present state, followed the progress of recreational planning for the valley with close attention and increasing dismay. They unsuccessfully sought a public hearing on the proposed development in 1965, and in subsequent correspondence with officials of the Forest Service and the Department of the Interior, they expressed the Club's objections to Disney's plan as a whole and to particular features included in it. In June 1969 the Club filed the present suit in the United States District Court for the Northern District of California, seeking a declaratory judgment that various aspects of the proposed development contravene federal laws and regulations governing the preservation of national parks, forests, and game refuges,2 and also seeking preliminary and permanent injunctions restraining the federal officials involved from granting their approval or issuing permits in connection with the Mineral King project. The petitioner Sierra Club sued as a membership corporation with "a special interest in the conservation and the sound maintenance of the national parks, game refuges and forests of the country," and invoked the judicial-review provisions of the Administrative Procedure Act, 5 U.S.C. 701 et seq. After two days of hearings, the District Court granted the requested preliminary injunction. It rejected the respondents' challenge to the Sierra Club's standing to sue, and determined that the hearing had raised questions "concerning possible excess of statutory authority, sufficiently substantial and serious to justify a preliminary injunction ... ." The respondents appealed, and the Court of Appeals for the Ninth Circuit reversed. 433 F.2d 24. With respect to the petitioner's standing, the court noted that there was "no allegation in the complaint that members of the Sierra Club would be affected by the actions of [the respondents] other than the fact that the actions are personally displeasing or distasteful to them," id., at 33, and concluded: "We do not believe such club concern without a showing of more direct interest can constitute standing in the legal sense sufficient to challenge the exercise of responsibilities on behalf of all the citizens by two cabinet level officials of the government acting under Congressional and Constitutional authority." Id., at 30. Alternatively, the Court of Appeals held that the Sierra Club had not made an adequate showing of irreparable injury and likelihood of success on the merits to justify issuance of a preliminary injunction. The court thus vacated the injunction. The Sierra Club filed a petition for a writ of certiorari which we granted, , to review the questions of federal law presented.IIThe first question presented is whether the Sierra Club has alleged facts that entitle it to obtain judicial review of the challenged action. Whether a party has a sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy is what has traditionally been referred to as the question of standing to sue. Where the party does not rely on any specific statute authorizing invocation of the judicial process, the question of standing depends upon whether the party has alleged such a "personal stake in the outcome of the controversy," Baker v. Carr, , as to ensure that "the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution." Flast v. Cohen, . Where, however, Congress has authorized public officials to perform certain functions according to law, and has provided by statute for judicial review of those actions under certain circumstances, the inquiry as to standing must begin with a determination of whether the statute in question authorizes review at the behest of the plaintiff.3 The Sierra Club relies upon 10 of the Administrative Procedure Act (APA), 5 U.S.C. 702, which provides: "A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." Early decisions under this statute interpreted the language as adopting the various formulations of "legal interest" and "legal wrong" then prevailing as constitutional requirements of standing.4 But, in Data Processing Service v. Camp, , and Barlow v. Collins, , decided the same day, we held more broadly that persons had standing to obtain judicial review of federal agency action under 10 of the APA where they had alleged that the challenged action had caused them "injury in fact," and where the alleged injury was to an interest "arguably within the zone of interests to be protected or regulated" by the statutes that the agencies were claimed to have violated.5 In Data Processing, the injury claimed by the petitioners consisted of harm to their competitive position in the computer-servicing market through a ruling by the Comptroller of the Currency that national banks might perform data-processing services for their customers. In Barlow, the petitioners were tenant farmers who claimed that certain regulations of the Secretary of Agriculture adversely affected their economic position vis-a-vis their landlords. These palpable economic injuries have long been recognized as sufficient to lay the basis for standing, with or without a specific statutory provision for judicial review.6 Thus, neither Data Processing nor Barlow addressed itself to the question, which has arisen with increasing frequency in federal courts in recent years, as to what must be alleged by persons who claim injury of a noneconomic nature to interests that are widely shared.7 That question is presented in this case.IIIThe injury alleged by the Sierra Club will be incurred entirely by reason of the change in the uses to which Mineral King will be put, and the attendant change in the aesthetics and ecology of the area. Thus, in referring to the road to be built through Sequoia National Park, the complaint alleged that the development "would destroy or otherwise adversely affect the scenery, natural and historic objects and wildlife of the park and would impair the enjoyment of the park for future generations." We do not question that this type of harm may amount to an "injury in fact" sufficient to lay the basis for standing under 10 of the APA. Aesthetic and environmental well-being, like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process. But the "injury in fact" test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.The impact of the proposed changes in the environment of Mineral King will not fall indiscriminately upon every citizen. The alleged injury will be felt directly only by those who use Mineral King and Sequoia National Park, and for whom the aesthetic and recreational values of the area will be lessened by the highway and ski resort. The Sierra Club failed to allege that it or its members would be affected in any of their activities or pastimes by the Disney development. Nowhere in the pleadings or affidavits did the Club state that its members use Mineral King for any purpose, much less that they use it in any way that would be significantly affected by the proposed actions of the respondents.8 The Club apparently regarded any allegations of individualized injury as superfluous, on the theory that this was a "public" action involving questions as to the use of natural resources, and that the Club's longstanding concern with and expertise in such matters were sufficient to give it standing as a "representative of the public".9 This theory reflects a misunderstanding of our cases involving so-called "public actions" in the area of administrative law.The origin of the theory advanced by the Sierra Club may be traced to a dictum in Scripps-Howard Radio v. FCC, , in which the licensee of a radio station in Cincinnati, Ohio, sought a stay of an order of the FCC allowing another radio station in a nearby city to change its frequency and increase its range. In discussing its power to grant a stay, the Court noted that "these private litigants have standing only as representatives of the public interest." Id., at 14. But that observation did not describe the basis upon which the appellant was allowed to obtain judicial review as a "person aggrieved" within the meaning of the statute involved in that case,10 since Scripps-Howard was clearly "aggrieved" by reason of the economic injury that it would suffer as a result of the Commission's action.11 The Court's statement was, rather, directed to the theory upon which Congress had authorized judicial review of the Commission's actions. That theory had been described earlier in FCC v. Sanders Bros. Radio Station, , as follows: "Congress had some purpose in enacting 402 (b) (2). It may have been of opinion that one likely to be financially injured by the issue of a license would be the only person having a sufficient interest to bring to the attention of the appellate court errors of law in the action of the Commission in granting the license. It is within the power of Congress to confer such standing to prosecute an appeal." Taken together, Sanders and Scripps-Howard thus established a dual proposition: the fact of economic injury is what gives a person standing to seek judicial review under the statute, but once review is properly invoked, that person may argue the public interest in support of his claim that the agency has failed to comply with its statutory mandate.12 It was in the latter sense that the "standing" of the appellant in Scripps-Howard existed only as a "representative of the public interest." It is in a similar sense that we have used the phrase "private attorney general" to describe the function performed by persons upon whom Congress has conferred the right to seek judicial review of agency action. See Data Processing, supra, at 154.The trend of cases arising under the APA and other statutes authorizing judicial review of federal agency action has been toward recognizing that injuries other than economic harm are sufficient to bring a person within the meaning of the statutory language, and toward discarding the notion that an injury that is widely shared is ipso facto not an injury sufficient to provide the basis for judicial review.13 We noted this development with approval in Data Processing, 397 U.S., at 154, in saying that the interest alleged to have been injured "may reflect `aesthetic, conservational, and recreational' as well as economic values." But broadening the categories of injury that may be alleged in support of standing is a different matter from abandoning the requirement that the party seeking review must himself have suffered an injury.Some courts have indicated a willingness to take this latter step by conferring standing upon organizations that have demonstrated "an organizational interest in the problem" of environmental or consumer protection. Environmental Defense Fund v. HardinApp. D.C. 391, 395, 428 F.2d 1093, 1097.14 It is clear that an organization whose members are injured may represent those members in a proceeding for judicial review. See, e. g., NAACP v. Button, . But a mere "interest in a problem," no matter how longstanding the interest and no matter how qualified the organization is in evaluating the problem, is not sufficient by itself to render the organization "adversely affected" or "aggrieved" within the meaning of the APA. The Sierra Club is a large and long-established organization, with a historic commitment to the cause of protecting our Nation's natural heritage from man's depredations. But if a "special interest" in this subject were enough to entitle the Sierra Club to commence this litigation, there would appear to be no objective basis upon which to disallow a suit by any other bona fide "special interest" organization, however small or short-lived. And if any group with a bona fide "special interest" could initiate such litigation, it is difficult to perceive why any individual citizen with the same bona fide special interest would not also be entitled to do so.The requirement that a party seeking review must allege facts showing that he is himself adversely affected does not insulate executive action from judicial review, nor does it prevent any public interests from being protected through the judicial process.15 It does serve as at least a rough attempt to put the decision as to whether review will be sought in the hands of those who have a direct stake in the outcome. That goal would be undermined were we to construe the APA to authorize judicial review at the behest of organizations or individuals who seek to do no more than vindicate their own value preferences through the judicial process.16 The principle that the Sierra Club would have us establish in this case would do just that. As we conclude that the Court of Appeals was correct in its holding that the Sierra Club lacked standing to maintain this action, we do not reach any other questions presented in the petition, and we intimate no view on the merits of the complaint. The judgment is Affirmed.MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.

After respondent, a former officer, director, and loan officer of petitioner Great American Federal Savings and Loan Association (Association) received a right-to-sue letter upon filing a complaint with the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act of 1964, he brought this suit against the Association and its directors in Federal District Court, alleging that the Association had intentionally embarked upon a course of conduct the effect of which was to deny to female employees equal employment opportunity; that when respondent expressed support for the female employees at a meeting of the board of directors, his connection with the Association abruptly ended; and that his support for the female employees was the cause of the termination of his employment. Respondent claimed damages under 42 U.S.C. 1985 (3) (1976 ed., Supp. II), contending that he had been injured as the result of a conspiracy to deprive him of equal protection of, and equal privileges and immunities under, the laws. Section 1985 (3) provides, inter alia, that a person so injured may have an action for damages against any one or more of the conspirators. The District Court granted petitioners' motion to dismiss, holding that 1985 (3) could not be invoked because the directors of a single corporation cannot, as a matter of law and fact, engage in a conspiracy. The Court of Appeals reversed, holding that conspiracies motivated by an invidious animus against women fall within 1985 (3), and that respondent, a male allegedly injured as a result of such a conspiracy, has standing to bring suit under that provision. The court further ruled that Title VII can be the source of a right asserted in a 1985 (3) action, and that intracorporate conspiracies come within the intendment of the section.Held: Section 1985 (3) may not be invoked to redress violations of Title VII. It creates no substantive rights itself but is a purely remedial statute, providing a civil cause of action when some otherwise defined federal right - to equal protection of the laws or equal privileges and immunities under the laws - is breached by a conspiracy in the manner defined by the section. Thus, the question in this case is whether rights created by Title VII - respondent alleged that he was injured by a conspiracy to violate 704 (a) of Title VII, which makes it an unlawful employment practice for an employer to discriminate against an employee because he has opposed any employment practice made unlawful by Title VII or because he has participated in an investigation or proceeding under Title VII - may be asserted within the remedial framework of 1985 (3). If a violation of Title VII could be asserted through 1985 (3), a complainant could avoid most if not all of the detailed and specific provisions of Title VII, which provides a comprehensive plan of administrative and judicial process designed to provide an opportunity for nonjudicial and nonadversary resolution of claims. Perhaps most importantly, the complainant could completely bypass the administrative process, which plays such a crucial role in the scheme established by Congress in Title VII. Unimpaired effectiveness can be given to the plan of Title VII only by holding that deprivation of a right created by Title VII cannot be the basis for a cause of action under 1985 (3). Cf. Brown v. GSA, . Pp. 370-378. 584 F.2d 1235, vacated and remanded.STEWART, J., delivered the opinion of the Court, in which BURGER, C. J., and BLACKMUN, POWELL, REHNQUIST, and STEVENS, JJ., joined. POWELL, J., post, p. 378, and STEVENS, J., post, p. 381, filed concurring opinions. WHITE, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 385.Eugene K. Connors argued the cause for petitioners. With him on the briefs was Walter G. Bleil.Stanley M. Stein argued the cause and filed a brief for respondent.Deputy Solicitor General Wallace argued the cause for the United States et al. as amici curiae urging affirmance. On the brief were Solicitor General McCree, Assistant Attorney General Days, Louis F. Claiborne, Walter W. Barnett, Mildred M. Matesich, Lutz Alexander Prager, and Paul E. Mirengoff.* [Footnote *] Avrum M. Goldberg, William R. Weissman, Robert E. Williams, and Douglas S. McDowell filed a brief for the Equal Employment Advisory Council as amicus curiae urging reversal.Isabelle Katz Pinzler filed a brief for the American Civil Liberties Union et al. as amici curiae urging affirmance. MR. JUSTICE STEWART delivered the opinion of the Court.More than a century after their passage, the Civil Rights Acts of the Reconstruction Era continue to present difficult problems of statutory construction. Cf. Chapman v. Houston Welfare Rights Org., . In the case now before us, we consider the scope of 42 U.S.C. 1985 (3) (1976 ed., Supp. II), the surviving version of 2 of the Civil Rights Act of 1871.1 IThe respondent, John R. Novotny, began his career with the Great American Federal Savings and Loan Association (hereinafter Association) in Allegheny County, Pa., in 1950. By 1975, he was secretary of the Association, a member of its board of directors, and a loan officer. According to the allegations of the complaint in this case the Association "intentionally and deliberately embarked upon and pursued a course of conduct the effect of which was to deny to female employees equal employment opportunity ... ." When Novotny expressed support for the female employees at a meeting of the board of directors, his connection with the Association abruptly ended. He was not re-elected as secretary; he was not re-elected to the board; and he was fired. His support for the Association's female employees, he alleges, was the cause of the termination of his employment.Novotny filed a complaint with the Equal Employment Opportunity Commission under Title VII of the Civil Rights Act of 1964.2 After receiving a right-to-sue letter,3 he brought this lawsuit against the Association and its directors in the District Court for the Western District of Pennsylvania. He claimed damages under 42 U.S.C. 1985 (3) (1976 ed., Supp. II), contending that he had been injured as the result of a conspiracy to deprive him of equal protection of and equal privileges and immunities under the laws.4 The District Court granted the defendants' motion to dismiss. It held that 1985 (3) could not be invoked because the directors of a single corporation could not, as a matter of law and fact, engage in a conspiracy. 430 F. Supp. 227, 230.5 Novotny appealed. After oral argument before a three-judge panel, the case was reargued before the en banc Court of Appeals for the Third Circuit, which unanimously reversed the District Court's judgment. 584 F.2d 1235. The Court of Appeals ruled that Novotny had stated a cause of action under 1985 (3). It held that conspiracies motivated by an invidious animus against women fall within 1985 (3), and that Novotny, a male allegedly injured as a result of such a conspiracy, had standing to bring suit under that statutory provision. It ruled that Title VII could be the source of a right asserted in an action under 1985 (3), and that intracorporate conspiracies come within the intendment of the section. Finally, the court concluded that its construction of 1985 (3) did not present any serious constitutional problem.6 We granted certiorari, , to consider the applicability of 1985 (3) to the facts alleged in Novotny's complaint.IIThe legislative history of 2 of the Civil Rights Act of 1871, of which 1985 (3) was originally a part, has been reviewed many times in this Court.7 The section as first enacted authorized both criminal and civil actions against those who have conspired to deprive others of federally guaranteed rights. Before the 19th century ended, however, the Court found the criminal provisions of the statute unconstitutional because they exceeded the scope of congressional power, United States v. Harris, ; Baldwin v. Franks, , and the provisions thus invalidated were later formally repealed by Congress. The civil action provided by the Act remained, but for many years was rarely, if ever, invoked.The provisions of what is now 1985 (3) were not fully considered by this Court until 1951, in the case of Collins v. Hardyman, .8 There the Court concluded that the section protected citizens only from injuries caused by conspiracies "under color of state law."9 Twenty years later, in Griffin v. Breckenridge, , the Court unanimously concluded that the Collins Court had accorded to the provisions of 1985 (3) too narrow a scope.10 The fears concerning congressional power that had motivated the Court in the Collins case had been dissolved by intervening cases. See Griffin v. Breckenridge, supra, at 96-97, 104-106. Therefore, the Court found that 1985 (3) did provide a cause of action for damages caused by purely private conspiracies.The Court's opinion in Griffin discerned the following criteria for measuring whether a complaint states a cause of action under 1985 (3): "To come within the legislation a complaint must allege that the defendants did (1) `conspire or go in disguise on the highway or on the premises of another' (2) `for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws.' It must then assert that one or more of the conspirators (3) did, or caused to be done, `any act in furtherance of the object of [the] conspiracy,' whereby another was (4a) `injured in his person or property' or (4b) `deprived of having and exercising any right or privilege of a citizen of the United States.'" 403 U.S., at 102-103. Section 1985 (3) provides no substantive rights itself; it merely provides a remedy for violation of the rights it designates. The primary question in the present case, therefore, is whether a person injured by a conspiracy to violate 704 (a) of Title VII of the Civil Rights Act of 1964 is deprived of "the equal protection of the laws, or of equal privileges and immunities under the laws" within the meaning of 1985 (3).11 Under Title VII, cases of alleged employment discrimination are subject to a detailed administrative and judicial process designed to provide an opportunity for nonjudicial and nonadversary resolution of claims. As the Court explained in Alexander v. Gardner-Denver Co., : "Congress enacted Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., to assure equality of employment opportunities by eliminating those practices and devices that discriminate on the basis of race, color, religion, sex, or national origin ... . Cooperation and voluntary compliance were selected as the preferred means for achieving this goal. To this end, Congress created the Equal Employment Opportunity Commission and established a procedure whereby existing state and local employment opportunity agencies, as well as the Commission, would have an opportunity to settle disputes through conference, conciliation, and persuasion before the aggrieved party was permitted to file a lawsuit." As part of its comprehensive plan, Congress provided that a complainant in a State or locality with a fair employment commission must first go to that commission with his claim. Alternatively, an employee who believes himself aggrieved must first file a charge with the federal Equal Employment Opportunity Commission.12 The time limitations for administrative and judicial filing are controlled by express provisions of the statute.13 At several different points, the statutory plan prevents immediate filing of judicial proceedings in order to encourage voluntary conciliation.14 The EEOC has the power to investigate and to prosecute a civil action in a complainant's case.15 The Act provides for injunctive relief, specifically including backpay relief.16 The majority of the federal courts have held that the Act does not allow a court to award general or punitive damages.17 The Act expressly allows the prevailing party to recover his attorney's fees, and, in some cases, provides that a district court may appoint counsel for a plaintiff.18 Because the Act expressly authorizes only equitable remedies, the courts have consistently held that neither party has a right to a jury trial.19 If a violation of Title VII could be asserted through 1985 (3), a complainant could avoid most if not all of these detailed and specific provisions of the law. Section 1985 (3) expressly authorizes compensatory damages; punitive damages might well follow. The plaintiff or defendant might demand a jury trial. The short and precise time limitations of Title VII would be grossly altered.20 Perhaps most importantly, the complainant could completely bypass the administrative process, which plays such a crucial role in the scheme established by Congress in Title VII.The problem in this case is closely akin to that in Brown v. GSA, . There, we held that 717 of Title VII provides the exclusive remedy for employment discrimination claims of those federal employees that it covers. Our conclusion was based on the proposition that"[t]he balance, completeness, and structural integrity of 717 are inconsistent with the petitioner's contention that the judicial remedy afforded by 717 (c) was designed merely to supplement other putative judicial relief." 425 U.S., at 832. Here, the case is even more compelling. In Brown, the Court concluded that 717 displaced other causes of action arguably available to assert substantive rights similar to those granted by 717. Section 1985 (3), by contrast, creates no rights. It is a purely remedial statute, providing a civil cause of action when some otherwise defined federal right - to equal protection of the laws or equal privileges and immunities under the laws - is breached by a conspiracy in the manner defined by the section. Thus, we are not faced in this case with a question of implied repeal. The right Novotny claims under 704 (a) did not even arguably exist before the passage of Title VII. The only question here, therefore, is whether the rights created by Title VII may be asserted within the remedial framework of 1985 (3).This case thus differs markedly from the cases recently decided by this Court that have related the substantive provisions of last century's Civil Rights Acts to contemporary legislation conferring similar substantive rights. In those cases we have held that substantive rights conferred in the 19th century were not withdrawn, sub silentio, by the subsequent passage of the modern statutes. Thus, in Jones v. Alfred H. Mayer Co., , we considered the effect of the fair housing provisions of the Civil Rights Act of 1968 on the property rights guaranteed by the Civil Rights Act of 1866, now codified at 42 U.S.C. 1982. And in Johnson v. Railway Express Agency, , we held that the passage of Title VII did not work an implied repeal of the substantive rights to contract conferred by the same 19th-century statute and now codified at 42 U.S.C. 1981. See also Sullivan v. Little Hunting Park, ; Runyon v. McCrary, .21 Somewhat similarly, in Alexander v. Gardner-Denver Co., , the Court upheld an employee's invocation of two alternative remedies for alleged employment discrimination: arbitration under a collective-bargaining agreement, and litigation under Title VII. As the Court pointed out: "In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress. The distinctly separate nature of these contractual and statutory rights is not vitiated merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums." Id., at 49-50. This case, by contrast, does not involve two "independent" rights, and for the same basic reasons that underlay the Court's decision in Brown v. GSA, supra, reinforced by the other considerations discussed in this opinion, we conclude that 1985 (3) may not be invoked to redress violations of Title VII. It is true that a 1985 (3) remedy would not be coextensive with Title VII, since a plaintiff in an action under 1985 (3) must prove both a conspiracy and a group animus that Title VII does not require. While this incomplete congruity would limit the damage that would be done to Title VII, it would not eliminate it. Unimpaired effectiveness can be given to the plan put together by Congress in Title VII only by holding that deprivation of a right created by Title VII cannot be the basis for a cause of action under 1985 (3).Accordingly, the judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered.

Petitioner was arrested for murder on December 6, 1963, and held incommunicado by police officers for 30 to 48 hours, during which they sought and finally obtained his confession. Three requests by petitioner to communicate with the outside world, numerous attempts by his lawyers to communicate with him or the officer in charge of him, and the issuance of a writ of habeas corpus by a state court judge were unavailing. The trial judge found that it was "routine procedure" for investigating officers not to be disturbed during an investigation. While thus held, petitioner was subjected by officers to questioning. Although the trial judge excluded from evidence an oral confession given on December 7 after petitioner had "either faint[ed] or pretend[ed] to faint," and a written confession made shortly thereafter, the judge admitted a written confession given the next day, December 8, and evidence as to a partial re-enactment of the crime. During that re-enactment, as he had done intermittently while in custody, petitioner disclaimed guilt. Petitioner was convicted and the State Supreme Court affirmed. Held: In view of the "totality of the circumstances" and the absence of any "break in the stream of events" insulating the final events "from the effect of all that went before" (Clewis v. Texas, , 710), the trial judge erred in holding the December 8 confession and partial re-enactment voluntary. Certiorari granted; 155 Conn. 124, 230 A. 2d 573, reversed and remanded.John F. Shea, Jr., for petitioner.Joel H. Reed II and Etalo G. Gnutti for respondent.PER CURIAM.Petitioner was convicted of second degree murder and sentenced to life imprisonment. The Connecticut Supreme Court affirmed the judgment. 155 Conn. 124, 230 A. 2d 573 (1967). Petitioner seeks a writ of certiorari from this Court. We grant the writ and reverse.On Friday, December 6, 1963, petitioner was arrested on a coroner's warrant charging him with murder. During that entire day until 9 p. m. petitioner was subjected to questioning. Sometime that evening, the officer in charge brought in a revolving disc and sought to persuade petitioner to look at it and "relax." The trial judge said that "[the officer] was not completely unaware that this was a common hypnotic device." The wheel turned for about half an hour, but petitioner refused to look at it.The next morning the questioning resumed and continued intermittently until about 4 p. m. when petitioner fell forward, according to the trial judge, "either fainting or pretending to faint." He was revived and then confessed to the murder, as hereinafter described, in response to questioning by the officer in charge.During the entire period petitioner was in custody, his counsel had been making determined but unsuccessful efforts to contact him or the officer in charge of him. On Friday, December 6, there were 19 phone calls to various police offices, including nine to the one at which petitioner was held. On Saturday, there were five calls, and on Sunday, there was one.On Friday, there was a personal visit by one of the lawyers to the police barracks in Stafford Springs where petitioner had been taken that morning. But at about the same time that counsel arrived, the officer in charge took petitioner from the barracks and drove him around, apparently to protect him from what the officer thought were newspapermen.1 Counsel made four visits to various barracks on Saturday. Each of these attempts was met with disclaimers of knowledge of the whereabouts of either petitioner or of the officer in charge. The trial judge found that it was "routine procedure" for investigating officers not to be disturbed during an investigation. At about 1 or 1:30 p. m. Saturday, at counsel's request, a superior court judge issued a writ of habeas corpus. A deputy sheriff was instructed to serve the writ upon the officer in charge of petitioner and upon the coroner within half an hour. The sheriff could not locate the officer or the coroner, although the purpose of this inquiry was stated to the communications officer at the Hartford barracks. On Sunday, the sheriff called the Stafford Springs barracks in search of the officer and received a call informing him that the officer would be at the superior court at 2 p. m.2 Petitioner's first confession, made orally after the "fainting" incident on the afternoon of Saturday, December 7, the second day of arrest and interrogation, was excluded from evidence by the trial judge. The trial judge also excluded petitioner's written confession made shortly thereafter. The trial judge, however, admitted a subsequent written confession made on Sunday, December 8, and evidence as to a partial re-enactment of the crime which petitioner staged on that day at the request of the police. During the course of this partial re-enactment, petitioner, as he had done intermittently during his custody, denied that he committed the crime. The Connecticut Supreme Court affirmed. Since the trial in this case began before the decisions of this Court in Escobedo v. Illinois, , and Miranda v. Arizona, , these cases are not controlling. Johnson v. New Jersey, . But they are relevant on the issue of voluntariness. Davis v. North Carolina, . In the present case, petitioner's lawyers made numerous attempts to communicate with petitioner or with the officer in charge. (Cf. Escobedo v. Illinois, supra, Miranda v. Arizona, supra, at 465, n. 35.) A writ of habeas corpus issued by a state judge at the request of petitioner's counsel was fruitless; and petitioner on three separate occasions sought and was denied permission to communicate with the outside world.The inference is inescapable that the officers kept petitioner incommunicado for the 30 to 48 hours during which they sought and finally obtained his confession. See Davis v. North Carolina, supra, at 745-746; Haynes v. Washington, . Considering the "totality of the circumstances" (see Clewis v. Texas, ), we conclude that the court erred in holding that the confession and the partial re-enactment were voluntary. The denial of access to counsel and the outside world continued throughout, and there was "no break in the stream of events" from arrest throughout the concededly invalid confessions of Saturday, December 7, to the confession and re-enactment of Sunday, December 8, "sufficient to insulate" the final events "from the effect of all that went before." Clewis v. Texas, supra, at 710. See Beecher v. Alabama, , n. 2 (1967).Accordingly, the motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment below is reversed and the case remanded for further proceedings not inconsistent with our decision herein.MR. JUSTICE WHITE dissents.

[Footnote *] Together with No. 74-1222, Wolff, Warden v. Rice, on certiorari to the United States Court of Appeals for the Eighth Circuit. Respondent in No. 74-1055, was convicted of murder in state court, in part on the basis of testimony concerning a revolver found on his person when he was arrested for violating a vagrancy ordinance. The trial court rejected respondent's contention that the testimony should have been excluded because the ordinance was unconstitutional and the arrest therefore invalid. The appellate court affirmed, finding it unnecessary to pass upon the legality of the arrest and search because of the court's conclusion that the error, if any, in admitting the challenged testimony was harmless, beyond a reasonable doubt. Respondent then applied for habeas corpus relief in the Federal District Court, which concluded that the arresting officer had probable cause and that even if the vagrancy ordinance was unconstitutional the deterrent purpose of the exclusionary rule did not require that it be applied to bar admission of the fruits of a search incident to an otherwise valid arrest. The court held, alternatively, that any error in admission of the challenged evidence was harmless. The Court of Appeals reversed, concluding that the ordinance was unconstitutional; that respondent's arrest was therefore illegal; and that, although exclusion of the evidence would serve no deterrent purpose with regard to officers who were enforcing statutes in good faith, exclusion would deter legislators from enacting unconstitutional statutes. The court also held that admission of the evidence was not harmless error. In No. 74-1222, respondent was also convicted of murder in a state court, in part on the basis of evidence seized pursuant to a search warrant which respondent on a suppression motion claimed was invalid. The trial court denied respondent's motion to suppress, and was upheld on appeal. Respondent then filed a habeas corpus petition in Federal District Court. The court concluded that the warrant was invalid, and rejected the State's contention that in any event probable cause justified the search. The Court of Appeals affirmed. Held: Where the State, as in each of these cases, has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained through an unconstitutional search and seizure was introduced at his trial. In this context the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal as compared to the substantial societal costs of applying the rule. Pp. 474-495. (a) Until these cases this Court has had no occasion fully to examine the validity of the assumption made in Kaufman v. United States, , that the effectuation of the Fourth Amendment, as applied to the States through the Fourteenth, requires the granting of habeas corpus relief when a prisoner has been convicted in state court on the basis of evidence obtained in an illegal search or seizure since those Amendments were held in Mapp v. Ohio, , to require exclusion of such evidence at trial and reversal of conviction upon direct review. Pp. 480-481. (b) The Mapp majority justified application of the exclusionary rule chiefly upon the belief that exclusion would deter future unlawful police conduct, and though preserving the integrity of the judicial process has been alluded to as also justifying the rule, that concern is minimal where federal habeas corpus relief is sought by a prisoner who has already been given the opportunity for full and fair consideration of his search-and-seizure claim at trial and on direct review. Pp. 484-486. (c) Despite the broad deterrent purpose of the exclusionary rule, it has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons; in various situations the Court has found the policies behind the rule outweighed by countervailing considerations. Pp. 486-489. (d) The ultimate question of guilt or innocence should be the central concern in a criminal proceeding. Application of the exclusionary rule, however, deflects the truthfinding process and often frees the guilty. Though the rule is thought to deter unlawful police activity, in part through nurturing respect for Fourth Amendment values, indiscriminate application of the rule may well generate disrespect for the law and the administration of justice. Pp. 489-491. (e) Despite the absence of supportive empirical evidence, the assumption has been that the exclusionary rule deters law enforcement officers from violating the Fourth Amendment by removing the incentives to disregard it. Though the Court adheres to that view as applied to the trial and direct-appeal stages, there is no reason to believe that the effect of applying the rule would be appreciably diminished if search-and-seizure claims could not be raised in federal habeas corpus review of state convictions. Even if some additional deterrent effect existed from application of the rule in isolated habeas corpus cases, the furtherance of Fourth Amendment goals would be outweighed by the detriment to the criminal justice system. Pp. 492-494. No. 74-1055, 507 F.2d 93; No. 74-1222, 513 F.2d 1280, reversed.POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. BURGER, C. J., filed a concurring opinion, post, p. 496. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 502. WHITE, J., filed a dissenting opinion, post, p. 536.Robert R. Granucci, Deputy Attorney General of California, argued the cause for petitioner in No. 74-1055. With him on the briefs were Evelle J. Younger, Attorney General, Jack R. Winkler, Chief Assistant Attorney General, Edward P. O'Brien, Assistant Attorney General, and Clifford K. Thompson, Jr., Thomas A. Brady, and Ronald E. Niver, Deputy Attorneys General. Melvin Kent Kammerlohr, Assistant Attorney General of Nebraska, argued the cause for petitioner in No. 74-1222. With him on the brief was Paul L. Douglas, Attorney General.Robert W. Peterson, by appointment of the Court, , argued the cause and filed a brief for respondent in No. 74-1055. William C. Cunningham argued the cause for respondent in No. 74-1222. With him on the brief was J. Patrick Green.Fn Fn Briefs of amici curiae urging reversal in No. 74-1222 were filed by Bruce E. Babbitt, Attorney General, Shirley H. Frondorf, and Frank T. Galati, Assistant Attorneys General, and William J. Schafer III, for the State of Arizona; by Arthur K. Bolton, Attorney General, Robert S. Stubbs II, Chief Deputy Attorney General, Richard L. Chambers, Deputy Attorney General, and G. Thomas Davis, Senior Assistant Attorney General, for the State of Georgia; by Theodore L. Sendak, Attorney General, and Donald P. Bogard, Assistant Attorney General, of Indiana, and Richard C. Turner, Attorney General of Iowa, for the States of Indiana and Iowa; and by Vernon B. Romney, Attorney General, and William W. Barrett, Assistant Attorney General, for the State of Utah.John J. Cleary filed a brief for the California Public Defenders Assn. as amicus curiae urging affirmance in No. 74-1055. Briefs of amici curiae urging affirmance in No. 74-1222 were filed by Mary M. Kaufman for the National Alliance Against Racist and Political Repression; by Henry W. McGee, Jr., for the National Conference of Black Lawyers; by Jonathan M. Hyman for the National Lawyers' Guild et al.; and by Theodore A. Gottfried and Robert E. Davison for the National Legal Aid and Defender Assn.Leon Friedman, Melvin L. Wulf, and Joel M. Gora filed a brief for the American Civil Liberties Union as amicus curiae in both cases. Briefs of amici curiae in No. 74-1222 were filed by Robert L. Shevin, Attorney General, and Stephen R. Koons, Assistant Attorney General, for the State of Florida; by William F. Hyland, Attorney General, David S. Baime, John DeCicco, and Daniel Louis Grossman, Deputy Attorneys General, for the State of New Jersey; by Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, and Lillian Z. Cohen, Assistant Attorney General, for the State of New York; and by Frank Carrington, Fred E. Inbau, Wayne W. Schmidt, James R. Thompson, and William K. Lambie for Americans for Effective Law Enforcement, Inc., et al. MR. JUSTICE POWELL delivered the opinion of the Court.Respondents in these cases were convicted of criminal offenses in state courts, and their convictions were affirmed on appeal. The prosecution in each case relied upon evidence obtained by searches and seizures alleged by respondents to have been unlawful. Each respondent subsequently sought relief in a Federal District Court by filing a petition for a writ of federal habeas corpus under 28 U.S.C. 2254. The question presented is whether a federal court should consider, in ruling on a petition for habeas corpus relief filed by a state prisoner, a claim that evidence obtained by an unconstitutional search or seizure was introduced at his trial, when he has previously been afforded an opportunity for full and fair litigation of his claim in the state courts. The issue is of considerable importance to the administration of criminal justice.IWe summarize first the relevant facts and procedural history of these cases.ARespondent Lloyd Powell was convicted of murder in June 1968 after trial in a California state court. At about midnight on February 17, 1968, he and three companions entered the Bonanza Liquor Store in San Bernardino, Cal., where Powell became involved in an altercation with Gerald Parsons, the store manager, over the theft of a bottle of wine. In the scuffling that followed Powell shot and killed Parsons' wife. Ten hours later an officer of the Henderson, Nev., Police Department arrested Powell for violation of the Henderson vagrancy ordinance,1 and in the search incident to the arrest discovered a .38-caliber revolver with six expended cartridges in the cylinder.Powell was extradited to California and convicted of second-degree murder in the Superior Court of San Bernardino County. Parsons and Powell's accomplices at the liquor store testified against him. A criminologist testified that the revolver found on Powell was the gun that killed Parsons' wife. The trial court rejected Powell's contention that testimony by the Henderson police officer as to the search and the discovery of the revolver should have been excluded because the vagrancy ordinance was unconstitutional. In October 1969, the conviction was affirmed by a California District Court of Appeal. Although the issue was duly presented, that court found it unnecessary to pass upon the legality of the arrest and search because it concluded that the error, if any, in admitting the testimony of the Henderson officer was harmless beyond a reasonable doubt under Chapman v. California, . The Supreme Court of California denied Powell's petition for habeas corpus relief.In August 1971 Powell filed an amended petition for a writ of federal habeas corpus under 28 U.S.C. 2254 in the United States District Court for the Northern District of California, contending that the testimony concerning the .38-caliber revolver should have been excluded as the fruit of an illegal search. He argued that his arrest had been unlawful because the Henderson vagrancy ordinance was unconstitutionally vague, and that the arresting officer lacked probable cause to believe that he was violating it. The District Court concluded that the arresting officer lacked probable cause and held that even if the vagrancy ordinance was unconstitutional, the deterrent purpose of the exclusionary rule does not require that it be applied to bar admission of the fruits of a search incident to an otherwise valid arrest. In the alternative, that court agreed with the California District Court of Appeal that the admission of the evidence concerning Powell's arrest, if error, was harmless beyond a reasonable doubt.In December 1974, the Court of Appeals for the Ninth Circuit reversed. 507 F.2d 93. The court concluded that the vagrancy ordinance was unconstitutionally vague,2 that Powell's arrest was therefore illegal, and that although exclusion of the evidence would serve no deterrent purpose with regard to police officers who were enforcing statutes in good faith, exclusion would serve the public interest by deterring legislators from enacting unconstitutional statutes. Id., at 98. After an independent review of the evidence the court concluded that the admission of the evidence was not harmless error since it supported the testimony of Parsons and Powell's accomplices. Id., at 99.BRespondent David Rice was convicted of murder in April 1971 after trial in a Nebraska state court. At 2:05 a. m. on August 17, 1970, Omaha police received a telephone call that a woman had been heard screaming at 2867 Ohio Street. As one of the officers sent to that address examined a suitcase lying in the doorway, it exploded, killing him instantly. By August 22 the investigation of the murder centered on Duane Peak, a 15-year-old member of the National Committee to Combat Fascism (NCCF), and that afternoon a warrant was issued for Peak's arrest. The investigation also focused on other known members of the NCCF, including Rice, some of whom were believed to be planning to kill Peak before he could incriminate them. In their search for Peak, the police went to Rice's home at 10:30 that night and found lights and a television on, but there was no response to their repeated knocking. While some officers remained to watch the premises, a warrant was obtained to search for explosives and illegal weapons believed to be in Rice's possession. Peak was not in the house, but upon entering the police discovered, in plain view, dynamite, blasting caps, and other materials useful in the construction of explosive devices. Peak subsequently was arrested, and on August 27, Rice voluntarily surrendered. The clothes Rice was wearing at that time were subjected to chemical analysis, disclosing dynamite particles.Rice was tried for first-degree murder in the District Court of Douglas County. At trial Peak admitted planting the suitcase and making the telephone call, and implicated Rice in the bombing plot. As corroborative evidence the State introduced items seized during the search, as well as the results of the chemical analysis of Rice's clothing. The court denied Rice's motion to suppress this evidence. On appeal the Supreme Court of Nebraska affirmed the conviction, holding that the search of Rice's home had been pursuant to a valid search warrant. State v. Rice, 188 Neb. 728, 199 N. W. 2d 480 (1972).In September 1972 Rice filed a petition for a writ of habeas corpus in the United States District Court for Nebraska. Rice's sole contention was that his incarceration was unlawful because the evidence underlying his conviction had been discovered as the result of an illegal search of his home. The District Court concluded that the search warrant was invalid, as the supporting affidavit was defective under Spinelli v. United States, , and Aguilar v. Texas, . 388 F. Supp. 185, 190-194 (1974).3 The court also rejected the State's contention that even if the warrant was invalid the search was justified because of the valid arrest warrant for Peak and because of the exigent circumstances of the situation - danger to Peak and search for bombs and explosives believed in possession of the NCCF. The court reasoned that the arrest warrant did not justify the entry as the police lacked probable cause to believe Peak was in the house, and further concluded that the circumstances were not sufficiently exigent to justify an immediate warrantless search. Id., at 194-202.4 The Court of Appeals for the Eighth Circuit affirmed, substantially for the reasons stated by the District Court. 513 F.2d 1280 (1975).Petitioners Stone and Wolff, the wardens of the respective state prisons where Powell and Rice are incarcerated, petitioned for review of these decisions, raising questions concerning the scope of federal habeas corpus and the role of the exclusionary rule upon collateral review of cases involving Fourth Amendment claims. We granted their petitions for certiorari. .5 We now reverse.IIThe authority of federal courts to issue to writ of habeas corpus ad subjiciendum6 was included in the first grant of federal-court jurisdiction, made by the Judiciary Act of 1789, c. 20, 14, 1 Stat. 81, with the limitation that the writ extend only to prisoners held in custody by the United States. The original statutory authorization did not define the substantive reach of the writ. It merely stated that the courts of the United States "shall have power to issue writs of ... habeas corpus ... ." Ibid. The courts defined the scope of the writ in accordance with the common law and limited it to an inquiry as to the jurisdiction of the sentencing tribunal. See, e. g., Ex parte Watkins, 3 Pet. 193 (1830) (Marshall, C. J.).In 1867 the writ was extended to state prisoners. Act of Feb. 5, 1867, c. 28, 1, 14 Stat. 385. Under the 1867 Act federal courts were authorized to give relief 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 ... ." But the limitation of federal habeas corpus jurisdiction to consideration of the jurisdiction of the sentencing court persisted. See, e. g., In re Wood, ; In re Rahrer, ; Andrews v. Swartz, ; Bergemann v. Backer, ; Pettibone v. Nichols, . And, although the concept of "jurisdiction" was subjected to considerable strain as the substantive scope of the writ was expanded,7 this expansion was limited to only a few classes of cases8 until Frank v. Mangum, , in 1915. In Frank, the prisoner had claimed in the state courts that the proceedings which resulted in his conviction for murder had been dominated by a mob. After the State Supreme Court rejected his contentions, Frank unsuccessfully sought habeas corpus relief in the Federal District Court. This Court affirmed the denial of relief because Frank's federal claims had been considered by a competent and unbiased state tribunal. The Court recognized, however, that if a habeas corpus court found that the State had failed to provide adequate "corrective process" for the full and fair litigation of federal claims, whether or not "jurisdictional," the court could inquire into the merits to determine whether a detention was lawful. Id., at 333-336.In the landmark decision in Brown v. Allen, , the scope of the writ was expanded still further.9 In that case and its companion case, Daniels v. Allen, state prisoners applied for federal habeas corpus relief claiming that the trial courts had erred in failing to quash their indictments due to alleged discrimination in the selection of grand jurors and in ruling certain confessions admissible. In Brown, the highest court of the State had rejected these claims on direct appeal, State v. Brown, 233 N.C. 202, 63 S. E. 2d 99, and this Court had denied certiorari, . Despite the apparent adequacy of the state corrective process, the Court reviewed the denial of the writ of habeas corpus and held that Brown was entitled to a full reconsideration of these constitutional claims, including, if appropriate, a hearing in the Federal District Court. In Daniels, however, the State Supreme Court on direct review had refused to consider the appeal because the papers were filed out of time. This Court held that since the state-court judgment rested on a reasonable application of the State's legitimate procedural rules, a ground that would have barred direct review of his federal claims by this Court, the District Court lacked authority to grant habeas corpus relief. See 344 U.S., at 458, 486.This final barrier to broad collateral re-examination of state criminal convictions in federal habeas corpus proceedings was removed in Fay v. Noia, .10 Noia and two codefendants had been convicted of felony murder. The sole evidence against each defendant was a signed confession. Noia's codefendants, but not Noia himself, appealed their convictions. Although their appeals were unsuccessful, in subsequent state proceedings they were able to establish that their confessions had been coerced and their convictions therefore procured in violation of the Constitution. In a subsequent federal habeas corpus proceedings, it was stipulated that Noia's confession also had been coerced, but the District Court followed Daniels in holding that Noia's failure to appeal barred habeas corpus review. See United States v. Fay, 183 F. Supp. 222, 225 (SDNY 1960). The Court of Appeals reversed, ordering that Noia's conviction be set aside and that he be released from custody or that a new trial be granted. This Court affirmed the grant of the writ, narrowly restricting the circumstances in which a federal court may refuse to consider the merits of federal constitutional claims.11 During the period in which the substantive scope of the writ was expanded, the Court did not consider whether exceptions to full review might exist with respect to particular categories of constitutional claims. Prior to the Court's decision in Kaufman v. United States, , however, a substantial majority of the Federal Courts of Appeals had concluded that collateral review of search-and-seizure claims was inappropriate on motions filed by federal prisoners under 28 U.S.C. 2255, the modern postconviction procedure available to federal prisoners in lieu of habeas corpus.12 The primary rationale advanced in support of those decisions was that Fourth Amendment violations are different in kind from denials of Fifth or Sixth Amendment rights in that claims of illegal search and seizure do not "impugn the integrity of the fact-finding process or challenge evidence as inherently unreliable; rather, the exclusion of illegally seized evidence is simply a prophylactic device intended generally to deter Fourth Amendment violations by law enforcement officers." 394 U.S., at 224. See Thornton v. United StatesApp. D.C. 114, 368 F.2d 822 (1966).Kaufman rejected this rationale and held that search-and-seizure claims are cognizable in 2255 proceedings. The Court noted that "the federal habeas remedy extends to state prisoners alleging that unconstitutionally obtained evidence was admitted against them at trial," 394 U.S., at 225, citing, e. g., Mancusi v. DeForte, ; Carafas v. LaVallee, , and concluded, as a matter of statutory construction, that there was no basis for restricting "access by federal prisoners with illegal search-and-seizure claims to federal collateral remedies, while placing no similar restriction on access by state prisoners," 394 U.S., at 226. Although in recent years the view has been expressed that the Court should re-examine the substantive scope of federal habeas jurisdiction and limit collateral review of search-and-seizure claims "solely to the question of whether the petitioner was provided a fair opportunity to raise and have adjudicated the question in state courts," Schneckloth v. Bustamonte, (POWELL, J., concurring),13 the Court, without discussion or consideration of the issue, has continued to accept jurisdiction in cases raising such claims. See Lefkowitz v. Newsome, ; Cady v. Dombrowski, ; Cardwell v. Lewis, (plurality opinion).14 The discussion in Kaufman of the scope of federal habeas corpus rests on the view that the effectuation of the Fourth Amendment, as applied to the States through the Fourteenth Amendment, requires the granting of habeas corpus relief when a prisoner has been convicted in state court on the basis of evidence obtained in an illegal search or seizure since those Amendments were held in Mapp v. Ohio, , to require exclusion of such evidence at trial and reversal of conviction upon direct review.15 Until these cases we have not had occasion fully to consider the validity of this view. See, e. g., Schneckloth v. Bustamonte, supra, at 249 n. 38; Cardwell v. Lewis, supra, at 596, and n. 12. Upon examination, we conclude, in light of the nature and purpose of the Fourth Amendment exclusionary rule, that this view is unjustified.16 We hold, therefore, that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.17 IIIThe Fourth Amendment assures the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Amendment was primarily a reaction to the evils associated with the use of the general warrant in England and the writs of assistance in the Colonies, Stanford v. Texas, ; Frank v. Maryland, , and was intended to protect the "sanctity of a man's home and the privacies of life," Boyd v. United States, , from searches under unchecked general authority.18 The exclusionary rule was a judicially created means of effectuating the rights secured by the Fourth Amendment. Prior to the Court's decisions in Weeks v. United States, , and Gouled v. United States, , there existed no barrier to the introduction in criminal trials of evidence obtained in violation of the Amendment. See Adams v. New York, .19 In Weeks the Court held that the defendant could petition before trial for the return of property secured through an illegal search or seizure conducted by federal authorities. In Gouled the Court held broadly that such evidence could not be introduced in a federal prosecution. See Warden v. Hayden, . See also Silverthorne Lumber Co. v. United States, (fruits of illegally seized evidence). Thirty-five years after Weeks the Court held in Wolf v. Colorado, , that the right to be free from arbitrary intrusion by the police that is protected by the Fourth Amendment is "implicit in `the concept of ordered liberty' and as such enforceable against the States through the [Fourteenth Amendment] Due Process Clause." Id., at 27-28. The Court concluded, however, that the Weeks exclusionary rule would not be imposed upon the States as "an essential ingredient of [that] right." 338 U.S., at 29. The full force of Wolf was eroded in subsequent decisions, see Elkins v. United States, ; Rea v. United States, , and a little more than a decade later the exclusionary rule was held applicable to the States in Mapp v. Ohio, . Decisions prior to Mapp advanced two principal reasons for application of the rule in federal trials. The Court in Elkins, for example, in the context of its special supervisory role over the lower federal courts, referred to the "imperative of judicial integrity," suggesting that exclusion of illegally seized evidence prevents contamination of the judicial process. 364 U.S., at 222.20 But even in that context a more pragmatic ground was emphasized:"The rule is calculated to prevent, not to repair. Its purpose is to deter - to compel respect for the constitutional guaranty in the only effectively available way - by removing the incentive to disregard it." Id., at 217. The Mapp majority justified the application of the rule to the States on several grounds,21 but relied principally upon the belief that exclusion would deter future unlawful police conduct. 367 U.S., at 658. Although our decisions often have alluded to the "imperative of judicial integrity," e. g., United States v. Peltier, , they demonstrate the limited role of this justification in the determination whether to apply the rule in a particular context.22 Logically extended this justification would require that courts exclude unconstitutionally seized evidence despite lack of objection by the defendant, or even over his assent. Cf. Henry v. Mississippi, . It also would require abandonment of the standing limitations on who may object to the introduction of unconstitutionally seized evidence. Alderman v. United States, , and retreat from the proposition that judicial proceedings need not abate when the defendant's person is unconstitutionally seized, Gerstein v. Pugh, ; Frisbie v. Collins, . Similarly, the interest in promoting judicial integrity does not prevent the use of illegally seized evidence in grand jury proceedings. United States v. Calandra, . Nor does it require that the trial court exclude such evidence from use for impeachment of a defendant, even though its introduction is certain to result in conviction in some cases. Walder v. United States, . The teaching of these cases is clear. While courts, of course, must ever be concerned with preserving the integrity of the judicial process, this concern has limited force as a justification for the exclusion of highly probative evidence.23 The force of this justification becomes minimal where federal habeas corpus relief is sought by a prisoner who previously has been afforded the opportunity for full and fair consideration of his search-and-seizure claim at trial and on direct review.The primary justification for the exclusionary rule then is the deterrence of police conduct that violates Fourth Amendment rights. Post-Mapp decisions have established that the rule is not a personal constitutional right. It is not calculated to redress the injury to the privacy of the victim of the search or seizure, for any "[r]eparation comes too late." Linkletter v. Walker, . Instead,"the rule is a judicially created remedy designed to safeguard Fourth Amendment rights generally through its deterrent effect ... ." United States v. Calandra, supra, at 348. Accord, United States v. Peltier, supra, at 538-539; Terry v. Ohio, ; Linkletter v. Walker, supra, at 636-637; Tehan v. United States ex rel. Shott, .Mapp involved the enforcement of the exclusionary rule at state trials and on direct review. The decision in Kaufman, as noted above, is premised on the view that implementation of the Fourth Amendment also requires the consideration of search-and-seizure claims upon collateral review of state convictions. But despite the broad deterrent purpose of the exclusionary rule, it has never been interpreted to proscribe the introduction of illegally seized evidence in all proceedings or against all persons. As in the case of any remedial device, "the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." United States v. Calandra, supra, at 348.24 Thus, our refusal to extend the exclusionary rule to grand jury proceedings was based on a balancing of the potential injury to the historic role and function of the grand jury by such extension against the potential contribution to the effectuation of the Fourth Amendment through deterrence of police misconduct: "Any incremental deterrent effect which might be achieved by extending the rule to grand jury proceedings is uncertain at best. Whatever deterrence of police misconduct may result from the exclusion of illegally seized evidence from criminal trials, it is unrealistic to assume that application of the rule to grand jury proceedings would significantly further that goal. Such an extension would deter only police investigation consciously directed toward the discovery of evidence solely for use in a grand jury investigation... . We therefore decline to embrace a view that would achieve a speculative and undoubtedly minimal advance in the deterrence of police misconduct at the expense of substantially impeding the role of the grand jury." 414 U.S., at 351-352 (footnote omitted). The same pragmatic analysis of the exclusionary rule's usefulness in a particular context was evident earlier in Walder v. United States, supra, where the Court permitted the Government to use unlawfully seized evidence to impeach the credibility of a defendant who had testified broadly in his own defense. The Court held, in effect, that the interests safeguarded by the exclusionary rule in that context were outweighed by the need to prevent perjury and to assure the integrity of the trial process. The judgment in Walder revealed most clearly that the policies behind the exclusionary rule are not absolute. Rather, they must be evaluated in light of competing policies. In that case, the public interest in determination of truth at trial25 was deemed to outweigh the incremental contribution that might have been made to the protection of Fourth Amendment values by application of the rule.The balancing process at work in these cases also finds expression in the standing requirement. Standing to invoke the exclusionary rule has been found to exist only when the Government attempts to use illegally obtained evidence to incriminate the victim of the illegal search. Brown v. United States, ; Alderman v. United States, ; Wong Sun v. United States, . See Jones v. United States, . The standing requirement is premised on the view that the "additional benefits of extending the ... rule" to defendants other than the victim of the search or seizure are outweighed by the "further encroachment upon the public interest in prosecuting those accused of crime and having them acquitted or convicted on the basis of all the evidence which exposes the truth." Alderman v. United States, supra, at 174-175.26 IVWe turn now to the specific question presented by these cases. Respondents allege violations of Fourth Amendment rights guaranteed them through the Fourteenth Amendment. The question is whether state prisoners - who have been afforded the opportunity for full and fair consideration of their reliance upon the exclusionary rule with respect to seized evidence by the state courts at trial and on direct review - may invoke their claim again on federal habeas corpus review. The answer is to be found by weighing the utility of the exclusionary rule against the costs of extending it to collateral review of Fourth Amendment claims.The costs of applying the exclusionary rule even at trial and on direct review are well known:27 the focus of the trial, and the attention of the participants therein, are diverted from the ultimate question of guilt or innocence that should be the central concern in a criminal proceeding.28 Moreover, the physical evidence sought to be excluded is typically reliable and often the most probative information bearing on the guilt or innocence of the defendant. As Mr. Justice Black emphasized in his dissent in Kaufman: "A claim of illegal search and seizure under the Fourth Amendment is crucially different from many other constitutional rights; ordinarily the evidence seized can in no way have been rendered untrustworthy by the means of its seizure and indeed often this evidence alone establishes beyond virtually any shadow of a doubt that the defendant is guilty." 394 U.S., at 237. Application of the rule thus deflects the truthfinding process and often frees the guilty. The disparity in particular cases between the error committed by the police officer and the windfall afforded a guilty defendant by application of the rule is contrary to the idea of proportionality that is essential to the concept of justice.29 Thus, although the rule is thought to deter unlawful police activity in part through the nurturing of respect for Fourth Amendment values, if applied indiscriminately it may well have the opposite effect of generating disrespect for the law and administration of justice.30 These long-recognized costs of the rule persist when a criminal conviction is sought to be overturned on collateral review on the ground that a search-and-seizure claim was erroneously rejected by two or more tiers of state courts.31 Evidence obtained by police officers in violation of the Fourth Amendment is excluded at trial in the hope that the frequency of future violations will decrease. Despite the absence of supportive empirical evidence,32 we have assumed that the immediate effect of exclusion will be to discourage law enforcement officials from violating the Fourth Amendment by removing the incentive to disregard it. More importantly, over the long term, this demonstration that our society attaches serious consequences to violation of constitutional rights is thought to encourage those who formulate law enforcement policies, and the officers who implement them, to incorporate Fourth Amendment ideals into their value system.33 We adhere to the view that these considerations support the implementation of the exclusionary rule at trial and its enforcement on direct appeal of state-court convictions. But the additional contribution, if any, of the consideration of search-and-seizure claims of state prisoners on collateral review is small in relation to the costs. To be sure, each case in which such claim is considered may add marginally to an awareness of the values protected by the Fourth Amendment. There is no reason to believe, however, that the overall educative effect of the exclusionary rule would be appreciably diminished if search-and-seizure claims could not be raised in federal habeas corpus review of state convictions.34 Nor is there reason to assume that any specific disincentive already created by the risk of exclusion of evidence at trial or the reversal of convictions on direct review would be enhanced if there were the further risk that a conviction obtained in state court and affirmed on direct review might be overturned in collateral proceedings often occurring years after the incarceration of the defendant. The view that the deterrence of Fourth Amendment violations would be furthered rests on the dubious assumption that law enforcement authorities would fear that federal habeas review might reveal flaws in a search or seizure that went undetected at trial and on appeal.35 Even if one rationally could assume that some additional incremental deterrent effect would be present in isolated cases, the resulting advance of the legitimate goal of furthering Fourth Amendment rights would be outweighed by the acknowledged costs to other values vital to a rational system of criminal justice.In sum, we conclude that where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim,36 a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial.37 In this context the contribution of the exclusionary rule, if any, to the effectuation of the Fourth Amendment is minimal and the substantial societal costs of application of the rule persist with special force.38 Accordingly, the judgments of the Courts of Appeals are Reversed.

Where respondent in response to a police officer's request voluntarily came to a police station for questioning about a burglary and was immediately informed that he was not under arrest, and at the close of a half-hour interview left the station without hindrance, respondent was not in custody "or otherwise deprived of his freedom of action in any significant way," Miranda v. Arizona, , so as to require that his confession to the burglary obtained during such interview be suppressed at his state criminal trial because he was not given Miranda warnings prior to being questioned. Certiorari granted; 275 Ore. 1, 549 P.2d 673, reversed and remanded.PER CURIAM.Respondent Carl Mathiason was convicted of first-degree burglary after a bench trial in which his confession was critical to the State's case. At trial he moved to suppress the confession as the fruit of questioning by the police not preceded by the warnings required in Miranda v. Arizona, . The trial court refused to exclude the confession because it found that Mathiason was not in custody at the time of the confession.The Oregon Court of Appeals affirmed respondent's conviction, but on his petition for review in the Supreme Court of Oregon that court by a divided vote reversed the conviction. It found that although Mathiason had not been arrested or otherwise formally detained, "the interrogation took place in a `coercive environment'" of the sort to which Miranda was intended to apply. The court conceded that its holding was contrary to decisions in other jurisdictions, and referred in particular to People v. Yukl, 25 N. Y. 2d 585, 256 N. E. 2d 172 (1969). The State of Oregon has petitioned for certiorari to review the judgment of the Supreme Court of Oregon. We think that court has read Miranda too broadly, and we therefore reverse its judgment.The Supreme Court of Oregon described the factual situation surrounding the confession as follows: "An officer of the State Police investigated a theft at a residence near Pendleton. He asked the lady of the house which had been burglarized if she suspected anyone. She replied that the defendant was the only one she could think of. The defendant was a parolee and a `close associate' of her son. The officer tried to contact defendant on three or four occasions with no success. Finally, about 25 days after the burglary, the officer left his card at defendant's apartment with a note asking him to call because `I'd like to discuss something with you.' The next afternoon the defendant did call. The officer asked where it would be convenient to meet. The defendant had no preference; so the officer asked if the defendant could meet him at the state patrol office in about an hour and a half, about 5:00 p. m. The patrol office was about two blocks from defendant's apartment. The building housed several state agencies. "The officer met defendant in the hallway, shook hands and took him into an office. The defendant was told he was not under arrest. The door was closed. The two sat across a desk. The police radio in another room could be heard. The officer told defendant he wanted to talk to him about a burglary and that his truthfulness would possibly be considered by the district attorney or judge. The officer further advised that the police believed defendant was involved in the burglary and [falsely stated that] defendant's fingerprints were found at the scene. The defendant sat for a few minutes and then said he had taken the property. This occurred within five minutes after defendant had come to the office. The officer then advised defendant of his Miranda rights and took a taped confession. "At the end of the taped conversation the officer told defendant he was not arresting him at this time; he was released to go about his job and return to his family. The officer said he was referring the case to the district attorney for him to determine whether criminal charges would be brought. It was 5:30 p. m. when the defendant left the office. "The officer gave all the testimony relevant to this issue. The defendant did not take the stand either at the hearing on the motion to suppress or at the trial." 275 Ore. 1, 3-4, 549 P.2d 673, 674 (1976). The Supreme Court of Oregon reasoned from these facts that: "We hold the interrogation took place in a `coercive environment.' The parties were in the offices of the State Police; they were alone behind closed doors; the officer informed the defendant he was a suspect in a theft and the authorities had evidence incriminating him in the crime; and the defendant was a parolee under supervision. We are of the opinion that this evidence is not overcome by the evidence that the defendant came to the office in response to a request and was told he was not under arrest." Id., at 5, 549 P.2d, at 675. Our decision in Miranda set forth rules of police procedure applicable to "custodial interrogation." "By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 384 U.S., at 444. Subsequently we have found the Miranda principle applicable to questioning which takes place in a prison setting during a suspect's term of imprisonment on a separate offense, Mathis v. United States, , and to questioning taking place in a suspect's home, after he has been arrested and is no longer free to go where he pleases, Orozco v. Texas, .In the present case, however, there is no indication that the questioning took place in a context where respondent's freedom to depart was restricted in any way. He came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of a 1/2-hour interview respondent did in fact leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody "or otherwise deprived of his freedom of action in any significant way."Such a noncustodial situation is not converted to one in which Miranda applies simply because a reviewing court concludes that, even in the absence of any formal arrest or restraint on freedom of movement, the questioning took place in a "coercive environment." Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime. But police officers are not required to administer Miranda warnings to everyone whom they question. Nor is the requirement of warnings to be imposed simply because the questioning takes place in the station house, or because the questioned person is one whom the police suspect. Miranda warnings are required only where there has been such a restriction on a person's freedom as to render him "in custody." It was that sort of coercive environment to which Miranda by its terms was made applicable, and to which it is limited.The officer's false statement about having discovered Mathiason's fingerprints at the scene was found by the Supreme Court of Oregon to be another circumstance contributing to the coercive environment which makes the Miranda rationale applicable. Whatever relevance this fact may have to other issues in the case, it has nothing to do with whether respondent was in custody for purposes of the Miranda rule.The petition for certiorari is granted, the judgment of the Oregon Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. So ordered.MR. JUSTICE BRENNAN would grant the writ but dissents from the summary disposition and would set the case for oral argument.MR. JUSTICE MARSHALL, dissenting.The respondent in this case was interrogated behind closed doors at police headquarters in connection with a burglary investigation. He had been named by the victim of the burglary as a suspect, and was told by the police that they believed he was involved. He was falsely informed that his fingerprints had been found at the scene, and in effect was advised that by cooperating with the police he could help himself. Not until after he had confessed was he given the warnings set forth in Miranda v. Arizona, .The Court today holds that for constitutional purposes all this is irrelevant because respondent had not "`been taken into custody or otherwise deprived of his freedom of action in any significant way.'" Ante, at 494, quoting Miranda v. Arizona, supra, at 444. I do not believe that such a determination is possible on the record before us. It is true that respondent was not formally placed under arrest, but surely formalities alone cannot control. At the very least, if respondent entertained an objectively reasonable belief that he was not free to leave during the questioning, then he was "deprived of his freedom of action in a significant way."1 Plainly the respondent could have so believed, after being told by the police that they thought he was involved in a burglary and that his fingerprints had been found at the scene. Yet the majority is content to note that "there is no indication that ... respondent's freedom to depart was restricted in any way," ante, at 495, as if a silent record (and no state-court findings) means that the State has sustained its burden, see Lego v. Twomey, , of demonstrating that respondent received his constitutional due.2 More fundamentally, however, I cannot agree with the Court's conclusion that if respondent were not in custody no warnings were required. I recognize that Miranda is limited to custodial interrogations, but that is because, as we noted last Term, the facts in the Miranda cases raised only this "narrow issue." Beckwith v. United States, . The rationale of Miranda, however, is not so easily cabined.Miranda requires warnings to "combat" a situation in which there are "inherently compelling pressures which work to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely." 384 U.S., at 467. It is of course true, as the Court notes, that "[a]ny interview of one suspected of a crime by a police officer will have coercive aspects to it." Ante, at 495. But it does not follow that because police "are not required to administer Miranda warnings to everyone whom they question," ibid., that they need not administer warnings to anyone, unless the factual setting of the Miranda cases is replicated. Rather, faithfulness to Miranda requires us to distinguish situations that resemble the "coercive aspects" of custodial interrogation from those that more nearly resemble "[g]eneral on-the-scene questioning ... or other general questioning of citizens in the fact-finding process" which Miranda states usually can take place without warnings. 384 U.S., at 477.In my view, even if respondent were not in custody, the coercive elements in the instant case were so pervasive as to require Miranda-type warnings.3 Respondent was interrogated in "privacy" and in "unfamiliar surroundings," factors on which Miranda places great stress. Id., at 449-450; see also Beckwith v. United States, supra, at 346 n. 7. The investigation had focused on respondent. And respondent was subjected to some of the "deceptive stratagems," Miranda v. Arizona, supra, at 455, which called forth the Miranda decision. I therefore agree with the Oregon Supreme Court that to excuse the absence of warnings given these facts is "contrary to the rationale expressed in Miranda." 275 Ore. 1, 5, 549 P.2d 673, 675 (1976).4 The privilege against self-incrimination "has always been `as broad as the mischief against which it seeks to guard.'" Miranda v. Arizona, supra, at 459-460, quoting Counselman v. Hitchcock, . Today's decision means, however, that the Fifth Amendment privilege does not provide full protection against mischiefs equivalent to, but different from, custodial interrogation.5 See also Beckwith v. United States, supra. It is therefore important to note that the state courts remain free, in interpreting state constitutions, to guard against the evil clearly identified by this case.6 I respectfully dissent.

A 1964 Mississippi statute provides that boards of trustees of municipal separate school districts in the State shall consist of five members, and that in any county in which a district embraces the entire county "in which Highways 14 and 15 intersect," one trustee shall be elected from each supervisors district. The Louisville School District is coextensive with Winston County, Miss., which is the only county in which Highways 14 and 15 intersect. Since 1960, the Louisville mayor and city aldermen appointed three of the five members of the District's Board of Trustees, and Winston County voters residing outside Louisville elected the other two members. The county officials never implemented the 1964 statute. Respondent Winston County voters filed an action against petitioner local officials in Mississippi Chancery Court seeking to enforce the 1964 statute. The court dismissed the complaint on the ground that the statute violated the state constitutional bar against local legislation. The Mississippi Supreme Court reversed and remanded, striking only the statute's reference to Highways 14 and 15 and upholding the remainder of the statute. The Supreme Court without comment denied petitioners' petition for rehearing in which they argued for the first time that the Chancery Court could not implement the reformed statute until the change had been precleared under 5 of the Voting Rights Act of 1965. On remand, the Chancery Court ordered an election pursuant to the redacted statute under procedures prescribed by the court, but directed petitioners to submit the election plan to the United States Attorney General for preclearance under 5 of the Voting Rights Act. The Attorney General subsequently objected to the plan, and the Chancery Court ultimately concluded that its order would remain in force subject to compliance with the Voting Rights Act. Respondents once again appealed to the Supreme Court, which held that its prior decision was the law of the case and that the Chancery Court improperly conditioned the election on compliance with the Voting Rights Act.Held: 1. The Mississippi Supreme Court's decision did not rest on independent and adequate state grounds so as to bar this Court's review of the federal issue. Where the state court's first decision did not appear final when rendered, the court's subsequent reliance on the law of the case does not prevent this Court from reviewing federal questions determined in the first appeal. Nor does the fact that petitioners' reliance upon the Voting Rights Act issue for the first time in their petition for rehearing may have been untimely under a Mississippi procedural rule constitute an independent and adequate state ground barring this Court's review of the federal question, where it appears that, if Mississippi still follows such a rule, it does not do so "strictly or regularly." Pp. 261-265. 2. The Mississippi courts had the power to decide whether 5 of the Voting Rights Act applied to the change in election procedures sought by respondents, and must withhold further implementation of the disputed change until the parties demonstrate compliance with 5. Both the language and purposes of the Act refute the notion that a state court asked to implement a change in the State's voting laws cannot inquire whether the change is subject to 5 but must ignore that circumstance and enter a decree violating federal law. Section 14(b) of the Act, which provides that no court other than the District Court for the District of Columbia shall have jurisdiction to enter a declaratory judgment pursuant to 5 governs only declaratory judgments approving proposed voting procedure changes. And nothing in the provisions of 5, requiring an action under that section to be heard by a three-judge federal district court, or in the provisions of 12(f) of the Act, giving federal district courts jurisdiction of proceedings under that section, negates the presumption that, at least when the issue arises collaterally, state courts have the power to decide whether a proposed change in election procedures requires preclearance under 5. Granting state courts such power helps to insure compliance with the preclearance scheme. Pp. 265-271. 399 So.2d 1356, reversed and remanded.O'CONNOR, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, WHITE, MARSHALL, BLACKMUN, and STEVENS, JJ., joined. POWELL, J., concurred in the judgment. REHNQUIST, J., filed a dissenting opinion, post, p. 271.James C. Mayo argued the cause and filed a brief for petitioners.Laurel G. Weir argued the cause and filed a brief for respondents.Assistant Attorney General Reynolds argued the cause for the United States as amicus curiae urging reversal. With him on the brief were Solicitor General Lee, Deputy Solicitor General Wallace, Barbara E. Etkind, Brian K. Landsberg, and Joan A. Magagna. JUSTICE O'CONNOR delivered the opinion of the Court.We granted certiorari to decide whether a state court may order implementation of a change in election procedure over objections that the change is subject to preclearance under 5 of the Voting Rights Act of 1965.1 ISince 1960, the Louisville School District has been coextensive with Winston County, Miss. Until last December, the Louisville mayor and city aldermen appointed three of the five members of the District's Board of Trustees, and Winston County voters residing outside Louisville elected the other two members.In 1964, the Mississippi Legislature enacted a statute providing in part: "The boards of trustees of all municipal separate school districts, either with or without added territory, shall consist of five (5) members, each to be chosen for a term of five (5) years, but so chosen that the term of office of one (1) member shall expire each year... . [I]n any county in which a municipal separate school district embraces the entire county in which Highways 14 and 15 intersect, one (1) trustee shall be elected from each supervisors district." 1964 Miss. Gen. Laws, ch. 391, p. 563, codified, as amended, in Miss. Code Ann. 37-7-203(1) (Supp. 1981). Winston County is the only Mississippi county in which Highways 14 and 15 intersect. Officials in that county never implemented 37-7-203(1) because they believed the statute's reference to Highways 14 and 15 violated a state constitutional prohibition against local, private, or special legislation.2 In 1975, five Winston County voters filed an action in the Chancery Court of Winston County,3 seeking to enforce the neglected 1964 state statute.4 These plaintiffs, respondents here, named numerous Louisville and Winston County officials as defendants. The Chancery Court dismissed respondents' complaint, holding that the statute violated Mississippi's constitutional bar against local legislation. The Mississippi Supreme Court reversed, striking only the specific reference to Highways 14 and 15 and upholding the remaining requirement that, "in any county in which a municipal separate school district embraces the entire county," each supervisors district must elect one trustee. Lovorn v. Hathorn, 365 So.2d 947 (1979) (en banc). The court then "remanded to the chancery court for further proceedings not inconsistent with [its] opinion." Id., at 952.The local officials, petitioners here, filed a petition for rehearing, in which they argued for the first time that the Chancery Court could not implement the reformed statute until the change had been precleared under 5 of the Voting Rights Act. The Mississippi Supreme Court denied the petition without comment, and this Court denied a petition for a writ of certiorari. Hathorn v. Lovorn, .On remand, the Chancery Court ordered an election pursuant to the redacted statute. The court set out detailed procedures governing the election, including the requirement that "[i]f no candidate receives a majority of the vote cast at any of said elections ..., a runoff election shall be held ... between the two candidates receiving the highest vote [in the first election]." Record 143. The court derived the latter requirement from Miss. Code Ann. 37-7-217 (Supp. 1981), which mandates runoffs in elections conducted under 37-7-203(1). See Miss. Code Ann. 37-7-209 (Supp. 1981). The Chancery Court also agreed with petitioners' claim that the changes in election procedure fell within 5 of the Voting Rights Act, and directed petitioners to submit the election plan to the United States Attorney General for preclearance. Record 141, 146-147.5 Upon review of petitioners' submission, the Attorney General objected to the proposed change in election procedure "insofar as it incorporate[d] a majority vote requirement." App. to Pet. for Cert. A-8. Because of the substantial black population in Winston County,6 an apparent pattern of racially polarized voting in the county, and the historical absence of blacks from various local governing boards, the Attorney General concluded that the runoff procedure could have a discriminatory effect. Ibid.7 Respondents attempted to overcome this obstacle by both joining the Attorney General as a defendant and persuading the Chancery Court to hold the election without the runoff procedure. The court, however, refused to join the Attorney General and held that state law unambiguously required runoff elections. Buffeted by apparently conflicting state and federal statutes, the Chancery Court concluded that its decree calling for an election would "remain in force subject to compliance with the Federal Voters Rights Act [sic] as previously ordered by this Court." Record 342.Failing to obtain an election from the Chancery Court, respondents once again appealed to the Mississippi Supreme Court. That court observed that its "prior decision, which the United States Supreme Court declined to reverse or alter in any respect, became and is the law of the case." Carter v. Luke, 399 So.2d 1356, 1358 (1981). The court explained that because the prior decision upheld a statute referring to the statute requiring runoffs, and because both parties had agreed during oral argument to abide by the runoff procedure, the Chancery Court properly enforced the law requiring runoffs and improperly conditioned the election on compliance with the Voting Rights Act. Accordingly, the Mississippi Supreme Court reversed the portion of the Chancery Court's decree referring to the Voting Rights Act and "remanded with directions for the lower court to call and require the holding of an election." Ibid. We granted certiorari to decide whether the Mississippi Supreme Court properly ordered the election without insuring compliance with federal law. .8 IIBefore addressing the federal question raised by the Mississippi Supreme Court's decision, we must consider respondents' assertion that the lower court decision rests upon two adequate and independent state grounds. First, respondents contend that the state court's reliance upon the law of the case bars review of the federal question. It has long been established, however, that "[w]e have jurisdiction to consider all of the substantial federal questions determined in the earlier stages of [state proceedings], ... and our right to re-examine such questions is not affected by a ruling that the first decision of the state court became the law of the case ... ." Reece v. Georgia, . See also Davis v. O'Hara, ; United States v. Denver & Rio Grande R. Co., . Because we cannot review a state court judgment until it is final,9 a contrary rule would insulate interlocutory state court rulings on important federal questions from our consideration.In this case the Mississippi Supreme Court's first decision plainly did not appear final at the time it was rendered. The court's remand "for further proceedings not inconsistent with [its] opinion," 365 So.2d, at 952 (en banc), together with its failure to address expressly the Voting Rights Act issue, suggested that the Chancery Court could still consider the federal issue on remand. Indeed, the Chancery Court interpreted its mandate in precisely this manner.10 Under these circumstances, the Mississippi Supreme Court's subsequent reliance on the law of the case cannot prevent us from reviewing federal questions determined in the first appeal.11 Respondents also argue that the Mississippi Supreme Court pretermitted consideration of the Voting Rights Act because petitioners' reliance upon the issue in a petition for rehearing was untimely. We have recognized that the failure to comply with a state procedural rule may constitute an independent and adequate state ground barring our review of a federal question.12 Our decisions, however, stress that a state procedural ground is not "adequate" unless the procedural rule is "strictly or regularly followed." Barr v. City of Columbia, . State courts may not avoid deciding federal issues by invoking procedural rules that they do not apply evenhandedly to all similar claims. Even if we construe the Mississippi Supreme Court's denial of petitioners' petition for rehearing as the silent application of a procedural bar, we cannot conclude that the state court consistently relies upon this rule.Respondents cite two cases indicating that the Mississippi Supreme Court will consider an issue raised for the first time in a petition for rehearing "[o]nly in exceptional cases." New & Hughes Drilling Co. v. Smith, 219 So.2d 657, 661 (Miss. 1969); Rigdon v. General Box Co., 249 Miss. 239, 246, 162 So.2d 863, 864 (1964). Although these opinions may summarize the court's practice prior to 1969, we have been unable to find any more recent decisions repeating or applying the rule.13 On the contrary, the Mississippi Supreme Court now regularly grants petitions for rehearing without mentioning any restrictions on its authority to consider issues raised for the first time in the petitions.14 One particular decision by the Mississippi Supreme Court, decided only last year, demonstrates that the court does not consistently preclude consideration of issues raised for the first time on rehearing. In Quinn v. Branning, 404 So.2d 1018 (1981), the court held that part of a criminal statute violated the State Constitution's prohibition against local legislation. Striking the offensive language, the court approved the rest of the statute and affirmed the underlying conviction. The defendant then petitioned for rehearing, pointing out that the affidavit against him did not allege a crime under the reformed statute. The court agreed with this contention, granted the petition in part, and reversed the conviction, all without mentioning the rule against consideration of new issues on rehearing. The striking similarity between Quinn and this case, both involving issues that the parties could have foreseen but that arose with urgency only after the court upheld part of a challenged statute, persuades us that the Mississippi Supreme Court is not "strictly or regularly" following a procedural rule precluding review of issues raised for the first time in a petition for rehearing. The denial of rehearing in this case, although not appearing sufficiently final to permit our immediate review, must have rested either upon a substantive rejection of petitioners' federal claim or upon a procedural rule that the state court applies only irregularly.15 Thus, there are no independent and adequate state grounds barring our review of the federal issue.IIIRespondents do not dispute that the change in election procedures ordered by the Mississippi courts is subject to preclearance under 5.16 They urge, however, that the Voting Rights Act deprives state courts of the power even to decide whether 5 applies to a proposed change in voting procedures.17 Under their analysis of the Act, a state court asked to implement a change in the State's voting laws could not inquire whether the change was subject to 5. Even if the change plainly fell within 5, the court would have to ignore that circumstance and enter a decree violating federal law. Both the language and purposes of the Voting Rights Act refute this notion.Only last Term we summarized the principles governing state court jurisdiction to decide federal issues. Gulf Offshore Co. v. Mobil Oil Corp., . We begin, in every case, "with the presumption that state courts enjoy concurrent jurisdiction" over those claims. Id., at 478. Only "an explicit statutory directive, [an] unmistakable implication from legislative history, or ... a clear incompatibility between state-court jurisdiction and federal interests" will rebut the presumption. Ibid. Most important for our purposes, even a finding of exclusive federal jurisdiction over claims arising under a federal statute usually "will not prevent a state court from deciding a federal question collaterally." Id., at 483, n. 12.18 Respondents rest their jurisdictional argument on three sections of the Act. Section 14(b) provides that "[n]o court other than the District Court for the District of Columbia ... shall have jurisdiction to issue any declaratory judgment pursuant to ... section 5 ... ." 79 Stat. 445, 42 U.S.C. 1973l(b). We have already held, however, that this provision governs only declaratory judgments approving proposed changes in voting procedure. Other courts may decide the distinct question of whether a proposed change is subject to the Act. See Allen v. State Board of Elections, ; McDaniel v. Sanchez, .Sections 5 and 12(f) of the Act provide somewhat stronger support for respondents' claim. Section 5 provides that "[a]ny action under this section shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of title 28 of the United States Code," 79 Stat. 439, 42 U.S.C. 1973c, while 12(f) declares that "[t]he district courts of the United States shall have jurisdiction of proceedings instituted pursuant to this section." 79 Stat. 444, 42 U.S.C. 1973j(f).19 It is possible that these sections grant the federal courts exclusive jurisdiction over "action[s] under" 5 or "proceedings instituted pursuant" to 12.20 We need not resolve that question in this case, however, because respondents' state suit fell within neither of these categories. Instead, respondents' initial suit was an action to compel compliance with a forgotten state law.21 Nothing in 5 or 12 negates the presumption that, at least when the issue arises collaterally, state courts may decide whether a proposed change in election procedure requires preclearance under 5.The policies of the Act support the same result.22 The Voting Rights Act "implemented Congress' firm intention to rid the country of racial discrimination in voting." Allen v. State Board of Elections, supra, at 548. Fearing that covered jurisdictions would exercise their ingenuity to devise new and subtle forms of discrimination, Congress prohibited those jurisdictions from implementing any change in voting procedure without obtaining preclearance under 5. Granting state courts the power to decide, as a collateral matter, whether 5 applies to contemplated changes in election procedures will help insure compliance with the preclearance scheme.23 Approval of this limited jurisdiction also avoids placing state courts in the uncomfortable position of ordering voting changes that they suspect, but cannot determine, should be precleared under 5. Accordingly, we hold that the Mississippi courts had the power to decide whether 5 applied to the change sought by respondents.If the Mississippi courts had the power to make this determination, then it is clear that they also had the duty to do so. "State courts, like federal courts, have a constitutional obligation ... to uphold federal law." Stone v. Powell, , n. 35 (1976) (citing Martin v. Hunter's Lessee, 1 Wheat. 304, 341-344 (1816)). Section 5 declares that whenever a covered jurisdiction shall "enact or seek to administer any ... standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1964," see n. 1, supra, it must obtain either preclearance from the Attorney General or a declaratory judgment from the United States District Court for the District of Columbia. Our opinions repeatedly note that failure to follow either of these routes renders the change unenforceable. See, e. g., Dougherty County Board of Education v. White, ; United States v. Board of Supervisors, (per curiam). When a party to a state proceeding asserts that 5 renders the contemplated relief unenforceable, therefore, the state court must examine the claim and refrain from ordering relief that would violate federal law.24 IVOur holding mandates reversal of the lower court judgment. Under our analysis, the change in election procedure is subject to 5, see n. 16, supra, and the Mississippi courts may not further implement that change until the parties comply with 5. At this time, however, we need not decide whether petitioners are entitled to any additional relief. The United States has initiated a federal suit challenging the change at issue here, see n. 8, supra, and we agree with the Solicitor General that the District Court entertaining that suit should address the problem of relief in the first instance. As we noted in Perkins v. Matthews, , a local district court is in a better position than this Court to fashion relief, because the district court "is more familiar with the nuances of the local situation" and has the opportunity to hear evidence. Id., at 397. In this case, the District Court for the Northern District of Mississippi will be better able to decide whether a special election is necessary, whether a more moderate form of interim relief will satisfy 5,25 or whether new elections are so imminent that special relief is inappropriate. We hold only that the Mississippi courts must withhold further implementation of the disputed change in election procedures until the parties demonstrate compliance with 5. Accordingly, the judgment of the Mississippi Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. So ordered. JUSTICE POWELL concurs in the judgment.

A Negro resident of Memphis, Tenn., brought this class action in a Federal District Court against officials of the City of Memphis, the local street railway company, and one of that company's employees, seeking a declaratory judgment as to his claimed constitutional right, and that of others similarly situated, to travel on buses within the City without being subjected, as required by a Tennessee statute, to segregated seating arrangements on account of race. The District Court dismissed the complaint on the ground that no "actual controversy," within the meaning of the Declaratory Judgment Act, had been shown, because appellant had ridden a bus in Memphis on only one occasion, had done so for the purpose of instituting this litigation, and was not "representative of a class of colored citizens who do use the buses in Memphis as a means of transportation." Held: The record in this case establishes the existence of an actual controversy which should have been adjudicated by the District Court. Pp. 202-204. Reversed and case remanded for further proceedings.Robert L. Carter for appellants.Walter Chandler, Allison B. Humphreys, Edward P. Russell and Charles M. Crump for appellees.PER CURIAM.Appellant, a Negro resident of Memphis, Tennessee, brought this class action in the Western Division of the United States District Court for the Western District of Tennessee, seeking a declaration as to his claimed constitutional right, and that of others similarly situated, to travel on buses within that City without being subjected, as required by Tenn. Code Ann., 1955, 65-1704 through 65-1709, to segregated seating arrangements on account of race. An injunction against enforcement of this statute or any other method of state-enforced segregation on Memphis transportation facilities was also sought. Various officials and officers of the City of Memphis, the Memphis Street Railway Company, and one of that Company's employees were named as defendants. After a hearing a three-judge District Court, without reaching the merits, dismissed the complaint on the ground that no "actual controversy" within the intendment of the Declaratory Judgment Act, 28 U.S.C. 2201, had been shown, in that appellant had ridden a bus in Memphis on only one occasion and had "boarded the bus for the purpose of instituting this litigation," and was thus not "representative of a class of colored citizens who do use the buses in Memphis as a means of transportation."Of course, the federal courts will not grant declaratory relief in instances where the record does not disclose an "actual controversy." Public Service Comm'n v. Wycoff Co., . In Maryland Casualty Co. v. Pacific Coal & Oil Co., , this Court said: "The difference between an abstract question and a `controversy' contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment." In the present case we think that the record establishes the existence of an actual controversy which should have been adjudicated by the lower court.The District Court found that when appellant boarded a Memphis bus on April 26, 1956, and seated himself at the front of the vehicle, the driver told him he must move to the rear, "stating that the law required it because of [his] color"; that following appellant's refusal to comply, two police officers shortly thereafter boarded the bus and "ordered [appellant] to go to the back of the bus, get off, or be arrested"; and that thereupon appellant left the bus. The record further shows that the appellees intend to enforce this state statute until its unconstitutionality has been finally adjudicated. We do not believe that appellant, in order to demonstrate the existence of an "actual controversy" over the validity of the statute here challenged, was bound to continue to ride the Memphis buses at the risk of arrest if he refused to seat himself in the space in such vehicles assigned to colored passengers. A resident of a municipality who cannot use transportation facilities therein without being subjected by statute to special disabilities necessarily has, we think, a substantial, immediate, and real interest in the validity of the statute which imposes the disability. See Gayle v. Browder, , affirming the decision of a three-judge District Court reported at 142 F. Supp. 707. That the appellant may have boarded this particular bus for the purpose of instituting this litigation is not significant. See Young v. Higbee Co., ; Doremus v. Board of Education, .We hold that the court below erred in not proceeding to the merits. Accordingly, the judgment of the District Court is reversed and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

The judgment of the Court of Appeals setting aside a cease and desist order of the Federal Trade Commission is vacated, and the cause is remanded to the Court of Appeals with directions to reinstate its prior judgment after amending it so as specifically to authorize the Commission to open this proceeding for further evidence and a new order consistent with the opinion of the Court of Appeals. 201 F.2d 446, judgment vacated and cause remanded.Acting Solicitor General Stern and William T. Kelley for petitioner.William L. Hanaway for respondent.PER CURIAM.Certiorari is granted and the judgment of the Court of Appeals is vacated. The cause is remanded to the Court of Appeals with directions to reinstate its prior judgment and order after amending it so that it specifically authorizes the Federal Trade Commission to open this proceeding for further evidence and a new order consistent with the Court of Appeals opinion herein. Cf. Reilly v. Pinkus, ; Labor Board v. Donnelly Garment Co., .MR. JUSTICE DOUGLAS dissents.THE CHIEF JUSTICE took no part in the consideration or decision of this case.

Respondent Darius Clark sent his girlfriend away to engage in prostitution while he cared for her 3-year-old son L. P. and 18-month-old daughter A. T. When L. P.'s preschool teachers noticed marks on his body, he identified Clark as his abuser. Clark was subsequently tried on multiple counts related to the abuse of both children. At trial, the State introduced L. P.'s statements to his teachers as evidence of Clark's guilt, but L. P. did not testify. The trial court denied Clark's motion to exclude the statements under the Sixth Amendment's Confrontation Clause. A jury convicted Clark on all but one count. The state appellate court reversed the conviction on Confrontation Clause grounds, and the Supreme Court of Ohio affirmed.Held: The introduction of L. P.'s statements at trial did not violate the Confrontation Clause. Pp. 4-12. (a) This Court's decision in Crawford v. Washington, 541 U. S. 36, 54, held that the Confrontation Clause generally prohibits the introduction of "testimonial" statements by a nontestifying witness, unless the witness is "unavailable to testify, and the defendant had had a prior opportunity for cross-examination." A statement qualifies as testimonial if the "primary purpose" of the conversation was to "creat[e] an out-of-court substitute for trial testimony." Michigan v. Bryant, 562 U. S. 344, 369. In making that "primary purpose" determination, courts must consider "all of the relevant circumstances." Ibid. "Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause." Id., at 359. But that does not mean that the Confrontation Clause bars every statement that satisfies the "primary purpose" test. The Court has recognized that the Confrontation Clause does not prohibit the introduction of out-of-court statements that would have been admissible in a criminal case at the time of the founding. See Giles v. California, 554 U. S. 353, 358-359; Crawford, 541 U. S., at 56, n. 6, 62. Thus, the primary purpose test is a necessary, but not always sufficient, condition for the exclusion of out-of-court statements under the Confrontation Clause. Pp. 4-7. (b) Considering all the relevant circumstances, L. P.'s statements were not testimonial. L. P.'s statements were not made with the primary purpose of creating evidence for Clark's prosecution. They occurred in the context of an ongoing emergency involving suspected child abuse. L. P.'s teachers asked questions aimed at identifying and ending a threat. They did not inform the child that his answers would be used to arrest or punish his abuser. L. P. never hinted that he intended his statements to be used by the police or prosecutors. And the conversation was informal and spontaneous. L. P.'s age further confirms that the statements in question were not testimonial because statements by very young children will rarely, if ever, implicate the Confrontation Clause. As a historical matter, moreover, there is strong evidence that statements made in circumstances like these were regularly admitted at common law. Finally, although statements to individuals other than law enforcement officers are not categorically outside the Sixth Amendment's reach, the fact that L. P. was speaking to his teachers is highly relevant. Statements to individuals who are not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than those given to law enforcement officers. Pp. 7-10. (c) Clark's arguments to the contrary are unpersuasive. Mandatory reporting obligations do not convert a conversation between a concerned teacher and her student into a law enforcement mission aimed at gathering evidence for prosecution. It is irrelevant that the teachers' questions and their duty to report the matter had the natural tendency to result in Clark's prosecution. And this Court's Confrontation Clause decisions do not determine whether a statement is testimonial by examining whether a jury would view the statement as the equivalent of in-court testimony. Instead, the test is whether a statement was given with the "primary purpose of creating an out-of-court substitute for trial testimony." Bryant, supra, at 358. Here, the answer is clear: L. P.'s statements to his teachers were not testimonial. Pp. 11-12. 137 Ohio St. 3d 346, 2013-Ohio-4731, 999 N. E. 2d 592, reversed and remanded. Alito, J., delivered the opinion of the Court, in which Roberts, C. J., and Kennedy, Breyer, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Ginsburg, J., joined. Thomas, J., filed an opinion concurring in the judgment.Opinion of the Court 576 U. S. ____ (2015)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 13-1352OHIO, PETITIONER v. DARIUS CLARKon writ of certiorari to the supreme court of ohio[June 18, 2015] Justice Alito delivered the opinion of the Court. Darius Clark sent his girlfriend hundreds of miles away to engage in prostitution and agreed to care for her two young children while she was out of town. A day later, teachers discovered red marks on her 3-year-old son, and the boy identified Clark as his abuser. The question in this case is whether the Sixth Amendment's Confrontation Clause prohibited prosecutors from introducing those statements when the child was not available to be cross-examined. Because neither the child nor his teachers had the primary purpose of assisting in Clark's prosecution, the child's statements do not implicate the Confrontation Clause and therefore were admissible at trial.I Darius Clark, who went by the nickname "Dee," lived in Cleveland, Ohio, with his girlfriend, T. T., and her two children: L. P., a 3-year-old boy, and A. T., an 18-month-old girl.1 Clark was also T. T.'s pimp, and he would regularly send her on trips to Washington, D. C., to work as a prostitute. In March 2010, T. T. went on one such trip, and she left the children in Clark's care. The next day, Clark took L. P. to preschool. In the lunchroom, one of L. P.'s teachers, Ramona Whitley, observed that L. P.'s left eye appeared bloodshot. She asked him " '[w]hat happened,' " and he initially said nothing. 137 Ohio St. 3d 346, 347, 2013-Ohio-4731, 999 N. E. 2d 592, 594. Eventually, however, he told the teacher that he " 'fell.' " Ibid. When they moved into the brighter lights of a classroom, Whitley noticed " '[r]ed marks, like whips of some sort,' " on L. P.'s face. Ibid. She notified the lead teacher, Debra Jones, who asked L. P., " 'Who did this? What happened to you?' " Id., at 348, 999 N. E. 2d, at 595. According to Jones, L. P. " 'seemed kind of bewildered' " and " 'said something like, Dee, Dee.' " Ibid. Jones asked L. P. whether Dee is "big or little," to which L. P. responded that "Dee is big." App. 60, 64. Jones then brought L. P. to her supervisor, who lifted the boy's shirt, revealing more injuries. Whitley called a child abuse hotline to alert authorities about the suspected abuse. When Clark later arrived at the school, he denied responsibility for the injuries and quickly left with L. P. The next day, a social worker found the children at Clark's mother's house and took them to a hospital, where a physician discovered additional injuries suggesting child abuse. L. P. had a black eye, belt marks on his back and stomach, and bruises all over his body. A. T. had two black eyes, a swollen hand, and a large burn on her cheek, and two pigtails had been ripped out at the roots of her hair. A grand jury indicted Clark on five counts of felonious assault (four related to A. T. and one related to L. P.), two counts of endangering children (one for each child), and two counts of domestic violence (one for each child). At trial, the State introduced L. P.'s statements to his teachers as evidence of Clark's guilt, but L. P. did not testify. Under Ohio law, children younger than 10 years old are incompetent to testify if they "appear incapable of receiving just impressions of the facts and transactions respecting which they are examined, or of relating them truly." Ohio Rule Evid. 601(A) (Lexis 2010). After conducting a hearing, the trial court concluded that L. P. was not competent to testify. But under Ohio Rule of Evidence 807, which allows the admission of reliable hearsay by child abuse victims, the court ruled that L. P.'s statements to his teachers bore sufficient guarantees of trustworthiness to be admitted as evidence. Clark moved to exclude testimony about L. P.'s out-of-court statements under the Confrontation Clause. The trial court denied the motion, ruling that L. P.'s responses were not testimonial statements covered by the Sixth Amendment. The jury found Clark guilty on all counts except for one assault count related to A. T., and it sentenced him to 28 years' imprisonment. Clark appealed his conviction, and a state appellate court reversed on the ground that the introduction of L. P.'s out-of-court statements violated the Confrontation Clause. In a 4-to-3 decision, the Supreme Court of Ohio affirmed. It held that, under this Court's Confrontation Clause decisions, L. P.'s statements qualified as testimonial because the primary purpose of the teachers' questioning "was not to deal with an existing emergency but rather to gather evidence potentially relevant to a subsequent criminal prosecution." 137 Ohio St. 3d, at 350, 999 N. E. 2d, at 597. The court noted that Ohio has a "mandatory reporting" law that requires certain professionals, including preschool teachers, to report suspected child abuse to government authorities. See id., at 349-350, 999 N. E. 2d, at 596-597. In the court's view, the teachers acted as agents of the State under the mandatory reporting law and "sought facts concerning past criminal activity to identify the person responsible, eliciting statements that 'are functionally identical to live, in-court testimony, doing precisely what a witness does on direct examination.' " Id., at 355, 999 N. E. 2d, at 600 (quoting Melendez-Diaz v. Massachusetts, 557 U. S. 305, 310-311 (2009); some internal quotation marks omitted). We granted certiorari, 573 U. S. ___ (2014), and we now reverse.IIA The Sixth Amendment's Confrontation Clause, which is binding on the States through the Fourteenth Amendment, provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." In Ohio v. Roberts, 448 U. S. 56, 66 (1980), we interpreted the Clause to permit the admission of out-of-court statements by an unavailable witness, so long as the statements bore "adequate 'indicia of reliability.' " Such indicia are present, we held, if "the evidence falls within a firmly rooted hearsay exception" or bears "particularized guarantees of trustworthiness." Ibid. In Crawford v. Washington, 541 U. S. 36 (2004), we adopted a different approach. We explained that "witnesses," under the Confrontation Clause, are those "who bear testimony," and we defined "testimony" as "a solemn declaration or affirmation made for the purpose of establishing or proving some fact." Id., at 51 (internal quotation marks and alteration omitted). The Sixth Amendment, we concluded, prohibits the introduction of testimonial statements by a nontestifying witness, unless the witness is "unavailable to testify, and the defendant had had a prior opportunity for cross-examination." Id., at 54. Applying that definition to the facts in Crawford, we held that statements by a witness during police questioning at the station house were testimonial and thus could not be admitted. But our decision in Crawford did not offer an exhaustive definition of "testimonial" statements. Instead, Crawford stated that the label "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Id., at 68. Our more recent cases have labored to flesh out what it means for a statement to be "testimonial." In Davis v. Washington and Hammon v. Indiana, 547 U. S. 813 (2006), which we decided together, we dealt with statements given to law enforcement officers by the victims of domestic abuse. The victim in Davis made statements to a 911 emergency operator during and shortly after her boyfriend's violent attack. In Hammon, the victim, after being isolated from her abusive husband, made statements to police that were memorialized in a " 'battery affidavit.' " Id., at 820. We held that the statements in Hammon were testimonial, while the statements in Davis were not. Announcing what has come to be known as the "primary purpose" test, we explained: "Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution." Id., at 822. Because the cases involved statements to law enforcement officers, we reserved the question whether similar statements to individuals other than law enforcement officers would raise similar issues under the Confrontation Clause. See id., at 823, n. 2. In Michigan v. Bryant, 562 U. S. 344 (2011), we further expounded on the primary purpose test. The inquiry, we emphasized, must consider "all of the relevant circumstances." Id., at 369. And we reiterated our view in Davis that, when "the primary purpose of an interrogation is to respond to an 'ongoing emergency,' its purpose is not to create a record for trial and thus is not within the scope of the [Confrontation] Clause." 562 U. S., at 358. At the same time, we noted that "there may be other circumstances, aside from ongoing emergencies, when a statement is not procured with a primary purpose of creating an out-of-court substitute for trial testimony." Ibid. "[T]he existence vel non of an ongoing emergency is not the touchstone of the testimonial inquiry." Id., at 374. Instead, "whether an ongoing emergency exists is simply one factor . . . that informs the ultimate inquiry regarding the 'primary purpose' of an interrogation." Id., at 366. One additional factor is "the informality of the situation and the interrogation." Id., at 377. A "formal station-house interrogation," like the questioning in Crawford, is more likely to provoke testimonial statements, while less formal questioning is less likely to reflect a primary purpose aimed at obtaining testimonial evidence against the accused. Id., at 366, 377. And in determining whether a statement is testimonial, "standard rules of hearsay, designed to identify some statements as reliable, will be relevant." Id., at 358-359. In the end, the question is whether, in light of all the circumstances, viewed objectively, the "primary purpose" of the conversation was to "creat[e] an out-of-court substitute for trial testimony." Id., at 358. Applying these principles in Bryant, we held that the statements made by a dying victim about his assailant were not testimonial because the circumstances objectively indicated that the conversation was primarily aimed at quelling an ongoing emergency, not establishing evidence for the prosecution. Because the relevant statements were made to law enforcement officers, we again declined to decide whether the same analysis applies to statements made to individuals other than the police. See id., at 357, n. 3. Thus, under our precedents, a statement cannot fall within the Confrontation Clause unless its primary purpose was testimonial. "Where no such primary purpose exists, the admissibility of a statement is the concern of state and federal rules of evidence, not the Confrontation Clause." Id., at 359. But that does not mean that the Confrontation Clause bars every statement that satisfies the "primary purpose" test. We have recognized that the Confrontation Clause does not prohibit the introduction of out-of-court statements that would have been admissible in a criminal case at the time of the founding. See Giles v. California, 554 U. S. 353, 358-359 (2008); Crawford, 541 U. S., at 56, n. 6, 62. Thus, the primary purpose test is a necessary, but not always sufficient, condition for the exclusion of out-of-court statements under the Confrontation Clause. B In this case, we consider statements made to preschool teachers, not the police. We are therefore presented with the question we have repeatedly reserved: whether statements to persons other than law enforcement officers are subject to the Confrontation Clause. Because at least some statements to individuals who are not law enforcement officers could conceivably raise confrontation concerns, we decline to adopt a categorical rule excluding them from the Sixth Amendment's reach. Nevertheless, such statements are much less likely to be testimonial than statements to law enforcement officers. And considering all the relevant circumstances here, L. P.'s statements clearly were not made with the primary purpose of creating evidence for Clark's prosecution. Thus, their introduction at trial did not violate the Confrontation Clause. L. P.'s statements occurred in the context of an ongoing emergency involving suspected child abuse. When L. P.'s teachers noticed his injuries, they rightly became worried that the 3-year-old was the victim of serious violence. Because the teachers needed to know whether it was safe to release L. P. to his guardian at the end of the day, they needed to determine who might be abusing the child.2 Thus, the immediate concern was to protect a vulnerable child who needed help. Our holding in Bryant is instructive. As in Bryant, the emergency in this case was ongoing, and the circumstances were not entirely clear. L. P.'s teachers were not sure who had abused him or how best to secure his safety. Nor were they sure whether any other children might be at risk. As a result, their questions and L. P.'s answers were primarily aimed at identifying and ending the threat. Though not as harried, the conversation here was also similar to the 911 call in Davis. The teachers' questions were meant to identify the abuser in order to protect the victim from future attacks. Whether the teachers thought that this would be done by apprehending the abuser or by some other means is irrelevant. And the circumstances in this case were unlike the interrogation in Hammon, where the police knew the identity of the assailant and questioned the victim after shielding her from potential harm. There is no indication that the primary purpose of the conversation was to gather evidence for Clark's prosecution. On the contrary, it is clear that the first objective was to protect L. P. At no point did the teachers inform L. P. that his answers would be used to arrest or punish his abuser. L. P. never hinted that he intended his statements to be used by the police or prosecutors. And the conversation between L. P. and his teachers was informal and spontaneous. The teachers asked L. P. about his injuries immediately upon discovering them, in the informal setting of a preschool lunchroom and classroom, and they did so precisely as any concerned citizen would talk to a child who might be the victim of abuse. This was nothing like the formalized station-house questioning in Crawford or the police interrogation and battery affidavit in Hammon. L. P.'s age fortifies our conclusion that the statements in question were not testimonial. Statements by very young children will rarely, if ever, implicate the Confrontation Clause. Few preschool students understand the details of our criminal justice system. Rather, "[r]esearch on children's understanding of the legal system finds that" young children "have little understanding of prosecution." Brief for American Professional Society on the Abuse of Children as Amicus Curiae 7, and n. 5 (collecting sources). And Clark does not dispute those findings. Thus, it is extremely unlikely that a 3-year-old child in L. P.'s position would intend his statements to be a substitute for trial testimony. On the contrary, a young child in these circumstances would simply want the abuse to end, would want to protect other victims, or would have no discernible purpose at all. As a historical matter, moreover, there is strong evidence that statements made in circumstances similar to those facing L. P. and his teachers were admissible at common law. See Lyon & LaMagna, The History of Children's Hearsay: From Old Bailey to Post-Davis, 82 Ind. L. J. 1029, 1030 (2007); see also id., at 1041-1044 (examining child rape cases from 1687 to 1788); J. Langbein, The Origins of Adversary Criminal Trial 239 (2003) ("The Old Bailey" court in 18th-century London "tolerated flagrant hearsay in rape prosecutions involving a child victim who was not competent to testify because she was too young to appreciate the significance of her oath"). And when 18th-century courts excluded statements of this sort, see, e.g., King v. Brasier, 1 Leach 199, 168 Eng. Rep. 202 (K. B. 1779), they appeared to do so because the child should have been ruled competent to testify, not because the statements were otherwise inadmissible. See Lyon & LaMagna, supra, at 1053-1054. It is thus highly doubtful that statements like L. P.'s ever would have been understood to raise Confrontation Clause concerns. Neither Crawford nor any of the cases that it has produced has mounted evidence that the adoption of the Confrontation Clause was understood to require the exclusion of evidence that was regularly admitted in criminal cases at the time of the founding. Certainly, the statements in this case are nothing like the notorious use of ex parte examination in Sir Walter Raleigh's trial for treason, which we have frequently identified as "the principal evil at which the Confrontation Clause was directed." Crawford, 541 U. S., at 50; see also Bryant, 562 U. S., at 358. Finally, although we decline to adopt a rule that statements to individuals who are not law enforcement officers are categorically outside the Sixth Amendment, the fact that L. P. was speaking to his teachers remains highly relevant. Courts must evaluate challenged statements in context, and part of that context is the questioner's identity. See id., at 369. Statements made to someone who is not principally charged with uncovering and prosecuting criminal behavior are significantly less likely to be testimonial than statements given to law enforcement officers. See, e.g., Giles, 554 U. S., at 376. It is common sense that the relationship between a student and his teacher is very different from that between a citizen and the police. We do not ignore that reality. In light of these circumstances, the Sixth Amendment did not prohibit the State from introducing L. P.'s statements at trial.III Clark's efforts to avoid this conclusion are all off-base. He emphasizes Ohio's mandatory reporting obligations, in an attempt to equate L. P.'s teachers with the police and their caring questions with official interrogations. But the comparison is inapt. The teachers' pressing concern was to protect L. P. and remove him from harm's way. Like all good teachers, they undoubtedly would have acted with the same purpose whether or not they had a state-law duty to report abuse. And mandatory reporting statutes alone cannot convert a conversation between a concerned teacher and her student into a law enforcement mission aimed primarily at gathering evidence for a prosecution. It is irrelevant that the teachers' questions and their duty to report the matter had the natural tendency to result in Clark's prosecution. The statements at issue in Davis and Bryant supported the defendants' convictions, and the police always have an obligation to ask questions to resolve ongoing emergencies. Yet, we held in those cases that the Confrontation Clause did not prohibit introduction of the statements because they were not primarily intended to be testimonial. Thus, Clark is also wrong to suggest that admitting L. P.'s statements would be fundamentally unfair given that Ohio law does not allow incompetent children to testify. In any Confrontation Clause case, the individual who provided the out-of-court statement is not available as an in-court witness, but the testimony is admissible under an exception to the hearsay rules and is probative of the defendant's guilt. The fact that the witness is unavailable because of a different rule of evidence does not change our analysis. Finally, Clark asks us to shift our focus from the context of L. P.'s conversation with his teachers to the jury's perception of those statements. Because, in his view, the "jury treated L. P.'s accusation as the functional equivalent of testimony," Clark argues that we must prohibit its introduction. Brief for Respondent 42. Our Confrontation Clause decisions, however, do not determine whether a statement is testimonial by examining whether a jury would view the statement as the equivalent of in-court testimony. The logic of this argument, moreover, would lead to the conclusion that virtually all out-of-court statements offered by the prosecution are testimonial. The prosecution is unlikely to offer out-of-court statements unless they tend to support the defendant's guilt, and all such statements could be viewed as a substitute for in-court testimony. We have never suggested, however, that the Confrontation Clause bars the introduction of all out-of-court statements that support the prosecution's case. Instead, we ask whether a statement was given with the "primary purpose of creating an out-of-court substitute for trial testimony." Bryant, supra, at 358. Here, the answer is clear: L. P.'s statements to his teachers were not testimonial.IV We reverse the judgment of the Supreme Court of Ohio and remand the case for further proceedings not inconsistent with this opinion.It is so ordered.Scalia, J., concurring in judgment 576 U. S. ____ (2015)NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.No. 13-1352OHIO, PETITIONER v. DARIUS CLARKon writ of certiorari to the supreme court of ohio[June 18, 2015] Justice Scalia, with whom Justice Ginsburg joins, concurring in the judgment. I agree with the Court's holding, and with its refusal to decide two questions quite unnecessary to that holding: what effect Ohio's mandatory-reporting law has in transforming a private party into a state actor for Confrontation Clause purposes, and whether a more permissive Confrontation Clause test — one less likely to hold the statements testimonial — should apply to interrogations by private actors. The statements here would not be testimonial under the usual test applicable to informal police interrogation. L. P.'s primary purpose here was certainly not to invoke the coercive machinery of the State against Clark. His age refutes the notion that he is capable of forming such a purpose. At common law, young children were generally considered incompetent to take oaths, and were therefore unavailable as witnesses unless the court determined the individual child to be competent. Lyon & LaManga, The History of Children's Hearsay: From Old Bailey to Post-Davis, 82 Ind. L. J. 1029, 1030-1031 (2007). The inconsistency of L. P.'s answers — making him incompetent to testify here — is hardly unusual for a child of his age. And the circumstances of L. P.'s statements objectively indicate that even if he could, as an abstract matter, form such a purpose, he did not. Nor did the teachers have the primary purpose of establishing facts for later prosecution. Instead, they sought to ensure that they did not deliver an abused child back into imminent harm. Nor did the conversation have the requisite solemnity necessary for testimonial statements. A 3-year-old was asked questions by his teachers at school. That is far from the surroundings adequate to impress upon a declarant the importance of what he is testifying to. That is all that is necessary to decide the case, and all that today's judgment holds. I write separately, however, to protest the Court's shoveling of fresh dirt upon the Sixth Amendment right of confrontation so recently rescued from the grave in Crawford v. Washington, 541 U. S. 36 (2004). For several decades before that case, we had been allowing hearsay statements to be admitted against a criminal defendant if they bore " 'indicia of reliability.' " Ohio v. Roberts, 448 U. S. 56, 66 (1980). Prosecutors, past and present, love that flabby test. Crawford sought to bring our application of the Confrontation Clause back to its original meaning, which was to exclude unconfronted statements made by witnesses — i.e., statements that were testimonial. 541 U. S., at 51. We defined testimony as a " 'solemn declaration or affirmation made for the purpose of establishing or proving some fact,' " ibid.--in the context of the Confrontation Clause, a fact "potentially relevant to later criminal prosecution," Davis v. Washington, 547 U. S. 813, 822 (2006). Crawford remains the law. But when else has the categorical overruling, the thorough repudiation, of an earlier line of cases been described as nothing more than "adopt[ing] a different approach," ante, at 4 — as though Crawford is only a matter of twiddle-dum twiddle-dee preference, and the old, pre-Crawford "approach" remains available? The author unabashedly displays his hostility to Crawford and its progeny, perhaps aggravated by inability to muster the votes to overrule them. Crawford "does not rank on the [author of the opinion's] top-ten list of favorite precedents — and . . . the [author] could not restrain [himself] from saying (and saying and saying) so." Harris v. Quinn, 573 U. S. ___, ___ (2014) (Kagan, J., dissenting) (slip op., at 15). But snide detractions do no harm; they are just indications of motive. Dicta on legal points, however, can do harm, because though they are not binding they can mislead. Take, for example, the opinion's statement that the primary-purpose test is merely one of several heretofore unmentioned conditions ("necessary, but not always sufficient") that must be satisfied before the Clause's protections apply. Ante, at 7. That is absolutely false, and has no support in our opinions. The Confrontation Clause categorically entitles a defendant to be confronted with the witnesses against him; and the primary-purpose test sorts out, among the many people who interact with the police informally, who is acting as a witness and who is not. Those who fall into the former category bear testimony, and are therefore acting as "witnesses," subject to the right of confrontation. There are no other mysterious requirements that the Court declines to name. The opinion asserts that future defendants, and future Confrontation Clause majorities, must provide "evidence that the adoption of the Confrontation Clause was understood to require the exclusion of evidence that was regularly admitted in criminal cases at the time of the founding." Ante, at 10. This dictum gets the burden precisely backwards — which is of course precisely the idea. Defendants may invoke their Confrontation Clause rights once they have established that the state seeks to introduce testimonial evidence against them in a criminal case without unavailability of the witness and a previous opportunity to cross-examine. The burden is upon the prosecutor who seeks to introduce evidence over this bar to prove a long-established practice of introducing specific kinds of evidence, such as dying declarations, see Crawford, supra, at 56, n. 6, for which cross-examination was not typically necessary. A suspicious mind (or even one that is merely not naïve) might regard this distortion as the first step in an attempt to smuggle longstanding hearsay exceptions back into the Confrontation Clause — in other words, an attempt to return to Ohio v. Roberts. But the good news is that there are evidently not the votes to return to that halcyon era for prosecutors; and that dicta, even calculated dicta, are nothing but dicta. They are enough, however, combined with the peculiar phenomenon of a Supreme Court opinion's aggressive hostility to precedent that it purports to be applying, to prevent my joining the writing for the Court. I concur only in the judgment.Thomas, J., concurring in judgment 576 U. S. ____ (2015)No. 13-1352OHIO, PETITIONER v. DARIUS CLARKon writ of certiorari to the supreme court of ohio[June 18, 2015] Justice Thomas, concurring in the judgment. I agree with the Court that Ohio mandatory reporters are not agents of law enforcement, that statements made to private persons or by very young children will rarely implicate the Confrontation Clause, and that the admission of the statements at issue here did not implicate that constitutional provision. I nonetheless cannot join the majority's analysis. In the decade since we first sought to return to the original meaning of the Confrontation Clause, see Crawford v. Washington, 541 U. S. 36 (2004), we have carefully reserved consideration of that Clause's application to statements made to private persons for a case in which it was squarely presented. See, e.g., Michigan v. Bryant, 562 U. S. 344, 357, n. 3 (2011). This is that case; yet the majority does not offer clear guidance on the subject, declaring only that "the primary purpose test is a necessary, but not always sufficient, condition" for a statement to fall within the scope of the Confrontation Clause. Ante, at 7. The primary purpose test, however, is just as much "an exercise in fiction . . . disconnected from history" for statements made to private persons as it is for statements made to agents of law enforcement, if not more so. See Bryant, supra, at 379 (Thomas, J., concurring in judgment) (internal quotation marks omitted). I would not apply it here. Nor would I leave the resolution of this important question in doubt. Instead, I would use the same test for statements to private persons that I have employed for statements to agents of law enforcement, assessing whether those statements bear sufficient indicia of solemnity to qualify as testimonial. See Crawford, supra, at 51; Davis v. Washington, 547 U. S. 813, 836-837 (2006) (Thomas, J., concurring in judgment in part and dissenting in part). This test is grounded in the history of the common-law right to confrontation, which "developed to target particular practices that occurred under the English bail and committal statutes passed during the reign of Queen Mary, namely, the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused." Id., at 835 (internal quotation marks omitted). Reading the Confrontation Clause in light of this history, we have interpreted the accused's right to confront "the witnesses against him," U. S. Const., Amdt. 6, as the right to confront those who "bear testimony" against him, Crawford, 541 U. S., at 51 (relying on the ordinary meaning of "witness"). And because "[t]estimony . . . is . . . a solemn declaration or affirmation made for the purpose of establishing or proving some fact," ibid. (internal quotation marks and brackets omitted), an analysis of statements under the Clause must turn in part on their solemnity, Davis, supra, at 836 (opinion of Thomas, J.). I have identified several categories of extrajudicial statements that bear sufficient indicia of solemnity to fall within the original meaning of testimony. Statements "contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions" easily qualify. White v. Illinois, 502 U. S. 346, 365 (1992) (Thomas, J., concurring in part and concurring in judgment). And statements not contained in such materials may still qualify if they were obtained in "a formalized dialogue"; after the issuance of the warnings required by Miranda v. Arizona, 384 U. S. 436 (1966); while in police custody; or in an attempt to evade confrontation. Davis, supra, at 840 (opinion of Thomas, J.); see also Bryant, 562 U. S., at 379 (same) (summarizing and applying test). That several of these factors seem inherently inapplicable to statements made to private persons does not mean that the test is unsuitable for analyzing such statements. All it means is that statements made to private persons rarely resemble the historical abuses that the common-law right to confrontation developed to address, and it is those practices that the test is designed to identify. Here, L. P.'s statements do not bear sufficient indicia of solemnity to qualify as testimonial. They were neither contained in formalized testimonial materials nor obtained as the result of a formalized dialogue initiated by police. Instead, they were elicited during questioning by L. P.'s teachers at his preschool. Nor is there any indication that L. P.'s statements were offered at trial to evade confrontation. To the contrary, the record suggests that the prosecution would have produced L. P. to testify had he been deemed competent to do so. His statements bear no "resemblance to the historical practices that the Confrontation Clause aimed to eliminate." Ibid. The admission of L. P.'s extrajudicial statements thus does not implicate the Confrontation Clause. I respectfully concur in the judgment.FOOTNOTESFootnote 1 Like the Ohio courts, we identify Clark's victims and their mother by their initials.Footnote 2 In fact, the teachers and a social worker who had come to the school were reluctant to release L. P. into Clark's care after the boy identified Clark as his abuser. But after a brief "stare-down" with the social worker, Clark bolted out the door with L. P., and social services were not able to locate the children until the next day. App. 92-102, 150-151.

In July 2001, respondent Brillon was arrested on felony domestic assault and habitual offender charges. Nearly three years later, in June 2004, he was tried by jury, found guilty as charged, and sentenced to 12 to 20 years in prison. During the time between his arrest and his trial, at least six different attorneys were appointed to represent him. Brillon "fired" his first attorney, who served from July 2001 to February 2002. His third lawyer, who served from March 2002 until June 2002, was allowed to withdraw when he reported that Brillon had threatened his life. His fourth lawyer served from June 2002 until November 2002, when the trial court released him from the case. His fifth lawyer, assigned two months later, withdrew in April 2003. Four months thereafter, his sixth lawyer was assigned, and she took the case to trial in June 2004. The trial court denied Brillon's motion to dismiss for want of a speedy trial. The Vermont Supreme Court, however, reversed, holding that Brillon's conviction must be vacated, and the charges against him dismissed, because the State did not accord him the speedy trial required by the Sixth Amendment. Citing the balancing test this Court stated in Barker v. Wingo, 407 U. S. 514, the Vermont Supreme Court concluded that all four factors described in Barker--"[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant," id., at 530 — weighed against the State. Weighing heavily in Brillon's favor, the Vermont court said, the three-year delay in bringing him to trial was "extreme." In assessing the reasons for that delay, the court separately considered the period of each counsel's representation. It acknowledged that the first year, when Brillon was represented by his first and third lawyers, should not count against the State. But the court counted much of the remaining two years against the State. Delays in that period, the court determined, were caused, for the most part, by the failure or unwillingness of several of the assigned counsel, over an inordinate period of time, to move the case forward. As for the third and fourth Barker v. Wingo factors, the court found that Brillon repeatedly and adamantly demanded a trial and that his lengthy pretrial incarceration was prejudicial. Held: The Vermont Supreme Court erred in ranking assigned counsel essentially as state actors in the criminal justice system. Assigned counsel, just as retained counsel, act on behalf of their clients, and delays sought by counsel are ordinarily attributable to the defendants they represent. Pp. 6-11. (a) Primarily at issue here is the reason for the delay in Brillon's trial. In applying Barker, the Court has asked "whether the government or the criminal defendant is more to blame for th[e] delay." Doggett v. United States, 505 U. S. 647, 651. Delay "to hamper the defense" weighs heavily against the prosecution, Barker, 407 U. S., at 531, while delay caused by the defense weighs against the defendant, id., at 529. Because "the attorney is the [defendant's] agent when acting, or failing to act, in furtherance of the litigation," delay caused by the defendant's counsel is charged against the defendant. Coleman v. Thompson, 501 U. S. 722, 753. The same principle applies whether counsel is privately retained or publicly assigned, for " '[o]nce a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program.' " Polk County v. Dodson, 454 U. S. 312, 318. Unlike a prosecutor or the court, assigned counsel ordinarily is not considered a state actor. Pp. 6-8. (b) Although the balance arrived at in close cases ordinarily would not prompt this Court's review, the Vermont Supreme Court made a fundamental error in its application of Barker that calls for this Court's correction. The court erred in attributing to the State delays caused by the failure of several assigned counsel to move Brillon's case forward and in failing adequately to take into account the role of Brillon's disruptive behavior in the overall balance. Pp. 8-11. (1) An assigned counsel's failure to move the case forward does not warrant attribution of delay to the State. Most of the delay the Vermont court attributed to the State must therefore be attributed to Brillon as delays caused by his counsel, each of whom requested time extensions. Their inability or unwillingness to move the case forward may not be attributed to the State simply because they are assigned counsel. A contrary conclusion could encourage appointed counsel to delay proceedings by seeking unreasonable continuances, hoping thereby to obtain a dismissal of the indictment on speedy-trial grounds. Trial courts might well respond by viewing continuance requests made by appointed counsel with skepticism, concerned that even an apparently genuine need for more time is in reality a delay tactic. Yet the same considerations would not attend a privately retained counsel's requests for time extensions. There is no justification for treating defendants' speedy-trial claims differently based on whether their counsel is privately retained or publicly assigned. Pp. 9-10. (2) The Vermont Supreme Court further erred by treating the period of each counsel's representation discretely. The court failed appropriately to take into account Brillon's role during the first year of delay. Brillon sought to dismiss his first attorney on the eve of trial. His strident, aggressive behavior with regard to his third attorney further impeded prompt trial and likely made it more difficult for the Defender General's office to find replacement counsel. Absent Brillon's efforts to force the withdrawal of his first and third attorneys, no speedy-trial issue would have arisen. Pp. 10-11. (c) The general rule attributing to the defendant delay caused by assigned counsel is not absolute. Delay resulting from a systemic breakdown in the public defender system could be charged to the State. Cf. Polk County, 454 U. S., at 324-325. But the Vermont Supreme Court made no determination, and nothing in the record suggests, that institutional problems caused any part of the delay in Brillon's case. P. 11. 955 A. 2d 1108, reversed and remanded. Ginsburg, J,. delivered the opinion of the Court, in which Roberts, C. J., and Scalia, Kennedy, Souter, Thomas, and Alito, JJ., joined. Breyer, J., filed a dissenting opinion, in which Stevens, J., joined.VERMONT, PETITIONER v. MICHAEL BRILLONon writ of certiorari to the supreme court of vermont[March 9, 2009] Justice Ginsburg delivered the opinion of the Court. This case concerns the Sixth Amendment guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial." Michael Brillon, defendant below, respondent here, was arrested in July 2001 on felony domestic assault and habitual offender charges. Nearly three years later, in June 2004, he was tried by jury, found guilty as charged, and sentenced to 12 to 20 years in prison. The Vermont Supreme Court vacated Brillon's conviction and held that the charges against him must be dismissed because he had been denied his right to a speedy trial. During the time between Brillon's arrest and his trial, at least six different attorneys were appointed to represent him. Brillon "fired" the first, who served from July 2001 to February 2002. His third lawyer, who served from March 2002 until June 2002, was allowed to withdraw when he reported that Brillon had threatened his life. The Vermont Supreme Court charged against Brillon the delays associated with those periods, but charged against the State periods in which assigned counsel failed "to move the case forward." 955 A. 2d 1108, 1121, 1122 (2008). We hold that the Vermont Supreme Court erred in ranking assigned counsel essentially as state actors in the criminal justice system. Assigned counsel, just as retained counsel, act on behalf of their clients, and delays sought by counsel are ordinarily attributable to the defendants they represent. For a total of some six months of the time that elapsed between Brillon's arrest and his trial, Brillon lacked an attorney. The State may be charged with those months if the gaps resulted from the trial court's failure to appoint replacement counsel with dispatch. Similarly, the State may bear responsibility if there is "a breakdown in the public defender system." Id., at 1111. But, as the Vermont Supreme Court acknowledged, id., at 1126, the record does not establish any such institutional breakdown.I On July 27, 2001, Michael Brillon was arrested after striking his girlfriend. Three days later he was arraigned in state court in Bennington County, Vermont and charged with felony domestic assault. His alleged status as a habitual offender exposed him to a potential life sentence. The court ordered him held without bail. Richard Ammons, from the county public defender's office, was assigned on the day of arraignment as Brillon's first counsel.1 In October, Ammons filed a motion to recuse the trial judge. It was denied the next month and trial was scheduled for February 2002. In mid-January, Ammons moved for a continuance, but the State objected, and the trial court denied the motion. On February 22, four days before the jury draw, Ammons again moved for a continuance, citing his heavy workload and the need for further investigation. Ammons acknowledged that any delay would not count (presumably against the State) for speedy-trial purposes. The State opposed the motion,2 and at the conclusion of a hearing, the trial court denied it. Brillon, participating in the proceedings through interactive television, then announced: "You're fired, Rick." App. 187. Three days later, the trial court — over the State's objection — granted Ammons' motion to withdraw as counsel, citing Brillon's termination of Ammons and Ammons' statement that he could no longer zealously represent Brillon.3 The trial court warned Brillon that further delay would occur while a new attorney became familiar with the case. The same day, the trial court appointed a second attorney, but he immediately withdrew based on a conflict. On March 1, 2002, Gerard Altieri was assigned as Brillon's third counsel. On May 20, Brillon filed a motion to dismiss Altieri for, among other reasons, failure to file motions, "[v]irtually no communication whatsoever," and his lack of diligence "because of heavy case load." Id., ¶¶2, 5, at 113-114. At a June 11 hearing, Altieri denied several of Brillon's allegations, noted his disagreement with Brillon's trial strategy,4 and insisted he had plenty of time to prepare. The State opposed Brillon's motion as well. Near the end of the hearing, however, Altieri moved to withdraw on the ground that Brillon had threatened his life during a break in the proceedings. The trial court granted Brillon's motion to dismiss Altieri, but warned Brillon that "this is somewhat of a dubious victory in your case because it simply prolongs the time that you will remain in jail until we can bring this matter to trial." Id., at 226. That same day, the trial court appointed Paul Donaldson as Brillon's fourth counsel. At an August 5 status conference, Donaldson requested additional time to conduct discovery in light of his caseload. A few weeks later, Brillon sent a letter to the court complaining about Donaldson's unresponsiveness and lack of competence. Two months later, Brillon filed a motion to dismiss Donaldson — similar to his motion to dismiss Altieri — for failure to file motions and "virtually no communication whatsoever." Id., ¶¶1, 2, at 115-116. At a November 26 hearing, Donaldson reported that his contract with the Defender General's office had expired in June and that he had been in discussions to have Brillon's case reassigned. The trial court released Donaldson from the case "[w]ithout making any findings regarding the adequacy of [Donaldson]'s representation." 955 A. 2d, at 1119. Cf. post, at 2. Brillon's fifth counsel, David Sleigh, was not assigned until January 15, 2003; Brillon was without counsel during the intervening two months. On February 25, Sleigh sought extensions of various discovery deadlines, noting that he had been in trial out of town. App. 117. On April 10, however, Sleigh withdrew from the case, based on "modifications to [his] firm's contract with the Defender General." Id., at 158. Brillon was then without counsel for the next four months. On June 20, the Defender General's office notified the court that it had received "funding from the legislature" and would hire a new special felony unit defender for Brillon. Id., at 159. On August 1, Kathleen Moore was appointed as Brillon's sixth counsel. The trial court set November 7 as the deadline for motions, but granted several extensions in accord with the parties' stipulation. On February 23, 2004, Moore filed a motion to dismiss for lack of a speedy trial. The trial court denied the motion on April 19. The case finally went to trial on June 14, 2004. Brillon was found guilty and sentenced to 12 to 20 years in prison. The trial court denied a post-trial motion to dismiss for want of a speedy trial, concluding that the delay in Brillon's trial was "in large part the result of his own actions" and that Brillon had "failed to demonstrate prejudice as a result of [the] pre-trial delay." App. to Pet. for Cert. 72. On appeal, the Vermont Supreme Court held 3 to 2 that Brillon's conviction must be vacated and the charges dismissed for violation of his Sixth Amendment right to a speedy trial. Citing the balancing test of Barker v. Wingo, 407 U. S. 514 (1972), the majority concluded that all four of the factors described in Barker--"[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant"--weighed against the State. Id., at 530. The court first found that the three-year delay in bringing Brillon to trial was "extreme" and weighed heavily in his favor. See 955 A. 2d, at 1116. In assessing the reasons for that delay, the Vermont Supreme Court separately considered the period of each counsel's representation. It acknowledged that the first year, when Brillon was represented by Ammons and Altieri, should not count against the State. Id., at 1120. But the court counted much of the remaining two years against the State for delays "caused, for the most part, by the failure of several of defendant's assigned counsel, over an inordinate period of time, to move his case forward." Id., at 1122. As for the third and fourth factors, the court found that Brillon "repeatedly and adamantly demanded to be tried," ibid., and that his "lengthy pretrial incarceration" was prejudicial, despite his insubstantial assertions of evidentiary prejudice, id., at 1125. The dissent strongly disputed the majority's characterization of the periods of delay. It concluded that "the lion's share of delay in this case is attributable to defendant, and not to the state." Id., at 1127. But for Brillon's "repeated maneuvers to dismiss his lawyers and avoid trial through the first eleven months following arraignment," the dissent explained, "the difficulty in finding additional counsel would not have arisen." Id., at 1128. We granted certiorari, 554 U. S. ___ (2008),5 and now reverse the judgment of the Vermont Supreme Court. II The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy ... trial." The speedy-trial right is "amorphous," "slippery," and "necessarily relative." Barker, 407 U. S., at 522 (quoting Beavers v. Haubert, 198 U. S. 77, 87 (1905)). It is "consistent with delays and depend[ent] upon circumstances." 407 U. S., at 522 (internal quotation marks omitted). In Barker, the Court refused to "quantif[y]" the right "into a specified number of days or months" or to hinge the right on a defendant's explicit request for a speedy trial. Id., at 522-525. Rejecting such "inflexible approaches," Barker established a "balancing test, in which the conduct of both the prosecution and the defendant are weighed." Id., at 529, 530. "[S]ome of the factors" that courts should weigh include "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." Ibid. Primarily at issue here is the reason for the delay in Brillon's trial. Barker instructs that "different weights should be assigned to different reasons," id., at 531, and in applying Barker, we have asked "whether the government or the criminal defendant is more to blame for th[e] delay." Doggett v. United States, 505 U. S. 647, 651 (1992). Deliberate delay "to hamper the defense" weighs heavily against the prosecution. Barker, 407 U. S., at 531. "[M]ore neutral reason[s] such as negligence or overcrowded courts" weigh less heavily "but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." Ibid. In contrast, delay caused by the defense weighs against the defendant: "[I]f delay is attributable to the defendant, then his waiver may be given effect under standard waiver doctrine." Id., at 529. Cf. United States v. Loud Hawk, 474 U. S. 302, 316 (1986) (noting that a defendant whose trial was delayed by his interlocutory appeal "normally should not be able ... to reap the reward of dismissal for failure to receive a speedy trial"). That rule accords with the reality that defendants may have incentives to employ delay as a "defense tactic": delay may "work to the accused's advantage" because "witnesses may become unavailable or their memories may fade" over time. Barker, 407 U. S., at 521. Because "the attorney is the [defendant's] agent when acting, or failing to act, in furtherance of the litigation," delay caused by the defendant's counsel is also charged against the defendant. Coleman v. Thompson, 501 U. S. 722, 753 (1991).6 The same principle applies whether counsel is privately retained or publicly assigned, for "[o]nce a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program." Polk County v. Dodson, 454 U. S. 312, 318 (1981) (internal quotation marks omitted). "Except for the source of payment," the relationship between a defendant and the public defender representing him is "identical to that existing between any other lawyer and client." Ibid. Unlike a prosecutor or the court, assigned counsel ordinarily is not considered a state actor.7 III Barker's formulation "necessarily compels courts to approach speedy trial cases on an ad hoc basis," 407 U. S., at 530, and the balance arrived at in close cases ordinarily would not prompt this Court's review. But the Vermont Supreme Court made a fundamental error in its application of Barker that calls for this Court's correction. The Vermont Supreme Court erred in attributing to the State delays caused by "the failure of several assigned counsel ... to move his case forward," 955 A. 2d, at 1122, and in failing adequately to take into account the role of Brillon's disruptive behavior in the overall balance. A The Vermont Supreme Court's opinion is driven by the notion that delay caused by assigned counsel's "inaction" or failure "to move [the] case forward" is chargeable to the State, not the defendant. Id., at 1111, 1122. In this case, that court concluded, "a significant portion of the delay in bringing defendant to trial must be attributed to the state, even though most of the delay was caused by the inability or unwillingness of assigned counsel to move the case forward." Id., at 1121. We disagree. An assigned counsel's failure "to move the case forward" does not warrant attribution of delay to the State. Contrary to the Vermont Supreme Court's analysis, assigned counsel generally are not state actors for purposes of a speedy-trial claim. While the Vermont Defender General's office is indeed "part of the criminal justice system," ibid., the individual counsel here acted only on behalf of Brillon, not the State. See Polk County, 454 U. S., at 320-322 (rejecting the view that public defenders act under color of state law because they are paid by the State). See also supra, at 8. Most of the delay that the Vermont Supreme Court attributed to the State must therefore be attributed to Brillon as delays caused by his counsel. During those periods, Brillon was represented by Donaldson, Sleigh, and Moore, all of whom requested extensions and continuances.8 Their "inability or unwillingness ... to move the case forward," 955 A. 2d, at 1121, may not be attributed to the State simply because they are assigned counsel. A contrary conclusion could encourage appointed counsel to delay proceedings by seeking unreasonable continuances, hoping thereby to obtain a dismissal of the indictment on speedy-trial grounds. Trial courts might well respond by viewing continuance requests made by appointed counsel with skepticism, concerned that even an apparently genuine need for more time is in reality a delay tactic. Yet the same considerations would not attend a privately retained counsel's requests for time extensions. We see no justification for treating defendants' speedy-trial claims differently based on whether their counsel is privately retained or publicly assigned. B In addition to making assigned counsel's "failure ... to move [the] case forward" the touchstone of its speedy-trial inquiry, the Vermont Supreme Court further erred by treating the period of each counsel's representation discretely. The factors identified in Barker "have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process." 407 U. S., at 533. Yet the Vermont Supreme Court failed appropriately to take into account Brillon's role during the first year of delay in "the chain of events that started all this." Tr. of Oral Arg. 46. Brillon sought to dismiss Ammons on the eve of trial. His strident, aggressive behavior with regard to Altieri, whom he threatened, further impeded prompt trial and likely made it more difficult for the Defender General's office to find replacement counsel. Even after the trial court's warning regarding delay, Brillon sought dismissal of yet another attorney, Donaldson. Just as a State's "deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the [State]," Barker, 407 U. S., at 531, so too should a defendant's deliberate attempt to disrupt proceedings be weighted heavily against the defendant. Absent Brillon's deliberate efforts to force the withdrawal of Ammons and Altieri, no speedy-trial issue would have arisen. The effect of these earlier events should have been factored into the court's analysis of subsequent delay.9 C The general rule attributing to the defendant delay caused by assigned counsel is not absolute. Delay resulting from a systemic "breakdown in the public defender system," 955 A. 2d, at 1111, could be charged to the State. Cf. Polk County, 454 U. S., at 324-325. But the Vermont Supreme Court made no determination, and nothing in the record suggests, that institutional problems caused any part of the delay in Brillon's case. In sum, delays caused by defense counsel are properly attributed to the defendant, even where counsel is assigned. "[A]ny inquiry into a speedy trial claim necessitates a functional analysis of the right in the particular context of the case," Barker, 407 U. S., at 522, and the record in this case does not show that Brillon was denied his constitutional right to a speedy trial. * * * For the reasons stated, the judgment of the Vermont Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.It is so ordered.VERMONT, PETITIONER v. MICHAEL BRILLONon writ of certiorari to the supreme court of vermont[March 9, 2009] Justice Breyer, with whom Justice Stevens joins, dissenting. We granted certiorari in this case to decide whether delays caused "solely" by a public defender can be "charged against the State pursuant to the test in Barker v. Wingo, 407 U. S. 514 (1972)." Pet. for Cert. i, ¶1. The case, in my view, does not squarely present that question, for the Vermont Supreme Court, when it found Michael Brillon's trial unconstitutionally delayed, did not count such delays against the State. The court's opinion for the most part makes that fact clear; at worst some passages are ambiguous. Given these circumstances, I would dismiss the writ of certiorari as improvidently granted.I The relevant time period consists of slightly less than three years, stretching from July 2001, when Brillon was indicted, until mid-June 2004, when he was convicted and sentenced. In light of Brillon's improper behavior, see ante, at 3-4, the Vermont Supreme Court did not count months 1 through 12 (mid-July 2001 through mid-June 2002) against the State. Noting the objection that Brillon had sought to "intentionally sabotag[e] the criminal proceedings against him," the Vermont Supreme Court was explicit that this time period "do[es] not count ... against the [S]tate." 955 A. 2d 1108, 1120 (2008). The Vermont Supreme Court did count months 13 through 17 (mid-June 2002 through November 2002) against the State. It did so under circumstances where (1) Brillon's counsel, Paul Donaldson, revealed that his contract with the defender general's office had expired in June 2002 — shortly after (perhaps before!) he took over as Brillon's counsel, App. 232-233, (2) he stated that this case was "basically the beginning of [his] departure from the contract," ibid., and (3) he made no filings, missed several deadlines, did "little or nothing" to "move the case forward," and made only one brief appearance at a status conference in mid-August. 955 A. 2d, at 1121. I believe it fairer to characterize this period, not as a period in which "assigned counsel" failed to move the case forward, ante, at 1, but as a period in which Brillon, in practice, had no assigned counsel. And, given that the State conceded its responsibility for delays caused by another defender who resigned for "contractual reasons," see infra at 3, it is hardly unreasonable that the Vermont Supreme Court counted this period of delay against the State. The Vermont Supreme Court also counted months 18 through 25 (the end of November 2002 through July 2003) against the State. It did so because the State conceded in its brief that this period of delay "cannot be attributed to the defendant." App. 78 (emphasis added). This concession is not surprising in light of the fact that during much of this period, Brillon was represented by David Sleigh, a contract attorney, who during the course of his representation filed nothing on Brillon's behalf except a single motion seeking to extend discovery. The record reflects no other actions by Sleigh other than a letter sent to Brillon informing him that "[a]s a result of modifications to our firm's contract with the Defender General, we will not be representing you in your pending case." Id., at 158. Brillon was left without counsel for a period of nearly six months. The State explained in conceding its responsibility for this delay that Sleigh had been forced to withdraw "for contractual reasons," and that the defender general's office had been unable to replace him "for funding reasons." Id., at 78. Finally, the Vermont Supreme Court counted against the State the last 11 months — from August 2003 to mid-June 2004. But it is impossible to conclude from the opinion whether it did so because it held the State responsible for the defender's failure to "move the case forward," or for other reasons having nothing to do with counsel, namely the judge's unavailability, see id., at 138, or the fact that "the [case] files were incomplete" and "additional documents were needed from the State," 955 A. 2d, at 1120-1121. Treating the opinion as charging the State on the basis of the defender's conduct is made more difficult by the fact that Brillon did not argue below that Kathleen Moore, his defender during this period, caused any delays. Appellant's Reply Brief in No. 2005-167 (Vt.), 2007 WL 990004, *7.II In sum, I can find no convincing reason to believe the Vermont Supreme Court made the error of constitutional law that the majority attributes to it. Rather than read ambiguities in its opinion against it, thereby assuming the presence of the error the Court finds, I would dismiss the writ as improvidently granted. As a majority nonetheless wishes to decide the case, I would note that the Vermont Supreme Court has considerable authority to supervise the appointment of public defenders. See Vt. Stat. Ann., Tit. 13, §§5204, 5272 (1998); see also Vt. Rule Crim. Proc. 44 (2003). It consequently warrants leeway when it decides whether a particular failing is properly attributed to assigned counsel or instead to the failure of the defender general's office properly to assign counsel. Ante, at 11. I do not believe the Vermont Supreme Court exceeded that leeway here. And I would affirm its decision. With respect, I dissent.FOOTNOTESFootnote 1 Vermont's Defender General has "the primary responsibility for providing needy persons with legal services." Vt. Stat. Ann., Tit. 13, §5253(a) (1998). These services may be provided "personally, through public defenders," or through contract attorneys. Ibid. Footnote 2 The State expressed its concern that the continuance request was "just part and parcel of an effort by the defense to have the Court not hear this matter." App. 180. Under Vermont procedures, the judge presiding over the trial was scheduled to "rotate" out of the county where Brillon's case was pending in March 2002. See id., ¶6, at 109. Thus, a continuance past March would have caused a different judge to preside over Brillon's trial, despite the denial of his motion to recuse the initial judge. Ammons requested a continuance until April. Footnote 3 Ammons also cited as cause to withdraw, "certain irreconcilable differences in preferred approach between Mr. Brillon and counsel as to trial strategy, as well as other legitimate legal decisions." Id., ¶2, at 104. Footnote 4 Specifically, Altieri appeared reluctant to follow Brillon's tactic that he "bring in a lot of people" at trial, "some of them young kids and relatives ... in an attempt by Mr. Brillon — this is his theory — I don't want to use the words trash, [to] impeach [the victim]." Id., at 216-217. Footnote 5 Vermont's Constitution contains a speedy-trial clause which reads: "[I]n all prosecutions for criminal offenses, a person hath a right to ... a speedy public trial by an impartial jury ... ." Vt. Const., Ch. I, Art. 10. Notably, the Vermont Supreme Court made no ruling under the State's own prescription, but instead relied solely on the Federal Constitution. Because it did so, our review authority was properly invoked and exercised. See Oregon v. Hass, 420 U. S. 714, 719-720 (1975); Ginsburg, Book Review, 92 Harv. L. Rev. 340, 343-344 (1978). But see post, at 1-4. Footnote 6 Several States' speedy-trial statutes expressly exclude from computation of the time limit continuances and delays caused by the defendant or defense counsel. See, e.g., Cal. Penal Code Ann. §1381 (West 2000); Ill. Comp. Stat., ch. 725, §5/103-5(f) (2006); N. Y. Crim. Proc. Law Ann. §30.30(4) (West Supp. 2009); Alaska Rule Crim. Proc. 45(d) (1993); Ark. Rule Crim. Proc. 28.3 (2006); Ind. Rule Crim. Proc. 4(A) (2009). See also Brief for National Governors Association et al. as Amici Curiae 17-18, and n. 12. Footnote 7 A public defender may act for the State, however, "when making hiring and firing decisions on behalf of the State," and "while performing certain administrative and possibly investigative functions." Polk County v. Dodson, 454 U. S. 312, 325 (1981). Footnote 8 The State conceded before the Vermont Supreme Court that the period of Sleigh's representation — along with a six-month period of no representation — was properly attributed to the State. 955 A. 2d 1108, 1120-1121 (2008). The State sought to avoid its concession at oral argument before this Court, but in the alternative, noted that the period of Sleigh's representation "is really inconsequential." Tr. of Oral Arg. 5-6. We agree that in light of the three-year delay caused mostly by Brillon, the attribution of Sleigh's three-month representation does not tip the balance for either side. Footnote 9 Brillon lacked counsel for some six months. In light of his own role in the initial periods of delay, however, this six-month period, even if attributed to the State, does not establish a speedy-trial violation.

[Footnote *] Together with No. 82-134, Taxation With Representation of Washington v. Regan, Secretary of the Treasury, et al., also on appeal from the same court. Section 501(c)(3) of the Internal Revenue Code of 1954 (Code) grants tax exemption to certain nonprofit organizations "no substantial part of the activities of which is carrying on propaganda, or otherwise attempting to influence legislation." Section 170(c)(2) permits taxpayers who contribute to 501(c)(3) organizations to deduct the amount of their contributions on their federal income tax returns. Section 501(c)(4) grants tax-exempt status to certain nonprofit organizations but contributions to these organizations are not deductible. Taxation With Representation of Washington (TWR) is a nonprofit corporation organized to promote its view of the "public interest" in the area of federal taxation; it was formed to take over the operation of two other nonprofit organizations, one of which had tax-exempt status under 501(c)(3) and the other under 501(c)(4). The Internal Revenue Service denied TWR's application for tax-exempt status under 501(c)(3), because it appeared that a substantial part of TWR's activities would consist of attempting to influence legislation. TWR then brought suit in Federal District Court against the Commissioner of Internal Revenue, the Secretary of the Treasury, and the United States, claiming that 501(c)(3)'s prohibition against substantial lobbying is unconstitutional under the First Amendment by imposing an "unconstitutional burden" on the receipt of tax-deductible contributions, and is also unconstitutional under the equal protection component of the Fifth Amendment's Due Process Clause because the Code permits taxpayers to deduct contributions to veterans' organizations that qualify for tax exemption under 501(c)(19). The District Court granted summary judgment for the defendants, but the Court of Appeals reversed, holding that 501(c)(3) does not violate the First Amendment but does violate the Fifth Amendment.Held: 1. Section 501(c)(3) does not violate the First Amendment. Congress has not infringed any First Amendment rights or regulated any First Amendment activity but has simply chosen not to subsidize TWR's lobbying out of public funds. Cammarano v. United States, . Pp. 545-546. 2. Nor does 501(c)(3) violate the equal protection component of the Fifth Amendment. The sections of the Code at issue do not employ any suspect classification. A legislature's decision not to subsidize the exercise of a fundamental right does not infringe that right and thus is not subject to strict scrutiny. It was not irrational for Congress to decide that tax-exempt organizations such as TWR should not further benefit at the expense of taxpayers at large by obtaining a further subsidy for lobbying. Nor was it irrational for Congress to decide that, even though it will not subsidize lobbying by charities generally, it will subsidize lobbying by veterans' organizations. Pp. 546-551. App. D.C. 117, 676 F.2d 715, reversed.REHNQUIST, J., delivered the opinion for a unanimous Court. BLACKMUN, J., filed a concurring opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 551.Solicitor General Lee argued the cause for appellants in No. 81-2338. With him on the briefs were Assistant Attorney General Archer, Deputy Solicitor General Wallace, Stuart A. Smith, Richard Farber, and Robert S. Pomerance.John Cary Sims argued the cause for appellee in No. 81-2338. With him on the brief were Alan B. Morrison and Thomas F. Field.Fn Fn Briefs of amici curiae urging reversal were filed by Sheldon S. Cohen, Julie Noel Gilbert, Dennis B. Drapkin, George H. Gangwere, and Wilmer S. Schantz, Jr., for the Veterans of Foreign Wars of the United States; by Joseph C. Zengerle and Zachary R. Karol for the Disabled American Veterans et al.; and by Mitchell Rogovin and George T. Frampton, Jr., for the American Legion. Thomas A. Troyer, H. David Rosenbloom, Albert G. Lauber, Jr., and John G. Milliken filed a brief for the American Association of Museums et al. as amici curiae urging affirmance.JUSTICE REHNQUIST delivered the opinion of the Court.Appellee Taxation With Representation of Washington (TWR) is a nonprofit corporation organized to promote what it conceives to be the "public interest" in the area of federal taxation. It proposes to advocate its point of view before Congress, the Executive Branch, and the Judiciary. This case began when TWR applied for tax-exempt status under 501(c)(3) of the Internal Revenue Code, 26 U.S.C. 501(c) (3). The Internal Revenue Service denied the application because it appeared that a substantial part of TWR's activities would consist of attempting to influence legislation, which is not permitted by 501(c)(3).1 TWR then brought this suit in District Court against the appellants, the Commissioner of Internal Revenue, the Secretary of the Treasury, and the United States, seeking a declaratory judgment that it qualifies for the exemption granted by 501(c)(3). It claimed the prohibition against substantial lobbying is unconstitutional under the First Amendment and the equal protection component of the Fifth Amendment's Due Process Clause.2 The District Court granted summary judgment for appellants. On appeal, the en banc Court of Appeals for the District of Columbia Circuit reversed, holding that 501(c)(3) does not violate the First Amendment but does violate the Fifth Amendment. App. D.C. 117, 676 F.2d 715 (1982). Appellants appealed pursuant to 28 U.S.C. 1252, and TWR cross-appealed. We noted probable jurisdiction of the appeal, .3 TWR was formed to take over the operations of two other nonprofit corporations. One, Taxation With Representation Fund, was organized to promote TWR's goals by publishing a journal and engaging in litigation; it had tax-exempt status under 501(c)(3). The other, Taxation With Representation, attempted to promote the same goals by influencing legislation; it had tax-exempt status under 501(c)(4).4 Neither predecessor organization was required to pay federal income taxes. For purposes of our analysis, there are two principal differences between 501(c)(3) organizations and 501(c)(4) organizations. Taxpayers who contribute to 501(c)(3) organizations are permitted by 170(c)(2) to deduct the amount of their contributions on their federal income tax returns, while contributions to 501(c)(4) organizations are not deductible. Section 501(c)(4) organizations, but not 501(c)(3) organizations, are permitted to engage in substantial lobbying to advance their exempt purposes.In these cases, TWR is attacking the prohibition against substantial lobbying in 501(c)(3) because it wants to use tax-deductible contributions to support substantial lobbying activities. To evaluate TWR's claims, it is necessary to understand the effect of the tax-exemption system enacted by Congress.Both tax exemptions and tax deductibility are a form of subsidy that is administered through the tax system. A tax exemption has much the same effect as a cash grant to the organization of the amount of tax it would have to pay on its income. Deductible contributions are similar to cash grants of the amount of a portion of the individual's contributions.5 The system Congress has enacted provides this kind of subsidy to nonprofit civic welfare organizations generally, and an additional subsidy to those charitable organizations that do not engage in substantial lobbying. In short, Congress chose not to subsidize lobbying as extensively as it chose to subsidize other activities that nonprofit organizations undertake to promote the public welfare.It appears that TWR could still qualify for a tax exemption under 501(c)(4). It also appears that TWR can obtain tax-deductible contributions for its nonlobbying activity by returning to the dual structure it used in the past, with a 501(c)(3) organization for nonlobbying activities and a 501(c)(4) organization for lobbying. TWR would, of course, have to ensure that the 501(c)(3) organization did not subsidize the 501(c)(4) organization; otherwise, public funds might be spent on an activity Congress chose not to subsidize.6 TWR contends that Congress' decision not to subsidize its lobbying violates the First Amendment. It claims, relying on Speiser v. Randall, , that the prohibition against substantial lobbying by 501(c)(3) organizations imposes an "unconstitutional condition" on the receipt of tax-deductible contributions. In Speiser, California established a rule requiring anyone who sought to take advantage of a property tax exemption to sign a declaration stating that he did not advocate the forcible overthrow of the Government of the United States. This Court stated that "[t]o deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech." Id., at 518.TWR is certainly correct when it states that we have held that the government may not deny a benefit to a person because he exercises a constitutional right. See Perry v. Sindermann, . But TWR is just as certainly incorrect when it claims that this case fits the Speiser-Perry model. The Code does not deny TWR the right to receive deductible contributions to support its nonlobbying activity, nor does it deny TWR any independent benefit on account of its intention to lobby. Congress has merely refused to pay for the lobbying out of public moneys. This Court has never held that Congress must grant a benefit such as TWR claims here to a person who wishes to exercise a constitutional right. This aspect of these cases is controlled by Cammarano v. United States, , in which we upheld a Treasury Regulation that denied business expense deductions for lobbying activities. We held that Congress is not required by the First Amendment to subsidize lobbying. Id., at 513. In these cases, as in Cammarano, Congress has not infringed any First Amendment rights or regulated any First Amendment activity. Congress has simply chosen not to pay for TWR's lobbying. We again reject the "notion that First Amendment rights are somehow not fully realized unless they are subsidized by the State." Id., at 515 (Douglas, J., concurring).7 TWR also contends that the equal protection component of the Fifth Amendment renders the prohibition against substantial lobbying invalid. TWR points out that 170(c)(3) permits taxpayers to deduct contributions to veterans' organizations that qualify for tax exemption under 501(c)(19). Qualifying veterans' organizations are permitted to lobby as much as they want in furtherance of their exempt purposes.8 TWR argues that because Congress has chosen to subsidize the substantial lobbying activities of veterans' organizations, it must also subsidize the lobbying of 501(c)(3) organizations.Generally, statutory classifications are valid if they bear a rational relation to a legitimate governmental purpose. Statutes are subjected to a higher level of scrutiny if they interfere with the exercise of a fundamental right, such as freedom of speech, or employ a suspect classification, such as race. E. g., Harris v. McRae, . Legislatures have especially broad latitude in creating classifications and distinctions in tax statutes. More than 40 years ago we addressed these comments to an equal protection challenge to tax legislation: "The broad discretion as to classification possessed by a legislature in the field of taxation has long been recognized ... . [T]he passage of time has only served to underscore the wisdom of that recognition of the large area of discretion which is needed by a legislature in formulating sound tax policies. Traditionally classification has been a device for fitting tax programs to local needs and usages in order to achieve an equitable distribution of the tax burden. It has, because of this, been pointed out that in taxation, even more than in other fields, legislatures possess the greatest freedom in classification. Since the members of a legislature necessarily enjoy a familiarity with local conditions which this Court cannot have, the presumption of constitutionality can be overcome only by the most explicit demonstration that a classification is a hostile and oppressive discrimination against particular persons and classes. The burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it." Madden v. Kentucky, (footnotes omitted). See also San Antonio Independent School District v. Rodriguez, ; Lehnhausen v. Lake Shore Auto Parts Co., .We have already explained why we conclude that Congress has not violated TWR's First Amendment rights by declining to subsidize its First Amendment activities. The case would be different if Congress were to discriminate invidiously in its subsidies in such a way as to "`ai[m] at the suppression of dangerous ideas.'" Cammarano, supra, at 513, quoting Speiser, 357 U.S., at 519. But the veterans' organizations that qualify under 501(c)(19) are entitled to receive tax-deductible contributions regardless of the content of any speech they may use, including lobbying. We find no indication that the statute was intended to suppress any ideas or any demonstration that it has had that effect. The sections of the Internal Revenue Code here at issue do not employ any suspect classification. The distinction between veterans' organizations and other charitable organizations is not at all like distinctions based on race or national origin.The Court of Appeals nonetheless held that "strict scrutiny" is required because the statute "affect[s] First Amendment rights on a discriminatory basis." App. D.C., at 130, 676 F.2d, at 728 (emphasis supplied). Its opinion suggests that strict scrutiny applies whenever Congress subsidizes some speech, but not all speech. This is not the law. Congress could, for example, grant funds to an organization dedicated to combating teenage drug abuse, but condition the grant by providing that none of the money received from Congress should be used to lobby state legislatures. Under Cammarano, such a statute would be valid. Congress might also enact a statute providing public money for an organization dedicated to combating teenage alcohol abuse, and impose no condition against using funds obtained from Congress for lobbying. The existence of the second statute would not make the first statute subject to strict scrutiny.Congressional selection of particular entities or persons for entitlement to this sort of largesse "is obviously a matter of policy and discretion not open to judicial review unless in circumstances which here we are not able to find. United States v. Realty Co., 444 [(1896)]." Cincinnati Soap Co. v. United States, . See also, id., at 313; Alabama v. Texas, . For the purposes of these cases appropriations are comparable to tax exemptions and deductions, which are also "a matter of grace [that] Congress can, of course, disallow ... as it chooses." Commissioner v. Sullivan, .These are scarcely novel principles. We have held in several contexts that a legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny. Buckley v. Valeo, , upheld a statute that provides federal funds for candidates for public office who enter primary campaigns, but does not provide funds for candidates who do not run in party primaries. We rejected First Amendment and equal protection challenges to this provision without applying strict scrutiny. Id., at 93-108. Harris v. McRae, supra, and Maher v. Roe, , considered legislative decisions not to subsidize abortions, even though other medical procedures were subsidized. We declined to apply strict scrutiny and rejected equal protection challenges to the statutes.The reasoning of these decisions is simple: "although government may not place obstacles in the path of a [person's] exercise of ... freedom of [speech], it need not remove those not of its own creation." Harris, 448 U.S., at 316. Although TWR does not have as much money as it wants, and thus cannot exercise its freedom of speech as much as it would like, the Constitution "does not confer an entitlement to such funds as may be necessary to realize all the advantages of that freedom." Id., at 318. As we said in Maher, "[c]onstitutional concerns are greatest when the State attempts to impose its will by force of law ... ." 432 U.S., at 476. Where governmental provision of subsidies is not "`aimed at the suppression of dangerous ideas,'" Cammarano, 358 U.S., at 513, its "power to encourage actions deemed to be in the public interest is necessarily far broader." Maher, supra, at 476.We have no doubt but that this statute is within Congress' broad power in this area. TWR contends that 501(c)(3) organizations could better advance their charitable purposes if they were permitted to engage in substantial lobbying. This may well be true. But Congress - not TWR or this Court - has the authority to determine whether the advantage the public would receive from additional lobbying by charities is worth the money the public would pay to subsidize that lobbying, and other disadvantages that might accompany that lobbying. It appears that Congress was concerned that exempt organizations might use tax-deductible contributions to lobby to promote the private interests of their members. See 78 Cong. Rec. 5861 (1934) (remarks of Sen. Reed); id., at 5959 (remarks of Sen. La Follette). It is not irrational for Congress to decide that tax-exempt charities such as TWR should not further benefit at the expense of taxpayers at large by obtaining a further subsidy for lobbying.It is also not irrational for Congress to decide that, even though it will not subsidize substantial lobbying by charities generally, it will subsidize lobbying by veterans' organizations. Veterans have "been obliged to drop their own affairs to take up the burdens of the nation," Boone v. Lightner, , "`subjecting themselves to the mental and physical hazards as well as the economic and family detriments which are peculiar to military service and which do not exist in normal civil life.'" Johnson v. Robinson, (emphasis deleted). Our country has a longstanding policy of compensating veterans for their past contributions by providing them with numerous advantages.9 This policy has "always been deemed to be legitimate." Personnel Administrator of Mass. v. Feeney, , n. 25 (1979).The issue in these cases is not whether TWR must be permitted to lobby, but whether Congress is required to provide it with public money with which to lobby. For the reasons stated above, we hold that it is not. Accordingly, the judgment of the Court of Appeals is Reversed.

[Footnote *] Together with No. 75-1260, First Railroad & Banking Company of Georgia v. United States, on certiorari to the United States Court of Appeals for the Fifth Circuit, and No. 75-1285, United States v. Penn Security Life Insurance Co., also on certiorari to the United States Court of Claims. Under 801 (a) of the Internal Revenue Code of 1954, an insurance company is considered a life insurance company for federal tax purpose if its life insurance reserves constitute more than 50% of its "total reserves," as that term is defined in 801 (c). Qualifying companies are accorded preferential tax treatment. The question here is how unearned premium reserves for accident and health (nonlife) insurance policies should be allocated between a primary insurer and a reinsurer for purposes of applying the 50% test. The unearned premium reserve is the basic insurance reserve in the casualty insurance business and an important component of "total reserves" under 801 (c) (2). The taxpayers contend that by virtue of certain reinsurance agreements ("treaties") they have maintained nonlife reserves below the 50% level. These treaties were of two basic types: (1) Treaty I, whereby the taxpayer served as reinsurer, and the "other party" was the primary insurer or ceding company; and (2) Treaty II, whereby the taxpayer served as the primary insurer and ceded a portion of the business to the "other party," the reinsurer. Both types of treaties provided that the other party would hold the premium dollars derived from accident and health business until such time as the premiums were "earned," i. e., attributable to the insurance protection provided during the portion of the policy term already elapsed. The other party also set up on its books the corresponding unearned premium reserve, relieving the taxpayer of that requirement, even though the taxpayer assumed all substantial insurance risks. In each case, the taxpayer and the other party reported their affairs annually in this way to both the Internal Revenue Service and the appropriate state insurance departments. Despite the state authorities' acceptance of these annual statements, the Government argues that the unearned premium reserves must be allocated or attributed for tax purposes from the other parties to the taxpayers, with the result that the taxpayers fail the 50% test and thus are disqualified from preferential tax treatment, primarily because, in the Government's view, 801 embodies a rule that "insurance reserves follow the insurance risk." Held: 1. The reinsurance treaties served valid business purposes and, contrary to the Government's argument, were not sham transactions without economic substance. Pp. 736-739. 2. Since the taxpayers neither held the unearned premium dollars nor set up the corresponding unearned premium reserves, and since that treatment was in accord with customary practice as policed by the state regulatory authorities, 801 (c) (2) does not permit attribution to the taxpayers of the reserves held by the other parties to the reinsurance treaties. Pp. 739-750. (a) The language of 801 (c) (2) does not suggest that Congress intended a "reserves follow the risk" rule to govern determinations under 801. Pp. 740-741. (b) Nor does the legislative history of 801 furnish support for the Government's interpretation. Pp. 742-745. (c) Section 820 of the Code, prescribing the tax treatment of modified coinsurance contracts, affords an unmistakable indication that Congress did not intend 801 to embody a "reserves follow the risk" rule. Pp. 745-750. 3. Nor is attribution of unearned premium reserves to the taxpayers required under 801 (c) (3), counting in total reserves "all other insurance reserves required by law." There is no indication that state statutory law in these cases required the taxpayers to set up and maintain the contested unearned premium reserves, especially since the insurance departments of the affected States consistently accepted annual reports showing reserves held as the taxpayers claim they should be. Pp. 750-752. No. 75-1221, 207 Ct. Cl. 638, 524 F.2d 1167, and No. 75-1285, 207 Ct. Cl. 594, 524 F.2d 1155, affirmed; No. 75-1260, 514 F.2d 675, reversed and remanded.POWELL, J., delivered the opinion of the Court, in which BURGER, C. J., and BRENNAN, STEWART, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. WHITE, J., filed a dissenting opinion, in which MARSHALL, J., joined, post, p. 753. Stuart A. Smith argued the cause for the United States in all cases. With him on the briefs were Solicitor General Bork, Assistant Attorney General Crampton, Acting Assistant Attorney General Baum, Ernest J. Brown, and Herbert Grossman. James R. Harper argued the cause for petitioner in No. 75-1260. With him on the brief was Irving R. M. Panzer.E. Michael Masinter argued the cause for respondent in No. 75-1221. With him on the brief was James H. Landon. John B. Jones, Jr., argued the cause for respondent in No. 75-1285. With him on the brief were John T. Sapienza, Andrew W. Singer, Owen T. Armstrong, and Robert A. Kagan.MR. JUSTICE POWELL delivered the opinion of the Court.The question for decision is how unearned premium reserves for accident and health (A&H) insurance policies should be allocated between a primary insurer and a reinsurer for federal tax purposes. We granted certiorari in these three cases to resolve a conflict between the Circuits and the Court of Claims. .IAn insurance company is considered a life insurance company under the Internal Revenue Code if its life insurance reserves constitute more than 50% of its total reserves, IRC of 1954, 801 (a), 26 U.S.C. 801 (a),1 and qualifying companies are accorded preferential tax treatment.2 A company close to the 50% line will ordinarily achieve substantial tax savings if it can increase its life insurance reserves or decrease nonlife reserves so as to come within the statutory definition.The taxpayers here are insurance companies that assumed both life insurance risks and A&H - nonlife - risks. The dispute in these cases is over the computation for tax purposes of nonlife reserves. The taxpayers contend that by virtue of certain reinsurance agreements - or treaties, to use the term commonly accepted in the insurance industry - they have maintained nonlife reserves below the 50% level. The Government argues that the reinsurance agreements do not have that effect, that the taxpayers fail to meet the 50% test, and that accordingly they do not qualify for preferential treatment.3 Specifically the dispute is over the unearned premium reserve, the basic insurance reserve in the casualty insurance business and an important component of "total reserves," as that term is defined in 801 (c).4 A&H policies of the type involved here generally are written for a two- or three-year term. Since policyholders typically pay the full premium in advance, the premium is wholly "unearned" when the primary insurer initially receives it. See Rev. Rul. 61-167, 1961-2 Cum. Bull. 130, 132. The insurer's corresponding liability can be discharged in one of several ways: granting future protection by promising to pay future claims; reinsuring the risk with a solvent reinsurer; or returning a pro rata portion of the premium in the event of cancellation. Each method of discharging the liability may cost money. The insurer thus establishes on the liability side of its accounts a reserve, as a device to help assure that the company will have the assets necessary to meet its future responsibilities. See O. Dickerson, Health Insurance 604-605 (3d ed. 1968) (hereafter Dickerson). Standard accounting practice in the casualty field, made mandatory by all state regulatory authorities, calls for reserves equal to the gross unearned portion of the premium.5 A simplified example may be useful: A policyholder takes out a three-year A&H policy for a premium, paid in advance, of $360. At first the total $360 is unearned, and the insurer's books record an unearned premium reserve in the full amount of $360. At the end of the first month, one thirty-sixth of the term has elapsed, and $10 of the premium has become "earned".6 The unearned premium reserve may be reduced to $350. Another $10 reduction is permitted at the end of the second month, and so on.IIThe reinsurance treaties at issue here assumed two basic forms.7 Under the first form, Treaty I, the taxpayer served as reinsurer, and the "other party" was the primary insurer or "ceding company," in that it ceded part or all of its risk to the taxpayer. Under the second form, Treaty II, the taxpayer served as the primary insurer and ceded a portion of the business to the "other party," that party being the reinsurer. Both types of treaties provided that the other party would hold the premium dollars derived from A&H business until such time as the premiums were earned - that is, attributable to the insurance protection provided during the portion of the policy term that already had elapsed. The other party also set up on its books the corresponding unearned premium reserve, relieving the taxpayer of that requirement. In each case, the taxpayer and the other party reported their affairs annually in this fashion to both the Internal Revenue Service and the appropriate state insurance departments. These annual statements were accepted by the state authorities without criticism. Despite this acceptance, the Government argues here that the unearned premium reserves must be allocated or attributed for tax purposes from the other parties, as identified above, to the taxpayers,8 thereby disqualifying each of the taxpayers from preferential treatment.ANo. 75-1221, United States v. Consumer Life Ins. Co. In 1957 Southern Discount Corp. was operating a successful consumer finance business. Its borrowers, as a means of assuring payment of their obligations in the event of death or disability, typically purchased term life insurance and term A&H insurance at the time they obtained their loans. This insurance - commonly known as credit life and credit A&H - is usually coextensive in term and coverage with the term and amount of the loan. The premiums are generally paid in full at the commencement of coverage, the loan term ordinarily running for two or three years. Prohibited from operating in Georgia as an insurer itself, Southern served as a sales agent for American Bankers Life Insurance Co., receiving in return a sizable commission for its services.With a view to participating as an underwriter and not simply as agent in this profitable credit insurance business, Southern formed Consumer Life Insurance Co., the taxpayer here, as a wholly owned subsidiary incorporated in Arizona, the State with the lowest capital requirements for insurance companies. Although Consumer Life's low capital precluded it from serving as a primary insurer under Georgia law, it was nonetheless permitted to reinsure the business of companies admitted in Georgia.Consumer Life therefore negotiated the first of two reinsurance treaties with American Bankers. Under Treaty I, Consumer Life served as reinsurer and American Bankers as the primary insurer or ceding company. Consumer Life assumed 100% of the risks on credit life and credit A&H business originating with Southern, agreeing to reimburse American Bankers for all losses as they were incurred. In return Consumer Life was paid a premium equivalent to 87 1/2% of the premiums received by American Bankers.9 But the mode of payment differed as between life and A&H policies. With respect to life insurance policies, American Bankers each month remitted to the reinsurer - Consumer Life - the stated percentage of all life insurance premiums collected during the prior month. With respect to A&H coverage, however, American Bankers each month remitted the stated percentage of the A&H premiums earned during the prior month, the remainder to be paid on a pro rata basis over the balance of the coverage period.Again an example might prove helpful. Assume that a policyholder buys from American Bankers on January 1 a three-year credit life policy and a three-year credit A&H policy, paying on that date a $360 premium for each policy. On February 1, under Treaty I, American Bankers would be obligated to pay Consumer Life 87 1/2% of $360 for reinsurance of life risks. This represents the total life reinsurance premium; there would be no further payments for life reinsurance. But for A&H reinsurance, American Bankers would remit on February 1 only the stated percentage of $10, since only $10 would have been earned during the prior month. It would remit the same amount on March 1 for A&H coverage provided during February, and so on for a total of 36 months.Treaty I permitted either party to terminate the agreement upon 30 days' notice. But termination was to be prospective; reinsurance coverage would continue on the same terms until the policy expiration date for all policies already executed. This is known as a "runoff provision."Because it held the unearned A&H premium dollars, and also under an express provision in Treaty I, American Bankers set up an unearned premium reserve equivalent to the full value of the premiums. Meantime Consumer Life, holding no unearned premium dollars, established on its books no unearned premium reserve for A&H business.10 Annual statements filed with the state regulatory authorities in Arizona and Georgia reflected this treatment of reserves, and the statements were accepted without challenge or disapproval.By 1962 Consumer Life had accumulated sufficient surplus to qualify under Georgia law as a primary insurer. Treaty I was terminated, and Southern began placing its credit insurance business directly with Consumer Life. The parties then negotiated Treaty II, under which American Bankers served as reinsurer of the A&H policies issued by Consumer Life.11 Ultimately Consumer Life retained the lion's share of the risk, but Treaty II was set up in such a way that American Bankers held the premium dollars until they were earned. This required rather complicated contractual provisions, since Consumer Life as primary insurer did receive the A&H premium dollars initially.Roughly described, Treaty II provided as follows: Consumer Life paid over the A&H premiums when they were received. American Bankers immediately returned 50% of this sum as a ceding commission meant to cover Consumer Life's initial expenses. Then, at the end of each quarter, American Bankers paid to Consumer Life "experience refunds" based on claims experience. If there were no claims, American Bankers would refund 47% of the total earned premiums. If there were claims (and naturally there always were), Consumer Life received 47% less the sums paid to meet claims. It is apparent that American Bankers would never retain more than 3% of the total earned premiums for the quarter. Only if claims exceeded 47% would this 3% be encroached, but even in that event Treaty II permitted American Bankers to recoup its losses by reducing the experience refund in later quarters. Actual claims experience never approached the 47% level.Again, since American Bankers held the unearned premiums, it set up the unearned premium reserve on its books. Consumer Life, which initially had set up such a reserve at the time it received the premiums, took credit against them for the reserve held by American Bankers. Annual statements filed by both companies consistently reflected this treatment of reserves under Treaty II, and at no time did state authorities take exception.12 The taxable years 1958 through 1960, and 1962 through 1964, are at issue here. For each of those years Consumer Life computed its 801 ratio based on the reserves shown on its books and accepted by the state authorities. According to those figures, Consumer Life qualified for tax purposes as a life insurance company. The Commissioner of Internal Revenue determined, however, that the A&H reserves held by American Bankers should be attributed to Consumer Life, thereby disqualifying the latter from favorable treatment. Consumer Life paid the deficiency assessed by the Commissioner and brought suit for a refund. The Court of Claims, disagreeing with its trial judge, held for the taxpayer.BNo. 75-1260, First Railroad & Banking Company of Georgia v. United States. The relevant taxable entity in this case is First of Georgia Life Insurance Co., a subsidiary of the petitioner First Railroad & Banking Co. of Georgia. Georgia Life was party to a Treaty II type agreement,13 reinsuring its A&H policies with an insurance company, another subsidiary of First Railroad.14 On the basis of the reserves carried on its books and approved by state authorities, Georgia Life qualified as a life insurance company for the years at issue here, 1961-1964. Consequently First Railroad excluded Georgia Life's income from its consolidated return, pursuant to 1504 (b) (2) of the Code. The Commissioner determined that Georgia Life did not qualify for life insurance company status or exclusion from the consolidated return, and so assessed a deficiency. First Railroad paid and sued for a refund. It prevailed in the District Court, but the Court of Appeals for the Fifth Circuit reversed, relying heavily on Economy Finance Corp. v. United States, 501 F.2d 466 (CA7 1974), cert. denied, , rehearing denied, , motion for leave to file second petition for rehearing pending, No. 74-701.CNo. 75-1285, United States v. Penn Security Life Ins. Co. Penn Security Life Insurance Co., a Missouri corporation, is, like Consumer Life, a subsidiary of a finance company. Under three separate Treaty I type agreements, it reinsured the life and A&H policies of three unrelated insurers during the years in question, 1963-1965. The other companies reported the unearned premium reserves, and the Missouri authorities approved this treatment. Because one of the three treaties did not contain a runoff provision like that present in Consumer Life, the Government conceded that the reserves held by that particular ceding company should not be attributed to the taxpayer. But the other two treaties were similar in all relevant respects to Treaty I in Consumer Life. After paying the deficiencies assessed by the Commissioner, Penn Security sued for a refund in the Court of Claims. Both the trial judge and the full Court of Claims ruled for the taxpayer.IIIThe Government commences its argument by suggesting that these reinsurance agreements were sham transactions without economic substance and therefore should not be recognized for tax purposes. See, e. g., Gregory v. Helvering, ; Knetsch v. United States, . We do not think this is an accurate characterization.Both taxpayers who were parties to Treaty I agreements entered into them only after arm's-length negotiation with unrelated companies. The ceding companies gave up a large portion of premiums, but in return they had recourse against the taxpayers for 100% of claims. The ceding companies were not just doing the taxpayers a favor by holding premiums until earned. This delayed payment permitted the ceding companies to invest the dollars, and under the treaties they kept all resulting investment income. Nor were they mere "paymasters," as the Government contends, for indemnity reinsurance of this type does not relieve the ceding company of its responsibility to policyholders. Had the taxpayers become insolvent, the insurer still would have been obligated to meet claims.15 Treaty II also served most of the basic business purposes commonly claimed for reinsurance treaties. See W. Hammond, Insurance Accounting Fire & Casualty 86 (2d ed. 1965); Dickerson 563-564. It reduced the heavy burden on the taxpayer's surplus caused by the practice of computing casualty reserves on the basis of gross unearned premiums even though the insurer may have paid out substantial sums in commissions and expenses at the commencement of coverage. By reducing this drain on surplus, the taxpayer was able to expand its business, resulting in a broader statistical base that permitted more accurate loss predictions.16 Through Treaty II each taxpayer associated itself with a reinsurance company more experienced in the field. Moreover, under Treaty II the taxpayers were shielded against a period of catastrophic losses. Even though the reinsurer would eventually recapture any such deep losses, it would be of substantial benefit to the ceding company to spread those payments out over a period of months or years. Both courts below that passed on Treaty II agreements found expressly that the treaties served valid and substantial nontax purposes.17 Tax considerations well may have had a good deal to do with the specific terms of the treaties, but even a "major motive" to reduce taxes will not vitiate an otherwise substantial transaction. United States v. Cumberland Pub. Serv. Co., .18 IVWhether or not these were sham transactions, however, the Government would attribute the contested unearned premium reserves to the taxpayers because it finds in 801 (c) (2) a rule that "insurance reserves follow the insurance risk." Brief for United States 34. This assertion, which forms the heart of the Government's case, is based on the following reasoning. Section 801 provides a convenient test for determining whether a company qualifies for favorable tax treatment as a life insurance company, a test determined wholly by the ratio of life reserves to total reserves. Reserves, under accepted accounting and actuarial standards, represent liabilities. Although often carelessly referred to as "reserve funds," or as being available to meet policyholder claims, reserves are not assets; they are entered on the liability side of the balance sheet. Under standard practice they are mathematically equivalent to the gross unearned premium dollars already paid in, but conceptually the reserve - a liability - is distinct from the cash asset. This much of the argument is indisputably sound.The Government continues: Since a reserve is a liability, it is simply an advance indicator of the final liability for the payment of claims. The company that finally will be responsible for paying claims - the one that bears the ultimate risk - should therefore be the one considered as having the reserves. In each of these cases, the Government argues, it was the taxpayer that assumed the ultimate risk. The other companies were merely paymasters holding on to the premium dollars until earned in return for a negligible percentage of the gross premiums.AWe may assume for present purposes that the taxpayers did take on all substantial risks under the treaties.19 And in the broadest sense reserves are, of course, set up because of future risks. Cf. Helvering v. Le Gierse, . The question before us, however, is not whether the Government's position is sustainable as a matter of abstract logic.20 Rather it is whether Congress intended a "reserves follow the risk" rule to govern determinations under 801. There is no suggestion in the plain language of the section that this is the case. See nn. 1 and 4, supra. If anything, the language is a substantial obstacle to accepting the Government's position. The word "risk" does not occur. Moreover, in 801 (c) (2) Congress used the phrase "unearned premiums" rather than "unearned premium reserve." The Government argues that, taken in context, "unearned premiums" must be regarded as referring to reserves - to the liability account for unearned premium reserves and not the asset represented by the premium dollars. We agree that the reference is to reserves, but still the use of the truncated phrase suggests that Congress intended a mechanical application of the concept. In other words, this phrase suggests that in Congress' view unearned premium reserves always would be found in the same place as the unearned premiums themselves. If so, reserves would follow mechanically the premium dollars, as taxpayers contend, and would not necessarily follow the risk. BThe rather sparse legislative history furnishes no better support for the Government's position. Under the early Revenue Acts, all insurance companies were taxed on the same basis as other corporations. Both investment income and premium or underwriting income were included in gross income, although there was a special deduction for additions to reserves. See, e. g., Revenue Act of 1918, 234 (a) (10), 40 Stat. 1079.By 1921 Congress became persuaded that this treatment did not accurately reflect the nature of the life insurance enterprise, since life insurance is often a form of savings for policyholders, similar in some respects to a bank deposit. See Hearings on H. R. 8245 before the Senate Committee on Finance, 67th Cong., 1st Sess., 83 (1921) (testimony of Dr. T. S. Adams, Tax Adviser to Treasury Department). Under this view, premium receipts "were not true income [to the life insurance company] but were analogous to permanent capital investment." Helvering v. Oregon Mutual Life Ins. Co., . The 1921 Act therefore provided, for the first time, that life insurance companies would be taxed on investment income alone and not on premium receipts. Revenue Act of 1921, 242-245, 42 Stat. 261. The same rationale did not apply to other forms of insurance, and Congress continued to tax insurance companies other than life on both underwriting and investment income. 246-247.The 1921 Act was thus built on the assumption that important differences between life and nonlife insurance called for markedly different tax treatment. Strict adherence to this policy rationale would dictate that any company insuring both types of risks be required to segregate its life and nonlife business so that appropriate tax rules could be applied to each. Congress considered this possibility but chose instead a more convenient rule of thumb,21 the 50% reserve ratio test.22 The Treasury official primarily responsible for the 1921 Act explained: "Some companies mix with their life business accident and health insurance. It is not practicable for all companies to disassociate those businesses so that we have assumed that if this accident and health business was more than 50 per cent of their business, as measured by their reserves, it could not be treated as a life insurance company. On the other hand, if their accident and health insurance were incidental and represented less than 50 per cent of their business we treated them as a life insurance company." 1921 Hearings, supra, at 85 (testimony of Dr. T. S. Adams). This passage constitutes the only significant reference to the test in the 1921 deliberations.In succeeding years controversy developed over the preferential treatment enjoyed by life insurance companies. There were claims that they were not carrying their fair share of the tax burden. There were charges that stock companies were favored over mutuals, or vice versa. There was a nagging question over just how to compute a proper deduction for additions to reserves. Congress tried a host of different formulas to ameliorate these problems. See H. R. Rep. No. 34, 86th Cong., 1st Sess., 2-7 (1959); S. Rep. No. 291, 86th Cong., 1st Sess., 3-11 (1959); Alinco Life Ins. Co. v. United States, 178 Ct. Cl. 813, 831-837, 373 F.2d 336, 345-349 (1967). But throughout these years the 50% test was not significantly changed.23 In 1959 Congress passed legislation that finally established a permanent tax structure for life insurance companies. Life Insurance Company Income Tax Act of 1959, 73 Stat. 112. For the first time since 1921, not only investment income but also a portion of underwriting income was made subject to taxation.24 But even as Congress was rewriting the substantive provisions for taxing life insurance companies, it did not, despite occasional calls for change,25 make any relevant alterations in 801. Moreover, the few references to that provision in the committee reports shed little light on the issue presented here.26 They contain no explicit or implicit support for a rule that reserves follow the risk.CMore important than anything that appears in hearings, reports, or debates is a provision added in 1959, 820, concerning modified coinsurance contracts between life insurance companies.27 This section, although designed to deal with a problem different from the one presented here, is simply unintelligible if Congress thought that 801 embodied an unvarying rule that reserves follow the risk.A conventional coinsurance contract is a particular form of indemnity reinsurance.28 The reinsurer agrees to reimburse the ceding company for a stated portion of obligations arising out of the covered policies. In return, the reinsurer receives a similar portion of all premiums received by the insurer, less a ceding commission to cover the insurer's overhead. The reinsurer sets up the appropriate reserve for its proportion of the obligation and, as is customary, the ceding company takes credit against its reserves for the portion of the risks reinsured.A modified coinsurance contract is a further variation in this esoteric area of insurance. As explained before the Senate Finance Committee, a modified form of coinsurance developed because some major reinsurers were not licensed to do business in New York, and New York did not permit a ceding company to take credit against its reserves for business reinsured with unlicensed companies. Hearings on H. R. 4245 before the Senate Committee on Finance, 86th Cong., 1st Sess., 608 (1959) (statement of Henry F. Rood). Denial of credit places the ceding company in an undesirable position. It has depleted its assets by paying to the reinsurer the latter's portion of premiums, but its liability account for reserves remains unchanged. Few companies would accept the resulting drain on surplus, and unlicensed reinsurers wishing to retain New York business began offering a modified form of coinsurance contract. Obligations would be shared as before, but the ceding company, which must in any event maintain 100% of the reserves, would be permitted to retain and invest the assets backing the reserves. As consideration for this right of retention, modified coinsurance contracts require the ceding company to pay to the reinsurer, under a complicated formula, the investment income on the reinsurer's portion of the investments backing the reserve. See id., at 609; E. Wightman, Life Insurance Statements and Accounts 150-151 (1952); D. McGill, Life Insurance 435-440 (rev. ed. 1967).The 1959 legislation, as it passed the House, contained no special treatment for these modified contracts. The income involved therefore would have been taxed twice, once as investment income to the ceding company and then as underwriting income to the reinsurer.29 The Senate thought this double taxation inequitable, and therefore added 820, to which the House agreed. That section provides that for tax purposes modified coinsurance contracts shall be treated the same as conventional coinsurance contracts, if the contracting parties consent to such treatment. For consenting companies Congress not only provided that gross investment income shall be treated as if it were received directly (in appropriate share) by the reinsurer, 820 (c) (1), but also expressly declared that the reserves "shall be treated as a part of the reserves of the reinsurer and not of the reinsured." 820 (c) (3).Under a modified coinsurance contract the reinsurer bears the risk on its share of the obligations. Thus, if 801 mandates that reserves follow the risk, the reinsurer could not escape being considered as holding its share of the reserve. Section 820 (c) (3), providing for attribution of the reserves to the reinsurer, would be an elaborate redundancy. And although 820 (a) (2) specifies that attribution under 820 is optional, requiring the consent of the parties, the parties would in fact have no option at all. Plainly 820 is incompatible with a view that 801 embodies a rule that reserves follow the risk.30 The Commissioner himself, interpreting 801 in light of 820, has implicitly acknowledged that reserves do not follow the risk. Rev. Rul. 70-508, 1970-2 Cum. Bull. 136. Advice was requested by the parties to a modified coinsurance contract who had not elected the special treatment available under 820. The ceding company had carried the life insurance reserves on its books, although the reinsurer bore the ultimate risk. The ceding company wanted to know whether it could count those reserves in its ratio for purposes of 801. Relying on 801 (b) and the Treasury Regulations implementing it, the Commissioner ruled that it could. A "reserves follow the risk" rule would have dictated precisely the opposite result.DSection 820 affords an unmistakable indication that 801 does not impose the "reserves follow the risk" rule. Instead, Congress intended to rely on customary accounting and actuarial practices, leaving, as 820 makes evident, broad discretion to the parties to a reinsurance agreement to negotiate their own terms. This does not open the door to widespread abuse. "Congress was aware of the extensive, continuing supervision of the insurance industry by the states. It is obvious that subjecting the reserves to the scrutiny of the state regulatory agencies is an additional safeguard against overreaching by the companies." Mutual Benefit Life Ins. Co. v. Commissioner, 488 F.2d 1101, 1108 (CA3 1973), cert. denied, . See Lamana-Panno-Fallo Industrial Ins. Co. v. Commissioner, 127 F.2d 56, 58-59 (CA5 1942); Alinco Life Ins. Co. v. United States, 178 Ct. Cl., at 831, 373 F.2d, at 345. See also Prudential Ins. Co. v. Benjamin, ; 15 U.S.C. 1011 (McCarran-Ferguson Act). In presenting the 1959 legislation to the full House, members of the committee that drafted the bill were careful to underscore the continuing primacy of state regulation, with specific reference to the question of reserves.31 In two of the cases before us the courts below expressly found that the reserves were held in accordance with accepted actuarial and accounting standards,32 while the third court did not address the issue. In all three, it was found that no state insurance department required any change in the way the taxpayers computed and reported their reserves.33 Since the taxpayers neither held the unearned premium dollars nor set up the corresponding unearned premium reserves, and since that treatment was in accord with customary practice as policed by the state regulatory authorities, we hold that 801 (c) (2) does not permit attribution to the taxpayers of the reserves held by the other parties to the reinsurance treaties.34 VThe Government argues that even if attribution of reserves is not required under 801 (c) (2), attribution is required under 801 (c) (3), counting in total reserves "all other insurance reserves required by law." See n. 4, supra. Under state statutory law, the Government suggests, these taxpayers were required to set up and maintain the full unearned premium reserves.Our attention is drawn to no statute in any of the affected States that expressly requires this result. Instead the Government returns to its main theme and asserts, in essence, that certain general state statutory provisions embody the doctrine that reserves follow the risk.35 We would find it difficult to infer such a doctrine from the statutory provisions relied on by the Government even if there were no other indications to the contrary. But other indications are compelling. The insurance departments of the affected States consistently accepted annual reports showing reserves held as the taxpayers claim they should be.36 It is well established that the consistent construction of a statute "by the agency charged with its enforcement is entitled to great deference by the courts." NLRB v. Boeing Co., . See Trafficante v. Metropolitan Life Ins. Co., ; Udall v. Tallman, ; Skidmore v. Swift & Co., . This is no less the rule when federal courts are interpreting state law administered by state regulatory officials,37 at least where, as here, there is no reason to think that the state courts would construe the statute differently. We find no basis for holding that taxpayers were required by law, within the meaning of 801 (c) (3), to maintain the disputed unearned premium reserves.38 VIFor the reasons stated, we hold for the taxpayers. The judgments in Nos. 75-1221 and 75-1285 are affirmed. The judgment in No. 75-1260 is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.